Africa’s premier regional court, the African Court on Human and Peoples’ Rights, has found that Tanzania’s constitution is in breach of the African Charter and other international law. This is because it provides that no one may test the results of Tanzania’s presidential elections in court. Tanzanian advocate, Jebra Kambole, brought the litigation in the African Court saying his rights under the African Charter had been violated. Finding in favour of Kambole’s application, the court ordered that Tanzania amend its constitution to remove this violation. Tanzania was also given 12 months to submit a report on what had been done to implement the terms of the judgment, and was ordered to publish the court’s decision on the websites of the Judiciary, and of the Ministry for Constitutional and Legal Affairs. The judgment text is to remain on these websites for at least a year after publication.
A full bench of Namibia’s high court has found that the country’s electoral commission acted unlawfully when it removed certain approved names from the list of candidates supplied by a political party and allowed other party members to replace them and be sworn-in, instead. Two members of Namibia’s Popular Democratic Movement brought the application when the electoral commission permitted a number of PDM members, not on the PDM list approved by the electoral commission before the polls, to replace those who had been approved by the commission. In its decision, the court said the commission acted beyond its powers in allowing the party to substitute names after the elections. It could not allow parties to ‘parade’ candidates for election and then after the polls, ‘put up totally different persons who were never “marketed” to voters as candidates.’
Tanzania’s bail laws have been brought into line with the country’s constitution, following an application by a member of the legal profession. But in the aftermath of the decision there’s confusion and concern, mostly related to the appeal noted by the government the day after judgment was delivered this week. The high court judgment by three judges deals with the problem that the law makes certain offences ‘unbailable’. How does this square with judicial discretion, the petitioner asked.
The appeal court has been considering a decision by Malawi’s constitutional court, handed down earlier this year. The lower court had reached the shock conclusion that Mutharika was not in fact ‘duly elected’ in the May 2019 polls, and that new elections had to be held within 150 days. Mutharika and the Malawi Electoral Commission appealed against the decision, and it was in response to this appeal that the seven Appeal Court judges have now delivered their judgment, from which there be no further challenge. Important though the Appeal Court’s eagerly-anticipated decision has been in relation to the validity of the last polls and the requirement of a re-run, it also decided a number of other, related, issues that will impact on government and elections in the future as well.
The court made a number of declarations of principle that must continue to operate even during the state of disaster caused by the lockdown and other steps taken by the government to curb the spread of COVID-19. It also issued several orders about what the security forces and their leaders, including the Ministers of Police and of Defence, must do in relation to the lockdown and the behaviour of the security forces during this time. Further, the court gave strict deadlines for complying with these orders.