Legal issue

Whether the provisions of the Tanzanian Constitution barring individuals from challenging an election decision violate the African Charter.

Ruling

The Court held that article 41(7) of the Respondent State’s Constitution, in so far as it bars courts from inquiring into the election of a presidential candidate who has been declared elected by the Electoral Commission, violates articles 2 and 7(1) (a) of the Charter, and by upholding it the Respondent State violates article 1 of the African Charter on Human and People’s Rights.

Reasoning of the Court

The Court reasoned that article 41 (7) of the Constitution excludes certain individuals from pursuing a remedy before courts simply because of the subject matter of their grievance (contestation of election results) while other individuals with grievances not related to the election of a president are not equally barred. In that sense article 41(7) of the Constitution violates the right to be free from discrimination as guaranteed under article 2 of the Charter. The Court added that the lack of opportunity given to individuals to have recourse to judicial scrutiny goes against all values and rights underlying the Charter, hence violating articles 7 and 1 of the Charter, including the freedom of expression.

In this application, the Applicant filed the application praying for an Order declaring that the Respondent State is in violation of Articles 1,2,3(2), and 7(1) of the African Charter on Human and People’s Rights which recognizes the right to freedom against discrimination of one’s right to expression. The violation by the Respondent State is as provided for under Article 41(7) of the Constitution of the United Republic of Tanzania, Cap 2 [R.E 2019] that bars courts from inquiring into the election of a presidential candidate, after the Electoral Commission has declared a winner.

Jebra Kambole filed an application with the African Court on Human and Peoples’ Rights on July 4, 2018, alleging violations of his right to equal protection of the law and the right to have his cause heard, as guaranteed under the Charter. The application was served on Tanzania on July 27, 2018. Tanzania was initially given 60 days to respond but received extensions from the Court’s Registry. They ultimately filed their response on July 10, 2019. The case proceeded after pleadings closed on January 18, 2020.

This decision by the African Court on Human and People’s Rights has sought to expand the right of expression to include the right to an appeal before competent national courts to exercise such right. The Court puts emphasis on how a State must facilitate the adjudication of civic rights much as it is the case for other types of rights.