The African Rights Court has ordered the Republic of Tanzania to amend a section of its constitution, which bars any court from probing the election of a president after a winner is officially announced, SaharaReporters reports.
A Tanzanian advocate, Jebra Kambole, filed a case in the Arusha-based court in 2018, arguing that the provision was a violation of his rights.
Tanzania’s constitution states that once a presidential candidate has been declared winner by the electoral commission, “no court of law shall have any jurisdiction to inquire into the election of that candidate”.
The court found Article 41(7) of the Tanzania constitution infringing on the citizens’ right to access to justice and discriminate them from the right to equitable judicial remedy, which according to the African court is unjustifiable and unnecessary in the democratic state.
The African Court asserted that Article 41(7) violates article 2 and 7 of the African Charter on Human and People’s Rights.
As part of reparations, the African Court ordered the government of the country to amend Article 41(7) in alignment with the provisions of the Charter.
It also ordered Tanzania to submit a report within 12 months on the measures it has taken to implement the judgment and ruled the country must publish its judgment on the websites of the judiciary and constitutional affairs of the ministry within three months.
“Jebra Kambole (the applicant) is a national of the United Republic of Tanzania (the respondent state) and an advocate by profession. He is also a member of the Tanganyika Law Society. The applicant filed this application contesting the provisions of article 41(7) of the respondent state’s constitution.
“The applicant alleged that the respondent state had violated his rights under the African Charter on Human and Peoples’ Rights (the Charter) by maintaining article 41(7) in its constitution, which provision bars any court from inquiring into the election of a presidential candidate after the electoral commission has declared a winner.
“Specifically, the applicant alleged that article 41(7) of the respondent state’s constitution violated his right to non-discrimination, his right to equal protection of the law and the right to have his cause heard, especially the right to appeal to competent national organs against acts violating his fundamental rights as provided for under Articles 2, 3(2) and 7(1)(a) of the Charter, respectively.
“The Applicant also alleged that the Respondent State had failed to honour its obligation to recognise the rights, duties and freedoms enshrined in the Charter and to take legislative and other measures to give effect to the Charter as stipulated under Article 1 of the Charter.
“The court observed that, as per Article 3(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 (the protocol), it had to determine whether it has jurisdiction over the application.
“In this case, the court, while noting that none of the parties had raised any objection to its jurisdiction, nevertheless conducted an analysis which proved that its material, personal, temporal and territorial jurisdiction were established.
“In terms of the admissibility of the application, the court, as empowered by Article 6 of the protocol and Rule 39 of the Rules of Court (the Rules), had to determine whether the requirements of admissibility, as provided under Article 56 of the Charter and Rule 40 of the Rules, had been met. In this connection, the court considered the two (2) objections raised by the respondent state, relating, first, to the requirement of exhaustion of local remedies, and, second, to the filing of the application within a reasonable time.
“In connection to the objection that the applicant had failed to exhaust local remedies, the respondent state argued that the applicant had not made any attempt to exhaust domestic remedies thereby depriving it of an opportunity to redress the alleged violations. The applicant, for his part, argued that there were no domestic judicial remedies available to redress the allegations that he was raising.
“In resolving this objection, the court reiterated the fact that for purposes of exhausting local remedies an Applicant is only required to exhaust judicial remedies that are available, effective and sufficient. The court further emphasised that a domestic remedy that has no prospects of success does not constitute an effective remedy within the context of Article 56(5) of the Charter.
“Given that the provision of the respondent state’s constitution which was being challenged by the Applicant ousts the jurisdiction of domestic courts, the court held that the Applicant did not have a remedy that was available for him to exhaust before filing his Application. The respondent state’s objection to the admissibility of the application, on the ground that domestic remedies were not exhausted, was thus dismissed.
“In relation to the objection that the application was not filed within a reasonable time after the exhaustion of domestic remedies, the respondent state argued that it had taken over eight years, after the respondent state had deposited its declaration under Article 34(6) of the protocol, for the applicant to file the case with the court.
“The respondent state submitted that this period was not reasonable. In response, the applicant contended that there is no time frame stipulated under Article 56(6) of the Charter within which an application must be filed and that the court is empowered to conduct a case by case analysis of the reasonableness of time. The applicant also argued that while Article 56(6) of the Charter requires cases to be filed promptly,” part of the judgment read.
