Wakilii

Komu v Attorney General of the Republic of Tanzania

East African Court of Justice · [2014] EACJ 144 · 2014 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference challenging the election of Tanzania's representatives to the East African Legislative Assembly on grounds of violation of Article 50 of the Treaty for the Establishment of the East African Community
Decision
Reference partly allowed with declaratory relief granted on two grounds; one prayer dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that the National Assembly of Tanzania violated Article 50(1) of the Treaty by creating election rules that made political parties the sole grouping for representation, thereby subsuming all other categories (gender, special interest groups, shades of opinion) under political party affiliation. The Court further held that allowing TADEA, a political party without representation in the National Assembly, to field a candidate violated Article 50(1). However, the Court rejected the applicant's claim that proportional representation was required or that any political party was guaranteed representation in the EALA. The Reference was partly allowed with limited declaratory relief granted.

Outcome

Reference partly allowed with declaratory relief granted on two grounds; one prayer dismissed

Facts

The Applicant, a member of CHADEMA political party, sought election as Tanzania's representative to the East African Legislative Assembly in an election conducted by the National Assembly of Tanzania on 17 April 2012. He was unsuccessful. The election was conducted in four categories: Group A (Women), Group B (Zanzibar), Group C (Opposition Political Parties), and Group D (Tanzania Mainland), pursuant to Rule 5(5) of the East African Legislative Assembly Election Rules 2007 and Standing Order No. 12 of the Parliamentary Standing Orders. CHADEMA fielded only one candidate (the Applicant) in the entire election. A political party called TADEA, which had no representation in the National Assembly, was permitted to field a candidate. The Applicant challenged the election on grounds that the categorization violated Article 50(1) of the Treaty, which requires representation of various political parties, shades of opinion, gender, and other special interest groups as much as is feasible.

Issues

  1. Whether the Reference before the Court is frivolous, vexatious and an abuse of the Court process.
  2. Whether the Reference is wrongfully before the Court and is contrary to the Rules of Procedure of the Court.
  3. Whether the Reference has no merit and should be dismissed for being res sub-judice.
  4. Whether the Parliament of the United Republic of Tanzania violated Article 50 of the Treaty by formulating groups of categories for contestants (Group A - Gender, Group B - Tanzania Zanzibar, Group C - Opposition Political Parties, Group D - Tanzania Mainland).
  5. Whether the election of Members of the East African Legislative Assembly on the basis of groups C and D categories violated the principle of proportional representation as provided for under Article 50 of the Treaty.
  6. Whether the failure of CHADEMA to get a single representative in the East African Legislative Assembly was caused by non-compliance with Article 50 of the Treaty.
  7. Whether Article 50 of the Treaty provides a right for representatives of the Official Opposition Party in Parliament to an automatic chance of representation in the East African Legislative Assembly.
  8. Whether the Parties are entitled to the remedies sought.

Orders

  • Prayer (ii) of the Reference is dismissed.
  • Prayer (i) is granted: A declaration is issued that to the extent that the election for members of the East African Legislative Assembly conducted by the National Assembly of Tanzania on 17th April 2012 was premised on only political parties as the sole grouping as opposed to all the other groups envisaged in Article 50(1) of the Treaty, the National Assembly of Tanzania violated the said Article.
  • Prayer (iii) is granted: A declaration that by allowing a political party without representation in the National Assembly (TADEA) to field a candidate in the election of 17th April 2012 for representatives to the EALA, the National Assembly of Tanzania was in violation of Article 50(1) of the Treaty.
  • The Applicant shall have a quarter costs of the Reference.

Rules and key headnotes

Electoral Law — East African Legislative Assembly Elections — Interpretation of Article 50(1) of the Treaty — Requirement for Separate Categories of Representation
Article 50(1) of the Treaty for the Establishment of the East African Community requires that elections to the East African Legislative Assembly provide for separate and distinct categories of representation including various political parties represented in the National Assembly, shades of opinion, gender, and other special interest groups, and that these categories should not be subsumed under a single grouping of political parties.
Electoral Law — East African Legislative Assembly Elections — Eligibility of Political Parties — Parties Without Parliamentary Representation
Under Article 50(1) of the Treaty, the phrase 'various political parties represented in the National Assembly' means that only political parties with representation in the National Assembly may field candidates for election to the East African Legislative Assembly; a political party without any representation in the National Assembly has no capacity to field candidates as such.
Electoral Law — East African Legislative Assembly Elections — Proportional Representation — No Requirement Under Article 50(1)
Article 50(1) of the Treaty does not require the application of the principle of proportional representation in elections to the East African Legislative Assembly, and no political party or other grouping specified in Article 50(1) is guaranteed representation in the EALA.
Constitutional Law — Treaty Interpretation — Jurisdiction of the East African Court of Justice — Distinction Between Interpretation of Treaty and Validity of Elections
The East African Court of Justice has jurisdiction under Article 27 of the Treaty to interpret and apply the Treaty, including determining whether election rules comply with Article 50(1), but it has no jurisdiction to determine whether specific persons were properly elected to the EALA, as that jurisdiction is reserved to national institutions under Article 52(1) of the Treaty.
Administrative Law — Preliminary Objections — Res Sub-Judice — Concurrent Jurisdiction of Different Courts
The doctrine of res sub-judice does not bar proceedings before the East African Court of Justice where a related matter is pending before a national court, if the two courts have distinct and non-overlapping jurisdictions over different aspects of the same general subject matter.
Statutory Interpretation — Treaty Provisions — Meaning of 'As Much As Is Feasible' — Discretion of National Assemblies
The phrase 'as much as is feasible' in Article 50(1) of the Treaty recognizes that each Partner State has peculiar circumstances to take into account and leaves it to the National Assembly of each Partner State to determine its procedure for elections to the EALA, but this discretion does not permit the National Assembly to disregard the distinct categories of representation specified in Article 50(1).

Legislation cited (20)

  • Treaty for the Establishment of the East African Community Article 6(d)
  • Treaty for the Establishment of the East African Community Article 7
  • Treaty for the Establishment of the East African Community Article 8
  • Treaty for the Establishment of the East African Community Article 23
  • Treaty for the Establishment of the East African Community Article 27
  • Treaty for the Establishment of the East African Community Article 30
  • Treaty for the Establishment of the East African Community Article 33
  • Treaty for the Establishment of the East African Community Article 34
  • Treaty for the Establishment of the East African Community Article 50
  • Treaty for the Establishment of the East African Community Article 50(1)
  • Treaty for the Establishment of the East African Community Article 52
  • Treaty for the Establishment of the East African Community Article 52(1)
  • East African Court of Justice Rules of Procedure Rule 1(2)
  • East African Court of Justice Rules of Procedure Rule 24
  • East African Court of Justice Rules of Procedure Rule 111(1)
  • Vienna Convention on the Law of Treaties
  • Parliamentary Immunities, Powers and Privileges Act Cap.296 s.19
  • Parliamentary Immunities, Powers and Privileges Act Cap.296 s.19(1)
  • East African Legislative Assembly Election Rules 2007 Rule 5(5)
  • Parliamentary Standing Orders Standing Order No.12

Cases cited (5)

  • Anyang' Nyong'o & others v Attorney General of Kenya and Others (Reference No. 1 of 2006)
  • Christopher Mtikila v Attorney General of Tanzania and Others (Reference No. 2 of 2007)
  • Among Anita v Attorney General of Uganda (Reference No. 6 of 2012)
  • Abdu Katuntu v Attorney General of Uganda (Reference No. 5 of 2012)
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) E.A. 696

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Komu v Attorney General of the Republic of Tanzania [2014] EACJ 144 (26 September 2014)
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.