Mr. Michael K. B. Wambali, in the article “Enforcement of Basic Rights and Freedoms and the State of Judicial Activism in Tanzania refersrefers to a seminal judgment of the High Court of Tanzania by Mr. Justice Lugakingira, sitting as a single judge and exercising the powers of the High Court to interpret the Constitution under Article 30, in Christopher Mtikila v The Attorney-General, in which the judge ruled that the denial by Government of independent candidates to stand for elective office was unconstitutional. This case led to a serious constitutional crisis in Tanzania. The Government was totally unhappy with the judgment to say the least. The Judge had in effect ruled that, the decision of the ruling Party that Independents cannot stand for elective office without joining a Political Party, was unconstitutional as it violated the freedom of association of independents seeking elective office, under the newly promulgated Bill of Rights under the Constitution in 1984.The Government immediately moved Parliament to enact a Constitutional Amendment which in effect reversed the Judge’s ruling. It in addition provided that:

1. Constitutional issues shall be decided by a three judge panel of the High Court.
2. The Court shall have no power to issue any of the prerogative writs of Mandamus, Habeas Corpus and Certiorari and where an alternative remedy is available to an applicant the Court shall not rule on the Constitutional issue.
3. The Court shall dismiss any frivolous and vexatious actions brought as Constitutional matters.

The Applicant Mtikila petitioned the newly formed Constitutional Court to rule that the denial of independents to stand for elective office violates the Bill of Rights in the Constitution. The Three Judge Panel of the High Court in a masterful judgment ruled in favor of the Applicant, as the first judge had done. On appeal to the Court of Appeal, which occurred after Mr. Wambali’s article, the Court reversed the High Court on the ground that issues relating to elections and eligibility to stand for elective office by independents were political reserved for Parliament and the Government and well outside the jurisdiction of the Courts. It is upon this ruling that Mtikila resorted to the African Court of Human and Peoples’ rights for a remedy.

In a well reasoned judgment, the African Court for perhaps the first time on the merits ruled that Tanzania was in violation of the Individual Rights enshrined in the African Charter on Human and Peoples’ Rights, essentially that to deny independents of a right to seek elective office outside political parties violates a person’s freedom of association, because a person so denied such a right would be forced to join a Political Party against his will.

A copy of the judgment of the African Court for Human and Peoples’ Rights is attached.