January 2016 update: I hope you enjoy this piece. My article on the Mtikila v Tanzania case has now been published in the African Human Rights Law Journal. You can access the article here. Also be sure to read the follow up post on the Mtikila reparations judgement here. Enjoy the post! OW
A. Introduction
The following is a case summary of the majority opinion in Mtikila and others v. Tanzania. The judgement was rendered on 14 June 2013 and concerns two applicants (collectively “Applicants”): the first, two Tanzanian NGOs, the Tanganyika Law Society and Human Rights Centre(“NGOs”), the second Reverend Christopher R. Mtikila (“Mtikila”) with broadly the same case; that current Tanzanian election laws, prohibiting independent candidates from running for public office were in breach of various articles of the African Charter on Human and Peoples’ Rights (“the Charter”), the International Convention of Civil and Political Rights (“ICCPR”), the Universal Declaration on Human Rights (“UDHR”) and the rule of law.
The Judgement is significant for many reasons: not least valuable discussion and findings on exhaustion of local remedies and jurisdiction, and the Court finding in favour of the Applicants, but what is probably most significant is that this is the first case which has not been dismissed on admissibility or jurisdiction issues and was decided on its merits- a watershed moment for the Court.
B. Background
In 1992, amendments to the Tanzanian Constitution required all candidates for presidential, parliamentary and local government elections to be members of and be sponsored by a political party. In 1993 Mtikila filed a case before the Tanzanian High Court challenging these amendments, arguing that the prohibition on independent candidates conflicted with the Tanzanian constitution. On 24 October 1994 the Tanzanian High Court found in favour of Mtikila and declared the amendments unconstitutional. Just prior to this judgement, on 16 October 1994, the Tanzanian government tabled a bill in parliament seeking to prohibit independent candidates. On 2 December 1994 parliament passed the bill, which in effect restored the position prior to the High Court’s October judgement and continued the ban on independent candidates.
In 2005, Mtikila brought another case before the Tanzanian High Court, again arguing that the ban on independent candidates was unconstitutional. Again, the Tanzanian High Court found in his favour and allowed independent candidates. In 2009 the Tanzanian Attorney General appealed to the Tanzanian Court of Appeal. On 17 June 2010 the Tanzanian Court of Appeal reversed the High Court’s decision and once again prohibited independent candidates. In its decision, the Court of Appeal found that the issue of independent candidates was essentially a political one and therefore had to be resolved by parliament. Following this decision parliament commenced with a consultation aimed at obtaining the view of Tanzanian citizens on the possible amendment to its constitution. When the case came before the Court this consultation was ongoing and independent candidates remained prohibited.
C. Admissibility
Tanzania affirmed that it had ratified the Charter and the Protocol and had signed the Special Declaration allowing individuals and NGOs to submit claims directly. It however made two challenges to the admissibility of the Applicant’s case: (i) failure to exhaust local remedies; and (ii) delay in filing applications.
(i) Failure to exhaust local remedies
Tanzania submitted that the Applicants had failed to exhaust local remedies. With regards Mtikila, it argued that the Tanzanian Court of Appeal had stated that the issue of independent candidates was an issue for parliament, that parliament had tabled a bill dealing with the proposed constitutional consultation and that a consulting body had been set up to review the Tanzanian Constitution. Therefore, as a citizen of Tanzania, Mtikila would have the opportunity to take part in that consultation and give his views on independent candidates.
The Applicants responded that parliament and the constitutional review process do not constitute viable local remedies as found in the Protocol and the Charter, as the remedy that must be exhausted is a judicial one.
Examining two Commission findings, a case from the Inter American Court of Human Rights (“IACHR”) and European Court of Human Rights (“ECHR”), the Court found that the remedies which must be exhausted are primarily judicial as this meets the criteria developed through jurisprudence of ‘availability, effectiveness and sufficiency’. It found that the political process relied on by Tanzania was not freely accessible to each individual, was discretionary, could be abandoned at any time, and that the outcome depends on the will of the majority. The Court concluded that no matter how democratic the constitutional review process is it cannot be equated to an independent judicial process for protecting Charter rights. Based on this finding, the Court observed that as the Court of Appeal is Tanzania’s final court of appeal Mtikila had exhausted local remedies. Regarding the NGOs, the Court agreed with their argument that it was not necessary for them to institute the same proceedings as Mtikila as the outcome would be the same.
(ii) Delay in filing applications
Tanzania submitted that the Applicants took an unreasonably long time to bring their applications. It argued that the Court of Appeal handed down its Judgement on 17 June 2010 and the Applicants did not file their applications until 2nd and 10th June 2011 respectively.
The Applicants responded that there had been no undue delay. They argued that within four months of the Court of Appeal decision Tanzania held national elections in which functionaries were preoccupied, and that they had to wait to see how Parliament responded to the Court of Appeal judgement. They submitted that time should run from when Parliament failed to act.
The Court found that the Applicants were entitled to wait for the reaction of Parliament to the Court of Appeal Judgement. It found that the period of just under a year between the date of the Court of Appeal Judgement and the Applicants filing their cases was not unreasonably long.
D. Jurisdiction
Having dispensed with Tanzania’s submissions regarding the admissibility of the Applicant’s cases, the C0urt went on consider: (i) the temporal jurisdiction of the Court raised by Tanzania itself; and (ii) proprio motu, other jurisdiction issues.
(i) Temporal jurisdiction of the Court
Tanzania argued that at the time of alleged violation of the Applicants rights the Protocol of the Court had not come into operation and therefore the Court had no jurisdiction to hear the matter.
In response, Mtikila argued that a distinction should be made between normative and institutional provisions. He argued that rights sought to be protected were already contained in the Charter which Tanzania was party to. He submitted that although the Protocol came into operation later, it is only a mechanism to protect these rights.
The Court rejected Tanzania’s argument, finding that as Tanzania had ratified the Charter by the time the alleged violations occurred they were bound by the Charter at the relevant time and therefore Tanzania was under a duty to protect the rights found in it. The Court also noted that at the time the Protocol was ratified the alleged violations were continuing and continue to the time of the Court hearing, by which time Tanzania had also made its special declaration allowing individuals to apply directly to the Court.
(ii) Material and personal jurisdiction of the Court
Although no other jurisdictional arguments were raised by Tanzania, the Court provided, proprio motu, a short analysis of the reasons why it considered the case admissible. It noted that the alleged violations fell within the scope of the Court’s jurisdiction, and that the Applicants, as Tanzanian NGOs and citizens, were entitled to bring their cases directly before the Court as Tanzania had signed the special declaration.
E. Merits
Having rejected Tanzania’s arguments on both admissibility and jurisdiction, and satisfied itself proprio motu on the Court’s jurisdiction the Court went on, for the first time in its existence, to assess the merits of the Applicants case.
(i) The Applicants submissions
Both the NGOs and Mtikila argued that the amendments to Tanzania’s Constitution prohibiting independent candidates violated Tanzanian citizen’s rights under the Charter, namely : (i) right to freedom of association (Article 10); (ii) the right to participate in public/governmental affairs (Article 13(1)); and (iii) the right against discrimination (Article 2).
They also argued that the prohibition violated Tanzanian citizens rights under international human rights law, namely the ICCPR Articles 3 (the equal right of men and women to the enjoyment of all civil and political rights) and 25 ( in relevant part, the right to take part in government) and Article 21(1) (everyone has the right to take part in the government of his country, directly or through freely chosen representatives) of the UDHR. Mtikila also contended that the Government violated the rule of law by instituting a constitutional review process to settle an issue pending before the courts. In support of all its arguments the Applicants argued that the requirements to form a political party are onerous, including having certain quota numbers per region and having members from not only mainland Tanzania but also Zanzibar.
Each parties requests however were slightly different. The NGOs requested: (i) a finding that Tanzania was in breach of Articles 2 and 13(1) of the the Charter and Articles 3 and 25 of the ICCPR; (ii) make an order rectifying the situation; (iii) order Tanzania to report back to the Court within 12 months of its decision and (iv) for Tanzania pay its costs. While Mtikila requested: (i) the Court make a finding that Tanzania had violated his rights; and (ii) Tanzania should provide compensation for the ongoing denial of his rights.
In a little more detail, as to the right to freedom of association, the Applicants argued that the prohibition on independent candidates restricted the freedom of association for Tanzanian’s wishing to participate in politics therefore violating Article 10 of the Charter, Article 20 of the Universal Declaration of Human Rights and Article 22 of the ICCPR. In support of this, the Applicants argued that freedom of association is a core principle in monitoring actions of government.
With regards the right not to be discriminated against and the right to equality, the Applicants argued that the prohibition on independent candidates had the effect of discriminating against the majority of Tanzanians, therefore violating the right to freedom from discrimination pursuant to Article 2 of the Charter. The Applicants argued that though the law prohibiting independent candidates applies to all Tanzanians equally, its effects are discriminatory because only those who are members of and are sponsored by political parties can seek election. Relying on the jurisprudence of the Commission in Communication No 211/98 Legal Resources Foundation v Zambia Fourteenth Activity Report (2000 – 2001) (para. 64) where the Commission held inter alia that any “ measure which seeks to exclude a section of the citizenry from participating in the democratic processes is discriminatory and falls foul of the Charter”.
Regarding the Rule of law, Mtikila argued that by initiating a constitutional amendment to settle a legal dispute pending before the domestic courts (which nullified the courts judgement) Tanzania abused the process of constitutional amendment and therefore the principle of the rule of law. He argued that the rule of law was a principle of customary international law.
(ii) Tanzania’s responses
Tanzania responded in that the ban on independent candidates was a way of “avoiding absolute and uncontrolled liberty” which would lead to “anarchy and disorder” and that the prohibition is necessary for good governance and unity. Specifically regarding government leadership, Tanzania argues that the prohibition is necessary for “national security, defence, public order, public peace and morality”. It argued that the requirements for registering a political party, described by the Applicants as onerous, are necessary to avoid tribalism.
With regards to the rights to participate freely in the government of one’s country, Tanzania argued that the prohibition on independent candidates was a “necessity” for social reasons. In support of its position Tanzania relied on the IACHR case of Castañeda Gutman v Mexico (“Castañeda”) (paras. 192 and 193 in particular), to the effect that the introduction of independent candidates depends on the social needs of a state and its “historical reality”. Tanzania described its historical and social realities leading to the prohibition of independent candidates that after independence, Tanzania had a multiparty system but a one-party system was instituted to cement national unity. Multi-party democracy was reintroduced in the early 90s and that independent candidacy was prohibited. Tanzania argued that these provisions were enacted at a time when Tanzania was a young democracy and were necessary so that multi-party democracy is strengthened. In questions put to Tanzania during the hearing, it had explained that the prohibition on independent candidates was necessary due to the structure of Tanzania, comprised of mainland Tanzania and Zanzibar, required that political parties have a minimum number of members from mainland Tanzania and Zanzibar had so far resulted in no tribalism in Tanzania. It noted that Tanzania argued that the law sets out procedures on how an individual can participate in government and were reasonable.
Regarding the right to freedom of association, Tanzania responded that standing for political position was a matter of personal ambition and that no one is forced to do so. With particular reference to Mtikila, Tanzania argued that he had never been prevented from participating in politics, that he belonged to a political party, had contested the Presidential elections but lost.
With regards the Right not to be discriminated against and the right to equality, Tanzania maintained that the law prohibiting independent candidates is not discriminatory as it applies equally to all Tanzanians.
As to the rule of law, Tanzania submitted that it fully adheres to principles of the rule of law, separation of powers and independence of the judiciary as provided for under the Tanzanian Constitution. In response to Mtikila’s argument that the constitutional amendment was in violation of the rule of law, Tanzania argued that constitutional review and amendment is not a new phenomenon in Tanzania and that the Constitution had undergone fourteen constitutional amendments. It pointed out that Article 98(1) of the Constitution provides that it can be amended at any time when the need arises and therefore, the issue of a violation of the rule of law does not arise.
(iii) The Court’s findings
(a) Right to participate freely in the government of one’s country
The Court considered in detail Article 13(1) of the Charter which states that:
“Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.”
The Court emphasized that Article 13(1) is an individual right not a right attributed to groups. It found that the “patently clear terms” of Article 13(1) meant that a requirement that an individual be a member of a political party “surely derogates” from the rights enshrined in Article 13(1). Having noted that the prohibition on independent candidates did indeed derogate from Article 13(1) the Court went on to examine whether the prohibition was justifiably restricted under Article 27(2) of the Charter which provides that:
“The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.”
Or Article 29(4) requires individuals:
“To preserve and strengthen social and national solidarity, particularly when the latter is threatened;”
The Court recalled the jurisprudence pertaining to a state’s restriction of a citizen’s rights and when it may be considered proportionate. The Court recalled that the Commission has found that the “only legitimate reasons for limitations to the rights and freedoms of the African Charter” are found in Article 2 7 (2) of the Charter, and that having found that a right is effected through a law of “general application” whether it is proportional by weighing the impact, nature and extent of the limitation against the legitimate state interest serving a particular goal. The legitimate interest must be “proportionate with and absolutely necessary for the advantages which are to be obtained”. The Court also looked to cases from the European Court of Human Rights and Inter-American Court of Human Rights on the restriction of rights.
The Court also looked at the The United Nation’s Human Rights Committee’s General Comment No. 25 on Article 25 of the ICCPR (para. 17) which provides that:
“The right of persons to stand for election should not be limited unreasonably by requiring candidates to be members of parties or
of specific parties. If a candidate is required to have a minimum number of supporters for nomination this requirement should be
reasonable and not act as a barrier to candidacy. Without prejudice to paragraph (1) of article 5 of the Covenant, political opinion may not be used as a ground to deprive any person of the right to stand for election.”
The Court agreed with the Commission that the limitations to Charter rights and freedoms are only those set out in Article 27(2) of the Charter and that such limitations must take the form of “law of general application” and these must be proportionate to the legitimate aim pursued.
It found that, when considering restrictions are based on security, morality, common interest and solidarity, there was nothing in Tanzania’s arguments to demonstrate that the restrictions on the right to participate freely in the government of the country fell within the permissible restrictions set out in Article 27(2) of the Charter. The Court further found that the prohibition was not proportional to the alleged claim by Tanzania of fostering national unity and solidarity.
In making its finding the Court distinguished the present case from Castañeda insofar that in Castañeda the IACHR found that individuals had other options to seek public elective office, in particular pointing out that apart from being a member of a political party and being sponsored by that party, prospective candidates in Mexico could also be sponsored by a political party without being a member or that an individual could form a political party as the requirements weren’t arduous. I the present case however the only option available to Tanzanians was membership of a political party and sponsorship.
The Court also found that Tanzania could not use Article 13(1) of the Charter as a reason for not complying with international standards. Citing the Commission’s finding in Communication No 212/98 Amnesty International v Zambia Twelfth Activity Report (1998 – 1999) (paragraph 50) it found that having ratified the Charter Tanzania was under an obligation to enact laws which are in line with the Charter.
The Court observed that a person’s freedom to choose a candidate of their choice in Tanzania is restricted only to those sponsored by a political party. The Court found that the requirement that to participate in elections a citizen must be a member of a political party is “an unnecessary fetter” that denies citizens direct participation and amount to a violation.
The Court also dismissed Tanzania’s submissions that Mtikila had formed his own political party, as in no “way absolv[ing] [Tanzania] from any of its obligations”. The Court confirmed that these types of cases should not be considered as “personal action[s]” as if there is a violation it affects all Tanzanians and the outcome of the case affects all Tanzanians. Despite the fact that Mtikila had set up a political party, the Court found that should he wish to stand again as an independent candidate he has the right to insist on the “strict observance of his Charter rights”. The Court considered it arguable that even if Mtikila continued as a member of his own political party he still had the right to challenge the prohibition of independent candidates.
In conclusion, the Court found a violation of the right to participate freely in the government of one’s country since to participate in Presidential, Parliamentary or Local Government elections in Tanzania, a citizen must belong to a political party. The Court concluded that Tanzanians are thus prevented from freely participating in the government of their country directly or through freely chosen representatives.
(b) Right to freedom of association
The Court again recalled that Article 27(2) of the Charter allows state parties some measure of discretion regarding the freedom of association in the interest of collective security, morality, common interest and the rights and freedoms of others. The Court however was not satisfied that the social needs argument raised by Tanzania, detailed above, met the exceptions in Articles 29(4) and 27 (2) of the Charter to such an extent that it justifies the limitation of the right to freedom of association.
The Court considered that freedom of association is negated if an individual is forced to associate with others or if other people are forced to join up with the individual. The Court therefore found that by requiring individuals to belong to, and to be sponsored by a political party, Tanzania had violated the right to freedom of association as individuals are compelled to join or form an association before seeking election.
(c) Right not to be discriminated against and the right to equality
The Court understood the discrimination claimed by the Applicant to be between Tanzanians who are not members of a political party , and therefore cannot run for election, and those who are members and therefore can. Based on this understanding, the Court considered the right not to be discriminated is related to the right to the equal protection by the law as guaranteed by Article 3 (2) of the Charter, which stipulates that:
“[e]very individual shall be entitled to equal protection of the law”, and that in the light of Article 2 of the Charter the alleged discrimination might be related to a distinction based on “political or any other opinion”.
The Court therefore considered whether Tanzania’s arguments, namely the particular structure of Tanzania (mainland and Zanzibar) and the countries history requiring a “gradual construction of a pluralist democracy in unity” reasonably justified the “difference in treatment” between Tanzanians.
Having already indicated that these grounds could not justify restrictions on the right to participate in the Government of one’s country, and the right to freedom of association, the Court considered that the same grounds could not legitimise the restrictions not be discriminated against and the right to equality before the law. The Court therefore concluded that there has been violation of Articles 2 and 3(2) of the Charter.
(d) Breach of the rule of law
The Court found that the concept of the rule of law is an all encompassing principle under which human rights fall and so cannot be treated in abstract or wholesale. It further found that Mtkilia’s claim that the rule of law has been violated was not related to a specific right; therefore the Court found that the issue of the violation of the principle of the rule of law does not properly arise in this case.
(e) Alleged violations of the International Convention on Civil and Political Rights and Universal Declaration of Human Rights
The Court noted that it has jurisdiction to interpret the international treaties under Article 3(1) of the Protocol which provides that “the jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned”.
However, the Court, having considered the alleged violations under the relevant provisions of the Charter, did not deemed it necessary to consider the application of these treaties.
F. Compensation, Reparation and Costs
Recalling Article 27(1) of the Protocol and Rule 63 of the Rules of the Court (“the Rules”) which allows for the Court to make orders of compensation or reparation, the Court noted that Mtikila had reserved his right to elaborate on his claim for compensation or reparation but had not done so. The Court therefore did not make a finding on the issue, but did call upon Mtikila, if he so wished, to exercise this right.
The NGOs requested that the Court to order Tanzania to pay their costs. Tanzania responded that the Applicants should pay its own costs. The Court notes that Rule 30 of the Rules states that “[U]nless otherwise decided by the Court, each party shall bear its own costs.” Taking into account all the circumstances of this case, the Court is of the view that there is no reason to depart from the provisions of this Rule.
G. Analysis and comment
Tanzania had essentially one argument in response to the Applicants various complaints- that the prohibition of independent candidates was a necessity to avoid insecurity and the overall disintegration of society. In doing so Tanzania appears to have relied heavily on the geographical reality of Tanzania mainland versus Zanzibar whilst alluding to the political tension that occurs through it.
However, the Court was unconvinced that prohibition on independent candidates was a social need. It is worth noting that the Judgement does not refer to any specific examples of why the prohibition is a social need. While wanting to avoid conjecture, I wonder whether concrete examples provided by Tanzania as to civil unrest or political tension may have amounted to a more persuasive argument in favour of their “social needs” argument? As it stands the case sets an interesting precedent for future cases and may well require states to work a little harder than simply justifying legislation and/or amendments to constitutions which ostensibly violate citizens human rights under the “justifiable restrictions” based simply on “social needs”.
It is a shame that the Court declined to discuss the international treaties. Whilst the Judgement categorically states that international instruments, in this case the ICCPR and UDHR, were within its jurisdiction, which does solidify the jurisdictional position on international treaties, the Court’s decision not to consider the merits of the Applicants case is disappointing. The Court appears to have adopted an “either/or” approach. While the Applicant’s Charter rights were found to have been violated this should not mean the Applicants other rights, found under international treaties are not to be examined. There may of course be practical reasons behind the Court’s decision not to go into the international treaty merits, but in deciding not to consider them in detail we are at best left wondering what the analysis may have brought up, while missing out on the possibility of further discussion and jurisprudence to guide future applications, while at worst left with the feeling the Court considers the international treaties not important.
The issue of compensation or reparation remains a live one. It will be interesting to see if Mtikila takes the issue of compensation or reparation on further. As to the issue of costs, it is disappointing to see the Court rejecting the NGOs claim for costs. With this finding the Court arguably sets a precedent that costs shall be born by each party. Where a scenario such as this one arises it cannot be said that the respondents (Tanzania) would not be in a position to pay some or all of the costs of the NGOs in bringing the case. This is clearly a worrying and it may deter future applicants from bringing cases when they know that they are unlikely to recover the costs of the case.
However, despite these disappointments, the Court should be commended for having delivered its first Judgment on the merits. The Judgement provides well reasoned findings for finding that the Applicants had exhausted local remedies and dismissing Tanzania’s somewhat weak jurisdictional arguments. It was also encouraging to see the Court reject Tanzania’s ‘social needs’ arguments especially considering Tanzania failed to provide concrete examples of where these needs arose as discussed above.
With this judgement we now enter an era of enforcement, at least in this one case, and many questions arise- how will the Tanzanian Government react to the judgment? How will the Court react to Tanzania’s reaction? Which other African countries have similar rules? Will this decision require these states to change their election laws too?
All these questions will be answered in time. For now, Mtikila should be seen as a progressive step by the Court in human rights protection in Africa, let us hope it is not the last.