Pan African court dismisses four charges against the Tanzanian government

The African Court on Human and Peoples’ Rights (AfCHPR), sitting in Arusha, recently dismissed four charges filed against the government of Tanzania. These dismissals underscore the Court's adherence to the principle of subsidiarity and the requirement for applicants to exhaust local remedies before approaching the regional human rights body. While the decisions signal the AfCHPR's trust in the Tanzanian judiciary, they also highlight the stringent admissibility criteria, particularly concerning the timely exhaustion of domestic legal avenues. This development is particularly pertinent given Tanzania's 2019 withdrawal of the declaration allowing individuals and NGOs direct access to the Court, shaping the landscape for human rights litigation in the region.

The African Court on Human and Peoples’ Rights (AfCHPR), a pivotal institution in the continent's human rights architecture, recently delivered a series of judgments dismissing four charges against the United Republic of Tanzania. These decisions, emanating from the Court’s seat in Arusha, Tanzania, have drawn attention to the intricate relationship between regional and national judicial mechanisms for human rights protection. The dismissals, as noted by Advocate Emmanuel Sood who represented some of the applicants, signify the regional court’s confidence in the efficacy of the local judiciary. [4]

This development is not merely a procedural outcome but a significant pronouncement on the principle of subsidiarity, which underpins the African human rights system. It reinforces the expectation that domestic legal avenues must be fully pursued before international or regional bodies intervene. For legal practitioners, these rulings offer critical insights into the AfCHPR's application of its admissibility criteria, particularly the exhaustion of local remedies and the 'reasonable time' requirement, which are fundamental to successful human rights litigation at the regional level.

The article will delve into the statutory and doctrinal context governing the AfCHPR's jurisdiction, analyze the specific grounds for dismissal in the identified cases, and explore the broader implications for legal professionals navigating human rights complaints in Tanzania and across the African continent, especially in light of Tanzania's past engagement with and subsequent withdrawal from direct individual access to the Court.

The African Court on Human and Peoples’ Rights was established by 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), adopted in 1998 and which entered into force in 2004. Its mandate is to complement and reinforce the functions of the African Commission on Human and Peoples’ Rights, ensuring the protection of human and peoples’ rights in Africa. [17]

A cornerstone of the Court's procedural framework, and indeed most international human rights mechanisms, is the requirement for the exhaustion of local remedies. Article 56(5) of the African Charter on Human and Peoples' Rights stipulates that communications shall be considered by the Commission (and by extension, the Court) only "after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged." [22] This principle of subsidiarity dictates that a state must first be given the opportunity to address alleged human rights violations through its own domestic legal system before a regional body intervenes. The remedies must be available, effective, and sufficient, offering a genuine prospect of success and capable of redressing the complainant's grievances. [14, 20, 22]

Furthermore, applications must be filed within a reasonable time after the exhaustion of local remedies, as articulated in Rule 50(2)(f) of the Court's Rules of Procedure (formerly Rule 40(6)). [8, 16] This 'reasonable time' criterion is strictly applied, as demonstrated in various judgments. Tanzania, a State Party to the Protocol, had initially accepted the Court's jurisdiction to receive complaints from individuals and non-governmental organizations (NGOs) through a declaration under Article 34(6) of the Protocol in 2010. [3] However, in November 2019, Tanzania controversially withdrew this declaration, thereby curtailing direct access for individuals and NGOs to the Court, a move that significantly altered the landscape for human rights advocacy against the state. [3, 5, 9, 10]

The recent dismissals by the AfCHPR against Tanzania largely hinged on the non-fulfillment of crucial admissibility requirements, particularly the exhaustion of local remedies and the 'reasonable time' rule. One notable case, *John Martin Marwa v. United Republic of Tanzania* (Application no. 021/2017), saw the Court declare the application inadmissible because it was filed six years and 12 days after the exhaustion of local remedies, which was deemed an unreasonable delay under Rule 50(2)(f) of the Rules. [8] This decision underscores the Court's strict interpretation of the timeliness requirement, even for incarcerated applicants, who must provide compelling arguments for any delay. [8]

Similarly, the case of *Chacha Jeremiah and Others versus the United Republic of Tanzania* involved applicants convicted of murder and sentenced to death, who alleged violations of their rights to life, dignity, legal representation, fair trial within a reasonable time, and the right to be heard under the African Charter. [4] While the specific grounds for dismissal in this particular instance are not fully detailed in the provided excerpt, the general tenor of the AfCHPR's decisions, as conveyed by Advocate Sood, points to the Court's reliance on the robustness of the domestic judicial process. [4] This aligns with the Court's jurisprudence, which, while applying the exhaustion rule with flexibility, also exercises its *proprio motu* power to consider the rule restrictively, sometimes limiting access for rights claims. [18]

The principle of subsidiarity, therefore, remains paramount. The AfCHPR's rulings consistently affirm that national courts are the primary guarantors of human rights, and applicants must demonstrate that they have diligently pursued all available, effective, and sufficient remedies at the domestic level. [14, 22] The advocate's comment that the Court ruled positively on some minor requests for compensations in certain cases suggests that while the primary charges might have been dismissed on procedural grounds, the Court was still attentive to specific grievances where domestic remedies might have been demonstrably ineffective or unavailable for those particular aspects. [4]

These dismissals, while affirming the role of the Tanzanian judiciary, occur within the broader context of Tanzania's withdrawal of its Article 34(6) declaration in 2019. This withdrawal, which prevented individuals and NGOs from directly filing cases against Tanzania, was widely criticized as a move to evade accountability. [5, 9] Consequently, while the AfCHPR's recent decisions might appear to validate the national judicial system, the ability of future individual applicants to even reach the Court directly is now severely restricted, forcing them to channel complaints through the African Commission, which lacks the power to issue legally binding judgments. [6]

The African Court on Human and Peoples’ Rights' dismissal of four charges against the Tanzanian government serves as a crucial reminder for legal practitioners regarding the stringent admissibility requirements governing regional human rights litigation. The emphasis on the exhaustion of local remedies and the adherence to a 'reasonable time' for filing applications are not mere technicalities but fundamental principles of subsidiarity that underscore the primary role of national judiciaries in protecting human rights. Practitioners must meticulously ensure that all domestic avenues, including appeals to the highest national courts, are fully exhausted and that applications to the AfCHPR are lodged promptly thereafter.

For attorneys representing clients in Tanzania, these decisions highlight the imperative of strategic litigation at the national level, building a robust record of domestic engagement before contemplating regional recourse. While the Court's affirmation of the local judiciary is noted, the broader context of Tanzania's withdrawal of direct individual access to the AfCHPR remains a significant challenge. Practitioners must be acutely aware of these limitations and explore alternative avenues, such as engaging with the African Commission on Human and Peoples’ Rights, even if its remedies are not directly binding. The landscape of human rights protection in Africa continues to evolve, demanding vigilance and adaptability from legal professionals committed to justice.