Why Tanzania agrees to disagree with African Court’s theory of law

THURSDAY March 10, 2022

By Patty Magubira

The Tranquility News Reporter, Tanzania

The Tanzania government has explained the reason it withdrew the right of individuals and non-governmental organisation (NGOs) to directly file cases against it at the African Court on Human and Peoples’ Rights.

The instrument compromises sovereignty of member states, as it crosses the line from complementing to subordinating their national courts, it says.

The Tanzania government regrets that it had actively and passionately worked for the establishment of the continental court knowing it would provide African solutions for African challenges.

Deputy Minister for Foreign Affairs and East African Cooperation Mbarouk Nassor Mbarouk says the court should create an African human rights jurisprudence to address peculiar challenges on the continent instead.

“The court should also set realistic standards in consideration to the capacity of the African states,” suggests the deputy minister, reiterating that Tanzania had not withdrawn from the African Court and that it will remain party to the protocol and aligned to the mandate and spirit of the court.

The deputy minister was officiating at a two-day joint Retreat between the African Union Permanent Representatives Committee (PRC) and the Arusha-based African Court.

Professor Palamagamba Kabudi, former minister for the docket, sent a notice of withdrawal of the declaration made under Article 34(6) of the protocol establishing the court on November 21, 2019.

The Article requires the AU member states to deposit a declaration accepting the competence of the African Court to receive cases against themselves from individuals and NGOs.

The court shall not receive any petition involving a state party which has not made such a declaration, reads part of the Article.

A year after the court received the notice, Tanzania became the second AU member state after Rwanda to withdraw the right of individuals and NGOs to directly access the vital continental judicial body.

The sole option for individuals and NGOs in Tanzania to access the African Court situated next door as stipulated in Article 5(1) of the protocol establishing the court is through their own states and the African Commission on Human and Peoples’ Rights .

Given its proximity to the African Court, the Tanzania government has the highest number of cases filed by individuals and NGOs as well as judgments issued against it by the continental legal facility.

Out of 70 decisions issued by September 2019; 28, equivalent to 40 per cent, were on the court’s host country.

Most of the cases pending before the court are against the Tanzania government with a huge number of them on alleged violation of the right to fair trial, pointing to a systematic challenge in the country’s justice system.

The African Court ruled on November 28, 2019, that a section of the Tanzania penal code which provides for mandatory death sentence in capital offences not only violates the right to fair trial and undermines judicial independence, but also the right to life.

The African Court and the AU PRC are meeting in Arusha, Tanzania, to, among other things, iron out their differences in a bid to enhance the effectiveness of the court and improve the protection of human rights on the continent.

The committee comprising representatives of all AU member states last met with the court about a decade ago, apparently explaining the fading trust and confidence of the states in the facility they themselves created 15 years ago.

High on the agenda of the two-day retreat is the increasing trend of the AU member states withdrawing the right of individuals and NGOs to sue them at the continetal court and their failure to timely implement decisions of the facility.

The retreat comes when the court is undergoing organisational reforms, including calibration of its mandate, role and responsibilities in a wider judiciary.

The African Court President, Lady Justice Imani Aboud, says the two-day retreat aims at renewing the atmosphere of trust, cooperation and confidence founders of the court used to embrace.

“We think there is need to meet with the PRC, which in principle owns the court, to report on our challenges and success stories and where we would like to see the court many years to come,” Lady Justice Aboud says.

Much as most of the leaders who established the court and its vision are no longer in power, there is need to improve them to ensure the facility dispenses justice to the Africans, she explains.

Dr Monique Nsanzabaganwa, the Deputy Chairperson of the AU Commission, says an independent court aligned with peace values is indispensable for socio-economic and political growth of the continent.

Fifteen years though is not a long time for an institution to be fully matured, the period suffices to assess a number of things, including finding out if the court has delivered its mandate effectively and diligently.

“What governance structures, members and standard operating procedures guarantee the judiciary with transparency and fairness,” she queries.

According to her, other things to assess after the period are mechanisms to enforce the court’s decisions, failure of some AU member states to ratify the protocol and if the court is equipped with sufficient human and financial resources for it to function effectivelyΩ