SAIPAR Case Review
Volume 6 Article 4
Issue 2 November 2023
11-2023
Legal Human Rights and Tanzania Human Rights Defenders
Coalition V Tanzania, Application No. 039/2020 (13 June 2023)
Kafula M. Kasonde
LL.M., University of Pretoria
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Recommended Citation
Kasonde, Kafula M. (2023) "Legal Human Rights and Tanzania Human Rights Defenders Coalition V
Tanzania, Application No. 039/2020 (13 June 2023)," SAIPAR Case Review: Vol. 6: Iss. 2, Article 4.
Available at: https://scholarship.law.cornell.edu/scr/vol6/iss2/4
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Legal Human Rights and Tanzania Human Rights Defenders Coalition V Tanzania,
Application No. 039/2020 (13 June 2023)
Kafula M Kasonde 1
The Applicants brought this matter before the African Court on Human and Peoples’ Rights (the
African Court) for alleged human rights violations. They contended that section 148 (5) (b) and
(e) of the Criminal Procedure Act (CPA) of Tanzania of 1985, 2 was discriminatory and
incompatible with international instruments and the Constitution of the United Republic of
Tanzania (the Constitution). Section 148 (5) (b) and (e) of the CPA prohibit certain accused
persons from being admitted to bail. This includes accused persons previously sentenced to
imprisonment for a term exceeding three years or those charged with an offence involving actual
money or property with a value exceeding ten million shillings (unless they deposit cash or
property equivalent to half of that amount or property value and secure the rest by executing a
bond).
The Applicants argued that the aforementioned provisions violated provisions of the African
Charter on Human and Peoples’ Rights (African Charter), the International Covenant on Civil and
Political Rights (ICCPR), the Universal Declaration on Human Rights (UDHR) and the
Constitution of the United Republic of Tanzania (the Constitution). The rights alleged to have been
violated include the right to equality before the law, protection from discrimination and the right
to inherent freedom and dignity of all persons. Other rights alledged to have been violated
included; the right to liberty and security, presumption of innocence and many fair trial rights such
as right to defence and right to be tried within a reasonable time. 3 The Applicants also argued that
section 148 (5) (b) and (e) of the CPA unreasonably deprives the judiciary from exercising any
discretion in bail applications.
1
LLB(University of Zambia), LLM (University of Pretoria)
2
The Criminal Procedure Act (CAP 20 R.E. 2022].
3
African Charter on Human and Peoples’ Rights, Articles 1, 2, 6 & 7; International Covenant on Civil and Political
Rights, Articles 2, 9, 13 &26; Universal Declaration of Human Rights, Articles 1,2, 3, 6, 7, 10 and 11(1); Constitution
of the United Republic of Tanzania, Chapter 2 1977 (as amended in 2005), Articles 13 (1), (2), (3), (4) & (6) (a), 15
(1) (2) (a) & (b) and 29 (1) & (2).
6
The Respondent State argued that, rights under the constitution do not absolve the individual from
their duty to abide by the law and comply with their constitutional duties. The Respondent State
contended that the offences under section 148 (5) (b) and (e) of the CPA are strictly not bailable
because of their nature, the danger they pose to the society and are a threat to national peace and
security. The restriction was reasonable as it was limited to only a few offences and the differential
treatment given by the section was reasonably necessary and justified. This is because the section
seeks to achieve legitimate objectives such as appearance of the accused in court, protection of
witnesses, public peace and security. These objectives are justifiable under the standards set out in
international human rights instruments and Article 30 (2) of the Constitution.
Holding
The African Court stated that the Respondent did not give cogent reasons as to why some accused
persons under section 148 (5) (b) and (e) of the CPA can benefit from the possibility of being
granted bail while others cannot. It noted the intention behind the enactment of the section but
stated that the risk of absconding bail must not be based solely on the severity of the offence or a
previous sentence. Other factors such as those relating to an accused’s character, morals, home,
occupation, assets, family ties and kinds of links with the country must be considered. A
combination of these factors is what must determine admission to bail. In view of the foregoing,
the prosecution must then provide relevant evidence that an accused will interfere with an
investigation and other dangers that may be posed by the accused’s release. Thus, admission to
bail must not be pre-set by law or presumed by it.
The African Court also considered the normative framework of the right to be heard and the
consequent guarantees that it offers an accused person. It cited the Ghanaian case of Martin Kpebu
v. Attorney General, 4 to buttress the point that, the decision of whether or not to deprive an accused
of the right to liberty is a sole preserve of the courts. This is because it is too priceless to be forfeited
through the zeal of an administrative agent. It found that the ousting of the jurisdiction of the court
regarding non-bailable offences curtails the right to be heard and divests the judiciary of its role as
an independent and impartial interpreter of the law.
4
[2016] DLSC 2773.
7
This, in the Court’s view, effectively denies an accused person the right to be heard and to present
their unique circumstances that might allow the judicial officer to grant bail. A law that interferes
with the process and effectively hands power to one of the parties to predetermine the outcome of
the dispute encroaches on the equality of arms. It also goes against due process as the judiciary’s
arms are tied and an outcome already determined. The Court stated that while Tanzania was under
obligation to enact laws for the enjoyment of the rights guaranteed under the African Charter, it
was prohibited from enacting laws that nullified the very rights and liberties it is to regulate. Thus,
the legislature must only provide guidelines relating to different circumstances for the
consideration of the court in determining bail applications.
From the foregoing, the Court then found a violation of the following substantive rights; right to
be heard, presumption of innocence until found guilty by a competent, independent and impartial
tribunal and the right to non-discrimination. As a resuilt of violating the above rights, the Court
consequently found a violation of Article 1 of the African Charter which is the right to enjoy
fundamental rights and equal protection under the laws of Tanzania.
Significance of the case
In Tanzania, this decision settles a matter that had long persisted. The unconstitutionality of
Section 148 (5) (b) and (e) was brought before the High Court in the case of Dickson Paulo Sanga
v Attorney General. 5 The High Court agreed with the Petitioner but it did not pronounce itself on
the compatibility of the section with international human rights instruments such as the UDHR,
ICCPR and African Charter. The decision was overturned by the Court of Appeal which held that
the jurisprudence was clear that the judiciary was the only organ of the State with final authority
in the administration of justice. This notwithstanding, must operate within the confines of the law
including section 148 (5) (b) and (e) of the CPA. The Court of Appeal was of the view that, the
section met the test of proportionality and lawfulness. It stated that, the detention pending trial ‘is
undoubtedly the necessary restriction for the attainment of the desired objectives which include
among others, the interests of public safety and public order, defence and protection of those
involved in judicial proceedings such as witnesses. 6
5
Misc. Civil Application 29 of 2019.
6
The Attorney General v Dickson Paulo Sanga, Civ. Appeal 175 [2020].
8
The Applicants had thus exhausted all local forums and had no prospect of succeeding since the
Court of Appeal in Tanzania is the highest court and the last appellate court in the country. The
judgment of the African Court is in agreement with the finding of the High Court of Tanzania that
the Court of Appeal castigated for having misdirected itself and giving an unsuitable judgment.
This case is the first decision at the level of the African Court on non bailable offences. Although
only legally enforceable against Tanzania, the case is a wakeup call for other jurisdictions with
bail restrictions on some offences to re-examine their laws in line with the provisions of
international instruments to which they are a party such as the African Charter and the ICCPR.
This decision pioneers jurisprudential development in terms of contributing to the normative
standard of the right to non-discrimination, equality, right to a fair trial and presumption of
innocence in as far as bail is concerned. Therefore, it provides a platform for further development
of this jurisprudence.
While this decision is a step in the right direction, the Court missed an opportunity to pronounce
itself on the provisions of the UDHR and the ICCPR and give a more comprehensive judgment.
According to Article 3 of the Protocol to the African Charter on Human and Peoples’ Rights on
the Establishment of an African Court on Human and Peoples’ Rights (the Protocol to the Court),
the Court has the power to interpret and apply the African Charter, the Protocol to the Court, and
any other relevant human rights instrument ratified by the state concerned. Although the UDHR is
not a binding treaty, it is considered a codification of customary international law on human rights.
Article 9 (f) of the Constitution incorporates the UDHR into the Tanzanian Constitution. This
position has been confirmed by Tanzanian Courts, for example, in the case of Legal and Human
Rights Lawyers’ Environment Action Team (LEAT) and National Organisation for Legal
Assistance v The Attorney general. 7
Apart from the UDHR being customary international human rights law, it is also expressly
recognised as a reference for human rights in Tanzania. Tanzania is also a party to the ICCPR
having acceded to the instrument on 11 June 1976. 8 It was therefore imperative both in the
interests of justice and in the discharge of the mandate of the Court for it to pronounce itself on
the alleged violations of rights under these two instruments. Instead, the African Court limited
7
Misc. Civil Cause No 77 [2005] (unreported).
8
https://treaties.un.org/pages/ViewDetails.aspx?src=treaty&mtdsg_no=iv-4&chapter=4&clang=_en
9
itself to finding violations of the African Charter when it has the jurisdiction to find violations of
other human rights instruments such as the UDHR and the ICCPR on account of the Respondent
State being a party to them.
In rejecting the prayer by the Applicants for the release of all accused persons on bail a month
from the date of the judgment, the Court missed another opportunity to develop jurisprudence and
create precedent on what factors national courts may take into consideration in re-evaluating bail
applications. Granted, the state itself is better placed to provide for factors for consideration.
However, it should have provided for what considerations national courts may have in mind when
looking at the individual circumstances of each bail application. Referring to factors that should
ordinarily and generally inform the decision whether or not to grant bail does not suffice especially
when it concerns such a fundamental right as the right to liberty. Had the Court guided on this
aspect of the bail application process, it would have clarified issues and in so doing, helped prevent
the considerations (once set by Tanzania) from effectively nullifying admission to bail of persons
prohibited by section 148 (5) (b) and (e) of the CPA.
The implementation and the impact of the decision is heavily dependent on Tanzania’s
cooperation. Compliance by the State enhances the authority and development of the Court and
helps it serve its purpose of holding human rights violators accountable. Although this decision is
legally enforceable, it was given against a backdrop of backlash from Tanzania against the African
Court. Tanzania as a state had one of the highest numbers of cases in the African Court and the
highest number of judgements issued against it by the Court. This gave rise to the perception
among critics of the Court that Tanzania was being unjustly targeted. 9
In November 2019, Tanzania withdrew Article 34 (6) of the Protocol to the African Charter on
Human and Peoples’s Rights,10 declaration and allowing Non-Governmental Organisations
(NGOs) with observer status before the African Commission on Human and Peoples’ Rights
(African Commission) and individuals to institute cases directly before the African Court. This
case was filed on 18th November 2023, just four days before the withdrawal took effect (the
9
Martin Faix and Ayyoub Jamali ‘Is the African Court on human and peoples’ rights in an existential crisis?’ (2022)
Netherlands Quarterly of Human Rights, 67.
10
The Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on
Human and Peoples’ Rights.
10
withdrawal takes effect after one year from the date of deposit of the withdrawal). 11 The
withdrawal has only compounded the situation because even before the withdrawal, Tanzania was
only partially complying with decisions of the Court. 12
11
See Ingabire Victoire Umuhoza v Republic of Rwanda App. No. 003/2014, Ruling on Withdrawal of Declaration
[2016] para 51-68.
12
Executive Council ‘Activity Report of the African Court on Human and Peoples’ Rights: 1 January – 31 December
2020’ (EX.CL/1258[XXXVIII], February 2021) para 37; Nicole De Silva and Misha Ariana Plagis ‘NGOs,
International courts, and state backlash against human rights accountability: Evidence from NGO mobilisation against
Tanzania at the African Court on Peoples’ Rights,’ (2023) Law and Society Review, 36–60.
11
