approach in finding certain cases admissible.16 Key to the Court’s
application of the bundle of rights and guarantees has been the existence,
before a domestic court, of a factual and legal context which would have
allowed a domestic court to pronounce itself on matters not explicitly
pleaded by a party but which by necessary implication arise from the
pleadings.17
51. The Court finds, however, that the “bundle of rights and guarantees” is not
applicable in the present case. The manner in which the Applicants
commenced their domestic action did not provide the Respondent State an
opportunity to respond to any allegations relating to section 4(1) of the NEA.
Furthermore, although section 4(1), on the one hand, and section 7(1), 7(2),
7(3), on the other hand, both deal with electoral issues, they have a different
focus and this is that, in the one case, the focus is on the composition of the
NEC and, in the other case, it is on the appointment of returning officers and
other staff of the NEC. It was not, therefore, open for the Respondent State’s
domestic courts to pronounce themselves on the issues covered by section
4(1) when the Applicant’s petition, very clearly, raised only those issues
implicated by sections 6(1), 7(1), 7(2), 7(3) of the NEA.
52. In the circumstances, given that sections 6(1) and 7(1), 7(2), 7(3) of the NEA
were litigated between the Parties all the way to the highest court in the
Respondent State, the Court finds that domestic remedies, in respect of
these provisions, were exhausted. The Court thus finds that the Application
is admissible only in so far as it relates to the Applicants’ challenge of
sections 6(1) and 7(1), 7(2), 7(3) of the NEA.18 It thus finds all the Applicants’
prayers, in so far as they are premised on the alleged violation of section
4(1) of the NEA, inadmissible.
16
See, for example, Alex Thomas v. United Republic of Tanzania (20 November 2015) 1 AfCLR 465;
Kennedy Owino Onyachi and Charles John Njoka v. United Republic of Tanzania (28 September 2017)
2 AfCLR 65 and Nguza Viking (Babu Seya) and another v. United Republic of Tanzania, § 53.
17 Sadick Marwa Kisase v. United Republic of Tanzania, ACtHPR, Application No. 005/2016, Judgment
of 2 December 2021 (merits and reparations), §§ 38-39.
18 Shukran Masegenya Mango and Others v. United Republic of Tanzania (26 September 2019) 3
AfCLR 439, §§ 54 & 58 and Joseph Mukwano v. United Republic of Tanzania, ACtHPR, Application No.
021/2016, Judgment of 24 March 2022 (merits and reparations), § 45.
15