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TLS and Others v Tanzania (merits) (2013) 1 AfCLR 34 • • • • 41 Mrs Alesia Mbuya, Principal State Attorney, Attorney General’s Chambers; Ms Nkasori Sarakikya, Principal State Attorney, Attorney General’s Chambers; Mr Edson Mweyunge, Senior State Attorney, Attorney General’s Chambers; and Mr Benedict T. Msuya, Second Secretary/Legal Officer, Ministry of Foreign Affairs and International Cooperation. 63. At the hearing, questions were also put by Members of the Court to the Parties; the replies were given orally. 64. By separate letters dated 31 July 2012, the Registrar forwarded to the Parties copies of the verbatim record of the public hearings and informed them that their comments on the same, if any, had to be sent within thirty (30) days. 65. By a Note Verbale dated 31 August 2012 and received at the Registry by electronic mail of the same date and in hard copy on 3 September 2012, the Respondent transmitted to the Registrar its comments on the verbatim record of the public hearings; however, no comments were received from the Applicants. A. Historical and factual background to the Applications 66. The Court briefly sets out below the historical and factual background to the two Applications. 67. In 1992, the National Assembly of the United Republic of Tanzania (“the Tanzanian National Assembly”) passed the Eighth Constitutional Amendment Act, which entered into force in the same year. It required that any candidate for Presidential, Parliamentary and Local Government elections had to be a member of, and be sponsored by, a political party. 68. In 1993, Reverend Christopher R. Mtikila, the 2nd Applicant, filed a Constitutional Case in the High Court of the United Republic of Tanzania (“the High Court”) in Rev Christopher Mtikila v The Attorney General, Civil Case No.5 of 1993 (“Civil Case No 5 of 1993”), challenging the amendment to Articles 39, 67 and 77 of the Constitution of the United Republic of Tanzania and to Section 39 of the Local Authorities (Elections) Act 1979 (as later amended by the Local Authorities (Elections) Act No 7 of 2002) through the Eighth Constitutional Amendment Act referred to above. The 2nd Applicant contended in the High Court, that the amendment conflicted with the Constitution of the United Republic of Tanzania and was therefore null and void. 69. On 24 October 1994, the High Court delivered its judgment in Civil Case No5 of 1993 in favour of the 2nd Applicant, declaring as unconstitutional the amendment which sought to bar independent candidates from contesting Presidential, Parliamentary and Local Government elections. 70. In the meantime, the Government had on 16 October 1994, tabled a Bill in Parliament (Eleventh Constitutional Amendment Act No 34 of

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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

Primary Documents

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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