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Tanganyika Law Society and the Legal and Human Rights Centre V. Tanzania and rev. Christopher R. Mtikila V. Tanzania (Afr. CT. H.R.)

Published online by Cambridge University Press:  20 January 2017

Alexander B Makulilo
Alexander B Makulilo*
Affiliation:
Department of Political Science and Public Administration, University of Dar es Salaam, Tanzania
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Extract

On June 14, 2013, the African Court on Human and Peoples’ Rights (the Court), in the consolidated matter of Tanganyika Law Society and the Legal and Human Rights Centre v. Tanzania and Rev. Christopher R. Mtikila v. Tanzania, found that the government of Tanzania violated the African Charter on Human and Peoples’ Rights (African Charter) when it prohibited independent candidates from contesting presidential, parliamentary, and local government elections. The case provides insight into the trajectory of the Court and its approach towards the jurisprudence of other international and regional human rights organs.

Type
International Legal Documents
Information
International Legal Materials , Volume 52 , Issue 6 , December 2013 , pp. 1327 - 1362
Copyright
Copyright © American Society of International Law 2013

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References

* This text was reproduced and reformatted from the text available at the African Court on Human and People’s Rights Web site (visited February 11, 2014), http://www.african-court.org/en/images/documents/Court/Cases/Judgment/Judgment%20Application%20009-011-2011%20Rev%20Christopher%20Mtikila%20v.%20Tanzania.pdf.

1 See Tanganyika Law Society and the Legal and Human Rights Centre v. Tanzania and Rev. Christopher R. Mtikila v. Tanzania, Application Nos. 009/2011 and 011/2011, ¶¶ 66-75 (Afr. Ct. on Human and Peoples’ Rts. June 14, 2013), http://www.african-court.org/en/images/documents/case/Judgment %20-%20%20Rev%20Christopher%20Mtikila%20v.%20 Tanzania.pdf [hereinafter Tanganyika Law Society].

2 Rev. Christopher R. Mtikila v. The Attorney General, Civil Case No. 5 of 1993, available at ELAW, Tanzania—Rev. Christopher Mtikila v. the Attorney General, Civil Case No. 5 of 1993 (High Court of Tanzania) (Ruling), https://www.elaw.org/node/1298 (last visited Mar. 4, 2014) [hereinafter Civil Case No. 5].

3 Article 21 (1) states that “[s]ubject to the provisions of Article 39, 47 and 67 of this Constitution and of the laws of the land in connection with the conditions for electing and being elected or for appointing and being appointed to take part in matters related to governance of the country, every citizen of the United Republic is entitled to take part in matters pertaining to the governance of the country, either directly or through representatives freely elected by the people, in conformity with the procedures laid down by, or in accordance with, the law.” Tanz. Const., 1977, available at http://www.judiciary.go.tz/downloads/constitution.pdf (last visited Mar. 4, 2014).

4 Civil Case No. 5, supra note 2.

5 Article 98 (1) provides that “Parliament may enact law for altering any provision of this Constitution in accordance with the following principles: (a) a Bill for an Act to alter any provisions of this Constitution (other than those relating to paragraph (b) of this sub article) or any provisions of any law specified in List One of the Second Schedule to this Constitution shall be supported by the votes of not less than two thirds of all the Members of Parliament; and (b) a Bill for an Act to alter any provisions of this Constitution or any provisions of any law relating to any of the matters specified in List Two of the Second Schedule to this Constitution shall be passed only if it is supported by the votes of not less than two-thirds of all Members of Parliament from Mainland Tanzania and not less than two-thirds of all Members of Parliament from Tanzania Zanzibar.” Tanz. Const., supra note 3.

6 The Honourable Attorney General v. Reverend Christopher Mtikila, Misc. Civil Cause No. 10 of 2005, 47-48 (June 17, 2010), available at www.judiciary.go.tz:8081/help/topic/com. optima.infocenter.judgements/Court%20of%20Appeal/Civil %20Appeal/AttorneyGeneralVsChristopherMtikila%2045 %20OF%202009.pdf.

7 Id.

8 Tanganyika Law Society, supra note 1 ¶ 126.

9 See First Constitution Draft, June 2013, arts. 75(g), 117(1) (c) (Tanz.), available at http://www.katiba.go.tz/index.php/habari/183-rasimu-ya-katiba-ya-jamhuri-ya-muungano-watanzania- ya-mwaka-2013; see also Second Constitution Draft, December 2013, arts. 79(1)(f), 125 (1)(c) (Tanz.), available at http://www.katiba.go.tz/index.php/rasimu-ya-pili-ya-katibaya- jamhuri-ya-muungano-wa-tanzania-ya-mwaka-2013-iliyotolewa-tarehe-30-disemba-2013; see also Amos Mhina & Alexander B. Makulilo, Consultancy on the Review of Various Aspects on Electoral Systems and the Electoral Commission in Tanzania to the United Republic of Tanzania: Final Report (2013).

1 General Comment No. 18. Non-Discrimination, adopted by the Committee on 10 November 1989 during its 37th Session, Paragraph 13; see also, for example, its Views adopted on 15 July 2002 and relating to Communication No. 932/2000, Human Rights Committee, Doc. CCPR/C/75/D/932/2000. 26 July 2002, pp. 21-24, Paragraphs 12.2- 13.18.

2 According to the European Court, for the purpose of Article 14 of the European Convention, a difference of treatment is discriminatory if it «has no objective or reasonable justification», that is, if it does not pursue a «legitimate aim», Application No 9063/80, Judgment of 8 July 1986, Series A, No. 102, Paragraph 177, European Human Rights Report, 1986, No. 8, p. 329.

1 Decisions of the Court can be found on the Court’s website: www.african-court.org.