Nathalie Greenfield and Gabriela Markolovic, third-year Juris Doctor students and Charles Evans Hughes Scholars at Cornell Law School (USA)
In November 2020, Tanzanian individuals and NGOs will no longer be able to file human rights-based petitions before the African Court on Human and Peoples’ Rights.
This change is significant. Individuals comprise the overwhelming majority of applications to the African Court. In six short months, when Tanzanian individuals can no longer file before the African Court, a large group of human rights abuse victims will find themselves with no recourse to a key tribunal through which to bring their claims. To which forums can they turn to fill the gap left by the African Court’s unavailability?
I. Gaps left by Tanzania’s withdrawal
Tanzania precipitated this change in its relationship with the African Court. On November 21, 2019, Tanzania withdrew from Article 34(6) of the African Charter’s Protocol: the provision by which States accept the Court’s competence to receive cases from individuals and NGOs. Tanzania’s move appears to be a politically motivated attempt to silence human rights NGOs in the region. The State’s withdrawal followed in the wake of a string of decisions by the African Court in cases against Tanzania, including its decision in Ally Rajabu and Others v. Republic of Tanzania, which struck down Tanzania’s mandatory death penalty.
Tanzania is only the second State—after Rwanda—to withdraw from Article 34(6). As such, commentators have raised questions about the impact of Tanzania’s withdrawal and how long it will take to go into effect.
When Rwanda made its Article 34(6) withdrawal in 2016, the Court addressed the issue of its own jurisdiction head-on. In Ingabire Victoire Umuhoza v. Republic of Rwanda, the Court found Rwanda’s withdrawal to be valid, but that Rwanda’s discretion to withdraw was “not absolute.” The Court mandated a notice period of one year for withdrawals and declared that the withdrawal would have no legal effect on cases pending before the Court.
Applying Ingabire Victoire Umuhoza to Tanzania’s withdrawal, individuals can continue to file before the Court until the one-year notice period expires, on November 20, 2020. Moreover, cases that were filed prior to November 21, 2019 remain within the Court’s jurisdiction. While the Court is yet to formally declare that Tanzania’s withdrawal will come into effect after a one-year notice period, there is no reason to suspect the Court will disregard its established precedent.
November 20, 2020 is fast-approaching. Once that deadline passes, Tanzanian individuals and NGOs will have to find other homes for their claims.
II. Filling the gaps after withdrawal
Although Tanzania’s withdrawal from the African Court leaves a large gap, there are other avenues through which Tanzanians can bring human rights claims against the state. The African Commission on Human and Peoples’ Rights and the UN Treaty Bodies provide two such avenues.
A. The African Commission on Human and Peoples’ Rights
The African Commission is a quasi-judicial body tasked with the interpretation of the African Charter. Distinct from the African Court, the Commission can hear complaints against States Parties to the African Charter, including Tanzania.
The Commission presents a viable alternative to filing with the Court in several ways. By turning to the Commission, Tanzanian applicants can continue to build jurisprudence in the African continent and pursue Tanzania’s compliance with its human rights obligations under the African Charter. Successful petitions enshrine human rights norms in Tanzania, as well as in all States Parties to the African Charter, and applicants can secure reparations for the harms they have suffered.
Additionally, the Commission has shown interest in ruling on human rights claims in Tanzania, despite Tanzania’s withdrawal. On November 22, 2019, just a day after Tanzania’s withdrawal, the Commission published a statement to Tanzania strongly urging its government to guarantee a range of public freedoms and to protect human rights activists. Tanzania’s withdrawal may only serve to heighten the Commission’s interest in the State’s human rights compliance.
Although the Commission can begin to fill the gap left by Tanzania’s withdrawal for individuals who have suffered human rights abuses, it is not a replacement for the Court. First, the Commission faces a severe backlog in cases: in June 2019, the Commission had 240 cases pending. If Tanzanians seek redress before the Commission in the same numbers as they did before the Court, they can expect to see prolonged delays in having their petitions heard.
Second, Tanzanian applicants may not always see favourable decisions from the Commission enforced at state level. Tanzania is required to submit biannual reports to the African Commission on its human rights compliance, but Tanzania has only submitted two such reports: one in 1992 and another in 2008. Because of this lack of data, as well as the minimal formal policy guiding these state-reporting measures, it is difficult for the Commission to monitor whether Tanzania is implementing its decisions and recommendations. Moreover, Tanzania does not appear to have enforced the one decision on the merits that the Commission decided against Tanzania.
Despite these complications, the African Commission can fill some of the gap that Tanzania’s withdrawal from the African Court will leave post-November.
B. UN Human Rights Bodies
The UN Treaty Bodies can also hear human rights claims against Tanzania.
Two of the UN Treaty Bodies have jurisdiction over Individual Complaints filed against Tanzania: the Committee on the Elimination of Discrimination Against Women (CEDAW Committee) and the Committee on the Rights of Persons with Disabilities (CRPD Committee). Tanzania ratified the Optional Protocol to the CEDAW in 2006 and the Optional Protocol to the CRPD in 2009, thus recognising the competence of both bodies to consider communications against Tanzania. These are the only two Optional Protocols that Tanzania has signed, of the nine possible Treaty Bodies.
Where claims allege a violation of either the CEDAW or the CRPD, Tanzanians may consider bringing an Individual Complaint to CEDAW or CRPD Committees, respectively. Though the Treaty Bodies present a wholly different forum for complaints than the regional human rights tribunals of the African Court and Commission, they go a long way to filling the gap left by Tanzania’s withdrawal.
The longevity and strength of the UN Treaty Bodies lends their judgments gravity and impact. Jurisprudence from both the CEDAW and CRPD Committees shines a light on, and seeks to remedy, human rights violations the world over. Tanzanian lawyers and activists bringing complaints before these Committees can use the international respect and clout of these bodies to their advantage, to build awareness of human rights issues in Tanzania and to support their in-country efforts.
Importantly, Tanzania generally complies with its administrative obligations under both the CEDAW and CRPD by submitting its periodic reports. Neither Committee has heard many Individual Complaints against Tanzania, though, which makes analysing the likelihood of their enforcement difficult. The CEDAW Committee has heard one Individual Complaint against Tanzania, following which Tanzania implemented some—but not all—of the Committee’s recommendations. The CRPD Committee has heard two complaints against Tanzania, with similarly mixed results. Though Tanzania’s limited track record on enforcement may raise questions about the utility of bringing claims to the Treaty Bodies after November 2020, it does not diminish the utility of the UN as way forward for Tanzanians who have suffered human rights abuses.
From November 20, 2020, Tanzanian individuals and NGOs will be deprived of an important avenue through which to bring human rights claims. Tanzania’s withdrawal appears designed to silence criticism of its human rights compliance by depriving individuals of a robust safeguard of their human rights and a key recourse for justice. Human rights advocates have been right to condemn Tanzania’s move.
It is clear, though, that Tanzania’s withdrawal does not doom all human rights claims against the State. Individuals and NGOs must turn to alternative forums to fill the gap left by Tanzania’s withdrawal, such as the African Commission and the UN Treaty Bodies. While the Commission and the UN mechanisms are no replacement for the African Court’s mandate, lawyers and activists can use these alternative forums to keep pressure on Tanzania to comply with its human rights obligations and, importantly, to seek remedies for those whose rights have been violated.
Meanwhile, many victims of human rights abuses within Tanzania remain unaware of avenues through which they can seek recourse. International groups should recognise the critical work being done by domestic advocates to raise awareness of the changes to the legal landscape within Tanzania.