ANTONY CALIST KOMU v. THE ATTORNEY GENERAL OF THE UNITED REPUBLIC OF TANZANIA

Case Number REFERENCE NO. 7 OF 2012
Summary
  1. The Applicant, Antony Calist Komu (hereinafter “the Applicant”) is a member of Chama Cha Demokrasia na Maendeleo (CHADEMA), a political party in the United Republic of Tanzania (hereinafter “Tanzania”), a Partner State within the East African Community (hereinafter the “EAC”). In that capacity, he had sought election as a representative of Tanzania to the East African Legislative Assembly (hereinafter “EALA”) in an election conducted in the National Assembly of Tanzania on 17th April, 2012. He was unsuccessful in his bid and on 15th June, 2012, he filed the present Reference to challenge the said election on grounds inter alia, that in conducting the said election, the National Assembly of Tanzania violated Article 50 of the Treaty for the Establishment of the East African Community (hereinafter “the Treaty”).
  2. The Reference is premised on the provisions of Articles 6(d), 7, 8, 23, 27, 30, 33 and 50 of the Treaty, Rules 1(2) and 24 of this Court’s Rules of Procedure as well as the Vienna Convention on the Law of Treaties.
  3. It is supported by the Hansard Report of the Parliament of Tanzania for 17th April, 2012, the Witness Statement dated 3rd October, 2013 and oral evidence of the Applicant, the Witness Statement dated 4th October, 2013 and oral evidence of John Mnyika, a counter Affidavit sworn on 22nd November, 2013 by the Applicant and Affidavits sworn on 4th October, 2013 and on 19th November, 2013 by Edson Mbogoro, Learned Counsel for the Applicant. A reply to the Response by the Respondent was also filed on 17th March, 2013.
  4. The Respondent is the Attorney General of Tanzania and in opposition to the Reference, he filed a Notice of Preliminary Objection dated 26th February, 2013, accompanied by his substantive response to the Reference. On 1st November, 2013, he filed an Affidavit sworn on 31st October, 2013 by Thomas Didimu Kashililah, Clerk of the National Assembly of Tanzania and on 1st November, 2013, he filed another Affidavit sworn on 31st October, 2013 by Oscar Godfrey Mtenda, Chief Parliamentary Legal Counsel in the National Assembly of Tanzania.
  5. Both Parties also filed written submissions in support of their rival positions in the Reference.
RespondentThe Attorney General of the United Republic of Tanzania
ComplainantAntony Calist Komu
Date filed
CountriesTanzania
KeywordEALA
Treaty ArticleArticle 23 , Article 27 , Article 30 , Article 33 , Article 50 , Article 6 , Article 7 , Article 8 , Rule 1 , Rule 24

First Instance Judgment

Verdict
  1. CONCLUSION
  2. Since the decision in Anyang Nyong’o (supra), this Court has, after every election for representatives to the EALA, received complaints from one Partner State or the other. The Court has been consistent in upholding the spirit, tenor, language and intent of Article 50(1) of the Treaty and it behoves upon the National Assemblies of Partner States to do the same. In saying so, we are alive to the unique political and social circumstances of each Partner State including Tanzania but that uniqueness is no excuse for not strictly following the    dictates of the Treaty which they, individually, freely entered        In the instant case our findings are clear as regards the United Republic of Tanzania. We digress.
  3. DISPOSITION
  4. For all the above reasons, the final orders in this Reference are that:
  5. Prayer (ii) of the Reference is dismissed;
  6. Prayer (i) is granted in the following terms only:
“A declaration is hereby issued that to the extent that the election for members of the East African Legislative Assembly conducted by the National Assembly of Tanzania on 17th April, 2012 was premised on only political parties as the sole grouping as opposed to all the other groups envisaged in Article 50(1) of the Treaty, then the National Assembly of Tanzania violated the said Article.”
  1. Prayer (iii) is granted in the following terms only:
“A declaration that by allowing a political party without representation in the National Assembly (TADEA) to field a candidate in the election of 17th April, 2012 for representatives to the EALA, then the National Assembly of Tanzania was in violation of Article 50(1) of the Treaty.”
  1. The Applicant shall have a quarter costs of the Reference.
 
  1. It is so ordered.
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Date deliveredSeptember 26, 2014
Quorum

Appeal Judgment

Verdict
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Date delivered
Quorum