Dar es Salaam. Renowned Tanzania’s legal scholars, including retired Chief Justice Mohamed Chande Othman, expressed their frustrations and disappointment on Tuesday over what they consider a “sabotage” of judicial mechanisms by the East African nation, implied in the country’s refusal to enforce local and regional courts’ decisions.
The scholars’ opinion occurred against the backdrop of sustained complaints from litigants, human rights activists, and members of the general public about the government’s repeated failures to enforce courts’ decisions, especially those ruled against its favour, threatening the rule of law and judiciary independence in the country.
One court’s decision whose lack of enforcement baffled the great legal minds of the country concerns a March 3, 2016, High Court of Tanzania ruling that found sections 13 and 17 of the Law of Marriage Act, 1971, unconstitutional by allowing a marriage of a girl below 18 years old.
Instead of enforcing the ruling by amending the law, the government appealed against it at the Court of Appeal of Tanzania, which in 2019 found the appeal to be without merit and upheld the decision by the High Court of Tanzania.
Six years later, the government still refuses to enforce the court decision, a move that dumfounds Mr Othman, who served as the Chief Justice for seven years from 2010 to 2017.
Misgivings
“There was a lot of misgivings by members of parliament that you already have a High Court decision, which says that these [sections] are unconstitutional, to marry a girl child, and still you are appealing,” Mr Chande, an internationally respected lawyer, observed. “What kind of government is this?”
READ MORE: A Silent Impasse Blocks Tanzania’s Amendment of the Law of Marriage
Mr Othman, currently head of the United Nations Independent Panel of Experts examining new information on the death of former Swedish economist and diplomat Dag Hammarskjölds, was speaking at Serena Hotel, Dar es Salaam, during the launch of the Tanzania Yearbook of Public Law (TYL) 2022.
Authored by celebrated legal scholars and lawyers, including Prof Issa Shivji, under the auspices of the Zanzibar-based advocacy and litigation think tank Center for Strategic Litigation (CSL), the book, which can be purchased here, provides a comprehensive record of issues, trends, and developments in public law jurisprudence within Tanzania.
During the discussion, experts shared several proposals for addressing government failures to enforce courts’ decisions. Mr Othman, for instance, bet on the Tanzanian public and their representatives as the ultimate forces best placed to force the executive to respect and implement the court’s ruling.
Limited options
“The options for the court are more limited than the options available to the Tanzanian public,” Mr Othman, who served as the Chief of Prosecutions of the UN International Criminal Tribunal for Rwanda, said. “I think the bigger weapon for me is public opinion, which is [the role played] by the media. It is a better weapon in terms of parliamentarians questioning the government.”
But Jenerali Ulimwengu, a respected Tanzanian lawyer and journalist, thinks people like him, with the knowledge and skill on legal issues, also have a role to play in challenging the status quo and reminding the government of its responsibilities to uphold the principles of the rule of law and separation of power.
READ MORE: Lawyers in Tanzania Decry State’s Interference With Their Right to Work
Mr Ulimwengu accused the government of “sabotaging” regional judicial mechanisms, including the East African Court of Justice (EACJ) and the African Court on Human and Peoples’ Rights, a phenomenon he described as “curious” given Tanzania is a host to these instruments.
“We’re the hosts of these institutions, and yet we are the ones who are very busy trying to sabotage the implementation of their decisions, including withdrawing from the protocol that allows our people to access these courts of justice,” he lamented. “It’s a shame.”
On November 21, 2019, Tanzania made the widely controversial decision to withdraw its declaration allowing individuals and NGOs to file cases against the government directly at the Arusha-based African Court without giving any clear reasons for doing so.
The Samia Suluhu Hassan Administration promised to reverse the decision but said in 2022 that it is in no hurry. Calls for the government to do so, however, have been growing.
“And the job of people like ourselves in the legal profession is really to instrumentalise what we have as knowledge, ability [and] skill in the legal field to do work that will shame those who are in power and refuse to listen to the voices of the people, people who refuse, for instance, to listen to regional and international tribunals because they’ve nothing,” Mr Ulimwengu said.
READ MORE: African Court Orders Tanzania to Amend Election, Criminal Justice Laws
“Even the local tribunals, the municipal tribunals, do not have the power to enforce the decisions they made, so the government can ignore them,” he added.
Public interest litigation
The government’s failure to enforce court rulings has had a chilling effect on Tanzanians’ efforts to seek redress on key legal challenges they face through judicial mechanisms, a phenomenon evidenced by the few public interest litigation cases filed in the country’s courts.
“I was surprised, I just checked the other day how many public interest litigation cases are there now, today, in the main registry here [in Dar es Salaam]. They’re fourteen. We’ve 5,000 lawyers in Dar es Salaam. In 2020, [there were] 18 cases. 2022, 18 [cases],” Mr Othman commented during the book-launching function.
“There’s room, you know, really to grow up this area because it deals with fundamental rights and, you know, it has to do with enforcing the constitutional values,” he added. “There are a lot of opportunities that have been lost in terms of where we can have an avenue for increased jurisprudence.”
Speaking about the Tanzania Yearbook of Public Law (TYL) 2022, CSL Executive Director Deus Valentine said that the motivation behind preparing the book was their enthusiasm to fill the existing knowledge gap, which many people kept referring to.
READ MORE: Debate Swirls Around Samia’s Decision to Extend Juma’s Tenure as Chief Justice
“So, we faced this gap here that is important for us to fill, and that is the intention behind the publication of the Tanzania Yearbook of Public Law,” Mr Valentine explained.
“We hope that this publication makes more contributions to a public debate on public law, discord on constitutionalism on human rights, and the role of different actors because each of us has an important role in shaping the Tanzania we want,” he added.
Lukelo Francis is The Chanzo’s journalist from Dar es Salaam. He is available at lukelo@thechanzo.com.
