TLS and Others v Tanzania (merits) (2013) 1 AfCLR 34
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those grounds of justification cannot lend legitimacy to the restrictions
introduced by the same constitutional amendments to the right to
participate in the Government of one’s country, and the right not to be
compelled to be part of an association (supra, paragraphs 107 – 11 and
paragraphs 114 -115). It is the view of the Court that the same grounds
of justification do not legitimise the restrictions to not be discriminated
against and the right to equality before the law. The Court therefore
concludes that there has been violation of Articles 2 and 3(2) of the
Charter.
E.
Alleged breach of the rule of law
120. The 2nd Applicant argues that by initiating a Constitutional
amendment to settle a legal dispute that was pending before the
Courts, the effect of which was to nullify the judicial settlement of the
matter, the Respondent abused the distinctive process of constitutional
amendment and therefore the principle of the rule of law. The 2nd
Applicant contended that the rule of law is a principle of customary
international law.
The Respondent submitted that the Government of Tanzania fully
adheres to principles of the rule of law, separation of powers and
independence of the judiciary as provided for under the Constitution of
the United Republic of Tanzania. In response to the 2nd Applicant’s
argument that the 11th constitutional amendment was in violation of the
rule of law; Respondent argued that constitutional review and
amendment is not a new phenomenon in Tanzania and that the
Constitution of the United Republic of Tanzania has so far undergone
fourteen (14) constitutional amendments. Article 98(1) of the
Constitution provides that the Constitution can be amended at any time
when the need arises and this is what happened in 1994; therefore, the
issue of the rule of law being violated does not arise at all.
121. The Court is of the view that the concept of the rule of law is an allencompassing principle under which human rights fall and so cannot be
treated in abstract or wholesale. Furthermore, the Applicants’ claim that
the rule of law has been violated is not related to a specific right;
therefore, the Court finds that the issue of the violation of the principle
of the rule of law does not properly arise in this case.
F.
Alleged violations of the International Covenant on
Civil and Political Rights and the Universal Declaration of
Human Rights
122. The Court notes that it has jurisdiction to interpret the said Treaties
vide Article 3(1) of the Protocol which provides that:
“the jurisdiction of the Court shall extend to all cases and disputes
submitted to it concerning the interpretation and Application of the Charter,
this Protocol and any other relevant Human Rights instrument ratified by
the States concerned”.
123. The Court having considered the alleged violations under the
relevant provisions of the Charter, does not, however, deem it
necessary in this case to consider the Application of these treaties.