Blog of the International Journal of Constitutional Law

Margin of Appreciation at the African Court

Our sometimes contributor Adem Kassie Abebe has a new post over at AfricLaw in which he further analyzes the recent case of the African Court of Human and Peoples’ Rights against Tanzania, Tanganyika Law Society and The Legal and Human Rights Centre and Reverend Christopher Mtikila v. The United Republic of Tanzania, Applications 009&011/2011. That case ruled that an individual has a right to stand for election without being affiliated with a political party, in contrast with provisions of the Tanzanian Constitution (which had themselves been enacted to overrule a domestic court). Kassie has already observed how the African Court provided extra-national scrutiny of constitutional amendments, and now ruminates on the relevance of the Court’s decision for the margin of appreciation.

Abebe contrasts the African decision with one of the Inter-American Court of Human Rights which had used the margin of appreciation in to rule that international law allowed states discretion in designing electoral systems (Case of Castañeda Gutman v Mexico, Inter-American Court on Human Rights, Judgment of 6 August 2008). To quote:

“The [Inter-American] Court concluded that the American Convention on Human Rights, whose right to political participation provisions are largely similar to, if not more robust than, the African Charter, did not impose a specific electoral system. As a result, ‘[b]oth systems, one built on the exclusive basis of political parties, and the other that also allows independent candidacies can be compatible with the Convention and, therefore, the decision on which system to choose is subject to the political decision made by the State, in accordance with its constitutional norms.'(Paragraph 204.)

“The case against Tanzania in the African Court is the same as the case against Mexico in the Inter-American Court, except in its scope. While the Inter-American Court had to decide on the ban on independent candidates in relation to presidential elections, the African Court had to decide on the ban of independent candidates in relation to all levels of elections, namely, presidential, parliamentary, and local elections. Other than this, the issues are similar. In addition, the African Court identified two contextual differences between the Mexican case and the case against Tanzania. First, unlike in Tanzania, individuals in Mexico may be sponsored by parties to stand for elections even if they are not members of that party. In addition, the African Court noted that the requirements for creating a political party were particularly cumbersome in Tanzania. However, the relevance of these contextual differences in influencing the final outcome was marginal.

“Despite the fact that there is no specific recognition of a right to stand for elections as an independent candidate in the African Charter or relevant human rights instruments, the African Court ruled that the ban on independent candidacy violated the individual right to equal protection of the law and the prohibition against discrimination (Articles 2 and 3), the right to association (Article 10), and the right to political participation (Article 13) of the African Charter. The Court held that Tanzania did not prove that there was a legitimate interest to be served by banning independent candidacy. In any case, the Court found that the absolute ban on independent candidacy was found to be disproportional to any stated aim of fostering national unity and solidarity. The Court also found that the ban had the effect of indirectly compelling aspiring politicians to join political parties to be eligible for public office in violation of Article 10(2). This later provision provided an important legal leverage that is not explicitly recognised in other human rights systems including the American Convention on Human Rights. The decision makes the African Court the first supranational tribunal to recognise the right of individuals to stand for elections as independent candidates.

“Although the outcome of the case has highly restricted the extent of margin of appreciation states enjoy in giving effect to the right to political participation, the Court did not sufficiently deal with the relevance of the doctrine in the context of allowing states to identify the best way to give effect to the right to stand for elections. The Court proved to be less deferential not only towards another regional tribunal, the Inter-American Court, but also a domestic court, the Tanzanian Court of Appeal. Whether or not the Court will sustain this very narrow conception of the margin of appreciation doctrine will be seen. Nevertheless, the decision of the Court clearly demonstrates its willingness to deviate from existing jurisprudence of other regional and international human rights tribunals.”

Another excellent analysis of a landmark case in Africa.


One response to “Margin of Appreciation at the African Court”

  1. Festus Ogwuche Avatar
    Festus Ogwuche

    That’s really a trail blazer in international adjudication and we must commend the court for that bold stance. It must be stated however that the margin of appreciation to be accorded domestic entities must not be wider than the guaranteed right. That’s exactly the error in the decision of the inter-American court as it portends the danger of providing subterfuges for states to decline from their international obligations particularly in the area of fundamental rights. Firstly, it would give domestic courts ample leeway to decide election contests in the light of domestic norms that totally ignored international guarantees for the right to vote and participation in government. This right becomes even more threatened where no such right is expressly enshrined in the Constitution or, where as in Nigeria it is merely consigned to a non justifiable portion of the Constitution. That is why in Nigeria, somebody who never participated in an election save for his second runnership position in party primaries would be declared to have won the election by the Supreme Court! – votes cast for a leading candidate who died in the course of elections are conveniently transferred to a non candidate without recourse to the voters in a manner that makes mockery of democratic process and well outside the contemplation of Article ,13 of the African Charter. And the Supreme Court gave it’s judicial stamp on that thereby adorning it with the cloak of precedence. In the interest of the preservation of these rights within domestic entities, it is appropriate that supranational courts narrow this margin even further as to ensure the enthronement of universal standards not only in the conduct of elections but also in meeting the demands of Electoral justice by domestic courts particularly in Africa.

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