Wakilii

Kambole v Tanzania (Application No. 018-2018)

African Court on Human and Peoples' Rights · [2020] AfCHPR 1 · 2020 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to the African Court on Human and Peoples' Rights challenging the constitutionality of article 41(7) of Tanzania's Constitution
Decision
Application granted; Tanzania ordered to amend its Constitution and report on implementation

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Court on Human and Peoples' Rights held that article 41(7) of Tanzania's Constitution, which ousts the jurisdiction of courts to inquire into presidential elections after the Electoral Commission declares a winner, violates the applicant's rights to non-discrimination (Article 2) and to have his cause heard (Article 7(1)(a)) under the African Charter. The provision creates unjustified differentiation between litigants by denying those challenging presidential election results access to judicial remedies while permitting other litigants to access courts. The Court ordered Tanzania to amend its Constitution within two years to align with the Charter.

Outcome

Application granted; Tanzania ordered to amend its Constitution and report on implementation

Facts

Jebra Kambole, a Tanzanian advocate, challenged article 41(7) of Tanzania's Constitution before the African Court on Human and Peoples' Rights. Article 41(7) bars any court from inquiring into the election of a presidential candidate after the Electoral Commission has declared a winner. Kambole argued this provision contradicts article 13(6)(a) of the same Constitution, which guarantees the right to a fair hearing and appeal. Tanzania's Court of Appeal had previously held it lacked power to nullify constitutional provisions, and the High Court ruled that article 41(7) unambiguously ousts judicial jurisdiction over presidential elections. Kambole filed his application in July 2018, eight years after Tanzania deposited its declaration accepting the Court's jurisdiction. Tanzania objected on grounds of non-exhaustion of local remedies and unreasonable delay.

Issues

  1. Whether article 41(7) of Tanzania's Constitution, which bars courts from inquiring into the election of a presidential candidate after the Electoral Commission has declared a winner, violates the right to freedom from discrimination under Article 2 of the African Charter.
  2. Whether article 41(7) of Tanzania's Constitution violates the right to equal protection of the law under Article 3(2) of the African Charter.
  3. Whether article 41(7) of Tanzania's Constitution violates the right to have one's cause heard, including the right to appeal to competent national organs, under Article 7(1)(a) of the African Charter.
  4. Whether Tanzania has failed to honour its obligation to recognise rights and take legislative measures to give effect to the Charter under Article 1.

Orders

  • Application declared admissible.
  • Article 41(7) of Tanzania's Constitution violates Article 2 of the African Charter.
  • Article 41(7) of Tanzania's Constitution does not violate Article 3(2) of the African Charter.
  • Article 41(7) of Tanzania's Constitution violates Article 7(1)(a) of the African Charter.
  • Tanzania has violated Article 1 of the African Charter by retaining article 41(7).
  • Tanzania ordered to take all necessary constitutional and legislative measures within two years to amend article 41(7) to align with the Charter.
  • Tanzania ordered to publish the judgment on the websites of its Judiciary and Ministry for Constitutional and Legal Affairs within three months, ensuring accessibility for at least one year.
  • Tanzania ordered to report to the Court within twelve months on implementation measures, and thereafter every six months until full implementation.
  • Each party to bear its own costs.

Rules and key headnotes

Non-Discrimination — Indirect Discrimination — Disparate Effect on Groups
Discrimination under Article 2 of the African Charter includes both direct and indirect discrimination; indirect discrimination relates to measures which are not discriminatory at face value but are discriminatory in fact and effect, creating disparate impact on groups or individuals.
Non-Discrimination — Justification for Differential Treatment — Objective and Reasonable Justification
Not all forms of distinction or differentiation constitute discrimination; a distinction becomes discriminatory under Article 2 of the African Charter when it lacks objective and reasonable justification and is not necessary and proportional in a democratic society.
Margin of Appreciation — Limits on State Discretion — Supervisory Jurisdiction of Regional Courts
While the margin of appreciation doctrine recognises a State's discretion in implementing human rights obligations based on its direct knowledge of local conditions, it cannot be used to oust the supervisory jurisdiction of the African Court; the Court retains jurisdiction to assess whether a fair balance has been struck between societal interests and individual rights protected under the Charter.
Domestic Law and International Obligations — Vienna Convention Article 27
Under Article 27 of the Vienna Convention on the Law of Treaties, a State cannot invoke provisions of its internal laws to justify non-fulfillment of its obligations under a treaty; if a State relies on domestic law to justify restriction of a right, it must demonstrate that the domestic provision does not infringe the Charter.
Right to Fair Hearing — Access to Courts — Ouster of Jurisdiction
The right to have one's cause heard under Article 7(1)(a) of the African Charter encompasses the right of access to courts for adjudication of grievances and the right to appeal; a constitutional provision that ousts the jurisdiction of courts to consider complaints relating to presidential elections, irrespective of the nature or merits of the grievance, violates this right.
Exhaustion of Local Remedies — Availability and Effectiveness — No Remedy Where Courts Lack Power
An applicant is only required to exhaust judicial remedies that are available, effective and sufficient; where domestic courts have no power to nullify constitutional provisions and would inevitably dismiss an application challenging such provisions, no effective remedy exists for exhaustion within the meaning of Article 56(5) of the African Charter.
Continuing Violations — Reasonable Time for Filing Applications
Where alleged violations have a continuing character because they are founded in a law that remains in force, the violations automatically renew themselves for as long as they are not remedied; in such circumstances, the African Court can be seized of the matter at any time for as long as the law causing the violation remains in force.

Legislation cited (13)

  • African Charter on Human and Peoples' Rights Article 1
  • African Charter on Human and Peoples' Rights Article 2
  • African Charter on Human and Peoples' Rights Article 3(2)
  • African Charter on Human and Peoples' Rights Article 7(1)(a)
  • African Charter on Human and Peoples' Rights Article 13
  • African Charter on Human and Peoples' Rights Article 27(2)
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 3(1)
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 34(6)
  • Constitution of the United Republic of Tanzania article 13(6)(a)
  • Constitution of the United Republic of Tanzania article 41(7)
  • Constitution of the United Republic of Tanzania article 74(12)
  • Basic Rights and Duties Enforcement Act
  • Vienna Convention on the Law of Treaties Article 27

Cases cited (38)

  • Cheusi v Tanzania (Application No. 004/2015)
  • Ingabire Victoire Umuhoza v Rwanda (2016) 1 AfCLR 562
  • Jawara v The Gambia (2000) AHRLR 107
  • Beneficiaries of Late Norbert Zongo v Burkina Faso (2013) 1 AfCLR 197
  • Thomas v Tanzania (2015) 1 AfCLR 465
  • Nganyi v Tanzania (2016) 1 AfCLR 507
  • Josiah v Tanzania (Application No. 053/2016)
  • William v Tanzania (Application No. 016/2016)
  • Beneficiaries of Late Norbert Zongo v Burkina Faso (2014) 1 AfCLR 219
  • Konate v Burkina Faso (2014) 1 AfCLR 314
  • Attorney General v Mtikila (Civil Appeal No. 45 of 2009)
  • Mrema v Attorney General [1996] TLR 273
  • Woyome v Ghana (Application No. 001/2017)
  • Constitutional Rights Project v Nigeria (2000) AHRLR 227
  • Darfur Relief and Documentation Centre v Sudan
  • Anudo v Tanzania (2018) 2 AfCLR 248
  • Abubakari v Tanzania (2016) 1 AfCLR 599
  • Parrillo v Italy [2015] ECHR 46470/11
  • FAJ v The Gambia (ECW/CCJ/APP/36/15)
  • APDH v Cote d'Ivoire (2016) 1 AfCLR 668
  • African Commission v Kenya (2017) 2 AfCLR 9
  • Tanganyika Law Society v Tanzania (2013) 1 AfCLR 34
  • Lawless v Ireland [1961] ECHR 2
  • Ireland v United Kingdom [1978] ECHR 1
  • Handyside v United Kingdom [1976] ECHR 5
  • Prince v South Africa (2004) AHRLR 105
  • Norbert Zongo and Others v. Burkina Faso (merits)
  • Werema v Tanzania (2018) 2 AfCLR 520
  • Noca v Democratic Republic of Congo (Communication No. 286/2004)
  • Zimbabwe Human Rights NGO Forum v Zimbabwe (2006) AHRLR 128
  • Article 19 v Eritrea (2007) AHRLR 73
  • Guehi v Tanzania (2018) 2 AfCLR 477
  • Rajabu v Tanzania (Application No. 007/2015)
  • Abubakari v Tanzania (Application No. 007/2013)
  • Goa v Tanzania (Application No. 025/2015)
  • APDF v Mali (2018) 2 AfCLR 380
  • Advisory Opinion of the Inter American Court of Human Rights on the Proposed Amendments to the Naturalisation Provisions of the Constitution of Costa Rica, Advisory Opinion of 19 January 1984
  • James v United Kingdom

Full judgment

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Kambole v Tanzania (Application No. 018-2018) [2020] AfCHPR 1 (15 July 2020)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.