Mch.Christopher Mtikila akiwa kwenye kesi yake kwenye mahakama ya Afrika ya haki za binadamu jijini Arusha wakati wa hukumu ya kesi hiyo alioshinda ya kudai mgombea binafsi dhidi ya serikali ya jamhuri ya muungano wa Tanzania
Jopo la Majaji wa Mahakama ya Haki za Binadamu jijini Arusha wakati wa kutoa hukumu ya kesi ya Mch. Christopher Mtikila dhidi ya Serikali ya Jamhuri ya Muungano wa Tanzania.
On Friday, 14 June 2013, the African Court on Human and Peoples’ Rights ruled in favor of Reverend Christopher Mtikila against the United Republic of Tanzania, in the matter of Tanganyika Law Society and The Legal and Human Rights Centre and Reverend Christopher Mtikila v. The United Republic of Tanzania.
The case concerned violation of basic political and civil rights, in particular Articles 2, 10 and 13 (1) of the African Charter on Human and Peoples’ Rights, Articles 3, 22, 25 and 26 of the International Covenant on Civil and Political Rights and Articles 1, 7, 20 and 21 (1) of the Universal Declaration of Human Rights.
In fact, , the Applicants alleged that the Government of the United Republic of Tanzania had violated the democratic principles and the political rights of its citizens by enacting the Eighth Constitutional Amendment of 1992 and the Eleventh Constitutional Amendment Act No 34 of 1994 which prohibit independent candidates from standing for or contesting the Presidential, Parliamentary and Local Government elections, since the current Constitution provided that a candidate had to be a member of and or be sponsored by a political party.
In its defense, the Respondent, the Government of Tanzania argued that the prohibition of independent candidates was a way of avoiding absolute and uncontrolled liberty, which would lead to anarchy and disorder; that the prohibition was necessary for good governance and unity. It sustained that the prohibition on independent candidates for positions of government leadership was necessary for national security, defense, public order, public peace and morality or to avoid tribalism.
After examining both parties’ submissions, the Court found that there is nothing in the Respondent’s arguments to show that there are reasons for restrictions on the exercise of the right to participate freely in the government of the country. In any event, the restriction on the exercise of the right through the prohibition on independent candidacy is not proportionate to the alleged aim of fostering national unity and solidarity. The Court therefore found a violation of the right to participate freely in the government of one’s country since for a Tanzanian individual to participate in Presidential, Parliamentary or Local Government elections in Tanzania, one must belong to a political party. Tanzanians are thus prevented from freely participating in the government of their Country directly or through freely chosen representatives.
The Court by majority ruled that the Government of the United Republic of Tanzania has violated Articles 2, 3, 10 and 13(1) of the Charter. Therefore, the Court directed the United Republic of Tanzania to take constitutional, legislative and all other necessary measures within a reasonable time to remedy the violations found by the Court and to inform the Court of the measures taken.
With regards to compensation, the Court granted, in accordance with Rule 63 of the Rules of Court, leave to Reverend Christopher Mtikila to file submissions on his request for reparations within thirty (30) days hereof and the Respondent to reply thereto within thirty (30) days of the receipt of the 2nd Applicant’s submissions.
The dispute between Reverend Christopher Mtikila and the Tanzanian Government started in the early 1990s. In fact, in 1992, the National Assembly of the United Republic of Tanzania 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.
In 1993, Reverend Christopher Mtikila, filed a Constitutional Case in the High Court of the United Republic of Tanzania. He contended in the High Court, that the amendment conflicted with the Constitution of the United Republic of Tanzania and was therefore null and void. On 24 October 1994, the High Court delivered its judgment in Civil Case No.5 of 1993 in favor of Mtikila, declaring as unconstitutional the amendment which sought to bar independent candidates from contesting Presidential, Parliamentary and Local Government elections. In the meantime, the Government had on 16 October 1994, tabled a Bill in Parliament (Eleventh Constitutional Amendment Act No. 34 of 1994) seeking to nullify the right of independent candidates to contest Presidential, Parliamentary and Local Government Elections. 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. Thus, the High Court’s judgment in Civil Case No.5 of 1993 was negated.
In 2005, Reverend Christopher Mtikila instituted another case in the High Court, 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 favor, 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.
In 2009, the Attorney General appealed to the Court of Appeal of the United Republic of Tanzania 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. Upon exhausting all local remedies, Reverend Christopher Mtikila decided to seize the African Court on 2 June 2011.
The Applicants were represented by a team of lawyers, including Setondji Adjovi (from Benin), Charles Adeogun-Phillips, Counsel (from Nigeria), and Advocates James Jesse, and Don Deya (from Tanzania). The Respondent was represented by Ms. Sarah Mwaipopo, Principal State Attorney, Mrs. Alesia Mbuya, Principal State Attorney, and Miss Nkasori Sarakikya, Principal State Attorney, from the Attorney General’s Chambers, and Mr Benedict T. Msuya, Second Secretary/Legal Officer, Ministry of Foreign Affairs and International Cooperation.
The public hearing was attended by different members of the public including representatives of the Pan African Lawyers’ Union (PALU), African legal scholars, Law practitioners, human rights activists and the press.
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