Tanzanians slowly took the African Court on Human and Peoples’ Rights, based in Arusha, seriously. Low publicity about the court meant that many potential litigants knew very little about it, few tried to access it to seek justice for one grievance or another.
Since 2007, there it was, in the African diplomatic capital that Arusha had become, but it attracted little or no attention from Tanzanians who might want to use it to secure some right infringed by the government.
Though slow, interest built up. According to one source, the beginning of people flocking to the court started when a remand prisoner in a prison bus driving past the court buildings saw the sign: African Court On Peoples’ and Human Rights, which was that man’s voilà! moment.
He somehow saw his own redemption in the fact that the court was domiciled in Arusha, and immediately started inquiring how he could approach it to lodge complaints of being treated wrongly.
Eventually, the prisoner was heard, though I do not know what remedy he obtained.
As people got to know that the court was in Arusha and could be easily engaged, more people came forward to petition, coming from as far away as Cameroon and Burkina Faso. But, by far the greatest number of those who brought their cases before the court were from the host country, Tanzania.
This should not surprise anyone. If a continental tribunal is housed in any country, we should expect that residents of that country will be the first to knock on its door, because of proximity and ease of access.
But it is the very nature of African rulers to treat such developments as an attack on their dignity instead of seeing in them the indication that their people have awakened to their rights, and take that fact as salutary.
The court has a principle that states that, in order to allow individuals and non-governmental organisations (NGOs) to bring matters before it, the state must have signed a declaration for this to happen.
At the end of last year, the Government of Tanzania, which had made such a declaration giving its citizens the right to go to the court, decided to withdraw the declaration, meaning Tanzanians and NGOs would not be allowed to take their plaints to Arusha.
One would want to ask what prompted the government to take such a regressive step which further singles it out as some pariah nation, but explanations have been rather specious and unconvincing.
The court has a rule that says, roughly, that for a matter to be entertained by it, the applicant must have exhausted local remedies, that is to say that he/she must have gone through all the stages of litigation in the home country and found no satisfaction.
But the court has also taken the stance that in situations where undue delays and other obstacles render such exhaustion of local remedies improbable, then the court will entertain a matter even if it has not come to a conclusion in the country of origin. It seems it is this provision that has irked our rulers.
They would prefer a situation in which an individual or an NGO is barred from accessing the court before he/she (or it) has exhausted local remedies but at the same time the state uses subterfuge to make sure there is no way that individual or NGO will ever exhaust local remedies because of the delays occasioned by the state.
It is a classic case of having your cake and eating too: To go to the court you need to finish with the local remedies, but you cannot finish those local remedies because government won’t allow you to, and so you cannot go to the African Court.
It’s a Catch-22 situation which defeats logic but works to perfection. Except, that is, that the Tanzanian authorities are likely to look really bad. The court was set up after it was decided to seek ‘African solutions to African problems’.
Retired President Jakaya Kikwete lobbied hard to have the court set up in Tanzania, and won against a number of postulants. It is unbecoming for Tanzania to be seen as reneging on her earlier promise.
And also, when an African man invites his neighbours to a meal in his house, he does not serve them food that he himself will not eat. It would be impolite, even suspicious, off-putting for the guests.
Jenerali Ulimwengu is chairman of the board of the Raia Mwema newspaper and an advocate of the High Court in Dar es Salaam. E-mail: [email protected]