Dar es Salaam. Tanzania’s reformers received yet another boost on Tuesday after the African Court of Justice and Human Rights (ACJHR) ordered the government to amend the National Election Act and the Criminal Procedure Act to align them with the treaty establishing the continental court.
In the first ruling, the Arusha-based regional court ruled on the case between Bob Chacha Wangwe and the Legal and Human Rights Centre (LHRC) versus the United Republic of Tanzania on using District Executive Directors (DEDs) as returning officers during elections.
In their case, Mr Wangwe and LHRC challenged the provisions of the National Elections Act, charging that the law violated numerous rights, including the right to equality before the law, the citizen’s right to participate freely in the government of their country, and the right to vote and be elected.
They charged that sections 6(1), 7(1), 7(2) and 7(3) of the National Elections Act, which permits DEDs to act as the returning officers during elections, violated various sections of the Charter establishing ACJHR, with the court ruling in their favour.
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The court ordered the government “to take all necessary constitutional and legislative measures, within a reasonable time and without any undue delay,” to amend the law and align it with the provisions of the Charter.
The court ordered Tanzania to publish its ruling on the Judiciary and Ministry for Constitutional and Legal Affairs websites within three months from today.
After exhausting all local remedies, Mr Wangwe and LHRC filed the case at ACJHR. It followed a Court of Appeal decision to rule against a decision of the High Court, which ruled in favour of the plaintiffs.
In its ruling, the Court of Appeal said there is nothing wrong with the DEDs working as returning officers during elections because they take an oath before they do that. This prompted Mr Wangwe and LHRC to take their case to ACJHR.
Reacting to the decision on Tuesday, Mr Wangwe told The Chanzo that he was pleased that ACJHR ruled in their favour, noting that the ruling is part of a long process to demand political reforms in Tanzania.
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“I’m thrilled that the court ruled the way it did today,” Mr Wangwe, now the Tanzania Constitution Forum Executive Director, said. “If did not fight the Court of Appeal’s decision, its ruling would have dealt a huge blow to people working so hard on the ground to bring about positive changes in our country.”
Mr Wangwe said that he understood the fear of many Tanzanians that the government will not implement the court’s order telling on past experiences. He said because of this they pleaded with the court to demand the government update the court on the implementation status, a plea it accepted.
In its ruling, the court directed the government to submit to it within twelve months from today a report on the implementation status of the decision and, after that, every six months until the court considers that there has been full implementation of the ruling.
“This will ensure the government make necessary changes to the law in line with the ruling given,” Mr Wangwe told The Chanzo. “If it declines to do so, we will have the authority to go back to the court and report that the government has failed to implement’s court’s order.”
Apart from this case, the ACJHR also ruled in the case of LHRC and the Tanzania Human Rights Defenders Coalition (THRDC) versus Tanzania. In this case, LHRC and THRDC challenge section 148(5) of the Criminal Procedure Act, which contains a list of non-bailable offences such as murder, treason, terrorism, and money laundering.
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In its ruling, the court said that the provision violates the Charter establishing it, demanding Tanzania amend the law to align it with the Charter.
Tuesday’s rulings by the court come at a time when a process is underway in Tanzania to amend the country’s electoral laws and criminal justice system. They also coincide with demands for the New Constitution, whose process the government has promised to revive soon.
Tanzania became a party to the African Charter on Human and People’s Rights on October 21, 1986, and the Protocol on February 10, 2006. The country deposited its declaration required under Article 34(6) of the Protocol on March 29, 2010, by which it accepted the court’s jurisdiction to receive cases from individuals and NGOs.
However, on November 21, 2019, Tanzania deposited with the African Union Commission on Human and People’s an instrument of withdrawal of the said declaration, but the court said the decision would not affect pending cases.
The Samia Suluhu Hassan Administration has promised to reverse the decision but said in 2022 that it is in no hurry to do so.
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Great feedback article.
PS. The African Court of Justice and Human Rights (ACJHR) exists only on paper. The existing Arusha-based court is the African Court on Human and Peoples’ Rights (AfCHPR)