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AFRICAN COURT LAW REPORT VOLUME 1 (2006-2016)
is yet to convene and deliberate on the matter. It further argues that
there has been a significant development with the process of reviewing
the Constitution of the United Republic of Tanzania. To this end, a
commission has been set up, and mandated, to be in charge of the
reviewing process. The Respondent argues that, since the commission
is to collect the views of the public, the 2nd Applicant will have an
opportunity to give his views on the issue of independent candidacy.
There shall also be a Constituent Assembly which will deliberate on the
provisions of the new Constitution. The Respondent therefore argues
that the matter has been left to the people of Tanzania.
80.2 Unreasonable delay in filing the Applications
The second preliminary objection raised by Respondent on
admissibility is based on Article 56(6) of the Charter, which requires that
Applications be “... submitted within a reasonable period from the time
local remedies are exhausted or from the date the [Court] is seized with
the matter”. The Respondent contends that the Applicants took
unreasonably too long to bring their Applications. It argues that
whereas the Court of Appeal handed down its judgment on 17 June
2010, it was not until 2 June 2011 and 10 June 2011 that the 1st
Applicants and 2nd Applicant, respectively, filed their Applications.
80.3 Lack of jurisdiction
The other preliminary objection raised by the Respondent relates to the
issue of jurisdiction. Respondent argues that at the time of the alleged
violation of the rights in question, the Protocol had not yet come into
operation. The Court therefore has no jurisdiction to hear the matter.
E.
The Applicants’
objections
response
to
the
preliminary
81. The Applicants responded to the above preliminary objections
raised by the Respondent.
81.1 Alleged lack of exhaustion of local remedies
The Applicants contend that the constitution review process and
Parliament do not constitute a viable local remedy required to be
exhausted in terms of Article 6(2) of the Protocol, read together with
Article 56(5) of the Charter. According to the Applicants, what
constitutes a viable remedy which must first be exhausted is a judicial
remedy.
81.2 Alleged unreasonable delay in filing the Applications
Regarding the objection that the Applicants took unreasonably long to
bring their Applications:
The Applicants contend that there has not been any undue delay. Firstly,
within four months of the judgment, there were general elections, and
functionaries were preoccupied with those elections. Secondly, the
Applicants say that they had to wait for Parliament to deal with the matter
in the wake of the judgment of the Court of Appeal. They contend that the
lapsed time must be reckoned from the time Parliament failed to act.
81.3 Alleged lack of jurisdiction