A few days ago, the Court of Appeal issued a significant judgement, one that pushes back on recent legal changes that had restricted Tanzanian citizens’ constitutional rights. As Twaweza’s new Executive Director, I celebrate this judgement, and I look forward to working with civil society, government, and others, on further strengthening our institutions and norms that uphold good governance and the rule of law.
Let’s start by looking at the court’s decision. Sometimes, these kinds of judgements are so complicated that nobody other than the most highly-trained lawyers has any chance of understanding them. Fortunately for the rest of us, this is not one of those times. So what did the court say?
Well, it concluded that several changes made in 2020 to the Basic Rights and Duties Enforcement Act (BRADEA) were unconstitutional. The Constitution of the United Republic of Tanzania (in Article 26) states clearly that citizens have the right to take legal action to protect the Constitution – often known as public interest litigation. In other words, if the government does something that is against the Constitution, then any citizen has the right to challenge the government in court.
The amended BRADEA effectively took away that right, saying you could only take legal action in situations where you were personally affected. But as the judges noted, this was not what was intended when the Constitution was written, as it has a separate provision (in Article 30) for situations where citizens’ own rights have been violated.
The judgement went a little further than this, striking down provisions in BRADEA that put obstacles in the way of legal challenges and barred direct lawsuits against senior officials like the President and Chief Justice, as well as various other things of significance. The court ended its judgement by directing parliament to amend BRADEA accordingly and stated that if they do not do so within 12 months, those parts of the law will no longer have legal effect.
Cause for celebration
We should all celebrate this ruling. It means our right as citizens to defend our Constitution has been reinstated. It means important public interest litigation will soon be possible once again. And it means that, in principle, our Constitutional rights are better protected.
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Further, we should commend those involved, particularly Advocate Onesmo Olengurumwa, who filed the appeal, and his legal team, including Prof Issa Shivji, Dr Rugemeleza Nshala, Mpale Mpoki and John Beniel Seka. They have set an important example of deep, individual courage as well as of productive collaboration across civil society, academia and the legal fraternity.
I believe we should also recognise the judges who heard the case. Their judgement is both clear and comprehensive – a model for how an independent judiciary plays an essential role in a democratic society, defending the constitution and holding the government to account.
Which brings us to a broader point. Independent institutions have faced challenges in recent years in Tanzania, and across the region, and yet they have a vital role as we face the future. The judiciary is not alone in this, other key parts of the infrastructure of justice and democracy – electoral commissions, the media, the police and more – are all facing different pressures. How our governments act and how these institutions respond, particularly to citizens, will determine the future shape and strength of our democracies.
Election season
This year’s elections in Tanzania are, of course, a critical moment. They set off ‘election season’ in the region, with Uganda holding general elections in early 2026 and Kenya following in 2027. All these elections provide an opportunity – to advance our commitment to democratic norms and institutions – but also a risk, as institutions and citizens come under more pressure.
It is essential at this time that we respect the right of citizens – including politicians, religious leaders and journalists as well as “ordinary” citizens – to express their opinions, including to critique the government. Disagreements about how the government is operating are a normal part of a healthy democracy, and vibrant public debate is a good thing. It helps us to identify and correct the inevitable errors that are part of human nature and happen in every government (and everywhere else).
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We should all be grateful when we see and hear people speaking their minds. Such voices can be uncomfortable for those on the receiving end, but they are needed, they are good for the country, and we should cherish them.
The BRADEA ruling demonstrates that our national institutions are capable of receiving citizen views, including critical ones, and of responding in a legitimate and impartial manner. Can we expect the same demonstration of commitment to citizens’ democratic rights from the recently rebranded Independent National Electoral Commission, and from the other institutions mandated to uphold our Constitution and democracy?
The role of citizens
We should also be thinking about the role of citizens, and how they react to the election as it unfolds. At Twaweza, we wholeheartedly support active citizens expressing their views, and certain voices, such as those of young people, are particularly important for our growing but still vulnerable democracy.
In recent elections, we have seen signs that citizens are losing faith in elections: turnout in 2020 was barely 50 per cent, down from over 80 per cent in 2000, and data from Afrobarometer surveys suggest that turnout was lowest among younger voters. We hope that citizens are able to regain trust in elections, and we can reverse these trends.
Indeed, active citizens are Tanzania’s best hope. When citizens get together and call for change then improvements happen – in how their school is run, how their roads are maintained, how the police operate, how local marketplaces are managed, and a million other matters. When action leads to change, at whatever level, it builds trust. And it can elevate “hope” from a wish to an expectation.
So, let us celebrate the fact that the courts have stepped up in defence of citizens’ right to protect our Constitution. And then, let the rest of us take inspiration from this. It’s time to redouble our efforts to promote democracy and citizens’ rights. We all have a role to play, and together we can make it happen. Twaweza!
Anna Bwanais the Executive Director of Twaweza East Africa. She can be reached at abwana@twaweza.org or on X as @BwanaAnna. The opinions expressed here are the writer’s own and do not necessarily reflect those of The Chanzo. If you are interested in publishing in this space, please contact our editors at editor@thechanzo.com.
