African Court lets Tanzania off the hook on elections law
Chairman of Chadema Freeman Mbowe (L) flashes a victory sign during party's first political rally after an imposed ban in 2016 was lifted at Furahisha Grounds in Mwanza, Tanzania on January 21, 2023. PHOTO | MICHAEL JAMSON | AFP
The African Court on Human and Peoples’ Rights on June 13 dismissed the bulk of a petition brought by human rights activists against Tanzania challenging provisions of the National Elections Act that they claimed were discriminatory against non-civil servants and gave the president too much appointing power.
Of particular concern to the petitioners – Tanzanian national Bob Chacha Wangwe and the Legal and Human Rights Centre (LHRC) – was the system of appointing the director of elections and returning officers at poll stations.
The court, sitting in Arusha, ruled that Section 6(1) of the Act, which covers the appointment of the director of elections in the National Electoral Commission, and Section 7 – concerning selection of returning officers – are structurally sound and do not violate the African Charter on Human and Peoples’ Rights as claimed by the petitioners.
Nine of the 10 judges agreed that limiting the selection of the director of elections and returning officers to members of the civil service was a “reasonable” system and not a violation of the charter as alleged.
There were only minor areas of the sections which appeared, “in part,” to work against Article 13(1) of the charter and should be rectified to allow for better elections management in future, the judges ruled.
The court’s president Justice Imani Daud Aboud, a Tanzanian national, was not on the panel.
Bailable offences
In another ruling, the court upheld a separate petition jointly filed by LHRC and the Tanzania Human Rights Defenders Coalition (THRDC) challenging section 148(5) of the Criminal Procedure Act,which lists murder, treason, terrorism, and money laundering as non-bailable offences.
According to the ruling, the clause goes against the Charter establishing the court and needs to be amended.
The court ordered the Tanzania government to “take all necessary constitutional and legislative measures” within the next two years to ensure Section 148(5) is amended accordingly in line with the Charter.
But it rejected the petitioners’ request to order Tanzania to release all suspects charged with non-bailable offences within one month, saying the issue of whether bail should be granted or denied should be left to domestic courts to decide “as they would need to consider individual circumstances in each case.”
The decisions came hardly a fortnight after Tanzania donated land for the court to build a permanent headquarters in Arusha and pledged to Tsh9.4 billion ($3.7 million) towards the project’s estimated $25.79 million cost, which Justice Aboud described as “generous gestures” of support.
Tanzania’s relations with the African Court have been troubled since 2019, when Dodoma said it had withdrawn from a controversial clause in the court’s Charter giving it the mandate to hear petitions from individuals and civil society organisations without exhausting domestic channels first. The court said the withdrawal, which came into effect in November 2020, does not affect cases filed before then.
Judge Rafaâ Ben Achour from Tunisia issued a dissenting opinion, saying he disagreed with the court’s reasoning that the said sections were not in violation of the Charter.
