[2024] EACJ 14


**IN THE EAST AFRICAN COURT OF JUSTICE AT ARUSHA**

**FIRST INSTANCE DIVISION**

***(Coram:*** *Yohane B. Masara, PJ; Richard Muhumuza, Richard Wabwire Wejuli, Leonard, Gacuko & Kayembe Ignace Rene Kasanda, JJ)*

**REFERENCE NO. 10 OF 2020**

**INCLUSIVE DEVELOPMENT FOR CITIZENS 1st APPLICANT**

**CENTER FOR STRATEGIC LITIGATION LIMITED 2nd APPLICANT**

**VERSUS**

**THE ATTORNEY GENERAL OF THE UNITED REPUBLIC OF TANZANIA**

**RESPONDENT**

**29th NOVEMBER 2024**

**JUDGEMENT OF THE COURT**

# A. **INTRODUCTION**

1. On 28th April 2020, **Inclusive Development for Citizens** (“the 1st Applicant”), and **Center for Strategic Litigation Limited** (“the 2nd Applicant”), filed **Reference No. 10 of 2020** before this Court against the Attorney General of the United Republic of Tanzania (“the Respondent”). The Reference was brought under Articles 4, 6(d), 7(2), 8(1 )(c), 27(1), 30(1), 143, 146 and 147 of the Treaty for the Establishment of the East African Community (“the Treaty”); Articles 2, 3, 5 and 17 of the African Charter on Human and Peoples’ Rights, (“the Charter”) and Rule 25 of the East African of Court of Justice Rules of the Court, 2019 (“the Rules”).

2. The Reference arises from a statement made on 29th February 2020 by the then District Commissioner of Dodoma Urban, Mr Patrobas Katambi. The statement directed heads of schools and education officers to conduct mandatory pregnancy tests for school girls every three months and to expel pregnant students from schools. The Applicants argue that this statement was purportedly made in furtherance of the **Education (Expulsion and Exclusion of Pupils from Schools) Regulations, G. N. No. 295 of 2002** ("the Regulations") and was influenced by earlier public statements made in 2017 by senior government officials, including the former President of the United Republic of Tanzania, the late Dr John Pombe Magufuli and the then Minister of Home Affairs.

3. The Reference is supported by the Affidavit deponed on 28th April 2020 by Mr Kumbusho Dawson Kigine, an officer of the 1st Applicant.

4. The 1st Applicant is a non-governmental organization registered and operating within the United Republic of Tanzania. Its objectives are allegedly to direct efforts towards active inclusion as well as giving voice, capabilities and incentives for the excluded to become active participants in processes of development and to also conduct strategic advocacy which includes litigation.

5. The 2nd Applicant presented itself as a body corporate registered under the Company laws of the Zanzibar Government, in the United Republic of Tanzania, whose objectives are the promotion of the rule of law, access to justice, good governance, social justice, democracy and human and people’s rights.

6. The Applicants’ address of service for the purposes of this Reference is C/o Prisca Chogero (Advocate), Center for Strategic Litigation, 58 Migombani Street, P. O. Box 1562 Unguja, Zanzibar, Tanzania.

7. The Respondent is the Attorney General of the United Republic of Tanzania, sued on behalf of the Government of the United Republic of Tanzania in the capacity of the Principal Legal Advisor of the Government. The Respondent's address of service for the purposes of this Reference is the Office of the Solicitor General, 20 Kivukoni Front, P. O. Box 9050, Dar es Salaam, Tanzania.

# B. REPRESENTATION

8. At the hearing, the Applicants were represented by Mr Jeremiah Mtobesya, Ms Praisegod Joseph and Ms Eunice Cynthia Okello, learned Advocates. The Respondent was represented by Ms Vivian Method and Ms Veritas Mlay, Principal State Attorneys, Ms Narindwa Sekimanga, Senior State Attorney and Ms Victoria Rugendo, State Attorney.

# C. THE APPLICANTS’ CASE

9. The case for the Applicants is contained in the Statement of Reference lodged in Court on 28th April 2020, in the Supporting Affidavit by Mr Kumbusho Dawson Kigine deponed on the same day, as well as in the Applicant’s Reply to the Respondent’s Response lodged in Court on 12th August 2020. The Applicant also filed written submissions in support of its case and lodged the same in Court on 19th May 2023. The submissions were highlighted in Court on 3rd October 2024.

10. It is the Applicants’ case that, on 29th February 2020, Mr Patrobas Katambi, the then District Commissioner of Dodoma Urban, issued a statement allegedly directing school officials to conduct mandatory pregnancy tests on school girls every three months.

11. That the statement made by the District Commissioner was intended to support the 2002 Regulations and reinforce the remarks from senior government officials, including a former President, made in 2017.

12. The Applicants maintain that the District Commissioner’s statement violates the fundamental rights enshrined in the Treaty and the Charter. That these violations stem from the discriminatory nature of the policy, its detrimental impact on the girls' rights to education and its infringement upon their inherent dignity and right to privacy.

13. That, the District Commissioner's statement, by singling out pregnant school girls for compulsory testing, constitutes a form of discrimination that is expressly prohibited by both the Treaty and the Charter. That

Articles 6(d) and 7(2) of the Treaty oblige Partner States to uphold the fundamental and operational principles of the Community which include good governance, including the adherence to the principles of democracy, the rule of law, social justice, and the recognition, promotion, and protection of human and peoples' rights in accordance with the provisions of the Charter.

14. The Applicants further argue that the District Commissioner's statement violates the girls' right to education, a right enshrined in both the Treaty and the Charter.

15. It is the Applicants’ case that the mandatory pregnancy testing, coupled with the public announcement of the results and potential expulsion, creates a hostile and discriminatory environment that discourages girls from attending school, thereby hindering their access to education.

16. That the District Commissioner's statement, by subjecting girls to mandatory pregnancy tests and publicly announcing the results, introduce a form of intimidation and humiliation that creates an environment antithetical to the principles of safe and accessible education.

17. The Applicants further argue that subjecting school girls to mandatory pregnancy tests, especially given the potentially coercive and stigmatizing nature of such tests, constitutes a clear violation of their right to privacy and bodily integrity.

18. That, the District Commissioner's statement and directives, by mandating compulsory pregnancy tests for schoolgirls and publicly announcing the results, subject these girls to psychological harm, humiliation and potential societal stigma, thus violating their inherent right to dignity.

19. It is also the Applicants’ contention that the Reference is not time- barred because it is centred on the statement made by the District Commissioner on 29th February 2020, which falls within the two-month time limit for filing a Reference. The Applicants state that while they cite previous statements by government officials and regulations, these are only included for context and are not the basis of their cause of action.

20. In sum, the Applicants argue that District Commissioner's statement, if and whenever implemented, will result in the violation of the Treaty provisions, specifically Articles 6(d), 7(2), 8(1 )(c), 27(1), 30(1) and 143 of the Treaty.

21. The Applicants thus prayed for the following Declarations and Orders reproduced verbatim:

**a) A DECLARATION that the policy introduced through the Statement of the District Commissioner and any actions or inactions emanating from it violate the right of equality and non- discrimination, right to privacy and respect of dignity inherent to a human being and the right to education of adolescent schoolgirls and thereby violating the aforementioned provisions of the EAC Treaty;**

**b) A DECLARATION that the Statement by the District Commissioner of 29.02.2020 which derives its legal basis**

**from the provisions of the Education (Expulsion and Exclusion of Pupils from Schools) Regulations, G. N. No. 295 of 2002. Regulations 4(b), (c) and 7(b) is unlawful, discriminatory, and does not serve a legitimate aim and not satisfy the 3 - part cumulative test for permissible restrictions;**

**c) A DECLARATION that the Statement by the District Commissioner and its accompanying actions whenever implemented and/effected constitute a violation of the right of Education of the pregnant young girls who are unfortunately on the receiving end of its effects;**

**d) A DECLARATION that the Statement by the District Commissioner and its accompanying actions whenever implemented and/effected is a blatant violation of the totality of the spirit of the EAC Treaty and African Charter rendering the rights protect therein illusory;**

**e) A DECLARATION that the Statement by the District Commissioner and its accompanying actions whenever implemented and/effected is not in the young girls' best interests and violate the aforementioned provisions of the EAC Treaty, African Charter and the Constitution of the Respondent Partner State, as they deny young adolescent girls their right to education, violate their right to non­discrimination, equality and violate their right to privacy and respect of dignity inherent to a human being as provided under Articles 2, 3, 4, 5 and 17 of the African Charter;**

**f) A DECLARATION that the authority from which the District Commissioner introduced the new policy, in this case, the Education (Expulsion and Exclusion of Pupils from Schools) Regulations, G. N: No. 295 of 2002, in particular the Regulations 4(b), (c) and 7(b) is unlawful, discriminatory, not in the adolescent girls' best interest as it violates the aforementioned provisions of the EAC Treaty and the African Charter;**

**g) AN ORDER directing the Respondent with immediate effect to cease implementation of measures that force educational facilities, authorities or any other related person/s to introduce and implement any policies that emanate from the Education (Expulsion and Exclusion of Pupils from Schools) Regulations, GN. No. 295 of 2002. Regulations 4(b), (c) and 7(b) which have the effect of banning or expelling pregnant girls from schools and prohibited from ever going back after giving birth;**

**h) AN ORDER directing the Respondent to develop strategies, programmes and national wide campaigns that focus on addressing the issue of teenage pregnancies through public education and awareness on sexual and reproductive health rights;**

**i) AN ORDER that the Respondent integrates sexual and reproductive health into school curricula as increased knowledge on family planning and contraceptives will support efforts to address the high rate of teenage pregnancy;**

**j) AN ORDER that the Respondent adopts and or implement the Guidelines on How to Enable Pregnant School Girls to Continue with Their Studies; and**

**k) AN ORDER that the costs of and incidental to this Reference be met by the Respondent.**

# D. THE RESPONDENT’S CASE

22. The Respondent’s case is contained in the Respondent’s Response to the Reference filed on 17th June 2020, in the Respondent’s Affidavit in Reply deponed by Lyabwene Manyilika Mtahabwa on 16th June 2020. The Respondent also filed written submissions on 22nd June 2023 and an additional Affidavit by Angelus Kapinga lodged in Court on 6th April 2023.

23. In response to the Applicants’ claims, the Respondent contends that the Applicants' Reference is time-barred and is based on issues before another international human rights body, the African Committee of Experts on the Rights and Welfare of the Child (ACERWC).

24. The Respondent’s main argument is that the Applicants’ cause of action does not arise from the statement of the District Commissioner, but rather that the Applicants’ Reference relies upon the expulsion Regulations and the statement made by the former President, the late John Pombe Magufuli, as a basis for the District Commissioner's statement.

25. In light of the above, the Respondent submits that the Reference is time-barred under Article 30(2) of the Treaty, as it was filed far beyond the two-months limitation period from the promulgation of the Regulations in 2002. Consequently, the Respondent prays that this Honourable Court dismisses the Reference for lack of jurisdiction due to non-compliance with the prescribed timeframe under the Treaty.

26. In addition, the Respondent challenges the Applicants' assertion that the District Commissioner's statement constitutes a directive, arguing that the Applicants failed to establish whether the District Commissioner's statement qualifies as a directive under Tanzanian law and did not demonstrate any actual harm caused by the statement. The Respondent also contends that the Court's jurisdiction is limited to directives, not on mere statements, and, therefore, the Reference should be dismissed.

27. Furthermore, the Respondent submits that the District Commissioner's statement carries no force of law because it requires implementation through a circular issued by the Education Commissioner. They argue that the Education Commissioner is the sole authority mandated to issue circulars, statements, or guidelines concerning students in schools, and without such a circular, the District Commissioner's statement lacks legal enforceability.

28. Finally, the Respondent states that the matter is moot because the contested action has been addressed by a new circular, rendering the case irrelevant. The Respondent claims that the new circular rectifies the issues raised by the Applicants, thereby negating the need for the Court's intervention. The Respondent emphasizes that the expulsion of pregnant girls, a key concern raised by the Applicants, is no longer practiced, further supporting their argument that the matter is no longer a live controversy.

# E. ISSUES FOR DETERMINATION

29. At the Scheduling Conference held on 16th March 2023, the following issues for determination were agreed:

**i) Whether this Court has jurisdiction to hear the matter;**

**ii) Whether the Respondent violated Articles 6(d), 7(2), 8(1) of the Treaty; and**

**iii) What remedies, if any, are the parties entitled to.**

# **F. THE COURT’S DETERMINATION**

## ISSUE 1: Whether this Court has Jurisdiction to Hear the Matter

### i. The Respondent’s Submissions

30. The Respondent submits that the Applicants’ reliance on the 2002 Expulsion Regulations and statements made by higher-ranking officials, particularly those preceding the District Commissioner’s statement, reveal that the District Commissioner’s statement is not the real impetus for their Reference.

31. The Respondent contends that the Applicants’ cause of action is rooted in these earlier events, thus rendering their Reference time- barred. The Respondent posits that the District Commissioner's statement merely draws its legal basis from the 2002 regulations and pronouncements by officials like former President, John Pombe Magufuli and the former Minister of Home Affairs. The Respondent also contends that without these pre-existing legal frameworks and pronouncements, the District Commissioner lacked the authority to issue the statement in question, further reinforcing the Respondent’s argument that the true source of the Applicants’ grievance lies in those preceding actions.

32. The Respondent further submits that the Applicants’ claim includes a request for declarations regarding the legality of the Regulations, specifically Regulations 4(b) & (c) and 7(b). That, by their own pleadings, the Applicants acknowledge that these Regulations were promulgated in 2002. As such, the Respondent asserts that the Applicants’ claims, in as far as challenging the legality of the Regulations themselves, are beyond the jurisdiction of this Honourable Court due to the expiration of the limitation period.

33. Supporting the claim that the Reference is time-barred, the Respondent cited the case of **Legal Brains Trust Limited vs Attorney General of the United Republic of Tanzania, EACJ Appeal No. 4 of 2012,** where the Court held that it could not adjudicate a matter that was purely academic or lacked live controversy between the involved parties. Building on this precedent, the Respondent argued that the Applicants have failed to establish a live controversy before the Court, implying that their claims are based on past events rather than a current and actionable dispute.

### ii. The Applicants’ Submissions

34. The Applicants strenuously submitted that the Reference was filed within the time frame prescribed by Article 30(2) of the Treaty; that is, within two months because the Reference is centred solely on the District Commissioner's statement made on 29th February 2020.

35. The Applicants argued that their Reference, filed on 28th April 2020, falls squarely within the two months’ time limit prescribed by Article 30(2) of the Treaty.

36. The Applicants acknowledged their inclusion of the 2002 Expulsion Regulations, former President Magufuli’s pronouncements, and the former Minister of Home Affairs’ statements in their Reference. However, they maintained that these references served purely contextual purposes and are not the foundation of their cause of action. The Applicants emphasized that their Reference is focused solely on the District Commissioner’s statement, which they allege infringes upon the Treaty.

37. Thus, the Applicants contend that the Court’s jurisdiction should be confined to this statement and not extend to previous government statements or regulations cited to provide context. The Applicants further emphasized that their case hinges on the District Commissioner's statement made within the two-months’ time limit, which is the sole basis of their Reference and, as such, the Reference is not time-barred.

### iii. The Court's Determination of Issue 1

38. Jurisdiction is the cornerstone of any judicial process. Without it, the Court lacks the authority to exercise its powers under the Treaty. This principle was affirmed in the case of **Attorney General of the United Republic of Tanzania vs African Network of Animal Welfare, EACJ Appeal No. 3 of 2011,** where the Court observed:

**“Jurisdiction is a most, if not the most, fundamental issue that a Court faces in any trial. It is the very foundation upon which the judicial edifice is constructed; from which springs the flow of the judicial process. Without jurisdiction, a Court cannot take even the proverbial first Chinese step in its judicial journey to hear and dispose of the case.”**

39. The above decision emphasizes the essence of jurisdiction as a prerequisite for judicial action. It underscores that without establishing jurisdiction, the court cannot embark on its judicial process.

40. In the case of **Attorney General of the United Republic of Tanzania vs Anthony Calist Komu, EACJ Appeal No. 2 of 2015,** the Court clarified the three dimensions of jurisdiction: *ratione personae, ratione materiae,* and *ratione temporis.* These categories were explained as follows:

**“Lack of *ratione personae* would arise where one of the parties lacks the legal capacity or standing to appear before the Court. On the other hand, *ratione materiae* relates to the subject matter of the dispute, and whether it falls within the Court's competence under the Treaty or applicable conventions. *Ratione temporis* refers to whether the case was initiated within the time frame prescribed for instituting proceedings in the Court.”**

41. Likewise, in the case of **Alcon International Limited vs Standard Chartered Bank of Uganda and 2 Others, EACJ Appeal No. 3 of 2013,** the Appellate Division of this Court cited with approval the

Kenyan Court of Appeal decision in **Owners of the Motor Vessels ‘Lillian S’ vs Caltex Oil (Kenya) Limited (1989) KLR where** Nyarangi, J. A. noted that:

**“Jurisdiction is everything. Without it, a Court has not power to make one step. Where a court has no Jurisdiction, there would be no basis for a continuation of the proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds that it is without jurisdiction ”.**

42. Further, in the case of **Eric Kabalisa Makala vs the Attorney General of Rwanda, EACJ Reference No.1 of 2017,** this Court held:

**“Thus, to succeed on a claim of lack of jurisdiction in this Court, a party must demonstrate the absence of any of the three (3) types of jurisdictions: *ratione personael locus standi, ratione materiae* and *ratione temporis.* Simply stated, these 3 jurisdictional elements respectively translate into jurisdiction on account of the person concerned, matter involved and the time element.”**

43. In the current Reference, no objections have been raised regarding the Court's jurisdiction in terms of ratione *personae* or *ratione materiae.* The Applicants have *locus standi* as residents of a Partner State within the East African Community, and the subject matter involves alleged breaches of the Treaty, over which this Court has clear jurisdiction. The only issue in contention regarding jurisdiction relates to *ratione temporis*—specifically, whether the Reference was filed within the prescribed time limit.

44. In this Reference, the Applicants assert that the Reference was filed on 28th April 2020, arguing that the cause of action arose on 29th February 2020 when the statement in question was issued. This Court must evaluate whether the Applicant has complied with the stringent temporal requirements outlined in Article 30(2) of the Treaty, as the resolution of this issue is critical to determining the validity of the Reference.

45. For purposes of clarity, we find it apt to reproduce most of the grounds that make up the subject matter of the Applicants’ Statement of Reference as they form the gist of the controversy between the parties in as far as the jurisdiction of this Court is concerned.

46. From paragraph 9-13 of the Statement of Reference, the Applicants submit as follows:

**1. . In mainland Tanzania, the practice of expulsion of pregnant girls from schools backed up by the regulations made under the Education Act, CAP 353 R. E 2002;**

**The regulations are broad and vague. The said regulations are called the Education (Expulsion and Exclusion of Pupils from Schools) Regulations, G. N. No. 295 of 2002 under Regulations 4(b), (c) and 7 (b) (hereinafter the Regulations). Annexed and marked "GBS Annexure 3" is a copy of the said Regulations;**

**10. The Regulations, in their current form, have often been used as legal basis for expulsion and exclusion of pregnant school girls from schools;**

**11. In pursuit of implementing the Regulations, senior government education officials have often publicly contended that pregnant girls should be expelled from school as they do not belong in school as they may exert negative influence on other girls;**

**12. In 2017, His Excellency, the then President of the United Republic of Tanzania, Dr John Pombe Magufuli publicly declared that pregnant students should be expelled from public schools...; and**

**13. To further the President's directive, on 29.02.2020, the District Commissioner, was invited in his capacity as a government official to speak at a function within Dodoma Municipality. He made a statement directing all heads of schools and education officers to compulsorily test school girls for pregnancy every 3 months ...”**

47. The Court acknowledges the Applicants’ attempt to isolate the District Commissioner's statement as the sole cause of action. The Applicants contend that their arguments revolve around this statement and its potential future consequences if implemented.

48. The Respondent submits that the Applicants’ reliance on the 2002 Regulations and past pronouncements by senior government officials necessarily extends the date of the cause of action beyond the strict temporal limitations prescribed under Article 30(2) of the Treaty

49. We note that Article 30(2) unequivocally provides that proceedings shall be instituted within two months of the enactment, publication, directive, decision, or action complained of, or from the date it came to the knowledge of the complainant. This means that the Applicants must demonstrate that the Reference was filed within two months of either the occurrence of the impugned action or the date on which the Applicant became aware of it. The onus lies with the Applicant to establish adherence to this time frame.

50. This Court has consistently underscored the strict application of this provision, affirming that it does not allow for extensions, condonations, or waivers of the prescribed limitation period, even in cases involving continuing violations. In **Steven Dennis vs Attorney General of Burundi & Others, EACJ Reference No. 3 of 2015,** this Court reiterated that the rationale of Article 30(2) is to ensure prompt institution of cases to avoid stale claims and safeguard the principle of legal certainty. The Court further emphasized that any claim filed beyond the prescribed two-month limitation must be dismissed outright.

51. From the wording of the earlier cited grounds of the subject matter as presented by the Applicants, we deduce that the primary basis for expulsion lies in the 2002 Regulations, which explicitly permit the expulsion of students for moral offenses, including pregnancy. These regulations provide a legal framework that predates and encompasses any statements made by local officials, including the District Commissioner. Thus, the authority to expel students is rooted in established law rather than a singular directive from a government official.

52. It is also clear that the public statements made by the late President John Magufuli in 2017 further solidified the practice of expelling pregnant girls from schools. His declaration, that pregnant students should not return to school, served to institutionalize and legitimize the existing regulations, thereby creating a national policy that schools were expected to follow. This presidential endorsement indicates that the expulsion practice is part of a broader governmental policy rather than a reaction to the District Commissioner's statement alone.

53. The District Commissioner’s statement may be viewed as an attempt to enforce existing policies rather than create new grounds for action. The statement directed school heads to conduct pregnancy tests, but it did not establish new legal authority or justify expulsions independently of the regulations and presidential directives.

54. In this regard, attributing the cause of action solely to this statement undermines the broader legal context within which these actions occur.

55. In **Attorney General of the Republic of Kenya vs Independent Medical Legal Unit, EACJ Appeal No. 1 of 2011,** the Appellate Division of this Court held that the two-month period begins from the date the contested action or decision is made. It stated:

**“It follows, therefore, in our view, that this Court is limited by Article 30(2) to hear References only filed within two months from the date of action or decision complained of, or the date the Claimant became aware of it. In our view, there is no enabling provision in the Treaty to disregard the time limit set by Article 30(2). Moreover, that Article does not recognize any continuing breach or violation of the Treaty outside the two months after a relevant action comes to the knowledge of the Claimant; nor is there any power to extend that time limit”**

56. This was further clarified in **Attorney General of the Republic of Uganda & Another vs Omar Awadh & 6 Others, EACJ Appeal No. 2 of 2012,** where the Court observed: **“The starting date of an act complained of under Article 30(2) is not the day the act ends, but the day it is first effected.”** The Court in the latter case, emphasized the principle of legal certainty, stating:

**“The principle of legal certainty requires strict application of the time-limit in Article 30(2) of the Treaty. Furthermore, nowhere does the Treaty provide any power to the Court to extend, condone, waive, or modify the prescribed time limit for any reason (including for 'continuing violations')."** (Emphasis added).

57. The Respondent contends that District Commissioner’s statement cannot be viewed in isolation from the broader legal and administrative framework particularly, the 2002 Regulations and the pronouncements of senior government officials such as the late President and the then Minister of Home Affairs.

58. This Court has held that where multiple actions or pronouncements are interconnected, the cause of action extends beyond any single statement or act. In **Bonaventure Gasutwa & 2 Others vs Attorney General of Burundi, Appeal No. 13 of 2014,** this Court found that the temporal limitation under Article 30(2) must be applied to the earliest action or decision in a chain of events. The Court rejected attempts to isolate subsequent statements or actions as the cause of action, holding that such an approach would undermine the strict application of the two-months limitation period. The Court further emphasized that litigants cannot revive stale claims by relying on later manifestations of long-standing policies or regulations.

59. The Applicants themselves have, on multiple occasions, referred to the 2002 Regulations and past pronouncements to provide context and background for the District Commissioner’s statement. This reliance establishes an intrinsic connection between the District Commissioner’s statement and the 2002 Regulations, which have been in force for an extended period. As such, the Applicants’ assertion that the cause of action arose solely from the February 2020 statement is untenable.

60. The Applicants’ argument that the 29th February 2020 statement constitutes a fresh cause of action is further undermined by their reliance on past pronouncements by senior government officials, including statements made by the then President and the Minister in 2017. The principle of continuing violations, as articulated in **Steven Dennis vs Attorney General of Burundi & Others** *(supra),* does not apply to revive claims arising from earlier acts or policies. This Court has consistently held that the temporal limitation under Article 30(2) is absolute and cannot be extended on the basis of continuing violations.

61. The Court’s position in **Attorney General of Kenya vs Independent Medical Legal Unit** *(supra)* is particularly instructive. The Court rejected the argument that ongoing effects or consequences of earlier actions could extend the limitation period, affirming that the two- months period must be strictly adhered to from the date of the initial act or decision.

62. The Respondent contended that the Applicants’ reliance on the Regulations of 2002, as well as statements made by high-ranking Tanzanian officials in 2017, demonstrated that the District Commissioner's statement was not a novel or independent action. Instead, the Respondent urged, the statement falls within a pre­existing legal and policy framework established by the earlier pronouncements. The Respondent further argued that the Applicants’ own submissions acknowledge this connection by citing the 2002 Regulations and the 2017 statements to provide context for the District Commissioner's statement.

63. The Court finds the Respondent’s arguments compelling. The Applicants, while asserting that their claims centred solely on the District Commissioner's statement of 29th February 2020, repeatedly refer to the 2002 Regulations and the 2017 pronouncements as the legal and policy backdrop against which the District Commissioner’s statement should be understood. This reliance suggests that the Applicants themselves view the District Commissioner’s statement as an extension of a pre-existing policy position rather than a distinct and independent action.

64. The Applicants’ argument that the 2002 Regulations and 2017 pronouncements are merely “contextual” and not the basis of their cause of action is unconvincing. The Applicants have not provided a clear and persuasive distinction between "context" and "cause of action" in this case. The Court finds that the 2002 Regulations, being the primary legal framework governing student expulsions, including those related to pregnancy, provide more than mere context. They are, in fact, the foundation upon which any subsequent pronouncements or directives regarding the handling of student pregnancies must be based.

65. Furthermore, the statements attributed to the late President Magufuli and the then Minister of Home Affairs, being expressions of high-level policy pronouncements, cannot be dismissed as mere "context." These statements, regardless of their formal legal status, carry significant weight in shaping the government's approach to the issue of student pregnancies. It is reasonable to infer that the District Commissioner's statement, even if viewed as a directive, would have been guided by and derived its legitimacy from these earlier Regulations and pronouncements.

66. The Court notes that the two-month time limit under Article 30(2) is calculated from the date of the action or decision complained of, or the date the complainant becomes aware of it. In this case, the Respondent argued, and the Court agrees, that the relevant “action” is the establishment of the policy itself, as reflected in the 2002 Regulations and reinforced by the 2017 statements. The District Commissioner's statement, even if interpreted as a directive, is merely a manifestation of this pre-existing policy and does not reset the clock for the limitation period.

67. As earlier stated, jurisdiction lays the groundwork for all subsequent legal actions and decisions; without it, a court lacks the authority to act.

68. Resultantly, we are unable to interrogate the subject matter of the Reference for lack of jurisdiction *ratione temporis.*

69. Regarding costs, Rule 127(1) of the Rules provides that: **“Costs in any proceedings shall follow the event unless the Court shall for good reasons otherwise order.”**

70. However, given the public interest nature of this case, and having determined the Reference at a preliminary stage due to lack of jurisdiction, we find it equitable to order that each party bears its own costs.

# G. CONCLUSION

71. For the reasons set out above in this Judgment, we find that the Reference is time-barred and the Court lacks jurisdiction to entertain it.

72. The Reference is hereby dismissed in its entirety.

73. We direct that each party bears its own costs.

74. It is so ordered.

**Dated, signed and delivered at Arusha this 29th day of November 2024.**

Hon. Justice Yohane B. Masara

**PRINCIPAL JUDGE**

Hon. Justice Richard Muhumuza

**JUDGE**

Hon. Justice Richard Wabwire Wejuli

**JUDGE**

Hon. Justice Dr Leonard Gacuko

**JUDGE**

Hon. Justice Kayembe Ignace Rene Kasanda

**JUDGE**