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African Court holds Article 41(7) of Constitution violates African Charter

The African Court on Human and People’s Rights (the Court) has today, 15 July 2020, delivered a landmark judgment in the case of Jebra Kambole (Applicant) v United Republic of Tanzania (Respondent State). The Applicant was challenging the legality of Article 41(7) of the Constitution which states:

“When a candidate is declared by the Electoral Commission to have been duly elected in accordance with this Article, then no Court of law shall have any jurisdiction to inquire into the election of that candidate.”

Background

The Applicant alleged that the Respondent State had violated his rights under the African Charter on Human and Peoples’ Rights (the Charter) by maintaining Article 41(7) in its Constitution, which provision bars any Court from inquiring into the election of a presidential candidate after the Electoral Commission has declared a winner.

Specifically, the Applicant alleged that Article 41(7) violated his right to non-discrimination, his right to equal protection of the law and the right to have his cause heard, especially the right to appeal to competent national organs against acts violating his fundamental rights as provided for under Articles 2, 3(2) and 7(1)(a) of the Charter, respectively. The Applicant also alleged that the Respondent State had failed to honour its obligation to recognise the rights, duties and freedoms enshrined in the Charter and to take legislative and other measures to give effect to the Charter as required by the Charter.

The Judgment

The Court first held that it had jurisdiction to entertain the application. On admissibility, the Court stated that the Application was admissible notwithstanding arguments raised on (i) local remedies not being exhausted and (ii) that the Application was time barred. The Court held that that the Applicant did not have a local remedy that was available for him to exhaust before filing his Application, and that there is no specific time frame within which such an application must be filed.

On the merits, the Court found as follows:

  • That Article 41(7) of the Constitution creates a differentiation between litigants in that while the Respondent State’s Courts are permitted to look into any allegation by any litigant, they are not allowed to do so when a litigant seeks to inquire into the election of a President. The Court held that this amounted to a violation of Article 2 of the Charter.
  • As to whether the Respondent State had violated Article 3(2) of the Charter, the Court noted that the principle of equal protection of the law does not necessarily require equal treatment in all instances and can permit differentiated treatment of individuals who are differently placed. The Court thus held that the Respondent State had not violated Article 3(2) of the Charter.
  • On Article 7(1)(a) of the Charter, the Court noted that among the key elements of the right to a fair hearing, is the right of access to a Court for adjudication of one’s grievances and the right to appeal against any decision rendered in the process. The Court held that Article 41(7) ousts the jurisdiction of Courts to consider any complaint in relation to the election of a presidential candidate after the Electoral Commission has declared a winner and hence the Respondent State’s Constitution violated the Applicant’s rights under Article 7(1)(a) of the Charter.
  • Additionally, the Court found the Respondent State to have violated Article 1 of the Charter in that it has not adopted legislative or other measures to give effect to the Charter.

Order of the Court

  • The Court ordered the Respondent State to take all necessary constitutional and legislative measures, within a reasonable time, to ensure that Article 41(7) of the Constitution is amended and aligned with the provisions of the Charter.
  • The Court also ordered the Respondent State to submit a report within twelve (12) months of the judgment, on the measures taken to implement the terms of the judgment and to submit further reports every six (6) months thereafter until the Court is satisfied that there has been full implementation.
  • The Court also ordered the Respondent State to publish the Judgment within a period of 3 months from the date of notification, on the websites of the Judiciary and the Ministry for Constitutional and Legal Affairs, and to ensure that the text of the Judgment remains accessible for at least 1 year after the date of publication.

Article by Tanzanian member firm FB Attorneys

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