A watershed moment for African human rights: Mtikila & Others v Tanzania at the African Court on Human and Peoples’ Rights

1 Introduction

The following is a summary and analysis of Mtikila & Others v Tanzania,1 a case heard before the African Court on Human and Peoples’ Rights (African Court) . The African Court rendered its judgment on 14 June 2013, with a further ruling on reparations on 13 June 2014.2 The case concerns three applicants: two Tanzanian non-governmental organisations (NGOs); the Tanganyika Law Society and Human Rights Centre; and Reverend Christopher R Mtikila.3 The applicants’ cases were broadly the same: that current Tanzanian election laws prohibiting independent candidates from running for public office were in breach of various articles of the African Charter on Human and Peoples’ Rights (African Charter), the International Covenant on Civil and Political Rights (ICCPR), the Universal Declaration of Human Rights (Universal Declaration) and the rule of law.4 The case is a watershed moment for African human rights as it is the first case in which an applicant successfully navigated through the African Court’s restrictive jurisdictional requirements relating to individuals and NGOs, thus allowing the African Court to consider for the first time a case on its merits. That the African Court found in favour of the applicants is also significant, as is the subsequent reparations ruling, another first for the African Court. The article will provide an in-depth analysis of the jurisdictional issues, the parties’ submissions and the African Court’s findings. The article, however, argues that, whilst the African Court’s ruling in Mtikila should be welcomed, it also raises a number of questions which will need to be answered in subsequent judgments with regard to jurisdiction and admissibility, as well as a warning of the potential hazards facing the African Court as it ventures into a new era of seeking compliance with its judgments by member states.

2 Background

In 1992, amendments to the Tanzanian Constitution required all candidates for presidential, parliamentary and local government

elections to be members of and sponsored by a political party.5 In 1993, Mtikila filed a case before the Tanzanian High Court challenging these amendments, arguing that the prohibition on independent candidates conflicted with the Tanzanian Constitution.6 On 24 October 1994, the Tanzanian High Court found in favour of Mtikila and declared the amendments unconstitutional.7 Prior to this judgment, on 16 October 1994 the Tanzanian government tabled a Bill in parliament seeking to prohibit independent candidates.8 On 2 December 1994 parliament passed the Bill, which in effect restored the position prior to the High Court’s judgment and continued the ban on independent candidates.9

In 2005, Mtikila brought another case before the Tanzanian High Court, again arguing that the ban on independent candidates was unconstitutional.10 Again, the Tanzanian High Court found in his favour and allowed independent candidates.11  In 2009 the Tanzanian Attorney-General appealed to the Tanzanian Court of Appeal.12 On 17 June 2010, the Tanzanian Court of Appeal reversed the High Court’s decision and once again prohibited independent candidates.13 In its decision, the Court of Appeal found that the issue of independent candidates was essentially political and, therefore, had to be resolved by parliament.14 Following this decision, parliament commenced with a consultation aimed at obtaining the view of Tanzanian citizens on the possible amendment to its Constitution.15 When the case came before the African Court, this consultation was ongoing and independent candidates remained prohibited. 16

3 Admissibility

The African Court first sought to establish the admissibility of the applicants’ case before considering jurisdiction, an approach which was not unanimously supported amongst the bench.17 Tanzania affirmed that it had ratified the African Charter and the Protocol on the Establishment of an African Court on Human and Peoples’ Rights (African Court Protocol) and, importantly for the case to proceed to be considered on its merits, that it had in addition signed the special declaration allowing individuals and NGOs to submit claims directly.18 However, Tanzania made two challenges to the admissibility of the case, namely, the applicants’ (i) failure to exhaust local remedies; and (ii) delay in filing applications.19

4 Jurisdiction

Having dispensed with Tanzania’s submissions regarding the admissibility of the applicants’ cases, the African Court proceeded to consider (i) Tanzania’s submissions on the temporal jurisdiction of the African Court;37 and (ii) proprio motu , other jurisdictional issues.

5 Merits

Having rejected Tanzania’s arguments both on admissibility and jurisdiction, and having satisfied itself proprio motu on its jurisdiction, the African Court proceeded, for the first time in its existence, to assess the merits of the applicants’ case.48

6 Separate opinions

Of the nine judges to sit on the case, Judges Ouguergouz, Ngoepe and Niyungeko attached separate opinions.114 In his separate opinion, Judge Ouguergouz stated that, whilst he was of the view that there had been a violation of articles 2, 3(2), 10 and 13(1) of the African Charter, the reasons given had not been articulated with sufficient clarity.115 He also argued that the African Court should have first dealt with the issue of jurisdiction before considering admissibility.116

With regard to jurisdiction, Judge Ouguergouz argued that the African Court must first satisfy itself as to its jurisdiction to hear an application even where parties have failed to raise it as an argument.117 In particular, he argued that the issue of jurisdiction must be considered at personal, material, temporal and geographical levels.118 As to personal jurisdiction, Judge Ouguergouz argued that the African Court properly considered that as Tanzania had signed the special declaration allowing individuals to bring cases and that the NGOs held observer status before the African Commission, it had personal jurisdiction.119 He argued that objections to material and temporal jurisdiction were implicitly raised by Tanzania.120 With regard to material jurisdiction, Judge Ouguergouz noted that Tanzania objected to Mtikila relying on the treaty establishing the East African Community, which was not in existence at the time Mtikila took his case to court in 1993.121 He argued that the African Court should, therefore, have determined whether the treaty establishing the East African Community was applicable.122 In this regard, he argued that it was for the African Court to determine which treaties and conventions should be considered ‘relevant human rights instruments’.123

With regard to temporal jurisdiction, Judge Ouguergouz argued that in dealing with Tanzania’s objections, the African Court should have made a clearer distinction between the obligations of Tanzania under the African Charter and its obligations under the African Court Protocol and ‘optional declaration’.124 He argued that the African Court should have made it clear that its jurisdiction was based solely on the Court Protocol and the optional declaration.125 He argued that the critical date in determining temporal jurisdiction was the date on which Tanzania deposited the special declaration under article 34(6) of the Protocol, not from the entry into force of either the African Charter or Protocol.126 He, therefore, contended that any alleged violations prior to 29 March 2010, when Tanzania deposited the special declaration, did not fall within the temporal jurisdiction of the African Court other than where the violations bear a ‘continuous character’.127 This approach would mean that applications against member states could only run from the date of signature of the special declaration and not from the date of ratification of the African Charter, as found by the majority. As discussed above, the approach adopted by the majority has the potential to result in applications dating back many years, before a member state signed the African Court Protocol or special declaration and may lead to a number of matters which would otherwise not fall within the jurisdiction of the African Court being within its jurisdiction. Certainly, the approach advocated by Judge Ouguergouz would limit applications to those alleging violations since ratification of the Court Protocol or special declaration but, importantly, could still encompass applications alleging violations that start prior to the member state signing the Protocol and/or special declaration which are continuous in nature and run after the ratification of the Protocol or special declaration.

Judge Ouguergouz also provided a brief comment on the admissibility of the applications of the two NGOs.128 In his opinion, the African Court should have considered the NGOs’ ‘interest to act’ and determined whether the NGOs had such an interest, thus allowing them to bring cases independently rather than on behalf of Mtikila.129 The standing of NGOs is likely to be an issue which occurs more often in the future. Whereas other African human rights institutions, such as the African Committee of Experts on the Rights and Welfare of the Child, have made it clear that NGOs themselves may bring cases against member states,130 so far the African Court has only entertained applications from individuals and NGOs. The Rules of the African Court and Court Protocol do not preclude an NGO from bringing a case on its own per se, but this issue will need to be addressed in future applications. Judge Ouguergouz’s suggested approach of considering an NGO’s ‘interest to act’ as a potential middle ground would at least ensure an NGO seeking to join an application has some nexus to the violation being alleged.

Judge Ouguergouz also considered the merits of the applications.131 He argued that the barring of independent candidates does not, in itself, amount to a violation of articles 10 and 13(1) of the African Charter as it can only be a violation if it is considered an unreasonable or illegitimate limitation to the exercise of the rights.132 He argued that the judgment would have benefited from being clearer that it is the test on whether the limitations are reasonable that was the key issue rather than the contravention of the articles themselves.133 He argued that, unlike articles 22 and 25 of the ICCPR, articles 10 and 13(1) of the African Charter do not provide ‘in a satisfactorily manner’ for the freedom of association and the right of citizens to freely participate in the government of his or her country.134 He submitted that the main weakness in the impugned African Charter articles is the ‘claw-back’ clauses they contain135 and that, therefore, these articles should be interpreted along the same lines as article 25 of the ICCPR which allows for ‘reasonable’ restrictions, for example the age of the person.136 He argued that article 27 of the African Charter may serve as a useful tool in assessing which limitations on the impugned articles could be considered reasonable as they suggest that the only limitations would be those required to ensure ‘respect for the right of others, collective security, morality and common interest’.137 Therefore, it lies with the respondent state to show that limitations meet this test.138 Judge Ouguergouz noted that Tanzania failed to provide such proof.139 In effect, Judge Ouguergouz left the door open for the use of claw-back provisions in certain circumstances where its use reaches the threshold allowing a member state’s legislation to ostensibly violate its citizens’ African Charter rights, but that it is for the member state to demonstrate that this in fact is the case.

He further argued that, having found that Tanzania had violated articles 10 and 13(1) of the African Charter, the African Court could only have found that there was a violation of articles 2 and 3(2) of the African Charter.140 He explained that the African Court should have started its reasoning by clearly indicating the distinction in scope between articles 2 and 3 of the African Charter,141 and that different treatment does not necessarily mean discrimination.142 Only after having discussed these premises should the African Court have dealt with the objective and reasonable nature of the limitations and rules that the aim of the difference is not legitimate in light of the African Charter.143

Judge Niyungeko’s separate opinion addressed two issues, namely, (i) the order of treatment of admissibility and jurisdiction; and (ii) the African Court’s grounds and reasoning in deciding whether it had ratione temporis jurisdiction.144 With regard to the order of considering the jurisdiction and admissibility of the application, Judge Niyungeko noted that this was the first time the African Court had considered the admissibility of the application before jurisdiction.145 Judge Niyungeko argued that the African Court’s failure to explain why it considered admissibility first might leave an impression of inconsistency and a lack of coherence.146 He also argued that the change in approach posed a problem of principle.147 In his opinion, the African Court is unable to consider the admissibility of the application before it has satisfied itself as to jurisdiction.148 He likened admissibility to a limb of the merits of the case and argued that there was little sense in a judge considering what he was requested to do without first determining whether he could do it.149 Pointing to Rule 39 of the Rules of the African Court, Judge Niyungeko argued that it was clear that jurisdiction should be dealt with first, and only hereafter should admissibility be considered.150 There certainly seems to be merit in Judge Niyungeko’s arguments, since a court or tribunal can have jurisdiction over a matter but not find the applicant admissible, but can never consider a case admissible if it does not have jurisdiction. To this end, it should be noted that in the more recent case of Zongo, the African Court elected to consider jurisdiction in a separate hearing before ultimately proceeding to consider the merits in a later hearing, giving some credence to the dissenting opinions filed in this case.151

As to ratione temporis jurisdiction, Judge Niyungeko viewed the finding that the continuing nature of the violation surmounted any temporal issues ‘in order’.152 He, however, argued that the African Court’s analysis on the prior ratification of the African Charter was ‘difficult to grasp’,153 as Tanzania’s arguments related to the date of entry into force of the African Court Protocol, whilst the African Court’s response was to invoke the date of entry into force of the African Charter.154 In his opinion, the African Court should have made it clear that, although Tanzania was bound by the African Charter, it lacked the temporal jurisdiction as long as the Court Protocol conferring jurisdiction on it was not yet operational.155 Judge Niyungeko described the African Court’s failure to consider the date of entry into force of the Court Protocol, which confers jurisdiction on the African Court, when assessing Tanzania’s submissions on temporal jurisdiction, as ‘simply inconceivable’.156 Again, as discussed above regarding Judge Ouguergouz, Judge Niyungeko‘s approach appears to have merit since the majority’s approach of the operational date being from ratification of the African Charter, which occurred many years earlier, widens the possible scope of application well beyond the date from which the member state ratified the Protocol creating the African Court.

Judge Ngoepe’s separate opinion also dealt with the issue of whether, when writing a judgment, the African Court should always deal first with admissibility and thereafter with jurisdiction or vice versa.157 He likened the argument to that of the chicken and the egg, and strongly advocated the need for flexibility.158 He further argued that this change of approach also raised a ‘problem of principle’, namely, whether it is possible for the African Court to consider the admissibility of the application before having satisfied itself that it has jurisdiction.159 He argued that the African Court could not consider admissibility first as jurisdiction is not ‘all-embracing’, and that, therefore, jurisdiction should be considered first.160 As discussed above, whilst flexibility is preferred, especially in the embryonic stages of the African Court, an application can be within the jurisdiction of the African Court but not be admissible, but it can never be admissible if not within the African Court’s jurisdiction.

7 Compensation, reparation and costs

Recalling article 27(1) of the African Court Protocol and Rule 63 of the Rules of the Court, which allow the African Court to make orders of compensation or reparation, the African Court noted that Mtikila had reserved his right to elaborate on his claim for compensation or reparation but had not done so.161 The African Court, therefore, did not make a finding on the issue, but called upon Mtikila, if he so wished, to exercise this right.162 As to the request by the NGOs that the African Court order Tanzania to pay their costs, the Court noted that Rule 30 of the Rules stated that ‘[u]nless otherwise decided by the Court, each party shall bear its own costs’. Taking into account all the circumstances of the case, the African Court was of the view that there was no reason to depart from the provisions of this Rule.163 The ruling that the NGOs should bear their own costs is disappointing and could be seen as setting a precedent whereby, even if successful, NGOs will not be able to recoup costs. This may lead to NGOs not wanting to incur financial costs with no prospect of recompense. In a scenario such as this case, it cannot be said that Tanzania would not be in a position to pay some or all of the costs of the NGOs. This may deter future applicants from bringing cases when they know that they are unlikely to recover the costs of the case. In the more recent case of Zongo, the African Court appears to follow the same approach in refusing to award costs to the NGO,164 although it should be noted that the African Court did grant a token sum for moral damages suffered by the NGO.165

On 13 June 2014, following written submissions by Mtikila and Tanzania, the African Court reconvened to consider the issue of compensation and costs, for the first time in the Court’s existence.

In his submissions, Mtikila argued that the ban on independent candidates required him to join different political parties and later to set up his own party.166 He submitted that the ban also led him to engage in litigation, including before the African Court.167 Mtikila’s claim for costs and expenses, therefore, included the cost of setting up his political party and participating in elections, and the cost of litigation at the domestic level and before the African Court.168 He claimed costs and expenses totalling Tsh 4 168 667 363 (approximately $2 500 000).169 He also claimed lawyers’ fees of $60 250 for litigation before the African Court.170

Mtikila also claimed moral damages occasioned by stress and moral harm exacerbated by incidents of police searches and loss of the opportunity to participate in the affairs of his country.171 His claim for moral damages amounted to Tsh 831 322 637 (approximately $500 000).172

In addition to his claim for damages, costs and expenses, Mtikila also requested the African Court to set a time line for Tanzania’s compliance with the African Court’s findings, requesting that Tanzania reports every three months on its compliance until the African Court is satisfied that its findings have been complied with.173

Tanzania disputed all Mtikila’s claims for reparations.174 It argued that the issue of African Charter violations did not arise since Mtikila had decided to divert to the system of independent candidature only after his party had been refused registration.175 It submitted that Mtikila’s party was refused registration because he had refused to comply with the legal requirements required by all political parties and, therefore, could not claim to have been prevented from participating in public affairs or forced to join a political party.176

In addition, Tanzania argued that since Mtikila had failed to claim for the moral damages in either his application or at the domestic level, therefore failing to exhaust local remedies, the claim should be dismissed.177 It also argued that Mtikila had exaggerated his claims for moral damages and the loss of opportunity to participate in public affairs.178 In support of this, Tanzania argued that Mtikila premised the loss of opportunity to participate in public affairs on ‘very varied and unpredictable political, social and economic factors’,179 and that Mtikila had participated voluntarily in the political processes.180 It further argued that the inclusion of Tsh 25 000 for the provisional registration of his party was disputed as Mtikila had to follow the procedure to register the party, and that, therefore, this loss should not be attributed to it since this was a legal requirement.181 Tanzania further argued that the current constitutional review process was sufficient reparation for the non-pecuniary damages.182

Tanzania further argued that Mtikila had also exaggerated costs and expenses.183 It contended that the costs of Mtikila’s independent presidential campaign should also be disallowed, since Tanzania did not allow independent candidates.184 Tanzania further argued that that the itemised expenses in Mtikila’s income and expenditure account were contrary to the Political Parties Act and Election Expenses Act and was ‘fabricated and exaggerated’.185 It contended that it should be given ample opportunity to challenge, verify and authenticate all the expenses claimed.186

Finally, Tanzania submitted that Mtikila’s claim for costs for domestic litigation was against the African Court’s order that each party shall bear its own costs.187 It noted that Mtikila had failed to detail the costs or to provide evidence.188 It argued that, since the domestic court had not awarded costs, the African Court could not do so as this would usurp the jurisdiction of the national courts.189 Tanzania also disputed Mtikila’s claim for costs of litigation before the African Court as his arrangement with counsel was pro bono and amounted to a ‘retrospective acquisition of funds from the Court’.190

Mtikila replied that the costs of setting up his political party and subsequent costs of running it resulted exclusively from Tanzania’s ban on independent candidates that had been found to be in violation of the African Charter.191 He argued that the litigation before the African Court was a natural consequence of the ban on independent candidates,192 and that the claim for stress and moral harm was a ‘matter of common sense’, especially since the requirement to start a political party and campaigns was a full-time work which prevented him from carrying out other full-time work, apart from his religious duties.193 He argued that it was for Tanzania to show proof of errors in any of his claims for damages.194

With regard to claims for lawyers’ fees for litigation in the African Court, Mtikila submitted that the expenses should be imputed to Tanzania as the African Court found it responsible for violating his African Charter rights, particularly since his claim for legal aid was denied.195 He argued that Tanzania’s response that independent candidacy remained banned highlighted the need for the African Court to draw up a ‘precise calendar’ to ensure that Tanzania complies with the African Court’s judgment.196

In its finding on reparations, the African Court clearly identified the need for reparation and compensation for both pecuniary and non-pecuniary damages for individuals, and approached the issue of reparations from the welcome precedent of recognising that reparations could be awarded where a violation of the applicant’s rights was found. The African Court specifically relied on the fundamental principle of international law that, where a violation of an ‘international obligation’ causes harm, there is an obligation to provide adequate reparation,197 which is reflected in article 27(1) of the African Court Protocol.198

As regards the pecuniary damages, the African Court started by assessing the African Commission’s jurisprudence that a member state that violates African Charter rights should take measures to ensure that victims are given effective remedies, including restitution and compensation.199 However, the African Court stated that, whilst the African Commission has recognised the rights of victims to compensation, it had not yet identified which factors states should take into account in their assessment of the compensation due,200 although it had stated that a member state should compensate a victim for the torture and trauma suffered in line with international standards, and should ensure that there is payment of a compensatory benefit.201 The African Court also looked to the Inter-American Court of Human Rights which has made findings on pecuniary damages.202 Whilst a logical starting point, it should be noted that the African Commission’s approach to compensation relates to the evaluation and assessment of damages to be paid by the member state itself. In the case of the African Court, it is the Court that awards damages and not the member state. Therefore, whilst of some interest, a direct comparison between the African Commission regime and the African Court is limited.

The African Court noted that Mtikila had submitted income and expenditure statements, but held that there were ‘no sufficient evidentiary elements presented to establish that these damages directly arose from the facts of this case’ and the violations of the African Charter.203 The African Court also noted that Mtikila had ‘insisted’ on presenting evidence at a hearing and had failed to present this evidence in written submissions204 or to produce any receipts to support his expense claims.205 The African Court, therefore, found that there was a lack of evidence to prove the ‘causal nexus’ between the facts of the case and the damages claimed by Mtikila, and rejected his claim of pecuniary damages.206

The African Court concluded by stating that it was not sufficient to show that a state had violated a provision of the African Charter, but that it was also necessary to prove the damages, and that, in principle, the existence of a violation of the African Charter was not per se sufficient to establish a material damage.207 Accordingly, the African Court set out in plain terms that, whilst it had the jurisdiction to award expenses and damages, these should be backed up by receipts and other evidence in order to be considered valid. As to the costs incurred by Mtikila in campaigning with his own political party, again, the African Court’s decision demonstrates that it is not enough to make claims, but a clear causal link between the claim and the violation must be established. In theory, the requirement that a person must be a member of a political party and, therefore, must bear the cost or expense of setting up such a party, is directly related to the violation. However, what is clear from the African Court’s decision is that an applicant must do more than simply point out expenses, but must also demonstrate a clear link, in the absence whereof it will not award expenses.

With regard to non-pecuniary damages, the African Court recalled that moral damages were not damages occasioning economic loss, but which cover suffering and afflictions caused to the victim, the emotional distress of family members and non-material changes in the living conditions of the victim and his family.208 The African Court again recalled the African Commission’s jurisprudence on compensation for torture and trauma suffered, and the Inter-American Court on Human Rights test that non-pecuniary damages ‘may include both the suffering and distress caused to the direct victims and their next of kin, and the impairment of values that are highly significant to them as well as changes of a non-pecuniary nature in the living conditions of the victims or their family’.209 It also considered the jurisprudence of the European Court of Human Rights on the awarding of non-pecuniary damages, noting that such damages could include damages for pain and suffering, anguish and distress and loss of opportunity, but observed that damages were awarded in some cases, whilst in others the European Court refused to speculate.210

The African Court found that in the present case, Mtikila had failed to produce evidence to support the claim that the damages claimed were directly caused by the facts of the case.211 Whilst refusing to speculate, the African Court also stated that the finding of violations of Mtikila’s African Charter rights and the orders contained in the judgment were just satisfaction for the non-pecuniary damages claimed.212 Whilst Mtikila had failed to convince the African Court to award non-pecuniary damages, this again may be seen as a welcome development in that it is recognised that non-pecuniary damages are within the remit of the African Court’s powers to award damages, an approach which laid the foundation for the awarding of non-pecuniary damages in the recent Zongo reparations judgment.

As to legal expenses, the African Court accepted that expenses and costs formed part of the concept of reparations.213 The African Court, however, found that Mtikila should have provided ‘probative documents’ and developed arguments relating to the evidence and, where financial claims were made, should have clearly described the items and the justification therefor.214 It stated that the applicant bore the burden of proof, and that in the present case Mtikila had failed to properly develop his claims.215

Accordingly, the African Court rejected Mtikila’s claims for pecuniary damages,216 found that there was sufficient reparation for non-pecuniary damages,217 dismissed the legal expense claims,218 and found that each party should bear its own costs.219 Whilst the African Court, therefore, dealt a blow to Mtikila himself due to a lack of evidence demonstrating a link between the alleged damages suffered or a failure to provide receipts and documentation, it was not a theoretical objection to the awarding of damages per se. This may, therefore, be seen as a positive step in the development of the award of damages at the African Court, as seen in Zongo, where the African Court took the foundations laid in Mtikila to proceed to award damages to the applicants - the first such award by the African Court.

With regard to compliance, the African Court noted Tanzania’s reply at the reparations stage where it maintained that the judgment was wrong, since the law in Tanzania prohibited independent candidates from running for election.220 The African Court expressed its ‘concern’ at this line of argument, compounded by Tanzania’s failure to report to the African Court on the measures it was taking to comply.221 The African Court, therefore, granted Mtikila’s request for compliance, but extended the time for reporting, ordering Tanzania to report within six months from the date of the ruling on the implementation of the judgment.222 Of course, such compliance can only occur where the member state in question acknowledges the validity of the judgment sought to be complied with. Perhaps of most concern in the reparations ruling is Tanzania’s apparent lack of understanding of the judgment itself. It is a disturbing development that, even having rendered the judgment, Tanzania still argued that it was wrong. This stance, clearly, is likely to weigh on the effectiveness of compliance in Tanzania, not only for this case but for future cases, and may have a bearing on how other member states facing judgments against them approach compliance.

The African Court, therefore, made a welcome initiative to proprio motu order ‘measures of satisfaction’.223 The African Court noted that, in light of its concerns over Tanzania’s apparent continued dispute over its findings and failure to report on implementation, Tanzania should within six months of the reparations decision (i) publish the official English translation translated into Kiswahili at its own expense and publish in both English and Kiswahili, once in the official gazette and once in a national newspaper;224 and (ii) publish the judgment it its entirety in English on an official website to remain available for one year.225 The African Court ordered that nine months from the ruling, Tanzania should submit to the African Court a report on the above measures.226 In this context, the African Court’s proprio motu move to impose measures of satisfaction are welcome, although it must be said that these measures are not particularly onerous, but Tanzania’s compliance would at least show some kind of recognition of the African Court’s powers by Tanzania. At the very least, these measures appear to demonstrate the African Court’s serious concerns over Tanzania’s apparent failure to acknowledge the judgment.

8 Conclusion

Despite some disappointment regarding the lack of consideration of international human rights instruments, the awarding of costs and the need for clarification on certain issues, such as its temporal jurisdiction, the African Court should be commended for having delivered its first judgment on the merits. The judgment provides several well-reasoned findings, including those on the exhaustion of local remedies, and dismissing Tanzania’s arguably-weak jurisdictional submissions, such as its ‘social needs’ arguments, which found little favour with the African Court, who required more to allow the claw-back provisions to override the violation of the applicant’s rights as set out in the African Charter, especially given the fact that Tanzania had failed to provide concrete examples of where these needs arose, as discussed above.

While wanting to avoid conjecture, it is worth considering whether such concrete examples provided by Tanzania as to the kind of civil unrest or political tension alluded to may have amounted to a more persuasive argument in favour of the ‘social need’ for the prohibition of independent candidates. As it stands, the case sets an important precedent and will require member states to work somewhat harder than simply relying on ‘justifiable restrictions’ based on ‘social needs’ when introducing legislation or amending constitutions that ostensibly violate citizens’ human rights.

Whilst the precedent set regarding claw-back provisions and the finding on violations themselves are encouraging, it is unfortunate that the African Court declined to discuss the potential violation of international treaties. As noted above, the African Court categorically states that international treaties, such as the ICCPR, are within its jurisdiction, which does at least solidify the jurisdictional position on international treaties. However, the African Court’s decision not to consider the merits of the applicant’s case is disappointing. The African Court appears to have adopted an ‘either/or’ approach. While the African Court found that Tanzania had violated the applicant’s African Charter rights, this should not mean that the applicant’s other rights under international treaties should be left unexamined. There may, of course, be practical reasons behind the African Court’s decision not to go into the merits of international treaties, but in deciding not to consider these in detail, one is left wondering what the analysis may have brought about, while missing the possibility of further discussion and jurisprudence to guide future applications. Perhaps disturbingly, this ‘either/or’ approach was again followed in Zongo.

As to the issue of costs, it is discouraging to see the African Court rejecting the claim for costs by the NGOs.

Nevertheless, the African Court’s clear position on its power to award damages should be welcomed. Unfortunately, without further information about Mtikila’s claims, it is difficult to assess how detailed his expenses were, but it serves as a useful reminder to both applicants and counsel that claims will only be entertained where detailed records of expenses, costs and damages are maintained and submitted.

The reparations judgment also revealed that, at best, Tanzania appeared to be attempting the re-litigate the African Court’s findings on the merits and, at worst, that it appeared to take the position that the judgment was wrong and that, therefore, it need not comply with it or entertain the subject of reparations. Either way, Tanzania appeared to have little interest in complying with the judgment. Bearing in mind Tanzania’s failures thus far, it remains to be seen whether they will comply with these new orders and publish the judgment in the press and online. Clearly, in view of Tanzania’s responses thus far, the issue of compliance should be of serious concern, and changes to Tanzania’s electoral laws appear a while away yet.

Looking forward, with this judgment the African Court now enters an era of enforcement and many questions arise, such as how the Tanzanian government will react. How will the African Court react to Tanzania’s reaction? Which other African countries have similar legislation? Will this decision require these states to also change their election laws? The reparations ruling does not paint a very bright picture of the dawn of this era of enforcement. However, in time all these questions will be answered. For now, Mtikila should be seen as a watershed moment and a progressive step by the African Court towards the protection of human rights in Africa.