Public Interest Law and Tanzania’s EACJ Treaty Rule
The EACJ rejected Tanzania’s personal-interest barriers to constitutional litigation but upheld other limits. Its divided outcome shows how public-interest standing and legislative process can be tested under the EAC Treaty.
Contents
The importance of
standing
How the references
arose
The Treaty
questions before the Court
What the Court
decided
The rule on
public-interest access
The separate
question of legislative urgency
Why the judgment
matters to civil society
How counsel built
the Treaty case
What the Court left
in place
Earlier cases and
the regional framework
Comparisons with
neighbouring systems
Practical lessons
for litigants and lawmakers
The decision’s
limits and continuing value
Public-interest litigation is the legal
route by which an organization or a concerned person asks a court to address a
public wrong, even if that claimant has not suffered the same direct personal
injury as an individual victim. In Tanzania, a 2020 statute attempted to narrow
access to constitutional petitions through a requirement for a
personal-interest affidavit and provisions governing who could be sued. In Pan
African Lawyers Union and Others v Attorney General of the United Republic of
Tanzania, the East African Court of Justice (EACJ) held that two of those
restrictions conflicted with the East African Community’s rules on good
governance, rule of law and Treaty compliance. It ordered Tanzania to amend or
repeal them within six months. The Court did not strike down every challenged
amendment. That distinction makes the case a useful guide to what a regional
Treaty challenge can achieve—and what it must prove.
The full citation is Pan African Lawyers
Union and Others v Attorney General of the United Republic of Tanzania
(Consolidated References No. 25 of 2020; Consolidated References No. 27 of
2020) [2026] EACJ 2 (27 March 2026) (First Instance Division). The five judges
were Principal Judge Yohane Bokobora Masara, Deputy Principal Judge Richard
Wejuli Wabwire, Justice Richard Muhumuza, Justice Gacuko Leonard and Justice
Kayembe Ignace Rene Kasanda. The judgment is reported as a decision of the
Division; no separate dissent is identified in the published record reviewed
for this article. The judgment’s importance is not that it created an unlimited
right to bring constitutional cases. It is that Parliament cannot use ordinary
legislation to make public-interest standing practically unavailable or to
reverse authoritative constitutional interpretation without respecting the
Treaty principles governing public power.
The importance of standing
Standing asks who is allowed to bring a
legal claim. It is often treated as a technical question, but in public law it
can decide whether a court ever examines the legality of government action. If
a statute requires every claimant to show direct personal harm, an organization
may be prevented from challenging a rule that affects many people, especially
those who are poor, politically vulnerable, detained, or unable to bring
proceedings themselves. Public-interest standing helps courts consider systemic
questions that may otherwise remain unanswered.
The case involved two consolidated
references brought by civil-society applicants challenging Tanzania’s Written
Laws (Miscellaneous Amendments) Act, No. 3 of 2020. The Act amended several
statutes, including the Basic Rights and Duties Enforcement Act (BRADEA),
Tanzania’s framework for enforcing constitutional rights. The references
challenged the personal-interest affidavit rule and provisions affecting
constitutional standing and the proper respondent in cases involving high
public officials. The applicants also challenged other amendments and the use
of a certificate of urgency in Parliament. Their central claim was that the
changes weakened access to justice and accountability in ways inconsistent with
Articles 6(d), 7(2) and 8(1)(c) of the EAC Treaty.
How the references arose
Reference No. 25 of 2020 focused especially
on amendments to section 4 of BRADEA. The applicants objected to provisions
that required a person to file an affidavit showing personal interest before a
constitutional petition could be admitted and that altered the relationship
between Article 26(2) of the Tanzanian Constitution and Article 30(3). Article
26(2) allows a person to institute proceedings to protect the Constitution and
the law; Article 30(3) concerns the filing of proceedings for enforcement of rights.
The applicants argued that the amendments subordinated broad public-interest
standing to a more restrictive route. They also challenged a rule that made the
Attorney General the proper party in certain proceedings against senior
officials.
Reference No. 27 of 2020 challenged further
provisions in the same amendment Act, including changes affecting official
accountability, immunity, legislative administration and the scope of remedies.
The applicants said these statutory changes, considered individually and
together, made it harder to hold public authorities to account. The State
defended the amendments as legitimate procedural arrangements and argued that
they addressed frivolous petitions, preserved effective administration and were
passed under parliamentary procedure. The Court therefore had to separate
provisions that crossed the Treaty line from those that had a rational public
purpose and could be applied without extinguishing access to justice.
The Treaty questions before the Court
The Court first considered whether it had
jurisdiction to hear claims that involved constitutional rights and the African
Charter. Article 27(1) of the EAC Treaty gives the EACJ authority to interpret
and apply the Treaty. The applicants did not ask the EACJ to replace Tanzania’s
constitutional courts or to issue a free-standing declaration on every
constitutional issue. They argued that the challenged laws breached the
Community’s principles of democracy, rule of law, accountability and good
governance. The legal question was whether the Court could examine that Treaty
claim even though the facts and arguments also concerned human rights.
On the merits, the Court had to decide
whether the challenged BRADEA provisions and the other amendments were
compatible with Articles 6(d), 7(2) and 8(1)(c), and whether passing the law
under a certificate of urgency without adequate public participation violated
those obligations. It also had to decide what remedy was appropriate if any
provision conflicted with the Treaty. These questions required the Court to
distinguish a legitimate regulation of court procedure from a barrier that
makes constitutional accountability theoretical rather than real.
What the Court decided
The Court affirmed that it could interpret
and apply the EAC Treaty even where a claim included human-rights issues,
provided the cause of action was framed as a breach of Treaty principles. It
did not treat Article 27(2), which anticipates a separate protocol extending
the EACJ’s human-rights jurisdiction, as a reason to avoid interpreting
Articles 6(d), 7(2) and 8(1)(c). The African Charter could assist in
interpreting the Treaty, but the source of the Court’s authority remained the
Treaty itself.
The Court declared that sections 4(2) and
4(3) of BRADEA, as amended, were inconsistent with Articles 6(d), 7(2) and
8(1)(c). It directed Tanzania to take the necessary steps to repeal or amend
those provisions within six months so that public-interest litigation would
retain the scope recognized by Article 26(2) and Tanzanian court decisions. The
Court also found that the enactment under a certificate of urgency, without
adequate public participation and a demonstrated genuine emergency, violated
Treaty principles. However, it upheld other challenged provisions, including
sections 4(4) and 4(5) on exhaustion of alternative remedies and a number of
the other statutory amendments, finding them proportionate or directed to
legitimate objectives. Each party was ordered to bear its own costs.
The rule on public-interest access
The core principle is that national
legislation may regulate constitutional procedure, but it must not hollow out
access to justice or indirectly overturn an authoritative constitutional
interpretation in a manner inconsistent with the EAC Treaty. A pre-admission
affidavit requirement that forces a claimant to demonstrate personal interest
can be disproportionate where it excludes genuine public-interest claims,
duplicates safeguards against abusive litigation, or creates a barrier for
people who cannot easily appear as individual claimants. A rule that ordinary
legislation cannot effectively subordinate a constitutional route to
enforcement also reflects the rule of law: government must use the correct
legal process to change constitutional arrangements.
The judgment did not hold that
public-interest litigation is immune from procedural rules. Requirements to
plead a real legal issue, disclose the basis of standing, identify the
challenged act, and avoid abuse may be legitimate. The Court accepted that some
restrictions—such as exhaustion of adequate alternative remedies—can serve
efficiency and prevent forum shopping if judges retain discretion to hear a
claim where those remedies are inadequate. That calibrated approach is
important. It separates a procedure that organizes access to court from a
procedure that blocks the courthouse door for a category of public wrongs.
The separate question of legislative urgency
The Court’s treatment of the certificate of
urgency matters beyond the standing provisions. A legislature may need to act
quickly when a genuine emergency exists. But the label “urgent” is not
self-justifying. Where a bill changes multiple laws, including access to
constitutional enforcement, the executive and Parliament must be able to
explain why ordinary consultation and scrutiny could not be followed. In this
case, the court found that the State had not shown a genuine emergency
sufficient to justify the compressed process and inadequate public
participation.
This does not mean every law passed under
an urgency procedure violates the Treaty. The point is evidential and
procedural: the government should identify a concrete time-sensitive need,
explain why the ordinary legislative timetable would cause harm, and preserve
meaningful opportunities for public input and parliamentary review to the
extent the circumstances allow. Good governance is concerned not only with what
a law says, but also with how it is made. Process is especially significant
when a law changes the means by which people can challenge public power.
Why the judgment matters to civil society
For civil society organizations, the
decision confirms that the EACJ can be a forum for challenging domestic laws
when the claim is genuinely about Treaty principles. It offers a regional
avenue when national legislation threatens access to justice, public
accountability or the rule of law. The Court’s remedial order also shows that a
Treaty judgment can require a Partner State to amend or repeal legislation
within a defined period, rather than merely express disagreement with it.
The decision should not be read as
authorizing organizations to bypass national courts in every constitutional
dispute. The EACJ asks whether there is a Treaty violation within its
jurisdiction; domestic courts remain responsible for applying the national
Constitution and resolving cases within national law. In public-interest
litigation, these routes can complement one another. A careful strategy
explains what the domestic case can decide, what the regional reference adds,
how the Treaty obligation is engaged, and why the applicant has standing under
the chosen procedure.
How counsel built the Treaty case
The successful part of the challenge had a
clear bridge between the impugned statutory language and the Treaty
obligations. The applicants did not merely assert that the amendments were
unfair. They identified how the personal-interest affidavit interacted with
Article 26(2) of the Constitution, how that interaction affected
public-interest litigation, and why the effect weakened the regional principles
of rule of law and accountability. They also placed the provisions in the
context of the Tanzanian courts’ prior recognition of public-interest standing,
including Christopher Mtikila v Attorney General and later constitutional
decisions.
For litigants, the lesson is to show
operation, not just wording. A challenge should identify who is excluded by the
requirement, what kind of claim cannot proceed, whether existing controls
already address frivolous petitions, and whether a judge can excuse compliance
in a suitable case. The challenge to the legislative process likewise depended
on evidence about the urgent timetable and public participation, not simply the
fact that the Government used a procedural label. Counsel should identify the precise
Treaty clause, link it to established regional case law, and ask for a remedy
that the State can implement and the Court can supervise.
What the Court left in place
The partial nature of the result is an
important part of the precedent. The Court did not find every challenged
provision incompatible with the Treaty. It accepted that a requirement to
exhaust an available and effective alternative remedy may be a proportionate
way to manage constitutional litigation, provided it does not become absolute
where the alternative route cannot give adequate relief. It upheld other
provisions after treating their objectives as legitimate and their impact as
sufficiently limited. That finding demonstrates that a claimant should avoid
presenting a broad statutory challenge as though all amendments have the same
legal effect.
The judgment’s approach to the proper
respondent also illustrates the point. A requirement that certain claims
against officials in their official capacity name the Attorney General may be
administratively defensible if it does not confer immunity, block
personal-capacity proceedings or prevent effective relief. By contrast, an
individual-standing filter may prevent a court from hearing a public claim at
all. The key is to examine practical effect, safeguards and the availability of
judicial discretion, rather than rely only on the title or stated aim of a
provision.
Earlier cases and the regional framework
The case builds on an established EACJ
line. In James Katabazi and 21 Others v Secretary General of the East African
Community and Attorney General of Uganda, Reference No. 1 of 2007, the Court
rejected the proposition that human-rights issues automatically fell outside
its Treaty jurisdiction. In Burundian Journalists Union v Attorney General of
Burundi, Reference No. 7 of 2013, and Media Council of Tanzania and Others v
Attorney General of the United Republic of Tanzania, Reference No. 2 of 2017,
the Court addressed media regulation and the Treaty’s governance obligations.
In Independent Medico-Legal Unit v Attorney General of Kenya, Reference No. 3
of 2016, it considered Treaty principles in a case involving alleged
human-rights violations.
The current judgment adds a standing and
legislative-process dimension. It confirms that a domestic law can be reviewed
where the claim is framed as a failure to observe the Treaty’s standards, and
that the African Charter can inform interpretation without turning the EACJ
into a general appellate constitutional court. The Court’s reasoning echoes
constitutional doctrines across the region: supremacy of the Constitution,
meaningful access to court, proportionality and public participation. The legal
sources differ between states, but the basic lesson—that state action affecting
accountability must be justified and reviewable—is shared.
Comparisons with neighbouring systems
In Kenya, Article 22 of the 2010
Constitution permits a person to institute proceedings on behalf of another
person, as a member of a group or class, in the public interest, or as an
association acting for its members. Article 258 similarly permits proceedings
to protect the Constitution. Those express standing provisions illustrate one
way of ensuring that public wrongs can be litigated without requiring every
claimant to prove personal injury. Uganda’s Constitution and public-law
practice also allow public-interest challenges, although the precise routes and
procedural rules differ. Rwanda and other Partner States likewise have their
own constitutional complaint and administrative law frameworks. These
comparisons are useful as examples, not as rules that automatically control
Tanzania or the EACJ.
The EACJ decision is particularly relevant
to cross-border civil-society networks because the Treaty applies common
obligations to Partner States while national constitutions remain distinct. A
regional challenge can identify a shared baseline, but lawyers should still
research the domestic text, the constitutional court’s decisions and available
remedies in the particular state. Comparative arguments work best when they
illuminate the purpose of standing or participation and do not replace the
analysis of the challenged national provision.
Practical lessons for litigants and lawmakers
A public-interest claimant should start by
identifying the threatened public right, the legal provision that causes the
barrier, the group that is likely to be excluded and the Treaty principles
implicated. The evidence should include the text and commencement of the law,
its practical operation, parliamentary records on public consultation, examples
of affected proceedings where available, and the safeguards already present in
the legal system. The pleading should separate provisions that block access from
provisions that regulate procedure in a manageable way. This makes it easier
for a court to grant a narrow and enforceable remedy.
Government lawyers and lawmakers also have
a practical lesson. If a rule is intended to prevent abusive litigation, the
State should explain why existing judicial powers are insufficient and why a
broad pre-screening burden is necessary. If urgency is necessary, the record
should explain the urgency and show what consultation occurred. Courts are more
likely to distinguish a well-supported safeguard from an unjustified barrier
where the State’s reasoning is transparent and evidence-based. A six-month amendment
order further makes it necessary for the executive and Parliament to track
compliance rather than treat the judgment as a one-day event.
The decision’s limits and continuing value
This judgment is best described as a
persuasive regional precedent on public-interest standing, Treaty review of
national law and the quality of the legislative process. It did not establish
that every procedural restriction on constitutional claims is invalid, and it
did not give the EACJ an unlimited human-rights mandate. Its value is more
precise: where national rules make accountability practically inaccessible or
ordinary legislation undermines a recognized constitutional route, the
resulting effect may breach the EAC Treaty’s principles of rule of law and good
governance.
The practical question for future civil society litigants is therefore not simply “Can an organization sue?” It is “What does this rule prevent, who does it prevent, what safeguards exist, and how does the restriction affect the Treaty obligations of the State?” That is the analytical path the case makes visible. Properly understood, it gives lawyers a framework for challenging barriers while leaving room for fair procedures that genuinely improve the administration of justice.
Sources Mentioned in This Article
The principal authority is Pan African
Lawyers Union and Others v Attorney General of the United Republic of Tanzania
(Consolidated References No. 25 of 2020; Consolidated References No. 27 of
2020) [2026] EACJ 2 (27 March 2026), First Instance Division. Relevant
provisions include Articles 6(d), 7(2), 8(1)(c), 27(1) and 27(2) of the Treaty
for the Establishment of the East African Community; Articles 26(2), 30(3) and
30(5) of the Constitution of the United Republic of Tanzania, 1977; and
sections 4(2)–(5) of the Basic Rights and Duties Enforcement Act, Cap. 3. The
challenged statute was the Written Laws (Miscellaneous Amendments) Act, No. 3
of 2020. Authorities considered in the judgment include James Katabazi and 21
Others v Secretary General of the East African Community and Attorney General
of Uganda, Reference No. 1 of 2007; Burundian Journalists Union v Attorney
General of Burundi, Reference No. 7 of 2013; Media Council of Tanzania and
Others v Attorney General of the United Republic of Tanzania, Reference No. 2
of 2017; Independent Medico-Legal Unit v Attorney General of Kenya, Reference
No. 3 of 2016; Christopher Mtikila v Attorney General [1995] TLR 31; and
Attorney General v Jeremia Mtobesya, Civil Appeal No. 65 of 2016. Kenya
Constitution Articles 22 and 258 are mentioned for comparative context only.
Suggested Citation
Ronald Serwanga, “Public Interest Law and Tanzania’s EACJ Treaty Rule” (East Africa Legal Insight, 14 October 2026).