Tanzania’s Withdrawal of Access to the African Court: Further Retrogression in Human Rights Protection in East Africa

by | Dec 23, 2019

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About Tonny Kirabira

Tonny Raymond Kirabira is a PhD researcher at the University of Portsmouth Law School (United Kingdom). His interests are human rights, media law, politics and transitional justice, particularly focusing on narratives of victims. He holds an LLM in International Human Rights Law from University of Notre Dame (United States), and a bachelor of Laws degree from Uganda Christian University (Uganda). He was a recipient of the VLIR-UOS scholarship under the Sustainable Development and Human Rights Law program at the University of Antwerp in Belgium. He has also conducted studies and work in Kenya, Belgium, Italy and Switzerland.

Citations


Tonny Raymond Kirabira, “Tanzania’s Withdrawal of Access to the African Court: Further Retrogression in Human Rights Protection in East Africa”, (OxHRH Blog, December 2019), <https://ohrh.law.ox.ac.uk/tanzanias-withdrawal-of-access-to-the-african-court-further-retrogression-in-human-rights-protection-in-east-africa/>, [Date of access].

The Tanzanian government has withdrawn its special declaration to the African Court on Human and Peoples’ Rights (African Court), and as a result, individuals and NGOs cannot directly file cases against it. In East Africa, it is the second country to withdraw from the African Court, after Rwanda’s withdrawal in 2016. This is a worrying retrogression in the protection of human rights, including media freedom in East Africa.

According to Amnesty International, Tanzania has the highest number of cases filed by individuals and NGOs in the African Court and has received 28 decisions since September 2019. The withdrawal of access to the African Court appears to be a deliberate measure to silence individuals and NGOs. It has been criticized by human rights observers, who consider the African Court to be an important avenue for justice in Tanzania.

In comparison with the Inter-American and European Human Rights Courts, the African Court has a unique mandate. Under Article 3 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 can adjudicate cases beyond the scope of the African Charter on Human and People’s Rights (the Charter) and its Protocol. These include other relevant human rights instruments ratified by the member states concerned. This makes the African an important avenue for the protection of human rights in Africa.

The withdrawal of East African States has had a negative impact on media freedom and human rights protection in general. In addition to new draconian laws limiting media freedom, several administrative measures have led to the arbitrary closure of media houses. In 2016, the Tanzanian government promulgated a new law, the Media Services Act, 2016, which created state-sponsored bodies with arbitrary powers to grant and revoke licenses for news outlets and the accreditation of journalists.

A host of non-governmental organizations successfully challenged several provisions of the Media Services Act before the East Africa Court of Justice (EACJ). In its judgment, the EACJ declared several sections of the Media Services Act, to be in violation of the Treaty for the Establishment of the East African Community, for encroaching on the rights to freedom of expression. Despite the decision, access to this regional court is not sufficient as the Treaty does not have a bill of rights. Moreover, Partner States often challenge the jurisdiction of the EACJ, and in some cases, politicize its decisions. The domestic courts are not sufficient either, as there is a  lack of respect for the judiciary in East Africa.

Recently, the government suspended the Citizen Newspaper after it published a story about the depreciation of the country’s currency against the United States dollar. The government cited national security concerns as the reason for the suspension, arguing that the newspaper incited citizens against the government. Many online publishers and journalists have been affected by new online regulations in Tanzania, that were adopted in 2017. Subsequent to these regulations, the Tanzania Communications Regulatory Authority (TCRA) ordered the mandatory registration of bloggers.  As a result, NGOs and private individuals have filed multiple cases against Tanzania.

East African States have legal obligations to promote and provide the right of individuals and NGOs to directly access judicial avenues, including the African Court. Under the Treaty Establishing the East African Community, the six countries committed to abiding by the principles of good governance, democracy and universally accepted standards of human rights. This implicitly includes the protection and promotion of access to justice. The recent developments suggest an urgent need to guide Tanzania, and the other East Africa States, in regard to protecting the right to access to justice and human rights more broadly.

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3 Comments

  1. martin mawejje

    very inciteful article, the African court though just like other regional/international courts continue to face critism for over stepping their mandate.

  2. Francis Xavier Lule

    Great exposé Counsel.
    It is baffling when African governments continue to invoke a certain class of “African understanding of democracy” under the guise of respect to state sovereignty. It’s their magic wand they invoke to justify manifest cases of human rights violations.
    At the side, for a number those States that haven’t taken the coward path out of these fora like Tanzania, have accorded nothing more than lip-servive to the state obligations arising from such protocols.

    • Tonny Kirabira

      Absolutely,and yet,state sovereignty doesn’t create parallel human rights obligations,as perceived by most governments.

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