NGOs take Tanzanian Government to Court regarding the right to independent candidacy
Tanganyika Law Society (TLS) and Legal and Human Rights Centre of Tanzania (LHRC Tz) take the Tanzanian Government to Court regarding the right to independent candidacy.
Issue Date: Thursday 2nd June 2011
The Tanganyika Law Society (TLS) and Legal and Human Rights Centre of Tanzania (LHRC Tz) have today filed a Case against the government of the United Republic of Tanzania (URT) in the African Court on Human and Peoples’ Rights in Arusha.
The case has been given Court File Number 009 of 2011.
This is the first case in the Court from Tanzania, and one of the earliest that stand a reasonable chance of succeeding before the Court.
The case challenges the provisions of Articles 39, 67 and 77 of the Constitution of the United Republic of Tanzania, as amended by the Eighth (8th) Constitutional Amendment (of 1992) and Eleventh (11th) Constitutional Amendment (of 1994). These amendments totally removed the right of ordinary Tanzanians to seek to be elected to the offices of President, Member of Parliament or Councillor in a local ward unless they were members of a political party. In other words, unlike the majority of African countries, a Tanzanian cannot seek office as an Independent Candidate. It forces all Tanzanians who want to participate in leadership to have to join a political party, even if they do not subscribe to the manifesto, principles, policies or practices of any of the existing political parties.
These provisions of the Tanzanian Constitution violate Article 13 (Right to freely participate in the governance of one’s country) and Article 2 (Right to protection against discrimination of any kind) of the African Charter on Human and Peoples’ Rights. They also violate Articles 3 and 25 of the International Covenant on Civil and Political Rights. Tanzania is a party to both these international human rights instruments.
In comparison, all the other four East African Community (EAC) countries allow independent candidates. Indeed, in Uganda, independent candidates have vied for the office of President of the Republic of Uganda.
The right of Tanzanians to run for office as independent candidates has been litigated up to the highest Court in the land. Reverend Christopher Mtikila first sought to guarantee this right in High Court Miscellaneous Civil Cause No. 5 of 1993. The High Court ruled in his favour on 24th October 1994. The (then) Government chose to defeat the High Court Ruling by making the 11th Constitutional Amendment to the Constitution, on 2nd December 1994. Reverend Mtikila challenged these Constitutional Amendments, through High Court Miscellaneous Civil Cause No. 10 of 2005. On 5th May 2005, the High Court ruled in Rev. Mtikila’s favour, declaring that the 11th Constitutional Amendment violated the democratic values and principles enshrined in the Constitution of the United Republic of Tanzania, and also violated the constitutional doctrine of basic structures. This doctrine provides that there are certain basic, fundamental features of a national Constitution that a national Parliament cannot amend on its own.
In 2009, the Attorney General of Tanzania, Johnson Mwanyika, instituted an Appeal challenging the above Decision of the High Court (in Civil Appeal No. 45 of 2009). On 17th June 2010 (last year), the Court of Appeal of Tanzania – the highest court in the land – issued its Judgment, reversing the Decision of the High Court, and declaring that: –
- The Basic Structures Doctrine does not apply to the Constitution of the United Republic of Tanzania.
- There is no right to independent candidacy in Tanzania.
With the above decision of the Court of Appeal, it is clear that the right of any Tanzanian to seek political office as an independent candidate has been exhausted locally. The only other legal or judicial option for pursuing this right is through international tribunals to which Tanzania is a party. For this reason, TLS, LHRC Tz and several individual citizens of the country have resolved to pursue this right at the African Court on Human and Peoples’ Rights, for the benefit of all Tanzanians.
TLS and LHRC Tz acknowledge the courage and persistence of Rev. Christopher Mtikila in pursuing this right, on behalf of all Tanzanians, so passionately for the eighteen (18) years. We will continue to work with him to seek this right for all Tanzanians. We also acknowledge the partnership and support of the East Africa Law Society (EALS) and the Pan African Lawyers Union (PALU) in this process of international litigation.
The Way Forward: Rules 35 and 37 of the Rules of the Court provide that, upon assuring itself of the admissibility of our Case, the Court will submit copies of our Application to the Government of the United Republic of Tanzania, which has thirty (30) days to acknowledge receipt and appoint its representatives in the case, and a further thirty (30) days to file a detailed Response. In the premises, we estimate that full hearing of the merits of the case could commence by the September 2011 Session of the African Court.
TLS, LHRC Tz, the citizens of Tanzania and our friends and supporters are all looking forward to a speedy disposal of the case and the vindication of the rights of Tanzanians, and anyone else in Africa, who may be facing similar violation of their rights.
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Francis Kwilabya Stolla
President, Tanganyika Law Society
On behalf of The Tanganyika Law Society (TLS) and Legal and Human Rights Centre of Tanzania (LHRC Tz)
Arusha, Tanzania, Thursday 2nd June 2011