Public Interest Law and Tanzania’s EACJ Treaty Rule

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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).