African Court Strikes out Deceased Applicant in Suit Challenging Tanzania Election

Tobi Soniyi

African Court on Human and Peoples’ Rights has struck out Mr Seif Sharif Hamad from the suit challenging the return of Chama Cha Mapinduzi (CCM) party as winner of the Tanzania presidential election
held on 28 October 2020.

The court removed Hamad following an application by lawyers informing the court of his demise.
Hamad and his political party, Alliance for Change and Transparency Wazalendo (ACT Wazalendo) have dragged the government of Tanzania to the court claiming that their right to participate in the election was deliberately restricted by the government using state’s institutions to frustrate them.

John Magufuli who was re-elected president on the platform of Chama Cha Mapinduzi (CCM) party also died on 17th March 2021.

Hamad has now been replaced by the General Secretary of the party, Mr. Ado Shaibu who initially was named as second applicant. He became the 1st applicant while while Mr Ezekiah Dibogo Wenje, a contestant for the position of Member of Parliament in Rorya Constituency, Mara Region, Tanzania has now become the second applicant.

The suit was filed on behalf of the Tanzanian opposition by a Nigerian human rights activist and former chairman of the Governing Council of the National Human Rights Commission, Prof. Chidi Odinkalu and Mr Ibrahima Kane another seasoned lawyer and human right defender, from Senegal.
The court sits in Arusha, Tanzania. Among the court’s judges is a Nigerian, Mrs Stella Anukam.

A candidate for the House of Representative in the Kwahani Constituency in Zanzibar, Omar Mussa Makame who was named the 4th applicant has now become the third. Other registered voters also joined as applicants.

The applicants argued that both the National Electoral Commission and the Zanzibar Electoral Commission (ZEC), which organized and supervised the conduct of the elections in Tanzania Mainland and Zanzibar, were compromised.
They said: “That preceding, during and immediately after the elections, the Respondent through its agents namely NEC, ZEC, the Tanzania Police Force, Tanzania Intelligence and Security Service, Tanzania Peoples Defence Force and Tanzania Communications and Regulatory Authority, The Ministry of Information, Culture, Arts and Sports, The Tanzania Broadcasting Corporation, the Zanzibar Broadcasting Corporation, the Ministry for Regional Administration and Local Government, the Ministry for Regional Administration, Local Government and Special Forces engaged in multiple acts that violated the rights of the applicants to participate in the elections as citizens of the Respondent.”

They alleged that all the institutions mentioned above worked for the ruling
Chama Cha Mapinduzi (CCM) party, to the detriment of other political parties.

Among other infractions, the applicants said that they were molested while their agents were denied access to polling stations and that security agencies refused to investigate the allegations even when reported to them.
They said: “That with respect to the Tanzania Police Force, Tanzania Intelligence and Security Service, Tanzania Peoples Defence Force, the following violations took place;
a. Blatant and egregious discrimination against the Applicants and their
respective political parties, and in favour of the incumbent CCM party,
its candidates and its officials;
b. Violence and torture against citizens, voters and candidates including
and specifically women candidates in the presidential, parliamentary and local government elections, before, during and after the Voting Day and announcement of results;
c. Unlawful and arbitrary intimidation, threats, arrest and detention of citizens; of supporters of the Applicants, and the Applicants themselves;
d. Unlawful and excessive use of force leading to injury and death numerous voters;
e. Arbitrary and unlawful denial of the right to peaceful protest to the Applicants;
f. Malicious prosecution of citizens; of supporters of the Applicants and of the Applicants themselves;
g. Denial of access to legal representation;
h. By all of the above, the Tanzania Police Force knowingly and intentionally created an environment that was unsafe for the exercise of the right to vote and participation.”

They also said that the government manipulated the Ministry of Information, Culture, Arts and Sports, the Tanzania Communications and Regulatory Authority (TCRA), Tanzania Broadcasting Corporation (TBC) and Zanzibar Broadcasting Corporation (ZBC), to violate their rights.
The applicants said that they had no choice but to apply to the court because Tanzania’s constitution did not provide them with a remedy.

According to them, there is no local remedy available to them as the Respondent State’s Constitution expressly precludes them from lodging any complaint within the Courts of the Respondent.

They cited 19. Article 41(7) of the Constitution of the United Republic of Tanzania provides that: “When a candidate is declared by the Electoral Commission to have been duly elected in accordance with this Article, then no court of law shall have any jurisdiction to inquire into the election of that candidate.”
Article 74(12) of the Constitution of the United Republic of Tanzania also provides that: “No court shall have power to inquire into anything done by the Electoral Commission in the discharge of its functions in accordance with the provisions of this Constitution.”
Article 119(13) of the Constitution of Zanzibar provides that: –
“No court shall have jurisdiction to enquire into anything done by the Zanzibar Electoral Commission in the performance of its functions in accordance with the provisions of this Constitution.”

They further said that courts in Tanzania lacked any powers to nullify constitutional provisions as Article 41(7) of the constitution has ousted the jurisdiction of courts to assume jurisdiction over or offer remedies in respect of any violations connected with the election of the President.

Among other reliefs, the applicants are asking the African Court to declare that Tanzania violated the African Charter on Human and Peoples’ Rights, especially Articles 1, 2, 3(1)-(2), 7(1), 13(1)-(2), Articles 2(3)(a)-(c), 3 and 25(a)-(c) of the International Covenant on Civil and Political Rights and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), especially Articles 2(1)(a)-(b) and 9(1)(a)-(b).

They asked the court to direct Tanzania to investigate and bring to account all persons found to be responsible for the violations of the rights of their rights.
They also sought an order requiring Tanzania to adopt constitutional, legislative, administrative and other measures to remedy the violations of their rights in addition to paying reparations.