Application 036/2020 – Legal and Human Rights Centre and Tanganyika Law Society v. United Republic of Tanzania
CASE SUMMARY
I. THE PARTIES
- The Applicants identified themselves as Legal and Human Rights Center and
Tanganyika Law Society. However, in Consolidated Applications No.
009/2011, and No. 011/ 2011 Tanganyika Law Society and the Legal and
Human Rights Centre & Reverend Christopher Mtikila v. United Republic
of Tanzania from which this Application arises, the Applicants are described
as Non-Governmental Organizations (NGOs), with Observer Status before the
African Commission on Human and Peoples’ Rights, both based in the United
Republic of Tanzania. They stated their objectives as representing the interest
of its members, the administration of justice, and upholding and advising
Government and the public on all legal matters, including human rights, rule of
law and good governance; and the promotion and protection of human and
peoples’ rights respectively. - The Applicants are represented by Advocate Fulgence T. Massawe of the
Legal and Human Rights Centre, and Advocate Jebra Kambole, of Law
Guards Advocates, Dar es Salam. - The Application is filed against the United Republic of Tanzania (hereinafter
referred to as “the Respondent State”) which became a party to the African
Charter on Human and Peoples’ Rights (herein after referred to as “the
Charter”) on 21 October 1986, and to the Protocol establishing the African
Court on 10 February 2006. Though the Respondent State made the
Declaration prescribed under Article 34(6) of the Protocol, by which it
accepted the jurisdiction of the Court to receive applications directly from
individuals and Non-Governmental Organizations (NGOs), it withdrew the
Declaration on 20 November 2019. According to the jurisprudence of the
Court, this withdrawal takes effect after twelve months, that is, on 22
November 2020.
II. SUBJECT OF THE APPLICATION
- The Applicants state that they instituted an Application before the Court in
2011 (Application No. 011/2011) 1 , seeking orders to compel the Respondent
State to amend its constitutional and legal framework to allow for independent
candidacy in its electoral process. - The Applicants further state that they were successful in that Application, and
that the Court found in their favour, that the Respondent State had violated
Articles 10 and 13(1) of the Charter. The Applicants further state that the
Court ordered the Respondent State to take constitutional, legislative and all
other measures necessary and within reasonable time to remedy the
violations, and to inform the Court on the measures taken. - The Applicants contend that, without reason, the Court’s judgment on the
merits excluded them from subsequent stages of the case, including the
reparations stage, and instead, heard only from Reverend Christopher Mtikila,
who was the 2nd Applicant in Consolidated case. The Applicants argue that
due to the fact that Reverend Christopher Mtikila died in 2015, there has been
nobody to formally follow up with the implementation of the Court’s judgments. - The Applicants also aver that the Respondent State has not aligned its
constitutional and legal framework to allow independent candidacy, therefore
failing to give effect to the rights of the Applicants and countless other
citizens. This is despite the Respondent State arguing that such changes can
only be through a constitutional review process, yet the Head of State has
publicly stated that there shall be no constitutional review process.
- The Applicants submit that the constitutional review process is not the only
means by which to give effect to the Court’s judgment; that this can be
achieved through a constitutional amendements bill which would be adopted by
Parliament at an ordinary or extraordinary sitting. - They further state that in compounding the continuous violations occasioned
by the non-implementation of the decisions of the Court, the Respondent
State has contributed to or failed to prevent a number of activities that have
contributed to shrinking space in Tanzania, including:
i. Arrests and harassment of opposition politicians and journalists;
ii. Banning of live broadcast of parliamentary sessions which has
contributed to limiting citizen’s access to information;
iii. Adoption of laws and policies that restrict media freedoms and free
speech;
iv. The unlawful banning of political activity including political rallies and
public political gatherings. - They state that, local government elections were conducted on 24 November
2019 and Parliamentary and Presidential elections are scheduled to be held in
October 2020. They argue that in the absence of a framework that provides
for independent candidacy and in light of the shrunk civic and political space,
it will be difficult, if not impossible, to have a fair, just and credible electoral
process. - They argue that, they and Tanzanian citizens as a whole, continue to suffer
grave and irreparable harm due to the actions and omissions of the
Respondent and that should elections proceed under the current legal
framework, grave consequences could follow, including electoral related
disputes and violence. - According to the Applicants, should the Respondent State fail to implement
the necessary policy, constitutional, legal and other measures, the Applicants
and other citizens shall fail to realize the rights as declared by the Court on its
merits Judgment. Furthermore, the Applicants agitate that they have no other
available or expeditious legal/judicial recourse and have thus been forced to
return to this Court to seek justice.
III. APPLICANTS’ PRAYERS
- The Applicants pray the Court for the following orders:
a. Provisional measures pursuant to Article 27 of the Protocol (sic) order the
Respondent to stay council members, parliamentary and presidential
elections scheduled for 2020 pending the determination of this
Application;
b. An order reinstating the Applicant (sic) to proceedings in Application 9 of
2011 before the Court.
c. An order compelling the Respondent to take all necessary measures to
give effect to the decision on the merit decision (sic) in such manner so as
to ensure that independent candidates can vie for council members,
parliamentary and presidential elections scheduled for October 2020,
respectively.
d. An order finding that the Respondent in violation of Article 1 of the African
Charter.
e. An order compelling the Respondent to periodically report to the Court
within a reasonable timeframe on the measure taken to give effect to the
decisions of the Court.
f. An order to declare the Respondent has disobey (sic) the Court orders if
this Honourable Court of 14 th June 2011.
