Respect our judicial, sovereign boundaries - Tanzania tells Arusha-based Africa court

Tanzania has accused the African Court of Human and People’s Rights (AFCHPR) of trying to usurp its judicial processes and said it won't accept any invitation to fully rejoin the court unless it agrees to respect sovereign boundaries.

In November, Tanzania formally withdrew from Article 34(6) of the protocol setting up the Arusha-based court, which allows individuals and non-governmental organisations to file cases against national governments at the court.

It has since been joined by several other member countries equally unhappy with the clause and particularly its implementation, although all (including Tanzania) remain members of the court and will continue to adhere to other provisions of the protocol.

In a recent interview, Tanzania’s Attorney-General Adelardus Kilangi told The EastAfrican that the said article violated the doctrine of exhaustion of remedies that member countries had insisted on before signing the protocol.

“If the court wants Tanzania to reinstate the article, then it should abide by the country’s Constitution which honours the judicial proceedings for which a claimant is allowed to follow and not otherwise,” said Prof Kilangi.

Mid-December, the AFCHPR's president Sylvain Ore described the withdrawal action by some countries as "a misunderstanding or misjudgment" of the article's purpose.

According to Justice Ore, the court's provision to receive cases from individuals and NGOs remains "crucial to the implementation of judicial protection of human rights in Africa”. He said the court would launch a new initiative to "reach out" to the mutinous countries and try to convince them of the clause's continuing usefulness.

Other African countries that have withdrawn from Article 34(6) of the protocol for similar reasons over the past four years are Rwanda, Benin and Cote d’Ivoire.

Tanzania signed the protocol establishing the court in Ouagadougou, Burkina Faso in 1998, and ratified it in early 2006 shortly after the court became operational and relocated to Arusha from its initial, temporary location in Addis Ababa, Ethiopia.

Prof Kilangi declined to offer details of case numbers or particular cases that have irked the government for being brought before the African court, saying that to do so might be construed as interference in ongoing court proceedings.

“Tanzanians have been rushing to file petitions with the court even if their claims have already been heard and dismissed by all judicial levels within the country from primary, district, regional and the High Court, right up to the apex Court of Appeal," he said.

"Sometimes they just skip the whole process and go straight to the African Court. All of this tends to ignore Tanzania's own judicial processes which constitutionally is not legal. This means that the African Court unfairly interferes with Tanzania’s sovereign constitution," Prof Kilangi added.

Establishment of AFCHPR

The AFCHPR was established to determine cases pertaining to violation of human and people’s rights across the continent. So far only 31 out of 55 African Union member states have ratified the protocol establishing it.

At the time of filing Tanzania's withdrawal notice back in November 2019, Foreign Affairs Minister Palamagamba Kabudi said the country was seeking a “temporary” withdrawal from the clause due to its dissatisfaction with "some things that are going on" with regard to its application.

Current cases against the Tanzanian government pending hearing before the court include one where international women’s rights organisation Equality Now, in collaboration with a partner in Tanzania, is challenging a law that bans pregnant girls and teenage mothers from attending school.

Veteran Zanzibar opposition politician Seif Sharif Hamad led a group of applicants in filing a case at the African Court alleging massive electoral misconduct by the Zanzibar government in the archipelago's general election in October.

But, Mr Hamad's acceptance of an appointment by new Zanzibar president Hussein Mwinyi to the role of first vice-president under a coalition government has jeopardised the case.