The implementation by Tanzania of orders of the African Court on Human and Peoples’ Rights requiring constitutional and legislative reform

Abstract

The African Court on Human and Peoples’ Rights (Court) has, in 25 decisions, ordered Tanzania to take legislative (and constitutional) measures to align several laws with the Charter. The decisions are thematically divided into those dealing with criminal justice (15 with the abolition of the death penalty, two with the right to bail, two with the right to legal representation, two with abolition of corporal punishment, one with access to judicial remedies) and one with election management. Two more decisions deal with the right to participate in government.

This study finds that Tanzania has partially implemented orders in two instances: the orders in one case related to legal representation, through the enactment of the Legal Aid Act (of 2017); and in the case concerning electoral management, by setting qualifications and positions for civil servants who would be appointed as election directors. This is a total of two orders out of 25 being partially implemented. The hindrances to implementing Court orders include Tanzania’s failure to establish effective democracy and governance institutions, such as the parliament and the judiciary, which would guard rights and promote government accountability. There are also factors relating to the Court, such as inadequacies in enforcing its decisions and not having an appellate chamber. This study recommends that Tanzania promulgate a new constitution with a comprehensive Bill of Rights to effectively guard rights, promote the independence of the judiciary and the checks and balance role of the parliament as well as the accountability of the Government. It is also recommended that Tanzania establish a domestic oversight mechanism to monitor the implementation of Court orders, bolster the role of the Commission for Human Rights and Good Governance in monitoring the implementation of treaty obligations and protection of human rights and ensure effective citizen participation in government.