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and Human Rights Centre v The United Republic of Tanzania, application 009/2011; Reverend Christopher R. Mtikila v The United Republic of Tanzania, application 011/2011, judgment, 14 June 2013, para 85; see also Urban Mkandawire v Republic of Malawi, application 003/2011, judgment, 21 June 2013, para 38). In a separate opinion, Judge Niyungeko was of the view that the Court should have categorically stated that it lacked jurisdiction for alleged violations which occurred before the coming into force of the Court’s Protocol, unless they were of a continuing character (Separate Opinion of Judge Niyungeko, para 12; see also Joint dissenting opinion of Niyungeko, Guissé, para 8.).

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Temporal jurisdiction and continuing violation

Commentary

Commentary type: Procedure

Procedure: Jurisdiction

Jurisdiction: Temporal jurisdiction and continuing violation

Commentary: The Court does not have jurisdiction over alleged human and peoples’ rights violations which occurred prior to the coming into force for the state concerned of the African Charter and the Protocol establishing the Court or any declaration made under it, ‘unless in circumstances where such violation bears a continuous character’ (Tanganyika Law Society, The Legal and Human Rights Centre v The United Republic of Tanzania, application 009/2011; Reverend Christopher R. Mtikila v The United Republic of Tanzania, application 011/2011, judgment, 14 June 2013 para 22; African Commission on Human and Peoples’ Rights v Kenya, application 006/2012, Judgement, 26 May 2017, paras 64 & 65). In Zongo the Court held that it did not have jurisdiction to deal with alleged violations of the right to life with regard to extrajudicial executions prior to the entry into force of the Court Protocol ( Beneficiaries of late Norbert Zongo, Abdoulaye Nikiema alias Ablasse, Ernest Zongo and Blaise Ilboudo & The Burkinabe human and peoples’ rights movement v Burkina Faso, application 013/2011, order, 23 August 2012, para 68).

Where the alleged violations occur after the ratification of the Charter, the Court will have jurisdiction on the matter (Peter Joseph Chacha v The United Republic of Tanzania, application 003/2012, judgment, 28 March 2014 para 126; Lohé Issa Konaté v Burkina Faso, application 004/2013, judgment, 5 December 2014 paras 38-40).

The Court retains jurisdiction over violations occurring before the declaration under article 34(6) of the Protocol where the violations are continuous and persist after the respondent states makes the declaration (*Chacha v Tanzania8 para 126; Wilfred Onyango Nganyi & 9 others v Tanzania v The United Republic of Tanzania, application 006/2013, judgment, 18 March 2016 para 66; Beneficiaries of late Norbert Zongo, Abdoulaye Nikiema alias Ablasse, Ernest Zongo and Blaise Ilboudo & The Burkinabe human and peoples’ rights movement v Burkina Faso, application 013/2011, order, 23 August 2012, paras 76-77).

In the Mtikila case, the Court found that although Tanzania had not ratified the Court’s Protocol at the time of the alleged violation, it had ratified the African Charter at the time of the purported violation. As such, the Court held that the Charter having been in operation at the time of the alleged violation, the respondent state was duty bound by its provisions. It also held that the barring of independent candidates which was the conduct complained against was a continuous act which subsisted until the coming into force of the Court’s Protocol. Therefore, the Court found that the applicants’ complaints alleging violations of articles 2, 10 and 13(1) of the African Charter fell within its jurisdictional competence (Tanganyika Law Society, The Legal and Human Rights Centre v The United Republic of Tanzania, application 009/2011; Reverend Christopher R. Mtikila v The United Republic of Tanzania, application 011/2011, judgment, 14 June 2013, para 85; see also Urban Mkandawire v Republic of Malawi, application 003/2011, judgment, 21 June 2013, para 38). In a separate opinion, Judge Niyungeko was of the view that the Court should have categorically stated that it lacked jurisdiction for alleged violations which occurred before the coming into force of the Court’s Protocol, unless they were of a continuing character (Separate Opinion of Judge Niyungeko, para 12; see also Joint dissenting opinion of Niyungeko, Guissé, para 8.).

Date modified: Aug 25, 2017

Primary Documents

Temporal jurisdiction and continuing violation.pdf
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African Court Jurisprudence

Select target paragraph3

Temporal jurisdiction and continuing violation

Primary Documents

009/2011 & 011/2011 Tanganyika Law Society, The Legal and Human Rights Centre v The United Republic of Tanzania and Reverend Christopher R. Mtikila v The United Republic of Tanzania

006/2012 African Commission on Human and Peoples’ Rights v the Republic of Kenya

013/2011 Beneficiaries of late Norbert Zongo, Abdoulaye Nikiema alias Ablasse, Ernest Zongo and Blaise Ilboudo & The Burkinabe human and peoples’ rights movement v Burkina Faso - (Judgment)

003/2012 Peter Joseph Chacha v The United Republic of Tanzania

004/2013 Lohé Issa Konaté v Burkina Faso - Judgment

006/2013 Wilfred Onyango Nganyi & 9 others v Tanzania v The United Republic of Tanzania

009/2011 & 011/2011 Tanganyika Law Society, The Legal and Human Rights Centre v The United Republic of Tanzania and Reverend Christopher R. Mtikila v The United Republic of Tanzania

009/2011 & 011/2011 Tanganyika Law Society, The Legal and Human Rights Centre v The United Republic of Tanzania and Reverend Christopher R. Mtikila v The United Republic of Tanzania

003/2011 Urban Mkandawire v Republic of Malawi - Judgment

009/2011 & 011/2011 Tanganyika Law Society, The Legal and Human Rights Centre v The United Republic of Tanzania and Reverend Christopher R. Mtikila v The United Republic of Tanzania

003/2011 Urban Mkandawire v Republic of Malawi - Judgment

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