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42 AFRICAN COURT LAW REPORT VOLUME 1 (2006-2016) 1994) seeking to nullify the right of independent candidates to contest Presidential, Parliamentary and Local Government Elections. 71. On 2 December 1994, the Tanzanian National Assembly passed the Bill (Eleventh Constitutional Amendment Act No 34 of 1994) whose effect was to restore the Constitutional position before Civil Case No 5 of 1993 by amending Article 21(1) of the Constitution of the United Republic of Tanzania. This Bill became law on 17 January 1995 when it received Presidential assent. This law negated the High Court’s judgment in Civil Case No 5 of 1993. 72. In 2005, 2nd Applicant instituted another case in the High Court Christopher Mtikila v The Attorney General, Miscellaneous Civil Cause No 10 of 2005, again challenging the amendments to Articles 39, 67 and 77 of the Constitution of the United Republic of Tanzania as contained in the Eleventh Constitutional Amendment Act of 1994. On 5 May 2006, the High Court once more found in his favour, holding that the impugned amendments violated the democratic principles and the doctrine of basic structures enshrined in the Constitution. By this judgment, the High Court again allowed independent candidates. 73. In 2009, the Attorney General appealed to the Court of Appeal of the United Republic of Tanzania (“the Court of Appeal”), in The Honourable Attorney General v Reverend Christopher Mtikila Civil Appeal No 45 of 2009 (“Civil Appeal No 45 of 2009”), against the above judgment of the High Court. In its Judgment of 17 June 2010, the Court of Appeal reversed the High Court’s judgment, thereby disallowing independent candidates for election to Local Government, Parliament or the Presidency. 74. The Court of Appeal ruled that the matter was a political one and therefore had to be resolved by Parliament. Afterwards, Parliament set in motion a consultative process aimed at obtaining the views of the citizens of Tanzania on the possible amendment of the Constitution. At the hearing, it was confirmed to the Court that the process was still ongoing. 75. As the municipal legal order currently stands in the United Republic of Tanzania, candidates who are not members of or sponsored by a political party cannot run in Presidential, Parliamentary or Local Government elections. B. Remedies sought by the Applicants 76. The 1st Applicants pray the Court to: “(a) Declare that the Respondent is in violation of Articles 2 and 13(1) of the African Charter on Human and Peoples’ Rights and Articles 3 and 25 of the ICCPR (International Covenant on Civil and Political Rights); (b) Make an order that the Respondents put in place the necessary constitutional, legislative and other measures to guarantee the rights provided under Articles 2 and 13(1) of the African Charter and Articles 3 and 25 of the ICCPR; (c) Make an Order that the Respondent report to the Honourable Court, within a period of twelve (12) months from the date of the judgment issued by the Honourable Court, on the implementation of this judgment and consequential orders;

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Tanganyika Law Society v. Tanzania

Judgment

Question Presented: Whether the Tanzania regulation prohibiting independent candidates from seeking public office is unconstitutional?

Alleged Acts: Applicants contend that the constitutional and statutory provision are in conflict. The Tanganyika Law Society contends that the ability to introduce restrictions on candidacy and responsive to the social needs of the country. Tanganyika Law Society further argues that the applicant lacks standing because he formed his own political party.

Procedural history: The National Assembly of the United Republic of Tanzania passed a law requiring all candidates for Presidential, Parliamentary and Local elections either ascertain a sponsor or be a member of a political party. The applicant contended that this provision conflicted with the Constitution and was therefore void. The provision was declared unconstitutional. The National Assembly subsequently passed a law which negated the judgment of the High Court. The applicant against filed suit and won, whereby the court declared the law unconstitutional. The Attorney appealed the declaration by the High Court. The Court of Appeals held the law constitutional and thereby disallowed candidates from running as independents.

Summary: In determining whether the restriction was permissible, the source looked to the American Convention of Human Rights that requires restrictions be (1) in the general interest; and (2) the law conforms with the ACHR. For examples, general interest restrictions included: security, morality, and common interest. The court determined that the restriction on the right to participate in the political community was not within these definitions. Further, the court found that although the respondents alleged that the restriction was aimed at fostering unity, this was not enough to limit candidacy. The second applicants adherence to a political party does not relieve that Tanganyika Law Society of its obligations.

Conclusion: The law is in violation of the Tanzania constitution because it fails to allow free participation in the democratic institutions.

Legal Issue(s)

Candidate Registration
Judicial Independence

Applicable Law(s): Tanzania Const. 13(1); ICCPR art. 3, 25; UDHR art. 21(1).

Region: Africa

Country: Tanzania. United Republic of

Language of Decision

English

Court: Supreme Court

Election Type: Review of law

Date of decision: Jun 14, 2019

Geolocation

Latitude: -6.197854235905414

Longitude: 35.76019975940197

: Geolocation

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Tanganyika Law Society v. Tanzania.pdf
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French- Tanganyika Law Society v. Tanzania.pdf1.29 MB

Election Judgments - IFES

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Tanganyika Law Society v. Tanzania

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