Applications No 009&011 – Tanganyika Law Society and The Legal and Human Rights Centre and Reverend Christopher Mtikila V. The United Republic of Tanzania

CASE NOTE
REVEREND CHRISTOPHER R. MTIKILA V THE UNITED REPUBLUC OF TANZANIA
APPLICATION  NO. 011/2011
A. THE PARTIES
1. The Applicant, Reverend Christopher R. Mtikila, is a citizen of the United
Republic of Tanzania. He is represented by Counsels, Setondji Adjovi, Mary R.
Birdi, Deogratias M. Njau and Megan R. Thompson, all of  Etudes Vihode of
Benin,  Charles Adeogun-Phillips of Charles Anthony LLP (Nigeria) and Francis
Dako of Cabinet Francis Dako, Benin.
2. The Respondent is the United Republic of Tanzania and is a State Party to the
African Charter on Human and Peoples’ Rights (African Charter) having ratified it
on 18 February 1984 and in respect of which it entered into force on 21 October
1986. The Respondent is a State Party to the Protocol to the African Charter on
Human and Peoples’ Rights on the Establishment of an African Court on Human
and Peoples’ Rights (Protocol Establishing the Court)  which it ratified on 6
February 2006. The applicant alleges that the Respondent  has  deposited the
Declaration required under Article 34(6) of the Protocol Establishing the Court
allowing individuals and NGOs with Observer Status before the Commission to
directly access the Court. Further, the Respondent is also a State Party to the
International Covenant on Civil and Political Rights (ICCPR) since 11 June 1976.
3. The Respondent is represented by:
1. Mr. George M. Masaju, Deputy Attorney General
Attorney General’s Chambers
Dar es Salaam
2. Mr. Mathew Mwaimu, Director of Constitutional Affairs and Human Rights
Attorney General’s Chambers
Dar es Salaam
3. Mrs. Irene Kasyanju-Assistant Director and Head of Legal Affairs Unit
Ministry of Foreign Affairs and International Cooperation
Dar es SalaamPage 2 of 6
4. Ms. Sarah Mwaipopo, Senior State Attorney
Attorney General’s Chambers
Dar es Salaam
5. Mrs. Alesia Mbuya, Senior State Attorney
Attorney General’s Chambers
Dar es Salaam
6. Mr. Benedict Msuya Second Secretary/Legal Officer
Ministry of Foreign Affairs and International Cooperation
Dar es Salaam


B. CIRCUMSTANCES OF THE APPLICATION  AS ALLEGED BY THE
APPLICANT
4. In 1992 the Parliament of the United Republic of Tanzania, which at the time was
exclusively composed of the Chama Cha Mapinduzi (CCM) representatives
passed the Eighth Constitutional Amendment Act which required any candidate
to Presidential, Parliamentary and Local Government elections in Tanzania to be
sponsored by or to be a registered member of a political party.
5. Following the denial of registration of a political party by the Registrar of Political
Parties, in 1993, the Applicant filed a suit against the Respondent Government
before the High Court at Dodoma challenging the constitutionality of the Eighth
Constitutional Amendment Act of 1992. On 27 October 1994, the High Court
found that the Eighth Constitutional Amendment conflicted with the Constitution
and was null and void. This was  Civil Case No. 5 of 1993, Rev. Christopher
Mtikila (Plaintiff) versus The Attorney General (Defendant), Ruling of 27 October
1994.
6. However, before the Ruling was made, the Government had submitted a
proposal to Parliament to reinforce the prohibition of independent candidates.
Following the ruling, the Attorney General filed a notice of appeal which was
subsequently  abandoned. On 17 January 1995, the Eleventh Constitutional
Amendment Act which reinforced this prohibition on independent candidates,
became law. Page 3 of 6
7. The Applicant filed a similar suit at the High Court at Dar es Salaam challenging
the prohibition of independent candidates and the Eleventh Constitutional
Amendment. On 6 May 2007, the Court again found in his favour. (In the High
Court of Tanzania at Dar es Salaam, Miscellaneous Civil Cause No. 10 of 2005
Christopher Mtikila (Petitioner) versus The Attorney General (Respondent),
Judgment, 5 May 2006.)
8. The Attorney General challenged this Judgment and the Court of Appeal decided
that the matter be settled by Parliament and that the Eleventh Constitutional
Amendment made the issue moot. (The Court of Appeal of Tanzania at Dar es
Salaam, Civil Appeal No. 45 of 2009 between the Honourable Attorney General
(Appellant) and Reverend Christopher Mtikila (Respondent) (Appeal from the
Judgment of the High Court of Tanzania at Dar es Salaam dated the 5
th
day of
May 2006 in Misc. Civil Cause No. 10 of 2005), Judgment of the Court, 17 June
2010.  The decision of the Court of Appeal rescinded the decisions of the High
Court at Dodoma and Dar es Salaam.
9. Having exhausted local remedies in Tanzania and there being no application
pending before any international organ, the Applicant makes this Application.
C. COMPLAINTS
10. The Applicant submits that current Tanzanian law violates  and continues to
violate his right to freedom of association and to participate in public/government
affairs by prohibiting independent candidates to contest Presidential,
Parliamentary and Local Government elections and that this prohibition violates
the principle of non-discrimination.  The Applicant also contends that the
Tanzanian Government has violated the rule of law by initiating a Constitutional
review and subsequent amendment to settle an issue pending before the Courts
of Tanzania.
11. The Applicant relies on Articles 2, 10,  13(1) of the African Charter, Articles 22,
25, 26 of ICCPR and Articles1, 7, 20 and 21(1) of the Universal Declaration of
Human Rights.
D. APPLICANT’S PRAYERSPage 4 of 6
12. The Applicant seeks:
1. A Declaratory Judgment that the Respondent is in violation of Articles 2, 10 and
13(1) of the African Charter and Articles 22, 25 and 26 of ICCPR
2. Compensation for the continuous violation of his rights which have resulted in
costly and lengthy judicial proceedings
3. Reparation
E. RESPONDENT’S PLEADINGS
13. The Respondent raises preliminary objections  that it contends make the
application inadmissible and addresses the merits.
14. There are five preliminary objections as follows:
1. The Applicant has not exhausted local remedies as the Parliament of the United
Republic of  Tanzania is empowered to legislate to allow for independent
candidates.
2. The Application is time barred for being filed over a year since on 17 June 2009,
the Court of Appeal of the United Republic of Tanzania delivered its judgement in
Attorney General versus Reverend Christopher Mtikila, Civil Appeal Number 45
of 2009.
3. The Application contains extraneous matters by citing the Treaty for the
Establishment of the East African Community.
4. The Application relies on the Treaty for the Establishment of the East African
Community which was not in existence at the time when the Applicant filed the
case against the Government of Tanzania in 1993.
5. The Application is retrospective to the Protocol to the African Charter  since the
Constitutional Amendments barring independent candidates for election to public
office were made prior to Tanzania becoming a State Party to the Court’s
Protocol and depositing the Article 34(6) declaration.
15. On the merits, the Respondent submits as follows:
1. That the  Government  has not violated the Applicant’s right to participate in
Public/Government Affairs contrary to the African Charter and ICCPR as these
instruments are not directly applicable in Tanzania,  that the prohibition of Page 5 of 6
independent candidates for election to Presidential, Parliamentary or Local
Government is permissible based on the social needs of Tanzania and in any event,
the Applicant has participated in Presidential elections in 2005 but lost, therefore he
has not been prevented from exercising this right. The Applicant Chairs a political
party; Democratic Party.
2. That the Government has not violated the Applicant’s right to freedom of association
since he has freely founded and chairs Democratic Party and that the requirement
for one to be a member of and sponsored by a political party to be an elected public
official is a reasonable limitation in the exercise of this right.
3. Refutes the allegation that the requirement for the Applicant to be a member of and
sponsored by a political party before he can seek public elective office is not
discriminatory on the applicant as it applies to all Tanzanians.
4. That the  Government has  not violated the rule of law by initiative a constitutional
review and subsequent amendment while a case on the same subject matter was
pending before the Courts in Tanzania as this was in line with the doctrine of
separation of powers wherein Parliament could pass the Constitutional amendment
while the Judiciary adjudicated on the matter as both are empowered to so act.
16. From the foregoing, the Respondent asks that the application be declared
inadmissible and that the Applicant bears its costs.
F. PROCEDURE/CASE MANAGEMENT
17.The Application dated 10 June 2011 was filed at the Registry on the same date.
By letter dated 20 June 2011 to the Applicant’s Counsel, Registry acknowledged
receipt of the Application, advised Counsel of the Application’s Registration
Number and that service on the Respondent will be effected. At its 21
st
Ordinary
Session of 6-17 June 2011, the Court directed Registry to serve the Application
on the Respondent.
18. Pursuant to Rule 35(2)(a), the Application was served on the Respondent by
Note Verbale dated  17 June  2011 to the Ministry of Foreign Affairs and
International Cooperation. By this Note Verbale, the Respondent was advised of,
the registration of the Application, and, pursuant to Rule 35(4)(a), of the
requirement that it communicates the names and addresses of its
representatives within thirty (30) days and pursuant to Rule 37 respond to the Page 6 of 6
application within sixty (60) days. The Rules of Court were attached to the Note.
This Note was copied to the Applicant’s Counsel. The Respondent received this
Note Verbale and attachments on 23 June 2011.
19. Pursuant to Rule 35(3), by a letter dated 18 July 28 March 2011, the Application
was notified to the Chairperson of the African Union Commission (AUC) as
representative of the AUC and through him, notified to the Executive Council of
the AU and State Parties to the Protocol Establishing the Court.  The AUC
received this letter on 27 June 2011.
20.By Note Verbale dated 27 July 2011 and received at the Registry on the same
date, the Respondent communicated the names and addresses of its
representatives. By Note verbale dated 23 August 2011 which was received at
the Registry on 24 August 2011, the Respondent filed its pleadings. The Registry
acknowledged receipt of the pleadings vide Note Verbale dated 25 August 2011.
These pleadings were served on the Applicant’s counsel on 25 August 2011. The
Applicant’s counsel was advised that should they wish to file a response to the
Respondent’s pleadings, they should do so within thirty (30) days of receipt of the
Respondent’s pleadings.
G. PROPOSAL ON THE PROCEDURE TO BE APPLIED FURTHER
21. Rule 54 pursuant to which ‘The Court may at any stage of the pleadings either on
its own volition or in response to an application by any of the parties, order the
joinder of interrelated cases and pleadings where it deems appropriate both in
fact and in law.’ should be effected in relation to this Application and Reverend
Christopher R. Mtikila v the United Republic of Tanzania Application No.
011/2011 as both applications arise from the same cause of action and has
similar pleadings. It is proposed that the Court issue an order for Joinder of the
two Applications and notify the parties accordingly.

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