Tanganyika Law Society et al & Reverend Christopher Mtikila v The United Republic of Tanzania

The Applications

On 2 June 2011, the Tanganyika Law Society (“Tanganyika”) and the Legal and Human Rights Centre (the “LHRC”) submitted an application to the African Court on Human and Peoples’ Rights (“ACtHPR”). Tanganyika is the Bar association of the Tanzanian mainland, and has observer status before the African Commission on Human and Peoples’ Rights (the “Commission”). The LHRC, which also has observer status, is an independent non-governmental organisation based in Tanzania. The ACtHPR has provided a summary of the application (the “Tanganyika et al summary”). The original version is not publicly available.

On 10 June 2011, Reverend Christopher Mtikila, a political activist and leader of the Tanzanian Democratic Party, lodged an application with the Registry of the ACtHPR. The original version is publicly available here.

The thrust of both applications is that the Tanzanian government has violated the rights of Tanzanian citizens by prohibiting independent candidates from taking part in presidential, parliamentary and local elections.

On 22 September 2011, the ACtHPR decided, under Rule 54 of the Rules of the Court to join the two applications by reason of the common subject matter and Respondent, namely Tanzania. The now-joined application is currently under consideration by the ACtHPR.

Background

Since the introduction of multi-party politics in the early 1990s, Reverend Mtikila has been an outspoken and prominent opposition politician in Tanzania.

The sequence of events that has given rise to both applications can be characterised as follows:

-        1992: The Tanzanian National Assembly passes the Eighth Amendment to the Constitution, introducing a requirement for membership to and sponsorship by a political party for all persons running in presidential, parliamentary and local government elections.

-        1992: Reverend Mtikila’s application to register his own political party is denied by the Registrar of Political Parties.

-        1993: Reverend Mtikila challenges the Eighth Amendment in the High Court, submitting that it unfairly limits his rights to free association and political participation.

-        1994: On 24 October, a High Court Judge rules that the Eighth Amendment is null and void as it conflicts with existing provisions of the Constitution.[1]

-        1994: On 2 December, Parliament adopts the Eleventh Constitutional Amendment Act, which reinstates the prohibition on independent candidates.[2]

-        2002: Reverend Mtikila registers the Democratic Party.

-        2005: Reverend Mtikila brings a challenge in the High Court against the Eleventh Amendment.

-        2006: The High Court grants Reverend Mtikila’s application, confirming the judgment of 1994.

-        2010: The Court of Appeal rescinds both the 1994 and 2006 High Court judgments.[3]

Rev Mtikila’s Application

In his application to the ACtHPR, Reverend Mtikila relies on a number of regional and international legal instruments.

In support of his submission that the Tanzanian Republic has unfairly curtailed his right to participate in public affairs, Rev Mtikila cites, inter alia, Article 13(1) of the African Charter on Human and Peoples’ Rights (the “AChHPR”);[4] Article 21(1) of the Universal Declaration of Human Rights (the “UDHR”);[5] Article 25 of the International Covenant on Civil and Political Rights (the “ICCPR”);[6] General Comments of the Human Rights Committee mandated with the interpretation of the ICCPR;[7] and a number of cases before the Commission dealing with the right to participate in public affairs.[8]

In terms of an individual’s right to freedom of association, the application cites Article 20 of the UDHR;[9] Article 22 of the ICCPR;[10] and Article 10 of the AChHPR.[11] Rev Mtikila also submits that the requirement of affiliation with a political party contradicts Article 20 of the Constitution of Tanzania.[12]Rev Mtikila also states that the Eleventh Constitutional Amendment offends the right to non-discrimination[13] and the rule of law generally.[14]

The Tanganyika et al Summary

The Tanganyika et al summary references the aforementioned chain of events that took place in the Tanzanian courts between 1994 and 2010, arguing that Tanzania “is in violation of Article 2 and 13(1) of the African Charter on Human and Peoples’ Rights, and Articles 3 and 25 of the ICCPR, a violation that was institutionalized in 1992, at the onset of multiparty politics in the country.”

In terms of the extent of the State’s alleged breach, the application submits that “the effect of the violation is that a great majority of Tanzanians who do not belong to political parties have been discriminated against and denied the opportunity to take part in public affairs or from being elected”.

The Tanganyika summary states that “all domestic remedies have been exhausted and the violation is continuing”.

Observations

The case summary provided by the Court states that Rev Mtikila is seeking relief in the form of a “declaration that current Tanzanian law barring independent candidates from seeking public/elective office is in violation of the African Charter and the ICCPR”. However, Rev Mtikila’s full application goes further than the summary suggests, as it also contains a request for compensation for the “continuous violation of his rights that forced him to endure long and costly judicial proceedings”. Under Article 27(1) of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights, if the Court considers there has been a violation of a right guaranteed by the AChHPR or any other relevant human rights instrument then it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation. The author submits that any such discrepancies, between the summary provided by the Registry of the ACtHPR and the complete application submitted by the aggrieved party, could be avoided in future if the Court published applications in full on its website, with the consent of the Applicant.

In relation to the application made by Tanganyika et al., the case summary does not detail the remedy, if any, sought by the Applicant. The summary simply contains a brief synopsis of the facts and an explanation of the procedural background of the application. Without access to the original document, it is not possible to ascertain whether the Registry has failed to include relevant information in the case summary, or whether the application simply contained no request for relief. Once again, these issues could be resolved by publication of the original applications.  Such action would provide other potential applicants, lawyers and observers with greater access to the detail of the arguments put before the Court and would facilitate thereafter a greater understanding of the basis of the Court’s reasoning in consequent decisions.

Given that Tanzania is one of only five African states that has made an Article 34(6) declaration (which permits individuals and NGOs with observer status before the African Commission to petition the court directly), the Court’s assessment of this case is eagerly anticipated. It will be interesting to assess how the Court deals with a situation in which it is forced to engage with a direct challenge to Tanzanian sovereignty.

http://arcproject.co.uk/?p=200

[1] In the High Court of Tanzania at Dodoma, Civil Case No. 5 of 1993, Rev. Christopher Mtikila (Plaintiff) versus The Attorney General (Defendant), Ruling, 27 October 1994, 26 pages.

[2] In the High Court of Tanzania (Dar es Salaam Main Registry) at Dar es Salaam, Misc. Civil Cause No. 10 of 2005, Christopher Mtikila (Petitioner) versus The Attoreny (sic) General (Respondent), Judgment, 5 May 2006, 48 pages.

[3] The Court of Appeal of Tanzania at Dar es Salaam, Civil Appeal No. 45 of 2009 between The Honourable Attorney General (Appellant) and Reverend Christopher Mtikila (Respondent)(Appeal from the Judgment of the High Court of Tanzania at Dar es Salaam dated the 5th day of May, 2006 in Misc. Civil Cause No. 10 of 2005), Judgment of the Court, 17 June 2010.

[4] Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.

[5] Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

[6] Every citizen has the right and opportunity:

a) To take part in the conduct of public affairs, directly or through freely chosen representatives; b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

c) To have access, on general terms of quality, to public service in his country.

[7] 3. ... No distinctions are permitted between citizens in the enjoyment of these rights on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. [...]

12. Freedom of expression, assembly and association are essential conditions for the effective exercise of the right to vote and must be fully protected. [...]

15. The effective implementation of the right and the opportunity to stand for elective office ensures that persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand for election, such as minimum age, must be justifiable on objective and reasonable criteria. Persons who are otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such as education, residence or descent, or by reason of political affiliation. No person should suffer discrimination or disadvantage of any kind because of that person's candidacy. States parties should indicate and explain the legislative provisions which exclude any group or category of persons from elective office. [Emphasis are added.]

[8] See for instance Case No. 147/95-149/96 Sir Dawda K. Jawara / Gambia (The), paras. 67-69;Case No. 211/98 Legal Resources Foundation / Zambia, paras. 70-72; Case No 251/02 Lawyers of Human Rights / Swaziland, paras. 62-63.

[9] 1. Everyone has the right to freedom of peaceful assembly and association.

2. No one may be compelled to belong to an association.

[10] 1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.

3. Nothing in this article shall authorize States Parties to the International Labour Organization Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention.”

[11] 1. Every individual shall have the right to free association provided that he abides by the law.

2. Subject to the obligation of solidarity provided for in Article 29 no one may be compelled to join an association.

[12] 1. Every person has a freedom to freely and peaceably assemble, associate and corporate with other persons, and for that purpose, express views publicly and to form and join with associations or organisations formed for the purpose of preserving or furthering his beliefs or interests or any other interests. [...]

4. It shall be unlawful for any person to be compelled to join any association or organization or for any association or any political party to be refused registration on grounds solely the ideology or philosophy of that political party.

[13] Inter alia, Article 2 of the AChHPR; African Commission Case No 211/98 Legal Resources Foundation v Zambia; Article 2 of the UDHR; Article 26 of the ICCPR; and Article 9 of the Constitution of Tanzania.

[14] In particular, see paragraph 54 of the application which states ”[t]he Applicant submits to this Court that such practice shall definitively be condemned as an abuse of the distinctive process of Constitutional Amendment set down by the Tanzanian Constitution and that the Government of the United Republic of Tanzania should be sanctioned appropriately”.