Independent candidates battle rages on in Tanzania

Dar es Salaam. The Tanzania Constitution Forum (TCF) is considering filing an application for the execution of the judgement on independent election candidates at the African Court on Human and People’s Rights (ACHPR).

This new development will revive the fight for independent candidates for the Presidency, Parliament and Local Government Councils, a struggle which started in the early 1990s when political activists knocked at the Courts doors seeking a judicial decision.

However, although victory had been declared for the stakeholders, the matter has been utterly neglected by the relevant authorities, including especially the government, and the decision has neither been implemented – nor honoured in anyway.

What with one thing leading to another, the issue is being revived.

Speaking in Bagamoyo, Coast Region, recently during a two-day seminar organized to educate political party leaders on the Bill to amend the 1992 Political Parties Act tabled in Parliament recently, the retired TCF chairman Deus Kibamba said the Forum’s decision comes after the government failed to comply with the ACHPR directive on the matter delivered on June 14, 2013.

“We have decided to step in the breach in honour of (the late) Reverend Christopher Mtikila after the government failed to honour the ACHPR directive inside the specified period of time,” he told the forum participants.

The judgement on Application No. 009 of 2011 by the Tanganyika Law Society (TLS) and the Legal and Human Rights Centre vs. the United Republic of Tanzania, and Application No. 011 of 2011: Reverend Christopher Mtikila and the United Republic of Tanzania was issued at the court’s headquarters in Arusha by a team of ten Judges including the ACHPR President, Sophia Akuffo, and Vice President, Bernard Ngoepe.

In the judgement, the Tanzania government was directed to take constitutional, legislative and other necessary measures within a reasonable time to remedy the violations found by the (African) Court, and to inform it on the measures taken within six months from the date of the ruling.

Based on previous reports of failure to honour Court rulings on the matter, the government was also directed to report to the Court within six months from the date of the ruling, and provide implementation details of the judgement.

Furthermore, the Court directed the government to publish an official summary of the judgement prepared by the registry in English and ki-Swahili in an official, widely circulated gazette.

According to the judgement, the government was also directed to publish the English language version of the judgement on its web site for a minimum period of one year.

But, Mr Kibamba told the meeting that TCF is going to apply for execution of the judgement because the government has failed to comply with the African Court’s directives.

“Our lawyers are finalizing some important issues. Hopefully, the application will be made in early February in order to honour the outstanding job that was done by Reverend Mtikila to ensure that Tanzanians are accorded this important right,” he said.

Mr Kibamba also said that a former Attorney General, George Masaju, had told the African Court that the matter would be accommodated in the new Union Constitution whose process was under way.

“This argument does not currently hold water because the process has stalled and the judgement is yet to be honoured. TCF will take the matter further for the benefit of Tanzanians,” he said.

When contacted, the sitting Attorney General, Prof Adelardus Kilangi, said the Legal and Constitutional Affairs Minister, Prof Palamagamba Kabudi, was the only person authorized to speak on policy and budget issues.

In the case before the African Court, Mr Mtikila was represented by three counsels: Mr Setondji Roland Adjovi of Benin, Mr Charles Adeogun-Phillips of Nigeria, and Mr Francis Dako of Cameroon.

On the other hand, the Tanzania government was represented by eight legal officers including Mr George Masaju (deputy Attorney General) and Ms Irene Kasyanju, Ambassador and head of Legal Unit at the ministry of Foreign Affairs and International Cooperation.

Others were Mr Yohane Masare, Ms Sarah Mwaipopo, Ms Alesia Mbuya, Ms Nkasori Sarakikya, Mr Edson Mweyunge and Mr Benedict Msuya.

The legal battle for independent candidature started in 1993 when a constitution case was filed at the High Court in Dar es Salaam to challenge amendment of Articles 39, 67 and 77 of the Union Constitution, and Section 39 of the Local Authorities (Elections) Act of 1979.

The government tabled a Bill in Parliament on October 16, 1994 that sought to nullify the right of independent candidates to contest Presidential, Parliamentary and Local Government elections.

The High Court issued its judgement in Miscellaneous Civil Cause No.5 of 1993, declaring that independent candidates for Presidential, Parliamentary and Local Government elections were legally allowed.

However, the National Assembly passed the Bill --titled The Eleventh Constitutional Amendment Act No.34 of 1994 -- on December 2, 1994 that was assented to by the president and became law on January 17, 1995. This negated the High Court’s judgement in favour of independent candidates.

Mr Mtikila then instituted Miscellaneous Civil Cause No 10 of 2005 at the High Court in Dar es Salaam against the Attorney General, challenging the 1994 amendments to Articles 39, 67 and 77 of the Union Constitution.

The High Court stated in its ruling issued on May 5, 2007 that the amendments violated the democratic principles and the doctrine of basic structures enshrined in the Constitution -- hence once again allowing independent candidates.

That judgement was challenged at the Tanzania Court of Appeal by the government. In the event, the High Court decision was reversed through the Appellate judgement issued on May 5, 2007. This in effect restricted independent candidates for Local Government, Parliament and Presidency.