THE ROLE OF NATIONAL COURTS AND REGIONAL COURTS IN
PROTECTING HUMAN RIGHTS AND DEVELOPING HUMAN RIGHTS
JURISPRUDENCE
PAPER FOR PRESENTATION BY
Hon. Justice Harold R. Nsekela
Justice of Appeal, Court of Appeal, Tanzania
and
President
East African Court of Justice
A Paper for Presentation during the EAMJA Annual Conference and
General Meeting, 17th - 22nd May 2010, at Ngurdoto Mountain Lodge,
Arusha, Tanzania
1
1. Introduction
Let me start my presentation by expressing my biggest pleasure to be given
today this opportunity to address this august audience on the topic “The Role
of the National Courts and Regional Courts in Protecting Human Rights
and Developing Human Rights Jurisprudence”.
Much as I belong to both a national court and to a regional court, I do not
consider myself as the most learned person on the topic. This is why my
presentation is just intended to provoke a constructive discussion on how
better our respective jurisdictions could serve to preserve and protect human
rights in our countries and in our region as a whole.
The role of the courts in protecting human rights and in developing human
rights jurisprudence, being at the regional or at the national levels is
undisputable. At the national level, this role flows from the justification of the
theory of separation of powers in a democratic society. In a constitutional
democracy, the doctrine of separation of powers permits dialogue between the
three branches of government (the Legislature, Judiciary and Executive), in
order to achieve the goals set by the authors of the Constitution.1 The courts
ensure that the executive and the legislature are performing their duties in
conformity with the Constitution. Most of the modern constitutions enshrined
the bills of rights that consist of proclamations of the individual rights and
freedoms. Courts are established as forums to defend the people against the
oppressive and unjust laws and practices, against laws and practices that are
inconsistent with or in violation of the rights enshrined in the Constitution.
N. Barber ‘Prelude to the separation of powers (2001) 60 Cambridge Law Journal 59 71; P
Kurland ‘The rise and fall of the doctrine of separation of powers’ (1986) 85 Michigan Law
Review 592 603 in B K Twinomugisha “The role of the judiciary in the promotion of democracy
in Uganda” (2009) 9 African Human Rights Law Journal 1, p. 6.
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2
At the regional level, things are not different at all. Regional courts are
established with a general mandate to ensure adherence to the rule of law by
the states parties to the respective treaties establishing those courts.2
Wondering whether or not regional or national courts play any role in the
protection of human rights is nothing more than asking whether human rights
are justiciable before those courts and whether the courts are sensitive to
them. In the following lines, I shall look into the way our national courts and
regional courts play this crucial role.
2. The role of the national courts
As I mentioned above, our constitutions have got a very important part
dedicated to the Bill of Rights. The rights enshrined therein are part and parcel
of the constitution and any democratic society ought to respect them. Our
constitutions permit any person whose human right or freedom has allegedly
been infringed or is threatened, to apply to a competent court for redress. Quite
often, the courts’ human rights protective role is exercised through judicial
review, and particularly constitutional review. Thus the question as to whether
these rights are justiciable before the national courts does not arise anymore.
What has been so far been the practice before our courts?
In Tanzania, the main means by which human rights abuses may be legally
vindicated by victims is through the High Court.3 The High Court has played a
significant proactive role in protecting human rights
even when the
Government was taking too long to provide for procedure for enforcement of
human rights as enshrined in the Constitution.4 This bold decision of the High
Court can be found in the Case of Chumchua Marwa v. Officer In Charge of
2
See for example Article 23 (1) of the Treaty for the Establishment of the East African Community which states that
the East African Court of Justice “shall be a judicial body which shall ensure the adherence to law in the
interpretation and application of and compliance with this Treaty ».
3
See Article 30 (3) of the Constitution of the United Republic of Tanzania. It should be noted that in addition to the
High Court, the Human Rights and Good Governance Commission is another forum for vindication of human rights
abuses in Tanzania
4
Article 30 (4) of the Constitution gives power to the Government to put in place the law governing enforcement of
human rights
3
Musoma Prison and the Attorney General5 where it was held that the Bill of
Rights could be enforced even when the rules and procedure were yet to be
enacted by the government. This position was subsequently taken by the Court
of Appeal in the case of Daudi Pete v. The United Republic of Tanzania.6 The
Court of Appeal said:
“… We also concur that until Parliament legislates under para (4)
the enforcement of the basic rights, freedoms and duties may be
effected under the procedure and practice that is available in the
High Court in the exercise of its original jurisdiction, …”7
After the enactment of the Basic Rights and Duties Enforcement Act 19948 ,
Courts in Tanzania have maintained the bold spirit9 and continued to actively
protect human rights in various areas including, right to participate in political
affairs (private candidate).10 In the interest of time, I will not go into details
In October 2008, the Court of Appeal of Tanzania disposed of a case concerning
the eviction of about 135 villagers from their land in the Serengeti District11.
The Tanzania Commission of Human Rights and Good Governance (CHRGG)
had investigated the case and come to the conclusion that the government had
violated the rights of the complainants and that the latter must be resettled at
their native land. It went on to recommend that the Government pay them
more than Tshs. 800 millions of compensation. The complainant took the
recommendation to the Government for enforcement but the Government,
through its Attorney General responded to the Chairman of the Commission
that the Government had conducted its own investigation and found out that
there was no human rights violation committed at Nyamuma Village. The
5
High Court Miscellaneous Criminal Cause No. 2 of 1988. Mwanza registry (unreported)
[1995] LRC (Const) 553
7
Ibid at p 561
8
Act No. 33 of 1994
9
On bold spirited Judges see Michael K. B. Wambali, “The Enforcement of Basic Rights and Freedoms and the
State of Judicial Activism in Tanzania”, Journal of African Law, Vol. 53 No. 1(2009) p 34 – 58 at p 44
10
See Christopher Mtikila v. The Attorney General, Miscellaneous Civil Cause No. 10 of 2005. Dar Es Salaam High
Court main registry (Unreported)
11
See Legal and Human Rights Centre v. Thomas Ole Sabaya and 4 Others, Civil Appeal No. 88 of 2006, Dar Es
Salaam Court of Appeal Registry (Unreported)
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4
Commission, pursuant to Section 28 (3) of the Tanzania Commission of Human
Rights and Good Governance Act recommended the claimants to bring an
action before the High Court for resettlement and compensation. The High
Court held that it lacked jurisdiction to enforce the recommendations made by
the Commission. The complainants therefore appealed to the Court of Appeal
which the highest court of land. The Court of Appeal ruled that the High Court
erred in not considering the matter on the merit and ordered that the matter be
referred back to the High Court before another judge for consideration on the
merit. Implicitly, the Court of Appeal acknowledged that once the Commission
has investigated and made a decision, this should be enforced by the
Government. Otherwise, the complainant has the right to go to the High Court
to seek enforcement of that decision.
Clearly here, the role of the Court of Appeal has been instrumental in ensuring
that the right to land of the Nyamoma villagers is respected. This is just an
example of the Court to which I belong and I am sure similar cases can be
found in your various jurisdictions.
Indeed, judicial activism is a very important tenet in the protection of human
rights by the Court. Invariably judicial activism invites some direct conflict
between the judiciary and executive, or even the legislature. The main problem
involved is always the complex choice bound to be made between what are
political questions, exclusively reserved for the other branches of state, and the
legal matters for the attention of the Court, whatever consequences they may
have.12 As you may find from the foregoing discussion, these have already
received the attention of Tanzanian courts.
3. The role of the regional courts
While our national constitutions have got a Bill of Rights directly enforceable
before our national courts, the treaties establishing the regional courts do not
12
See Michael K. B Wambali, Op Cit. at p. 50
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necessarily have such a proclamation of rights. To my knowledge, only the
ECOWAS Community Court of Justice has been expressly given a human
rights jurisdiction. This is why I will not discuss its potential to contribute to
the protection of human rights as its case law comprises of many human rights
cases.13 Does this mean that other regional courts are completely incompetent
to entertain human rights cases?
3.1 East African Court of Justice (EACJ)
The Treaty for the Establishment of the East African Community (EAC) and the
Treaty for the Establishment of the Southern African Development Community
(SADC) share one common feature. They do not give an express human rights
jurisdiction to the judicial bodies that they create. The reading of Article 27 (2)
of the EAC Treaty would actually suggest that the East African Court of Justice
is not, at least for the time being, not allowed to hear human rights cases. It
provides that:
The Court shall have such other original, appellate, human rights
and other jurisdiction as will be determined by the Council at a
suitable subsequent date. To this end, the Partner States shall
conclude a protocol to operationalise the extended jurisdiction.
Clearly, read alone, this provision could be misleading. However, the principles
of the Community provide an avenue for human rights litigation before the
EACJ.
Among other fundamental principles of the EAC Treaty, there is respect for the
rule of law and the promotion and protection of human and peoples’ rights in
accordance with the provisions of the African Charter on Human and Peoples’
Rights.14 The EAC Treaty further directs the Partner States to undertake to
abide by the principles of good governance, including adherence to the
It is said that about 15 human rights cases have been determined by the ECOWAS
Community Court of Justice. See Breendan Sweeny in L N Murungi Revisiting the Role of SubRegional Courts in the Protection of Human Rights in Africa LLM Dissertation 2009 University of
Pretoria, note 46.
14 Article 6 (d) of the EAC Treaty.
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principles of democracy, the rule of law, social justice and the maintenance of
universally accepted standards of human rights.15
In James Katabazi and 21 Others v Secretary General of the East African
Community and the Attorney General of Uganda, the EACJ has come up with
what has been described by some scholars as a derivative human rights
competence.16 The Court held that even though it ‘would not assume
jurisdiction on human rights disputes’, it also would not abdicate its
jurisdiction of interpretation under Article 27 (1) merely because the reference
includes allegations of human rights violations.17 The Court went ahead to
interpret and apply articles 6 (d), 7 (2) and 8(1)(c) of the treaty and found that
there was a violation of the principle of the rule of law and consequently a
violation of the EAC Treaty.18
In the case East Africa Law Society and Others v The Attorney General of Kenya
and Others, although the main thrusts of the application were that the Treaty
amendments were done without compliance with procedural regulations in
article 150 of the EAC Treaty and that the amendments were done in bad faith,
issues of the right to participation and independence of the judiciary emerged.
With regard to the right of the East African people to participate in the process
of amendment of the EAC Treaty, the Court held that:
“It is common knowledge that the private sector and civil society
participated in the negotiations that led to the conclusion of the
Treaty among the Partner States and, as we have just observed,
that they continue to participate in the making of Protocols thereto.
Furthermore, as we noted earlier in this judgment, Article 30
entrenches the people’s right to participate in protecting the
integrity of the Treaty. We think that construing the Treaty as if it
permits sporadic amendments at the whims of officials without any
form of consultation with stakeholders would be a recipe for
regression to the situation lamented in the preamble of “lack of
Article 7 (2) of the EAC Treaty.
S.T. Ebobrah “Litigating Human Rights before Sub-regional Courts in Africa: Prospects and
Challenges” (2009) 17 RADIC p. 82.
17 Reference No. 1 of 2007 type written judgment p. 16.
18As above, p. 23.
15
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strong participation of the private sector and civil society” that led to
the collapse of the previous Community.”19
The Court went on to conclude that:
“failure to carry out consultation outside the Summit, Council and
the Secretariat was inconsistent with a principle of the Treaty and
therefore constituted an infringement of the Treaty (…)”.20
From these two examples above-mentioned, one can say that the EACJ has
been playing some sort of role –though arguably small- in the protection of
human rights in East Africa. This role is expected to be more substantial after
the Court’s jurisdiction has been extended to human rights. The Draft Protocol
to this effect is still under negotiations.
3.2 Southern African Development Community Tribunal (SADC
Tribunal)
Article 14 of the SADC Tribunal Protocol provides that the SADC Treaty shall
constitute the basis of the Tribunal’s jurisdiction. The Tribunal is competent to
exercise jurisdiction over matters relating to the interpretation and application
of the Treaty as well as interpretation, application or validity of Protocols and
other legal instruments of SADC and of acts of the Community’s institutions.21
Like the EACJ, the SADC Tribunal does not have a clear human rights
jurisdiction.
A proposal to include human rights in the mandate of the Tribunal was
considered and rejected.22However, the Tribunal is authorised to ‘develop its
own jurisprudence’, giving due consideration to ‘applicable treaties, general
East Africa Law Society and 4 others v. Attorney General of Kenya and 3 others, type written
judgment p 30.
20 As above p 31.
21 Article 14 of the SADC Tribunal Protocol.
22 S T Ebobrah note 5 above p. 84.
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principles and rules of public international law and any rules and principles of
the law of States’. Such ‘developed Community jurisprudence’ constitutes
‘applicable law’ along with the Treaty, Protocols and other instruments of
SADC.23 On top of this, Article 4 (c) of the SADC Treaty identifies human rights,
democracy and the rule of law as fundamental principles of SADC.
With regard to its jurisdiction in the area of human rights, the SADC Tribunal
In Mike Campbell (Pvt) Ltd v Republic of Zimbabwe, held that:
In deciding this issue, the Tribunal first referred to Article 21 (b)
which, in addition to enjoining the Tribunal to develop its own
jurisprudence, also instructs the Tribunal to do so “having regard to
applicable treaties, general principles and rules of public
international law” which are sources of law for the Tribunal. That
settles the question whether the Tribunal can look elsewhere to find
answers where it appears that the Treaty is silent.24
The Tribunal went on and added that:
In any event, we do not consider that there should first be a
Protocol on human rights in order to give effect to the principles set
out in the Treaty, in the light of the express provision of Article 4 (c)
of the Treaty which states as follows:
“SADC and Member States are required to act in accordance with
the following principles –
(a) ……
(b) ……
(c) human rights, democracy and the rule of law”.25
The Tribunal concluded that it had jurisdiction in respect of any dispute
concerning human rights, democracy and the rule of law, which are the very
issues raised in that particular application.
The issue of jurisdiction resolved, the Tribunal considered the alleged human
violations which included the denial of access to justice and racial
Article 21 of the SADC Tribunal Protocol.
Mike Campbell (Pvt) Ltd v Republic of Zimbabwe, SADC (T) Case No. 2/2007, type written
judgment pp 24-25.
25 As above.
23
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discrimination, and found the Government of Zimbabwe in contravention with
the rule of law and consequently held it in breach of Article 4(c) of the SADC
Treaty.
In
arriving
to
this
conclusion,
the
Tribunal
applied
various
international human rights instruments including the United Nations Charter,
the Universal Declaration of Human Rights, the International Covenant of Civil
and political Rights, the International Covenant of Social Economic and
Cultural Rights, the Convention on the Elimination of All Forms of Racial
Discrimination and the African Charter on Human and peoples’ Rights.
4. Implementation of courts’ decisions
If the decisions of the courts were systematically disregarded, then most of us
would be useless. We would not be talking about protecting human rights in
our region. The implementation of national courts’ decisions although not
always automatic is much easier than the implementation of regional courts’
decisions.
If I may refer you back to the SADC Tribunal case of Mike Campbell (Pvt) Ltd
and 78 others v The Republic of Zimbabwe, the applicants in the matter had to
come back to the Tribunal to file an application, ‘seeking in substance, a
declaration to the effect that the respondent [was] in breach, and contempt, of
the decision of the Tribunal […]’.26 The decision of the Tribunal had directed
the Republic of Zimbabwe:
To take all necessary measures, through its agents, to protect the
possession, occupation and ownership of the land of the
applicants… and to take all appropriate measures to ensure that no
action is taken… directly or indirectly whether by its agents or
others, to evict from, or interfere with, the peaceful residence on,
and of these farms, by the applicants.27
26
27
Case No. SADC (T) 03/2009. Type written Judgment p. 2.
As above.
10
This was after the Government of Zimbabwe had refused to comply with the
Tribunal’s decision. Among other convincing material adduced by the
applicants to prove this fact are the following:
-
Deputy Attorney-General letter stating that “the policy position taken by
the Government to the Judgment handed down by the SADC Tribunal
[…] is that all the prosecutions of defaulting farmers under the provisions
of the Gazetted Lands (Consequential Provisions) Act should now be
resumed”;28
-
The speech delivered […] by the Deputy Chief Justice […] at the opening
of the 2009 legal year in the course of which he stated, among other
things, that the Tribunal lacked jurisdiction to hear and determine the
Campbell case;
-
29
President Robert Mugabe’s qualification of the Tribunal’s decision as
“nonsense” in the course of his birthday celebrations.30
The Tribunal further noted that all these statements were followed by invasion
of the lands of the applicants and their intimidation and prosecution.
This is really an example of what should not happen in the East African
Region. Article 44 of the EAC Treaty provides that ‘the execution of a judgment
(of the EACJ) which imposes a pecuniary obligation on a person shall be
governed by the rules of civil procedure in force in the Partner state in which
the execution is to take place.’ This means that most of the EACJ decisions will
always require smooth cooperation of the Partner States national courts to be
implemented.
28
29
30
As above.
As above.
As above.
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5. Conclusion
Throughout this presentation, I have made it clear that the role of national
courts and regional courts in protecting human rights is undisputable. The
practice in our various jurisdictions can testify in favor of this statement. This
does not mean that our courts have always been acting as human rights
protectors. I simply gave good examples of where our courts played a positive
role in order to encourage the trend. I could have equally given examples of
where our courts virtually failed to play this important role. And in many such
cases, the influence of the executive is behind such attitudes. If today’ s
EAMJA Conference’s theme is HUMAN RIGHTS IN EAST AFRICA, let us not
forget that our impact in protecting human rights and developing human rights
jurisprudence will remain insignificant if we don’t embark on the active and
creative interpretation of the law in favour of effective enforcement of human
rights inside and outside the Bill of Rights. A meaning realization of human
rights in our region will depend on the attitude of the judiciary towards the
infringements and violations of peoples’ rights by the state.31 As one
academician remarked “if the courts are timid and always humble themselves
before xecutive authorities, then there is a danger of unlawful exercise of public
power continuing without straint”32 We should always maintain and preserve
our independence from the executive.
I thank you.
31
See Ruhangisa J. E, Human Rights in Tanzania: the Role of the Judiciary, Ph.D Thesis, University of London,
(SOAS), 1998, at pp. 265 – 268 and 281 - 284
32
See Mwaikusa, J. T “Government Powers and Human Rights in Africa: Some Observations from the Tanzanian
Experience” Lesotho Law Journal, Michael K. B Wambali,ol. 6 No. 1, 1990, p. 99.
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