Tanganyika Law Society and Others v United Republic of Tanzania; Mtikila v United Republic of Tanzania (Application No. 009-2011; Application No. 011-2011)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The African Court held that Tanzania's constitutional prohibition of independent candidates for Presidential, Parliamentary and Local Government elections violates the rights to participate freely in government and freedom of association under Articles 10 and 13(1) of the African Charter. By majority, the Court also found violations of the rights to non-discrimination and equality under Articles 2 and 3. The Court directed Tanzania to take constitutional, legislative and other necessary measures to remedy the violations.

Outcome

Applications granted; violations of the African Charter declared; Respondent directed to take remedial measures

Facts

In 1992, Tanzania passed the Eighth Constitutional Amendment requiring all candidates for Presidential, Parliamentary and Local Government elections to be members of and sponsored by political parties. In 1993, Reverend Mtikila challenged this in the High Court, which in 1994 declared the amendment unconstitutional. However, in December 1994, Parliament passed the Eleventh Constitutional Amendment restoring the prohibition on independent candidates. In 2005, Mtikila again challenged the amendments in the High Court, which in 2006 ruled in his favour. The Attorney General appealed to the Court of Appeal, which in 2010 reversed the High Court judgment and ruled that the matter was political and should be resolved by Parliament. The Tanganyika Law Society, the Legal and Human Rights Centre, and Reverend Mtikila then filed applications with the African Court challenging the constitutional prohibition.

Issues

1. Whether the Tanzanian constitutional amendments prohibiting independent candidates from contesting Presidential, Parliamentary and Local Government elections violate the right to participate freely in government under Article 13(1) of the African Charter.
2. Whether the requirement that candidates must belong to and be sponsored by a political party violates the right to freedom of association under Article 10 of the African Charter.
3. Whether the prohibition of independent candidates constitutes discrimination in violation of Articles 2 and 3 of the African Charter.
4. Whether the Court has temporal jurisdiction to hear applications concerning violations that occurred before the Protocol came into force for Tanzania.
5. Whether the Applicants exhausted local remedies as required by Article 56(5) of the African Charter.
6. Whether the Applicants filed their applications within a reasonable time.

Orders

• The Respondent has violated Articles 10 and 13(1) of the African Charter (unanimous).
• The Respondent has violated Articles 2 and 3 of the African Charter (by majority of 7 to 2, Judges Modibo Tounty Guindo and Sylvain Ore dissenting).
• The Respondent is directed to take constitutional, legislative and all other necessary measures within a reasonable time to remedy the violations found by the Court and to inform the Court of the measures taken.
• The 2nd Applicant is granted leave to file submissions on his request for reparations within thirty (30) days and the Respondent to reply thereto within thirty (30) days of receipt.
• Each Party shall bear its own costs.

Rules and key headnotes

Legislation cited (24)

• African Charter on Human and Peoples' Rights Article 2
• African Charter on Human and Peoples' Rights Article 3
• African Charter on Human and Peoples' Rights Article 10
• African Charter on Human and Peoples' Rights Article 13(1)
• African Charter on Human and Peoples' Rights Article 27(2)
• African Charter on Human and Peoples' Rights Article 29(4)
• African Charter on Human and Peoples' Rights Article 56(5)
• African Charter on Human and Peoples' Rights Article 56(6)
• 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 5(3)
• Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 6(2)
• 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 1977 Article 21
• Constitution of the United Republic of Tanzania 1977 Article 39
• Constitution of the United Republic of Tanzania 1977 Article 47
• Constitution of the United Republic of Tanzania 1977 Article 67
• Constitution of the United Republic of Tanzania 1977 Article 77
• Eighth Constitutional Amendment Act 1992
• Eleventh Constitutional Amendment Act No. 34 of 1994
• Local Authorities (Elections) Act 1979 s.39
• Local Authorities (Elections) Act No. 7 of 2002
• International Covenant on Civil and Political Rights Article 3
• International Covenant on Civil and Political Rights Article 25
• Universal Declaration of Human Rights Article 21(1)

Cases cited (17)

• Rev Christopher Mtikila v The Attorney General (Civil Case No. 5 of 1993)
• Christopher Mtikila v The Attorney General (Miscellaneous Civil Cause No. 10 of 2005)
• The Honourable Attorney General v Reverend Christopher Mtikila (Civil Appeal No. 45 of 2009)
• Communication Nos 147/95, 147/96 (Consolidated Communications) Sir Dawda K. Jawara v The Gambia, Thirteenth Annual Activity Report (1999-2000)
• Communication No 221/98 Alfred B. Cudjoe v Ghana, Twelfth Annual Activity Report (1998-1999)
• Velasquez-Rodriguez v Honduras, Judgment of July 29 1988, Series C No 4
• Akdivar and Others v Turkey Application No 21893/93 Judgment of 16 September 1996
• Communications No 105/93, 128/94, 130/94, 152/96 (Consolidated Communications) Media Rights Agenda and others v Nigeria Twelfth Annual Activity Report (1998-1999)
• Communication No 255/2002 Gareth Anver Prince v South Africa Eighteenth Annual Activity Report (July 2004-December 2004)
• Handyside v United Kingdom, Application No 5493/72 Judgment of 7 December 1976, Series A No 24
• Gillow v United Kingdom Application No 9063/80 Judgment of 24 November 1986 Series A No 109
• Olsson v Sweden Application No 10465/83 Judgment of 24 March 1988 Series A No 130
• Sporrong and Lönnroth vs. Sweden Applications No 7151/75, 7152/75 Judgment of 23 September 1982 Series A No 52
• Baena Ricardo and others against Panama (Judgment of 2 February 2001)
• Castaneda Gutman v Mexico, Judgment of 6 August 2008 Series C No 184
• Communication No 212/98 Amnesty International v Zambia Twelfth Annual Activity Report (1998-1999)
• Communication No 211/98 Legal Resources Foundation v Zambia Fourteenth Annual Activity Report (2000-2001)

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