Dar es Salaam. The African Court on Human and Peoples’ Rights has ruled that provisions in Tanzania’s Constitution and the Zanzibar Constitution that bar courts from reviewing decisions of electoral bodies violate rights guaranteed under the African Charter on Human and Peoples’ Rights, in a judgment that raises fresh questions about access to justice in electoral matters.
In its decision delivered on March 6, 2026, the court examined Article 74(12) of the Constitution of the United Republic of Tanzania and Article 119(13) of the Zanzibar Constitution, both of which limit judicial oversight over electoral commissions.
Quoting directly from the provisions, the court stated: “No court shall have power to inquire into anything done by the Electoral Commission in the discharge of its functions in accordance with the provisions of this Constitution.”
It also cited the Zanzibar Constitution, which provides: “No Court shall have jurisdiction to enquire into anything done by the Zanzibar Electoral Commission in the performance of its functions in accordance with the provisions of this Constitution.”
The case was filed by Abdul Omary Nondo, Deusdedit Rweyemamu and Paul Revocatus Kaunda, who challenged several provisions relating to the structure, composition and oversight of electoral bodies in Tanzania.
In its analysis, the court found that the effect of the impugned provisions is to deny individuals access to courts in electoral matters. It held that the provisions “oust the jurisdiction of courts to review acts performed by the NEC and the ZEC.”
The court further observed that the provisions create barriers for individuals seeking legal redress, noting that “the impugned provisions entail a disproportionate effect on individuals seeking legal redress for potential electoral grievances due to the inability of those individuals to challenge electoral decisions before a judicial body.”
Based on this reasoning, the court concluded that “article 74(12) of the Respondent State’s Constitution and article 119(13) of the Constitution of Zanzibar are in violation of Article 3(2) of the Charter.”
The judges also addressed the broader constitutional implications of shielding electoral bodies from judicial scrutiny, stating that by “outrightly shielding the NEC and ZEC from judicial scrutiny, articles 74(12) and 119(13) disrupt the balance between institutional independence and accountability, violating the fundamental principle that no institution should be above the law.”
On admissibility, the court examined whether the applicants were required to exhaust domestic remedies before bringing the case. It found that, in relation to the challenged provisions, such remedies were not available.
“The Applicants did not have a remedy that was available, sufficient and effective to exhaust before approaching the Court,” the judgment stated.
However, the court dismissed other aspects of the application, including claims relating to the appointment, qualifications and removal of electoral commission members, on the basis that domestic remedies had not been exhausted.
In that regard, the court stated that “the Applicants have not demonstrated that they attempted to exhaust domestic remedies in respect of this claim.”
The government had also raised preliminary objections challenging the court’s jurisdiction, arguing that the provisions in question were enacted before Tanzania ratified the relevant human rights instruments.
But the court rejected this argument, holding that the violations are continuous in nature. It stated that they “automatically renewed themselves for as long as they were not remedied.”
The ruling means that the existence and continued application of the provisions bring them within the court’s jurisdiction despite their earlier enactment.
The judgment also addressed the impact of Tanzania’s withdrawal of its declaration allowing individuals to file cases directly before the court, which took effect in November 2020. The court clarified that the withdrawal does not affect cases that were filed before it became effective.
In its orders, the court directed the Respondent State to take steps to remedy the violations identified in the judgment and to align its legal framework with the requirements of the African Charter.
The decision underscores the court’s position on the importance of judicial oversight in electoral processes, particularly in ensuring that individuals have access to legal remedies where they believe their rights have been violated.
The ruling is expected to contribute to ongoing debates on electoral reforms and the role of courts in overseeing electoral bodies in Tanzania, especially in the context of constitutional provisions that limit judicial intervention.
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