Proceedings have resumed at the African Court for Peoples and Human Rights and the ECOWAS Community Court of Justice courts with some major decisions reached virtually. The judgments include the application by a citizen of the Republic of Tanzania challenging the municipal law which bars citizens from inquiring into the outcome of a presidential election at the African Court.
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The next judgment is an application at the ECOWAS Court seeking to compel the Nigerian government to amend the cybercrime law. Tanzania compelled to amend constitution Tanzanian citizen, Jebra Kambole, had filed the application against the United Republic of Tanzania contending that Article 41(7) of the country’s constitution, which provision bars any court from inquiring into the election of a presidential candidate after the Electoral Commission has declared a winner, violated his fundamental rights as provided for under Articles 2, 3(2) and 7(1)(a) of the African Charter on Human and Peoples’ Rights.
In the judgement delivered on July 15, which was read virtually by Justice Stella Anukam (Nigeria), the court declared that Article 41(7) of the Constitution of Tanzania “which denies citizens’ right to access courts if dissatisfied with the Tanzania’s presidential election results, violates Article 1, 2 and 7(1)(a) of the African Charter on Human and Peoples’ Rights.”
The court directed the Tanzanian government to put in place constitutional and legislative measures to guarantee the rights of citizens to question the outcome of presidential elections as provided under Articles 1, 2, 7(1) of the African Charter within two years. The court further held thus: “Article 7(1) of the African Charter provides that every individual shall have the right to have his cause heard. This comprises, the right to access the court seeking for justice against acts or omission violating fundamental rights as recognised and guaranteed by conventions, laws, regulations and customs in force. “The limitation under Article 41(7) of the Constitution does not meet the criteria enshrined under Article 27(2) of the African Charter. Under Article 27 of the African Charter, rights and freedoms of each individual can only be limited with the dues regard of the rights of others, collective security, morality and common interest.
“The court has ordered that, the Government of Tanzania should report to the African Court within a period of twelve (12) months from today, on the implementation status of the judgement. “The court has further ordered that, Tanzania must publish the decision throughout the website of the judiciary and that of the Ministry of Constitutional and Legal Affairs within three months from today.” The court has further taken notice on the reluctance of Tanzania to implement regional court decisions such as the judgement issued in 2010 on independent candidate by the African Court in the case of Rev. Christopher Mtikila Vs the United Republic of Tanzania. The Tanzanian state had entered two objections challenging the application by insisting that Kambole did not exhaust domestic judicial remedies before seeking redress in a regional court in the context of Article 56(5) of the charter and that the application was filed out of time. These, the state argued, ousted the regional court of jurisdiction to consider the application. Considering both, the court held that since it was the Tanzanian Constitution which was being challenged, Kambole did not have a remedy that was available for him to exhaust before filing his application. Thus, the objection to the admissibility of the application, on the ground that domestic remedies were not exhausted, was dismissed. In relation to the objection by Tanzania that the application was not filed within a reasonable time after the exhaustion of domestic remedies since it had been eight years after the state deposited its Declaration in Article 34(6) of the Protocol, the court upheld Kambole’s reply that although Article 56(6) of the Charter required cases to be filed promptly, appropriate cases, where there are good and compelling reasons, fairness and justice require the consideration of applications that have not been filed promptly.
Nigeria compelled to amend cybercrime law
In the judgement at the ECOWAS Court of Justice in the suit brought by an NGO, the Incorporated Trustees of Laws and Rights Awareness Initiative, the court held the Nigerian government liable for the violation of the right to freedom of expression by the adoption of Section 24 of its 2015 Cybercrime Act. In the lead judgment read by Justice Januaria T.S. Moreira Costa (Cape Verde) with Justice Dupe Atoki (Nigeria) presiding on the panel, the court ordered the Nigerian Government to repeal or amend its law on cybercrime to align with its obligation under Article 1 of the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights. The court, however, dismissed the claim by the NGO’s counsel, Chukwudi Ajaegbo, who in the application filed on November 6, 2018, claimed among others, that the freedom of expression of the NGO’s members through the use of the internet and computer devises was limited or breached by Section 24 of the Cybercrime Act. The NGO had argued that Section 24 of Act contained vague concepts that allowed for arbitrary interpretation and application, and that the restrictions it imposes were not reasonably justifiable as they did not pursue legitimate objectives, necessary nor proportional.
COVID-19 and virtual sessions
The African Court had on July 18 adopted virtual sittings for its 66th Ordinary Session. The court also delivered judgments on June 24 at the 57th Ordinary Session, while the ECOWAS Court had adopted virtual sittings for its Human Rights Council meeting same day. These have been due to the outbreak of COVID-19 pandemic. Domestic and regional courts have been exploring guidelines and practice directions for the use of virtual tools for their sittings to ensure hearing of cases bordering on laws and provisions that are unjustifiable and to deepen the international human rights jurisprudence.