Rev. Christopher Mtikila

The African Court on Human and People’s Rights (AfCHPR) yesterday started hearing the case filed by three applicants including Rev. Christopher Mtikila against Tanzanian government on the issue of allowing independent candidate in the country’s Constitution.

The case, which is administered by nine judges was filed last year by Rev Mtikila,

Tanganyika Law Society (TLS) and the Legal and Human Rights Centre (LHRC), who collectively challenges the provisions of Articles 39, 67 and 77 of the Constitution of the United Republic of Tanzania, as amended in 1992 and again in 1994.

The two amendments removed in total the right of ordinary Tanzanians to seek to be elected president, MP or councilor unless they were members of a political party.

In their arguments, government lawyers led by advocate Mathew Mwaimu, asked the court to reject the case, as the government has started working on the matter after instituting the constitution review process, whereby every Tanzanian will be able air his/her views on whether to allow an independent candidate in the forthcoming constitution or not.

Mwaimu also called upon the court to disregard the case, as it was lodged out of time, required by the law.

“We agree and recognise the rights of citizens to participate in all public

activities, but we think the ongoing constitution review process is the best platform for applicants to convince the public on the need of having an independent candidate,” said Advocate Mwaimu.

Before AfCHPR president, Judge Gerald Niyungeko who led a team of judges, another government lawyer, Edson Mweyunge claimed that applicants delayed to lodge the case as required by the law, saying the ruling by the Tanzania’s Court of Appeal was issued on June 10, 2010, and the applicants lodged the case on June 2, last year — one year after the ruling.

He said according to the law, the applicants were supposed to lodge the case six months after the ruling by the Tanzanian Court of Appeal.

“It is possible the applicants have a genuine argument, but they filed the case out of the time frame, hence there is no need for this court to continue with this case,” Mweyunge said.

For her part, advocate Sarah Mwaipopo, opposed all the arguments raised by the applicants on the need of having an independent candidate in the proposed constitution review process.

She said that Rev Mtikila was not denied any opportunity for him to take part in the political activities as one time vied for Presidential post.

On the side of applicants’ lawyers led by James Jesse,noted that the anomaly within the Constitution forces all Tanzanians wishing to participate in leadership to join a political party “even if they do not subscribe to the manifesto, principles, policies or practices of any of the existing political parties.”

He said the provisions of the Tanzanian Constitution violate Article 13 (Right to freely participate in the governance of one’s country) and Article 2 (Right to protection against discrimination of any kind) of the African Charter on Human and People’s Rights.

They also violate articles 3 and 25 of the International Covenant on Civil and Political Rights (ICCPR). Tanzania is a party to both instruments of international human rights.

Rev. Mtikila was the first to file a case in the High Court through Miscellaneous Civil Case No 5 of 1993. The highest court in the land ruled in his favour on October 24, 1994. However, the government chose to defeat the High Court ruling by making the 11th Constitutional Amendment to the Constitution on December 2, 1994, which was nevertheless challenged by the Democratic Party (DP) leader.

He challenged the amendments, through High Court Miscellaneous Civil Case No 10 of 2005.On May 5, 2005, the High Court ruled in the Rev Mtikila’s favour, declaring that the 11th Constitutional Amendment violated the democratic values and principles enshrined in the Constitution.

The amendments, the court further ruled, also violated the constitutional doctrine of basic structures.

“This doctrine provides that there are certain basics, fundamental features of a country’s constitution that a national parliament cannot amend on its own,” the TLS boss added. Although in 2009, the Attorney General’s Chambers instituted an appeal challenging the decision of the High Court (in Civil Appeal No 45 of 2009), the Court of Appeal reversed the decision of the High Court.

The Court of Appeal, in its ruling, declared that the Basic Structures Doctrine does not apply to the Constitution of the United Republic of Tanzania and based on that, there was no right to independent candidacy in Tanzania.

The African Court on Human and Peoples’ Rights, which relocated to Arusha from Addis Ababa, Ethiopia in 2007, is at the apex of the developing African continental human rights system.

It is established by the Protocol to the African Charter on Human and Peoples’ Rights. The Protocol came into force in January 2004 with 26 African countries having ratified it.This is the first case in the Court from Tanzania and one of the earliest that stand a reasonable chance of succeeding before the Court, according to officials.