Applicant’s failure to exhaust domestic remedies. While conceding that the
Applicants did commence a case before the High Court (miscellaneous civil
cause no. 17 of 2018) which was subsequently appealed to the Court of
Appeal (civil appeal no. 138 of 2019), it is the Respondent State’s contention
that the Applicants are, before this Court, challenging section 4(1) of the
NEA, which was never challenged before any domestic court. The
Respondent State accordingly submits that “… this Application be declared
inadmissible as the Application has failed to meet all the admissibility
requirements.”
*
43. The Applicants, for their part, submit that, in line with Article 56(5) of the
Charter, their Application is admissible. They highlight the fact that they had
filed a case before the Respondent State’s High Court challenging sections
6(1) and 7(1), 7(2), 7(3) of the NEA. They further point out that on the
Respondent State’s appeal, the Court of Appeal found in the Respondent
State’s favour. To substantiate their argument, the Applicants filed copies of
the judgments of both the High Court and the Court of Appeal.
44. In their Reply, the Applicants reiterate that they exhausted domestic
remedies. They point out that “it is not in dispute that sections 6(1), 7(1), (2)
and (3) of the National Elections Act have no issue with the requirement for
exhaustion of local remedies in the instant application according to the
Respondents reply to the application.” The Applicants concede that the
dispute, in relation to the admissibility of the Application, revolves around
their claims concerning section 4(1) of the NEA.
45. The Applicants submit that “… although section 4(1) was not raised in the
national courts, this does not warrant the Court to declare the whole
application inadmissible.” In support of their position, they cite the Court’s
decision in Kalebi Elisamehe v. Tanzania and pray the Court to invoke the
bundle of rights and guarantees to find the Application admissible.
***
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