A. Background
This is a summary for the reparations ruling (“the Ruling”) following on from Reverend Christopher R. Mtikila’s successful claim against Tanzania.
The case centred on Tanzanian laws which require candidates running for local government, parliamentary and presidential elections to be members of a registered political party, thus barring independent candidates. On 14 June 2013 the Court delivered its judgement (“the Judgement”) and unanimously found that Tanzania’s ban on independent candidates had violated Reverend Mtikila’s Article 10 and 13(1) Charter rights and, by majority, that the same ban violated Mtikila’s Article 2 and 3 rights. (For a full summary of the case please see my posting “A watershed case: Mtikila and others v. Tanzania, 28 February 2014 below).
At the conclusion of the Judgement the Court granted Mtikila leave to file submissions on his request for reparations. On 13 June 2014 following written submissions from Mtikila and Tanzania the Court rendered the Ruling. The Ruling is the first time the Court has considered the issue of reparations.
B. Mtikila’s submissions
Mtikila argued that the ban on independent candidates lead him to needing to join different political parties in order to participate in elections and later set up his own party. He argued that the ban also lead him to engage in litigation including before the Court. His claim for costs and expenses included the cost of setting up his political party and participating in elections, and the cost of litigation at the domestic level and before the Court. He claimed costs and expenses totaling 4,168,667,363 Tsh (approximately $2.5 million). He also claimed lawyers fees for litigation before the Court of $60, 250.00
Mtikila also claimed moral damages occasioned by stress and moral harm made worse by incidents of police searches and the loss of opportunity to participate in the affairs of his country. His claim for moral damages amounted to 831,322,637 Tsh (approximately $500,000).
In addition to his claim for damages, costs and expenses, Mtikila also requested the Court set a timeline for Tanzania to comply with the Judgement, requesting that Tanzania reports every three months on its compliance until the Court is satisfied the judgement has been complied with.
C. Tanzania’s response
Tanzania disputed all Mtikila’s claims for reparations. It argued that the issue of Charter violations did not arise since Mtikila had decided to divert to the system of independent candidature only after his party was refused registration. It submitted that Mtikila’s party was refused registration because he refused to comply with legal requirements required by all political parties and therefore cannot claim to have been prevented from participating in public affairs or forced to join a political party.
In addition, Tanzania argued that since Mtikila had failed to claim for the moral damages now requested in either his application or at the domestic level (therefore failing to exhaust local remedies) the claim should be dismissed. It also argued that Mtikila’s claims for moral damages and loss of opportunity to participate in public affairs were exaggerated. In support of this it argued that the loss of opportunity to participate in public affairs was premised on “very varied and unpredictable political, social and economic factors” and that Mtikila had participated voluntarily in the political processes. It further argued that the inclusion of 25,000 Tsh for the provisional registration of his party was disputed as Mtikila had to follow the procedure to register the party, and therefore this loss should not be attributed to it since this was a legal requirement. Tanzania further argued that the current Constitutional review process is sufficient reparation for the non-pecuniary damages.
Tanzania further argued that costs and expenses submitted by Mtikila were exaggerated. It contended that the costs of Mtikila’s independent presidential campaign should also be disallowed since Tanzania did not allow independent candidates. Tanzania further argues that that the itemised expenses in Mtikila’s income and expenditure account is contrary to the Political Parties Act and Election Expenses Act and is “fabricated and exaggerated”. It contended that it should be given ample opportunity to challenge, verify and authenticate all the expenses claimed.
It also submitted that Mtikila’s claim for costs for domestic litigation is against the order of the Court that each party shall bear its own costs. It noted that Mtikila had failed to detail the costs or provide evidence. It argued that since the domestic court had not awarded costs the Court cannot award costs as this would usurp the jurisdiction of the national courts. Tanzania also disputed Mtikila’s claim for costs of litigation before the Court as his arrangement with counsel had been pro bono and amounts to a “retrospective acquisition of funds from the Court”.
D. Mtkila’s Reply
Mtikila argued that the costs of setting up his political party and subsequent costs of running it resulted exclusively from Tanzania’s ban on independent candidates which has been found to be in violation of the Charter. He argued that the litigation before the Court is a natural consequence of the ban on independent candidates, and that the claim for stress and moral harm is a “matter of common sense” especially since the requirement to start a political party and campaigns was full time work prevented him from carrying out other full time work, apart from his religious duties. He argued that it was for Tanzania to show proof of errors in his claim for damages.
With regards claims for lawyers fees for Court litigation, he submitted that the expenses must be imputed to Tanzania as the Court found it responsible for violating his Charter rights, particularly so since his claim for legal aid was denied. He argued that Tanzania’s response that that independent candidacy remains banned highlights the need for the Court to draw up a “precise calendar” to ensure that Tanzania complies with the Court’s judgment.
E. The Court’s findings
The Court found there exists a fundamental principle of international law that where a violation of an “international obligation” causes harm, there entails an obligation to provide adequate reparation, and that this principle is reflected in Article 27(1) of the Protocol.
With regards the pecuniary damages, the Court recognised the Commission’s jurisprudence that a State which violates the rights enshrined in the Charter should take measures to ensure the victims are given effective remedies including restitution and compensation. However the Court stated that whilst the Commission has recognised victims right to compensation, it has not yet identified which factors States should take into account in their assessment of compensation due,although it had stated that a State should compensate a victim for the torture and trauma suffered in line with international standards and ensure payment of a compensatory benefit. The Court also looked to the Inter-American Court of Human Rights (“IACtHR”), which has made findings on pecuniary damages.
The Court noted that Mtikila submitted income and expenditure statements, but held that there were “no sufficient evidentiary elements presented to establish that these damages directly arose from the facts of this case” and the violations of the Charter. The Court also noted that Mtikila “insisted” on presenting evidence at a hearing and had failed to present this evidence in written submissions or produce any receipts in support his expense claims. The Court found therefore a lack of evidence to prove the “causal nexus” of the facts of the case to damages claimed by Mtikila and rejected his claim of pecuniary damages.
The Court concluded by stating that it is not enough to show that a State has violated a provision of the Charter- it is also necessary to prove the damages, and that in principle the existence of a violation of the Charter is not per se sufficient to establish a material damage.
With regards non-pecuniary damages, the Court recalled that moral damages are not damages occasioning economic loss, but cover suffering and afflictions caused to the victim, the emotional distress of family members and non-material changes in the living condition of the victim and family. The Court again recalled the Commission’s jurisprudence on compensation for torture and trauma suffered, and the IACtHR’s test that non –pecuniary damages “may include both the suffering and distress caused to the direct victims and their next of kin, and the impairment of values that are highly significant to them as well as changes of a non-pecuniary nature in the living conditions of the victims or their family.” The Court also looked at the European Court of Human Rights (“ECtHR”) jurisprudence on the awarding of non-pecuniary damages, noting that such damages can include for pain and suffering, anguish and distress and loss of opportunity but observed that these awards have been made in some cases whilst in others the ECtHR refused to speculate.
The Court found that in the present case Mtikila had failed to produce evidence to support the claim that the damages claimed were directly cause by the facts of the case. Whilst refusing to speculate, the Court also stated that the finding of violations to Mtikila’s Charter rights and the orders contained within the Judgement were just satisfaction for the non-pecuniary damages claimed.
As to legal expenses, the Court accepted that expenses and costs form part of the concept of reparations. The Court found however that Mtikila should provide “probative documents” and develop arguments relating to the evidence, and where financial claims are made, clearly describe the items and justification. It stated that the applicant bears the burden of proof, and in the present case Mtikila had failed to properly develop his claims. The Court also noted that in the Judgement the Court had ordered each party to bear its own costs.
With regards compliance, the Court noted Tanzania’s reply where it maintained that the Judgement was wrong, since the law in Tanzania prohibits independent candidates from running for election. The Court expressed its “concern” at this line of argument compounded by Tanzania’s failure to report to the Court on the measures it is taking to comply with the Judgement. The Court therefore granted Mtikila’s compliance request, but extended the time for reporting, ordering Tanzania to report to the Court within 6 months from the date of the ruling on the implementation of the Judgement.
The Court also made orders proprio motu in relation to “measures of satisfaction”. It noted that in light of its concerns over Tanzania’s apparent continued dispute over the Judgement’s findings and failure to report to the Court on implementation, Tanzania should within six months of the reparations decision: (i) publish the official English translation translated into Kiswahili at Tanzania’s expense and publish in both English and Kiswahili once in the official gazette and once in a national newspaper; and (ii) publish the Judgment it its entirety in English on an official website and remain available for one year. The Court ordered that nine months from the ruling Tanzania should submit to the Court a report ion the above measures.
Accordingly, the Court rejected Mtikila’s claims for pecuniary damages, found that the Court’s findings sufficient reparation for non pecuniary damages, dismissed legal expense claims, and found that each party should bear its own costs.
F. Analysis and comment
The Court clearly identified the need for reparation and compensation for both pecuniary and non-pecuniary damages. It seems the Court’s reliance on the Commission’s jurisprudence regarding pecuniary damages is of little relevance since in the cases referred to the Commission appears to be laying down guidelines for states themselves to award damages whereas here it is very much for the Court to award damages. Nevertheless, the Court’s clear position on its power to award damages should be welcomed. Unfortunately without further information on Mtikila’s claims it is difficult to assess how detailed his expenses were, but it serves as a useful reminder to both applicants and counsel that claims will only be entertained where detailed records of expenses, costs and damages are maintained and submitted.
Of most concern is Tanzania’s apparent lack of understanding of the Judgement itself. It is worrying that, at best, Tanzania appeared to be attempting the re-litigate the Court’s findings , and at worst is taking the position that the Judgement is simply wrong and therefore it need not comply with it or entertain the subject of reparations. Either way Tanzania appears to have little interest in complying with the Court’s Judgement. Within this context the Court’s proprio motu moves to impose measures of satisfaction are interesting. At the very least these measures appear to demonstrate the Court’s serious concerns over Tanzania’s apparent failure to acknowledge the Judgement. Bearing in mind Tanzania’s failures so far it remains to be seen whether they will comply with these new orders and publish the Judgement in the press and online. It must be said that these measures are not particularly onerous and compliance at this relatively superficial level would at least show some kind of recognition of the Court’s powers by Tanzania. Clearly, in view of Tanzania’s responses so far the issue of compliance should be of serious concern to the Court, and changes to Tanzania’s electoral laws appear a while off.