• Background of the case

Universal suffrage refers to the rights conferred on adult citizens of a country to vote. In Tanzania this right is guaranteed under the 1977 Constitution as amended from time to time. There are always restrictions to a greater or lesser degree on who can vote in every democratic political system. For Instance in most countries one has to have attained the age of majority and not suffer any mental illness. Over the years worldwide the right to vote and be voted for has been expanded to marginalised groups including women, black/african people and prisoners. In Tanzania, this right is restricted to prisoners, remandees and detainees creating an environment of unequal citizenship most commonly through disenfranchisement: the denial of voting rights on the basis of a conviction.

Against this backdrop the Center for Strategic Litigation has been advocating for electoral legal reforms through public interest  litigation. In 2020, CSL supported Liberatus Mwang’ombe, one of the Applicants to institute the case in collaboration with Legal and Human Rights Center (LHRC) as co-applicant. This  case, filed at the African Court of Human and Peoples’ Rights (ACHPR), calls out Article 5(2)(c) of the Constitution of the United Republic of Tanzania. The article provides that the parliament may enact laws restricting the right to vote to persons who have been convicted of certain specified criminal offences. The Applicants argue that the implementation of the Article contravenes the universal suffrage right to vote to prisoners, detainees and remandees in jail and prison in Tanzania.

In exercising its constitutional authority, Tanzania’s parliament enacted the National Election Act, which, under section 11, bars individuals under specific sentencing conditions such as those under sentence of death or those with sentences exceeding six months from voter registration and participation.

However, this legislation appears to diverge from the constitutional mandate requiring lawmakers to specify particular offences rather than specific sentences. However, even individuals with sentences below six months find themselves disenfranchised. Complicating matters, the Tanzanian Constitution features an ouster clause, limiting judicial review on such matters, thereby thwarting potential legal challenges.

Based on this, Tanzanians specifically prisoners, detainees, accused in police custody or prisons have been excluded from the voters’ registration exercise and ultimately denied their rights to vote.

In 2022, the High Court of Tanzania declared in the case  Tito Elia Magoti & Another vs National Electoral Commission & 3 Others that section 11(1)(c) of the National Election Act  as unconstitutional to the extent that it conflicted with Article 5 of the Constitution. Consequently, the provision was deemed void. Additionally, the court affirmed that the right to vote for remandees aged above eighteen years who are citizens of Tanzania is protected under the Constitution and that no law in Tanzania restricts the rights of remandees to vote.

This year, 2024 the Tanzanian government has made reforms in the electoral framework by passing and enacting laws aimed at restructuring the electoral system and consolidating the existing electoral laws. Despite these reforms the new electoral law, the Presidential, Parliamentary and Local Government Elections Bill (2023) still contains section 10(c) a similar provision to the unconstitutional provision section 11(1)(c) in the repealed National Election Act thus making this case relevant even in the current context.

  • Understanding the jurisdiction of the EACJ

The African Court on Human and Peoples’ Rights (the Court) operates with a core mission of upholding human rights and advancing justice, rule of law, and fundamental freedoms across Africa. This mandate involves interpreting, applying, and enforcing the African Charter on Human and Peoples’ Rights (referred to as “the Charter”) and other pertinent human rights instruments.

Additionally, member states, including Tanzania, are bound by the Charter to adhere to principles of good governance, rule of law, and human rights protection. The Court’s jurisdiction encompasses all cases and disputes brought before it regarding the interpretation and application of the Charter, the Protocol, and other relevant human rights instruments ratified by the concerned states.

  • Grounds upon which the case was brought to Court

The case was instituted on pivotal grounds, each serving as the foundation for its filing. These grounds encompass the following:

  • Discrimination in Voting Rights: The challenge centres around Article 5(2)(c) of the Constitution of the United Republic of Tanzania, which, enforced through the National Election Act and by the National Election  Commission, denies various groups such as prisoners, detainees, accused individuals in custody, and citizens in diaspora the right to vote without distinction based on specific offences or sentences. This is argued to violate the fundamental right to vote, protected under Article 13(1) of the African Charter, as well as other international instruments.
  • Violation of Non-Discrimination Rights: Article 2 of the Charter, coupled with relevant provisions of the Tanzanian Constitution, guarantee the right to non-discrimination. However, the provision in question, coupled with the actions of the respondents, is deemed as direct and indirect discrimination against affected groups, contravening international human rights standards.
  • Equality Before the Law: The provision and the actions of the respondents are argued to violate Article 3 of the Charter, which mandates equal treatment under the law. The failure to afford voting rights to prisoners, detainees, accused individuals, and citizens in diaspora is seen as a breach of their right to equal protection under the law.
  • Right to Enjoy Fundamental Human Rights: Article 1 of the Charter requires member states to recognize and respect all rights enshrined within it. However, the denial of voting rights to affected groups, without adequate justification or provisions for registration and voting processes, is seen as a violation of this right.
  • Evidentiary Considerations
  • The existing legal framework
  • Constitutional Provisions: Article 5(2)(c) of the Constitution of the United Republic of Tanzania (URTC), which prohibits prisoners from exercising their fundamental human rights, particularly the right to participate in the voting process.
  • National Legislation: The National Election Act, particularly Section 11, which further prohibits certain categories of individuals, such as those under sentence of death or those convicted for more than six months, from being registered as voters or exercising their right to vote.

While this Act has been repealed this year by the  the Presidential, Parliamentary and Local Government Elections Bill (2023)  contain similar provision that is section 10(c) that limits the rights of prisoners to vote. Further, while the law does not explicitly restrict detainees, remandees and people living in the diaspora, past practice has shown that this group is usually restricted in exercising this right as the National Electoral Commission has never made provisions to allow the enjoyment of this right to this group.

  • Cases instituted against the existing legal provisions at the local level

Tito Elia Magoti & Another vs National Electoral Commission & 3 Others: The High Court of Tanzania ruled that section 11(1)(c) of the National Election Act  as unconstitutional to the extent that it conflicted with Article 5 of the Constitution. As a result, the provision was declared void. The court also ruled that the right to vote for remandees aged above eighteen years who are citizens of Tanzania is protected under the Constitution.

  • Other cases instituted challenging restriction of electoral rights  and human rights in other jurisdictions
  • Arnold Keith August & Anor v. The Electoral Commission & Others (1999) ZACC: the South African Constitutional court relied on Cory J of the Canadian Supreme Court and stated that,  All forms of democratic government are founded upon the right to vote. Without that right, democracy cannot exist. The marking of a ballot is the mark of distinction of citizens of a democracy. It is a proud badge of freedom. While the Charter guarantees certain electoral rights, the right to vote is generally granted and defined by statute. That statutory right is so fundamental that a broad and liberal interpretation must be given to it. Every reasonable effort should be made to enfranchise citizens. Conversely every care should be taken to guard against disenfranchisement. The Court further stated in reliance to this case that incarceration conditions should be made, as far as possible, compatible with the fullest possible exercise of the right to vote rather than advanced as a reason to deny that right altogether.
  • Africa Commission on Human and Peoples’ Rights vs Kenya Application No. 006/2012: the Court was of the view that a distinction or differential treatment becomes discrimination, and hence, contrary to Article 2, when it does not have objective and reasonable justification and, in the circumstances where it is not necessary and proportional.
  • Jebra Kambole vs United Republic of Tanzania Application No. 018/2018, the Court held that direct discrimination may be prominent in human rights discourse, but international human rights law prohibits both direct and indirect discrimination. Given that indirect discrimination is an effects-based concept, it is clear that this definition includes prohibition of not only direct but also indirect discrimination.

Alleged Human Rights Violations by the Government of Tanzania

  • The right to vote:
  • Article 13 (1) of the African Charter of Human and People’s Rights: Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.
  • Article 21(1) of the Universal Declaration of Human Rights (1948): Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
  • Article 25 of the International Covenant on Civil and Political Rights: Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors

Rights to non-discrimination:

  • Article 13(2) of the Constitution of the United Republic of Tanzania: No law enacted by any authority in the United Republic shall make any provision that is discriminatory either of itself or in its effect.
  • Article 13 (4) of the Constitution of the United Republic of Tanzania: No person shall be discriminated against by any person or any authority acting under any law or in the discharge of the functions or business of any state office.
  • Article 2 of the African Charter of Human and People’s Rights:  Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.
  • Article 2 of the Universal Declaration of Human Rights: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
  • Article 7 of the Universal Declaration of Human Rights: All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
  • Article 2(1) of the International Covenant on Civil and Political Rights: Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
  • Equality before the law and equal protection 
  • Article 3(1) of the African Charter of Human and Peoples’ Rights: Every individual shall be equal before the law.
  • Article 3(2) of the African Charter of Human and Peoples’ Rights: Every individual shall be entitled to equal protection of the law.

Reliefs sought in court

  1. A declaration that the government by enacting and enforcing Article 5(2)(c) of the Constitution of the United Republic of Tanzania of 1977, and by prohibiting prisoners, detainees, accused individuals, and citizens in diaspora from exercising their right to be registered and vote, violates Articles 1, 2, 3, and 13(1) of The African Charter on Human and People’s Rights.
  2. A declaration that the exclusion of prisoners, detainees, accused individuals, and citizens in diaspora from the voter registration exercise is illegal and a violation of their fundamental right to participate in the electoral process, as guaranteed by international human rights instruments.
  3. An order compelling the government of Tanzania  to immediately register these affected groups as voters to facilitate their participation in subsequent elections.
  4. A declaration that the omission and exclusion of these groups from the voting process constitutes an abuse of fundamental human rights and a failure by the Respondent to perform its duties, amounting to segregation or discrimination, and hence illegal.
  5. An order that each prison be declared a registration polling centre, with the government of Tanzania deploying its officials as returning officers for subsequent elections, including the 2024 local elections and referenda, and any subsequent elections, including the 2025 National Election.
  6. An order that the government of Tanzania should liaise with prison authorities and governments with Tanzanians living in the diaspora to issue national identity cards for voter registration purposes and for safekeeping of voter cards for prisoners.
  7. A permanent injunction restraining the government of Tanzania and/or their agents from further illegal or unlawful breach and non-observance of their mandate to register qualified Tanzanians for the electoral process.
  8. A permanent injunction restraining the government of Tanzania from conducting any elections or referenda that exclude these affected groups.
  9. An order to the government of Tanzania to establish additional polling centres beyond embassies and consulates and deploy electoral officials as returning officers or collaborate with host electoral bodies to provide similar services.
  10. An order to the Tanzanian government to enact constitutional and legislative measures to guarantee the rights provided for under Article 1, 2, 3, and 13(1) of The African Charter on Human and People’s Rights and other international human rights instruments.
  • Status of the case

The case continues to be under review at the African Court, pending a determination of its admissibility. Its significance persists within Tanzania, particularly in light of the electoral reforms implemented in 2024, which regrettably do not address the crucial issue of safeguarding the electoral rights of prisoners, detainees, and individuals in remand within the country.