Tanzania has come under continental scrutiny for withdrawing from the African Court on Human and People’s Rights, which it hosts in Arusha.
In 2019, Tanzania became the second country in the EAC, after Rwanda, to withdraw the right of individuals and non-governmental organisations to directly access the African Court. Rwanda withdrew in 2016.
At the conference on the Implementation and Impact of Decisions of the African Court on Human and People’s Rights’ held last week in Dar es Salaam, participants observed that 15 years after the court was established, it is facing major challenges.
The court’s president Justice Imani Aboud, a Tanzanian, said that almost all its decisions are not enforced. Only six of the founding member states recognise its jurisdiction.
“This does not honour Africa, it does not honour member states of the African Union, it does not honour the African Court and Africans,” Justice Aboud said.
The Court was established in June 1998, with the protocol coming into force on January 25, 2004.
Of the 55 AU member states, 31 have ratified the protocol establishing the continental court. Of the 31, only six — Burkina Faso, Gambia, Ghana, Mali, Malawi and Tunisia — have deposited a declaration recognising the competence of the Court to receive cases directly from NGOs and individuals.
On November 14, 2019, Tanzania’s then Foreign Affairs minister Palamagamba Kabudi signed a notice of withdrawal, and deposited it with the African Union Commission on November 21, 2019. The withdrawal took effect on November 22, 2020. But, after the death of president John Magufuli in March, President Samia Suluhu’s administration declared that Tanzania had not exited.
Liberata Mulamula, the current Foreign Affairs minister, said that the country wanted its citizens to first exhaust the local court processes before proceeding to the African Court.
“We have not withdrawn from the court. That is why Tanzania is still the headquarters of the court. We cannot withdraw and still host the court’s headquarters,” she added.
Her sentiments were later echoed by Vice President Philip Mpango.
“Tanzania hasn’t withdrawn from the African Court. Instead, the country has withdrawn from the Declaration made under Article 34 (6) of the Protocol on the African Charter for the Establishment of the African Court on Human and Peoples’ Rights, which permits individuals and non-government organisations to directly access the court,” he told delegates.
Tanzania has the highest number of cases filed by individuals and NGOs, at 156 applications, as well as judgments issued against it by the African Court. Of the 70 decisions issued by the court by September 2019, 28 decisions, were on Tanzania.
This past week Tanzanian retired judge Fauz Twaib said Dodoma’s withdrawal from the court “undermines the authority and legitimacy of the African Court”. “This is particularly regrettable. It severely weakens the efforts that Africa has taken so far to establish the court and build it into a strong and credible regional human-rights court that the people of Africa, and Tanzania in particular, can resort to when seeking justice,” Mr Twaib said. “Tanzania has the privilege -- for the second time in the court's history – to have one of its own citizens at the helm of the court. It has a unique opportunity to be the leader when it comes to observance of human rights in Africa. As such, it should lead by example and seriously reconsider its decision.”
Tanzania’s deputy Solicitor-General Boniphance Luhende defended the country’s decision to withdraw.
“The withdrawal did not affect the pending cases. Tanzania remains allied to the spirit and mandate of the African Court,” said Mr Luhende.
He however poked holes in some of the Court’s decisions.
“There are no specified procedures providing for the enforcement of the judgements in Tanzania,” he said. “There are also some court orders that are unclear and ambiguous and hence cannot be implemented.”
“The concern of the state is, 'What message is this sending to the society? .
By the time Tanzania withdrew, several judgments had been made against it.
On November 28, 2019, the court delivered its judgment in the case of Ali Rajabu vs Tanzania, in which it found that the mandatory death sentence in Section 197 of the Tanzania Penal Code (murder) violated the African Charter of Human and People’s Rights, especially the right to life.
Rwanda was also criticised for its refusal to participate in the Paul Rusesabagina case, who has since been jailed for 25 years on terrorism charges.
Rwandan Justice Minister Johnston Busingye said the country withdrew from the Court because its powers were being abused by genocide convicts and fugitives and therefore the country could not participate in the proceedings.
Kenya, and other AU member states, were also put on the spot spotlight for failing to implement decisions of the court.
“Kenya is yet to implement the decision of the court on the Ogieks vs Kenya case. The court ordered that the Ogieks be compensated but this is yet to happen,” said Robert Eno, the Court's registrar.
In response, Claris Kariuki-Mwirigi, senior state counsel in the Office of the Attorney-General, said the government appointed a task force to review the matter whose findings are yet to be implemented.
Resettling the Ogiek in the Mau forest is a challenge due to a legal provisions that prohibit people from being settled in protected areas.
Participants insisted that the Court's decisions be implemented.
“The fact that only seven percent of the decisions so far delivered by the African Court have been enforced is alarming as it betrays the aim pursued by member states of the African Union while establishing the Court,” said Justice Aboud. “It is so because states envisaged the Court as an essential link in the achievement of the continental integration project contemplated by the founding fathers of the African Union.”
“Under Article 28(2) of the Protocol, judgments of the court are final and not subject to appeal. Since the judgments of the court are final, once the Court pronounces itself in a particular case, there is an automatic obligation on the part of the State concerned to comply with the decision,” said Justice Bernard Kioko of Kenya. “As is the case with all supranational tribunals, compliance with the decisions of the court, ultimately depends on the State's willingness to observe its treaty obligations. Under the Law of Treaties, every state voluntarily undertakes to comply with all the obligations inherent in treaties to which it is a party.
"One would expect therefore that state parties to the Protocol would require no further nudging in order to implement decisions of the court since this should be a necessary corollary to them being parties to the Protocol."
- The African Court is the judicial arm of the African Union and was established under Article 1 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights.
- It entered into force on January 25, 2004, after it was ratified by more than 15 countries.
- Under the Protocol, the court comprises 11 judges elected by the African Union from “among jurists of high moral character and of recognised practical, judicial or academic competence and experience in the field of human and peoples’ rights”.
- The court’s overall mission is to strengthen human rights protection systems in Africa.