Q&A – 10 August 2020

Force majeure due to COVID-19

I am told that the force majeure clause will assist be in my nonperformance of a contract. Due to this pandemic, I have been unable to timely finish a construction project and am under intense pressure. Please guide me.
IU, Dar

A force majeure clause relieves a party from performing its contractual obligations due to an event outside the reasonable control of the affected party. Normally force majeure is a product of contractual negotiations, and parties have the freedom to negotiate force majeure clauses as appropriate, hence force majeure clauses vary from agreement to agreement. Depending on the drafting of the clause, the most common force majeure events include ‘acts of God’, ‘natural disasters’, ‘labour shortages’, ‘government action or interference’, ‘national emergencies’ and ‘acts of war’.

Whether a force majeure clause applies to circumstances arising from COVID-19, one must examine whether the definition of a force majeure event includes terminology such as ‘infectious disease’, ‘epidemic’, ‘pandemic’ or something similar. It is also possible that COVID-19 could lead to the occurrence of other events usually included in a force majeure definition such as ‘government action’, ‘national emergency’ or ‘labour shortages’.

You should also consider whether the force majeure clause will be activated in the event any obligation becomes affected by a force majeure event, or whether it only applies to certain specific obligations. You should also understand how the force majeure clause applies to your obligations and whether the clause applies equally to the other party to the contract.

It should also be noted that force majeure clauses usually require notice to be given by a party affected by the force majeure event to the other party, and the trigger for when this notice is required may be unclear, especially in the current circumstances.

For example, an obligation may have been able to be performed at the time COVID-19 was declared a pandemic, but may now be impossible due to restrictions on air travel or large gatherings amongst others. The trigger point will depend on the contract and which obligations have been affected. Usually the party seeking to rely on the force majeure clause bears the burden of proof.

Some clauses refer to acts preventing a party from performing an obligation and this wording will likely be interpreted to mean that an obligation must become impossible to perform, rather than more difficult or costly. Other clauses may refer to hinder, impede, impair, or delay. Nevertheless, Courts will usually require that performance be significantly more onerous, not just more expensive or burdensome to perform or less commercially desirable. If a party’s primary obligation is to pay money, it would be unusual for a force majeure provision to waive that obligation while the other party is ready to fulfil their respective obligations.

Bearing the above in mind, we recommend you read the force majeure clause in the agreement and get the assistance of your lawyer in seeing how to apply it.

Unconstitutionality of Article 41(7) and the African Court

I am a first-year law student and have been reading with interest about the case where the African Court on Human and People’s Rights (African Court) declared Article 41(7) of our constitution unconstitutional. Is there a short summary you can give on this and what exactly did the Court say?
HG, Dar

In the case of Jebra Kambole (Applicant) v United Republic of Tanzania (Respondent State), the Applicant was challenging the legality of Article 41(7) of the Constitution which states: “When a candidate is declared by the Electoral Commission to have been duly elected in accordance with this Article, then no Court of law shall have any jurisdiction to inquire into the election of that candidate.”

The Applicant alleged that the Respondent State had violated his rights under the African Charter on Human and Peoples’ Rights (the Charter) by maintaining Article 41(7) in its Constitution, which provision bars any Court from inquiring into the election of a presidential candidate after the Electoral Commission has declared a winner.

Specifically, the Applicant alleged that Article 41(7) violated his right to non-discrimination, his right to equal protection of the law and the right to have his cause heard, especially the right to appeal to competent national organs against acts violating his fundamental rights as provided for under Articles 2, 3(2) and 7(1)(a) of the Charter, respectively. The Applicant also alleged that the Respondent State had failed to honour its obligation to recognise the rights, duties and freedoms enshrined in the Charter and to take legislative and other measures to give effect to the Charter as required by the Charter.

The Court first held that it had jurisdiction to entertain the application. On admissibility, the Court stated that the Application was admissible notwithstanding arguments raised on (i) local remedies not being exhausted and (ii) that the Application was time barred. The Court held that that the Applicant did not have a local remedy that was available for him to exhaust before filing his Application, and that there is no specific time frame within which such an application must be filed.

On the merits, the Court found as follows that Article 41(7) of the Constitution creates a differentiation between litigants in that while the Respondent State’s Courts are permitted to look into any allegation by any litigant, they are not allowed to do so when a litigant seeks to inquire into the election of a President. The Court held that this amounted to a violation of Article 2 of the Charter.

As to whether the Respondent State had violated Article 3(2) of the Charter, the Court noted that the principle of equal protection of the law does not necessarily require equal treatment in all instances and can permit differentiated treatment of individuals who are differently placed. The Court thus held that the Respondent State had not violated Article 3(2) of the Charter.

On Article 7(1)(a) of the Charter, the Court noted that among the key elements of the right to a fair hearing, is the right of access to a Court for adjudication of one’s grievances and the right to appeal against any decision rendered in the process. The Court held that Article 41(7) ousts the jurisdiction of Courts to consider any complaint in relation to the election of a presidential candidate after the Electoral Commission has declared a winner and hence the Respondent State’s Constitution violated the Applicant’s rights under Article 7(1)(a) of the Charter.