HUMAN RIGHTS AND LEGAL AID

NOTES

1
 HUMAN RIGHTS
What are Human Rights?
Human rights are the basic entitlements or minimum standards to be met for individuals
to live with dignity. However, basic entitlements which can be claimed in the society.
Also, individual live a life of dignity.
CLASSIFICATION OF RIGHTS
i) Moral rights – emanating from customs and traditions or religious ideologies
ii) Legal rights – those emanating from provisions of law
iii) Human rights – The ones every person is having because she or he is a human
being
TYPES OF HUMAN RIGHTS.
- Civil rights – 1st Generation
- Political rights
- Rights related to rule of law
- Economic and social rights – 2nd Generation
- Collective rights – 3rd Generation
PHASES OF HUMAN RIGHTS or 3RD GENERATIONS.
a) Enlightenment - 17thC to 18th C
To place restrictions to Government as per Article 2 to 21 of the UDHR. Most of the
rights in civil and political rights are called negative rights of which the Government is
being restricted from violating them.
b) Socialist Tradition – 19th C
They originate on socialist tradition on positive rights which requires state to do a
certain thing as per Article 22 to 27 of the UDHR like right to social security, right to
work, right to standard adequate living.
c) Solidarity – 20th C
These rights can be championed by 3rd world country such as right to participate in right
to political, social and economic.

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 HUMAN RIGHTS PRINCIPLES.
- Universality and inalienability
- Indivisibility
- Interdependence and Interrelatedness
- Equality and non discrimination
- Participation and inclusion
- Accountability and rule of law
STATE OBLIGATION.
State obligation varies from treaty to treaty and also, states are thus bound by their
own consent to a set of obligations concerning their treatment of individuals, without
discrimination, within their jurisdiction. So, in general, states Parties can be regarded
as obliged to ‘respect’, ‘protect’ and ‘fulfil’ the rights contained within the treaty.
CIRCUMSTANCES OF DEALING WITH VIOLATION OF HUMAN RIGHTS CASE.
High Court has jurisdiction to deal with cases of violation of human rights as per article
12 to 24 of the Constitution of United Republic of Tanzania. However, the Banjul
Charter has no jurisdiction to deal with human rights violation but it is only the
Constitution.
NB: Human rights cases are filed to High Court Main Registry. However, there are cases
in High Court deal with judicial review are different from human rights cases.
Judicial review cases is where a person denies decision of the court or exceed powers
or justice delay.
According to Article 30(3) of the Constitution gives power High Court jurisdiction to
entertain human right infringement of Article 12 to 29 of the CURT.
Currently, according to the BRADEA it prohibits to institute a human right case until you
have exhausted all available remedies. For example, judicial review, civil suit as per
section 8(2) of the Basic Rights and Duties Enforcement Act.
According to Article 26 which is read together with Article 30 of the CURT requires that
a person who institute human right case must exhaust local remedies. However, human
right case should be opened with reasonable time.
Furthermore, section 4 of the BRADEA is amended and provides that under section 4(2)
of the BRADEA requires the person instituting a case shall make an application

3
supported by affidavit showing the extent to which contravention of Article 12 to
29 of the CURT affect personally.
Also, section 4(5) provides that all other remedies should be exhausted available under
any written law. This is a restriction on filling human right cases because it requires to
get redress from the court. For example, judicial review or civil suit then if it fails, you
can institution human right suit but here there is a restriction of res judicata incase you
open human right case.
NB: In scenario question, if the question requires to institute a case and there is no
exhaustion of local remedies then, you have to institute a judicial review but, if there
is exhaustion of local remedies then go for human right case.
Also, it is important to note that East African Court of Justice has no jurisdiction on
human right matters of justice. So, the East African Court of Justice it deals with Good
Governance, so if you want to institute a case of violations under article 12 to 29, you
can institute a case not of human right but you will institute it on basis of rule of law
and good governance. So, the East African Court of Justice it hears only violation of
rule of law and good governance.
INTERNATIONAL LEVEL.
The recognition and protection of human rights internationally can be categorized
into three;
- Charter based bodies/Non – Treaty Body Monitoring
- Treaty based
- Non Treaty Approach
1. CHARTER BASED BODIES.
The Charter based mechanisms includes;
- Human Rights Council
- Universal Periodic Review
- Commission on Human Rights (replaced by the Human Rights Council)
- Special procedures of the Human Council.
i) Human rights Council – it consist of patterns of gross and reliably attested
violations of all human rights and all fundamental freedoms

4
 ii) Universal Periodic Review – It provides opportunity for each state to declare
what actions they have taken to improve the human rights situation in their
countries and to fulfill their human rights obligations where by complaints
procedures are submitted by individuals, groups, NGO’s.
iii) Special procedures of the Human Rights Council - It address the human rights
mechanism and special procedure either to individual (special rapporteur)
and working group composed of Africa, Asia, Latin American and Carribean.

2. TREATY BASED BODIES/MONITORING BODIES.

The UN core human rights treaties have established special committees which have
been entrusted with the task of supervising the way countries abide by their treaty
obligations. However, there are eight human rights treaty bodies that monitor
implementation of the core international human rights treaties as follows,
i) The Human Rights Committee (CCPR)
ii) The Committee on Economic, Social and Cultural Rights (CESCR)
iii) The Committee on the Elimination of Racial Discrimination (CERD), created
under the International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD) as per article 8 of the convention.
iv) The Committee on the Elimination of Discrimination against Women (CEDAW),
created under the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW) in accordance with article 17 of the
convention.
v) The Committee Against Torture (CAT), created under the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT) as per article 17 of the convention. Also there is the Subcommittee on
Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment (SPT), created under the Optional Protocol to the Convention
against Torture (OPCAT) as per 2 of the protocol.
vi) The Committee on the Rights of the Child (CRC), created under the
Convention on the Rights of the Child (CRC) as per article 43 of the
convention.

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 vii) The Committee on Migrant Workers (CMW), created under the International
Convention on the Protection of the Rights of All Migrant Workers and Their
Families (ICRMW) as per article 70 of the convention.
viii) The Committee on the Rights of Persons with Disabilities (CRPD), created
under the Convention on the Rights of Persons with Disabilities (CRPD) as per
article 34 of the convention.
Therefore, the functions and mandates of each treaty body are defined by the relevant
treaty bodies in accordance with the provisions of their respective treaties, they possess
certain common features which are given tools/ways/methods/mechanism/procedures
for ensuring compliance with treaty provisions and may be categorized as follows;
- Reporting obligations and concluding observations
- Inter – state complaints
- General comments or recommendations
- Individual communication.
1. UN Charter Based Mechanism;
- United Nations General Assembly
- United Nations Security Council
- United Nations Economic and Social Council
- Human Rights Committee
- ECOSOC resolution 1235
- ECOSOC resolution 1503

2. UN Treaty Based Mechanisms.

- Treaty Bodies
- Reporting procedures (Art.40 of the ICCPR & Art.16 of the ICESCR – State parties
to the present covenants to submit reports on the measures and achieving
observance of the rights recognized therein);
 Preparation of the state report
 Pre – sessional preparation
 Dialogue with the concerned state
 Briefing.

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 REGIONAL LEVEL.
Regional instruments which can be violated are;
- African Charter on Human and People’s Rights (Banjul Charter)
- African Charter on Rights of the Child
- Protocol on Rights of Women i.e Two Charters and one protocol
Jurisdiction
An individual can complain his rights have been violated basing on the following;
 Rationae personae – Any individual can lodge a complaint to the committee that
his or her rights under the relevant treaty have been violated but in Tanzania we
don’t have jurisdiction personae in African Court.
 Rationae Materiae - The applicant must alleges the violations of a right that falls
within the scope of the treaty concerned and bind the state party concerned,
which excludes rights in respect of which a valid reservation has been entered.
NB: It is only the African Court which can enforce human rights cases. Example,
compensation etc.
For example, a Rastafari appear to the Chief Justice with his raster and the Chief
Justice refuse to admit in the Roll of Advocates. This person claims his right of worship
according to the Rastafari religion. Advise him. Here the answer is that, he has to file
a case to the Commission on Human and People’s Rights.
Also, another scenario is the Hadzabe people are evicted…..and hence cultural
infringement has been violated, advice him where to go to institute the case? Here the
answer is he will file the case to the Commission on Human and People’s Right which
have jurisdiction to entertain the matter and the ground will be undue prolonged
procedure where by there is no exhaustion available remedies as per section 4(5) of the
BRADEA but the same scenario you may be asked which court will you institute the case?
The answer is High Court to file a case for judicial review on two grounds which are
certiorari (to quash the decision to remove the hadzabe) and prohibition (to stop to
remove them in that area).

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 LEVELS OF HUMAN RIGHTS PROTECTION
Human rights is divided into four levels;
i) Domestic level
ii) Sub – Region level – East Africa
iii) Regional level – Africa
iv) International level – UN level

1. DOMESTIC LEVEL
At domestic levels, the following are the laws governing human rights;
- The Constitution of United Republic of Tanzania
- The Basic Rights and Duties Enforcement Act
- The Basic Rights and Duties Enforcement (Practice and Procedure) Rules
- The Commission for Human Rights and Good Governance Act
- The Commission for Human Rights and Good Governance Regulations
At domestic levels, the following the institutions which are responsible to protect
human rights as follows;
a) The Commission for Human Rights and Good Governance
b) The High Court of United Republic of Tanzania
NB: It is only the state and state organs that violate human rights but an individual or
private sector cannot violate human rights.
For example, a citizen of Zanzibar if he or she wants to open a constitution case, he
can use the constitution of Zanzibar or Constitution of United Republic of Tanzania but
if he can use the constitution of Zanzibar can appeal to the Court of Appeal and if he
can use the Constitution of United Republic of Tanzania can appeal to the Court of
Appeal.
a) THE COMMISSION FOR HUMAN RIGHTS AND GOOD GOVERNANCE.
It is established under Article 129 of the Constitution if United Republic of Tanzania of
1977 as amended from time to time. However, the following are the laws which govern
the Commission;
- The Constitution

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 - The Commission for Human Right and Good Governance Act
- The Commission for Human Right and Good Governance Regulations
FUNCTIONS OF THE COMMISSION FOR HUMAN RIGHT AND GOOD GOVERNANCE
The functions are provided under Article 130 of the Constitution and section 6 of CHRGG
Act;
i) To receive allegations and complaints of violation of human rights as per
section 6(1)(b) of the CHRGG.
ii) To conduct inquiries and investigations involving the violation of human right
and contravention of the principles of administrative justice as per section
6(1)(c)(f) of the CHRGG.
iii) To ensure that the victim of human right is redressed and to stop violation as
per section 6(1)(i) of the CHRGG.
Advantages for lodging complaint before the Commission for Human Rights and Good
Governance;
- Procedure before the commission is not complicated compared to court.
- The Commission has power to award costs so as to remedy the affected persons.
- It is not necessary to be represented before the Commission.
- The Commission dispose complains within a short time compared to court.
- There is no costs to lodge complaints on which the Commission.
Disadvantages for lodging complaint before the Commission for Human Rights and
Good Governance;
- The Commission cannot enforce its decision incase there is either delay or refusal
to comply with the decision.
NB: If the Commission wants to enforce its decision, it may institute proceeding before
the court.
For example, A Chinese citizen assault Civil Servant, you file the case to the
Commission for Human Right and Good Governance – section 6(1)(n), also read Article
30(5) as well as read the CHRGG to be conversant with the procedures.

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 b) THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA.
According to Article 30(3)(4)(5) of the Constitution of United Republic of Tanzania
provides that any person who claim that his rights under the Constitution are violated
may institute a human right complaint before the High Court (Main Registry).
NB: According to the Amendment which is reflected under section 4(2) and section 4(3)
of Basic Rights and Duties Enforcement Act and Written Laws (Miscellaneous
Amendment) Act of 2020. A person who is not a victim is not allowed to institute a
human right case.
LAWS APPLICABLE BEFORE HIGH COURT WHEN DETERMINING HUMAN RIGHTS
COMPLAINTS.
- The Constitution of United Republic of Tanzania
- The Basic Rights and Duties Enforcement Act
- The Basic Rights and Duties Enforcement (Practice and Procedure) Rules.
How to institute human right complaint before the High Court?
- By way of reference
- By way of originating summons supported by affidavit
Generally, reference means a person from subordinate court may raise issue of violation
of human right, then subordinate court may make reference to the High Court and the
court will scrutinize if it violates Article 12 to 29, then will refer the case to High Court
for hearing if it satisfies with decision of subordinate.
Institution of Human Right complaint before the High Court is done by way of Reference
as per Rule 10 of the BRADEA Rules.
When there is proceeding before a subordinate court (Primary Court, District Court,
Resident Magistrate Court), if any party to a complaint will complain before the court
that his rights are violated, the Trial Magistrate will be required to do the following;
i) To record the complaint in a case file as per Rule 10.
ii) The trial Magistrate will be required to prepare a statement of fact
concerning the allegations as per Rule 10(1).
iii) The Trial Magistrate will be required to stay the proceeding pending
determination of reference as per Rule 11.
iv) To refer the matter to the Higher Court.

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NB: - If the matter originated from the Primary Court, the case must be referred to
District Court or Resident Magistrates’ Court.
- If the matter originated from District Court or Resident Magistrate Court,
reference must be made to the High Court before a Single Judge as per Rule
10(1).
v) After receiving reference containing statement, the District Court or Resident
Magistrate Court is required to determine whether there is element for
violation or not within 14 days but the High Court is required to determine
reference within 30 days for matters originating from District Court or
Resident Magistrate Court as per Rule 10(2), Rule 9(1) and Rule 11.
vi) If there is violation after reference, the matter will be taken to the panel of
three Judges for hearing as per Rule 12. However, hearing must be conducted
within 90 days.
vii) The decision of the High Court will be taken to the Subordinate Court where
the matter stayed so as to determine whether the case can proceed or not as
per Rule 12.
NB: There must be a case in court so that you can file reference and not the commission.
The institution of human right complaint before the High Court is done by way of
Originating Summons supported by Affidavit (Petition).
Any person who claims that his rights have been violated under Article 12 to 29 of the
CURT may petition before the High Court by using Originating Summon supported by
Affidavit.
Section 5 of BRADEA and Rule 4 of the BRADEA Rules it is important to note that;
Originating Summons contents;
- Chamber summons
- Facts
- Particulars of violation
- Grounds

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 PROCEDURES FOR INSTITUTING HUMAN RIGHT CASE.
i) To institute originating summons and affidavit.
Who are respondents?
According to section 4(4) of the BRADEA, if the person who violated human right is
either President, Vice Prime Minister, Speaker or Deputy Speaker or Chief Justice, the
petition shall only be brought against the Attorney General. So here the respondent
shall be only the Attorney general.
If the violator of human right is any institution of the Government or any person acting
on behalf of the Government other than those listed under section 4(4) of the BRADEA,
the respondent shall be, the violator as first respondent and the Attorney General as
the second respondent.
ii) The petitioner must serve summons to the respondent service of petition as
per Rule 5 in seven days.
iii) The respondent will be required to file counter affidavit as to the reply of
the petition as per Rule 6 of the BRADEA Rules.
NB: When filling counter affidavit, the respondent may accompany it with a Notice of
Preliminary Objection in a separate sheet as per Rule 7. It is important to note that,
don’t attach preliminary objection with counter affidavit but put it in a separate sheet.
iv) Determination of preliminary objection if any as per Rule 9, preliminary
objection shall be determined by a single Judge of the High Court.
v) The preliminary objection will be dismissed by the court, parties will be
required to file written submission within 7 days from which the date when
the court dismissed the preliminary objection or from the date of first hearing
if there was no preliminary objection as per Rule 13. It is important to note
that, the court may invite amicus curiae as per Rule 14.
vi) The matter will be assigned to a panel of three Judges within seven days from
the date of determination of competence before a single Judge as per Rule
15(1).
vii) Hearing, during hearing the court may use affidavit and counter affidavit and
may allow 90 days from the date when the petition was assigned to the panel
of three Judges as per Rule 15(2).

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 NOTE: Other remedy if are not available go for Judicial Review as per section 4(5)
provides for available remedies under any other written laws. Also, Judicial Review
as per Article 13(6)(a) of the CURT.
Section 8(4) of the BRADEA prohibits seeking a redress of human right violation in
Judicial Review. Hence, you cannot open a Judicial Review case as a case for
violation of human rights.
JUDICIAL REVIEW.
This is the power of the High Court to review the decision of an administrative body
if it is made according to the law or not. The following are prerogative orders such
as certiorari, mandamus, prohibition.
NB: Don’t go for judicial review saying that your rights have been violated but in
judicial review will only challenge the decision of administrative body.
 Certiorari – To quash the decision of the Government Personnel or
administrative body.
 Mandamus – To compel the administrative body to do an act which was
required to be done under the law but it is not done or there is a delay or
refusal.
 Prohibition – To prohibit the administrative body or personnel to do an act
which is contrary to the law against the applicant or any other person.
Laws governing Judicial Review;
- The Law Reform (Fatal Accidents and Miscellaneous Provision) Act
- The Law Reform (Fatal Accident and Miscellaneous Provision) (Judicial Review
Procedure and Fee) Rules.
Time limit to apply for Judicial Review is six month from the date of the omission as
per Rule 6 of the Law Reform Rules.
Procedures for Judicial review.
i) An application for leave to apply for judicial review as per Rule 5 and the
documents are chamber summons (Form A), Affidavit and its accompanying
document as per rule 5(2) heard and determined 14 days.
ii) An application for judicial review after being granted leave as per Rule 8
and the documents are chamber summons supported by affidavit.

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Documents for judicial review;
- Chamber summons - Chamber Summons Judicial
- Affidavit Leave - Affidavit Review
- Statement of reference
HABEAS CORPUS.
Section 390 to 392 of the Criminal Procedure Act, Cap.20 provides that any person who
may be detained contrary to the law by the state agencies within Tanzania Mainland,
any person who is acting on behalf of such a person may apply for habeas corpus before
the High Court.
What is habeas corpus?
This means an order requiring a person who is detained illegally to be brought before
the court so that his rights may be determined. Such person may be alive or dead.
Detaining a person illegally amounts to, detaining a person for more than 48 hours in
custody before taking that person to the court without reasonable justification etc.
However, grounds for application of habeas corpus as per section 390(1)(a) to (f) of the
Criminal Procedure Act, Cap.20. Also, documents for application for habeas corpus are
chamber summons supported by affidavit.
Summary for the purpose of learning.
i) If there is a question which show that there is violation of human right but
the question does not show that the victim exhausted any remedy, such
question requires to apply for Judicial Review, since section 4(5) of the
BRADEA provides for the requirement of exhausting available remedy and any
other law which includes Judicial Review before filling human right cases.
ii) If there is a question which shows that the victim for human right exhausted
some remedies to prevent violations even if the remedies are not required
mentioned in the question, you will be required to Petition for human rights
case before the High Court.
iii) If there is an Act of Parliament which violates one among Article 12 to 29 of
the CURT, the only remedy available is to institute a human right case since
there is no any remedy to challenge Act of Parliament save for Petition for
human right under Article 64(3) of the CURT.

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NB: Nowadays due to the amendment of BRADEA, the best court to challenge an Act of
Parliament is East African Court of Justice (E.A.C.J) on the ground of violation of rule
of law because even the constitution is a law so since violated, you institute a case
under violation of rule of law and Good Governance.
iv) If there is a question which shows that there is a subsidiary legislation which
violate either human right, any Act of Parliament on violation the principal
legislation which led to its enactment, you will be required to file Judicial
Review.

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 IN THE HIGH COURT OF TANZANIA
AT DAR ES SALAAM
(MAIN REGISTRY)
MISCELLANEOUS CIVIL CAUSE NO OF 2014

IN THE MATTER OF THE CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA,

1977 AS AMENDED

AND

IN THE MATTER OF A PETITION TO ENFORCE

CONSTITUTIONAL BASIC RIGHTS UNDER THE BASIC
RIGHTS AND DUTIES ENFORCEMENT ACT Cap 3 [R.E. 2002]

AND

IN THE MATTER OF A PETITION TO CHALLENGE violations of Articles 12(2), 14, 16,

18 and 29(2) of the CONSTITUTION IN RESPECT OF PETITIONERS WHO ARE THE
PERSONS LIVING WITH HIV AIDS

BETWEEN

1st ........................
2nd.........................
PETITIONERS
3rd............................

AND

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1st THE HONOURABLE ATTORNEY GENERAL
2nd PERMANENT SECRETARY, MINISTRY OF HEALTH AND
SOCIAL WELFARE RESPONDENTS
3rd PERMANENT SECRETARY, MINISTRY OF HOME AFFAIRS
4th PERMANENT SECRETARY, MINISTRY OF DEFENCE AND
NATIONAL SERVICES
5th CHADIBWA MEDICAL CLINIC

PETITION
The humble Petition of your Petitioners SHOWETH as follows:
1. That the Petitioners are natural persons living with HIV/AIDS and residents of Dar
es Salaam and Coastal regions. The addresses for service for the purposes of this
Petition shall be in the care of:
LEGAL AID COMMITTEE OF THE SCHOOL OF LAW,
UNIVERSITY OF DAR ES SALAAM,
P O BOX 35093,
DAR ES SALAAM
and

LEGAL AND HUMAN RIGHTS CENTRE,

LEGAL AID CLINIC, JUSTICE MWALUSANYA HOUSE,
KINONDONI BIAFRA, ISERE STREET,
P. O. BOX 79633,
DAR ES SALAAM

2. That the 1st to 4th Respondents are the Honourable Attorney General of the
United Republic of Tanzania, the Permanent Secretary, Ministry of Health and
Social Welfare, the Permanent Secretary, Ministry of Home Affairs, and the
Permanent Secretary, Ministry of Defence and National Services. The

17
 Respondents’ address for service for the purposes of this Petition shall be in the
care of:
ATTORNEY GENERAL’S CHAMBERS
KIVUKONI FRONT
P.O. BOX 9050
DAR ES SALAAM

3. That the 5th Respondent is the private institution dealing inter alia with the
provision of health care and medical services. The 5 th Respondent’s address for
the purpose of this Petition shall be:
CHADIBWA MEDICAL CLINIC,
P O BOX 40688,
DAR ES SALAAM

4. That the Petition challenges the violations of the basic human rights and
fundamental freedoms to the prejudice of Petitioners who are the persons living
with HIV/AIDS, and the specific Articles of the Constitution upon which this
Petition is based are Articles 12, 13(6) 14, and 29(2) of United Republic of
Tanzania Constitution as amended from time to time.

5. That the grounds upon which redress is sought are as follows:

a. That, by granting approval letters allowing Virodene Pharmaceutical
Holding (Pty) Ltd (“Virodene”) to carry out their trials in Tanzania, the
Ministry of Health and Social Welfare and Ministry of Defense and National
Services acted ultra vires and consequently breached their obligation to
respect and protect lives and welfare of the Petitioners and hence a
violation of human rights.
b. That, by failing to investigate and prosecute Virodene the Government
breached its obligation to protect its citizens against violations of human
rights.

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c. That, the whole medical trial processes violated several rights of the
Petitioners such as the Right to life under Article 14, Freedom from cruel,
inhuman and degrading treatment under Article 13 (6) (e), the Right to
dignity under Article 12 and the right to equal protection under Article 29
(2) accorded to them by the Tanzanian Constitution 1977 as amended and
many other International and Regional Human Rights instruments to which
Tanzania is a party.
d. That by subjecting the Petitioners to the clinical testing of Virodene
without following the procedures as required under the law and
regulations offends human dignity in respect of Persons Living with
HIV/AIDS (PLHIV) in breach of Article 12(2) of the Constitution.
e. That the Respondents have been in continuous breach of Article 14 of the
Constitution by allowing the Petitioners to be subjected to the poisonous
drug testing and by failing to provide remedial measures to detoxicate the
Petitioners from such harmful drugs.
f. That the circumstances stated in paragraphs (i) to (iv) above have
aggravated stigma towards the Petitioners and thereby creates
circumstances for breach of Article 12(1) and (2) of the Constitution;
g. That the Respondents have been in continuous breach of Article 12(1) by
not taking enough steps to prevent stigma in respect of the Petitioners
after being subjected to such unlawful drug testing.
h. That the Respondent have failed in their duty to protect the dignity, lives
and freedoms against cruel and degrading treatment to the Petitioners
and also provide equal protection under the law to the Petitioners, and
thereby in breach of Articles 12, 14, 13 (6)(e) and 29(2) of the
Constitution.
i. That the actions of the 2nd, 3rd and 4th Respondents and persons and
departments working under them in respect of the clinical tests to the
Petitioners conducted at 5th Respondent’s medical clinic are likely to
result into further breaches of Article 14 of the Constitution to the
prejudice of PLHIV

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 j. That, the High Court has jurisdiction vested to it by the Constitution of
the united Republic of Tanzania and other laws guiding procedures in
filling these type of complaints.

6. That the facts relied on by the Petitioners are as follows:

i. That, the Petitioners are PLHIV and were enrolled in the unlawful
Antiretroviral Clinical Trials conducted in Tanzania between 2000
and 2001 named as Virodene PO58 by Virodene Pharmaceutical
Holding (Pty) Ltd.
ii. That, some of the Petitioners were recruited from WAMATA, AMANA
and PASADA HIV treatment centres while some were recruited from
their habitual places of residence.
iii. That, Respondents being aware of the shortcomings of the trial and
proposals presented by Virodene Pharmaceutical Holding (Pty) Ltd
permitted and supported the carryout of the trials in Tanzania
contrary to the demand of the law which authorizes the National
Institute of Medical Research (NIMR) to grant permits.
iv. That, in both Lugalo Hospital and Chadibwa Medical Clinic the
whole trial process received the support of the Ministries of
Defense (Lugalo Hospital) and Home Affairs (the Tanzania Police
Force).
v. That, the Respondents and trial staff did not furnish Petitioners
with sufficient information regarding the authenticity, health and
medical implications as well as the end result of the trial but
treated the Petitioners as guinea pig.
vi. That, the Petitioners were misled that all requisite procedures
were followed in obtaining the permit to conduct such trials.
vii. That, the Government permitted and aided the carrying out of the
trial through the Ministry of Health and Social Welfare. In
alternative, despite the Government being aware of the defects of

20
 the said drugs (Virodene PO58) and procedural illegality in
conducting the trial, it did not respond adequately on the matter
to rescue lives of the Petitioners.
viii. That, the Tanzanian Government stopped the process in 2001 and
expelled the Virodene Company after the scandal was known to the
public. Expulsion was done without the Government had exercised
its obligation and power to arrest and prosecutes the Virodene
Company staff.
ix. That, after such expulsion Petitioners were abandoned, left
unattended and without any medical follow up. The matter went
on silence until when it was raised in Parliament by the MPs in 2008.
x. That, since then the Petitioners have tried to secure assistance
from within the government institutions such as from the
Commission of Human Rights and Good Governance (CHRAGG)
without success. They then approached the Legal Aid Committee of
the University of Dar es Salaam for further assistance hence the
basis for it to offer the current service.
7. That the redress sought by the Petitioners are as follows:
i. A declaration that Virodine trials in Tanzania were unlawful, illegal
and violated rights of the Petitioners that is, the right to life,
freedom from cruel, inhuman and degrading treatment, the right
to dignity, and the right to equal protection under the law;

ii. A declaration that by subjecting the Petitioners to the clinical trials

without following proper procedure offends Article 12 (1) and (2)
of the Constitution which guarantee the right to dignity;
iii. A declaration that the clinical trials through Virodene drugs to the
Petitioners amounts to breach of Article 14 of the Constitution
which guarantee right to life as the Petitioners’ lives have been
placed under jeopardy and to-date they are suffering from side
effects of the said drugs;

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 iv. A declaration that by subjecting the Petitioners to illegal clinical
trials amounts to breach of Article 13 (6) (e) of the Constitution
which guarantee the freedom against cruel, inhuman and degrading
treatment.
v. A declaration that by allowing the Petitioners to be subjected to
illegal clinical trials amounts to breach of Article 29 (2) of the
Constitution which guarantee the right to equal protection under
the law.
vi. A declaration that the Government breached its obligations to
respect and protect the rights of the Petitioners.
vii. That the Court be pleased to award each Petitioner a tune of One
Hundred Million Tanzanian shillings as damages for the sufferings
endured.
viii. Costs incidental to and in consequence of this Petition; and
ix. Any other order or relief that this Honourable Court may find fit to
grant.
8. That a panel of Judges of this Honourable Court is the only forum with
jurisdiction to entertain Constitutional matters.

WHEREFORE the Petitioners pray for Judgement and Decree from this Honourable Court
for the orders as pleaded in paragraph 7 of this Petition.
Dated at Dar es Salaam this ………….. day of 2014

1ST COUNSEL FOR THE PETITIONERS

2nd COUNSEL FOR THE PETITIONERS

VERIFICATION
WE, JAMES JESSE and FULGENCE MASSAWE, Counsels representing the Petitioners, do
VERIFY that all what is herein stated is true to the best of our knowledge.
Dated at Dar es Salaam this _______ day of_____________________2014

22
 1ST COUNSEL FOR THE PETITIONERS

2nd COUNSEL FOR THE PETITIONERS

Presented for filing this _______ day of ________________________2014

REGISTRY OFFICER
COPY TO BE SERVED UPON:
A.G. CHAMBERS
KIVUKONI FRONT
P.O. BOX 9050
DAR ES SALAAM

DRAWN AND FILED BY:

LEGAL AID COMMITTEE OF THE SCHOOL OF LAW,
UNIVERSITY OF DAR ES SALAAM,
P O BOX 35093,
DAR ES SALAAM
and
LEGAL AND HUMAN RIGHTS CENTRE,
LEGAL AID CLINIC, JUSTICE MWALUSANYA HOUSE,
KINONDONI BIAFRA, ISERE STREET,
P. O. BOX 79633,
DAR ES SALAAM

23
 IN THE HIGH COURT OF TANZANIA

DAR ES SALAAM MAIN REGISTRY

AT DAR ES SALAAM

MISCELLANEOUS CIVIL CAUSE NO: ............. OF 2017

IN THE MATTER OF THE CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA,

1977 - AS AMENDED FROM TIME TO TIME [CAP. 2 R.E. 2002]
AND
IN THE MATTER OF BASIC RIGHTS AND DUTIES ENFORCEMENT ACT
[CAP. 3 R.E. 2002]
AND
IN THE MATTER OF A PETITION TO CHALLENGE THE CONSTITUTIONALITY OF
SECTIONS 7 AND 15 OF THE REGIONAL ADMINISTRATION ACT
(CAP 97 R.E 2002)

BETWEEN
JEBRA KAMBOLE.................................................................... APPLICANT

VERSUS
THE ATTORNEY GENERAL........................................................RESPONDENT

ORIGINATING SUMMONS
(Made under Articles 26(1), (2) and 30(3) of the Constitution of the United Republic of Tanzania, 1977,
Sections 4 and 5 of the Basic Rights and Duties Enforcement Act, Cap 3 [R.E 2002] and Rule 4 of the
Basic Rights and Duties Enforcement (Practice and Procedure) Rules, 2014)

LET THE PARTIES CONCERNED, JEBRA KAMBOLE C/O TANGANYIKA LAW SOCIETY of
P.O Box __________ Dar es Salaam and the Attorney General of Tanzania of P.O
Box 9050 Dar es Salaam, appear before the Honorable Judge __________________,
sitting in Chambers on the _________, day of ____________, 2017 at 9:00 O’clock in
the forenoon or so soon thereafter on the hearing of the petition on the part of the

24
Petitioner, that this Honourable Court may be pleased to declare that;

(a) The provisions of sections 7 and 15 of The Regional Administration Act (CAP
97 R.E 2002), are unconstitutional for offending the provisions of
Article13(6)(a),(b) and (e); Article 15; Article 12; and Article 29(2) of the
Constitution of the United Republic of Tanzania of 1977 as amended.
(b) That the provisions of sections 7 and 15 of The Regional Administration Act
(CAP 97 R.E 2002), be declared null and void, and expunged from statute book
immediately.
(c) Each party to bare its own costs.

ON THE GROUNDS THAT;

a. The provisions of sections 7 and 15 of The Regional Administration Act (CAP 97
R.E 2002), which provide for law and order powers to the Regional
Commissioners and District Commissioners respectively are vague, unjustifiably
wide, ambiguous and too subjective thus contravening the Right to a fair hearing
and to the Right of Appeal; the Right to Presumption of Innocence; the Right
to personal freedom to live as a free person; and the Right to equal protection
under the laws of the country as provided for under The Constitution of the
United Republic of Tanzania of 1977 as amended.

b. The provisions of sections 7 and 15 of The Regional Administration Act (CAP 97

R.E 2002), which provide for law and order powers to the Regional Commissioners
and District Commissioners respectively do not provide any chance for granting
of bail within the said 48 hours hence contravening the Right to presumption of
innocence, the Right to a fair hearing; and the Freedom to live as a free person
as provided for under The Constitution of the United Republic of Tanzania of
1977 as amended.

c. The provisions of sections 7 and 15 of The Regional Administration Act (CAP 97

R.E 2002), which provide for law and order powers to the Regional

25
 Commissioners and District Commissioners respectively do not provide adequate
protection mechanism against abuse of power hence contravening the Right to
equality of human being and respect for personal dignity; the Right to freedom
to live as a free person; and the Right to equal protection under the law as
provided for under the Constitution of The United Republic of Tanzania of 1977
as amended.

d. The provisions of sections 7 and 15 of The Regional Administration Act (CAP 97

R.E 2002), which provide for law and order powers to the Regional Commissioners
and District Commissioners respectively are too subjective to personal whims of
Regional and District Commissioners, hence contravening the Right to equal
protection under the law; the Right to be heard; and the Freedom to live as a
free person as provided for under The Constitution of the United Republic of
Tanzania of 1977 as amended.

e. The provisions of sections 7 and 15 of the Regional Administration Act (CAP 97

RE 2002) which give powers to the Regional and District Commissioners
respectively provide an avenue to Regional and District Commissioners to
arbitrarily impose punishment of confinement to people they want which amount
to Inhuman and/or degrading punishment and/or treatment and also in violation
of the Right to dignity as provided for under The Constitution of the United
Republic of Tanzania of 1977 as amended.

SPECIFIC ARTICLES VIOLATED IN PART III OF CHAPTER ONE OF THE CONSTITUTION OF

THE UNITED REPUBLIC OF TANZANIA 1977 AS AMENDED

a. The provisions of sections 7 and 15 of The Regional Administration Act (CAP 97

R.E 2002), which provide for law and order powers to the Regional
Commissioners and District Commissioners respectively are vague, unjustifiably
wide, and ambiguous thus contravening the Right to a fair hearing and the Right
to appeal; the Right to presumption of innocence; the Right to personal freedom

26
 to live as a free person; and the Right to equal protection under the laws of the
country as provided for under Articles 13(6)(a),(b), 15 and 29(2) of the
Constitution of The United Republic of Tanzania of 1977 as amended.

b. The provisions of sections 7 and 15 of The Regional Administration Act (CAP 97

R.E 2002), which provide for law and order powers to the Regional Commissioners
and District Commissioners respectively do not provide any chance for granting
of bail within the said 48 hours hence contravening the Right to presumption of
innocence; the Right to a fair hearing; and the Freedom to live as a free person
as provided for under Articles 13(6)(a),(b), and 15 of The Constitution of the
United Republic of Tanzania of 1977 as amended.

c. The provisions of sections 7 and 15 of The Regional Administration Act (CAP 97

R.E 2002), which provide for law and order powers to the Regional
Commissioners and District Commissioners respectively do not provide for
adequate protection mechanism against abuse of power hence contravening the
Right to equality of human being and respect for personal dignity; the Right to
freedom to live as a free person; and the Right to equal protection under the
law as provided for under Articles 12, 15 and 29 (2) of The Constitution of the
United Republic of Tanzania of 1977 as amended.

f. The provisions of sections 7 and 15 of The Regional Administration Act (CAP 97

R.E 2002), which provide for law and order powers to the Regional
Commissioners and District Commissioners respectively are too subjective to
personal whims of Regional and District Commissioners hence contravening the
Right to equal protection under the law; the Right to be heard; and the Freedom
to live as a free person as provided for under Articles 29(2), 13(6)(a),(b), and 15
of The Constitution of the United Republic of Tanzania of 1977 as amended.

g. The provisions of sections 7 and 15 of the Regional Administration Act (CAP 97

RE 2002) which give powers to the Regional Commissioners and District
Commissioners respectively provide an avenue to Regional and District
27
 Commissioners to arbitrarily impose punishment of confinement to people they
want which amount to Inhuman and/or degrading punishment and/or treatment
and also in violation of the Right to dignity contrary to Articles 13(6)(e), and 12
of The Constitution of the United Republic of Tanzania of 1977 as amended.

PARTICULARS OF FACTS RELIED UPON;

a. That, on 28thJune 1997, The President of the United Republic of Tanzania did
assent to The Regional Administration Act No. 19 of 1997 which started to
operate immediately in the Mainland Tanzania.

b. That, the aim of The Regional Administration Act No. 19 of 1997 was to make
provision for restructuring regional administration for the purposes of
strengthening and promoting the local government system.

d. That, the provisions of sections 7 and 15 of The Regional Administration Act (CAP
97 R.E 2002), which provide for law and order powers to the Regional
Commissioners and District Commissioners respectively are vague, unjustifiably
wide, and ambiguous thus contravening the Right to a fair hearing and the
Right of Appeal ; the Right to presumption of innocence; the Right to personal
freedom to live as a free person and the Right to equal protection under the laws
of the country as provided for under Articles 13(6)(a),(b), 15 and 29(2) of the
Constitution of The United Republic of Tanzania of 1977 as amended.

e. That, the provisions of sections 7 and 15 of The Regional Administration Act (CAP
97 R.E 2002), which provide for law and order powers to the Regional
Commissioners and District Commissioners respectively do not provide any
chance for granting of bail within the said 48 hours hence contravening the
Right to presumption of innocence; the Right to a fair hearing; and the Freedom
to live as a free person as provided for under Articles 13(6)(a),(b), and 15 of The
Constitution of the United Republic of Tanzania of 1977 as amended.

28
 c. That, the provisions of sections 7 and 15 of The Regional Administration Act (CAP
97 R.E 2002), which provide for law and order powers to the Regional
Commissioners and District Commissioners respectively do not provide for
adequate protection mechanism against abuse of power hence contravening the
right to equality of human being and respect for personal dignity, the right to
freedom to live as a free person and the right to equal protection under the law
as provided for under Articles 12, 15 and 29(2) of the Constitution of The United
Republic of Tanzania of 1977 as amended.

d. That provisions of sections 7 and 15 of The Regional Administration Act (CAP 97

R.E 2002), which provide for law and order powers to the Regional
Commissioners and District Commissioners respectively are too subjective to
personal whims of Regional and District Commissioners hence contravening the
right to equal protection under the law, the right to be heard, and the freedom
to live as a free person as provided for under Articles 29(2), 13(6)(a),(b), and 15
of the Constitution of The United Republic of Tanzania of 1977 as amended.

e. The provisions of sections 7 and 15 of the Regional Administration Act (CAP 97

RE 2002) which give powers to the Regional Commissioners and District
Commissioners respectively provide an avenue to Regional and District
Commissioners to arbitrarily impose punishment of confinement to people they
want which amount to inhuman and/or degrading punishment and/or treatment
and also in violation of the right to dignity contrary to Articles 13(6)(e), and
12 of the Constitution of The United Republic of Tanzania of 1977 as amended.

THIS ORIGINATING SUMMONS has been taken out at the instance of TANGANYIKA LAW
SOCIETY on the grounds and reasons set-forth in the Affidavit of JEBRA KAMBOLE which
is annexed hereto and on any further grounds and reasons to be adduced at the hearing.
Given under my Hand and Seal of the Court this _____, day of __________, 2017

____________________
REGISTRAR
29
Presented for filing this ___________, day of _____________________, 2017

____________________
REGISTRY OFFICER

Drawn in Filed by:

TANGANYIKA LAW SOCIETY
P.O. BOX……………………….
DAR-ES-SALAAM

To be Served Upon
The Hon. Attorney General of the United Republic of Tanzania,
Attorney General Chambers,
Kivukoni Front,
P.o. Box 9050,
Dar-es-Salaam

30
 IN THE HIGH COURT OF TANZANIA
DAR ES SALAAM MAIN REGISTRY
AT DAR ES SALAAM

MISCELLANEOUS CIVIL CAUSE NO: ............. OF 2017

IN THE MATTER OF THE CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA,

1977 - AS AMENDED FROM TIME TO TIME [CAP. 2 R.E. 2002]
AND
IN THE MATTER OF BASIC RIGHTS AND DUTIES ENFORCEMENT ACT
[CAP. 3 R.E. 2002]
AND
IN THE MATTER OF A PETITION TO CHALLENGE THE CONSTITUTIONALITY OF
SECTION 7 AND 15 OF THE REGIONAL ADMINISTRATION ACT
(CAP 97 R.E 2002)

BETWEEN
JEBRA KAMBOLE................................................................... APPLICANT
VERSUS

THE ATTORNEY GENERAL.........................................................RESPONDENT

AFFIDAVIT
I, JEBRA KAMBOLE, an Adult, Male, Christian and resident of Dar es Salaam DO HEREBY
TAKE OATH and STATE the following:-

1. That, I am a Petitioner in this Petition thus conversant with the facts I am about
to depose hereunder.
2. That, I am Tanzanian, and patriotic citizen of The United Republic of Tanzania.
3. That, the Respondent is the Attorney General of the United Republic of Tanzania
who represents the Government and its institutions in legal matters in Courts of
law.

31
4. That, on 28th June 1997, The President of United Republic of Tanzania did assent
to The Regional Administration Act No. 19 of 1997 which started to operate
immediately in the Mainland Tanzania.
5. That, the aim of The Regional Administration Act No. 19 of 1997 (now CAP 97 R.E
2002) was to make provision for restructuring regional administration for the
purposes of strengthening and promoting the local government system.
6. That, the provisions of sections 7 and 15 of The Regional Administration Act (CAP
97 R.E 2002), which provide for law and order powers to the Regional
Commissioner and District Commissioner respectively are vague, unjustifiably
wide, and ambiguous thus contravening the right to a fair hearing and the right
of Appeal ; the Right to presumption of innocence; the Right to personal freedom
to live as a free person and the Right to equal protection under the laws of the
country as provided for under Articles 13(6)(a),(b), 15 and 29(2) of the
Constitution of The United Republic of Tanzania of 1977 as amended.
7. That, the provisions of sections 7 and 15 of The Regional Administration Act (CAP
97 R.E 2002), which provide for law and order powers to the Regional
Commissioners and District Commissioners respectively do not provide any
chance for granting of bail within the said 48 hours hence contravening the
Right to presumption of innocence, the Right to a fair hearing and the Freedom
to live as a free person as provided for under Articles 13(6) (a),(b), and 15 of the
Constitution of The United Republic of Tanzania of 1977 as amended.

8. That, the provisions of sections 7 and 15 of The Regional Administration Act (CAP
97 R.E 2002), which provide for law and order powers to the Regional
Commissioners and District Commissioners respectively do not provide for
adequate protection mechanism against abuse of power hence contravening the
right to equality of human being and respect for personal dignity, the right to
freedom to live as a free person and the right to equal protection under the law
as provided for under Articles 12, 15 and 29(2) of the Constitution of The United
Republic of Tanzania of 1977 as amended.

32
 9. That, the provisions of sections 7 and 15 of The Regional Administration Act (CAP
97 R.E 2002), which provide for law and order powers to the Regional
Commissioners and District Commissioners respectively are too subjective to
personal whims of Regional and District Commissioners hence contravening the
right to equal protection under the law, the right to be heard, and the freedom
to live as a free person as provided for under Articles 29(2), 13(6)(a),(b), and 15
of the Constitution of The United Republic of Tanzania of 1977 as amended.
10. That, the provisions of sections 7 and 15 of the Regional Administration Act (CAP
97 RE 2002) which give powers to the Regional Commissioners and District
Commissioners respectively provide an avenue to Regional and District
Commissioners to arbitrarily impose punishment of confinement to people they
want which amount to inhuman and/or degrading punishment and/or treatment
and also in violation of the right to dignity contrary to Articles 13(6)(e), and
12 of the Constitution of The United Republic of Tanzania of 1977 as amended.
11. That, the Constitution of United Republic of Tanzania of 1977 provide that every
person has the duty to observe and to abide by the Constitution and the laws of
the United Republic and further, every person has the right, in accordance with
the procedure provided by law, to take legal action to ensure the protection of
this Constitution and the laws of the land.
Dated at Dar es Salaam this………………….day of July, 2017.

……………………….
Petitioner

VERIFICATION

I, JEBRA KAMBOLE, the Petitioner in this Petition do hereby verify that all that is stated
in Paragraphs , 1, 2,3,4,5, 6,7, 8, 9, 10 and 11 are true to the best of my knowledge as
the Petitioner.
Verified at Dar es Salaam this………………. day of ………………………. 2017.

33
 ……………………………
JEBRA KAMBOLE

SWORN at Dar es Salaam by the said

JEBRA KAMBOLE who is introduced
to me by___________________ ……..……..…….
the latter been known to me personally JEBRA KAMBOLE
in my presence this….. day of …….….., 2017.

BEFORE ME:
NAME: …………………………………………………………………..
ADDRESS: ………..…………………………………………………………..
SIGNATURE: …………………………………………………………………….
COMMISSIONER FOR OATHS

Presented for filling this ……………………………………day of July, 2017

___________________________
REGISTRY OFFICER

Drawn in Filed by:

TANGANYIKA LAW SOCIETY
P.O. BOX……………………….
DAR-ES-SALAAM

To be Served Upon
The Hon. Attorney General of United Republic of Tanzania,
Attorney General Chambers,
Kivukoni Front,
P.o. Box 9050,
Dar-es-Salaam

34
 2. SUB – REGIONAL LEVEL.
THE EAST AFRICAN COURT OF JUSTICE
The jurisdiction of the East African Court of Justice is based on Rule of Law and Good
Governance. Under the Protocol, it may be added a jurisdiction to hear him on right
cases. Read the case of James Katabazi and 21 Others v. Secretary General of the East
African Community and the Attorney General of Republic of Uganda.
Laws governing the EACJ;
- The Treaty for Establishment of the East African Community.
- The East African Court of Justice Rules of Procedure.
Institutions before the East African Court of Justice;
- The East African Court of Justice
- The East African Court of Justice Appellate Division.
JURISDICTION OF EAST AFRICAN COURT OF JUSTICE FOR MATTERS INVOLVING
VIOLATION OF HUMAN RIGHTS.
As a general rule, the East African Court of Justice does not have jurisdiction to
entertain human right cases as per Article 27(2) of the Treaty for establishment of the
East African Court.
The East African Court of Justice is vested with jurisdiction to entertain cases which
involve violation of rule of law and good governance as per Article 6(d) of the Treaty
of the Establishment of East African Community as per Article 7(2) and Article 27(1).
How can East African Court of Justice entertain a case of human right nature?
According to the case of James Katabazi vs. Republic of Uganda, the court was of
the view that, “Jurisdiction of East African Court of Justice cannot extend to human
rights violation because there is no any protocol under Article 27(2) of the Treaty of
Establishment of the East African Court which confer the court jurisdiction to entertain
human right cases but for now the court may entertain the same case involving human
right violation if it will be brought before the court as a case concerning violation of
rule of law and good governance because even human right are provided under the law.
For example, an individual right has been violated and he or she want to file a case to
the EACJ. Advice? Here the answer is the EACJ has no jurisdiction on human rights
violation until the protocol established as per Article 27(2). However, the EACJ has

35
jurisdiction on rule of law and good governance as per Article 6(d). so, the case will be
instituted as a violation of rule of law and good governance as per Article 7(2).
a) East African Court of Justice – 1st instance Division.
This court is established under Article 23 of the Treaty for establishment of East African
Community. However, the rules of procedure before the court are provided under the
EACJ Rules of Procedure.
Who may lodge complaints?
The following persons may lodge complaint before the court;
- The Partner State – Art.28
- Secretary General of the E.A.C – Art.29
- Legal Person/Natural Person – Art.30
- Employee of the Community – Art.31
NB: For the purpose of learning, you have to focus on legal person and natural person
for the purpose of person who may lodge complaint before the court. However, the
document which is used to lodge complaint before the court is Reference as per Rule
25 of the EACJ Rules of Procedure.
Who are the parties in EACJ?
These parties are Legal Person (Applicant) and The State which violate (Respondent).
For example, a country stop to import corn and there is a contract on it, so you want
the court to make interpretation of the treaty, here you will sue the Secretary General
and the State or parties to the case if the court is asked to interpret any provision of
the treaty.
If any person either natural or legal person will institute the case before the court
against any state, if such a case involves interpretation of articles of the treaty, the
Secretary General of the E.A.C will be joined as the 1st Respondent and the State which
is sued will be the 2nd Respondent.
b) The East African Court of Justice – Appellate Division.
Any person who is aggrieved with the decision of the 1 st instance division may appeal
to the EACJ Appellate Division as per Article 23 of the Treaty. Also, article 35A, however
appeals should based on the point of law
- Ground for lack of jurisdiction

36
 - Procedural irregularity
Procedure before the Appellate Division
These are governed by the Part C, Section XVI of the East African Court of Justice Rules
of Procedure. However, the documents used to institute appeal are Notice of Appeal
as per Rule 88 (Form B) and Memorandum of Appeal as Rule 97(3) (Form C).
Applications before the Appellate Division, if the appeal is out of time to lodge notice
after expiration of 30 days may apply for extension of time as per Rule 88(2). Also,
documents for application for extension of time are Notice of Motion (Form A) and
Normal Affidavit.
For example, if there is a question which requires you to institute a matter before the
court but the victim has not exhausted available domestic remedies, such matter will
be instituted to the East African Court of Justice.
NB: In order to institute a case before the EACJ it is not mandatory to exhaust available
local remedy but such case must base on the violation of rule of law and good
governance.

37
 IN THE EAST AFRICAN COURT OF JUSTICE
HOLDEN AT ARUSHA
FIRST INSTANCE DIVISION

REFERENCE NO. …………….OF 2016

MEDIA COUNCIL OF TANZANIA……………………………..APPLICANT

Versus

THE ATTORNEY GENERAL OF

THE UNITED REPUBLIC OF TANZANIA ………………...…………. RESPONDENT

STATEMENT OF REFERENCE
Under Articles 6(d), 7(2), 8(1)(c), 27(1) and 30(1) of the Treaty for the Establishment
of the East African Community
and
Rule 24 (1) (2) (3) (4) and (5) of the East African Court of Justice Rules of Procedure
2013

THE HUMBLE REFERENCE OF MEDIA COUNCIL OF TANZANIA, whose address for the
purpose of this Reference is stated at the foot of this statement, refers;

1. The Applicant is an Non-Governmental Organisation Registered in Tanzania under

Registration No........ and was registered in________ and amongst its stated
objectives are the encouragement of the media to defend freedom of the press and
social justice as well as freedom of expression (see annexure 1)

2. The Applicant address for service for the purpose of this Reference will be under
the care of :
Fulgence T. Massawe, Advocate
Legal and Human Rights Centre,
Legal Aid Clinic Kinondoni, Justice Mwalusanya House, Isere Street,

38
 P. O. BOX 79633,
DAR ES SALAAM
Cell: +255 784 32 89 88
Tel: +255 (0)22 2761205/6

AND

Jebra Kambole (Advocate)

Law Guards Advocates,
Togo Tower, 2nd Floor, Manyanya [Link].
P.O. Box 763,
DAR ES SALAAM
[Link]
+255 717 334 032

The Respondent
3. The Respondent is the Attorney General of the United Republic of Tanzania. The
Respondent’s address of service for the purpose of this Reference is 20 Barabaraya
Kivukoni, 11492 Dar es Salaam, Tanzania. The service of this Reference shall be
effected by the advocates of the Applicants. Proof of service will be provided to the
Court.

The Subject Matter of the Reference

4. That the Media Service Act No. 12 of 2016 (hereinafter “the Act”) was enacted by
the Parliament of United Republic of Tanzania on 5th November 2016 and was signed
by the president of United Republic of Tanzania on 16 th November 2016. The Act
come as restriction to the freedom of expression which is a cornerstone of the
principle of democracy, rule of law, accountability, transparency and good
governance.(See Annexure 2)

5. This Statement of Reference concerns a violation of Articles 6(d), 7(2) and 8(1)(c)
of the Treaty. Under the Treaty, Tanzania has an obligation to uphold the
fundamental principles of the Community. The fundamental principles enshrined in
Article 6(d) include;

39
 “good governance including the adherence to democracy, the rule of law,
accountability, transparency… as well as the recognition, promotion and
protection of human and peoples’ rights in accordance with the provisions
of the African Charter on Human and Peoples’ Rights.”

6. Furthermore, Tanzania has an obligation to uphold the Community’s operational

principles as listed in Article 7. Article 7(2) prescribes that Partner States;
“under take to abide by the principles of good governance, including adherence
to the principles of democracy, rule of law, social justice and the
maintenance of universally accepted standards of human rights.”

7. In addition, pursuant to Article 8(1)(c) Tanzania has undertaken to “abstain from

any measures likely to jeopardise the… implementation of the provisions of [the]
Treaty.”

Points of Law on Which the Reference is based

Jurisdiction
8. The United Republic of Tanzania (“Tanzania”) is an East African Community (the
“Community”) Partner State, having acceded to the Treaty on 7 July 2000. 1 Under
Article 23 of the Treaty, the Court is tasked with ensuring the adherence to law in
the interpretation and application of and compliance with the Treaty. Article 27(1)
of the Treaty gives the Court jurisdiction to interpret the Treaty’s provisions. This
Court has confirmed in its case law that it is the only appropriate Court to rule on
questions regarding the interpretation and application of Partners States’
obligations under the Treaty.2The Court has previously held that interpretation of

1
See [Link]
2
East African Court of Justice (“EACJ”),Anyang’Nyongo’ & Others v. the Attorney General of Kenya, Ref.
No. 1 of 2006; EACJ, Modern Holdings (EA) Ltd v. Kenya Ports Authority, Reference No.1 of 2008; and
EACJ, Emmanuel MwakishaMjawasi& 78 Others v. the Attorney General of Kenya, EACJ Appeal No.4 of
2011.

40
 the question whether Articles 6(d) and 7(2) of the Treaty have been violated
squarely falls within the ambit of the Court’s jurisdiction.3

9. As set out in more detail below,4 the Order violates Articles 6(d), 7(2) and 8(1)(c) of
the Treaty. Furthermore, Section 25(1) of the Newspapers Act also violates the
fundamental and operational principles codified in Articles 6(d) and 7(2) of the
Treaty.

10. The Statement of Reference was submitted within 2months of the Order, dated 16 th
November 2016, as required under Article 30(2) of the Treaty.

11. In light of the above, the Applicant respectfully submit that the Court has the
required jurisdiction to consider and determine this Reference and grant the relief
sought by the Applicant

Merits

12. The Order, the provisions of the Media Service Act, 2016 violate Articles 6(d), 7(2)
and 8(1)(c) of the Treaty in the following ways:

i) That the Media Service Act No. 12 of 2016 under Section 7 (3) (a), (b), (c),
(f), (g), (h), (i), (h) and (j) which restrict type of news or content restriction
without reasonable justification hence violate freedom of expression which
is corner stone of democracy and rule of law thus violate Art 6(d), 7(2) and 8
(1) (c) of The Treaty for The Establishment of the East African Community.
ii) That the Media Service Act No. 12 of 2016 creates The Board of Accreditation
and amongst its function is to provide for mandatory accreditation also power
to cancel for the same under section 13, 14, 19, 20 and 21of Media Service

3
EACJ, Burundi Journalists Union v. AG of Burundi, Reference No. 7 of 2013, par. 41.
4
See par. 16.

41
 Act thus violate Art 6(d), 7(2) and 8 (1) (c) of The Treaty for The
Establishment of the East African Community.

iii) That the Media Service Act No. 12 of 2016 under section 35, 36, 37, 38, 39,
40 provide for criminal defamation pressed for unjustified restriction on
freedom of express and right to access information and thus violate Art 6(d),
7(2) and 8 (1) (c) of The Treaty for The Establishment of the East African
Community.
iv) That the Media Service Act No. 12 of 2016 under section 50 and 54 provide
for criminalization of false news which unjust and restrict freedom of
expression and access to information and thus violate Art 6(d), 7(2) and 8 (1)
(c) of The Treaty for The Establishment of the East African Community.
v) That the Media Service Act No. 12 of 2016 under section 52 and 53 provide
for criminalization of seditious statements which unjust and restrict freedom
of expression and access to information and thus violate Art 6(d), 7(2) and 8
(1) (c) of The Treaty for The Establishment of the East African Community.
vi) That the Media Service Act No. 12 of 2016 under section 58 and 59 provide
for the power to the Minister to prohibit importation of public or sanction
which unjust and restrict freedom of expression and access to information
and thus violate Art 6(d), 7(2) and 8 (1) (c) of The Treaty for The
Establishment of the East African Community.

13. The Reference is supported by the affidavit of KAJUBI MKAJANGA the Executive
Secretary of the Applicant (Annex 3) and any other evidence that shall be made
available as part of further submissions.

Orders Sought

14. In light of the above, the Applicant respectfully request the Court, pursuant to
Articles 27(1), 30 and 35of the Treaty and Rules68 and 69 of the Rules of the Court,
to:

42
i) Declare that the provisions of Section 7 (3) (a), (b), (c), (f), (g), (h), (i), (h)
and (j)of Media Service Act No. 12 of 2016 restrict type of news or content
thus infringe freedom of expression thereby constitutes a violation of the
Respondent’s obligation under the Treaty to uphold and protect the
Community principles of democracy, rule of law, accountability,
transparency and good governance as specified in Articles 6(d) and 7(2) of
the Treaty;
ii) Declare that the provisions of Section 13, 14 19, 20 and 21of Media Service
Act No. 12 of 2016 restrict freedom of expression thereby constitutes a
violation of the Respondent’s obligation under the Treaty to uphold and
protect the Community principles of democracy, rule of law, accountability,
transparency and good governance as specified in Articles 6(d) and 7(2) of
the Treaty;
iii) Declare that the provisions of Section 35,36,37,38,39 and 40 of Media Service
Act No. 12 of 2016 restrict freedom of expression thereby constitutes a
violation of the Respondent’s obligation under the Treaty to uphold and
protect the Community principles of democracy, rule of law, accountability,
transparency and good governance as specified in Articles 6(d) and 7(2) of
the Treaty;
iv) Declare that the provisions of Section 50 and 54 of Media Service Act No. 12
of 2016 restrict freedom of expression thereby constitutes a violation of the
Respondent’s obligation under the Treaty to uphold and protect the
Community principles of democracy, rule of law, accountability,
transparency and good governance as specified in Articles 6(d) and 7(2) of
the Treaty;
v) Declare that the provisions of Section 52 and 53 of Media Service Act No. 12
of 2016 restrict freedom of expression thereby constitutes a violation of the
Respondent’s obligation under the Treaty to uphold and protect the
Community principles of democracy, rule of law, accountability,

43
 transparency and good governance as specified in Articles 6(d) and 7(2) of
the Treaty;
vi) Declare that the provisions of Section 58 and 59of Media Service Act No. 12
of 2016 restrict freedom of expression thereby constitutes a violation of the
Respondent’s obligation under the Treaty to uphold and protect the
Community principles of democracy, rule of law, accountability,
transparency and good governance as specified in Articles 6(d) and 7(2) of
the Treaty;
vii) Order the Respondent State to cease the application of Section 7 (3) (a), (b),
(c), (f), (g), (h), (i), (h), (j),13, 14 19, 20 and 2135, 36, 37, 38, 39, 40, 50,
52, 53, 54 58 and 59 of the Media Service Act No 12 of 2016 and repeal or
amend the Media Service Act No. 12 of 2016 to bring it in conformity with the
fundamental and operational principles codified in Articles 6(d) and 7(2) of
the Treaty;
viii) Each party to bare it’s own costs of the Reference
ix) Any other relief that the Court deems appropriate.

Dated at Dar es Salaam, Tanzania this _______ December, 2016

________________________
Fulgence Thomas Massawe

___________________________
Jebra Kambole

Lodged in the Registry on the ……………………..day of…………….……….., 2016

___________________________
Registrar
Drawn and filed by:
Fulgence T. Massawe, Advocate
Legal and Human Rights Centre,
Legal Aid Clinic Kinondoni, Justice Mwalusanya House, Isere Street,
P. O. BOX 79633,
DAR ES SALAAM
44
Tanzania
Cell: +255 784 32 89 88
Tel: +255 (0)22 2761205/6

And

Jebra Kambole (Advocate)

Law Guards Advocates,
Togo Tower, 2nd Floor,
Manyanya Street.
P.O. Box 763,
KINONDONI.
DAR ES SALAAM
[Link]
+255 717 334 032

To be served upon:

United Republic of Tanzania

Attorney General
Mr. George M. Masaju
20 BarabarayaKivukoni
11492 Dar es Salaam
Tanzania

45
 IN THE EAST AFRICAN COURT OF JUSTICE
HOLDEN AT ARUSHA
FIRST INSTANCE DIVISION
REFERENCE NO. …………….OF 2016
MEDIA COUNCIL OF TANZANIA……………………………..APPLICANT
Versus
THE ATTORNEY GENERAL OF
THE UNITED REPUBLIC OF TANZANIA ………………...…………. RESPONDENT

AFFIDAVIT IN SUPPORT OF THE REFERENCE

I, KAJUBI MKAJANGA, of c/o Fulgence T. Massawe, Advocate, Legal and Human Rights
Centre, Legal Aid Clinic Kinondoni, Justice Mwalusanya, House, Isere Street, P. O. BOX
79633,DAR ES SALAAM hereby make an oath and state as follows:

1. THAT, I am an adult male Tanzanian of sound mind and an Executive Secretary

of the Media Council of Tanzania the Applicant herein and swear this affidavit in
support of the Reference.

2. THAT, on November 5, 2016 the National Assembly of United Republic of

Tanzania enacted the Media Service Act No. 12 of 2016 (hereinafter the Act)
which among other function is to regulate and restrict freedom of expression.

3. THAT, on November 16, 2016 the President of United Republic of Tanzania signed
the Act and it is yet to come to force.

4. THAT, the Act establishes media regulatory bodies that lack independence and
specific regulatory guideline.

5. THAT, the Act requires media houses and institutions which include newspapers
to apply for a license in order to operate.

6. THAT, the Act require media house and journalists in exercise their duty to give
a certain category of news and information and public will receive only such type
of news or information

7. THAT, the Act prohibits journalists from practicing journalism unless they are
licensed, accredited and holder of press card.

8. THAT, the Act criminalized defamation with absolute privilege to the

government officials.

46
 9. THAT, the Act criminalize publication, distribute and importation of seditious
material which is overly broad and vague.

10. THAT, the Act criminalizes publication of false statement, report or rumors and
imposes penalty and it does not consider the intention or mensrea of the maker.

11. THAT, the Act gives absolute powers and discretion to the minister to prohibit
importation of publication and to sanction publication of any content.

12. THAT my attorneys further brought to my attention the provisions of the Treaty
Establishing the East African Community, the African Charter on Human and
People's Rights and several other human rights instruments and advised me,
which advice I believe to be true, that the criminal defamation regime and other
media and journalists restrictions under the Act infringes these laws

13. That I believe that the practices and laws complained of herein threaten the
practice of journalism and media houses, impose fear upon practitioners and
subsequently leads to self-censorship for fear of being criminally tried and
offends every tenet of a free and democratic society, which depends on free
exchange of information and ideas.

14. That I further believe that these practices stifle public debate, freedom of
expression, impede on the right to access information by the practice by the
public, the right to receive and impart information which are all central tenets
of democracy, accountability and rule of law.

15. That I also believe that these actions are not inconformity with the operation
and fundamental principles of the East Africa Community and its constituent
instruments.

Dated at Dar es Salaam this _________________day of December 2016

___________________
DEPONENT
VERIFICATION

I, KAJUBI MKAJANGA do hereby certify that all what is stated from paragraphs 1 to
14 hereinabove is true to the best of my own knowledge and belief.

Verified at Dar es Salaam this ___________day of December, 2016

_____________________
DEPONENT

47
 SWORN at Dar es Salaam by the said
KAJUBI MKAJANGA who is identified to
___________________
me by Fulgence T. Massawe the latter
being known to me personally this DEPONENT
__________.day of December, 2016

BEFORE ME:
NAME: ....................................
Signature: …………………….…………………….
Designation: COMMISSIONER FOR OATHS

Presented for filling on this ……………………..day of…………….……….., 2016

___________________________
REGISTRY OFFICER
Drawn and filed by:
Fulgence T. Massawe, Advocate
Legal and Human Rights Centre,
Legal Aid Clinic Kinondoni, Justice Mwalusanya House, Isere Street,
P. O. BOX 79633,
DAR ES SALAAM
Tanzania
Cell: +255 784 32 89 88
Tel: +255 (0)22 2761205/6

And

Jebra Kambole (Advocate)

Law Guards Advocates,
Togo Tower, 2nd Floor,
Manyanya Street.
P.O. Box 763,
KINONDONI.
DAR ES SALAAM
[Link]
+255 717 334 032

48
To be served upon:
United Republic of Tanzania
Attorney General
Mr. George M. Masaju
20 Barabaraya Kivukoni
11492 Dar es Salaam
Tanzania

3. REGIONAL LEVEL.
Laws governing at Regional level are;
- African Charter on Human and People’s Rights.
- African Charter on the Rights and Welfare of the Child.
- Protocol to the African Charter on Human and People’s Rights on the Rights of
Women in Africa.
- Protocol to the African Charter on Human and People’s Rights on the
establishment of an African Court on Human and People’s Rights.
AFRICAN CHARTER ON THE RIGHTS AND WELFARE OF THE CHILD.
This was established in 1990 specifically to promote the rights and welfare of the child
in the world. It was adopted in 1990 by the Organization of African Unity (AU) to provide
for the protection and promotion of Children’s at the African Regional Level as per
Article 32.
Why the African Charter on the Rights and Welfare of the Child?
There are several explanations as to why the OAU adopted the ACRWC despite the fact
that all, except one, African countries are part to the Convention on the Rights of the
Child.
THE FRAMEWORK OF THE AFRICAN CHARTER ON THE RIGHTS AND WELFARE OF
THE CHILD.
It reinforces and complements the protection given to children by the Convention on
the Rights of the Child includes;
- The child’s best interests principle.
- The participation of child in armed conflicts.
- Marriage and children marriage promises.

49
 - Juvenile justice.
- Refugee and internally displaced children.
- Protection of children against apartheid and discrimination; and
- Socio – economic and cultural rights (i.e rights to education, health and
nutrition).
In order to reinforce the foregoing protection, the ACRWC enshrined basic principles
for the protection of the child;
i) Definition of the child – Art.2
ii) The best interest of the child – Art.4(1)
iii) Non – discrimination – Art.3
iv) The Child’s right to life, survival and development of children – Art.5
v) Child participation – Art.7
vi) Duties of the child – Art.31
The obligations of the state towards protection of the children are;
i) To implement measures (adoption, review laws) and principles.
ii) To recognize the rights, duties and freedom enshrined in the charter.
Concluding remarks: specificities of the African Human Rights system;
- Concentration of both civil and political rights and economic, social and cultural
rights.
- Proclaiming the rights of peoples.
- Proclamation of the duties of the individuals.
- Enhanced special protection for several categories of vulnerable people.
THE INSTITUTIONS FOR HUMAN RIGHTS IN AFRICA.
There are two institutions responsible for human rights in Africa which are;
a) The African Commission on Human and People’s Rights.
b) The African Court on Human and People’s Rights.

50
 a) THE AFRICAN COMMISSION ON HUMAN AND PEOPLE’S RIGHTS.
This was established in 1981 under Article 30 in order to promote human and people’s
rights, and to ensure protection of human and people’s rights. However, the commission
is composed of; (Article 31);
- 11 members from among African personalities of the highest reputation known
for their high morality, integrity, impartiality and competence in human and
people’s rights.
- Members serve in their personal capacity.
Powers of the Commission – Article 45 of the Banjul Charter;
i) The Commission is vested with powers to promote and ensure protection of
human rights in all states which are signatories.
ii) To interpret the Charter once it is requested to do so by a state of any inter
national organ.
Who may lodge complaint before the Commission?
- State parties to the Charter – Article 47.
- Individuals and NGO’s – Article 55.
The conditions to comply with before lodging complaint to the African Commission
on Human and People’s Rights are;
i) The complained must not be pending or determined by any international
court as per Article 56(7) of the ACHPR.
ii) The complaint must not be based on media information as per Art.56(4).
iii) The complaint must be submitted within reasonable time which will depend
on circumstances as per Article 56(6) of the ACHPR.
iv) To exhaust available local remedies as per Article 56(5). However, the
exception to the rule of exhausting available local remedies are;
 If domestic courts are not independent, it is done by the person not
from judiciary. Eg; Soldiers.
 If there is established principle in domestic court, the court shall not
question on the legality or illegality of an provision in the constitution
because even the court is the creature of the constitution.

51
  If there is undue prolong in the procedure in the local court as per
Article 50, 56(5) of Banjul Charter.
 If there is any act which caused the victim of human right to institute
case without exhausting available local remedies.
 If there is undue delay in domestic courts.
NOTE: The procedure before the commission are governed by the Rules of Procedure
on the African Commission on Human and People’s Rights. However, the documents
for institution of complaint before the Commission is known as Communication as per
Rule 83 of the Rules of Procedure of African Commission on Human and People’s Rights.
The conditions to comply with after lodging complaint to the African Commission on
Human and People’s Rights are;
i) The concerned state party is required to submit explanations clarifying the HR
issue within 4 months.
ii) These explanation are served on the complainant, who may wish to make
additional information.
iii) The determination of the complaint is done in private session.
iv) At the end, the ACHPR makes its observations & recommendations, which are
communicated to the AU General Assembly for appropriate measures.
v) Address;
The African Commission on Human and People’s Rights
P O Box 673, Banjul, The Gambia
Tel: 220 392962
Fax: 220 390764
PROCEDURE OF AFRICAN COMMISSION ON HUMAN AND PEOPLE’S RIGHTS
- Consideration state parties reports
- Investigation – Article 46
- Communications (Art.’s 47 – 59)
 Inter – state; and
 Individual communication (Art.’s 55 – 59)

52
 b) AFRICAN COURT OF HUMAN AND PEOPLES RIGHTS.
This court was established under Article 1 of the Protocol establishing the Court
adopted in 1998, and came into force in 2004, its operation started in Addis Ababa
Ethipoi in 2006 but in August, 2007, Arusha. Its mandate is to complement the
protective mandate of the Commission as per Art. 2 and the court is composed of 11
Judges.

This court comprised of all African Court except a country which is not in the African
Union (Morocco) and the countries which have not ratified the Protocol. However, the
decision of this court is enforced by the counsel (Committee of Ministers of African
Union) and its judgment are published and follow up are made on such enforcement.

There are reasons why you can refer the human right case directly to the African Court,
if there is;

- Undue delay
- The court system is not independent
- Therefore, African Court is the only court which gives compensation to the
affected person.

JURISDICTION OF THE COURT.

To access the court any potential litigant or user of the court must understand the
jurisdiction of the court. There are two main jurisdictions of the court which are;

a) Contentious Jurisdiction.

Where the court examine allegations of human rights violations brought by one entity
against another entity, for example on individual or NGO against a state or one state
against another state.

Under this jurisdiction, the court has jurisdiction to deal with all cases and disputes
submitted to it concerning the interpretation and application of the Charter, the
Protocol and any other relevant human rights instrument ratified by the states
concerned. In this case, the court also power to promote amicable settlement of cases
pending before it in accordance with the provisions of the Charter.

53
 b) Advisory Jurisdiction.

Where a relevant entity seeks the opinion of the court on human rights or related
matter. For example, requesting the court to provide its opinion on a certain provision
of the Charter or any other human rights instrument.

Under this jurisdiction, the Court may, at request of a Member state of the African
Union, any of the organs of the African Union, or any African organization recognized
by the African Union, provide an opinion on any legal matter relating to the Charter or
any other relevant human rights instrument provided that the subject matter of the
opinion is not related to a matter being examined by the Commission.

ACCESS TO THE COURT IN CONTENTIOUS MATTERS.

Access to the court in contentious matters can be in two ways;
i) Direct access.
Under Article 5 of the Protocol gives direct access to the following;
 The African Commission, state parties to the Charter, state party which lodges a
complaint before the Commission, state party against which was lodged before
the commission, state party whose citizen is a victim of human rights violation,
and a state party that has an interest.
 African Inter – Governmental Organization (Eg; ECOWAS, SADC etc.)
The above entities can bring cases to the Court, even against states that have not made
the declaration.
ii) Indirect access.
Apart from the above entities cited above, other entities may only access the court
indirectly. Article 5(3) of the Protocol provides that the Court may entitle relevant
NGO’s with observer status before the Commission and individuals to institute cases
directly before the Court, in accordance with Article 34(6).

54
What does Article 34(6) provide? Ratification and declaration explained;
- Therefore for an individual or an NGO to bring a case before the court, the state
against which they are complaining must have made the declaration under
Article 34(6). They cannot submit a case directly.
- However, they can do so indirectly. (How)? – By bringing a communication before
the African Commission, and the latter can, at its discretion, decide to submit
the matter to the Court.
- Circumstances under which the Commission may submit a matter to the Court –
see Rule 118 of the Rules of Procedure of the African Commission on Human and
People’s Rights of 2010.
- If the Commission decides to submit the matter to the Court, the court may
decide to hear the individuals or NGO’s before the Commission as per Rule 29 of
the Rules of Court of 2010.
Issues to consider before submitting a case to the court;
i) Whether the state has ratified the Protocol
ii) Whether the state has made the declaration
iii) If an NGO, whether the NGO has observer status before the Commission and
whether the state has made the declaration.
In bringing a case to the Court, it is also important to note the following specific
procedures that could be utilized;
i) Third party interventions – Rule 53 of the Rules of Court.
ii) Interim measures – at request or suo moto – Rule 51
iii) Preliminary objections – Rule 52
iv) Amicable settlement – Rule 56
v) Joinder of Cases – Rule 54
vi) Judgment in default – Rule 55
vii) Discontinuance – Rule 58

55
NB: The court exercises jurisdiction in;

 Rationae matriae (i.e subject matter) as per Article 3, in the case of Urban
Mkandawile v. Malawi, the court held that, in order to litigate in African Court,
there must be a right in Protocol or Charter which have been infringed.
 Jurisdiction rationae personae (Article 34(6) and Article 5(3) of the Rules of the
Court, where the state has not made the declaration the court does not have
jurisdiction on a case brought by an individual or NGO.
 Jurisdiction rationae temporis as per Article 27(2) & Rule 51(1) of the Rules of
the Court.

ADMISSIBILITY

This is provided for under Art. 6 of the protocol to the African Charter on Human and
People’s Rights on the Establishment of an African Court on Human and People’s Rights
of 1998;

i) The Court, when deciding on the admissibility of a case instituted under

Article 5 (3) of this Protocol, may request the opinion of the Commission
which shall give it as soon as possible.
ii) The Court shall rule on the admissibility of cases taking into account the
provisions of article 56 of the Charter.
iii) The Court may consider cases or transfer them to the Commission

In the case of Michelot Yogombaye v. Republic of Senegal (2009), the applicant file
an application that his right has been violated and raise an objection the court has no
jurisdiction rationae personae. If the court found has no jurisdiction, why should they
conduct hearing? ICJ provides the court has jurisdiction on forum prerogatory but finally
rejected has no jurisdiction. However, the 2nd option provides the court cannot hear
the case that does not submit the declaration.

56
Who can access the court?

According to Article 5 of the protocol to the African Charter on Human and People’s
Rights on the Establishment of an African Court on Human and People’s Rights of 1998
provides for the following can submitted;

- The Commission
- The State party which had lodged a complaint to the Commission
- The State party against which the complaint has been lodged at the Commission
- The State party whose citizen is a victim of human rights violation
- African Intergovernmental Organizations
- An individual or NGO which has observer status before the Commission provided
the requirement of Art. 34 (6) of the Protocol are met.
- A State party which has an interest in a case may submit a request to the Court
to be permitted to join. (Rule 33).

NOTE: A person who can access the court must be a citizen of African Country whose
state is a signatory to the Banjul Charter, ratified and signed the Protocol to establish
the court as well as his country accepted the jurisdiction of the court.

Compartibility

- Ratione personae - where an NGO does not have observer status before the
Commission, the Court does not have jurisdiction.
- Ratione materiae - where the subject matter.
- Rationae temporis – continuous violations.

57
 CRITERIA FOR ADMISSIBILITY.

Under Article 56 of the African Charter on Human and People’s Rights provides that,
Communications relating to human and peoples' rights referred to in 55 received by the
Commission, shall be considered if they;,

i) Indicate their authors even if the latter request anonymity.

ii) Are compatible with the Charter of the Organization of African Unity or with
the present Charter,
iii) Are not written in disparaging or insulting language directed against the State
concerned and its institutions or to the Organization of African Unity,
iv) Are not based exclusively on news discriminated through the mass media,
v) Are sent after exhausting local remedies, if any, unless it is obvious that this
procedure is unduly prolonged,
vi) Are submitted within a reasonable period from the time local remedies are
exhausted or from the date the Commission is seized of the matter, and
vii) Do not deal with cases which have been settled by these States involved in
accordance with the principles of the Charter of the United Nations, or the
Charter of the Organization of African Unity or the provisions of the present
Charter.

CONDITIONS FOR ADMISSIBILITY OF APPLICATIONS

According to Rule 40 of the Rules of Court of 2010 provides that, Pursuant to the
provisions of article 56 of the Charter to which article 6(2) of the Protocol refers,
applications to the Court shall comply with the following conditions;

i) Disclose the identity of the Applicant notwithstanding the latter’s request for
anonymity;
ii) Comply with the Constitutive Act of the Union and the Charter;
iii) Not contain any disparaging or insulting language;
iv) Not be based exclusively on news disseminated through the mass media;
v) Be filed after exhausting local remedies, if any, unless it is obvious that this
procedure is unduly prolonged;

58
 vi) Be filed within a reasonable time from the date local remedies were
exhausted or from the date set by the Court as being the commencement of
the time limit within which it shall be seized with the matter; and
vii) Not raise any mater or issues previously settled by the parties in accordance
with the principles of the Charter of the United Nations, the Constitutive Act
of the African Union, the provisions of the Charter or of any legal instrument
of the African Union.

EXHAUSTION OF LOCAL REMEDIES

According to Article 50 of the African Charter on Human and People’s Rights of 1981
provides that, “The Commission can only deal with a matter submitted to it after
making sure that all local remedies, if they exist, have been exhausted, unless it is
obvious to the Commission that the procedure of achieving these remedies would be
unduly prolonged.”

i) Available remedies.
Remedy is available only if the applicant can make sure the use of it in the circumstance
of case. However, in a situation where the jurisdiction of the courts has not been
challenged local remedies are deemed not only to be unavailable but also non existent.

ii) Effective.
A remedy that has no prospect of success constitute an effective remedy, no capable
of redressing the complaints of the author.
iii) Sufficient.
The existence of a remedy must be sufficiently certain, not only in the theory but also
in practice, failing which lack the requisite accessibility and effectiveness. Therefore,
if the applicant cannot turn to the judiciary of because of a generalized fear for his
life, local remedies would be considered unavailable to him.
Read case;
- Dawda Jawara Vs. The Gambia
- Velasquez Rodrigese v. Hondurus

59
 4. INTERNATIONAL LEVEL.

There are three international level which cover human rights such as;

a) The Universal Declaration of Human Rights, 1981

b) The International Covenant on Civil and Political Rights, 1966
c) The International Covenant on Economic, Social and Cultural Rights, 1966

a) The Universal Declaration of Human Rights, 1981.

This is the primary United Nations document articulating human rights standards and
norms and it is non – binding statement to be followed by all states (state practice and
opinion juris). However, the declaration represents common standards and covers wide
range of rights which are sufficient to cover all rights of people of all cultures and
religions as per Article 17 to 30 of the Universal Declaration of Human Rights of 1981.

b) The International Covenant on Civil and Political Rights, 1966.

This Covenant contains the details of the Basic Civil and Political rights of the Individual.
This was created in accordance with 1st Generation which has 62 Articles.

Examples of Civil rights; Examples of Political rights;

- Right to life - Freedom of expression,

- Right to liberty assembly, association,
- Right to freedom of movement, - Right to take part in Gvt,
Cruel and inhuman Periodic and meaningful election

NB: Under Article 1 to 16 of the Universal Declaration of Human Rights provides for civil
and political rights. However, In International Covenant on Civil and Political Rights of
1966 it consists of two optional protocols which includes;

- 1st Optional Protocol creates an individual.

- 2nd Optional Protocol abolishes the death penalty.

60
 c) The International Covenant on Economic, Social and Cultural Rights, 1966.
These are rights which are guaranteed of minimum necessities of life to human being.
In the absence of those rights the existence of human rights is likely to be endangered.
However, economic, social and cultural are based on fundamentally on the concept of
social equality that is equality. The Covenant is monitored by the United Nations
Committee on Economic, Social and Cultural Rights. Examples, an adequate standard
of living, free choice of employment, protection against unemployment and right to
form party and join trade union and just favorable remuneration.

NB: The document used to institute the case to the committee is Communication.

61
 LEGAL AID.
What is legal aid?

This refers to voluntary assistance given to a person who in one way or another need
an assistance specifically on legal matters.

TYPES OF LEGAL AID.

i) Voluntary legal aid
ii) Compulsory legal aid
a) Voluntary Legal Aid.

This is a legal aid provided by an advocate, NGO’s or any association to the person who
need legal aid on any field of law.

b) Compulsory Legal Aid.

This is a legal aid which is governed by the law. The Legal Aid Act Compulsory Legal Aid
under the Legal Aid Act. According to the Legal Aid Act any person who entitled to
receive legal aid under the law may approach the legal aid provider or may make
application before court so as the Court to assist him in finding legal aid. However, the
application before the court must be made under section 21 and section 22 of the Legal
Aid Act. Also, legal aid may be either in civil nature or in criminal nature as per section
33 of the Legal Aid Act provides that the court is vested with power to order legal aid
to any person facing criminal case.

NB: Once the court order legal aid, the court is supposed to pay advocate who is offering
that legal aid as per section 34 of the Legal Aid Act, 2017.

62
 BASIS OF LEGAL AID IN TANZANIA.

Why legal aid or justification of legal aid?

The basis of legal aid in Tanzania is provided under Article 13(6)(a) and Article 15(2) of
the Constitution of United Republic of Tanzania which provides for fair hearing, fair
trial, rule of law and equality and it prohibits discrimination inter alia in life situation
(social economic factors such as poverty) as per Article 13(5) of the Constitution as well
as section 44(1) of the Legal Aid Act of 2017 prohibits discrimination. In the case of
Maneka Gandhi v. Union of India (1978), the court held that, no person shall not be
afforded legal representation to accused person who placed in danger of his life or
personal liberty.

LEGAL AID PROVIDES IN TANZANIA.

According to the Legal Aid Act provides for the two Legal Aid Providers which may be
registered under the law such as;
i) Legal Aid Provider – section 9 and section 10 of the Legal Aid Act
ii) Paralegals – section 19 and section 20 of the Legal Aid Act
CRITERIA FOR LEGAL ASSISTANCE.
To be eligible for legal assistance the following will be taken into consideration;
- Applicants must be natural persons and residents of Tanzania.
- Each applicant shall undergo an oral interview to determine his status and
eligibility.
- Applicants from outside Dar es Salaam shall submit their applications to the
Committee’s Representatives.
- The relevant representatives shall in turn forward their recommendations to the
Committee after interviewing the applicants.
- The financial ability of an applicants will be primary factor unless it’s a public
interest case (class action).
- An applicant of limited financial ability with a plausible legal problem will be
considered.
- For the avoidance of doubt, limited financial ability means those whose average
monthly income is below the minimum wage; whether formally employed or not.

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- The status of applicants will be determined on the basis of the facts as revealed
during the interview, and/or from any other source.
MODE OF SERVICE OF DELIVERY OF LEGAL AID.

i) Legal education – targeted campaigns, public seminars, lectures, debates.

ii) Legal advice – legal opinion and resolution by legal aid providers.
iii) Legal assistance – legal aid providers assist their clients by issuing legal
opinion, drafting legal documents
iv) Legal representation – legal aid providers represent their clients in litigation
cases or tribunals. Eg; TLS, LHRC, WLAC, TAWLA.

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