JEBRA
KAMBOLE V.UNITED REPUBLIC OF TANZANIA
KAMBOLE V.UNITED REPUBLIC OF TANZANIA
APPLICATION
NO. 018/2018
NO. 018/2018
JUDGMENT
ON MERITS AND REPARATIONS
ON MERITS AND REPARATIONS
15
JULY 2020
JULY 2020
A
DECISION OF THE AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS
DECISION OF THE AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS
Date
of Press Release: 15 July 2020.
of Press Release: 15 July 2020.
Arusha, 15 July 2020:The African Court delivered judgment
in the case of Jebra Kambole v United
Republic of Tanzania.
in the case of Jebra Kambole v United
Republic of Tanzania.
Jebra Kambole (the Applicant)
is a national of the United Republic of Tanzania (the Respondent State) and an
advocate by profession. He is also a member of the Tanganyika Law Society. The
Applicant filed this Application contesting the provisions of article 41(7) of
the Respondent State’s Constitution.
is a national of the United Republic of Tanzania (the Respondent State) and an
advocate by profession. He is also a member of the Tanganyika Law Society. The
Applicant filed this Application contesting the provisions of article 41(7) of
the Respondent State’s Constitution.
The Applicant alleged that
the Respondent State had violated his rights under the African Charter on Human
and Peoples’ Rights (the Charter) by maintaining article 41(7) in its
Constitution, which provision bars any court from inquiring into the election
of a presidential candidate after the Electoral Commission has declared a
winner. Specifically, the Applicant alleged that article 41(7) of the
Respondent State’s Constitution violated his right to non-discrimination, his
right to equal protection of the law and the right to have his cause heard,
especially the right to appeal to competent national organs against acts
violating his fundamental rights as provided for underArticles2, 3(2) and
7(1)(a) of the Charter, respectively. The Applicant also alleged that the
Respondent State had failed to honour its obligation to recognise the rights,
duties and freedoms enshrined in the Charter and to take legislative and other measures
to give effect to the Charter as stipulated under Article 1 of the Charter.
the Respondent State had violated his rights under the African Charter on Human
and Peoples’ Rights (the Charter) by maintaining article 41(7) in its
Constitution, which provision bars any court from inquiring into the election
of a presidential candidate after the Electoral Commission has declared a
winner. Specifically, the Applicant alleged that article 41(7) of the
Respondent State’s Constitution violated his right to non-discrimination, his
right to equal protection of the law and the right to have his cause heard,
especially the right to appeal to competent national organs against acts
violating his fundamental rights as provided for underArticles2, 3(2) and
7(1)(a) of the Charter, respectively. The Applicant also alleged that the
Respondent State had failed to honour its obligation to recognise the rights,
duties and freedoms enshrined in the Charter and to take legislative and other measures
to give effect to the Charter as stipulated under Article 1 of the Charter.
The Court observed that,
as per Article 3(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 (the Protocol), it had to determine whether it has jurisdiction over the
Application. In this case, the Court, while noting that none of the Parties had
raised any objection to its jurisdiction, nevertheless conducted an analysis
which proved that its material, personal, temporal and territorial jurisdiction
were established.
as per Article 3(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 (the Protocol), it had to determine whether it has jurisdiction over the
Application. In this case, the Court, while noting that none of the Parties had
raised any objection to its jurisdiction, nevertheless conducted an analysis
which proved that its material, personal, temporal and territorial jurisdiction
were established.
In terms of the
admissibility of the Application, the Court, as empowered by Article 6 of the
Protocol and Rule 39 of the Rules of Court (the Rules), had to determine
whether the requirements of admissibility, as provided under Article 56 of the Charter
and Rule 40 of the Rules, had been met. In this connection, the Court considered
the two (2) objections raised by the Respondent State, relating, first, to the
requirement of exhaustion of local remedies, and, second, to the filing of the
Application within a reasonable time.
admissibility of the Application, the Court, as empowered by Article 6 of the
Protocol and Rule 39 of the Rules of Court (the Rules), had to determine
whether the requirements of admissibility, as provided under Article 56 of the Charter
and Rule 40 of the Rules, had been met. In this connection, the Court considered
the two (2) objections raised by the Respondent State, relating, first, to the
requirement of exhaustion of local remedies, and, second, to the filing of the
Application within a reasonable time.
In connection to the
objection that the Applicant had failed to exhaust local remedies, the
Respondent State argued that the Applicant had not made any attempt to exhaust
domestic remedies thereby depriving it of an opportunity to redress the alleged
violations. The Applicant, for his part, argued that there were no domestic
judicial remedies available to redress the allegations that he was raising.
objection that the Applicant had failed to exhaust local remedies, the
Respondent State argued that the Applicant had not made any attempt to exhaust
domestic remedies thereby depriving it of an opportunity to redress the alleged
violations. The Applicant, for his part, argued that there were no domestic
judicial remedies available to redress the allegations that he was raising.
In resolving this
objection, the Court reiterated the fact that for purposes of exhausting local
remedies an Applicant is only required to exhaust judicial remedies that are
available, effective and sufficient. The Court further emphasised that a
domestic remedy that has no prospects of success does not constitute an
effective remedy within the context of Article 56(5) of the Charter. Given that
the provision of the Respondent State’s Constitution which was being challenged
by the Applicant ousts the jurisdiction of domestic courts, the Court held that
the Applicant did not have a remedy that was available for him to exhaust
before filing his Application. The Respondent State’s objection to the
admissibility of the Application, on the ground that domestic remedies were not
exhausted, was thus dismissed.
objection, the Court reiterated the fact that for purposes of exhausting local
remedies an Applicant is only required to exhaust judicial remedies that are
available, effective and sufficient. The Court further emphasised that a
domestic remedy that has no prospects of success does not constitute an
effective remedy within the context of Article 56(5) of the Charter. Given that
the provision of the Respondent State’s Constitution which was being challenged
by the Applicant ousts the jurisdiction of domestic courts, the Court held that
the Applicant did not have a remedy that was available for him to exhaust
before filing his Application. The Respondent State’s objection to the
admissibility of the Application, on the ground that domestic remedies were not
exhausted, was thus dismissed.
In relation to the
objection that the Application was not filed within a reasonable time after the
exhaustion of domestic remedies, the Respondent State argued that it had taken
over eight (8) years, after the Respondent State had deposited its Declaration
under Article 34(6) of the Protocol, for the Applicant to file the case with
the Court. The Respondent State submitted that this period was not reasonable.
In response, the Applicant contended that there is no time frame stipulated
under Article 56(6) of the Charter within which an Application must be filed
and that the Court is empowered to conduct a case by case analysis of the
reasonableness of time. The Applicant also argued that while Article 56(6) of
the Charter requires cases to be filed promptly, in appropriate cases, where
there are good and compelling reasons, fairness and justice require the
consideration of applications that have not been filed promptly. Specifically,
the Applicant submitted that due to the continuing character of the violations
that he was alleging his Application should be deemed to have been filed within
the time limit provided by law.
objection that the Application was not filed within a reasonable time after the
exhaustion of domestic remedies, the Respondent State argued that it had taken
over eight (8) years, after the Respondent State had deposited its Declaration
under Article 34(6) of the Protocol, for the Applicant to file the case with
the Court. The Respondent State submitted that this period was not reasonable.
In response, the Applicant contended that there is no time frame stipulated
under Article 56(6) of the Charter within which an Application must be filed
and that the Court is empowered to conduct a case by case analysis of the
reasonableness of time. The Applicant also argued that while Article 56(6) of
the Charter requires cases to be filed promptly, in appropriate cases, where
there are good and compelling reasons, fairness and justice require the
consideration of applications that have not been filed promptly. Specifically,
the Applicant submitted that due to the continuing character of the violations
that he was alleging his Application should be deemed to have been filed within
the time limit provided by law.
In dealing with this
objection, the Court confirmed that the Charter does not set a specific time
frame within which an application must be filed and that reasonableness of time
before seizure will always be assessed on a case-by-case basis. Specifically,
in relation to the Respondent State’s objection, the Court found that there
were no domestic judicial remedies available for the Applicant to exhaust and as
such the question of a reasonable time, after the exhaustion of domestic
remedies, within which the Applicant ought to have filed his Application with
the Court did not arise. The Court also found that given the continuing
character of the violations it was not necessary to set a time limit within
which the Application should have been filed because, in principle, an
application against the Respondent State could have been commenced at any time
as long as the law creating the alleged violation remained in force. The Court
thus dismissed the second objection by the Respondent State.
objection, the Court confirmed that the Charter does not set a specific time
frame within which an application must be filed and that reasonableness of time
before seizure will always be assessed on a case-by-case basis. Specifically,
in relation to the Respondent State’s objection, the Court found that there
were no domestic judicial remedies available for the Applicant to exhaust and as
such the question of a reasonable time, after the exhaustion of domestic
remedies, within which the Applicant ought to have filed his Application with
the Court did not arise. The Court also found that given the continuing
character of the violations it was not necessary to set a time limit within
which the Application should have been filed because, in principle, an
application against the Respondent State could have been commenced at any time
as long as the law creating the alleged violation remained in force. The Court
thus dismissed the second objection by the Respondent State.
The Court also satisfied
itself that the Application had compiled with all the other conditions of
admissibility set out under Article 56 of the Charter and Rule 40 of the Rules
and declared the Application admissible.
itself that the Application had compiled with all the other conditions of
admissibility set out under Article 56 of the Charter and Rule 40 of the Rules
and declared the Application admissible.
On the merits of the
Application, the Court first considered whether article 41(7) of the Respondent
State’s constitution violated the Applicant’s right to non-discrimination under
Article 2 of the Charter. The Court found that article 41(7) of the Respondent
State’s Constitution creates a differentiation between litigants in that while
the Respondent State’s courts are permitted to look into any allegation by any
litigant, they are not allowed to do so when a litigant seeks to inquire into
the election of a president. The result is that those seeking to inquire into
the election of a president are, practically, treated differently from other
litigants, especially by being denied access to judicial remedies, while
litigants with other claims are not similarly barred. The Court held, with Six
(6) for and Four (4) against, that in the absence of clear justification as to
how the differentiation and distinction in article 41(7) is necessary and
reasonable in a democratic society, article 41(7) of the Respondent State’s
Constitution effects a distinction between litigants and that this distinction
has no justification under the Charter. The Court held that this amounted to a
violation of Article 2 of the Charter.
Application, the Court first considered whether article 41(7) of the Respondent
State’s constitution violated the Applicant’s right to non-discrimination under
Article 2 of the Charter. The Court found that article 41(7) of the Respondent
State’s Constitution creates a differentiation between litigants in that while
the Respondent State’s courts are permitted to look into any allegation by any
litigant, they are not allowed to do so when a litigant seeks to inquire into
the election of a president. The result is that those seeking to inquire into
the election of a president are, practically, treated differently from other
litigants, especially by being denied access to judicial remedies, while
litigants with other claims are not similarly barred. The Court held, with Six
(6) for and Four (4) against, that in the absence of clear justification as to
how the differentiation and distinction in article 41(7) is necessary and
reasonable in a democratic society, article 41(7) of the Respondent State’s
Constitution effects a distinction between litigants and that this distinction
has no justification under the Charter. The Court held that this amounted to a
violation of Article 2 of the Charter.
As to whether the
Respondent State had violated Article 3(2) of the Charter, the Court noted that
the principle of equal protection of the law does not necessarily require equal
treatment in all instances and can permit differentiated treatment of
individuals who are differently placed. In the circumstances of the present
case, the Court found that the Applicant was guaranteed the same range of
rights as any other citizen within the Respondent State. The Court thus held,
by the President’s casting vote, the votes having being tied with Five (5) for
and Five (5) against, that the Respondent State had not violated Article 3(2)
of the Charter.
Respondent State had violated Article 3(2) of the Charter, the Court noted that
the principle of equal protection of the law does not necessarily require equal
treatment in all instances and can permit differentiated treatment of
individuals who are differently placed. In the circumstances of the present
case, the Court found that the Applicant was guaranteed the same range of
rights as any other citizen within the Respondent State. The Court thus held,
by the President’s casting vote, the votes having being tied with Five (5) for
and Five (5) against, that the Respondent State had not violated Article 3(2)
of the Charter.
In relation to the alleged
violation of Article 7(1)(a) of the Charter, the Court noted that among the key
elements of the right to a fair hearing, as guaranteed under Article 7 of the
Charter, is the right of access to a court for adjudication of one’s grievances
and the right to appeal against any decision rendered in the process. As
against this, the Court noted that article 41(7) of the Respondent State’s
Constitution ousts the jurisdiction of courts to consider any complaint in
relation to the election of a presidential candidate after the Electoral
Commission has declared a winner. This, the Court reasoned, entails that
irrespective of the nature of the grievance or the merits thereof, as long as
the same pertains to the declaration by the Electoral Commission of the winner
of a presidential election, no remedy by way of a judicial challenge exists to
any aggrieved person within the Respondent State. The Court also noted that
there was nothing in the submissions of the Respondent State which established
any of the conditions in Article 27(2) of the Charter to justify a limitation
of the right to have one’s cause heard. In the circumstances, the Court held,
with Nine (9) for and One (1)against, thatarticle 41(7) of the Respondent State’s
Constitution violated the Applicant’s rights under Article 7(1)(a) of the
Charter.
violation of Article 7(1)(a) of the Charter, the Court noted that among the key
elements of the right to a fair hearing, as guaranteed under Article 7 of the
Charter, is the right of access to a court for adjudication of one’s grievances
and the right to appeal against any decision rendered in the process. As
against this, the Court noted that article 41(7) of the Respondent State’s
Constitution ousts the jurisdiction of courts to consider any complaint in
relation to the election of a presidential candidate after the Electoral
Commission has declared a winner. This, the Court reasoned, entails that
irrespective of the nature of the grievance or the merits thereof, as long as
the same pertains to the declaration by the Electoral Commission of the winner
of a presidential election, no remedy by way of a judicial challenge exists to
any aggrieved person within the Respondent State. The Court also noted that
there was nothing in the submissions of the Respondent State which established
any of the conditions in Article 27(2) of the Charter to justify a limitation
of the right to have one’s cause heard. In the circumstances, the Court held,
with Nine (9) for and One (1)against, thatarticle 41(7) of the Respondent State’s
Constitution violated the Applicant’s rights under Article 7(1)(a) of the
Charter.
The Court having found,with
Nine (9)for and One (1)against, that the Respondent State had violated Articles
2 and 7(1) (a) of the Charter also found, that the Respondent State had also
violated Article 1 of the Charter.
Nine (9)for and One (1)against, that the Respondent State had violated Articles
2 and 7(1) (a) of the Charter also found, that the Respondent State had also
violated Article 1 of the Charter.
Having found the
violations of these rights, the Court then considered the issue of reparations.
violations of these rights, the Court then considered the issue of reparations.
The Court noted that the
only prayer for reparations the Applicant required was the adoption of
constitutional and legislative measures to remedy the violations. Against the
background of the violations found, the Court ordered the Respondent State to
take all necessary constitutional and legislative measures, within a reasonable
time, to ensure that article 41(7) of its Constitution is amended and aligned
with the provisions of the Charter so as to eliminate, among others, any
violation of Articles 2 and 7(1) (a) of the Charter. The Court also ordered the
Respondent State to submit a report within twelve (12) months of the judgment,
on the measures taken to implement the terms of the judgment and to submit
further reports every six (6) months thereafter until the Court is satisfied
that there has been full implementation.
only prayer for reparations the Applicant required was the adoption of
constitutional and legislative measures to remedy the violations. Against the
background of the violations found, the Court ordered the Respondent State to
take all necessary constitutional and legislative measures, within a reasonable
time, to ensure that article 41(7) of its Constitution is amended and aligned
with the provisions of the Charter so as to eliminate, among others, any
violation of Articles 2 and 7(1) (a) of the Charter. The Court also ordered the
Respondent State to submit a report within twelve (12) months of the judgment,
on the measures taken to implement the terms of the judgment and to submit
further reports every six (6) months thereafter until the Court is satisfied
that there has been full implementation.
Given the fact that the
terms of its judgment are likely to affect a significant section of the
Respondent State’s population, the Court, suo
moto, also ordered the Respondent State to publish the Judgment within a
period of three (3) months from the date of notification, on the websites of
the Judiciary and the Ministry for Constitutional and Legal Affairs, and to
ensure that the text of the Judgment remains accessible for at least one (1)
year after the date of publication.
terms of its judgment are likely to affect a significant section of the
Respondent State’s population, the Court, suo
moto, also ordered the Respondent State to publish the Judgment within a
period of three (3) months from the date of notification, on the websites of
the Judiciary and the Ministry for Constitutional and Legal Affairs, and to
ensure that the text of the Judgment remains accessible for at least one (1)
year after the date of publication.
The Court ordered that
each Party should bear its costs.
each Party should bear its costs.
Further Information
Further information about
this case, including the full text of the decision of the African Court, may be
found on the website at: https://en.african-court.org/index.php/56-pending-cases-details/1185-app-no-018-2018-jebra-kambole-v-the-united-republic-of-tanzania-details
this case, including the full text of the decision of the African Court, may be
found on the website at: https://en.african-court.org/index.php/56-pending-cases-details/1185-app-no-018-2018-jebra-kambole-v-the-united-republic-of-tanzania-details
The African Court on Human and Peoples’ Rights is a
continental court established by African Union Member States to ensure the
protection of human and peoples’ rights in Africa. The Court has jurisdiction
over all cases and disputes submitted to it concerning the interpretation and
application of the African Charter on Human and Peoples’ Rights and any other
relevant human rights instrument ratified by the States concerned. For further
information, please consult our website at www.african-court.org.
continental court established by African Union Member States to ensure the
protection of human and peoples’ rights in Africa. The Court has jurisdiction
over all cases and disputes submitted to it concerning the interpretation and
application of the African Charter on Human and Peoples’ Rights and any other
relevant human rights instrument ratified by the States concerned. For further
information, please consult our website at www.african-court.org.