'Help us', Tanzania's opposition urges African Court

4 December 2020 · Carmel Rickard

Elections in Tanzania at the end of October passed with little comment from outside that country. And since the declaration of John Magufuli as president, Tanzanian politics have been relegated to a non-issue in most other parts of the world. But not for long: disputed aspects of the polls are about to be ventilated in court even though legal challenges to aspects of the election are not allowed in Tanzania’s own courts. Activists have taken their dispute over the way the elections were conducted to the African Court on Human and Peoples’ Rights. It promises to be a landmark case: given the inability of people inside Tanzania to bring a meaningful test of the polls’ validity, the African court could prove an alternative forum - and one drawing an international audience; further, in a politically poignant development, this will also be the last case from Tanzania that the court will hear.

Unsuccessful in the recent elections and unable to express its concerns over fairness and allegations of electoral malpractice in the domestic courts, Tanzania’s opposition Alliance for Change and Transparency Wazalendo have asked the African Court on Human and Peoples’ Rights for help.

Part of the claim by the party and some of its supporters is that their right to full participation in the October election was deliberately restricted by the government, using state institutions to do so. Media reports quote from the founding papers: Preceding, during and immediately after the elections, (the Tanzanian government) through its agents (including) the Tanzania Police Force, Tanzania Intelligence and Security Service, Tanzania Peoples’ Defence Force, Tanzania Broadcasting Corporation, the Ministry for Regional Administration, Local Government and Special Forces, engaged in multiple acts that violated the rights of the (opposition and its members) to participate in the elections as citizens of (Tanzania).

Giving more specific grounds for the case, they said they were molested and their agents were denied access to polling stations. Security agencies refused to investigate the allegations ‘even when reported to them’.

'Manipulated'

They claimed the government had even ‘manipulated the Ministry of Information, Culture, Arts and Sports’ along with the various broadcasting bodies, in an attempt to violate their rights.

One of the first hurdles to clear before a matter will be heard by the African Court is the question whether domestic remedies have been exhausted. To this the opposition figures have a short answer: they have no internal remedies, since the constitution does not allow any court the jurisdiction to inquire into the election of a candidate, once declared by the Electoral Commission to have been duly elected.

As so often in the past, the applicants ask for the court to declare that Tanzania has violated the African Charter on Human and Peoples’ Rights in different ways. By way of relief, they also want the court to require Tanzania to investigate and act against ‘all persons’ found to be responsible for the violation of their rights. They want Tanzania to change its ways by enacting measure that will safeguard their rights – and they want the court to order the paying of reparations.

Shortcomings

Similar long lists of actions that litigants want taken against Tanzania have been submitted to the African Court in cases before now. They have seldom been completely successful, but the looming threat of action via the African Court - and the court's periodic indication of shortcomings in that country's justice and prison systems among others - has irritated the Tanzanian authorities sufficiently that they have taken the ultimate step: they have withdrawn from full participation in the African Court system. They have given notice that the Tanzanian state no longer agrees that individuals may bring action at the court against that state. In terms of the court’s rules, such a withdrawal takes effect after a year’s notice. This means that the case testing the elections in October is the last against Tanzania that the court will be able to accept for consideration.

Carmel Rickard

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