Application

Author
Judgment date
Case number
Application 32 of 2015
Court name
African Court
Judge
Orè P
Kioko VP
Niyungeko J
Guissè J
Ben Achour J
Matusse J
Mengue J
Mukamulisa J
Chizumila J
Bensaoula J
Eno R
Search summary

The Court considered an application from the Applicant, a convicted and imprisoned person, for the quashing of a criminal conviction and his release from prison by the Respondent State. The Court considered whether the use of visual evidence during the Applicant’s criminal trial, and the failure of the Respondent to provide free legal aid, constituted a breach of his right to a fair trial within the scope of Art 7 of the African Charter on Human and Peoples' Rights.

Le texte anglais fait foi
The English text is authoritative

AFRICAN UNION | UNION AFRICAINE | UNIÃO AFRICANA | الاتحاد الافريقي

AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS

COUR AFRICAINE DES DROITS DE L’HOMME ET DES PEUPLES

THE MATTER OF

KIJIJI ISIAGA

V.

UNITED REPUBLIC OF TANZANIA

APPLICATION No. 032/2015

JUDGMENT

21 MARCH 2018

 

The Court composed of: Sylvain Oré, President; Ben KIOKO, Vice President; Gérard NIYUNGEKO, El Hadji GUISSÈ, Rafâa BEN ACHOUR, Angelo V. MATUSSE, Ntyam S. O. MENGUE, Marie Thérèse MUKAMULISA, Tujilane R. CHIZUMILAChafika BENSAOULA, Judges; and Robert ENO, Registrar.

 

In the matter of

Kijiji ISIAGA

Self-represented

Versus

UNITED REPUBLIC OF TANZANIA

represented by

  1. Ms. Sarah MWAIPOPOActing Deputy Attorney General and Director of Constitutional Affairs and Human Rights, Attorney General’s Chambers

  1. Mr. Baraka LUVANDA, Ambassador, Head of Legal Unit, Ministry of Foreign Affairs and International Cooperation

  1. Ms. Nkasori SARAKIKYA, Assistant Director of Human Rights, Principal State Attorney, Attorney General’s Chambers

  1. Mr. Elisha E. SUKA, Foreign Service Officer, Legal Affairs Unit, Ministry of Foreign Affairs and International Cooperation

  1. Mr. Mark MULWAMBO, Principal State Attorney, Attorney General’s Chambers

 

after deliberation,

renders the following Judgment:

I. THE PARTIES

  1. The Applicant, Mr. Kijiji Isaiga, is a national of the United Republic of Tanzania. He is currently serving a term of thirty (30) years’ imprisonment at the Ukonga Central Prison in Dar es Salaam, United Republic of Tanzania, following his conviction for the crimes of inflicting bodily harm and aggravated robbery.

  1. The Respondent State, the United Republic of Tanzania, became a Party to the African Charter on Human and Peoples’ Rights (hereinafter referred to as “the Charter”) on 21 October1986, and to the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples' Rights (hereinafter referred to as “the Protocol”) on 10 February, 2006. Furthermore, the Respondent State deposited the declaration required under Article 34 (6) of the Protocol, accepting the jurisdiction of the Court to receive cases from individuals and Non-Governmental Organizations on 29 March, 2010. The Respondent State also became a Party to the International Covenant on Civil and Political Rights (hereinafter referred to as “ICCPR”) on 11 June, 1976.

II. SUBJECT OF THE APPLICATION

  1. The Application relates to violations allegedly arising from a domestic procedure at the end of which the Applicant was sentenced to thirty (30) years’ imprisonment with twelve strokes of the cane for inflicting bodily harm and aggravated robbery.

A. Facts of the Matter

  1. According to the file and the judgments of domestic Courts, on 4 April, 2004, at around 8.00 p.m. in the village of Kihongera, District of Tarime, in the Mara Region, three individuals armed with a gun and machete burst into the residence of Ms. Rhobi Wambura, who was with her two children, Rhobi Chacha and Chacha Boniface.

  1. The individuals ordered Ms. Rhobi and the children to lie face down, stating that they had come to claim the pension benefits paid to them from the estate of her late husband and the father of the two children. When the family refused to comply, two of the attackers injured the children using a machete, while the third assailant who was keeping guard fired a warning shot.

  1. Ms. Rhobi took the two assailants who had attacked the children into her bedroom and handed to them one million Tanzanian Shillings (about 450 United States Dollars). After counting the money under the glare of a lantern, the assailants took two bags full of clothes and fled.

  1. Following Ms. Rhobi’s and her children’s distress calls, many people, including one, Mr. Yusuf Bwiru, came to their rescue. Mr. Bwiru subsequently stated in his testimony that he found Ms. Rhobi and her children crying and calling the names of their neighbour Mr. Bihari Nyankongo, his nephew (the Applicant) and another individual not identified, as the attackers. The victims maintained their accusation before Mr. Anthony Michack, the Commander of the local civil defence group and later at the Police Station, where they had been taken.

  1. The Police investigation, which opened on 6 April, 2004, led to the recovery of an unused bullet and a cartridge from the scene of the attack and subsequently to the arrest of Mr. Nyankongo. The latter allegedly admitted to having been involved in the attack, returned the stolen clothing to Ms. Rhobi and her children, denounced his accomplices and provided information on their whereabouts. Consequently, on 7 April, 2004, the Applicant was arrested in his village.

  1. Charged with crimes of inflicting bodily harm and armed robbery contrary to Sections 228 (i), 285 and 286 of the Tanzanian Penal Code in Criminal Case No. 213 of 2004 in the District Court of Tarime, the Applicant was convicted and sentenced to thirty (30) years in prison and twelve (12) strokes of the cane.

  1. Following the Applicant’s appeal, the conviction and sentence were subsequently confirmed by the High Court of Tanzania sitting in Mwanza on 5 August, 2005, in Criminal Case No. 445 of 2005, and by the Court of Appeal of Tanzania on 19 September, 2012, in Criminal Appeal No. 192 of 2010.

B. Alleged Violations

  1. In his Application, the Applicant alleges that the local Courts based their decisions on contestable evidence, in particular, the testimonies and exhibits that were improperly obtained and used. In this regard, the Applicant alleges that the visual identification relied upon by the domestic courts was flawed for the following reasons:

  1. The witnesses did not say where the lamp was located and the direction of its lighting between them and the robbers.

  2. The witnesses had not mentioned the distance between them and the robbers during the crime scene.

  3. The witnesses did not define their condition after the sudden attack and how they were controlled and ability to follow the robbers’ orders and instructions. If the witnesses had known well their robbers and named them immediately after the incident, why the Applicant was arrested at his home after two days without escaping the same area.

  4. If the Applicant and his co-accused were very famous to the witnesses, how they were decided to take more time for counting the money at the scene.

  5. That, the Court of Appeal was required to caution itself about contradiction of facts of the prosecution evidence. When PW3 had claimed that PW1 did not announce to any one of them the bringing of the stolen money at their home, but firstly was narrated that PW1 had been with money for a month. Furthermore, while PW2 claimed that they raised an alarm which brought in their neighbour to be at the scene, he said about which made him to go there is only burst of the gun.”

  1. The Applicant submits that he was never in possession of the properties which were alleged to have been stolen and tendered in the Trial Court as exhibits. He maintains that the Court of Appeal “… grossly misdirected itself to apply the doctrine of recent possession against the Applicant while the exhibits alleged in the trial were said to be possessed by the co-accused”. The Applicant asserts that the Court exclusively relied on the absence of a rival claim over the exhibits to dismiss his appeal.

III. SUMMARY OF THE PROCEDURE BEFORE THE COURT

  1. The Application was filed on 8 December, 2015.

  1. By a notice dated 25 January, 2016, and pursuant to Rule 35(2) (a) of the Rules of the Court (hereinafter referred to as “the Rules”), the Registry served the Application on the Respondent State, requesting the latter to submit within thirty (30) days of receipt, the names and addresses of its representatives, pursuant to Rule 35(4) (a) of the Rules and respond to the Application within six (60) days of receipt of the notice pursuant to Rule 37 of the Rules.

  1. By a notice dated 11 February, 2016, in accordance with Rule 35(3) of the Rules of the Court, the Application was transmitted to the Executive Council of the African Union, State Parties to the Protocol and other entities through, the Chairperson of the African Union Commission.

  1. By a letter dated 24 March, 2016, the Respondent State requested for an extension of time to file the Response to the Application.

  1. By a letter dated 8 June, 2016, the Registry informed the Respondent State that the Court has granted the request and requested it to file its Response within thirty (30) days from the receipt of the letter.

  1. Having failed to file the Response to the Application, within this additional extension of time, by a letter dated 19 October, 2016, the Court suo motu, decided to grant the Respondent State an additional thirty (30) days from receipt thereof, for the filing of the Response. By the same letter, the Parties’ attention was drawn to Rule 55 of the Rules, concerning judgment in default.

  1. On 11 January, 2017, the Applicant requested the Court to issue a judgment in default.

  1. At its 44th Ordinary Session held from 6 to 24 March, 2017, the Court decided that it would, in the interest of justice, render a judgment in default if the Respondent State does not file its Response within forty-five (45) days of receipt of the letter. By a letter dated 20 March, 2017, the Registry notified the Respondent State of the decision of the Court.

  1. The Respondent State filed the Response to the Application on 12 April, 2017.

  1. This was transmitted to the Applicant by a notice dated 18 April, 2017, granting thirty (30) days from the date of receipt, for the filing of the Reply to the Response.

  1. The Applicant filed the Reply on 23 May, 2017.

  1. By a letter dated 16 June, 2017, the Registry notified the Parties that the written procedure was closed with effect from 14 June, 2017.

IV. PRAYERS OF THE PARTIES

  1. In his Application, the Applicant prays the Court to:

“i) restore justice where it is overlooked, and quash both the conviction and sentence imposed upon him, and set him at liberty;

ii) grant reparation pursuant to article 27 (1) of the Protocol;

iii) grant any other order(s) sought that may deem fit in the circumstances of the complaints.”

  1. In its Response, the Respondent State prays the Court to declare that the Application is not within the purview of its jurisdiction, and that the Application does not fulfil the admissibility requirements specified under Rule 40 (5) of the Rules on exhaustion of local remedies and Rule 50 (6) on filing an application within a reasonable time.

  1. On the merits, the Respondent State further prays the Court to find that:

  1. “the government of the United Republic of Tanzania has not violated articles 3 (1) and (2), article 7 (1) (c) of the Charter;

  2. the Court of Appeal considered all grounds of appeal and properly evaluated the evidence before it and rightfully upheld the conviction of the Applicant;

  3. the Court of Appeal properly ruled that the doctrine of recent possession and visual identification of the Applicant was proper and sufficient to land conviction;

  4. the Application be dismissed for lack of merit; and

  5. no reparations be awarded in favour of the Applicant”

V. JURISDICTION

  1. In accordance with Rule 39 (1) of the Rules, the Court “shall conduct a preliminary examination of its jurisdiction …”.

  1. In the instant Application, the Court notes from the Respondent State’s submission that the latter disputes only the Court’s material jurisdiction. However, the Court shall satisfy itself that it also has personal, temporal and territorial jurisdiction to examine the Application.

A. Objection to the Material Jurisdiction of the Court

  1. The Respondent State argues that the Court does not have jurisdiction to examine the Application as it requires the Court to adjudicate on issues involving the evaluation of evidence and quashing convictions and setting aside sentences imposed by domestic courts. According to the Respondent State, these are matters duly decided by the highest court of Tanzania and entertaining these issues would require this Court to sit as an appellate court to the Court of Appeal of Tanzania.

  1. The Applicant submits that the Court has jurisdiction to consider his Application because it concerns issues of application of the provisions of the Charter, the Protocol and the Rules.

* * *

  1. Pursuant to Article 3 (1) of the Protocol and Rule 26 (1) (a) of the Rules, the material jurisdiction of the Court extends to “all cases and disputes submitted to it concerning the interpretation and application of the Charter, the Protocol and other relevant human rights instruments ratified by the State concerned.”

  1. Going by these provisions, the Court exercises its jurisdiction over an Application as long as the subject matter of the Application involves alleged violations of rights protected by the Charter or any other international human rights instruments ratified by a Respondent State.1

  1. The Court is obviously not an appellate court to uphold or reverse the judgments of domestic courts based merely on the way they examined evidence to arrive at a particular conclusion.2 It is also well-established in the jurisprudence of the Court that where allegations of violations of human rights relate to the manner in which domestic courts examine evidence, the Court has jurisdiction to assess whether such examination is consistent with international human rights standards.3

  1. In the instant Application, the Court notes that the Applicant raises issues relating to alleged violations of human rights protected by the Charter. The Court further notes that the Applicant’s allegations essentially relate to the way in which the domestic courts of the Respondent State evaluated the evidence. However, this does not preclude the Court from making a determination on the allegations. The Respondent State’s objection that the instant Application would require this Court to sit as an appeal court and re-examine the evidence on the basis of which the Applicant was convicted by the national courts is thus dismissed.

  1. The Court therefore finds that it has material jurisdiction to examine the Application.

B. Other Aspects of Jurisdiction

  1. The Court notes that other aspects of its jurisdiction have not been contested by the Respondent State and nothing on the record indicates that the Court does not have jurisdiction. The Court thus holds:

    1. that it has personal jurisdiction given that the Respondent State is a Party to the Protocol and deposited the Declaration required under Article 34(6) thereof which enabled the Applicant to access the Court in terms of Article 5(3) of the Protocol;

    2. that it has temporal jurisdiction on the basis that the alleged violations are continuous in nature, in that the Applicant remains convicted and is serving a sentence of thirty (30) years’ imprisonment on grounds which he believes are marred by irregularities4; and

    3. that it has territorial jurisdiction given that the facts of the matter occurred on the territory of a State Party to the Protocol, that is, the Respondent State.

  1. From the foregoing, the Court finds that it has jurisdiction to consider this Application.

VI. ADMISSIBILITY OF THE APPLICATION

  1. Pursuant to Rule 39 (1) of the Rules, “the Court shall conduct a preliminary examination of … the admissibility of the Application in accordance with Article … 56 of the Charter, and Rule 40 of these Rules”.

  1. Rule 40 of the Rules which in substance restates the provisions of Article 56 of the Charter, provides as follows:

“Pursuant to the provisions of article 56 of the Charter to which article 6(2) of the Protocol refers, applications to the Court shall comply with the following conditions:

  1. disclose the identity of the Applicant notwithstanding the latter’s request for anonymity;

  2. comply with the Constitutive Act of the Union and the Charter ;

  3. not contain any disparaging or insulting language;

  4. not be based exclusively on news disseminated through the mass media;

  5. be filed after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged;

  6. be filed within a reasonable time from the date local remedies were exhausted or from the date set by the Court as being the commencement of the time limit within which it shall be seized with the matter; and

  7. not raise any mater or issues previously settled by the parties in accordance with the principles of the Charter of the United Nations, the Constitutive Act of the African Union, the provisions of the Charter or of any legal instrument of the African Union.”

A. Conditions of admissibility that are in contention between the Parties

  1. The Respondent State has raised two objections to the admissibility of the Application relating to the requirements of exhaustion of local remedies and the filing of the Application within a reasonable time after the exhaustion of local remedies.

i. Objection relating to non-exhaustion of local remedies

  1. The Respondent State contends that rather than filing this Application before this Court, the Applicant had two options that he could have used to get redress for his grievances at domestic level. According to the Respondent State, the Applicant could have either sought a review of the Court of Appeal’s judgment on his appeal, or he could have filed a constitutional petition pursuant to the Basic Rights and Duties Enforcement Act [Cap. 3 RE 2002], relating to the alleged violations of his rights.

  2. In his Reply, the Applicant asserts that his Application has been filed after exhaustion of local remedies, that is, after the dismissal of his appeal by the Court of Appeal of Tanzania, the highest court in the Respondent State.

* * *

  1. The Court notes that an application filed before it shall always comply with the requirement of exhaustion of available local remedies, unless it is demonstrated that the remedies are ineffective, insufficient, or the domestic procedures to pursue them are unduly prolonged.5 In the Matter of African Commission on Human and Peoples’ Rights v. Republic of Kenya, the Court observed that the rule of exhaustion of domestic remedies “maintains and reinforces the primacy of the domestic system in the protection of human rights vis-à-vis the Court”.6 It follows that in principle, the Court does not have a first instance jurisdiction over a matter which was not raised at the domestic level.

  1. In its established jurisprudence, the Court has also consistently held that an Applicant is only required to exhaust ordinary judicial remedies.7

  1. Concerning the filing of the constitutional petition on the alleged violation of the Applicant’s rights, in the Matter of Alex Thomas v. United Republic of Tanzania, this Court has held that this remedy in the Tanzanian judicial system is an extraordinary remedy which the Applicant was not required to exhaust prior to filing his Application before it.8

  1. With regard to the application for review of the Court of Appeal’s judgment, this Court similarly held in the above-mentioned case that, in the Tanzanian judicial system, this is an extraordinary remedy that the Applicant was not required to exhaust before he seized the Court. 9

  1. In the instant case, the Court notes from the records that the Applicant went through the required criminal trial process up to the Court of Appeal, which is the highest Court in the Respondent State, before bringing his Application to this Court. The Court therefore finds that the Applicant has exhausted the local remedies available in the Respondent State’s judicial system.

  1. Accordingly, the Court dismisses the objection that the Applicant did not exhaust local remedies.

 ii. Objection relating to not filing of the application within a reasonable time

  1. The Respondent State contends that, should the Court find that the Applicant has exhausted local remedies, it should reject the Application since the Applicant did not file his Application within a reasonable time after exhausting local remedies, in accordance with the Rules. In this regard, the Respondent State asserts that even though Rule 40 (6) of the Rules is not specific on the question of reasonable time, international human rights jurisprudence has established six months period as a reasonable time.

  1. In his Reply, the Applicant argues that he first learnt of the Court’s existence in 2015 and considering that he is a layman and is not represented by a lawyer, his Application should be considered as having been filed within a reasonable time.

* * *

  1. The Court notes that Article 56 (6) of the Charter does not indicate a precise timeline in which an Application shall be filed before the Court. Rule 40 (6) of the Rules refers to a “reasonable time from the date local remedies were exhausted or from the date set by the Court as being the commencement of the time limit within which it shall be seized of the matter.”

  2. In the Matter of Norbert Zongo and Others v. Burkina Faso, the Court stated that “the reasonableness of a time limit of seizure will depend on the particular circumstances of each case and should be determined on a case-by-case basis.”10 Accordingly, the Court, taking the circumstances of each case into account, specifies the date from which the time should be computed and then determines whether an application has been filed within a reasonable time from such date.

  1. In the instant case, the Court notes that the judgment of the Court of Appeal in Criminal Appeal No. 182 of 2010 was delivered on 19 December, 2012. The Application was filed before this Court on 8 December, 2015, that is, two (2) years and eleven (11) months) after the judgment of the Court of Appeal. The key issue here is whether this time can be considered as reasonable in light of the particular circumstances of the Applicant.

  1. The Respondent State does not dispute that the Applicant is a lay, indigent and incarcerated person without the benefit of legal education or assistance.11 These circumstances make it plausible that the Applicant may not have been aware of the Court’s existence and how to access it.

  1. In view of these circumstances, the Court is of the opinion that the filing of this Application two (2) years and eleven (11) months after the exhaustion of local remedies is a reasonable time and therefore, dismisses the Respondent State’s objection in this regard.

B. Conditions of admissibility that are not in contention between the Parties

  1. The conditions of admissibility regarding the identity of the Applicant, the Application’s compatibility with the Constitutive Act of the African Union, the language used in the Application, the nature of the evidence, and the principle that an Application must not raise any matter already determined in accordance with the principles of the United Nations Charter, the Constitutive Act of the African Union, the provisions of the Charter or of any other legal instruments of the African Union (Sub-Rules 1, 2, 3, 4 and 7 of Rule 40 of the Rules) are not in contention between the Parties.

  1. The Court also notes that nothing in the record before it indicates that these requirements have not been fulfilled. Consequently, the Court holds that these admissibility requirements have been fully met in the instant case.

  1. In view of the foregoing, the Court finds that the instant Application fulfils all the admissibility requirements specified in Article 56 of the Charter and Rule 40 of the Rules, and accordingly declares the same admissible.

 

VII. THE MERITS

A. Allegations relating to violation of the right to a fair trial

i. Allegation relating to evidence relied on to identify the Applicant

  1. The Applicant submits that the visual identification relied upon by the domestic courts to convict him was erroneous. He avers that the victims who testified as witnesses did not indicate the distance between them and the attackers at the time of the commission of the crime; that they did not mention the location and direction of light of the lamp and that they failed to explain their condition and how they were able to comply with the assailants’ order after the sudden attack.

  1. The Applicant further adds that even though the victims claimed to have known the attackers, he was arrested after two days of the commission of the crime despite his presence in the area. He submits that the victims’ testimony that the attackers took time to count the money in front of them does not pass the test of common sense, as the robbers would not do that in front of victims while being aware that the victims know them. Finally, the Applicant argues that Mr Yusuf Bwiru, the prosecution witness who arrived at the scene of the crime did not claim to have seen the robbers but just heard their names from the victims.

  1. On its part, the Respondent State reiterates that the Court is not empowered to evaluate the evidence of the Trial Court but rather consider if duly established procedures laid down by the laws of the land were adhered to, otherwise, the Court would vest itself with appellate powers which are not granted to it by the Charter, the Protocol and the Rules.

  1. The Respondent State argues that, the Applicant’s allegations require the Court to assess the manner in which its domestic courts evaluated evidence. In this regard, the Respondent State submits that during the course of the Applicant’s trial, five prosecution witnesses testified and five exhibits were tendered and the Applicant entered his defence after he was given adequate time to prepare it. According to the Respondent State, it is after carefully examining all the evidence, including that of visual identification, that the Trial Court convicted the Applicant and the High Court and the Court of Appeal sustained the conviction.

  1. According to the Respondent State, the domestic courts convicted the Applicant after a thorough and appropriate examination of all evidence. The Respondent State maintains that, the Court should defer to the finding of the domestic courts in circumstances where duly established procedures laid down by the laws of the land were adhered to.

* * *

  1. The Court underscores that domestic courts enjoy a wide margin of appreciation in evaluating the probative value of a particular evidence. As an international human rights court, the Court cannot take up this role from the domestic courts and investigate the details and particularities of evidence used in domestic proceedings.

  1. However, the fact that an allegation raises questions relating to the manner in which evidence was examined by domestic courts does not preclude the Court from determining whether the domestic procedures fulfilled international human rights standards. In its judgment in the matter of Mohamed Abubakari v. Tanzania, the Court held that:

“As regards, in particular, the evidence relied on in convicting the Applicant, the Court holds that, it was indeed not incumbent on it to decide on their value for the purposes of reviewing the said conviction. It is however of the opinion that, nothing prevents it from examining such evidence as part of the evidence laid before it so as to ascertain in general, whether consideration of the said evidence by the national Judge was in conformity with the requirements of fair trial within the meaning of Article 7 of the Charter in particular.”12

  1. In this regard, the Court observes that “a fair trial requires that the imposition of a sentence in a criminal offence, and in particular, a heavy prison sentence, should be based on strong and credible evidence”.13

  1. The Court also notes that when visual identification is used as evidence to convict a person, all circumstances of possible mistakes should be ruled out and the identity of the suspect should be established with certitude. This is also the accepted principle in the Tanzanian jurisprudence.14 This demands that visual identification should be corroborated by other circumstantial evidence and must be part of a coherent and consistent account of the scene of the crime.

  1. In the instant case, the record before this Court shows that the domestic courts convicted the Applicant on the basis of evidence of visual identification tendered by three Prosecution Witnesses, who were victims of the crimes. These witnesses knew the Applicant before the commission of the crimes, since he used to come to his uncle’s house, who was the Applicant’s co-accused. The national courts thoroughly assessed the circumstances in which the crime was committed to eliminate possible mistaken identity and found that the Applicant and his co-accused were positively identified as having committed the alleged crimes.

  1. The Court also observes that in addition to the victims’ testimony on the Applicant’s and his co-accused’s identity, the national courts also considered the testimony of other Prosecution Witnesses, namely, that of Mr. Yusuf Bwiru and Commander Anthony Michack. The national courts also relied on exhibits collected from the scene of the crime and recovered from the co-accused. Mr. Yusuf Bwiru arrived at the scene of the crime immediately after the attackers left and found the victims terrified and crying for help and all of them named the Applicant and his co-accused as attackers.

  1. The Court further notes from the record that during the trial, the Applicant did not contest the use of the exhibits as evidence. In their statement to the Regional Commander, Mr. Anthony Michack, the victims also gave a consistent account of the crime and the identity of the robbers. The Applicant did not invoke any apparent reason as to why the victims could lie nor did he offer a counter evidence to refute the testimony proffered by prosecution witnesses. The evidence secured from the victims’ visual identification forms part of a consistent account of the scene of the crime and the identity of the Applicant.

  1. The Applicant’s allegations that the victims did not state the distance between the intruders and them, that he was arrested only after two days, that the intruders would not count the money in front of the victims knowing that the latter knew them and that the victims did not state the direction and location of the lamp are all details that concern particularities, the assessment of which should be left to the domestic courts.

  1. In view of the above, the Court is of the opinion that the manner in which the domestic courts evaluated the facts or evidence does not disclose any manifest error or resulted in a miscarriage of justice to the Applicant and hence, requires the Court’s deference. The Court therefore dismisses the allegation of the Applicant that the evidence of visual identification relied upon by the Court of Appeal was erroneous.

ii. The Allegation on failure to provide legal assistance

  1. The Applicant contends that the Respondent State has violated Article 7 (1) (c) of the Charter. The Applicant further submits that with “the inequality of arms in the Respondent State’s prosecution system, whereby there is, on the one hand, the State Prosecution backed by professional lawyers; and on the other, the Applicant who was, an indigent, layman, not represented by a lawyer, it can hardly be said that the Applicant has been afforded equal protection of the law and the right to a fair trial”.

  1. The Respondent State denies this and argues that the Applicant was afforded the right to be heard and defend himself in the presence of his co-accused and witnesses, he was given the opportunity to cross examine all witnesses who testified against him and that he had the right to appeal. The Respondent State admits that the Applicant was not represented by a lawyer during the trial, but argues that the Applicant did not ask for legal assistance as per its Legal Aid Act No. 21 of 1969.

 

* * *

  1. In terms of Article 7 (1) (c):

“Every individual shall have the right to have his cause heard. This comprises:

[…] c) The right to defence, including the right to be defended by counsel of his choice.”

  1. Even though Article 7 (1) (c) of the Charter guarantees the right to defence, including the right to be assisted by counsel of one’s choice, the Court notes that the Charter does not expressly prescribe the right to free legal assistance.

  1. In its judgment in the Matter of Alex Thomas v. The United Republic of Tanzania, this Court however stated that free legal aid is a right intrinsic to the right to a fair trial, particularly, the right to defence guaranteed in Article 7 (1) (c) of the Charter.15 In its previous jurisprudence, the Court also held that an individual charged with a criminal offence is automatically entitled to the right of free legal aid, even without the individual having requested for it, where the interests of justice so require, in particular, if he is indigent, the offence is serious and the penalty provided by the law is severe.16

  2. In the instant case, it is not in dispute that the Applicant was not afforded free legal aid throughout his trial. Given that the Applicant was convicted of serious crimes, that is, armed robbery and unlawful wounding, carrying a severe punishment of 30 years and 12 months imprisonment, respectively, there is no doubt that the interest of justice would warrant free legal aid provided that the Applicant did not have the required means to recruit his own legal counsel. In this regard, the Respondent State does not contest the indigence of the Applicant nor does it argue that he was financially capable of getting a legal counsel. In these circumstances, it is evident that the Applicant should have been given free legal aid. The fact that he did not request for it is irrelevant and does not shun the responsibility of the Respondent State to offer free legal aid.

  1. The Court therefore finds that the Respondent State has violated Article 7 (1) (c) of the Charter.

B. Alleged violation of the right to equality before the law and equal protection of the law

  1. The Applicant asserts that the Court of Appeal, while examining his appeal, did not consider all the relevant facts and arguments that he submitted relating to the evidence used to convict him. By doing so, the Applicant argues that the Respondent State violated his fundamental right under Articles 3 (1) and (2) of the Charter, which requires every individual to be entitled to equal protection of the law.

  1. The Respondent State on the other hand contends that Article 13 (6) of its Constitution provides a similar provision as Article 3 of the Charter, which guarantees the right to equal protection of the law. According to the Respondent State, the Applicant was not discriminated against during his trial and was treated fairly in accordance with the law, he was given the right to be heard and defend himself in the presence of his accusers and the opportunity to cross examine all witnesses; and he had also the right to appeal.

* * *

  1. The Court notes that Article 3 of the Charter guarantees the right to equality and equal protection of the law in the following terms:

“1. Every individual shall be equal before the law.

2. Every individual shall be entitled to equal protection of the law”

 

  1. The Court notes that the right to equal protection of the law requires that ‘the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.17 The Court notes that this right is recognised and guaranteed in the Constitution of the Respondent State. The relevant provisions (Articles 12 and 13) of the Constitution enshrine the right in similar form and content as the Charter, including by prohibiting discrimination.

  1. The right to equality before the law requires that “all persons shall be equal before the courts and tribunals”18 In the instant Application, the Court observes that the Court of Appeal examined all grounds of the Applicant’s appeal and found that it did not have merit. In the interest of justice, the Applicant was even allowed to file his notice of appeal out of the deadline specified by the domestic law and his appeal was duly considered.19 In this regard, this Court has not found that the Applicant was treated unfairly or subjected to discriminatory treatment in the course of the domestic proceedings.

  1. The Applicant has therefore not adequately substantiated that his right to equality before the law or his right to equal protection of the law was contravened and, thus, the Court dismisses his allegation that the Respondent State violated Articles 3 (1) and (2) of the Charter.

C. Alleged violation of the right to non-discrimination

  1. The Applicant submits that the Court of Appeal, by failing to properly evaluate the evidence obtained during his trial, has violated his right under Article 2 of the Charter. On its part, the Respondent State insists that the Court of Appeal did properly address the Applicant’s appeal and convicted him only after assessing a set of facts and corroborating evidence.

* * *

  1. It emerges from Article 2 of the Charter that:

 

“Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status.”

 

  1. The principle of non-discrimination strictly forbids any differential treatment among persons existing in similar contexts on the basis of one or more of the prohibited grounds listed under Article 2 above.20

  1. In the instant case, the Applicant simply asserts that the Court of Appeal violated his right to freedom from discrimination. The Applicant does not indicate the kind of discriminatory treatment that he was subjected to in comparison to persons who were in the same situation as he was, nor does he specify the ground(s) prohibited under Article 2 of the Charter on which basis he was discriminated. The mere allegation that the Court of Appeal did not properly examine the evidence supporting his conviction is not sufficient to find a violation of his right not to be discriminated. The Applicant should have furnished evidence substantiating his contention.

  1. In view of the foregoing, the Court finds that the Applicant is not a victim of any discriminatory practice that contravenes the right to freedom from discrimination guaranteed under Article 2 of the Charter.

VIII. REMEDIES SOUGHT

  1. In his Application, the Applicant prayed the Court to, among other things, quash his conviction and set him free, grant other reparations and order such other measures or remedies as it may deem fit.

  1. On the other hand, the Respondent State prayed the Court to deny the request for reparations and all other reliefs sought by the Applicant.

  1. Article 27(1) of the Protocol provides that "if the Court finds that there has been violation of a human or peoples’ rights, it shall make appropriate orders to remedy the violation including the payment of fair compensation or reparation."

  1. As regards the Applicant’s request that the Court quash the decision of the national courts, the Court reiterates its decision in the matter of Ernest Francis Mtingwi v. Republic of Malawi21, that it is not an appeal court to quash or reverse the decision of domestic courts, therefore, it does not grant the request.

  1. Concerning the Applicant’s request for an order of his release, the Court recalls its decision in Alex Thomas v Tanzania22 where it stated that “an order for the Applicant’s release from prison can be made only under very specific and/or, compelling circumstances”. In the instant case, the Applicant has not provided proof of such circumstances. Consequently, the Court does not grant the prayer, without prejudice to the Respondent applying such measure proprio motu.

  1. With respect to other forms of reparation, Rule 63 of the Rules of Court provides that "the Court shall rule on the request for reparation… by the same decision establishing the violation of a human and peoples’ right or, if the circumstances so require, by a separate decision.”

  1. In the instant case, the Court notes that none of the Parties made detailed submissions concerning the other forms of reparation. It will therefore make a ruling on this question at a later stage in the procedure after having heard the Parties.

IX. COSTS

  1. In their submissions, the Applicant and the Respondent State did not make any statements concerning costs.

  1. The Court notes that Rule 30 of the Rules provides that “unless otherwise decided by the Court, each party shall bear its own costs”.

  1. The Court shall decide on the issue of costs when making a ruling on other forms of reparation.

 

X. OPERATIVE PART

 

  1. For these reasons:

 

The COURT

Unanimously,

On Jurisdiction:

  1. Dismisses the objection to the material jurisdiction of the Court.

  2. Declares that it has jurisdiction.

On Admissibility:

  1. Dismisses the objections to the admissibility of the Application.

  2. Declares the Application admissible.

On Merits:

  1. Holds that the Respondent State has not violated Articles 2 and 3 (1) and (2) of the Charter relating to freedom from discrimination and the right to equality and equal protection of the law, respectively.

  2. Holds that the Respondent State has not violated the right to defence of the Applicant in examining the evidence in accordance with Article 7 (1) of the Charter;

  3. Holds that the Respondent State has violated the Applicant’s right to a fair trial by failing to provide free legal aid, contrary to Article 7(1) (c) of the Charter

  4. Does not grant the Applicant’s prayer for the Court to order his release from prison, without prejudice to the Respondent applying such measure proprio motu.

  5. Orders the Respondent State to take all necessary measures to remedy the violations, and inform the Court, within six (6) months from the date of this judgment, of the measures taken.

  6. Reserves its ruling on the prayers for other forms of reparation and on costs.

  7. Grantsin accordance with Rule 63 of the Rules, the Applicant to file written submissions on the request for reparations within thirty (30) days hereof, and the Respondent State to reply thereto within thirty (30) days.

Signed

Sylvain Oré, President

Ben KIOKO, Vice President

Gérard NIYUNGEKO, Judge

El Hadji GUISSE, Judge

Rafâa BEN ACHOUR, Judge

Angelo V. MATUSSE, Judge

Ntyam O. MENGUE, Judge

Marie-Thérèse MUKAMULISA, Judge

Tujilane R. CHIZUMILA, Judge

Chafika BENSAOULA, Judge, and

Robert ENO, Registrar.

Done at Arusha, this 21st Day of March, in the Year 2018 in English and French, the English text being authoritative.


1Application No. 003/2014. Ruling on Admissibility 28/3/2014, Peter Joseph Chacha v United Republic of Tanzania, para. 114. .

2Application No. 001/201. Judgment on Merits, 15/03/2015, Ernest Francis Mtingwi v The Republic of Malawi, para. 14.

3Application No. 005/2013. Judgment on Merits 20/11/2015, Alex Thomas v. United Republic of Tanzania, (hereinafter referred to as “the Alex Thomas Judgment”), para 130, Application No. 007/2013. Judgment on Merits, 20/05/2016, Mohamed Abubakari v. United Republic of Tanzania. (hereinafter referred to as, “Mohamed Abubakari judgment”), para. 26.

4 See Application No. 013/2011. Ruling on Preliminary Objections, 21/06/2013, Zongo and Others v. Burkina Faso, (hereinafter referred to as, “Zongo and Others judgment”), paras. 71 to 77.

5 Application. No 004/2013. Judgment on Merits, 5/12/2014, Lohé Issa Konaté v. Burkina Faso, para. 77 (hereinafter referred to as, Lohé Issa Konaté v. Burkina Faso Judgment), see also Peter Chacha judgment, para. 40.

6 Application No. 006/2012. Judgment on Merits, 26/05/2017, African Commission on Human and Peoples’ Rights v. Republic of Kenya, para. 93 (hereinafter referred to as, “African Commission on Human and Peoples’ Rights v. Republic of Kenya).

7 Alex Thomas Judgment, para. 64. See also Application No. 006/2013, Judgment on merits 18/03/2016, Wilfred Onyango Nganyi and 9 Others v. United Republic of Tanzania, para. 95.

8 Alex Thomas Judgment, para 65.

9 Ibid. See also Mohamed Abubakari judgmentparas. 66-68.

10 Zongo and Others judgment, para. 92.

11 See Alex Thomas judgment, para. 74.

12 Mohamed Abubakari judgment, paras. 26, and 173.

13 Ibid, para. 174.

14 In the Matter of Waziri Amani v. United Republic of Tanzania, the Court of Appeal declared that “no court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight”Ibid, para. 175.

15 Alex Thomas judgmentpara114.

16 Ibid, para. 123, see also Mohamed Abubakari judgment, paras. 138-139.

17 Article 26, ICCPR.

18 Article 14 (1), ibid. See also UN Human Rights Committee, CCPR General Comment No. 18: Non-discrimination, 10 November 1989, para. 3.

19 Miscellaneous Criminal Cause No. 49 of 2009.

20 See African Commission on Human and Peoples’ Rights v. Republic of Kenya judgment, para. 138

21 See above note 2.

22 Alex Thomas judgment, para. 157.

Author
Judgment date
Case number
Application 40 of 2016
Court name
African Court
Judge
Orè P
Kioko VP
Niyungeko J
Guissè J
Ben Achour J
Matusse J
Mengue J
Mukamulisa J
Chizumila J
Bensaoula J
Eno R
Search summary

The Court considered whether an application for the Respondent State to be held liable for the violation of certain rights of the Applicants, who were victims of a crime, and to be ordered to pay reparations, was inadmissible on grounds of failure to exhaust local remedies (Rule 40(5) of the Rules of Court of the African Court on Human and Peoples' Rights). The Applicants conceded that they had not exhausted local remedies, but argued that the procedure was unduly prolonged. The Court held that the procedure before the domestic courts had not been unduly prolonged.

Le texte français fait foi
The French text is authoritative

AFRICAN UNION | UNION AFRICAINE | UNIÃO AFRICANA | الاتحاد الافريقي

AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS

COUR AFRICAINE DES DROITS DE L’HOMME ET DES PEUPLES

 

IN THE MATTER OF

MARIAM KOUMA AND OUSMANE DIABATÉ

V.

REPUBLIC OF MALI

APPLICATION No. 040/2016

JUDGMENT

21 MARCH 2018

The Court composed of: Sylvain ORÉ, President, Ben KIOKO, Vice-President, Gérard NIYUNGEKO, El Hadji GUISSÉ, Rafâa BEN ACHOUR, Angelo V. MATUSSE, Ntyam O. MENGUE, Marie-Thérèse MUKAMULISA, Tujilane R. CHIZUMILA, Chafika BENSAOULA, Judges; and Robert ENO, Registrar.

In the Matter of

Mariam KOUMA and Ousmane DIABATÉ

represented by:

i)          The Institute for Human Rights and Development in Africa (IHRDA)

ii)         The Association for the Advancement and Defense of Women's Rights (APDF)

versus

REPUBLIC OF MALI 

represented by:

i)          Mr. Youssouf DIARRA, Director of State Litigations

ii)         Advocate  Harouna KEITA, Lawyer at the Bar of Bamako

iii)        Mr. Daouda DOUMBIA, Sub-Director for Criminal Matters

after deliberation,

renders the following Judgment:

I.          THE PARTIES

1.         The Applicants, Mrs Mariam Kouma and her son Ousmane Diabaté, are citizens of Mali. 

2.         The Respondent State is the Republic of Mali which became a Party to the African Charter on Human and Peoples’ Rights (hereinafter referred to as "the Charter") on 21 October,   1986, and to the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples’ Rights (hereinafter referred to as "the Protocol") on 25 January, 2004. The Respondent State also, on 19 January, 2010, deposited the declaration prescribed under Article 34 (6) of the Protocol recognizing the Court’s jurisdiction to receive cases directly from individuals and Non-Governmental Organizations. It is also a Party to the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (hereinafter referred to as the "Maputo Protocol") since 25 November, 2005, and to the African Charter on the Rights and Welfare of the Child (hereinafter referred to as "the Charter on the Rights and Welfare of the Child ") since 29 November, 1999.

II.         SUBJECT OF THE APPLICATION

3.         The Application was filed by APDF and IHRDA on behalf of Mariam Kouma, a merchant in Bamako, and her son Ousmane Diabaté, and invokes the violation of the Applicants’ right to a fair trial by the Respondent State.

A.         THE FACTS

4.         In January 2014, Mariam Kouma sold a monkey to Boussourou COULIBALY for the sum of nine thousand (9,000) CFA Francs. The next day, Boussourou came to ask Mariam to take back her monkey and return his money, stating that his mother did not want the domestication of the monkey.  Faced with Mariam's refusal to take the animal back, Boussourou left the monkey in the latter’s compound and went away. However determined at all cost to have his money, he returned almost every day to the residence of his contracting partner to demand the return of his money.

5.         On the night of 13 February, 2014, when he returned to Mariam's house, she ordered him never to set foot in her house again. Furious, Boussourou rushed to the home of a neighbouring family, fetched a machete, rushed back into Mariam’s living room and repeatedly struck her on the head and feet until she fell unconscious.

6.         Ousmane Diabaté, Mariam's son, who came to the rescue of his mother, was also wounded by Boussourou during the scuffle. It was then that the neighbors, alerted by the cries of Ousmane, apprehended Boussourou and handed him over to the Police.

7.         Following an investigation ordered by the Public Prosecutor’s Office, Bousourou was charged with the offense of inflicting simple bodily harm. The case was forthwith brought before the Court of First Instance of Bamako District V.

8.         At the public hearing of 20 February, 2014, the Public Prosecutor asked for the accused to be released on grounds of dementia.

9.         On 27 February, 2014, the trial court dismissed the plea of the Public Prosecutor and sentenced Boussourou to one year imprisonment for the offence of inflicting simple bodily harm. The Court however reserved ruling on damages on the ground that the complainant had not yet produced evidence of the alleged incapacity to work.

10.       Counsel for Boussourou appealed against that decision on the same day.

11.       In its judgment of 24 March, 2014, the Court of Appeal, considering that the Trial Judge left the case inconclusive for having not taken a decision on civil damages, decided to refer the matter back to the Court of First Instance of Bamako District V.

12.       As at the time of referral to this Court by the Applicants on 1 July, 2016, proceedings were pending before the Court of First Instance of Bamako District V.

B.         ALLEGED VIOLATIONS

13.       The Applicants allege that the Mali national courts, seized of the dispute between them and Boussourou, did an incorrect classification of the   facts of the case. They assert that the fact of classifying  the acts of their aggressor as assault rather than attempted murder with premeditation resulted in the violation of their dignity and  rights under international human rights instruments, in particular:

i.          “The right to dignity and the right to protection  from all forms of violence and torture as provided under Article 3 of the Maputo Protocol, Article 5 of the Charter, Article 7 of the ICCPR and Article 5 of the Universal Declaration of Human Rights (UDHR);

ii.         Ousmane's right to education as provided under Article 17 of the Charter and Article 11 of the African Charter on the Rights and Welfare of the Child;

iii.        Mariam's right to work as provided under Article 15 of the Charter;

iv.        The right to health as provided under Article 16 of the Charter, Article 14 (1) of the Maputo Protocol and Article 14 of the African Charter on the Rights and Welfare of the Child;

v.         The right of access to justice and the right to reparation as provided under Article 7 of the Charter and Article 6 of the Maputo Protocol”

14.       The Applicants contend, lastly, that the Respondent State is liable for all the afore-mentioned violations for having failed in its obligation to conduct an in-depth and impartial investigation leading to a fair classification of the offence committed by their aggressor, adding that this constitutes a violation of Article  3 (4) of the Maputo Protocol.

III.        SUMMARY OF THE PROCEDURE BEFORE THE COURT

15.       The Application was received at the Court Registry on 1 July, 2016 and served on the Respondent State on 26 July, 2016. The Respondent State was requested to forward its Response to the Application within sixty (60) days, pursuant to Rules 35 (4) and 37 of the Rules of Court (hereinafter referred to as “the Rules”).

16.       On 18 October, 2016, the Registry transmitted the Application to the other States Parties and entities as mentioned in Rule 35 (3) of the Rules.

17.       On 28 November, 2016, the Respondent State filed its Response to the Application, which was transmitted to the Applicants on 13 December, 2016.

18.       On 1 February, 2017, the Applicants filed their Reply to the Respondent State's Response which was forwarded to the Respondent State on 2 February, 2017.

19.       On 21 February, 2017, the Registry notified the Parties that the Court would close the written procedure and set down the case for deliberation.

20.       On 28 February, 2017, the Respondent State transmitted to the Court an application for leave to file additional pleadings in accordance with Rule 50 of the Rules of Court. At its 44th Ordinary Session held from 6 to 24 March, 2017, the Court accepted the application; and on 20 March, 2017, the Registry notified the Respondent State that it has been allowed thirty (30) days to file its submissions.

21.       On 5 April, 2017, the Respondent State filed its Rejoinder and this was served on the Applicants on 10 April, 2017.

22.       At its 47th Ordinary Session held from 13 to 24 November, 2017, the Court decided to close the written procedure and to set the case down for deliberation. The Parties were notified of this decision on 22 February, 2018.

IV.        PRAYERS OF THE PARTIES

23.       In the Application, the  Court is requested to:

“i.          “hold the Respondent State liable for failing in its obligation to  carry out a thorough and impartial investigation in pursuance of Article 3(4) of the   Maputo Protocol, Article 1 of the Charter and Article 16 of the African  Charter on the Rights and Welfare of the Child;

ii.         declare that the Respondent State has violated their rights guaranteed and protected by Articles 5, 7, 15, 16, et 17 of the Charter; 3, 6 and 14 of the Maputo Protocol; 11 and 14 of the  African Charter on the Rights and Welfare of the Child; 7 of the ICCPR  and 5 of the UDHR;

iii.        Order the Respondent State to pay Mariam Kouma and Ousmane Diabaté, the sums of 110,628,205 Francs and 70,026,000 Francs respectively in reparation for the prejudices suffered”.

24.       In its defence, the Respondent State prayed the Court to:

“i.          With respect to the form, declare the Application inadmissible on grounds of failure to exhaust the local remedies,

ii.         On the merits, dismiss the Application as groundless”. 

V.         ON THE COURT’S JURISDICTION

25.       In terms of Rule 39(1) of its Rules:  “The Court shall conduct preliminary examination of its jurisdiction...”

26.       The Court notes that its material, personal, temporal and territorial jurisdiction is not in contention between the Parties.

27.       The Court  also notes that, in the instant case,  there is no doubt as to its material, personal, temporal and territorial jurisdiction  given that:

i.          the Applicants are raising the issue of violation of the rights guaranteed by international human rights instruments ratified by the Respondent State ;

ii.         the Respondent State is a Party to the Protocol and has deposited the declaration prescribed by Rule 34(6) enabling individuals and NGOs to directly bring cases before the Court by virtue of Article 5(3) of the Protocol;

iii.        the alleged violations occurred subsequent to the entry into force of the international instruments, as concerns the Respondent State ; and

iv.        the facts of the case took place on the territory of the Respondent State

28.       In view of the foregoing considerations, the Court holds that it has jurisdiction to hear the case.

VI.        ON ADMISSIBILITY

29.       According to Article 6 (2) of the Protocol: “The Court shall rule on the admissibility of a case taking into account the provisions of Article 56 of the Charter.”

30.       The Respondent State invokes only one inadmissibility objection based on Rule 40 (5) of the Rules of Court which stipulates that, “to be admissible, Applications shall be filed after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged”.

31.       In its Response, the Respondent State, citing Rule 34(4) of the Rules, contends that the Applicants did not exhaust local remedies prior to bringing the case before the Court, and   prayed this Court to declare the Application inadmissible.

32.       On this point, the Applicants themselves admit that they have not exhausted the local remedies before seizing this Court. They however refer to the provisions of  Rule 40(5) of the Rules of Court, and indicate that:

i.          the case pending before the Bamako Court of Appeal has been unduly prolonged;

ii.         the Appeal is not efficient, and

iii.        the civil claim, for its part, is already void of its substance because the acts committed by Boussourou, their aggressor, have been underestimated.

33.       The Court will now examine the three arguments advanced by the Applicants in support of the objections to the rule of prior exhaustion of local remedies.

A.         On the allegation that the domestic procedure has been unduly prolonged

34.       The Applicants point out that the case has been pending before the Bamako Court of Appeal for two years and two months; and that a case that was adjudicated in less than a week at the criminal court cannot reasonably take more than two years before the Appeal Court. They therefore prayed the Court to find that the procedure has been unduly prolonged and to accept the exception to the rule of exhaustion of local remedies as provided under Article 56(5) of the Charter and reiterated in Rule 40(5) of the Rules of Court.

35.       The Respondent State, in response, contends that at the time this Court was seized, the case had not yet been definitively closed at domestic level; adding that the prolongation was due to procedural difficulties. It further argues that if Mali did not dispose of the case, it was because the judge was still awaiting the Counsel for the parties in the civil case, who requested that the rights of his clients be reserved till production of a final medical report; that on three occasions, that is, on 12 and 27 October, 2016, and 30 November, 2016, the Applicants failed to show up at the court hearing on the issue of reparation. The Respondent State infers that it is in no way involved in procedural intricacies.

36.       In their Reply to the Respondent State’s Response, the Applicants point out that the public hearings of 12 and 27 October, 2016 and that of 30 November, 2016 at which they did not appear, were subsequent to the referral to this Court. They further stated that the abnormality of the duration of the procedure should be assessed from the time the case was referred to this Court.

***

37.       The Court reaffirms that, to determine whether or not the duration of a procedure is reasonable, it must take into account the circumstances of the case and of the procedure; and as such the, “determination as to whether the duration of the procedure in respect of local remedies has been normal or abnormal should be carried out on a case-by-case basis depending on the circumstances of each case. ”

38.       On this point, the Court’s analysis takes into account, in particular, the complexity of the case or the related procedure,  the behaviour  of the Parties themselves and that of the judicial  authorities to determine if the latter “has been passive or clearly negligent.”

39.       In the instant case, the questions at issue are whether the domestic procedure in respect of the Applicants’ case is complicated or whether the Parties helped to speed up the said procedure; and more still, whether the judicial authorities showed proof of negligence or inadmissible delays.

40.       The evidence on file shows that when the offence was committed, the Police alerted by the neighbours arrested Mr Boussourou, kept him in custody and prepared an investigation report; that this report was later transmitted to the State Counsel at the Court of First Instance of Bamako District V; that the latter, for his part, then seized the Criminal Court for immediate court hearing after placing the culprit under detention. 

41.       The Court notes that the facts described above do not contain any element of fact or of law which could render the case and, still less, the procedure, so complicated as to justify a relatively lengthy hearing.

42.       The Court further notes that the Court of First Instance of Bamako District V which was seized on 20 February, 2014, rendered its judgment on 27 February, 2014, that is, eight (08) days later. As for the Appeal Court which examined the case on 27 February, 2014, the latter gave its decision on 24 March, 2014, that is, within twenty-five (25) days. The Court finds that such a time frame is not lengthy enough for it to declare the procedure unduly prolonged.

43.       The two (2) years and two (2) months delay that the Applicants are complaining about is the duration of the proceedings before the Court of First Instance of Bamako District sitting as a referral court which is expected to dispose of its case by making a ruling on the Applicants’ claim for civil damages. 

44.       On this point, as it could be seen from the evidence on file, the defence brief in particular, that the Applicants themselves contributed in delaying the procedure because at the hearing of 20 February, 2014, their Counsel prayed the Court to reserve the rights of the civil parties; and besides, the Applicants had not produced the final medical report concerning Mariam Kouma. The Applicants did not contest this fact.

45.       The Court holds that the expeditiousness of a procedure requires the necessary cooperation of the Parties in the trial to avoid undue delay as happened in the case between the Applicants and the Public Prosecutor's Office in the national courts, particularly the Court of First Instance of Bamako District V, since the case was referred to the latter so that it could be disposed of, as regards civil damages.

46.       In the instant case, the Court notes that the time that elapsed between 24 March, 2014, and 1 July, 2016 , the date on which the case was brought to it, corresponds to the period when the Court was awaiting the Applicants' medical evidence so as to assess the harm and quantify the reparation.

47.       Considering the above elements, the Court holds that the Applicants have contributed to the delay in the proceedings they allege are unduly prolonged.  They should have helped to speed up the proceedings by producing early enough, the evidence for reparation of the damages they are claiming.

48.       The Court therefore dismisses the Applicants’ contention that local proceedings have been unduly prolonged.

B.         On the alleged inefficiency of the remedies before the Court of Appeal

49.       The Applicants also contend that the remedy before the Court of Appeal is insufficient given that it offers no prospect of re-classification of the offence as a case of attempted murder with premeditation rather than assault and battery; that the State Prosecutor’s Office should first have sought medical evaluation to determine the level of incapacitation to work suffered by the victims before proceeding with classification of the facts.

50.       The Respondent State contests the Applicants’ claims, arguing that this case had been properly managed in local courts contrary to the claims in the Applicants’ submissions. It maintains that the sentencing of Boussourou to one year imprisonment term by the Court of First Instance of Bamako District V is proof of the fact that the case, at criminal level, has been expeditiously managed with maximum strictness.

***

51.       The Court notes that the Applicants limit themselves to arguing that they did not exercise the remedy of re-classification of the offence based on the facts because there is no prospect of obtaining any such re-classification.

52.       As the Court already stated in previous cases, “It is not enough for the Complainants to cast aspersion on the ability of the domestic remedies of the State due to isolated incidences”  as a way to discharge themselves of the obligation to exhaust the local remedies.  In the final analysis, “it is incumbent on the Complainant to take all necessary steps to exhaust or, at least, attempt the exhaustion of local remedies”.’ 

53.       In the instant case, the Court notes that the Applicants have no proof to show that the remedy of re-classification could not lead to another ruling, different from that of the examining magistrate; they contented themselves with casting doubt on the sufficiency of a remedy available to them  and which they have deliberately refused to use.

54.       Therefore, in the absence of proof on the part of the Applicants that the indictment chamber would not produce the expected results, the Court dismisses the Applicants’ argument in this respect.

C.         On the allegation regarding the inefficiency of the civil remedy

55.       The Applicants contend that the Respondent State’s justice system, by classifying  the offense as simple assault and battery without awaiting the opinion of the physician in charge, “shut the door” to the claims to compensation for 60% incapacitation suffered by Mariam Kouma, as well as the loss of opportunities due to the incapacitation; that Mariam was thus rendered incapable of claiming the cost of her surgery and medicines, and of the physiotherapy she underwent for treating the injuries inflicted on her by Boussourou.

56.       The Applicants also argue that the fact that the State Prosecution had avoided conducting the appropriate criminal proceedings but rather undertook correctional proceedings, while ignoring young Ousmane Diabaté’s status of victim – all represents proof that the local courts failed in their obligation to conduct  thorough and impartial investigations.

57.       The Applicants conclude that the local procedures hold no interest for the victims who are seeking a proper classification of the offence, punishment of the culprit commensurate with the crime committed and compensation that takes into account the sufferings endured by the Applicants.

58.       The Respondent State refutes all the Applicants’ allegations and states that it is because the Appeal Court took into account the civil claims of the Applicants that it referred the case to the trial Judge.

***

59.       The Court notes that it is in considering the civil interest of the Applicants that the Bamako Court of Appeal on 27 February, 2014 held that the Trial Court Judge failed to dispose of the case by not deciding on the civil aspects, and accordingly decided to refer the matter to the latter.

60.       Moreover, the Court notes that, at the present stage of the domestic procedure, the Applicants can lodge an appeal only after the trial judge’s decision on civil damages. It is therefore premature to prejudge the inefficiency of the remedy before the Court of Appeal. 

61.       Consequently, the Court dismisses the Applicants’ contention that the local remedy is inefficient, ineffective and insufficient.

62.       The Court finds that the Applicants have not exhausted the local remedies as required under Article 56 of the Charter and Rule 40(5) of the Rules.

63.       The Court notes that, according to Article 56 of the Charter, the conditions of admissibility are cumulative and, as such, when one of them is not fulfilled, the Application cannot be admissible. This is the case in the instant matter. The Application therefore must be declared inadmissible.

VII.       COSTS

64.       The Court notes that in the instant case, the Parties have not made any claim as to costs.

65.       In terms of Rule 30 of the Rules, which provides that “unless otherwise decided by the Court, each party shall bear its own costs”, the Court decides that each party shall bear its own costs.

VIII.      OPERATIVE PART

66.       For these reasons

THE COURT,

unanimously:

i.          Declares that it has jurisdiction;

ii.         Upholds the objection based on non-exhaustion of local remedies;

iii.        Declares that the Application is inadmissible; and

iv.        Declares that each Party shall bear its own costs.

Signed:

Sylvain ORÉ, President

Ben KIOKO, Vice-President

Gérard NIYUNGEKO, Judge

El Hadji GUISSÉ, Judge

Rafâa  BEN ACHOUR, Judge

Angelo V. MATUSSE, Judge

Ntyam O. MENGUE, Judge

Marie-Thérèse MUKAMULISA, Judge

Tujilane R. CHIZUMILA, Judge

Chafika BENSAOULA, Judge;

and Robert ENO, Registrar.

Done at Arusha, this Twenty-First Day of March in the year Two Thousand and Eighteen, in English and French, the French text being authoritative.

Author
Judgment date
Case number
Application 6 of 2015
Court name
African Court
Search summary

The Court considered whether the Respondent State violated, inter alia, the fair trial rights of the Applicants during the conduct of criminal trial proceedings against them (Art 7 African Charter on Human and Peoples' Rights).

Le texte anglais fait foi
The English text is authoritative

 

AFRICAN UNION | UNION AFRICAINE | UNIÃO AFRICANA | الاتحاد الافريقي

AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS

COUR AFRICAINE DES DROITS DE L’HOMME ET DES PEUPLES

 

THE MATTER OF

NGUZA VIKING (BABU SEYA) AND JOHNSON NGUZA (PAPI KOCHA)

V.

UNITED REPUBLIC OF TANZANIA

 

APPLICATION NO. 006/2015

JUDGMENT

23 MARCH 2018

 

The Court composed of: Sylvain ORÉ, President; Ben KIOKO, Vice-President; Gérard NIYUNGEKO, El Hadji GUISSÉ, Rafâa BEN ACHOUR, Angelo V. MATUSSE, Marie Thérèse MUKAMULISA, Ntyam O. MENGUE, Tujilane R. CHIZUMILA, Chafika BENSAOULA: Judges and Robert ENO, Registrar.

In the Matter of:

Nguza VIKING (Babu SEYA) and Johnson NGUZA (Papi KOCHA)

 

represented by Advocate Donald DEYA, Pan African Lawyers’ Union (PALU) – Counsel

versus

UNITED REPUBLIC OF TANZANIA

represented by:

        i.        Ms. Sarah MWAIPOPO, Acting Deputy Attorney General and Director, Division of Constitutional Affairs and Human Rights, Attorney General’s Chambers

         ii.             Mr. Baraka LUVANDA, Director, Legal Unit, Ministry of Foreign Affairs, East Africa, Regional and International Cooperation

        iii.             Ms. Nkasori SARAKIKYA, Deputy Director, Human Rights, Principal State Attorney, Attorney General’s Chambers

        iv.             Mr. Mark MULWAMBO, Principal State Attorney, Attorney General’s Chambers

         v.             Ms. Aidah KISUMO, Senior State Attorney, Attorney General’s Chambers

        vi.             Mr. Elisha SUKA, Foreign Service Officer, Ministry of Foreign Affairs, East Africa, Regional and International Cooperation

After deliberation,

renders the following Judgment:

I. THE PARTIES

1.            The Applicants, Nguza Viking (Babu Seya), hereinafter referred to as the First Applicant and Johnson Nguza (Papi Kocha) hereinafter referred to as the Second Applicant, allege that they are citizens of the Democratic Republic of Congo who lived and worked as musicians in Dar es Salaam, Tanzania. The Second Applicant is the biological son of the First Applicant.

2.            The Respondent State, the United Republic of Tanzania, became a Party to the African Charter on Human and Peoples’ Rights (hereinafter referred to as the “Charter”) on 21 October, 1986 and also became a Party to the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (hereinafter referred to as “the Protocol”) on 10 February, 2006. Furthermore, the Respondent State deposited the declaration prescribed under Article 34(6) of the Protocol on 29 March, 2010. The Respondent State became a Party to the International Covenant on Civil and Political Rights (hereinafter referred to as “the Covenant”) on 11 June, 1976.

II. SUBJECT OF THE APPLICATION

 

A.        Facts of the Matter

3.            The Applicants allege that they were arrested by police officers on 12 October, 2003 and taken to the Magomeni Police Station in the United Republic of Tanzania. The Applicants, Nguza Mbangu and Francis Nguza, who are also the First Applicant’s sons and another person (later identified as a teacher), were arraigned before the Resident Magistrate’s Court of Kisutu, Dar es Salaam, on 16 October, 2003 on a 10-count charge of rape and an 11-count charge of unnatural offence in Criminal Case Number 555 of 2003. Nguza Viking (Babu Seya) was the First accused, Johnson Nguza (Papi Kocha) was the Second accused, Nguza Mbangu was the Third accused, Francis Nguza was the Fourth accused and the teacher was the fifth (5th) accused, in that case. They pleaded not guilty to all the charges. The ten (10) alleged victims were children aged between six (6) and ten (10) years old, all school pupils in the same class at Mashujaa Primary School, Sinza in Kinondoni District. It was alleged that the ten (10) victims were gang-raped and sodomised in turn by five (5) adults, including the Applicants.

4.            On 25 June, 2004, save for the Fifth accused, the Applicants and the Third and Fourth accused were found guilty of all charges against them and sentenced to life imprisonment and to pay a fine of Tanzania Shillings two (2) million to each of the victims. The Applicants and the Third and Fourth accused then filed an appeal before the High Court of Tanzania, in Criminal Appeal No. 84 of 2004. In its judgment of 27 January, 2005, the High Court held that the evidence adduced fits the definition of gang rape and substituted the offence of unnatural offence with that of gang rape and dismissed the appeal.

5.            The Applicants and the Third and Fourth accused filed an appeal before the Court of Appeal of Tanzania in Criminal Appeal No. 56 of 2005. The Court of Appeal’s judgment delivered on 11 February, 2010, quashed the conviction and sentence of the Third and Fourth accused and convicted the First Applicant of two (2) counts of rape and both Applicants of two (2) counts of gang rape and acquitted them on the rest of the charges. The Court of Appeal substituted their life sentences with sentences of thirty (30) years imprisonment.

6.            On 9 April, 2010, the Applicants filed a Notice of Motion for Review of the decision of the Court of Appeal. This Application for Review, Criminal Application No. 5 of 2010, was dismissed on 13 November, 2013.

B.        Alleged Violations

7.            The Applicants allege that:

          i.             They were not promptly informed of the charges brought against them; they were held incommunicado for four (4) days, deprived of the opportunity to contact a Counsel or anyone else; they were maltreated by police officers who insulted them; and it was only after they had spent some time in custody that a police officer informed them of the rape charges;

         ii.             The trial was not fair for various reasons. First, the Court repeatedly dismissed their requests to adduce evidence; the results of their blood and urine tests were not presented in evidence before the Trial Court, even though the alleged victims claimed to have been infected with HIV/AIDS and gonorrhoea; and the First Applicant’s prayer to the Court for a test to be conducted to establish his impotence was rejected;

         iii.             The Court relied on the alleged victims’ statements as evidence, whereas the said statements were memory recollections of the room where the rape allegedly took place and the Court did not take into account the fact that the children and their parents had visited the house of the accused persons before the hearing and had studied the premises several times;

        iv.             The charges brought against them were fabricated in vengeance and that the judgment rendered was not based on credible evidence;

         v.             Their right to a fair trial was also flouted;

        vi.             The Respondent State violated all established human rights and international law principles;

      vii.             Their trial was inequitable and marred by procedural irregularities attributable to the national courts and other State agencies and institutions; and

     viii.             The trial was unfair at all levels and that they were harassed and their defence was not given due consideration, all resulting in the violation of Articles 1, 2, 3, 5, 7(1)(b), 13 and 18(1) of the Charter.

III. SUMMARY OF PROCEDURE BEFORE THE COURT

8.            The Application was filed on 6 March, 2015 and served on the Respondent State by a notice dated 8 April, 2015, directing the Respondent State to file the list of representatives within thirty (30) days and to file the Response to the Application within sixty (60) days of receipt of the notice, in accordance with Rules 35 (2) (a) and 35 (4) (a) of the Rules of Court (hereinafter referred to as “the Rules”).

9.            By a notice dated 8 April, 2015, the Application was transmitted to the Executive Council of the African Union and to State Parties to the Protocol through, the Chairperson of the African Union Commission in accordance with Rule 35(3) of the Rules.

10.         Following the Applicants’ request for legal aid, the Court directed the Registrar to seek the assistance of the Pan African Lawyers’ Union (PALU) in this regard; PALU accepted to represent the Applicants and the Parties were duly notified by a notice dated 30 June, 2015.

11.         The Respondent State submitted the list of representatives on 26 May, 2015. It submitted its Response to the Application on 10 August, 2015, out of time. The Court decided, in the interests of justice, to accept the Response and it was served on the Applicants by a notice dated 30 November, 2015.

12.         By a letter of 5 January, 2016, the Applicants requested the Court to grant them an extension of time to file their Reply to the Respondent State’s Response; by a letter dated 11 March, 2016, the Registry notified the Applicants of the Court’s decision to grant them thirty (30) days extension of time in that regard.

13.         By an email dated 15 April, 2016, PALU filed the Applicants’ Reply to the Response and this was served on the Respondent State by a notice dated 19 April, 2016.

14.         By a notice dated 14 June, 2016, the Registry informed the Parties that the written procedure was closed with effect from 4 June, 2016 and notified the Parties of the possibility of filing additional evidence in accordance with Rule 50 of the Rules. Neither of the Parties sought leave to file additional evidence on the basis of this Rule.

15.         On 11 July, 2016, the Respondent State sought leave to file a Rejoinder to the Applicants’ Reply and since pleadings were already closed, the Court did not deem it necessary to grant this request.

16.         By a letter dated 16 March 2018 and received at the Registry on the same date, the Applicants’ Counsel informed the Court that the Applicants have been released from prison by way of a Presidential pardon, on the occasion of the celebration marking the 56th Anniversary of the Respondent State’s Independence Day. This letter was transmitted to the Respondent State on 19 March, 2018, for observations, if any.

17.         By a letter dated 20 March, 2018, the Respondent State informed the Court that the Applicants had been released by way of Presidential Pardon as evidenced in Constitutional (Special Remission of Whole Punishment) Order, 2017 containing the instrument of remission of punishment of sixty three (63) prisoners, including the Applicants. The Respondent argued that the Parties should have been informed that there was not going to be a public hearing on the matter, before they were notified of the delivery of judgment. The Respondent State also prayed that in view of the Applicants’ release from prison, the Application should either be withdrawn before the delivery of the Judgment or the delivery of Judgment be postponed. The Respondent State makes this prayer on the basis that the Application has been overtaken by events, the Applicants are satisfied with their release and are appreciative of the Government’s decision in this regard and they ought to be personally heard on their status and wishes regarding the Application. This letter was transmitted to the Applicant on 21 March, 2018 for their observations, if any.

18.         By a letter dated 21 March, 2018, the Registrar informed the Respondent State that the Court draws their attention to the provisions of Rule 27(1) of the Rules regarding the written and oral proceedings, the provisions of Rule 58 regarding discontinuance of Applications and that the Applicants’ prayers raised matters beyond their release on which the Court has to pronounce itself.

19.         By a letter dated 22 March, 2018, the Applicants’ Counsel sent their observations on the Respondent’s letter of 20 March, 2018 where they stated that the Rules envisage that it is not a requirement that the Court hold public hearings for all cases. They also stated that they have not received instructions from the Applicants to discontinue the case and called for an expeditious delivery of the judgment.

20.         By correspondence dated 22 March, 2018, the Registrar informed both Parties that the Court has confirmed the delivery of judgment for 23 March, 2018.

IV. PRAYERS OF THE PARTIES

21.         The prayers of the Applicant, as submitted in the Application, are as follows:

“44. We request the Court to facilitate us with free legal representation or legal assistance under rule 31 and article 10(2) of the Protocol;

 45. We the applicants pray the Court under rule 45(1) and (2) of the rules of Court on (Measures for taking evidence) with a purpose of obtaining from an expert which in our opinion may provide clarification of the fact of the case and likely to assist the Court in carrying out its task.

a. Request of the persons, witness or expert likely to assist:

i.              Parent of child/children of tender age (6 – 8 years)

ii.            Teacher of school children of tender age (6 – 8 years)

iii.           Pediatric expert

46.                That, the applicants are hereby reiterating the reliefs that they seek from the honourable court.

                                   i.             A declaration that the respondent state violated their rights as guaranteed under Article 1, Article 2, Article 3, Article 5, Article 7 (1)(b), Article 13 and Article 18(1) of the African Charter on Human and Peoples’ Rights;

                                  ii.             Consequently, an order compelling the respondent state to release the applicants from custody;

                                 iii.             That, the applicants also seeks an order for reparations pursuant to article 27(1) of the protocol and rule 34(5) of rules of court;

                                 iv.             Any other order or remedy that this honourable court may deem fit to grant”.

 

22.         In the Reply to the Respondent State’s Response, the Applicants reiterate their prayers seeking the following orders from the Court:

“46. a. A Declaration that the Respondent State has violated the Applicants rights under Articles 2, 3, 5, 7(1)(b), 13 and18(1) of the African Charter

b. To facilitate the production of the following witnesses under this Honourable Court’s Rules 45(1) and (2):

i.      Parents of child/children of tender age of 6-8 years.

ii.    Teacher of school children of tender age 6-8 years

iii.   Paediatric expert

c.    An order compelling the Respondent State to release the Applicants from custody.

d.    An order for reparations

e.    Any other orders or remedies that this Honourable Court may deem fit.”

23.         In the Response, with regard to the Court’s jurisdiction and admissibility of the Application, the Respondent State prays the Court to rule as follows:

1.    That the Application has not evoked the jurisdiction of the Honourable Court.

2.    That the Application has not met the admissibility requirements provided under Rule 40(5) of the Rules of the Rules of Court.

3.    That the Application has not met the admissibility requirements provided under Rule 40(6) of the Rules of the Rules of Court.

4.    That the Application be declared inadmissible and duly dismissed.”

24.         With regard to the merits of the Application, the Respondent State prays that the Court grants the following orders:

1.    That the Court rejects the Applicants’ request to facilitate the production of … witnesses

2.    That the redress sought in the Application is rejected.”

25. The Respondent State also seeks orders that it has not violated Articles 1, 2, 3, 5, 7(1)(b), 13 and 18(1) of the Charter.

26. The Respondent further seeks orders:

“ 10. That the Applicants continue to serve their sentences accordingly.

11. That the Applicants be denied reparations

12. That this Application be dismissed in its entirety for lack of merit.”

V. APPLICANTS’ REQUEST FOR CALLING OF WITNESSES BY THIS COURT

27. The Applicants requested that the Court facilitates the production of children of tender age and their parents and teacher as well as a paediatric expert, as witnesses.

***

28. The Respondent State maintains that this request should be rejected.

***

29. In view of the fact that the Court considered that the written pleadings were sufficient to consider the matter, it did not deem it necessary to grant the Applicants’ request.

VI. JURISDICTION

30. In accordance with Rule 39 (1) of the Rules, “The Court shall conduct preliminary examination of its jurisdiction…”.

A.   Objection on material jurisdiction

31. In the Response to the Application, the Respondent State submits that the Applicants are asking the Court to sit as a court of first instance for some of their allegations, and to adjudicate as a supreme court of appeal on matters of law and evidence that have been duly determined by the Court of Appeal of Tanzania, the highest Court in the Respondent State.

32. The Respondent State also submits that the Court is being asked to reverse a decision of the Court of Appeal of Tanzania, which is, effectively, an appeal against the decisions of the Court of Appeal in Criminal Appeal No. 56 of 2005, and Review Application No. 5 of 2010.

33. The Respondent State makes reference to the Court’s Decision in Ernest Francis Mtingwi v Republic of Malawi, in which it held that:

“It does not have any appellate jurisdiction to receive and consider appeals in respect of cases already decided upon by domestic and/or regional or similar Courts”.[1]

34. The Applicants rebut this allegation and rely on the Court’s decisions in Alex Thomas v. United Republic of Tanzania[2] and Peter Joseph Chacha v United Republic of Tanzania[3], in both of which the Court held that as long as the rights allegedly violated are protected by the Charter or any human rights instrument ratified by the Respondent State, the Court shall have jurisdiction.

**

35. This Court reiterates its position as affirmed in Ernest Mtingwi v Republic of Malawi[4] that it is not an appeal court with respect to decisions rendered by national courts. However, as it underscored in its Judgment of 20 November, 2015 in Alex Thomas v United Republic of Tanzania, and reaffirmed in its Judgment of 3 June, 2016 in Mohamed Abubakari v United Republic of Tanzania, this situation does not preclude it from examining whether the procedures before national courts are in accordance with international standards set out in the Charter or other applicable human rights instruments to which the Respondent State is a Party.[5] In the instant case, this Court has jurisdiction to examine whether the domestic courts’ proceedings relating to the Applicant’s criminal charges that form the basis of their Application before this Court were conducted in accordance with the international standards set out in the Charter and the Covenant. Consequently, the Court rejects the Respondent State's objection that the Court is acting in the instant matter as a court of first instance and as an appellate court and finds that it has material jurisdiction to hear the matter.

36. Furthermore, regarding the allegation that the Application calls for the Court to sit as a court of first instance, the Court notes that since the Application alleges violations of provisions of some of the international instruments to which the Respondent State is a Party, it has material jurisdiction. This is in accordance with Article 3(1) of the Protocol, which provides that the jurisdiction of the Court “shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned".

37. Consequently, the Court rejects the Respondent State's objection that the Court is acting in the instant matter as a court of first instance and as an appellate court and finds that it has material jurisdiction to hear the matter.

B.   Other aspects of jurisdiction

38. The Court notes that its personal, temporal and territorial jurisdiction has not been contested by the Respondent State, and nothing in the pleadings indicate that the Court does not have jurisdiction. The Court thus holds that:

i.          it has jurisdiction ratione personae given that the Respondent State is a Party to the Protocol and has deposited the Declaration required under Article 34 (6) thereof, which enabled the Applicants to access the Court in terms of Article 5(3) of the Protocol;

ii.         it has jurisdiction ratione temporis on the basis that the alleged violations are continuous in nature since the Applicants remain convicted on the basis of what they consider an unfair process;

iii.        it has jurisdiction ratione loci given that the facts of the matter occurred in the territory of a State Party to the Protocol, that is, the Respondent State.

39. From the foregoing, the Court finds that it has jurisdiction to hear the instant case.

VII. ADMISSIBILITY OF THE APPLICATION

40. In terms of Article 6 (2) of the Protocol, "the Court shall rule on the admissibility of cases taking into account the provisions of Article 56 of the Charter.”

41. Pursuant to Rule 39(1) of the Rules, “The Court shall conduct a preliminary examination of … the admissibility of the Application in accordance with Article ... 56 of the Charter and Rule 40 of these Rules.”

42. Rule 40 of the Rules, which in substance restates the provisions of Article 56 of the Charter, provides as follows:

“Pursuant to the provisions of Article 56 of the Charter to which Article 6(2) of the Protocol refers, Applications to the Court shall comply with the following conditions:

1.         Disclose the identity of the Applicant notwithstanding the latter’s request for anonymity;

2.         Comply with the Constitutive Act of the Union and the Charter:

3.         Not contain any disparaging or insulting language;

4.         Not be based exclusively on news disseminated through the mass media;

5.         Be filed after exhausting local remedies, if any, unless it is obvious that the procedure in unduly prolonged;

6.         Be filed within a reasonable time from the date local remedies were exhausted or from the date set by the Court as being the commencement of the time limit within which it shall be seized with the matter; and

7.         Not raise any matter or issues previously settled by the parties in accordance with the principles of the Charter of the United Nations, the Constitutive Act of the African Union, the provisions of the Charter or of any legal instrument of the African Union.”

43. While some of the above conditions are not in contention between the Parties, the Respondent State has raised two objections regarding exhaustion of local remedies and the timeframe for seizure of the Court.

 

 A.   Conditions of admissibility in contention between the Parties

 

i. Objection based on the alleged failure to exhaust local remedies

 

44. The Respondent State contends that the Application does not meet the admissibility conditions stipulated under Articles 56(5) of the Charter, Article 6 of the Protocol and Rules 40(5) of the Rules.

45. The Respondent State maintains that local remedies were not exhausted because the following allegations are being raised by the Applicants before this Court for the first time:

                  i.        That, after being taken to Urafiki Police Station, the 2nd Appellant, together with his two brothers, were harassed and later transferred to Magomeni Police Station where they found their father who is the 1st Applicant, locked up in a cell which had poor sanitary conditions for a human being.

                 ii.        That when the Applicants were arrested they were not informed of what charges they were being arrested for and they were put under restraint for four days incommunicado and denied a right to call a lawyer or to be visited by anybody.

                iii.        That whilst still in police custody, they were mistreated by police officers and that at one time they were called by a group of police officers who insulted them and read to them a charge of rape and later taken back to the police cell.”

46. The Respondent State further submits that the Applicants, who were assisted by Counsel, could have raised these allegations before the Magistrates Court pursuant, to Section 9(1) of the Basic Rights and Duties Enforcement Act (Cap.3) and they could also have instituted a constitutional petition before the High Court of Tanzania for reparation of the alleged violations.

47. Lastly, the Respondent State reiterates that the principle of exhaustion of local remedies is crucial in preventing Applicants from inundating the Court with petitions which could have been resolved at the national level.

***

 

48. In their Reply to the Respondent State’s Response, the Applicants aver that local remedies were exhausted and that any other conceivable measure can only be an “extraordinary measure”. They contend that the Court of Appeal being the highest Court of the land, they were under no obligation to resort to extraordinary measures.

49. The Applicants submit that the Court has jurisdiction to hear the instant Application because all local remedies have been exhausted.

50. The Applicants further submit that it would have been unreasonable to require them to resort to extraordinary measures by filing a new Application on their right to a fair trial before the High Court, which is a lower Court in relation to the Court of Appeal.

***

51. The Court notes that the Applicants filed an Appeal and had access to the highest court of the Respondent State, namely the Court of Appeal, to adjudicate on the various allegations, especially those relating to violations of the right to a fair trial.

52. Concerning the filing of a constitutional petition regarding the violation of the Applicants’ rights, the Court has already stated that this remedy in the Tanzanian judicial system is an extraordinary remedy that the Applicants are not required to exhaust prior to seizing this Court.[6]

53. With regard to the issues that the Applicants did not raise during domestic procedures but chose to bring before the Court for the first time, the Court, in accordance with the Judgment rendered in Alex Thomas v. Tanzaniaaffirms that these allegations happened in the course of the domestic judicial proceedings that led to the Applicants’ conviction and sentence to thirty (30) years’ imprisonment. They all form part of the “bundle of rights and guarantees” in relation to the right to a fair trial that were related to or were the basis of their appeals. The domestic judicial authorities thus had ample opportunity to address these allegations even without the Applicants having raised them explicitly. It would therefore be unreasonable to require the Applicants to file a new application before the domestic courts to seek redress for these claims.[7]

54. Accordingly, the Court finds that, the Applicants exhausted local remedies as envisaged under Article 56(5) of the Charter and Rule 40(5) of the Rules. The Court therefore overrules this preliminary objection to the admissibility of the Application.

ii. Objection based on the ground that the Application was not filed within a reasonable time

 

55. The Respondent State contends that the Application does not meet the admissibility conditions stipulated under Articles 56(6) of the Charter and Rules 40(6) of the Rules because it was not filed within a reasonable time after all local remedies were exhausted.

56. The Respondent State contends that though the Court of Appeal rendered its decision on the Applicants’ appeal on 11 February, 2010, the relevant period in this regard is between 29 March, 2010 when the Respondent State deposited the Declaration required under Article 34(6) of the Protocol as read together with Article 5(3) thereof and 6 March, 2015 when the Applicants filed their Application before the Court, that is, four (4) years and eleven (11) months after Tanzania deposited the afore-mentioned Declaration.

 

***

57. The Applicants in their Reply to the Respondent State’s Response contest the Respondent State’s interpretation of what constitutes reasonable time under Rule 40(6) of the Rules. They argue that, given their circumstances, their Application was filed within a reasonable period after the exhaustion of local remedies, adding in this regard that, at all material times they were both lay, indigent, incarcerated persons without the benefit of legal advice. They do not dispute that the Respondent State’s Court of Appeal rendered a Judgment on 11 February, 2010 and that their Application before this Court is dated 11 February, 2015. However, the Applicants submit that their circumstances warrant the Court to admit their Application as there are sufficient reasons to explain why they filed their Application at the time they did.

 

***

58. In determining whether the Application was filed within a reasonable time, the Court is of the view that although the process of exhaustion of ordinary remedies stops with the appeal at the Court of Appeal whose decision was rendered on 11 February, 2010, the Applicants should not be penalised for choosing to pursue a review of this decision. The Applicants’ Application for Review having been dismissed by the Court of Appeal on 13 November, 2013, the assessment of reasonableness will be based on the time between this date and 6 March, 2015 when they filed their Application.[8]

59. The Court notes that the Applicants filed the Application one (1) year, three (3) months and twenty-one (21) days after the Court of Appeal dismissed their Application for Review.

 

60. In the Matter of Beneficiaries of late Norbert Zongo, and Others v. Burkina Faso, the Court established the principle that “the reasonableness of a time limit of seizure will depend on the particular circumstances of each case and should be determined on a case-by-case basis.”[9]

61. Considering the Applicants’ situation, that they are lay, indigent and incarcerated persons, without counsel or legal aid, and as the records show, the time expended in providing them access to Court records, their attempt to use extraordinary remedies through the Application for Review of the Court of Appeal’s Decision, the Court finds that these constitute sufficient justification as to why the Applicants filed the Application one (1) year, three (3) months and twenty-one (21) days after the Court of Appeal’s decision on the request for review.

62. For these reasons, the Court finds that the Application has been filed within a reasonable time as envisaged under Article 56(6) of the Charter and Rule 40(6) of the Rules. The Court therefore overrules this preliminary objection on admissibility.

B.   Conditions of admissibility that are not in contention between the Parties

63. The conditions regarding the identity of the Applicant, the Application’s compatibility with the Constitutive Act of the African Union, the language used in the Application, the nature of the evidence, and the principle that an Application must not raise any matter already determined in accordance with the principles of the United Nations Charter, the Constitutive Act of the African Union, the provisions of the Charter or of any other legal instruments of the African Union (Sub-Rules 1, 2, 3, 4 and 7 of Rule 40 of the Rules) are not in contention between the Parties.

64. For its part, the Court also notes that nothing on the record which the Parties have submitted suggests that these conditions have not been met in the instant case. The Court therefore holds that the requirements under those provisions are fulfilled.

65. In light of the foregoing, the Court finds that the instant application fulfils all admissibility requirements in terms of Article 56 of the Charter and Rule 40 of the Rules, and accordingly declares the same admissible.

VIII. MERITS

 

A. Alleged violations of the rights to the respect of the dignity and integrity of the person under Article 5 of the Charter

66. The Applicants contend that they were ill-treated by police officers who, at one time, called them and insulted them and then took them back to the police. They also allege that they were held there incommunicado for four (4) days.

67. As indicated above, the Applicants further contend that, after being taken to Urafiki Police Station, the Second Applicant, together with his two brothers, the Third and Fourth accused in Criminal Case No. 555 of 2003, were molested and subsequently transferred to Magomeni Police Station where they found their father, the First Applicant, locked up in a cell which had unbearable sanitary conditions. The Applicants maintain that this conduct by the Respondent State is a violation of Article 5 of the Charter.

***

68. The Respondent State avers that all Police Stations in its territory have basic facilities and where sanitation is lacking, the matter is addressed under Order 353(14) of the Police General Orders. The Respondent State maintains that the other allegations were never raised before the domestic courts.

 

***

69. Article 5 of the Charter provides as follows:

“Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.”

70. In the circumstances of this case, before the Court determines whether the Respondent State’s conduct is a violation of Article 5 of the Charter as alleged by the Applicants, it must first establish who should discharge the burden of proof in this regard.

71. In its previous judgment in the Matter of Kennedy Owino Onyachi and Another v United Republic of Tanzania, the Court has held as follows that: “it is a fundamental rule of law that anyone who alleges a fact shall provide evidence to prove it. However, when it comes to violations of human rights, this rule cannot be rigidly applied. By their nature, some human rights violations relating to cases of incommunicado detention … are shrouded with secrecy and are usually committed outside the shadow of law and public sight. The victims of human rights may thus be practically unable to prove their allegations as the means to verify their allegation are likely to be controlled by the State”.

 

72. In the same above-mentioned case, the Court, relying on the jurisprudence of the International Court of Justice[10] also held that “In such circumstances, ‘neither party is alone in bearing the burden of proof and the determination of the burden of proof depends on the type of facts which it is necessary to establish for the purposes of the decision of the case’. It is therefore for this Court to evaluate all the circumstances of the case with a view to establishing the facts.

73. In the instant case, the Applicants simply assert that they were ill-treated and held in a police cell incommunicado for four (4) days. In addition, they state that the First Applicant was held in a cell with unsanitary conditions. The Applicants have not submitted any prima facie evidence to support their allegations which could enable the Court to shift the burden of proof to the Respondent State.

74. In view of the foregoing, the Court finds that these allegations lack merit and the Court therefore dismisses them.

B. Alleged violations of the right to a fair trial under Article 7(1) of the Charter

75. The Applicants have raised several allegations that fall under the aegis of Article 7(1) of the Charter which reads as follows:

"Every individual shall have the right to have his cause heard. This comprises:

1. The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;

2. The right to be presumed innocent until proved guilty by a competent court or tribunal;

3. The right to defence, including the right to be defended by counsel of his choice;

4. The right to be tried within a reasonable time by an impartial court or tribunal."

 

i. Allegations that the Applicants were not promptly informed of the charges against them and they were denied the right to call a Counsel

76. In their Reply to the Respondent State’s Response to the Application, the Applicants contend that they were not informed of the charges brought against them, at the time of their arrest and they were denied their right to call a Counsel or to be visited by anybody.

***

77. The Respondent State for its part contends that the foregoing allegations were never raised before the local courts, and are therefore an afterthought and that they are baseless and should consequently be dismissed.

***

78. The requirements for an accused person to be informed of the charges they are facing and to be allowed to call a Counsel is to enable them prepare an effective defence. In accordance with Article 14(3) (a) of the Covenant, this is to be done promptly. Article 14(3)(a) of the Covenant provides:

 

“3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him.”

 

***

79. The Court notes that strictly speaking, the Respondent State has not challenged the veracity of the Applicants’ allegations in this regard.

 

80. The record before this Court shows that the Applicants were informed of the charges against them on 16 October, 2003 when they were taken before the Resident’s Magistrate’s Court of Kisutu, that is, four (4) days after they were arrested. In the view of this Court, in the specific circumstances of this case where there were allegations of the rape of children of tender age and the possible need for further investigations, the Applicants were informed promptly of the charges against them and therefore there was no violation of Article 7(1)(c) of the Charter in this regard.

81. With regard to the Applicants’ denial of the right to call a Counsel, the judgment of the Court of Appeal shows that the Applicants were represented by Advocate Mabere Marando during their appeal at the Court of Appeal and the Ruling on their application for review shows that this same Counsel represented them in those proceedings. There is no record of proceedings at the Resident’s Magistrate’s Court to enable the Court verify whether the Applicants had access to Counsel when the charges were read to them and in the course of the trial. In these circumstances, the Court finds that this allegation has therefore not been proven.

82. From the foregoing, the Court concludes that the allegations under consideration are dismissed.

 

ii. Allegation that the identification of the Applicants was not done properly

83. In their Reply to the Respondent State’s Response to the Application, the Applicants elaborated on the claim regarding the methods used in identifying them.

84. The Applicants contend that during the hearing of Criminal Case No. 555 of 2003, the Trial Magistrate simply asked the witnesses to point to the accused persons in the dock after changing their sitting positions.

85. The Applicants allege that the informal manner in which they were identified violated their rights under Article 7(1) of the Charter and that given the gravity of the offences and punishment that they were facing, a formal identification parade ought to have been conducted following the appropriate procedures, with proper checks as required to satisfy the requirements of a fair trial. The Applicants aver that a formal identification parade was crucial to ascertain whether the victims, who were all under the age of eight (8) at the time, knew the perpetrators of the alleged offences.

86. The Applicants maintain that, at the time of their arrest, the police officers even went with some of the alleged victims to the scene of the crime, and that it is on this basis that the alleged victims saw the Applicants while they were being arrested and also while in remand. They contend further that, although the alleged victims could not identify Papi Kocha, the Second Applicant and instead, they had identified both Nguza Mbangu and Francis Nguza as being Papi Kocha, the Trial Magistrate decided that an identification parade was not necessary.

***

87. The Respondent State did not respond to these allegations that the Applicants raised in their Reply to the Respondent State’s Response.

***

88. The issue that this Court needs to determine is whether the manner in which the Applicants were identified is in accordance with Article 7 (1) (c) of the Charter.

89. The Court is of the view that the decision on evidence to be adduced regarding the form of identification of accused persons is to be left to national courts since they determine the probative value of such evidence and they enjoy a wide discretion in this regard. This Court generally would therefore defer to the national Court’s determination in this regard, so long as doing so, will not result in a miscarriage of justice.

90. In the instant case, this Court notes from the record that in the course of domestic proceedings, the Magistrate’s Court considered the testimony of witnesses regarding the identification of the Applicants and being satisfied on this, proceeded with the trial. The Court finds that, on the whole, there is nothing on the record to indicate that this specific aspect of proceedings occasioned a miscarriage of justice. The Court consequently holds that there is no violation of Article 7(1) (c) of the Charter.

 

iii. Allegation that the Applicants were not given copies of Prosecution Witness statements and the material witnesses were not called for cross-examination.

91. The Applicants allege that their request for copies of witness statements during the trial was denied by the Trial Court and this, in their view, violated their right to a fair trial. They further allege that this violated their right to a fair trial because the Prosecution failed to disclose relevant evidence which could have buttressed their defence.

92. The Applicants contend that there was a deliberate failure on the part of the Trial Magistrate to discharge her duty to ensure that material witnesses are called. They state that the persons who ought to have been called as material witnesses are Selina John, who claimed to have first informed Candy David Mwaivaji (Prosecution Witness 1) about Gift Kapapwa (Prosecution Witness 2) allegedly taking money from the First Applicant; Cheupe Dawa, who was accused of abducting the children and taking them to the First Applicant; Zizel, the First Applicant’s grandson and Mangi, who was the owner of the container shop located near the First Applicant’s house.

93. According to the Applicants, the effect of this omission was the abuse of the principle of equality of arms. The Applicants maintain that the failure to call the afore-mentioned four (4) persons as witnesses meant that though the Prosecution relied on the information they provided, the defence was unable to cross-examine them because they were never called to testify.

94. The Applicants submit that “equality of arms” is a principle of common law which provides that there must be a fair balance between the Parties. They argue that it is a cardinal tenet of the right to a fair trial and an intrinsic aspect of the right to adversarial procedures. They maintain that each Party must be afforded a reasonable opportunity to present its case especially its evidence, under conditions that do not place it at a substantial disadvantage vis-à-vis its opponent.

95. The Applicants further contend that this principle imposes an obligation on the Prosecution to disclose any material in its possession which may assist the accused in defending himself.

***

96. The Respondent State submits that, the Applicants must substantiate the allegation that the afore-mentioned four (4) persons were not called as witnesses to enable the Applicants cross-examine them. The Respondent State avers that only the victims, and no other persons were better placed to testify to the facts, particularly because the Prosecution has the onus to establish that the victims were familiar with the crime scene.

***

97. The Court notes that the Respondent State has not challenged the allegation that the Applicants were not provided with the witness statements and that the four witnesses above were not called and were therefore not cross-examined by the Applicants.

98. The Court recalls that in accordance with Article 7(1) (c) of the Charter everyone has a right to defence, and that according to Article 14(3) (b) of the Covenant, in the determination of any criminal charge against him, “everyone shall be entitled … (b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”. The Court also notes that Article 14(3) (e) of the Covenant provides that “in the determination of any criminal charge against him, everyone shall be entitled… to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”.

99. The Court is of the view that in the instant case, the Applicants should have been provided copies of the Prosecution Witness’ statements in order to facilitate them to prepare their defence. By this not having been done, the Applicants were placed at a disadvantage vis-à-vis the Prosecution, contrary to the principle of equality of arms. Similarly, by not calling the four (4) afore-mentioned persons to testify, the Applicants were denied the opportunity to cross-examine them and this also placed them at a disadvantage.

100.      Consequently, the Court holds that the Applicants’ denial of access to the Prosecution’s witness’s statements and denial of an opportunity for the Applicants to cross-examine persons who would have been material witnesses, was a violation Article 7(1) (c) of the Charter by the Respondent State.

 

iv. Allegation that the Applicants’ alibi defence was unduly rejected

101.      In their Reply to the Respondent State’s Response to Application, the Applicants contend that the Trial Court rejected their alibi defence and that, by so doing, it violated their rights under Article 7(1) (b) of the Charter. They further submit that the house in which the alleged crimes they were charged with took place was always occupied by members of the Achigo Band who did music rehearsals there, making it impossible for the alleged crimes to be committed.

102.      The Second Applicant further contends that he was out of Dar-es-Salaam promoting his album at the time the crimes were alleged to have been committed and he could not therefore have been at the alleged crime scene.

***

103.      For its part, the Respondent State submits that in examining the Applicants’ guilty verdict, the Court of Appeal reassessed all the evidence, the defence arguments and the alibi on each count and made its own findings thereon.

***

104.      In its previous Judgment in the Matter of Mohamed Abubakari v. Tanzania, this Court held that:

 

“Where an alibi is established with certitude, it can be decisive on the determination of the guilt of the accused.”[11]

 

105.      In the instant case however, the records of the domestic judicial proceedings show that the Applicants’ evidence of an alibi was considered and rejected by the Respondent State’s Trial and Appellate Courts. The record of proceedings reveals that the High Court and the Court of Appeal specifically addressed the alibi defence and rejected it after weighing it against the testimony of the witnesses, finding that the witnesses’ testimony was sufficiently reliable to set aside the Applicants’ alibi defence. The Court finds that, on the whole, there is nothing on the record to indicate that the setting aside of the Applicants’ alibi defence occasioned a miscarriage of justice.

 

106.      Consequently, the Court holds that the Respondent State has not violated the Applicants’ right to defence as enshrined in Article 7(1) (c) of the Charter and thus dismisses the allegation.

 

v. Allegation that the Applicants’ urine and blood tests were not tendered and the First Applicant’s request for an impotence test was unduly rejected.

107.      In the Reply to the Respondent State’s Response to the Application, the Applicants contend that they were taken to hospital on 14 October, 2003 where their urine and blood samples were taken for testing. They further contend that the results of the tests were not tendered in evidence, despite the fact that the Second Applicant raised the issue during the trial of Criminal Case No. 555 of 2003.They maintain that they were convicted by the Trial Magistrate, who did not consider or attach due weight to all the available evidence.

108.      The Applicants also state that on 14 October, 2003, the First Applicant requested to be taken to a doctor for a test to prove his impotence but his request was rejected whereas the Court ought to have facilitated this test. They maintain that the First Applicant repeated this request in the course of the trial but it was also rejected by the Court. They argue that the Judgment of the Trial Court shifted the burden of proof to them contrary to the well-established principle that the prosecution bears the burden of proof. The Applicants contend that the Respondent State’s interpretation of Section 114(1) of the Law of Evidence Act (Cap. 6 R.E. 2002) is inconsistent with the provisions of Section 3(2) (a) of the same Act.[12]

***

109.      The Respondent State, for its part, argues that the foregoing defence was not raised by the Applicants when they filed an Appeal before the High Court in Criminal Appeal No. 84 of 2004; and less so, in their Appeal at the Court of Appeal in Criminal Appeal No. 56 of 2005. It notes that the Trial Court found that none of the victims tested positive for HIV, VDRL or HVS, according to the deposition of the doctor (Prosecution Witness 20) who examined the victims, therefore the blood and urine tests results became irrelevant.

110.      The Respondent State contends further that, neither the Trial Court, the High Court, nor to a lesser extent, the Court of Appeal of Tanzania, based their guilty verdicts against the Applicants on the results of the blood and urine tests.

111.      The Respondent State also affirms that the issue as to whose responsibility it was to establish the First Applicant’s sexual impotence was definitively settled by the Court of Appeal which held that it was up to the Applicant to adduce evidence to prove his lack of virility.

112.      The Respondent State contends that the First Applicant raised the issue of his impotence and inability to have an erection only when he was being cross-examined by the Prosecution and that the allegations were therefore an afterthought on the Applicants’ part.

113.      The Respondent State further states that the Court of Appeal determined the matter taking into account the available evidence, namely, that the victims testified that they were raped and their medical reports corroborated their testimony.

***

114.      The Applicants allege here the violation of Articles 2 and 3 of the Charter which protects the right not to be discriminated against and equality before and equal protection of the law, respectively. The Court will however consider this allegation under Article 7(1) (c) of the Charter, as it actually relates to the right to defence.

115.      The Court notes that all material evidence impacting on an accused person’s defence should be considered and reasons for its exclusion provided. This is because their liberty is at stake.

116.      The Court notes that the Applicants’ blood and urine test results, which in the Applicants’ view, would have bolstered their defence, were not tendered in evidence at the Trial Court therefore denying them the opportunity to tender material evidence in their defenceThe Court also however notes that in the circumstances of the case, neither the High Court nor the Court of Appeal based their guilty verdicts on the results of the blood and urine tests. Therefore, the Applicants’ right to defence was not violated in this respect.

117.      On the other hand, as regards the impotence test, the Court is of the view that, once the First Applicant raised the issue, the Respondent State should have facilitated the test to be done, since the outcome thereof would determine whether the First Applicant could have committed the crime. Consequently, the Court holds that, to the extent that the Trial Court rejected the First Applicant’s prayer to be tested on his impotence, the Respondent State has violated his right provided in Article 7(1) (c) of the Charter.

vi. Allegation that the Trial Judge was biased and that some of the Applicants’ submissions and evidence were not duly considered and taken into account

118.      In the Reply to the Respondent State’s Response, the Applicants contend that the Trial Magistrate was biased and did not accord their evidence the weight it deserved. They maintain that although some of the issues were treated by the Court of Appeal, other grounds of appeal were not addressed.

119.      The Applicants further contend that the right to a fair trial encompasses the obligation for a court of law to render reasoned judgments and that, in the instant case, the Trial Court’s judgment revealed prejudice and contained unjustified remarks about the defence witnesses, suggesting that the Trial Magistrate was biased and had formed her own opinion about the case.

***

120.      For its part, the Respondent State reiterates that the Court of Appeal remedied the alleged infringements when it assessed each of the twenty one (21) counts on which the Applicants were found guilty of by the Trial Court and as affirmed by the High Court. The Respondent State maintains that after the examination of each count, the Court of Appeal found the Applicants guilty of only the four (4) counts in respect of which they were sentenced. These are, two (2) counts of the rape of two (2) different victims against the First Applicant and two (2) counts each of gang-rape of two (2) victims against both Applicants and that the examination of the arguments and evidence adduced by the defence was an integral part of this assessment.

***

121.      The Court recalls again that at the Trial Court, there were five accused persons, including the Applicants, facing twenty-one (21) counts, ten (10) of rape and eleven (11) of unnatural offence. The Fifthaccused, the teacher, was acquitted by the Trial Court while the rest of the accused persons were convicted and sentenced to life imprisonment. The High Court affirmed the Trial Court’s conviction of the First, Second, Third and Fourth accused on the ten (10)-count charge of rape but substituted the convictions on eleven (11) counts of unnatural offence with that of gang-rape.

122.      The record before this Court shows that the Court of Appeal examined each count and in the end acquitted the Third and Fourth accused, reducing the number of counts that were proven against the Applicants to four (4) as against the original twenty-one (21).

123.      In a previous case, this Court has stated as follows:

“General statements to the effect that this right has been violated are not enough. More substantiation is required”.[13]

124.      The Court notes however that, in the instant case, the Applicants have not provided sufficient evidence as to the alleged bias and to the possible implications of the alleged violations on the Trial Court’s judgment.

125.      Accordingly, the Court finds that the alleged violation has not been proven and therefore dismisses it.

C. Allegations of violation of the right to participate in the government of one’s country under Article 13 of the Charter and the right to protection of the family under Article 18(1) of the Charter

126.      In their Reply to the Respondent State’s Response, the Applicants submit in general terms that the Respondent State violated their rights under Articles 13 and 18(1) of the Charter.

***

127.      The Respondent State did not respond to this allegation.

 

***

128.      Article 13 of the Charter provides that:

“1. Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.

2. Every citizen shall have the right of equal access to the public service of his country.

3. Every individual shall have the right of access to public property and services in strict equality of all persons before the law.”

 

129.      Article 18(1) of the Charter provides as follows:

“The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical health and moral.”

 

130.      On those points, the Court notes that the Applicants limited themselves to stating that their rights under Articles 13 and 18(1) have been violated by the Respondent State. They have not specified how and in what circumstances the alleged violations occurred.

131.      As indicated above, this Court has stated in its previous judgments that, “General statements to the effect that the right has been violated are not enough” and that “More substantiation is required”.[14]

132.      In view of the aforesaid, the Court finds that the allegations of violation of Articles 13 and 18(1) of the Charter have not been established and, accordingly, dismisses those allegations.

D. Allegation that the Respondent State violated Article 1 of the Charter

133.      In their Reply, the Applicants lastly state that the Respondent State has fallen short in its obligations by failing to give effect to the provisions of Article 1 of the Charter.

 

***

134.      The Respondent State has not responded to this allegation.

 

***

135.      The Court notes that in instances where an allegation of violation of Article 1 of the Charter has been raised, the Court has held that “when the Court finds that any of the rights, duties and freedoms set out in the Charter are curtailed, violated or not being achieved, this necessarily means that the obligation set out under Article 1 of the Charter has not been complied with and has been violated”.[15]

 

136.      In the instant case, the Court has held that the Respondent State has violated Article 7(1) (c) of the Charter with respect to some of the Applicants’ allegations (supra paragraphs 100 and 117). On the basis of the foregoing observations, the Court thus finds in conclusion that, violation of the said rights entails violation of Article 1 of the Charter.

IX. REMEDIES SOUGHT

137.      As indicated above (paragraphs 21 and 22), the Applicants have requested the Court to, inter alia, issue an order compelling the Respondent State to release them from prison and grant them reparations pursuant to Article 27(1) of the Protocol and Rule 34(5) of the Rules.

138.      As indicated above (paragraphs 23 to 26), the Respondent State has prayed the Court to order that the Applicants continue serving their sentences and deny the Applicant’s request for reparations.

***

139.      Article 27(1) of the Protocol provides that “If the Court finds that there has been violation of a human or peoples’ rights it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation”.

140.      In this respect, Rule 63 of the Rules provides that “The Court shall rule on the request for reparation submitted in accordance with Rule 34(5) of these Rules, by the same decision establishing the violation of a human and people’s rights, or if the circumstances so require, by a separate decision”.

141.      With respect to the Applicants’ request to be released from prison, the Court notes that this prayer is moot, considering that, according to both Parties, the Applicants have been released by way of a Presidential Pardon.[16]

142.      Concerning the other forms of reparation, the Court notes that none of the Parties made detailed submissions. It will therefore make a ruling on this question in another Judgment after having heard the Parties.

X. COSTS

143.      The Applicants prayed the Court to order the Respondent State to pay costs.

***

144.      The Respondent State has not made any prayer as to costs.

***

145.      The Court notes in this regard that Rule 30 of its Rules provides that "Unless otherwise decided by the Court, each party shall bear its own costs”.

146.      Having considered the circumstances of this matter, the Court decides to deal with the question of costs when considering the other forms of reparation.

XI. OPERATIVE PART

147.      For these reasons:

 

THE COURT,

Unanimously,

On jurisdiction:

                      i.        Dismisses the objection to the jurisdiction of the Court;

                    ii.        Declares that it has jurisdiction.

On admissibility:

                   iii.        Dismisses the objections on the admissibility of the Application;

                   iv.        Declares the Application admissible.

 

On the Merits:

                    v.        Finds that the Respondent State has not violated Article 5 of the Charter;

                   vi.        Finds that the Respondent State has not violated Article 7 (1) (c) of the Charter as regards: the failure to promptly inform the Applicants of the charges against them and denying them an opportunity to call their Counsel; the manner of the Applicants’ identification; the rejection of the Applicant’s alibi defence; the failure to admit the reports of the Applicants’ urine and blood tests as evidence and the alleged partiality of national courts;

                  vii.        Finds that the Respondent State has violated Article 7 (1) (c) of the Charter as regards: the failure to provide the Applicants copies of witness statements and to call material witnesses; the failure to facilitate the First Applicant to conduct a test as to his impotence; consequently finds that the Respondent State has violated Article 1 of the Charter;

                 viii.        Finds that the allegations of violation of Articles 13 and 18 (1) of the Charter have not been established;

                   ix.        Holds that the Applicants’ prayer to be released from prison has become moot;

                    x.        Orders the Respondent State to take all necessary measures to restore the Applicants’ rights and inform the Court, within six (6) months from the date of this Judgment of the measures taken.

                   xi.        Defers its ruling on the Applicants’ prayer on the other forms of reparation, as well as its ruling on Costs; and

                  xii.        Allows the Applicants, in accordance with Rule 63 of its Rules, to file their written submissions on the other forms of reparation within thirty (30) days from the date of notification of this judgment; and the Respondent State to file its Response within thirty (30) days from the date of receipt of the Applicants’ written submissions.

 

Signed:

Sylvain ORÉ, President

Ben KIOKO, Vice President

Gérard NIYUNGEKO, Judge

El Hadji GUISSÉ, Judge

Rafâa BEN ACHOUR, Judge

Angelo V. MATUSSE, Judge

Ntyam O MENGUE, Judge

Marie-Thérèse MUKAMULISA, Judge

Tujilane R. CHIZUMILA, Judge

Chafika BENSAOULA, Judge;

and

Robert ENO, Registrar.

Done at Arusha, this Twenty Third Day of March, 2018 in the English and French languages, the English text being authoritative.

 


[1] Application No. 001/2013.Decision of 15/3/2013, Ernest Francis Mtingwi v Republic of Malawi. para. 14.

[2] Application No.005/2013.Judgment of 20/11/2015, Alex Thomas v. United Republic of Tanzania. para. 130.

[3] Application No. 003/2012.Ruling of 28/3/2014, Peter Joseph Chacha v. United Republic of Tanzania. para. 114.

[4] Application No. 001/2013. Decision of 15/3/2013, Ernest Francis Mtingwi v Republic of Malawi. para. 14.

[5] Application No. 005/2013. Judgment of 20/11/2015, Alex Thomas v United Republic of Tanzania. para. 130 and Application No. 007/2013. Judgment of 3/6/2016, Mohamed Abubakari v United Republic of Tanzania. para. 29.

[6] Application No.005/2013. Judgment of 20/11/2015, Alex Thomas v. United Republic of Tanzania, paras 60 to 62; Application No.007/2013. Judgment of 3/6/2016, Mohamed Abubakari v United Republic of Tanzania. paras 66 to 70; Application No.011/2015. Judgment of 28/9/2017, Christopher Jonas v United Republic of Tanzania. para. 44.

[7] Application No.005/2013. Judgment of 20/11/2015, Alex Thomas v. United Republic of Tanzania. paras 60 to 65.

[8] Application No. 003/2015. Judgment of 28/9/2017, Kennedy Owino Onyachi and Another v. United Republic of Tanzania. para. 65.

[9] Application No. 013/2011. Judgment of 28/3/2014, Beneficiaries of late Norbert Zongo and Others v Burkina Faso. para. 92. See also: Application No.005/2013. Judgment of 20/11/2015, Alex Thomas v. United Republic of Tanzania. para. 73; Application No. 007/2013. Judgment of 3/6/2016, Mohamed Abubakari v United Republic of Tanzania. para. 91; Application No.011/2015. Judgment of 28/9/2017, Christopher Jonas v United Republic of Tanzania.para. 52.

[10] Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of Congo), International Court of Justice, Judgment of 30 November 2010, para. 56.

[11] Application No. 007/2013. Judgment of 3/6/2016, Mohamed Abubakari v United Republic of Tanzania. para. 191.

[12] Section 3(2) (a) of the Law of Evidence Act provides that in criminal matters, the prosecution must prove the case beyond reasonable doubt; Section 114(1) thereof provides that the accused bears the burden of proof where he or she claims that there are circumstances bringing the case under an exception to the operation of the law creating the offence and this burden can be discharged when there is evidence from the prosecution in this regard.

[13] Application No.005/2013. Judgment of 20/11/2015, Alex Thomas v. United Republic of Tanzania. para. 140.

[14]As above

[15] Application No.005/2013. Judgment of 20/11/2015, Alex Thomas v. United Republic of Tanzania. para. 135; Application No. 013/2011. Judgment of 28/3/2014, Beneficiaries of late Norbert Zongo and Others v. Burkina Faso. para. 199; Application No. 003/2015. Judgment of 28/9/2017, Kennedy Owino Onyachi and Another v. United Republic of Tanzania. para. 159.

[16] Supra paras. 16 and 17.

Author
Judgment date
Case number
Application 27 of 2015
Court name
African Court
Search summary

THE MATTER OF

MINANI EVARIST

V.

UNITED REPUBLIC OF TANZANIA

APPLICATION No. 027/2015

JUDGMENT

21 SEPTEMBER 2018


TABLE OF CONTENTS

TABLE OF CONTENTS.. i

I. THE PARTIES.. 2

II. SUBJECT OF THE APPLICATION.. 2

A. Facts of the Matter. 2

B. Alleged Violations. 3

III. SUMMARY OF THE PROCEDURE BEFORE THE COURT.. 4

IV. PRAYERS OF THE PARTIES.. 4

V. JURISDICTION.. 5

A. Objections to material jurisdiction. 5

B. Other aspects of jurisdiction. 6

VI. ADMISSIBILITY OF THE APPLICATION.. 7

A. Conditions of admissibility in contention between the Parties. 8

i. Objection based on the alleged failure to exhaust local remedies. 8

ii. Objection on the ground that the Application was not filed within a reasonable time  10

B. Conditions of admissibility that are not in contention between the Parties. 11

VII. MERITS.. 12

A. Alleged violations of the right to a fair trial 12

i. The alleged violation of the right to have his cause heard by a court of law. 12

ii. Alleged violation of the right to legal aid. 14

B.  Alleged violation of the right to equal protection of the law.. 16

VIII. REMEDIES SOUGHT.. 17

IX. COSTS.. 19

X. OPERATIVE PART.. 19


The Court composed of: Sylvain ORÉ, President; Ben KIOKO, Vice-President; Rafaâ BEN ACHOUR, Ângelo V. MATUSSE, Suzanne MENGUE, M-Thérèse MUKAMULISA, Tujilane R. CHIZUMILA, Chafika BENSAOULA, Blaise TCHIKAYA, Stella I. ANUKAM, Judges; and Robert ENO, Registrar.

In accordance with Article 22 of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights and Rule 8(2) of the Rules of Court (hereinafter referred to as "the Rules"), Justice Imani D. ABOUD, member of the Court and a national of Tanzania, did not hear the Application.

In the Matter of

MINANI EVARIST,

self-represented

versus

UNITED REPUBLIC OF TANZANIA,

 

represented by:

i.          Ms. Sarah MWAIPOPO, Principal State Attorney and Director of Division of Constitutional Affairs and Human Rights, Attorney General's Chambers;

ii.         Mr. Baraka H. LUVANDA, Ambassador, Director, Legal Unit, Ministry of Foreign Affairs, East Africa, Regional and International Cooperation;

iii.        Ms. Nkasori SARAKIKYA, Deputy Director, Human Rights, Principal State Attorney, Attorney General's Chambers;

iv.        Mr. Mark MULWAMBO, Principal State Attorney, Attorney General's Chambers;

v.         Ms. Aidah KISUMO, Senior State Attorney, Attorney General's Chambers; and

vi.        Mr. Elisha E. SUKA, Foreign Service Officer, Ministry of Foreign Affairs, East Africa, Regional and International Cooperation.

after deliberation,

delivers the following Judgment:


I.        THE PARTIES

1.   The Applicant, Mr. Minani Evarist, is a national of the United Republic of Tanzania, currently serving a thirty (30) years’ prison term for the crime of rape at Butimba Central Prison in Mwanza.

2.   The Respondent State, the United Republic of Tanzania, became a Party to the African Charter on Human and Peoples’ Rights (hereinafter referred to as “the Charter”) on 21 October, 1986 and also became a Party to the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (hereinafter referred to as “the Protocol”) on 10 February 2006. Furthermore, the Respondent State deposited the declaration prescribed under Article 34(6) of the Protocol on 29 March 2010.

II.       SUBJECT OF THE APPLICATION

A.      Facts of the Matter

3.   According to the records, in Criminal Case No. 155/2005 before the District Court of Ngara, the Applicant was convicted and sentenced on 30 March 2006, to 30 years imprisonment for having committed the crime of rape of a fifteen (15) year old girl, an offence punishable under Sections 130(1) and (2)(e) and Section 131(1)  of the Tanzanian Penal Code, as Revised in 2002.

4.   The Applicant filed Criminal Appeal No. 43/2006 before the High Court of Tanzania at Bukoba (hereinafter referred to as ‘the High Court”); and Criminal Appeal No. 124/2009 before the Court of Appeal of Tanzania at Mwanza (hereinafter referred to as ‘the Court of Appeal”).

5.   The High Court and the Court of Appeal upheld the sentence on 29 March 2007 and 16 February 2012, respectively; and the Applicant filed an Application for review before the Court of Appeal on 19 August 2014. The Applicant alleges that this Application is still pending at the time of filing of the Application.

B.      Alleged Violations

6.   The Applicant alleges  that:

i.    The Court of Appeal of Tanzania “...handed down erroneously its judgment against the Applicant on 16/02/2012; and then caused him severe harm when it did not schedule for a hearing his review request, whereas other applications lodged after his had been registered and scheduled for hearing.”

ii.   The Court of Appeal “…had not considered all the grounds of his defence, and clustered them into three grounds. This legal proceeding was detrimental to the Applicant insofar as it violated his fundamental right to have his cause heard by a court of law as provided for in Article 3(2) of the Charter.”

iii.  As the Respondent State did not afford him legal representation during his trial, he “...was deprived of his right to have his cause heard, which had a prejudicial effect on him. He alleges that this procedure constitutes a violation of the Applicant’s fundamental rights as set out in Article 7(1)(c) and (d), of the Charter, and of Sections 1 and 107(2)(b) of the Tanzanian Constitution of 1997” (hereinafter referred to as “the Tanzanian Constitution”).

7.   In summary, the Applicant alleges the violation of Articles 3(2) and 7(1)(c)  and (d) of the Charter.

III.      SUMMARY OF THE PROCEDURE BEFORE THE COURT

8.   The Application was filed on 10 October 2015 and served on the Respondent State by a notice dated 23 December 2015, directing the Respondent State to file the list of its representatives within thirty (30) days and to file its Response to the Application within sixty (60) days of receipt of the notice, in accordance with Rules 35(2) (a) and 35(4) (a) of the Rules of Court (hereinafter referred to as “the Rules”).

9.   The Respondent State filed the names and addresses of its representatives on 22 February 2016.

10. On 31 March 2016, the Application was transmitted to the Chairperson of the African Union Commission and through him to the Executive Council of the African Union and to the State Parties to the Protocol, in accordance with Rule 35(3) of the Rules.

11. The Respondent State submitted its Response on 22 May 2017, which was served on the Applicant by a notice dated 30 May 2017.

12. On 28 June 2017, the Applicant filed the Reply to the Response and this was served on the Respondent State by a notice dated 17 July 2017.

13. The Court decided to close the written pleadings with effect from 9 October 2017, pursuant to Rule 59(1) of the Rules and the Registry duly informed the Parties by a notice dated 9 October 2017.

14. On 6 April 2018, the Parties were informed that the Court would not hold a public hearing indicating that written submissions and the evidence on file were sufficient to determine the matter.

IV.     PRAYERS OF THE PARTIES

15. The Applicant prays the Court to:

i.    Render  justice by annulling the guilty verdict and the sentence meted out to him and order his release;

ii.   Grant him reparations for the violation of his rights; and

iii.  Order such other measures or remedies that the Court may deem fit to grant.

16. The Respondent State prays the Court to rule that:

i.    the Court has no jurisdiction to hear the matter and that the Application is inadmissible;

ii.   the Respondent  State "has not violated Articles 3(2), 7(1), 7(1)(c) and  7(1)(d) of the Charter";

iii.  the Respondent State "should not pay reparations to the Applicant";

iv.  the Application should be dismissed as being baseless; and

v.   the costs be borne by the Applicant.

V.      JURISDICTION

17. In accordance with Rule 39(1) of its Rules, “The Court shall conduct preliminary examination of its jurisdiction...”.

A.      Objections to material jurisdiction

18. The Respondent State objects to the Court’s jurisdiction to adjudicate on the matters raised by the Applicant arguing that, in praying the Court to re-examine the matters of fact and law examined by its judicial bodies, set aside their rulings and order the release of the convicted individual, the Applicant is in effect asking the Court to sit as an appellate body, whereas this is not within its powers as set out in Article 3(1) of the Protocol and Rule 26 of the Rules. To this end, the Respondent State makes reference to the Court’s Decision in Application No. 001/2013: Ernest Francis Mtingwi v. Republic of Malawi.

19. The Applicant rebuts the Respondent State's allegation and asserts that the Court shall have jurisdiction as long as there is a violation of the provisions of the Charter or of any other relevant human rights instruments, which bestow on the Court the power to review decisions rendered by domestic courts, review evidence and set aside the sentence and acquit the victim of human rights violations.

***

20.    In response to the objection to its material jurisdiction, this Court reiterates its position as affirmed in Ernest Mtingwi v Republic of Malawi[1] that it is not an appeal court with respect to decisions rendered by national courts. However, as the Court underscored in its Judgment of 20 November 2015 in Alex Thomas v United Republic of Tanzania, and reaffirmed in its Judgment of 3 June, 2016 in Mohamed Abubakari v United Republic of Tanzania, that this situation does not preclude it from examining whether the procedures before national courts are in accordance with international standards set out in the Charter or other applicable human rights instruments to which the Respondent State is a Party.[2] Indeed, this falls within the very scope of the powers of the Court as provided for under Article 3(1) of the Protocol.

21.    Accordingly, the Court dismisses this objection and holds that it has material jurisdiction.

B.      Other aspects of jurisdiction

22. The Court notes that its personal, temporal and territorial jurisdiction has not been contested by the Respondent State, and nothing in the pleadings indicates that the Court lacks jurisdiction. The Court thus holds that:

i.    it has personal jurisdiction given that the Respondent State is a Party to the Protocol and has deposited the Declaration required under Article 34(6) thereof, which enabled the Applicants to access the Court in terms of Article 5(3) of the Protocol;

ii.   it has temporal jurisdiction on the basis that the alleged violations are continuous in nature since the Applicant remains convicted on the basis of what he considers an unfair process;

iii.  it has territorial jurisdiction given that the facts of the matter occurred in the territory of a State Party to the Protocol, that is, the Respondent State.

23. From the foregoing, the Court concludes that it has jurisdiction to hear the instant case.

VI.     ADMISSIBILITY OF THE APPLICATION

24. In terms of Article 6(2) of the Protocol “The Court shall rule on the admissibility of cases taking into account the provisions of Article 56 of the Charter”.

25. Pursuant to Article 39(1) of the Rules, “the Court shall conduct preliminary examination of (…) the admissibility of the application in accordance with articles 50 and 56 of the Charter and Rule 40 of these Rules.”

26. Rule  40 of the Rules, which in substance restates the provisions of  Article 56 of the Charter, provides as follows:

“Pursuant to the provisions of Article 56 of the Charter to which Article 6(2) of the Protocol refers, Applications to the Court shall comply with the following conditions:

1.   Disclose the identity of the Applicant notwithstanding the latter’s request for anonymity;

2.   Comply with the Constitutive Act of the Union and the Charter;

3.   Not contain any disparaging or insulting language;

4.   Not be based exclusively on news disseminated through the mass media;

5.   Be filed after exhausting local remedies, if any, unless it is obvious that the procedure in unduly prolonged;

6.   Be filed within a reasonable time from the date local remedies were exhausted or from the date set by the Court as being the commencement of the time limit within which it shall be seized with the matter; and

7.   Not raise any matter or issues previously settled by the parties in accordance with the principles of the Charter of the United Nations, the Constitutive Act of the African Union, the provisions of the Charter or of any legal instrument of the African Union.”

A.     Conditions of admissibility in contention between the Parties

27. While some of the above conditions are not in contention between the Parties, the Court notes that the Respondent State raised two objections: one relating to the exhaustion of local remedies and the other, regarding the timeframe for filing the Application before the Court.

i.       Objection based on the alleged failure to exhaust local remedies

28. The Respondent State argues that “[t]he exhaustion of domestic remedies is a fundamental principle of international law and that the Applicant should have used all domestic remedies before submitting the case to an international body such as the African Court on Human and Peoples’ Rights”.

29. To buttress its assertions, the Respondent State relies on the African Commission on Human and Peoples’ Rights’ (hereinafter referred to as “the Commission”) jurisprudence in Communication No.  333/20 –SAHRINGON and Others v. Tanzania and Communication No. 275/03, Article 19 v. Eritrea.

30. The Respondent State contends that the alleged violation of the provisions of Articles 1 and 107A(2)(b) of the  Tanzanian Constitution, 1977 should have been challenged in  a constitutional petition[3], as provided by Article 30(3) of the Tanzanian Constitution and in the Basic Rights and Duties Enforcement Act, Revised Edition, 2002.

31. The Respondent State also claims that the right to legal aid is provided under the Legal Aid Act (Criminal Proceedings), Revised Edition, 2002, but the Applicant never requested for it before the domestic courts.

***

32. The Applicant refutes the Respondent State’s assertion that the Application is inadmissible, arguing that he could not file a constitutional petition since the violation had been committed by the Court of Appeal; nor could he file such a petition before a single High Court Judge against a ruling by the highest court in Tanzania made up of a panel of three Judges.

***

33. The Court notes that the Applicant filed an appeal and had access to the highest court of the Respondent State, namely, the Court of Appeal, to adjudicate on the various allegations, especially those relating to violations of the right to a fair trial.

34. Concerning the filing of a constitutional petition for violation of the Applicant’s rights, the Court has already established that this remedy in the Tanzanian judicial system is an extraordinary remedy that the Applicant is not required to exhaust prior to seizing this Court.[4]

35. With regard to the allegation that the Applicant did not raise the issue of legal aid during domestic proceedings but chose to bring it before this Court for the first time, the Court, in accordance with the Judgment rendered in Alex Thomas v. United Republic of Tanzania, is of the view that the violation occurred in the course of the domestic judicial proceedings that led to the Applicant’s conviction and sentence to thirty (30) years’ imprisonment; that the allegation forms part of the “bundle of rights and guarantees” relating to the right to a fair trial which was the basis of the Applicant’s appeals. The domestic judicial authorities thus had ample opportunity to address the allegation even without the Applicant having raised it explicitly. It would therefore be unreasonable to require the Applicant to file a new application before the domestic courts to seek redress for these claims.[5]

36. Accordingly, the Court finds that the Applicant has exhausted the local remedies as envisaged under Article 56(5) of the Charter and Rule 40(5) of the Rules. The Court therefore overrules this preliminary objection to the admissibility of the Application relating to the exhaustion of local remedies.

ii.       Objection on the ground that the Application was not filed within a reasonable time

37. The Respondent State argues that, should the Court find that the Applicant has exhausted domestic remedies, it should still dismiss the Application because it was not filed within a reasonable time after local remedies were exhausted.

38. It further contends that, even though Article 40(6) of the Rules of Court is not specific on the issue of reasonable time, international human rights case-law has established that six months would be a reasonable time limit within which the Applicant should have filed the Application, maintaining that such was the position of the Commission in Communication No. 308/05, Michael Majuru v. Zimbabwe.

39. The Respondent State also maintains that three (3) years and six (6) months had elapsed between the decision of the Court of Appeal of Tanzania (16 February 2012) and the date  this Court was seized (10 October 2015), and that this timeframe  is not reasonable given that the Applicant had no difficulty in filing the Application earlier. 

***

40. The Applicant refutes the Respondent State’s allegations regarding the reasonableness of the timeframe for seizing the Court, arguing that there is no provision in the Rules for assessment of the reasonable time for filing applications before the Court. To this end, he cites the Court’s decision in Application No. 013/2011: Beneficiaries of Late Norbert Zongo and Others v. Burkina Faso, that the Court had established that the “reasonableness of a timeframe of seizure will depend on the particular circumstances of each case and should be determined on a case-by-case basis.”

41.    The Applicant then states that he was awaiting the decision of the Court of Appeal of Tanzania on his application for review of the decision of 16 February 2012, which took a long time.

***

42. The Court observes that the question at issue is whether the time that elapsed between the exhaustion of local remedies and filing of the case before it, is reasonable within the meaning of Rule 40 (6) of the Rules.

43. The Court notes that the ordinary judicial remedies available in the Respondent State were exhausted on 16 February 2012, the date of the Court of Appeal decision and that the Application was filed before the Court on 10 October 2015. Between the Court of Appeal’s decision and the filing of the Application at this Court, three (3) years, seven (7) months and twenty-four (24) days had elapsed.

44. In its Judgment in the Matter of the Beneficiaries of late Norbert Zongo and Others v. Burkina Faso, the Court set out the principle that "... the reasonableness of the timeline for referrals to it depends on the circumstances of each case and must be assessed on case-by-case basis.”[6]

45. The Court notes that the Applicant is lay, indigent and incarcerated person without counsel or legal assistance[7], as well as his attempt to use extraordinary measures, that is, the application for review of the Court of Appeal’s decision[8], and holds that all these constitute sufficient grounds to justify the filing of the Application after three (3) years, seven (7) months and twenty-four (24) days following the Court of Appeal decision.

46. In view of the aforesaid, the Court dismisses this objection to admissibility relating to the filing of the Application within a reasonable time.

B.        Conditions of admissibility that are not in contention between the Parties

47. The conditions regarding the identity of the Applicant, the Application’s compatibility  with the Constitutive Act of the African Union, the language used in the Application, the nature of the evidence, and  the principle that an Application must not raise any matter already  determined in accordance with the principles of the United Nations Charter, the Constitutive Act of the African Union, the provisions of the Charter or of any other legal instruments of the African Union (Sub-Rules 1, 2, 3, 4, and 7 of Rule 40 of the Rules) are not in contention between the Parties.

48. The Court also notes that nothing on the record suggests that these conditions have not been met in the instant case. The Court therefore holds that the requirements under those provisions are fulfilled.

49. In light of the foregoing, the Court finds that the instant Application fulfils all admissibility conditions set out under Article 56 of the Charter and Rule 40 of the Rules, and accordingly, declares the same admissible.

VII.    MERITS

A.  Alleged violations of the right to a fair trial

50. The Applicant alleges two violations, which fall within the ambit of the right to a fair trial, namely: the violation of the Applicant’s right to have his cause heard by a court of law and the violation of the right to legal aid.

i.      The alleged violation of the right to have his cause heard by a court of law

51. The Applicant alleges that the Court of Appeal failed to examine all of his arguments, since it grouped them into three clusters, although each of his grounds of appeal were invoked for different purposes. According to the Applicant, this affected the merits of each of his pleas and consequently  violated  “... his fundamental right to have his cause heard by a court of law, as provided for in Article 3(2) of the Charter”. The Applicant also contends that there should have been a voir dire examination of the witnesses before they were allowed to testify.

52. The Respondent State rebuts the Applicant’s allegation, and submits that all his arguments were duly examined by the Court of Appeal, which held that of the three arguments submitted only the third was relevant, which states that “... the prosecution has not been able to gather evidence beyond reasonable doubt ...” 

***

53. The Court notes that the Applicant’s allegation does not relate to Article 3(2) of the Charter, as he asserts, which provides that “Every individual shall be entitled to equal protection of the law”, but rather to Article 7(1), which stipulates that: “Every individual shall have the right to have his cause heard...”

54. The Court observes that the question that arises here is whether the pleas raised in the appeal were duly examined by the Court of Appeal in conformity with the abovementioned Article 7(1) of the Charter. On this point, the Court has consistently ruled that the examination of particulars of evidence is a matter that should be left for the domestic courts, considering the fact that it is not an appellate court. The Court may, however, evaluate the relevant procedures before the national courts to determine whether they conform to the standards prescribed by the Charter or all other human rights instruments ratified by the State concerned.[9]

55. The Court notes that in the appeal before the Court of Appeal, the Applicant raised two issues, namely: the lack of conclusive evidence on the age of fifteen (15) attributed to the victim and the fact that the crime has not been proven beyond reasonable doubt.

56. The Court notes that the Court of Appeal held that the only important matter was whether the material act of rape (penetration) had been committed by the Applicant, and following examination of the same, it concluded that the Applicant committed the act and confirmed the conviction.

57. The Court notes that the Applicant has not provided sufficient evidence to substantiate his claim as to the age of the victim, and has not demonstrated how the voir dire examination would have impacted the decision to convict him. This Court has held in the past that "…general statements to the effect that a right has been violated are not enough. More substantiation is required".[10]

58. The Court further notes that nothing suggests that the Court of Appeal's assessment of the evidence was manifestly erroneous. Therefore, the Court holds that the alleged violation has not been proven and accordingly dismisses it.

ii.   Alleged violation of the right to legal aid

59. The Applicant submits that “... he was not afforded legal representation, he was deprived of his right to have his cause heard”, which had a prejudicial effect on him and that … “such a position constitutes a violation of his fundamental rights as set forth in Article 7(1)(c) and (d) of the Charter, and also in Articles 1 and 107A(2)(b) of the Tanzanian Constitution.”

60. He challenges the Respondent State’s arguments, admits that he “… never asked for legal aid, and that domestic law provisions on legal aid “… does not provide for a procedure or directives on how to seek legal aid.”

61. The Respondent State refutes the Applicant’s allegations that its domestic law does not provide for a procedure as to how to seek legal aid, and requests proof in that regard. It contends that legal aid is provided in Section 310 of the Tanzanian Criminal Procedure Act, Section 3 of the Legal Aid Act and Rule 31(1) of the Court of Appeal Rules, 2009.

62. It  further contends  that, at any rate, the competent judicial authority applies for legal aid on behalf of the defendant, where required, provided  the following conditions  have been met: the defendant must be  indigent and unable to pay  lawyer’s fees; and  whether  the interests of justice so demand.

63. The Respondent State further prays the Court to take into account the fact that legal aid is progressively being made available and that it is mandatory in cases of murder and homicide. It submits that while legal aid is granted by all its courts, there are however constraints that may impede the mandatory nature of the automatic provision of legal aid in all cases, especially the inadequate number of lawyers to meet this need across the country, as well as the constraint of shortage of financial and other resources.

64. The Respondent State further submits that the right to be represented by a Counsel of one’s choice is guaranteed to all those who can afford it.  As regards legal aid, however, the Respondent avers that it is neither easy nor practical to provide the defendant with a pro bono lawyer of his own choice. It, therefore, prays the Court to take into account the fact that legal aid is not an absolute right and that States exercise their discretionary powers in providing the said aid, depending on their capacity to do so; and this is how the extant legal aid system in the country operates.

65. In conclusion, the Respondent State indicates that the process of review of its legal aid system is ongoing, and that the outcome will be communicated to the Court in due course.

***

66. The Court notes that Article 7(1)(c) of the Charter provides

“Every individual shall have the right to have his cause heard. This comprises:

… c) The right to defence, including the right to be defended by counsel of his choice.”

67. The Court notes that even though this Article guarantees the right to defence, including the right to be assisted by counsel of one’s choice, the Charter does not expressly provide for the right to free legal assistance.

68. However, in its judgment in the Alex Thomas v. United Republic of Tanzania, this Court held that free legal aid is a right intrinsic to the right to a fair trial, particularly, the right to defence guaranteed in Article 7(1)(c) of the Charter. In its previous jurisprudence, the Court also held that an individual charged with a criminal offence is automatically entitled to the right of free legal aid, even if the individual has not requested for it, whenever the interests of justice so require, in particular, if he/she is indigent, if the offence is serious and if the penalty provided by the law is severe.[11]

69. In the instant case, the contention that the Applicant was not afforded free legal aid throughout his trial is not in dispute. Given that the Applicant was convicted of a serious crime, that is, rape, carrying a severe punishment of thirty (30) years, there  is no doubt that the interests of justice would warrant free legal aid provided that the Applicant did not have the means to pay for the services of a   lawyer. In this regard, the Respondent State does not contest the indigence of the Applicant nor does it argue that he was financially capable of hiring Counsel. It is clear in the circumstances that the Applicant should have been provided with free legal aid. The fact that he did not request for it does not exonerate the Respondent State from its responsibility to provide him with free legal aid. 

70. As regards the allegations concerning the margin of discretion that the Respondent State should be given in the implementation of the right to legal aid, the non-absolute nature of the right to legal aid and the lack of financial means to offer legal aid to all persons charged with crimes, the Court holds that these allegations are no longer relevant in this instant case, given that the conditions for the compulsory grant of legal aid are all fulfilled.

71. The Court therefore finds that the Respondent State has violated Articles 7 (1) (c) of the Charter.

B.  Alleged violation of the right to equal protection of the law

72. The Applicant submits that, although he filed his application for review before the Court of Appeal and provided all the materials and evidence to corroborate the same, the application was not scheduled for hearing, whereas other applications filed subsequently were registered, set down for hearing and determined.

73. The Respondent State merely refutes this claim and calls on the Applicant to provide proof thereof.

***

74. The Court notes that the situation described by the Applicant as a violation of his right to equal protection of the law relates to Article 3(2) of the Charter, which stipulates that: “Every individual shall be entitled to equal protection of the law.”

75. However, the Court notes that the Applicant has made general allegations without sufficient evidence to substantiate them. Relying on its jurisprudence cited in paragraph 57 of this Judgment, the Court therefore holds that the alleged violation has not been proven, and accordingly dismisses the same.

VIII.     REMEDIES SOUGHT

76. The Applicant prays the Court to restore justice by setting aside his conviction and sentence; ordering his release from prison; awarding him compensation for the violation of his fundamental rights and, making such other orders as it may deem fit.

77. In its Response, the Respondent State prays the Court to dismiss the Application and the Applicant’s prayers in their entirety on the grounds that they are baseless.

***

78. The Court notes that Article 27(1) of the Protocol stipulates that “If the Court finds that there has been violation of a human or peoples’ right, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation.”

79. In this respect, Rule 63 of the Rules provides that “The Court shall rule on the request for the reparation … by the same decision establishing the violation of a human and peoples’ right or, if the circumstances so require, by a separate decision”.

80. The Court notes its finding in paragraph 69 above that the Respondent State has violated the Applicant’s rights to be provided with legal aid. In this regard, the Court recalls its position on State responsibility in Reverend Christopher R. Mtikila v. United Republic of Tanzania, that "any violation of an international obligation that has caused harm entails the obligation to provide adequate reparation.”[12]

81. As regards the Applicant’s prayer to annul his conviction and sentence and order his release, the Court reiterates its decision that it is not an appellate Court for the reasons that it does not operate within the same judicial system as national courts; and that it does not apply “the same law as the Tanzanian national courts, that is, Tanzanian law”.[13] 

82. The Court also recalls its decision in Alex Thomas v United Republic of Tanzania where it stated that “an order for the Applicant’s release from prison can be made only under very specific and/or, compelling circumstances”[14]. This would be the case, for example, if an Applicant sufficiently demonstrates or the Court itself establishes from its findings that the Applicant’s arrest or conviction is based entirely on arbitrary considerations and his continued imprisonment would occasion a miscarriage of justice. In such circumstances, the Court has pursuant to Article 27 (1) of the Protocol the powers to order “all appropriate measures”, including the release of the Applicant.

83. The Court observes, however, that such a finding does not preclude the Respondent State from adopting such measures should it deem appropriate.

84. The Court further notes that, in the instant case, the Applicant's right to legal aid was violated but this did not affect the outcome of his trial. The Court further notes that the violation it found caused non-pecuniary prejudice to the Applicant who requested adequate compensation therefor in accordance with Article 27(1) of the Protocol.

85. The Court therefore awards the Applicant an amount of three hundred thousand Tanzania Shillings (TZS 300,000) as fair compensation.

IX.       COSTS

86. In its Response, the Respondent prays the Court to rule that the costs of the proceedings be borne by the Applicant.

87. The Applicant has made no specific requests on this issue.

88. The Court notes in this regard that Rule 30 of its Rules provides that “Unless otherwise decided by the Court, each party shall bear its own costs.”

89. In the instant case, the Court decides that the Respondent State shall bear the costs.

X.        OPERATIVE PART

90. For these reasons,

The Court,

Unanimously,

On jurisdiction:

i.    Dismisses the objection to the jurisdiction of the Court;

ii.   Declares that it has jurisdiction.

On admissibility:

iii.  Dismisses the objection to the admissibility of the Application;

iv.  Declares the Application admissible.

On the merits:

v.   Finds that the alleged violation of the Applicant's right to be heard under Article 7(1) has not been established;

vi.  Finds that the alleged violation of the Applicant's right to equal protection of the law, provided for in Article 3(2) of the Charter, has not been established;

vii. Declares that the Respondent State has violated the Applicant’s right to defence under Article 7(1)(c) of the Charter for failure to provide him free legal assistance.

viii.         Dismisses the Applicant's prayer for the Court to annul his conviction and sentence and to order his release from prison;

On Reparations

ix.  Awards the Applicant an amount of Three Hundred Thousand Tanzania Shillings (TZS  300,000) as fair compensation;

x.   Orders the Respondent State to pay the Applicant the said sum and report to the Court thereon within six (6) months from the date of notification of this Judgment; and

By a majority of Six (6) for, and Four (4) against, Justices Ben KIOKO, Ângelo V. MATUSSE, Tujilane R. CHIZUMILA and Stella I. ANUKAM dissenting:

On costs

xi.  Orders the Respondent State to pay the costs.

 

Signed:

Sylvain ORÉ, President;

Ben KIOKO, Vice- President;

Rafaâ BEN ACHOUR, Judge;

Ângelo V. MATUSSE, Judge;

Suzanne MENGUE, Judge;

M-Thérèse MUKAMULISA, Judge;

Tujilane R. CHIZUMILA, Judge;

Chafika BENSAOULA, Judge;

Blaise TCHIKAYA, Judge;

Stella I. ANUKAM, Judge;

and

Robert ENO, Registrar.

 

In accordance with Article 28 (7) and Rule 60 (5) of the Rules, the individual opinion of Justice Rafaâ Ben Achour and the joint dissenting opinion of Justices Ben KIOKO, Ângelo V. MATUSSE, Tujilane R. CHIZUMILA and Stella I. ANUKAM on Costs are attached to this judgement.

Done at Arusha, on this Twenty First Day of September in the year Two Thousand and Eighteen, in English and French, the English version being authoritative.

 


[1] Application No. 001/2013. Decision of 15/3/2013, Ernest Francis Mtingwi v. Republic of Malawi (hereinafter referred to as “Ernest Francis Mtingwi v. Malawi Decision), para. 14.

[2] Application No.005/2013. Judgment of 20/11/2015, Alex Thomas v United Republic of Tanzania (hereinafter referred to as “Alex Thomas v Tanzania Judgment), para. 130 and Application No.007/2013. Judgment of 3/6/2016, Mohamed Abubakari v. United Republic of Tanzania (hereinafter referred to as “Mohamed Abubakari v. Tanzania Judgment”), para. 29.

[3] Petition to the High Court against violations of the fundamental rights and duties provided for in Articles 12 to 29 of the Constitution.

[4] Alex Thomas v. Tanzania Judgment, op. cit., paras. 60 – 62; Mohamed Abubakari v. Tanzania Judgment, op. cit., paras. 66 – 70; Application No.011/2015. Judgment of 28/9/20l7, Christopher Jonas v United Republic of Tanzania (hereinafter referred to as “Christopher Jonas v Tanzania Judgment, para. 44.

[5] Alex Thomas v. Tanzania Judgment, op. cit., pars. 60 – 65.

[6] Application No. 013/2011. Ruling on preliminaries objections of 21/06/2013, Beneficiaries of late Zongo and Others v. Burkina Faso, para. 121. See also Application No. 005/2013, Alex Thomas v. Tanzania Judgment, op. cit., para. 73; Application No. 007/2013, Judgment of 3/6/2013, Mohamed Abubakari v. Tanzania Judgment, op. cit., para. 91; Application No. 011/2015.  Christopher Jonas v Tanzania Judgment, op. cit., para. 52.

[7] Alex Thomas v. Tanzania Judgment, op. cit., para. 74

[8] Application No. 006/2015. Judgment of 23/3/2018, Nguza Viking (Babu Seya) and Johnson Nguza (Papi Kocha) v. Tanzania, para. 61.

[9] Ernest Francis Mtingwi v. Tanzania Decision, op. cit. para. 14; Alex Thomas v. Tanzania Judgment, op. cit. para 130; Mohamed Abubakari v. Tanzania Judgment, op. cit., paras 25 and 26, Application No. 032/2015. Kijiji Isiaga v. United Republic of Tanzania, Application No. 032/2015. Judgment, 21/3/2018 (hereinafter referred to as “Kijiji Isiaga v Tanzania Judgment”) para. 63.

[10] Alex Thomas v. Tanzania Judgment, op cit., para. 140

[11] Ibid. para. 123, see also Mohamed Abubakari v. Tanzania Judgment, op. cit., paras. 138 and 139.

[12] Application No. 011/2011. Ruling of 13/6/2014, Reverend Christopher R. Mtikila v. United Republic of Tanzania, op. cit., para. 27.

[13] Mohamed Abubakari v Tanzania Judgment Ibid, para. 28.

[14] Alex Thomas v. Tanzania Judgment, op. cit., para. 157.


Dissenting Opinion of Justices Ben KIOKO, Ângelo V. MATUSSE, Tujilane R. CHIZUMILA and Stella I. ANUKAM


1.           We agree substantially with the findings of the majority on the merits of this Application but there is one particular issue relating to costs under paragraph 89 of the judgment where we differ in our position from the majority. In the said paragraph, on the issue of costs, the majority has decided that “the Respondent State shall bear the costs”. In our considered opinion, this decision of the majority requiring the Respondent State to bear all the costs in the instant case is not correct for the reasons we outline below.

2.           At the outset, we wish to point out that international human rights litigation is mostly but not exclusively between an individual and a State and due to the nature of the proceedings and the unequal capacity of the Parties, it is not always the rule that the loser party bears costs, which may be the norm in other forms of litigation. In particular, in circumstances where the loser party is the individual, he or she shall not in principle be penalized for exercising his/her right to be heard by being required to bear the entire costs of the litigation.

3.           The only exception to this principle would be if the State sufficiently demonstrates that the individual abused his/her rights or acted in bad faith by filing frivolous claims while having been fully aware/ knowing that he was not entitled to make such claims. Even when the bad faith of the individual is sufficiently vindicated, the financial capacity of the individual and the amount of costs that the State incurred should guide the determination of whether the former shall bear the costs. It therefore rests on the discretion of a Court to assess and identify, having regard to the specific contexts of each case, the party which shall incur the costs.

4.           In the instant case, it is evident from the facts on record that the Respondent State has prayed the Court to order that the Applicant shall bear the costs. However, the Applicant has neither prayed for costs nor did he provide any supporting documents showing expenses in relation to his Application, if any.

5.           On the other hand, the Court  has, in our view rightly, found that the Respondent State has violated the right to defence of the Applicant by failing to provide him legal assistance during his trial contrary to Article 7 (1) (c) of the Charter (See paragraph 71 of the Judgment).  From this finding, it is clear that the Respondent State is the losing party and in accordance with the general default principle, that a losing party meets the costs of the suit, it would ordinarily be the case that it shall be the Respondent State to bear the costs.

6.           However, Rule 30 of the Rules provides that “Unless otherwise decided by the Court, each party shall bear its own costs”. According to this rule, the default principle for the Court is thus that each party bears its cost unless the Court decides otherwise.  In the past, the Court has applied this rule on many occasions and held in majority of cases that each party covers its own costs, even where the Respondent State was found to be in breach of the Charter and other relevant human rights instruments. This has been the case also where neither of the Parties has filed submissions on costs.[1] This reinforces the fact that costs are not damages for the violations of human rights as such but a compensation or reimbursement of expenses incurred by the a party for the litigation.

7.           The opinion of the majority in the instant case is therefore a clear departure from the Court’s established position. While we do not have problems with this shift in approach, we nevertheless believe that the departure should have been necessitated by some cogent reasons or, at the minimum, supported by adequate justification, which the majority did not provide. Regrettably in another judgment, in the Matter of Dicoles William v. United Republic of Tanzania, delivered on the same day with similar facts relating to costs, the Court contradicted itself by deciding that each party shall bear its own costs, In spite of the fact that in that matter, as in the instant Application, the Applicant neither claimed  costs nor provided any supporting documentation, and only the Respondent State prayed the Court to order the Applicant to bear the costs, the majority in this case agreed that each party bears its own costs.[2]  

8.           Consequently, we are of the view that the position of the Court in the instant case reveals an unjustified inconsistency in its decisions with respect to similar cases that the Court has concluded so far.   

9.           Furthermore, according to the established jurisprudence of other human rights courts, a party is entitled to a refund of costs and expenses only in so far as it is demonstrated that such costs or expenses have been actually and necessarily incurred and are reasonable as to quantum.[3] This requires that the applicant should substantiate his claims with evidence showing that he incurred the said costs or expenses and were indeed necessary for pursuing his Application.

10.         This is not the case in the instant Application. As we indicated earlier, the Applicant has not made any submissions or prayed for costs, or provided documents indicating that he incurred any costs. While ordering the Respondent State to bear the costs, the majority also did not specify or reckon the necessary and reasonable costs that the Respondent State is expected to bear. Nor did the Court, as it has done in some other cases[4], indicate in the instant case that it will in a future separate proceeding, determine the exact amount of  such costs that the Applicant is entitled to get reimbursement. It is thus not clear what the majority envisaged as costs that should be borne by the Respondent State, since the Applicant is self-represented and the Court does not charge any fees.

11.         We therefore conclude that the majority should, for purpose of maintaining consistency, have followed the Court’s established position that, in the absence of submissions or claims on costs from one or both parties, each party shall bear its own costs. Alternatively, the majority should have provided reasons to justify their departure from the court’s established position.

 

Signed: 

Ben KIOKO, Vice- President;

Ângelo V. MATUSSE, Judge;

Tujilane R. CHIZUMILA, Judge;

Stella I. ANUKAM, Judge;

 

Done at Arusha, on this Twenty First Day of September in the year Two Thousand and Eighteen, in English and French, the English version being authoritative.

 


[1] See Application No. 010/2015. Judgment 11/05/ 2018. Amiri Ramadhani v. United Republic of Tanzania, para. 90, Application No 046/2016, Judgment of 11/05/2018. APDF & IHRDA v Republic of Mali, para. 134, Application No. 011/2015, judgment 28/09/2017. Christopher Jonas v. United Republic of Tanzania, para. 98, Application No. 032/2015 – Kijiji Isiaga v. United Republic of Tanzania. Judgment of 21/03/2018 para. 101

[2] Application No. 016/2016. Judgment of 21/09/2018. Diocles William v United Republic of Tanzania, paras. 107-110

[3] Applications nos. 68762/14 and 71200/14. Judgment of 20/09/2018. Case of Aliyev v. Azerbaijan, para. 236, Series C No. 352. Judgment of 13/03/2018, Case of Carvajal Carvajal et al. v. Colombia. Merits, Reparations and Costs. Inter-American Court of Human Rights, para. 230

[4] In some previous cases, the Court has deferred the issue of costs to a later stage to consider it together with other forms of reparations. See Application  No. 012/2015. Judgment of 22 /03/2018. Anudo Ochieng Anudo v. United Republic of Tanzania, para. 131

Author
Judgment date
Case number
Application 16 of 2016
Court name
African Court
Judge
Orè P
Kioko VP
Ben Achour J
Matusse J
Mengue J
Mukamulisa J
Chizumila J
Bensaoula J
Search summary

THE MATTER OF

DIOCLES WILLIAM

V.

UNITED REPUBLIC OF TANZANIA

APPLICATION NO. 016/2016

 

JUDGMENT

21 SEPTEMBER 2018


TABLE OF CONTENTS

TABLE OF CONTENTS.. i

I.     THE PARTIES.. 2

II.    SUBJECT OF THE APPLICATION.. 2

A.    Facts of the Matter 2

B.    Alleged violations. 3

III.       SUMMARY OF THE PROCEDURE BEFORE THE COURT. 4

IV.       PRAYERS OF THE PARTIES.. 5

V.    JURISDICTION.. 6

A.    Objections to material jurisdiction. 6

B.    Other aspects of jurisdiction. 8

VI.       ADMISSIBILITY OF THE APPLICATION.. 8

A.    Conditions of admissibility in contention between the Parties. 9

i.      Objection based on the alleged failure to exhaust local remedies. 9

ii.     Objection based on the ground that the Application was not filed within a reasonable time  11

B.    Conditions of admissibility not in contention between the Parties. 13

VII.      MERITS.. 13

A.    Alleged violations of the right to a fair trial 13

i.      Allegation that defence witnesses were not heard. 14

ii.     Allegations of insufficient evidence and inconsistencies in witness statements. 16

iii.    Alleged violation of the right to legal aid. 19

B.    Alleged violation of Article 13(2) and (5) of the Constitution of Tanzania. 21

VIII.     REMEDIES SOUGHT. 23

IX.       COSTS.. 25

X.    OPERATIVE PART. 25


The Court composed of: Sylvain ORÉ, President; Ben KIOKO, Vice-President; Rafaâ BEN ACHOUR, Ângelo V. MATUSSE, Suzanne MENGUE, M-Thérèse MUKAMULISA, Tujilane R. CHIZUMILA and Chafika BENSAOULA, Blaise TCHIKAYA, Stella I. ANUKAM, Judges; and Robert ENO, Registrar.

In accordance with Article 22 of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights and Rule 8(2) of the Rules of Court (hereinafter referred to as "the Rules"), Justice Imani D. ABOUD, member of the Court and a national of Tanzania, did not hear the Application.

In the Matter of:

Diocles WILLIAM,

Self- represented

versus

UNITED REPUBLIC OF TANZANIA,

represented by:

i.    Ms. Sarah D. MWAIPOPO, Director,  Division of Constitutional Affairs and Human Rights, Attorney General's Chambers;

ii.   Mr. Baraka LUVANDA, Ambassador, Head of the Legal Unit, Ministry of Foreign Affairs, East African, Regional and International Cooperation;

iii.  Ms. Nkasaori SARAKIKYA, Assistant Director, Human Rights; Principal State Attorney, Attorney General’s Chambers;

iv.  Ms. Venosa MKWIZU, Principal State Attorney, Attorney General's Chambers;

v.   Mr. Abubakar MRIHSA, Senior State Attorney, Attorney General's Chambers;

vi.  Mr. Elisha E. SUKA, Foreign Service Officer, Ministry of Foreign Affairs, East African, Regional and International Cooperation;

After deliberation,

delivers the following Judgment:

I.          THE PARTIES

1.      The Applicant, Mr. Diocles William, is a national of the United Republic of Tanzania, convicted of raping a twelve (12) year old minor and sentenced to 30-years’ imprisonment.

2.      The Respondent State, the United Republic of Tanzania, became a Party to the African Charter on Human and Peoples’ Rights (hereinafter referred to as “the Charter”) on 21 October 1986, and also to the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (hereinafter referred to as “the Protocol”) on 10 February, 2006. Furthermore, the Respondent State deposited the declaration prescribed under Article 34(6) of the Protocol on 29 March 2010.

II.         SUBJECT OF THE APPLICATION

A.  Facts of the Matter

3.      The record before the Court indicates that on 11 July 2010, at around 16:00 hours, at Mbale Village, Missenyi District in Kagera Region, the Applicant who was twenty-two (22) years old at the time, allegedly raped a minor aged twelve (12) years.

4.      In Criminal Case No. 42/2010 before the Resident Magistrate Court of Bukoba, the Applicant was found guilty and sentenced on 4 August 2010 to thirty (30) years imprisonment and twelve (12) strokes of the cane for the rape of a minor of twelve (12) years of age, under Sections 130(2)(e) and 131(2) (a) of the Tanzanian Penal Code(Revised Edition 2002) as amended by the Sexual Offences Special Provisions Act 1998 (hereinafter referred to as the “Tanzanian Penal Code”).

5.      The Applicant filed an appeal in  Criminal Case No. 23/2011 against the judgment before the High Court of Tanzania at Bukoba (hereinafter referred to as the “High Court”), contesting the credibility of the prosecution witnesses, the consistency of the testimonies and the administration of the corporal punishment; but the appeal was dismissed on 29 May 2014.  

6.      Aggrieved by the High Court’s decision to dismiss his appeal, the Applicant lodged an appeal before the Court of Appeal of Tanzania at Bukoba (hereinafter referred to as the “Court of Appeal”) in Criminal Appeal No. 225/2014; which was dismissed the appeal on 24 February 2015 as being baseless.

B.  Alleged violations

7.      The Applicant alleges that he was deprived of his fundamental right to have his cause heard in a court of law, in violation of Section 231(4) of the Tanzania Criminal Procedure Act, Revised Edition, 2002, and Article 7(1)(c) of the Charter.

8.      The Applicant further alleges that Section 130(2)(e), and Section 131(2)(a) of the Tanzanian Penal Code, are clearly in breach of  Article 13(2) and (5) of the Constitution of Tanzania 1977.

9.      In his Reply, the Applicant also alleges the violation of his right to legal aid.

III.        SUMMARY OF THE PROCEDURE BEFORE THE COURT

10.    The Application filed on 8 March 2016 and served on the Respondent State by a notice dated 20 April 2016, inviting the latter to submit a list of its representatives within thirty (30) days, and its Response to the Application within sixty (60) days of receipt of the notice, in accordance with Rules 35(2) (a) and 35(4)(a) of the Rules of Court. The Applicant’s prayer for legal aid before this Court was not granted.

11.    On 10 June 2016, following its failure to file its Response, the Registry notified the Respondent State of the Court’s decision, proprio motu, to extend by 30 days the time for the Respondent State to file its Response.

12.    On the same date, the Application was transmitted to the Executive Council of the African Union and to the State Parties to the Protocol, through the Chairperson of the African Union Commission in accordance with Rule 35(3) of the Rules.

13.    On 9 August 2016, the Respondent State filed its Response, explaining that the delay in doing so had been due to the fact that it needed to collect information from the various entities involved in the proceedings.

14.    The Registry transmitted the Respondent State’s Response to the Applicant on 17 August 2016, enjoining the latter to file its Reply within thirty (30) days of receipt thereof. 

15.    The Applicant submitted his Reply on 22 September 2016, and this was served on the Respondent State by a notice dated 4 October 2016.

16.    At its 43rd Ordinary Session held from 31 October to 18 November 2016, the Court decided to close the written procedure.

17.    On 26 January 2017, the Registry notified the Parties of the closure of the written procedure as from 14 November 2016.

18.    On 6 April 2018, the Parties were informed that the Court would not hold a public hearing and indicated that written submissions and the evidence on file are sufficient to determine the matter.

IV.       PRAYERS OF THE PARTIES

19.    The Applicant prays the Court to:

i.      admit his Application and review all the proceedings in the Respondent State’s courts, including the issue of Constitutional petition[1] raised in the Application;

ii.     quash the conviction and order his release from prison;

iii.    issue such  other order(s) or relief(s) as it may deem fit in the circumstances;

iv.    provide him with free legal assistance in accordance with Rule 31 of the Rules and Article 10(2) of the Protocol.

20.    The Respondent State prays the Court to declare that:

i.      it lacks jurisdiction to hear the case;

ii.     the Application does not meet the admissibility conditions  set out in Rule 40 (5) and (6) of the Rules;

iii.    the Application is inadmissible.

21.    The  Respondent State also prays the Court to :

i.      declare that it has not violated the Applicant's rights under Articles 2, 3(2)  and 7(1)(c) of the Charter;

ii.     dismiss the Applicant’s prayers;

iii.    declare that the Applicant should continue to serve the sentence;

iv.    reject the Application for lack of merit;

v.     order that the costs are to borne by the Applicant.

22.    In his Reply, the Applicant also prays the Court to dismiss the objections to its jurisdiction and reject the contention of the Respondent State contention on the merits of the case.

V.        JURISDICTION

23.    Pursuant to Rule 39(1) of its Rules: “The Court shall conduct preliminary examination of its jurisdiction...”

A.  Objections to material jurisdiction

24.    The Respondent State alleges that the Applicant’s prayer that the Court should  review the evidence adduced before and reviewed by its courts up to the highest judicial level  amounts to asking the Court to act as an appellate jurisdiction, which the Respondent State maintains, is not within the purview of the Court.

25.    The Respondent State also claims that the Court’s mandate is only limited to interpreting and applying the Charter and other relevant human rights instruments in accordance with Article 3(1) of the Protocol, Rules 26 and 40(2) of the Rules, mirroring its own decision in Application No. 001/2013: Ernest Francis Mtingwi v. Republic of Malawi.

26.    The Respondent State further submits that it is the first time that the Applicant raises the issue of alleged violation of Article 13(2) and (5) of the Constitution; Section 130(2) and Section 131(2) of the Tanzanian Penal Code, as well as the violation of Article 7(1)(c) of the Charter concerning legal aid. It maintains that by failing to raise these issues before the domestic courts, the Applicant would be asking this Court to act as a court of first instance, for which it lacks jurisdiction. The Respondent State emphasises that the Court is not a court of first instance to deal with the question of unconstitutionality.

***

27.    The Applicant refutes the Respondent State’s argument that the Court lacks jurisdiction, maintaining that it has jurisdiction over an Application whenever there is a violation of the Charter and other relevant human rights instruments. Therefore, the Court is empowered to review decisions rendered by domestic courts, assess the evidence, and set aside the sentence and acquit the victim, as was the case in its decision in Application No. 005/2013 - Alex Thomas v. United Republic of Tanzania.

***

28.    On the first objection of the Respondent State that the Court is being asked to act as an appellate court, this Court reiterates its position in Ernest Mtingwi v. Republic of Malawi[2] that it is not an appeal court with respect to decisions rendered by national courts. However, this does not preclude the Court from examining whether the procedures before national courts are in accordance with international standards set out in the Charter or other applicable human rights instruments to which the Respondent State is a Party[3]. In the instant case, this Court has jurisdiction to determine whether the domestic courts’ proceedings with respect to the Applicant’s criminal charges that form the basis of his Application before this Court, have been  conducted in accordance with the international standards set out in the Charter.

29.    Furthermore, concerning  the allegation that the Application calls for the Court to sit as a court of first instance, the Court notes that since the Application alleges violations of the provisions of the human rights international instruments to which the Respondent State is a Party, it has material jurisdiction by virtue of  Article 3(1) of the Protocol, which provides that the jurisdiction of the Court “shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned."

30.    Consequently, the Court dismisses the Respondent State's objection that the Applicant is requesting the Court to act as an appellate court and as a court of first instance; and holds that it has material jurisdiction to hear the matter.

B.  Other aspects of jurisdiction

31.    The Court notes that its personal, temporal and territorial jurisdiction has not been contested by the Respondent State; and nothing in the pleadings indicate that the Court does not have jurisdiction. The Court thus holds that:

i.      it has personal jurisdiction given that the Respondent State is a Party to the Protocol and has deposited the Declaration required under Article 34(6) thereof, which enabled the Applicant to access the Court in terms of Article 5(3) of the Protocol;

ii.     it has temporal jurisdiction in as much as  the alleged violations are continuous in nature, since the Applicant remains convicted on the basis of what he considers an unfair process;

iii.    it has territorial jurisdiction given that the facts of the matter occurred in the territory of a State Party to the Protocol, namely, the Respondent State.

32.    In view of the foregoing, the Court declares that it has jurisdiction to hear the instant case.

VI.       ADMISSIBILITY OF THE APPLICATION

33.     In terms of Article 6(2) of the Protocol, “the Court shall rule on the admissibility of cases taking into account the provisions of Article 56 of the Charter”.

34.     Pursuant to Rule 39(1) of its Rules, “the Court shall undertake a preliminary examination of (…) the admissibility of the Application in accordance with both Article 50 and Article 56 of the Charter and Rule 40 of the Rules”.

35.     Rule 40 of the Rules, which in essence restates Article 56 of the Charter, provides as follows:

“Pursuant to the provisions of Article 56 of the Charter to which Article 6(2) of the Protocol refers, Applications to the Court shall comply with the following conditions:

1.     disclose the identity of the Applicant notwithstanding the latter’s request for anonymity;

2.     comply with the Constitutive Act of the Union and the Charter;

3.     not contain any disparaging or insulting language;

4.     not be based exclusively on news disseminated through the mass media;

5.     be filed after exhausting local remedies, if any, unless it is obvious that the procedure in unduly prolonged;

6.     be filed within a reasonable time from the date local remedies were exhausted or from the date set by the Court as being the commencement of the time limit within which it shall be seized with the matter; and

7.    not raise any matter or issues previously settled by the parties in accordance with the principles of the Charter of the United Nations, the Constitutive Act of the African Union, the provisions of the Charter or of any legal instrument of the African Union.”

A.  Conditions of admissibility in contention between the Parties

36.     The Respondent State raised objections in relation to the exhaustion of local remedies and as to whether the application was filed within a reasonable time.

i.    Objection based on the alleged failure to exhaust local remedies

37.     The Respondent State contests the  admissibility of the Application on the grounds that the Applicant cannot plead before this Court the violation of his right to a fair trial under Article 13(6)(a) of the Tanzanian Constitution and 7(1)(c) of the Charter, as he has failed to exhaust  available  local remedies within its jurisdiction, especially that of filing a constitutional petition, as provided by Article 30(3) of the Tanzanian Constitution and in the Basic Rights and Duties Enforcement Act, as revised in 2002.

38.     In this regard, citing the jurisprudence of the Commission[4], the Respondent State alleges that the Applicant failed to comply with Rule 40(5) of the Rules arguing that at no time was the issue of legal aid raised at the domestic courts, notwithstanding the fact that both Section 3 of Criminal Procedure Act and Rule 31 of the 2009 Rules of Procedure of the Court of Appeal provides for legal aid.

***

39.     The Applicant refutes the objection of the Respondent State to the admissibility of his Application on the grounds that he did not lodge a constitutional petition for he was not obliged to exhaust this remedy.

40.     Concerning the question of legal aid, the Applicant contends that, pursuant to the provisions of Section 3 of the Criminal Procedure Act and Rule 31 of the Rules of Procedure of the Court of Appeal, the only condition required for an accused to be afforded legal aid is when, in the interests of justice, the judicial authorities deem it desirable to provide such legal aid.

***

41.     The Court notes that the Applicant filed an appeal and had access to the highest court of the Respondent State, namely, the Court of Appeal, for determination of the various allegations, especially those relating to violation of the right to a fair trial.

42.     Concerning the filing of a constitutional petition for violation of the Applicant’s rights, the Court has repeatedly stated that this remedy in the Tanzanian judicial system is an extraordinary remedy that the Applicant is not required to exhaust prior to seizing this Court[5].

43.     With regard to the allegation that the Applicant did not raise the  legal aid issue during domestic proceedings but chose to bring it before this Court for the first time, the Court, in line with its Judgment in Alex Thomas v. United Republic of Tanzania, takes the view  that this complaint forms part of the “bundle of rights and guarantees” enshrined in  the appeal procedures at domestic level which upheld the guilty verdict against the Applicant and the sentence to thirty (30) years’ imprisonment. The Court stresses that legal aid forms part of the “bundle of rights and guarantees” in respect of the right to a fair trial, which is the basis and substance of the Applicant’s appeal. The domestic judicial authorities thus had ample opportunity to address that allegation even without the Applicant having raised it explicitly. It would therefore be unreasonable to require the Applicant to file a new application before the domestic courts to seek redress for these complaints.[6]

44.     Accordingly, the Court finds that the Applicant has exhausted local remedies as envisaged in Article 56(5) of the Charter and Rule 40(5) of the Rules. The Court therefore overrules this objection to the admissibility of the Application.

ii.     Objection based on the ground that the Application was not filed within a reasonable time

45.     The Respondent State argues that, should the Court take the view that the Applicant has exhausted local remedies, the fact would still remain that he did not file his Application within a reasonable time from the date the domestic remedies were exhausted.

46.     The Respondent State further asserts that even if Rule 40(6) of the Rules is not specific on what constitutes a reasonable time, international human rights jurisprudence has established that six (6) months is considered a reasonable time, invoking in particular the decision in respect of Communication No. 308/05, in Michael Majuru v. Zimbabwe, wherein the Commission is claimed to have applied that timeframe.

47.     The Respondent State argues that eleven (11) months elapsed between  the decision of the Court of Appeal (24 February 2015) and the date the Court was seized (8 March 2016), thus exceeding the period of six (6) months that is considered reasonable, whereas nothing prevented the Applicant from filing his Application  earlier.

48.     In his Reply, the Applicant refutes the Respondent State’s submission that the deadline for filing an appeal before the Court is six months after exhaustion of local remedies, claiming that reasonableness of a deadline depends on the circumstances of each case. In this regard, the Applicant quotes the Court's ruling in Application 013/2011 – Beneficiaries of Late Norbert Zongo and Others v Burkina Faso.

***

49.     The Court is of the opinion that the question that arises at this juncture is whether the period that elapsed between the exhaustion of local remedies and the time within which the Applicant seized the Court, is reasonable within the meaning of Rule 40(6) of the Rules.

50.     The Court notes that local remedies were exhausted on 24 February 2015, the date of the Court of Appeal's decision, and that the Application was filed at the Registry on 8 March 2016. One (1) year and thirteen (13) days had elapsed between the Court of Appeal decision and the filing of the Application with the Registry of the Court.

51.     In the matter of the Beneficiaries of late Norbert Zongo and Others v. Burkina Faso, the Court established the principle that "... the reasonableness of the timeline for referrals to it depends on the circumstances of each case and must be assessed on case-by-case basis.”[7]

52.     The Court notes that, in the instant case, the Applicant is a layman in matters of law, indigent and incarcerated without the benefit of legal counsel or legal assistance.[8] The Court holds that these circumstances sufficiently justify the filing of the Application one (1) year and thirteen (13) days after the Court of Appeal decision.

53.     In view of the aforesaid, the Court dismisses the objection to admissibility that the Application was not filed within a reasonable time.

B.  Conditions of admissibility not in contention between the Parties

54.    The Court notes that the conditions regarding the identity of the Applicant, the language used in the Application, the nature of the evidence and the non bis in idem principle as set out in sub Rules 1, 2, 3, 4 and 7 of Rule 40 of the Rules, are not in contention between the parties.

55.    The Court also notes that nothing in the pleadings submitted to it by the Parties suggests that any of the above requirements has not been met in the instant case. Consequently, the Court holds that the requirements under consideration have been fully met in the instant case.

56.    In light of the foregoing, the Court finds that the instant Application fulfils all admissibility requirements in terms of Article 56 of the Charter and Rule 40 of the Rules, and accordingly declares the same admissible.

VII.      MERITS

A.  Alleged violations of the right to a fair trial

57.    The Applicant alleges the violations of his right to a fair trial, namely: (i) the failure to hear his witnesses, (ii) the fact that the conviction was based on insufficient evidence and conflicting statements of the prosecution witnesses, and the lack of access to legal aid.

i.       Allegation that defence witnesses were not heard

58.    The Applicant alleges that the trial court refused to order the attendance of his witnesses for examination. He claims, as a result, that he has been deprived of his fundamental right to have his cause heard in violation of Section 231(4) of the Criminal Procedure Act and Article 7(1) (c) of the Charter.

59.    He also refutes the Respondent State’s claim that the absence of his witnesses was due to his own negligence, adding that he was under arrest and the authorities did nothing to bring the witnesses in question before the court. Further, the Applicant stresses that he was not informed by the authorities that he could benefit from their assistance in producing his witnesses, prior to his decision to give up on calling witnesses.

***

60.    The Respondent State reiterates that the Applicant never invoked this violation before the domestic courts, notwithstanding the fact that the domestic laws provide for such right and the Applicant had, on two occasions, requested that the hearing be postponed due to the absence of his witnesses; and in the end decided to let the trial proceed without obtaining the appearance of his witnesses.

***

61.    The Court notes that Article 7(1)(c) of the Charter states that:

“Every individual shall have the right to have his cause heard.  This comprises:

c) the right to defence…”

62.    The right to effective defence includes, inter alia, the right to call witnesses for the defence.[9] The question arises as to whether obtaining the attendance of witnesses before the Court is the sole responsibility of the accused or whether the competent authorities of the Respondent State also have the responsibility to ensure the presence of the witnesses whom the authorities intend to hear.

63.    The Court notes that in all proceedings, more specifically, in criminal matters, a court seized of a case must hear both the prosecution as well as the defence witnesses. If it does not do so, it must provide the grounds for its decision. In this regard, the Court observes Section 231(4) of Criminal Procedure Act of the Respondent State contains provisions which allow national courts to take measures to ensure the appearance of defence witnesses where the absence of such witnesses is not due to the fault of the accused and that where the witnesses appear, there is the likelihood that they would adduce evidence in his favour.[10]

64.    In the instant case, it emerges from the file that the Applicant called witnesses on three (3) occasions without success, and in the end, he gave up on getting them to appear[11]. However, he claims before this Court that the reason why he gave up on calling his witnesses was because the judicial authorities did not inform him that they could assist him to obtain their appearance.

65.    The Court is of the opinion that even if the Applicant has given up on calling his witnesses, the fact remains that witnesses did not cease to be necessary in the course of the trial proceedings to ensure equality of arms. However, this being the  case, the reasons as to why the trial court decided not to take the appropriate measures to hear the Applicant's witnesses are not provided anywhere in the record of the proceedings.

66.    The Court is of the view that it was necessary for the Respondent State’s judicial authorities to be more proactive, in particular, in ascertaining whether the Applicant no longer intended to call his witnesses either because he did not actually want them to appear on his behalf or because he did not have the means to obtain their attendance.   It was also desirable on the part of the Respondent State's judicial authorities to provide, suo motu, sufficient information in this regard to the accused, where he is indigent, in detention and without legal aid.

67.    The Court therefore holds from the foregoing that the Respondent State has violated the Applicant’s right to defence under Article 7(1)(c) of the Charter by failing to ensure the appearance of his witnesses.

ii.   Allegations of insufficient evidence and inconsistencies in witness statements

68.    The Applicant submits that the evidence presented at the trial court and relied upon to convict him was based only on the victim’s (PW4) testimony, who claimed she was at home playing with a friend (PW5) and that the Applicant went to PW2’s house (the victim's mother) and told her to follow him to his house where he promised to give her one hundred Tanzania Shillings (TZS 100); that halfway to his house, the Applicant took her to a thicket where he raped her and threatened to stab and beat her with a stick if she told anyone what happened.

69.    The Applicant denies having committed such a crime, affirming that on the day in question, he was at the house of the victim's mother (PW2), together with three friends to consume alcohol (“pombe” also known as “Gongo”)  at around 6:00 pm to 7:00 pm. He then amended his initial statement and said that they had arrived at PW2’s house at around 3:45 pm, 45 minutes after they had left their own houses.

70.    He disputes the Respondent State’s claims regarding examination of evidence, and prays the Court to re-examine the evidence, taking into account the doubts he has raised over the statements of the Respondent State’s Attorney.

***

71.    The Respondent State refutes the Applicant’s claims and describes the steps that were followed during proceedings at its various courts until the final determination, wherein the Resident Magistrate’s Court of Bukoba[12], the High Court of Tanzania[13], and the Court of Appeal[14], all concluded that the Applicant had committed the offence in question.

***

72.    The Court notes that in criminal proceedings the conviction of individuals for a crime should be established with certitude. In this regard, the Court has in the past held "....that a fair trial requires that the imposition of a sentence in a criminal offence, and in particular a heavy prison sentence, should be based on strong and credible evidence. That is the purport of the right to the presumption of innocence also enshrined in Article 7 of the Charter.”[15]

73.    In the instant case, the Court notes that, as stated in the record of the proceedings, the Applicant was charged and convicted essentially on the basis of information provided by the victim (PW4), corroborated by the testimonies of her family members, especially her mother (PW2), the victim's friend (PW5), the mother of her friend and the victim’s aunt (PW1), who recounted what the victim herself had told them. The victim's friend (PW5) is the only eyewitness who allegedly saw the events first hand, and partially witnessed some of the facts affirming that the victim was taken away by the Applicant while she was playing with her.

74.    The Court also notes the fact that the items of clothing worn by the victim at the time of the rape were not presented as evidence before the domestic judicial authorities and the prosecuting authorities merely stated that their production was deemed to be irrelevant.

75.    Furthermore, the Court notes that the absence of information in the record of proceedings concerning the steps taken to obtain clarifications on whether the victim's mother sells alcoholic beverages and, if so, determine the trading hours of the business; and whether the Applicant was drinking in her presence on the material day, as she claims, and up to what time; and cross-check this information with the version given by the victim who claims  that no adults were at home at the time; the reasons as to why no blood was drawn from the Applicant for testing to confirm whether or not  the bodily fluids of the rapist found in the victim's private parts or on her clothing matched the Applicant’s DNA (deoxyribonucleic acid) disclose patent anomalies in the domestic proceedings.

76.    The Court is of the view that the medical report should not be limited to only confirming the occurrence of rape, but should also ascertain whether the offence had been committed by the Applicant, since the victim was taken for medical examination when she was still wearing the same clothes about one hour after the offence was committed (between 4:00 p.m. and 5:00 p.m.). In the instant case, there is no mention that the Respondent State has any technical constraints in that respect, and as such due diligence would have required the DNA testing to clear any doubt as to who committed the offence.

77.    The Court recalls its position in the matter of Mohamed Abubakari v. United Republic of Tanzania[16], where it emphasised the need to obtain clarification on issues or situations likely to impact the decision of the judges. In the instant case, the Court's understanding is that even if it is accepted that, in offences of sexual nature, the main testimony is given by the victim, as the Respondent State’s prosecuting authorities claim, in the specific circumstances of the case, wherein there are signs of contradiction between the statements given by the witnesses, all of whom are relatives of the victim, especially the fact that the accused was not assisted by counsel, it would have been desirable for the prosecuting authorities to exercise greater effort in terms of due diligence to corroborate the victim's statements and clarify the circumstances of the crime.

78.    In view of the aforesaid, the Court accordingly considers that the Applicant's right to a fair trial provided for in Article 7 of the Charter has been violated, as the victim's and Prosecution witnesses’ statements were not corroborated, and the circumstances of the crime were not clarified.

iii.  Alleged violation of the right to legal aid

79.    The question of legal aid was not raised expressly in the Application. However, in his Reply, the Applicant refutes the Respondent State’s arguments regarding legal aid, claiming that the only established procedure in Section 3 of the Legal Aid Act is that the judicial authorities order the provision of legal aid where such aid is deemed justified if the interests of justice so demand.

***

80.    The Respondent State contends that at all stages of the proceedings before its judicial authorities, the Applicant never requested for legal aid, nor did he make any such request to the various Non-Governmental Organizations (NGOs) that provide such assistance; and never declared his indigent status in order to qualify for the same.

81.    The Respondent State submits that legal aid is mandatory for those accused of manslaughter and murder, and does not require an express request by the accused. It, however, further submits that legal aid is not an absolute right and that States exercise the margin of appreciation in granting such aid within the limits of their capacity; and this is how the current legal aid regime operates in the country. It states also that, with respect to the Court itself, Rule 31 of the Rules makes provision for legal assistance only within the limits of available financial resources.

82.    In conclusion, the Respondent State indicates that, in any event, the process of reviewing its legal aid system was ongoing, and the outcome would be communicated to the Court in due course.

***

83.    The Court notes that Article 7(1) (c) of the Charter stipulates

 “Every individual shall have the right to have his cause heard. This comprises:

… c) The right to defence, including the right to be defended by counsel of his choice.”

84.    The Court observes that even though Article 7(1)(c) of the Charter guarantees the right to defence, including the right to be assisted by counsel of one’s choice,  the Charter does not expressly provide for the right to free legal assistance.

85.    However, in its Judgment in the Matter of Alex Thomas v. The United Republic of Tanzania, this Court stated that free legal aid is a right intrinsic to the right to a fair trial, particularly, the right to defence guaranteed by Article 7(1)(c) of the Charter.[17] In its previous jurisprudence, the Court also held that an individual charged with a criminal offence is automatically entitled to the right of free legal aid, even without the individual having to request for the same, where the interests of justice so require, and in particular, if he is indigent, if the offence is serious and if the penalty provided by the law is severe.[18]

86.    In the instant case, it is not in dispute that the Applicant was not afforded free legal aid throughout his trial. Given that the Applicant was convicted of a serious crime, that is, rape, which carries a severe punishment of thirty (30) years, there  is no doubt that the interests of justice would warrant free legal aid where  the Applicant did not have the means to engage his own legal counsel. In this regard, the Respondent State does not contest the indigence of the Applicant nor does it argue that he was financially capable of getting a legal counsel. In these circumstances, it is evident that the Applicant should have been afforded free legal aid. The fact that he did not request for it does not exonerate the Respondent State from its responsibility to offer free legal aid. 

87.    As regards the allegations of the Respondent State relating to the margin of discretion that should be available to States in the implementation of the right to legal aid, its non-absolute nature and the lack of financial capacity, the Court is of the opinion that the allegations are no longer relevant in this case, given that the conditions for the mandatory provision of legal aid have all been met. Accordingly, the Court holds that the Respondent State has violated Article 7(1)(c) of the Charter.

B.  Alleged violation of Article 13(2) and (5) of the Constitution of Tanzania

88.    The Applicant contends that Sections 130(2) (e) and 131(2)(a) of the Tanzanian Penal Code dealing with Offences against Morality that formed the basis for his conviction clearly violate Article 13(2) and (5) of the Tanzanian Constitution.

89.  The Respondent State contests this allegation by arguing that the acts committed by the Applicant fall under the definition of the crime of rape, as per the sentence of the trial court, which was upheld by the two appellate courts.

***

90.    The Court observes that it is not mandated to assess the constitutionality of a specific national legislation. However, this does not prevent the Court from examining the compatibility of a particular domestic legislation with international human rights standards established by the Charter and any other international human rights instruments ratified by the Respondent State.[19]

91.    In the instant case, the Applicant alleges that Sections 130(2) (e) and 131(2)(a) of the Tanzanian Penal Code[20] breach Articles 13(2) and (5) of the Tanzanian Constitution, which enshrines the right to equality and equal protection of the law essentially in the same terms as Article 3 of the Charter.[21] It is thus incumbent upon this Court to ascertain whether such sections of the Penal Code contravene Article 3 of the Charter, which states that “Every individual shall be equal before the law [and] …the right to equal protection of the law”.

92.    The Court notes that Sections 130 (2) (e) and 131 (2) (a) of the Penal Code define the material scope of the offence of rape in the Respondent State with the penalty its commission entails. The Court also observes from the file that the national Courts convicted and sentenced the Applicant on the basis of these provisions in accordance with established domestic procedures and there is nothing manifestly erroneous in the process.

93.    For the Court, the Applicant’s contention that the said sections of the Penal Code contravene the constitution is a mere general allegation which remains unproven. In this vein, the Court recalls its established jurisprudence that “general statements to the effect that a right has been violated are not enough. More substantiation is required”.[22] 

94.    In view of the foregoing, the Court holds that the Respondent has not violated the Applicant’s right to equality and equal protection of the law under Article 3 of Charter. 

VIII.     REMEDIES SOUGHT

95.    The Applicant prays the Court to restore justice; quash his conviction and the sentence meted out to him; order that he be released and take such other measures as it may deem appropriate.

96.    In its Response, the Respondent State prays the Court to dismiss  the Application and the Applicant’s prayers in their  entirety, as being unfounded

***

97.    Article 27(1) of the Protocol stipulates that: “If the Court finds that there has been violation of a human or peoples’ rights, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation.”

98.    In this respect, Rule 63 of the Rules provides that “The Court shall rule on the request for the reparation … by the same decision establishing the violation of a human and peoples’ right or, if the circumstances so require, by a separate decision.”

99.    The Court notes its finding in paragraphs 67, 78 and 87 above that the Respondent State violated the Applicant's rights to a fair trial due to (i) the fact that he was not afforded legal aid; (ii) his witnesses were not heard; and that his conviction was based on insufficient evidence and contradictory statements of the Prosecution witnesses. In this regard, the Court recalls its position on State responsibility in Reverend Christopher R. Mtikila v. United Republic of Tanzania, that "any violation of an international obligation that has caused harm entails the obligation to provide adequate reparation.”[23]

100. As regards the Applicant’s prayer to quash his conviction and sentence and directly order his release, the Court reiterates its decision that it is not an appellate Court for the reasons that it does not operate within the same judicial system as national courts; and that it does not apply “the same law as the Tanzanian national courts, that is, Tanzanian law”. [24]

101. The Court also recalls its decision in Alex Thomas v Tanzania where it stated that “an order for the Applicant’s release from prison can be made only under very specific and/or, compelling circumstances”[25]. This would be the case, for example, if an Applicant sufficiently demonstrates or the Court itself establishes from its findings that the Applicant’s arrest or conviction is based entirely on arbitrary considerations and his continued imprisonment would occasion a miscarriage of justice. In such circumstances, the Court has pursuant to Article 27 (1) of the Protocol to order “all appropriate measures”, including the release of the Applicant.

102. In this regard, the Court refers to the jurisprudence of the European Court of Human Rights and the Inter-American Court of Human Rights.  In their case law, both Courts, considering the nature of the violations established and in order to assist states to comply with their human rights obligations, have exceptionally requested Respondent States to ensure the release of individuals with respect to some specific violations where no other options are available to remedy or to put an end to the violations.[26]

103. In the instant case, the Court observes that the Respondent has violated the Applicant’s right to a fair trial contrary to Article 7(1) of the Charter by failing to afford him legal aid, denying his witnesses to be heard and convicting him in the face of insufficient and contradictory statements of the prosecution witnesses.

104. The Court considers that in spite of the fact that it has found these violations of the Charter, according to the record before the Court and taking into account the nature and scope of the violations and the nature of the offence, it cannot in this instant case order the Respondent State to release the Applicant from prison.

105. In order to ensure fair and adequate reparations for the violations, the Court finds that the violations affected the right to a fair trial guaranteed in the Charter. Consequently, the trial of the Applicant should be reopened taking into consideration the guarantees of a fair trial pursuant to the Charter and international human rights standards, including the Applicant’s right to defence.

106. The Court, lastly, notes that the Parties did not request or file submissions regarding other forms of reparation.  

IX.       COSTS

107.   The Respondent State prays the Court to rule that the costs be borne by the Applicant.

108.   The Applicant has not made any specific request on this issue.

109.   In terms of Rule 30 of the Rules:  “Unless otherwise decided by the Court, each party shall bear its own costs.”

110.   In the instant case, the Court decides that each Party shall bear its own costs.

X.        OPERATIVE PART

111.   For these reasons,

THE COURT,

unanimously,

On jurisdiction

i.    Dismisses the objection to jurisdiction of the Court.

ii.   Declares that it has jurisdiction.

On admissibility

iii.  Dismisses the objection  to the admissibility of the Application;

iv.  Declares that the Application is admissible.

On the merits

v.   Finds that the alleged violation of Applicant’s right to equal protection before the law provided for in Article 3 of the Charter, the content of which is similar to Article 13 (2) and (5) of the Tanzanian Constitution has not been established;

vi.  Finds that the Respondent State has violated Article 7(1)(c) of the Charter by failing to provide the Applicant with legal aid;  

vii. Finds that the Respondent State has  violated Article 7(1)(c) of the Charter by failing to hear the Applicant’s defence witnesses;

viii.      Finds that the Respondent State has violated Article 7 of the Charter by convicting the Applicant on the basis of insufficient evidence and contradictory statements of the prosecution witnesses;

ix.  Dismisses  the Applicant's prayer for the Court to quash his conviction and sentence;

x.   Dismisses Applicant's prayer for the court to directly order his release from prison;  

xi.  Orders the Respondent State to reopen the case within six (6) months in conformity with the guarantees of a fair trial pursuant to the Charter and other relevant international human rights instruments and conclude the trial within a reasonable time and, in any case, not exceeding two (2) years from the date of notification of this judgment.

xii. Orders the Respondent State to report on the implementation of this judgment within a period of two (2) years from the date of notification of this judgment.

On costs

xiii.      Decides that each Party shall bear its own costs.

 

Signed:

Sylvain ORÉ, President;

Ben KIOKO, Vice-President;

Rafaâ BEN ACHOUR, Judge;

Ângelo V. MATUSSE, Judge;

Suzanne MENGUE, Judge;

M-Thérèse MUKAMULISA, Judge;

Tujilane R. CHIZUMILA, Judge;

Chafika BENSAOULA, Judge;

Blaise TCHIKAYA, Judge;

Stella I. ANUKAM, Judge;

and Robert ENO, Registrar.

 

Done at Arusha, this Twenty First day of September in the year Two Thousand and Eighteen, in English and French, the English version being authoritative.

 


[1] Petition to the High Court against violations of the fundamental rights and duties provided for in Articles 12 to 29 of the Tanzanian Constitution.

[2] Application No. 001/2013. Decision of 15/3/2013, Ernest Francis Mtingwi v. Republic of Malawi, para. 14.

[3] Application No. 005/2013. Judgment of 20/11/2015, Alex Thomas v. United Republic of Tanzania (hereinafter referred to as “Alex Thomas v. Tanzania Judgment”), para. 130 and Application No. 007/2013. Judgment of 3/6/2016, Mohamed Abubakari v. United Republic of Tanzania (hereinafter referred to as “Mohamed Abubakari v. Tanzania Judgment”), para. 29. Application No. 032/2015. Kijiji Isiaga v Tanzania, paras 34 and 35.

[4] African Commission on Human and Peoples’ Rights Communication 263/02 - Kenyan Section of the International Commission of Jurists, Law Society of Kenya and Kituo Cha Sheria Kenya.

[5] Alex Thomas v. Tanzania Judgment, op. cit., paras. 60 – 62; Mohamed Abubakari v. Tanzania Judgment, op. cit., paras. 66 – 70; Application No. 011/2015. Judgment of 28/9/20l7, Christopher Jonas v United Republic of Tanzania, para. 44.

[6] Alex Thomas v. Tanzania Judgment, op. cit., paras. 60 – 65.

[7] Application No. 013/2011. Ruling on preliminaries objections of 21/06/2013, Beneficiaries of late Nobert Zongo and Others v. Burkina Faso, para. 121. See also Application No. 005/2013, Alex Thomas v. Tanzania Judgment, op. cit., para. 73; Application No. 007/2013, Judgment of 3/6/2013, Mohamed Abubakari v. Tanzania Judgment, op. cit., para. 91; Application No. 011/2015.  Christopher Jonas v Tanzania Judgment, op. cit., para. 52.

[8] Alex Thomas v. Tanzania Judgment, op. cit., 74 

[9] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa approved by the African Commission on Human and Peoples’ Rights (2003) – 6) Rights during a trial: “f) The accused has a right to examine, or have examined, witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her.”

[10] Section 231 (4) of the Criminal Procedure Act provides as follows: “If the accused person states that he has witnesses to call but that they are not present in Court, and the Court is satisfied that the absence of such witnesses is not due to any faults or neglect of the accused person and that there is likelihood that they could, if present, give material evidence on behalf of the accused person, the Court may adjourn the trial and issue process or take other steps to compel attendance of such witness.”

[11] At the hearing of 24 November 2010 before Resident Magistrate Court of Bukoba, the Applicant declared: “I have failed to get my witness. I am no longer intending to call them. I am closing my defence case”. See page 23 of the document attached to Criminal appeal No. 225/2014 before the Court of Appeal.

[12] Criminal case No. 42 of 2010, Judgment of 8/12/2010:   “27. The Court of Appeal also considered the Applicants defense in its Judgment at para 5, lines 11 – 15 and from pages 10-11 of its Judgment and concluded as follows: “We find no reason for interfering with the finding of the first appellant Court that it was the appellant who committed the offence of rape.”

[13] Criminal Appeal No. 23 of 2011, Judgment of 29/5/2014: “26. The High Court Judgement also considered the Applicant’s defense from pages 4 - line 6 and concluded at page 9, line 13 by stating:

“His defense did not raise any doubt against the prosecution case.”

[14] Criminal Appeal No. 225 of 2014, Judgment of 24/2/2014:  “24. The Court of Appeal then considered whether it was the Applicant who committed the offence and stated at page 10 of its Judgement: “The other issue is whether it was the penis of the appellant which penetrated the vagina of the complainant’ and held as follows at page 11 “We find no reason for interfering with the findings of the first appellant court that it was the appellant who committed the offence of rape.”.

[15] Mohamed Aboubakari v. Tanzania Judgment, op. cit., para. 174.

[16] Mohamed Abubakari v Tanzania Judgment, paras. 110 and 111. See also Application No. 006/2015, Judgment of 23/3/2018, Nguza Viking (Babua Seya) and Johnson Nguza (Papi Kocha), paras. 105 – 107.

[17] Alex Thomas v. Tanzania Judgment, op. cit., para. 114.

[18] Ibid, para. 123. See also Mohamed Abubakari v Tanzania Judgment, op. cit., paras. 138 and 139.

[19] See para. 29 of this judgment.

[20] Section 130(2) (e) of the Penal Code provides that “A male person commits the offence of rape if he has sexual intercourse with a girl or a woman under circumstances falling under any of the following descriptions:

 (e) being a religious leader takes advantage of his position and commits rape on a girl or woman. Section 131(2)(a) of the same stipulates that “Notwithstanding the provisions of any law, where the offence is committed by a boy who is of the age of eighteen years or less, he shall: if a first offender, be sentenced to corporal punishment only;”

[21]Article 13(3)(5) of the Tanzanian Constitution provides that “All persons are equal before the law and are entitled, without any discrimination, to protection and equality before the law. For the purposes of this Article the expression “discriminate” means to satisfy the needs, rights or other requirements of different persons on the basis of their nationality, tribe, place of origin, political opinion, colour, religion or station in life such that certain categories of people are regarded as weak or inferior and are subjected to restrictions or conditions whereas persons of other categories are treated differently or are accorded opportunities or advantage outside the specified conditions or the prescribed necessary qualification.”

[22] Alex Thomas Judgment v. Tanzania Judgment, op. cit., para.140.

[23] Application No. 011/2011. Judgment of 13/6/2014; Reverend Christopher R. Mtikila v. United Republic of Tanzania, para. 27.

[24] Mohamed Abubakari v. Tanzania Judgment, op. cit., para. 28.

[25] Alex Thomas v. Tanzania judgment, op. cit., para. 157

[26] Del Rio Prada v. Spain , European Court of Human Rights, Judgment of 10 July 2012, para.139, Assanidze v. Georgia [GC] - 71503/01. Judgment 8 April 2004, para. 204. Case of Loayza-Tamayo v. Peru, Inter-American Court of Human Rights, Judgment of September 17, 1997, para. 84

Author
Judgment date
Case number
Application 20 of 2016
Court name
African Court
Judge
Orè P
Kioko VP
Ben Achour J
Matusse J
Mengue J
Mukamulisa J
Chizumila J
Bensaoula J
Search summary

THE MATTER OF

ANACLET PAULO

V.

UNITED REPUBLIC OF TANZANIA

APPLICATION No. 020/2016

 

JUDGMENT

21 SEPTEMBER 2018


Table of Contents

Table of Contents. i

I.     THE PARTIES.. 2

II.    SUBJECT OF THE APPLICATION.. 2

A.        Facts of the Matter 2

B.        Alleged Violations. 3

III.    SUMMARY OF THE PROCEDURE BEFORE THIS COURT. 4

IV.   PRAYERS OF THE PARTIES.. 5

V.    JURISDICTION.. 6

A.        Objection on material jurisdiction. 6

B.        Other Aspects of jurisdiction. 8

VI.     ADMISSIBILITY OF THE APPLICATION.. 9

A.        Conditions of admissibility in contention between the Parties. 10

i.      Objection based on failure to exhaust the local remedies. 10

ii.     Objection based on failure to file the Application within a reasonable time. 12

B.        Conditions of admissibility not in contention between the Parties. 14

VII.    MERITS.. 14

A.        Alleged violation of the right to liberty. 14

B.        Alleged violation of the right to equal protection of the law and equality before the Law.. 17

C.       Alleged violation of the right to a fair trial 18

i.         Alleged violation of the right to defence. 18

ii.         Alleged failure to provide legal aid. 21

iii.   Allegation that the 30 years prison sentence is not provided by law.. 22

VIII.     REPARATION.. 23

IX.       COSTS.. 25

X.    OPERATIVE PART. 25


The Court composed of: Sylvain ORÉ, President; Ben KIOKO, Vice-President; Rafaâ BEN ACHOUR, Ângelo V. MATUSSE, Suzanne MENGUE, M-Thérèse MUKAMULISA, Tujilane R. CHIZUMILA, Chafika BENSAOULA, Blaise TCHIKAYA and Stella I. ANUKAM, Judges; and Robert ENO, Registrar,

In accordance with Article 22 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (hereinafter referred to as “the Protocol”) and Rule 8(2) of the Rules of Court (hereinafter referred to as “the Rules”), Judge Imani D. ABOUD, member of the Court and a national of Tanzania did not hear the Application.

 

In the Matter of:

Anaclet PAULO

self-represented

versus

UNITED REPUBLIC OF TANZANIA

represented by

i.    Ms Sarah D. MWAIPOPO, Director of Constitutional Affairs and Human Rights;

ii.   Ms Nkasori SARAKIKYA, Deputy Director, Human Rights, Principal State Attorney,  Attorney General’s Chambers;

iii.  Mr. Baraka LUVANDA, Ambassador, Director of the Legal Unit, Ministry of Foreign Affairs, International, Regional and East African Cooperation;

iv.  Mr. Richard KILANGA, Senior State Attorney, Division of Constitutional Affairs and Human Rights,  Attorney General’s Chambers;

v.   Mr. Elisha SUKA, Foreign Service Officer, Ministry of Foreign Affairs International, Regional and East Africa Cooperation,

after deliberation,

delivers the following Judgment:

I.          THE PARTIES

1.      The Applicant, Mr. Anaclet Paulo, is a citizen of the United Republic of Tanzania, who at the time of filing this Application was serving a thirty (30) years prison term at the Butimba Central Prison in Mwanza, Tanzania.

2.      The Respondent State is the United Republic of Tanzania which became a Party to the African Charter on Human and Peoples’ Rights (hereinafter referred to as “the Charter”) on 21 October 1986 and to the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment an African Court on Human and Peoples’ Rights on 10 February 2006. It deposited the Declaration prescribed under Article 34(6) of the Protocol on 29 March 2010.

II.         SUBJECT OF THE APPLICATION

A.  Facts of the Matter

3.      The file record indicates that on the night of 28 July 1997, four individuals forced their way into the home of a certain Benjamin Mhaya Simon, in the village of Izingo Nshamba; and after tying up the latter and his wife, they made away with a sum of Eight Hundred Thousand Tanzania Shillings (TZS 800,000), a radio cassette player, five trousers, two wrist watches and three pairs of loin cloth.

4.      On the same night, the Applicant and three other individuals were arrested by the Police and charged with the offence of armed robbery with violence. By Judgment of the Muleba District Court delivered on 27 November 1997, three of the accused, including the Applicant,   were found guilty and each sentenced to a term of thirty (30) years imprisonment.

5.      The Applicant lodged an appeal before the High Court of Mwanza and on 6 June 2003, the High Court held a public hearing in the absence of the Applicant and without the original case file.  In a Judgment rendered on 17 June 2003, the High Court dismissed the Appeal, and upheld the Judgment of the District Court.  The Applicant was notified of the High Court’s Judgment on 4 February 2005.

6.      On 5 February 2005, the Applicant and his two co-accused filed an appeal before the Court of Appeal of Tanzania sitting at Mwanza. On 28 January 2008, the Registry of the Court of Appeal notified them that their application for appeal had never been received.  On 27 February 2008, the Applicants and the co-accused sought an extension of time from the High Court so as to file their appeal before the Court of Appeal of Tanzania.   

7.      On 29 September 2009, the High Court dismissed the request for extension of time on the basis that the grounds invoked for seeking the extension were irrelevant and that the deadline for appeal had long elapsed.

8.      Dissatisfied with the decision dismissing their Application for extension of time to file the appeal, on 18 November 2009, the Applicant and his co-accused, brought the matter before the Court of Appeal in Criminal Appeal No. 120/2012, an appeal dismissed by the Court of Appeal in a Judgment dated 5 August 2013.

B.  Alleged Violations

9.      The Applicant alleges that:

i.          He was denied bail pending his trial, and this, he claims is unjust and in contravention of  the Tanzanian Constitution and  his right to personal  freedom, equality before the law and equal protection of the law  as guaranteed by the African Charter on Human and Peoples’ Rights;

ii.         His conviction and sentence to 30 years in prison was based on a crime which did not exist at the time of the alleged facts;

iii.        He was not afforded  the right to be heard, as  he was not  present at the proceedings at the High Court and the Court of Appeal;

iv.        The proceedings before the High Court and the Court of Appeal were flawed because they were conducted without the original record of the proceedings  in  Criminal Case No. 123 of 1997 before the District Court of Muleba;

v.         He was denied the right to be represented by Counsel before the High Court and the Court of Appeal, contrary to Article 7(1)(c) of the Charter.

10.    Relying on the foregoing allegations, the Applicant submits in conclusion that the judgments of the Respondent State’s courts were in violation of Articles 13(6)(a) and 18(a) of the Constitution of the United Republic of Tanzania as well as Articles 2, 3(1) and (2), 6, 7(1)(a) and (c), and 7(2), 9(1) and 9(2)  of the Charter.

III.        SUMMARY OF THE PROCEDURE BEFORE THIS COURT

11.    The Application was filed on 5 April 2016 and was served on the Respondent State on 10 May 2016.

12.    On 3 June 2016, the Respondent State transmitted to the Registry the names and addresses of its representatives and filed its Response on 12 July 2016. The Response was transmitted to the Applicant on 9 August 2016 to which he filed his Reply on 15 September 2016.

13.    On 10 June 2016, pursuant to Rule 35(2) and (3) of the Rules of Court the Registry transmitted the Application to the Chairperson of the African Union Commission and through him, to the State Parties to the Protocol. On the same day, the Application was communicated to the African Commission on Human and Peoples’ Rights.

14.    On 18 January 2017, the Registry informed the Parties that the written phase of the procedure had come to a close and that the matter has been set down for deliberation.

15.    By a letter dated 6 November 2017 received at the Registry on 8 November 2017, the Applicant informed the Court that his prison term would come to an end on 26 November 2017and submitted his new address to the Court.

16.    On 27 June 2018, the Registry requested the Applicant to submit supporting documents for his claim for reparation, but no response has been received as at the time of this Judgment.

17.    By a letter dated 11 September 2018, the Officer-in-charge of Butimba Central Prison, informed the Court of the Applicant’s release on 25 December 2017.

IV.       PRAYERS OF THE PARTIES

18.    In his Application and his Reply to the Respondent State’s Response to the Application, the  Applicant prays the Court to:

"

(i)         intervene in his favour in regard to the violation of the Constitution and his fundamental rights by the courts of the Respondent State;   

(ii)        Grant him reparations pursuant to Article 27(1) of the Protocol and Rule 34(5) of the Rules;

(iii)       issue such other order(s) or relief(s) as it deems necessary based on the circumstances of the case”.

(iv)       facilitate his access to legal aid pursuant to Article 10(2) of the Protocol and Rule 31 of the Rules.

(v)        declare that it has jurisdiction to hear the matter;  

(vi)       declare that his Application is well founded;  and

(vii)      call on the Respondent State to bear the costs.”

19.    In its Response, the Respondent State prays the Court to:

"

(i) declare that it lacks jurisdiction to hear the matter;

(ii) find that the Application does not meet the admissibility conditions set out in Rule 40(5) and (6) of the Rules of Court, and to dismiss the said Application;

(iii) find that the Respondent State did not violate the rights of the Applicant under Articles 2, 3(1), 3(2), 6, 7(1)(a) and (c), 7(2) of the Charter;

(iv) declare that the Application is unfounded;

(v) dismiss the Applicant’s  prayer for reparation;

(vi) hold the Applicant liable to bear the cost”.

V.       JURISDICTION

20.    In terms of Rule 39(1) of the Rules, “the Court shall conduct preliminary examination of its jurisdiction and the admissibility of the Application…”

A.  Objection on material jurisdiction

21.    The Respondent State raises an objection to the jurisdiction of the Court, citing Article 3(1) of the Protocol which provides that: “The jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned”. The Respondent State also invokes Rule 26(1)(a) of the Rules of Court which restates the provisions of Article 3(1) of the Protocol.

22.    The Respondent State contends that, in the instant Application, and contrary to the above-mentioned provision, the Applicant seems to pray this Court to act as a Court of First Instance and to adjudicate allegations which the Applicant never raised before domestic courts.  The Respondent State notes that, before the domestic courts, the Applicant had not raised the issues which he was bringing up  for the first time before this Court, in particular:

i. denying  him bail pending  his trial;

ii. application of a penalty based on a crime that was non-existent at the time the incident took place;

iii.  the denial  of his right to be assisted by Counsel before the High Court and the Court of Appeal;

iv.  the conduct of proceedings before the High Court and the Court of Appeal in the absence of the Applicant and without the originals of the record of proceedings on the appeal file.”

23. The Respondent State submits, in conclusion, that the Court lacks jurisdiction to hear this Application.

24. The Applicant refutes the Respondent State’s argument, stating that since the Court is empowered to deal with issues of human rights violation in the interest of justice and equity, it is also empowered to examine his Application regardless of its shortcomings and whether or not the issues raised before the Court had been brought before domestic courts. 

  * * *

25. The Court recalls its long-standing jurisprudence in the matter and reaffirms that its material jurisdiction is established if the Application brought before it raises allegations of violation of human rights; and that it suffices on this issue that the subject of the Application relates to the rights guaranteed by the Charter or any other relevant human rights instrument ratified by the States concerned.[1]

26. In the instant case, the Court notes that the Application invokes violation of the human rights protected by the Charter and other human rights instruments ratified by the Respondent State.

27. Consequently, the Court dismisses the Respondent State’s objection and finds that it has material jurisdiction to hear the case.

B.  Other Aspects of jurisdiction

28. The Court notes that the personal, temporal and territorial aspects of jurisdiction have not been challenged by the Respondent State. Furthermore, there is nothing in the record indicating that it lacks personal, temporal and territorial jurisdiction. 

29. The Court therefore finds that:

i.    it has personal jurisdiction given that the Respondent State is a Party to the Protocol and has deposited the declaration prescribed under Article 34(6) thereof,  allowing individuals to institute  cases directly before it, in accordance with  Article 5(3) of the Protocol;

ii.   it has temporal jurisdiction since the alleged violations are continuous, given that the Applicant remains  sentenced on the basis of what he considers as  irregularities[2] ;

iii.  it has territorial jurisdiction because the facts took place in the territory of a State Party to the Protocol, that is, the Respondent State.

30. In view of the above considerations, the Court holds in conclusion that it has jurisdiction to hear the instant case.

VI.       ADMISSIBILITY OF THE APPLICATION

31. In terms of Article 6(2) of the Protocol, “the Court shall rule on the admissibility of cases taking into account the provisions of Article 56 of the Charter”.

32. According to Rule 39(1) of its Rules, “the Court shall conduct preliminary examination of … the admissibility of the Application in accordance with Articles 50 and 56 of the Charter, and Rule 40 of these Rules”.

33. Pursuant to Rule 40 of the Rules which in substance restates the content of Article 56 of the Charter, “ ....applications to the court shall comply with the following conditions: 

1.   disclose the identity of the Applicant, notwithstanding the latter’s request for anonymity;

2.   comply with the Constitutive Act of the Union and the Charter;

3.   not contain any disparaging or insulting language;

4.   not be based exclusively on news disseminated through the mass media;

5.   be filed after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged;

6.   be filed within a reasonable time from the date local remedies were exhausted or from the date set by the Court as being the commencement of the time-limit within which it shall be seized with the matter; and

7.   not raise any matter or issues previously settled by the parties in accordance with the principles of the Charter of the United Nations, the Constitutive Act of the African Union, the provisions of the Charter or of any legal instrument of the African Union”.

34. The Court notes that, with regard to the admissibility of the Application, the Respondent State raises two preliminary objections concerning exhaustion of local remedies and the deadline for seizure of the Court.​

​​​​​​A.  Conditions of admissibility in contention between the Parties

i.    Objection based on failure to exhaust the local remedies

35. The Respondent State contends that the Applicant raises before this Court allegations of violation of his rights, which were never brought before the domestic courts.  The Respondent State  further avers that the said  rights mentioned  by the Applicant as having been violated are guaranteed and protected by the Tanzanian Constitution in its Articles 13 and 15, as summarised hereunder:

i. equality before the law and equal protection of the law - Article 13(1) and (2);

ii. the right to a fair hearing and the right to appeal - Article 13(6)(a); 

iii. prohibition of sanctions for acts which do not constitute a crime at the time of its commission - Article 13(6)(c); 

iv. the right to individual freedom - Article 15. 

36. The Respondent State contends that, pursuant to Article 30 of its Constitution, anyone claiming that his fundamental rights are violated shall have the right to seek redress before the domestic courts.  It   further argues   that the Applicant should have exercised this remedy before seizing the African Court.

37. The Respondent State also invokes Section 9 of The Basic Rights and Duties Enforcement Act, and contends that the Applicant had the possibility of filing a constitutional petition before the High Court of Tanzania after he was sentenced by the District Court or after the judgment of the High Court.

38. The Respondent State finally submits that the Applicant, having not exercised the aforesaid remedies available at the domestic level, has not met the conditions set forth in Rule 40(5) of the Rules of Court, and therefore his Application must be dismissed for failure to exhaust the local remedies.

39. In reply, the Applicant submits that he is a layman in legal matters and that he was not provided with legal aid to enable him better understand the issues of law and procedure before the domestic courts. However, he prays the Court to take into account his appeals before the High Court and the Court of Appeal, find that he has exhausted the local remedies and declare his Application admissible.

* * *

40. The Court notes that, after the District Court Judgment, the Applicant lodged an appeal before the High Court and, subsequently, before the Court of Appeal challenging both the issues of evidence and application of the sentence by the Judges, thus giving the afore-said courts the possibility to adjudicate the different allegations of violation relevant to his trial.

41. The Court notes also that the violations alleged by the Applicant form part of “a bundle of rights and guarantees” which relate to his appeal in the “domestic procedures” that resulted in his being found guilty and sentenced to thirty (30) years prison term.  These issues in the instant case are part of “a bundle of the rights and guarantees” relating to the right to a fair trial which were the basis of the Applicant’s appeal before the High Court and the Court of Appeal.[3]

42. Given the above findings, the Court holds that the domestic courts had ample opportunity to address the Applicant’s allegations even without him having raised them explicitly. The Court notes that it has already in several cases brought before it decided that when alleged violations of the right to a fair trial form part of the  Applicant’s pleadings before domestic courts,  the Applicant is not required to have raised them separately to show proof of exhaustion of local remedies.[4]

43. Regarding the constitutional petition, the Court has already determined that this remedy in the Tanzanian judicial system is an extra-ordinary remedy which Applicants are not required to exhaust before seizing this Court.[5]

44. Consequently, the Court dismisses the Respondent State’s objection to the admissibility of the Application for failure to exhaust the local remedies.

ii.   Objection based on failure to file the Application within a reasonable time

45. The Respondent State contends that the Applicant did not file his Application within a reasonable time as prescribed by Rule 40(6) of the Rules. Citing the Commission’s jurisprudence in Communication No. 308/05: Michael Majuru v. Zimbabwe before the African Commission on Human and Peoples’ Rights, the Respondent State argues that international jurisprudence considers reasonable time as being 6 months.  Consequently, since the Applicant filed his Application two (2) years and eight (8) months  after the Court of Appeal of Tanzania’s Judgment of 5 August 2013, this Court has to consider this time frame as unreasonable and declare the Application inadmissible.

46. The Applicant refutes the Respondent State’s argument and contends that despite the fact that he is a lay man in matters of law, he was not afforded legal representation before the domestic courts, and it was therefore impossible for him to have an idea as to the existence of this Court and of issues of procedure and deadlines. In conclusion, he prays the Court to admit and hear his Application by virtue of the powers conferred on it.

* * *

47. The Court reaffirms that Article 56(6) of the Charter, like Rule 40(6) of the Rules, does not lay down any specific timeframe for seizure.[6]  The Rules of Court simply stipulate that cases must   be filed “within a reasonable time from the date local remedies were exhausted or from the date set by the Court as being the commencement of the time limit within which it shall be seized with the matter.”

48. The Court notes, in the instant case, that between the date of  exhaustion of the last local remedy, that is, the Applicant’s appeal before the Court of Appeal which delivered its  judgement on 5 August 2013 and  seizure  of this Court on 5 April 2016, a period of two (2) years and eight (8) months had elapsed.

49. The Court recalls its jurisprudence to the effect that to assess the reasonableness of the timeframe for seizure, the Court takes into account the particular circumstances of each case and determines the issue on a case-by-case basis.[7] In its Judgment of 28 September 2017: Christopher Jonas v. United Republic of Tanzania, the Court noted that “the fact that the Applicant was incarcerated, is indigent, did not have the benefit of free assistance of a lawyer throughout the proceedings at national level, his being an illiterate and his being unaware of the existence of the Court due to its relatively recent establishment - are all circumstances that can work in favour of some measure of flexibility in determining the reasonableness of the time frame for seizure of the Court.”[8]

50. From the record of the instant case, it is inferred that the Applicant is in a situation similar to the one described above because he was self-represented and could not afford the services of a Counsel. The Court further notes that the Applicant, having been in detention since 1997 right up to the date of seizure, he might not have been aware of the existence of this Court. From the foregoing observation, the Court holds in conclusion that the two (2) years and eight (8) months within which it was seized is reasonable in terms of Article 56(6) of the Charter.

51. Consequently, the Court dismisses the Respondent State’s inadmissibility objection based on failure to file the Application within a reasonable time.

B.  Conditions of admissibility not in contention between the Parties

52. The Court notes that the conditions regarding the identity of the Applicant,  compatibility of the Application with the Constitutive Act of the African Union,  the language used in the Application,  the nature of the evidence and  the principle that the Application should not concern a matter or issues  previously settled by the Parties in accordance with  the principles of the Charter of the United Nations, the Constitutive Act of the African Union, the provisions of the Charter or of any legal instrument of the African Union (sub-rules  1, 2, 3, 4 and 7 of Rule 40 of the Rules), are not in contention  between the Parties.

53. The Court further notes that nothing on the record submitted by the Parties shows that any of these conditions has not been met in the instant case.  Consequently, the Court finds that the conditions set out above have been fulfilled.

54. In view of the foregoing, the Court holds in conclusion that this Application meets all the admissibility conditions contemplated in Articles 56 of the Charter and Rule 40 of the Rules, and consequently declares the Application admissible.

VII.      MERITS

55. The Applicant alleges that the Respondent State violated his right to liberty and to a fair trial. He contests the legality of the sentence meted to  him and with regard to all the violations, invokes the failure to abide by  Articles 2, 3(1) and (2), 6, 7(1)(a) and (c) and (2), 9(1) and  (2) of the Charter.

A.  Alleged violation of the right to liberty

56. The Applicant submits that after his arrest and during his remand in custody, he requested bail pending his trial, which was denied.  He contends that denying him bail was a violation of his right to freedom guaranteed under Articles 13 and 15 of the Tanzanian Constitution and Article 6 of the Charter.

57. The Respondent State contends that in conformity with relevant constitutional provisions, release on bail is not an absolute right; the requirements of freedom and its limits having been enshrined in Article 15(1) and (2) of the Tanzanian Constitution.

58. The Respondent State further submits that the right to freedom as provided under Article 6 of the Charter is also not absolute in as much as even the said instrument enshrines some exceptions to freedom.

59. To justify the restriction under Tanzanian law, the Respondent State invokes Section 148(5) of the Criminal Procedure Act, and affirms that the detention of the Applicant and the refusal to grant him bail are consistent with the spirit of the provisions of the Tanzanian Constitution and the Charter, arguing, in conclusion, that the said refusal is not a violation of the Applicant’s rights to freedom.  

* * *

60. Article 6 of the Charter which guarantees the right to liberty provides that: “Every individual shall have the right to liberty and to the security of his person.  No one may be deprived of his freedom except for reasons and conditions previously laid down by the law…”

61. The Court notes that the possible limits to freedom mentioned in Article 6 of the Charter particularly arrest or detention, are exceptions which the Charter subjects to the strict requirements of legitimacy and legality.  In the instant case, to determine whether the refusal to grant bail to the Applicant violated his right to freedom, the Court will determine whether the said denial of bail is provided by law, whether it is justified by legitimate reasons and whether the restriction is proportional.   

62. On this issue, the Court notes that Article 15(1) and (2) of the Tanzanian Constitution provides two situations wherein limits to freedom may be placed on an individual, where the person is under the execution of a Judgment, an order or a sentence given or passed by the court following a decision in a legal proceeding or a conviction for a criminal offence, and under circumstances and in accordance with procedures prescribed by law. The Article in question reads as follows "For the purposes of preserving individual freedom and the right to live as a free person, no person shall be arrested, imprisoned, confined, detained, deported or otherwise be deprived of his freedom save only:­

(a)  under circumstances and in accordance with procedures prescribed by law;

or

(b) in the execution of a Judgment, order or a sentence given or passed by the court following a decision in a legal proceeding or a conviction for a criminal offence”.

63. The Court  also notes that Section 148(5) of Tanzania’s  Criminal Procedure Act provides that:

"a Police Officer in charge of a police station, or a court before whom an accused person is brought or  appears, shall not admit that person to bail if:

a)       this person is accused of:

(i) murder, treason, armed robbery or rape”.

64. The Court further notes that Section 148(5)(a)(i) is worded in sufficiently clear and precise terms so as to be understandable and to "enable individuals to adapt their behavior to the rule"[9] as required by international standards and jurisprudence. Accordingly, the Court finds that the restriction on liberty is duly provided by law.

65. However, the Court reiterates that it is not enough for a restriction to be provided by law; the restriction must have a legitimate aim and the reasons for the restriction must serve a public or general interest.[10]

66. In the instant case, the restriction on liberty provided under Section 148(5) (a)(i) of the Criminal Procedure Act aims  to preserve public security, protect the rights of others and avoid possible repetition of the offense insofar as this provision covers cases of armed robbery. The restriction is further justified by the need to ensure the actual appearance of the accused for the purposes of proper administration of justice. The Court, consequently, notes that the restriction on liberty is underpinned by legitimate objectives.

67. The Court also notes that the restriction is necessary and appropriate to ensure the reality of the aim pursued without compromising the ideal of liberty and personal security provided under Article 6 of the Charter. In circumstances such as those set out in Section 148 (5) (a) (i) of the Criminal Procedure Act, pre-trial detention is undoubtedly the necessary restriction for attainment of the desired objective.

68. The Court finds, in conclusion, that the Applicant's detention pending trial was not without reasonable grounds and that the refusal to grant him bail does not constitute a violation of his right to liberty. Article 6 of the Charter has therefore not been violated.

B.  Alleged violation of the right to equal protection of the law and equality before the Law

69. The Applicant submits that the refusal to grant him bail is discriminatory, thus violating his right to equality before the law and equal protection of the law as provided under Article 3(2) of the Charter.

70. The Respondent State has not responded to this allegation.    

***

71. The Court recalls that the right to equality before the law requires that all persons shall be equal before the courts and tribunals.[11] It holds however that to claim discrimination or unequal protection of the law, the Applicant must adduce evidence that those in the same or similar situation as he was, have been treated differently.

72. In the instant case, the Court holds, as a fundamental rule of law, that whoever makes an allegation must adduce evidence thereof. In this matter, the Applicant does not provide evidence that persons who were in the same or similar situation as himself had been treated differently.

73. Consequently, in the absence of evidence by the Applicant as to any differential treatment, the Court finds that the Respondent State has not violated the Applicant’s right to equality before the law and equal protection of the law.  

C.  Alleged violation of the right to a fair trial

74. The Applicant made several allegations of violation of his rights as provided under Article 7(1)(a) and (c) and (2) of the Charter, which stipulates  as follows:

"Article 7:

(1) Every individual shall have the right to have his cause heard.This comprises:

a) The right to an appeal to competent national organs against acts violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;

b) …

c) The right to defence, including the right to be defended by Counsel of his choice;

(2) No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed…”

i.       Alleged violation of the right to defence

75. The Applicant submits that the proceedings before the High Court and the Court of Appeal were conducted in his absence in violation of his right to be heard by a court as contemplated in Article 7(1)(a) of the Charter.

76. The Applicant also submits that the fact that the High Court and the Court of Appeal held their hearing in his absence, whereas the Prosecutor was present, constitutes a violation of his right to equality before the law and his right to express his opinion as guaranteed by Article 9(1) and (2) of the Charter. He contends that, in the circumstances, he was not afforded the same possibility to express himself as the Prosecution had.

77. The Applicant further submits that throughout the appeal proceedings, a record purporting to be presented as the summary of the evidence before the District Court was used in replacement of the original record of proceedings that was found to be untraceable or indeed lost. Arguing that he has serious doubts about the authenticity of this document, which he considers as having already been tampered with, in favour of the Public Prosecutor, the Applicant denounces the irregularity of the procedure.

78. In his view, as at the time of reconstitution of the record of proceedings, the judicial authorities had taken no steps to guard against the risk of falsification of evidence in favour of the Prosecution. He concludes that the review of his appeal without the original record violates his right to equal protection of the law.

79. The Respondent State refutes the Applicant’s allegations, affirming that the latter participated in all stages of the proceedings before the District Court and had opted not to appear at the hearing of the appeal before the High Court.  The Respondent State indicates that the Applicant was also present at the hearing before the Court of Appeal and in this regard, that the Applicant cannot hold the Respondent State responsible for his absence at the hearing of the appeal before the High Court. 

80. The Respondent State also contests the Applicant's allegations that the appeal proceedings were flawed for lack of the original record of the court's proceedings, arguing that the said records were reconstituted and made available in the end.

* * *

81. The Court reiterates that the right for the Applicant to have his cause heard requires that he should be entitled to take part in all proceedings, and to adduce his arguments and evidence in accordance with the adversarial principle. However, the individual as was the case here, has the right to choose whether or not to take part in proceedings, provided this waiver is unequivocally established.[12]

82. The record before this Court indicates that the Applicant took part in his trial before the District Court and the proceedings before the Court of Appeal. In contrast, when the Parties were summoned for the hearing of the appeal before the High Court, the Applicant and his two co-accused reportedly indicated that they had no intention to appear - a statement which the Applicant did not challenge given that, in his Reply, he had stated that he had taken note of the Respondent State’s observations in this regard.

83. The Applicant having refused to appear before the Court, the Court in conclusion holds that the hearing before the High Court in the absence of the Applicant does not constitute a violation of his right to have his cause heard.

84. On the Applicant’s allegation that he was not heard on account of the Court of Appeal adjudicating on the matter without the original record of proceedings, the Court holds that whereas, in every procedure, original documents constitute crucial and precious evidence in the determination of a case, such that the non-existence of such documents can cast serious doubt on the fairness of the case, the fact remains that it is possible to reconstitute the whole record or parts thereof.

85. In the instant case, it is apparent from the records before this Court that in order to lodge the Applicant's appeal at the Court of Appeal, his case file was reconstituted from the High Court's Judgment and the notes taken at the hearing before that Court. The Applicant challenges the authenticity of the reconstituted record without proof as to how the reconstituted elements lack credibility.

86. The Court therefore holds that, in the absence of any evidence that the reconstituted record of proceedings has been wholly or partly falsified, it dismisses the Applicant's claims and holds that the procedure before the High Court has not been vitiated as alleged by the Applicant.

ii.        Alleged failure to provide legal aid

87. The Applicant complains that he was not afforded legal aid before the High Court and the Court of Appeal.  He contends that by not doing so, the domestic courts failed in their duty as set out in Section 3, of the Criminal Procedure Act, thus violating Article 7(1)(c) of the Charter.

88. The Respondent State argues that though the right to defence is an absolute right in its domestic law, the right to legal aid is mandatory only in cases of homicide, murder or manslaughter; that for all other criminal cases, legal aid is granted only at the request of the accused if it is proven that he or she is indigent and cannot afford to pay lawyers’ fees. It therefore refutes the allegations made by the Applicant who, it claims, at no time during the proceedings, made any such request for legal aid, but rather chose to represent himself.   

89. In his Reply, the Applicant contends that as a layman, he was completely unaware that it was possible to be granted legal aid under the legal provisions, particularly   , Section 3 of the Criminal Procedure Act as indicated in the Respondent State’s Response. He further submits that, in view of the amendment to the Penal Code on the offence of armed robbery offence raising the minimum sentence from 15 years to a 30 years’ imprisonment, it was incumbent on the Respondent State to grant him legal representation before its courts.

* * *

90. Article 7(1)(c) of the Charter provides that:

“Every individual shall have the right to have his cause heard.This comprises:

…c) the right to defence, including the right to be defended by Counsel of his choice.”

91. The Court notes that, though Article 7 of the Charter guarantees the right to defence, including the right to be assisted by Counsel of one’s choice, the Charter does not clearly provide for the right to free legal assistance.

92. The Court however recalls that its jurisprudence according to which free legal aid is a right inherent in a fair trial, and that when the interests of justice so require, any person accused of a criminal offence must be informed of his right to legal assistance or to be granted Counsel if he is indigent or where the offence is serious and the penalty provided by law is severe.[13]

93. In the instant case, the Applicant was accused of an offence punishable by a heavy sentence of 30 years imprisonment and it was in the interest of justice to provide him with free legal aid.  This was made even more necessary by the fact that the Applicant claims to be a layman in law and was also unable to pay for the services of a Counsel.

94. The Court further notes that at no time was the Applicant informed that he may request and be provided with legal aid even though the Respondent State does not refute the fact that the Applicant was indigent.

95. The Court finds in conclusion that, by failing to do so, the Respondent State violated Article 7(1)(c) of the Charter.

iii.   Allegation that the 30 years prison sentence is not provided by law

96. The Applicant submits that the conviction and thirty (30) years prison sentence pronounced against him were based on a non-existent crime and constitute a violation of Article 7(2) of the Charter, which stipulates that: “no one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed.  No penalty may be inflicted for an offence for which no provision was made at the time it was committed.  Punishment is personal and can be imposed only on the offender…”. The Applicant avers that the thirty (30) years prison sentence was not applicable at the time the offence of which he is accused was committed; that at the time, the maximum sentence applicable was fifteen (15) years.

97. The Respondent State refutes the Applicant’s allegation, arguing  that in Criminal Case No. 123/1997, the Applicant was accused of armed robbery, contrary  to Sections  285 and 286 of the Penal Code, that at the time of his conviction and sentencing , the law  known as the Minimum Sentence Act of 1972 had been amended by Law No. 6/1994; that this new law of 1994 repealed the 15 years sentence and introduced a mandatory minimum sentence of thirty (30) years in cases of  armed robbery and robbery with  violence.

* * *

98. The Court notes that, in his Reply, the Applicant affirms having taken note of the Respondent State’s observations on this argument.  Furthermore, the Court recalls that it has already noted that in the United Republic of Tanzania, the minimum sentence applicable for armed robbery or robbery with violence is 30 years imprisonment since the 1994 law.[14]

99. The Court therefore holds, in conclusion, that the Respondent State did not violate Article 7(2) of the Charter and that the Applicant’s conviction and sentence to thirty (30) years imprisonment was in accordance with the law.

VIII.   REPARATION

100. As stated in paragraph 18 of this Judgment, the Applicant prays the Court to: (i) grant him adequate reparation pursuant to Article 27 of the Protocol; (ii) order the Respondent State to bear the costs; (iii) issue such other order(s) or measure(s) as the Court deems appropriate in the circumstances of the instant case.

101. However, when requested to clarify and substantiate his claim for reparation, the Applicant did not file any submissions.

102. The Respondent State in its submission prayed the Court to dismiss the Applicant’s claim for reparation and order him to pay the costs.

* * *

103. Article 27(1) of the Protocol provides that: “if the Court finds that there has been violation of a human or people’s rights, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation”.

104. Rule 63 of the Rules, stipulates that: “the Court shall rule on the request for reparation… by the same decision establishing the violation of a human and peoples’ right or, if the circumstances so require, by a separate decision”.

105. The Court recalls its jurisprudence in Reverend Christopher R. Mtikila v. United Republic of Tanzania in application of Article 27(1) of the Protocol whereby “…any violation of an international obligation that has caused harm entails the obligation to provide adequate reparation.”[15]

106. The Court notes that, in the instant case, the Applicant's right to legal aid was violated but this did not affect the outcome of his trial. The Court further notes that the violation it found caused non-pecuniary prejudice to the Applicant who requested adequate compensation in accordance with Article 27(1) of the Protocol.

107. The Court therefore awards the Applicant an amount of three hundred thousand Tanzania Shillings (TZS 300,000) as fair compensation.

IX.       COSTS

108. In terms of Rule 30 of the Rules: “unless otherwise decided by the Court, each party shall bear its own costs.”

109. The Court notes that the parties did express their positions on costs even though they did not indicate the amounts. Both parties requested the Court to order the other Party to bear the costs.

110. In the instant case, the Court decides that the Respondent State shall bear the costs.

X.        OPERATIVE PART

111. For these reasons,

THE COURT,

Unanimously

On jurisdiction:

i.   Dismisses the objection to its jurisdiction;

ii.  Declares that it has jurisdiction;

On admissibility:

iii. Dismisses the objection to admissibility of the Application; 

iv. Declares the Application admissible;

On the merits:

unanimously

i.   Declares that the Respondent State did not violate the Applicant’s right to freedom as provided under Article 6 of the Charter;

ii.  Declares that the Respondent State did not violate Articles 2 and 3 (1) and (2) of the Charter on non-discrimination, equality before the law and equal protection of the law;

iii. Finds that the Respondent State  did not  violate the Applicant’s right to  have his cause heard as provided under Article 7(1)(a) of the Charter;

iv. Declares that the 30 years prison sentence is  in accordance with the law and is not in violation of Article 7(2) of the Charter;

v.  Declares that the Respondent State violated  the Applicant’s right to  defence under  Article 7(1)(c) of the Charter  for failure to provide him with free legal assistance;   

vi. Awards the Applicant an amount of Three Hundred Thousand Tanzania Shillings (TZS 300,000) as fair compensation;

vii. Orders the Respondent State to pay the Applicant the said sum and report to the Court thereon within six (6) months from the date of notification of this Judgment; and

viii.        Orders the Respondent State to pay the costs.

 

Signed:

Sylvain ORÉ, President;

Ben KIOKO, Vice-President;

Rafaâ BEN ACHOUR, Judge;

Ângelo V. MATUSSE, Judge;

Suzanne MENGUE, Judge;

M-Thérèse MUKAMULISA, Judge;

Tujilane R. CHIZUMILA, Judge;

Chafika BENSAOULA, Judge;

Blaise TCHIKAYA, Judge;

Stella I. ANUKAM, Judge;

and

Robert ENO, Registrar.

 

Done at Arusha, on this Twenty-First Day of September in the year Two Thousand and Eighteen, in English and French, the English text being authoritative.


[1] Application No. 005/2013. Judgment of 20/11/2015, Alex Thomas v. United Republic of Tanzania (hereinafter referred to as “Alex Thomas v Tanzania Judgment”). para. 45; Application No. 001/2012. Judgment of 28/03/2014 (merits), Frank David Omary and Others v. United Republic of Tanzania (hereinafter referred to as “Frank Omary v Tanzania Judgment”). para. 115; Application No. 003/2012. Ruling of 28/3/2014, Peter Joseph Chacha v. United Republic of Tanzania (hereinafter referred to as “Peter Chacha v Tanzania Judgment”). para. 114.

[2] Application No. 013/2011. Judgment of 21/6/2013, Beneficiaries of Late Norbert Zongo and Others v. Burkina Faso (hereinafter referred to as “Norbert Zongo v Burkina Faso Judgment”). paras. 73-74.

[3] Application No. 006/2015. Judgment of 23/3/ 2018, Nguza Viking (Babu Seya) and Johnson Nguza (Papi Kocha) v. United Republic of Tanzania. para. 53.

[4] Alex Thomas v. Tanzania Judgment. op. cit. para. 60.

[5] Idem. paras. 60-65; Application No. 007/2013. Judgment of 3/6/2016, Mohamed Abubakari v. United Republic of Tanzania. paras. 65-72; Application No. 011/2015. Judgment of 28/09/2017, Christopher Jonas v. United Republic of Tanzania (hereinafter referred to as “Christopher Jonas v Tanzania Judgment”). para. 44.

[6]  Christopher Jonas v. Tanzania Judgment. op. cit. para. 36.

[7] Norbert Zongo v. Burkina Faso Judgment. op. cit.  para. 121.

[8] Christopher Jonas v. Tanzania Judgment. op.cit. para. 53.

[9] Application No. 004/2013. Judgment of 05/12/2014 , Lohé Issa Konaté v. Burkina Faso (hereinafter referred to as Issa Konaté v. Burkina Faso Judgment. para. 129.

[10] Issa Konaté v Burkina Faso Judgment. op. cit. para. 131.

[11] Application No. 032/2015. Judgment of 21/3/2018, Kijiji Isiaga v.  United Republic of Tanzania . para. 85.

[12] Sejdovic v. Italy no. 56581/00, § 39, ECHR 2004-II; or Poitrimol v. France no. 14032/88, §33, ECHR 1993-II.

[13] Mohamed Abubakari v. Tanzania Judgment. op. cit. para. 139. See also Christopher Jonas v. Tanzania Judgment. op. cit. para. 77.

[14] Mohamed Abubakari v. Tanzania Judgment. op. cit. para. 210; Christopher Jonas v. Tanzania Judgment. op. cit. para. 85.

[15] Application No. 011/2011. Ruling of 13/6/2014, Reverend Christopher R. Mtikila v. United Republic of Tanzania. para. 27.

Author
Judgment date
Case number
Application 2 of 2013
Court name
East African Court of Justice
Search summary

IN THE EAST AFRICAN COURT OF JUSTICE AT ARUSHA

FIRST INSTANCE DIVISION

 

(Coram:, Jean-­‐Bosco Butasi PJ, John Mkwawa J, Isaac Lenaola J)

 

APPLICATION NO.2 OF 2013

 

AVOCATS SANS FRONTIER……………………………………………………. APPLICANT

 

VERSUS

 

MBUGUA MUREITHI WA NYAMBURA …………………………. 1ST RESPONDENT ATTORNEY

GENERAL OF UGANDA ……………………………… 2ND RESPONDENT

ATTORNEY GENERAL OF THE REPUBLIC OF KENYA ……… 3RD RESPONDENT

 

28th August, 2013

 

 

RULING

 

The Applicant herein is Avocats Sans Frontiers, a Non-­‐Governmental Organization founded in Belgium in 1992 with registered presence in the Republics of Burundi and Rwanda, both Partner States in the East African Community.

 

By its Notice of Motion dated 3rd May, 2013, it has sought orders for leave to intervene as Amicus Curiae in Reference No.11 of 2011 between Mbugua Mureithi wa Nyambura and the Attorneys General of the Republics of Uganda and Kenya. It also seeks that upon leave aforesaid being granted, it should be allowed to make written and oral submissions at the hearing of the Reference.

 

The Notice of Motion is premised on the provisions of Rule 36 of this Court’s Rules of Procedure, 2013.

 

In the grounds in support of the Motion and in the Affidavit in support thereof, sworn by Francesca Bonniotti, its Executive Director, it states that it wishes to join the proceedings as amicus curiae for the following reasons:-­‐

 

i)     that it wishes to contribute to inter-­‐alia, the Treaty for the Establishment of the East African Community with regard to the independent of, and freedoms and fundamental rights of lawyers and Law Societies in the East African region, generally.

 

APPLICATION NO.2 OF 2013                                                                                              Page 2

 

ii)         that it is able to make a unique contribution to the Reference without taking away the litigation of the Reference from the Parties to it.

 

iii)        That the reasons for the intervention far outweigh any potential opposition for the intervention by existing Parties and will instead assist the Court in its mandate of interpreting the Treaty and advancing respect for the Rule of Law in the Community.

 

The Attorney General of Uganda in opposition to the Motion filed an Affidavit in Reply sworn by George Kallemera, Senior State Attorney and it is his argument that the motion is frivolous and lacks merit because:-­‐

 

a)   there is no exceptional or technical contribution the Applicant possesses that the Court cannot obtain from existing Parties to the Reference.

 

b)   the Applicant’s core function is contrary to the whole purpose of amicus curiae and will not in any way assist the Court in resolving the dispute contained in the Reference.

 

c)   that the Applicant does not hold or execute any Constitutional or Statutory office or function to qualify as Amicus Curiae.

 

d)   that the Applicant’s intervention is intended to revamp the case for the Applicant in the Reference and that is contrary to the spirit of an amicus curiae which is meant to be an independent Party.

 

APPLICATION NO.2 OF 2013                                                                                               Page 3

 

The Attorney General of the Republic of Kenya has not filed any response but opposes the Application on point of Laws only.

 

The Applicant in the substantive Reference seems to have no objection to the Application but filed no formal response. The Submissions of his Advocate point in the former position in any event.

 

We have considered the Application, the responses to it and the oral submissions for the Parties and would humbly opine as follows:-­‐

 

Firstly, as was held by Fuad, J. in Dritoo vs Nile District Administration [1968] E.A. 428, “the Court has a wide discretion to ask for assistance of a curiae if it considers that the interests of justice would be served”.

 

Further, Rule 36(4) of this Court’s Rules of Procedure, 2013, with regard to an application to join existing proceedings as amicus curiae provides that “if the Application is justified”, then it shall be allowed which is also an expression of discretion on the part of the Court. Like all discretion, however, it must be exercised judiciously.

 

Black’s Law Dictionary, 7th Edition, defines an amicus curiae as “a person who is not a Party to a Law suit but who petitions the Court to file a brief in the action because that person has a strong interest in the subject matter”.

 

APPLICATION NO.2 OF 2013                                                                                                Page 4

 

Secondly, in any application as above, the Applicant is required by Rule 36(2)(e) of the Court’s Rules of Procedure to file an application which shall contain inter-­‐alia a “statement of the intervener’s or amicus curiae’s interest in the result of the case “.

 

While the Respondents argued forcefully that the statement of interest must be a separate document from the Motion itself, we find no justification for such a position and in our view, it is sufficient that the interest is clearly and succinctly set out in the Affidavit or body of the Application itself.

 

In any event, Rule 36(4) is the operative rule in terms of the substance of the amicus curiae’s intervention and we see no obligation to the filing of such a statement at the time of seeking leave.

 

Thirdly, having so stated, one of the fundamental considerations for any amicus curiae to be admitted is that such a Party must be independent of the dispute between the Parties – see AG of Uganda vs Silver Springs Hotel Ltd and Others SCCA No.1 of 1989.

 

With the above background, we have read the Articles of Association of the Applicant and one of the purposes for which it was established was “the promotion and the protection of human rights, particularly – but not exclusively – the right relating to a fair trial and the exercise of the rights of the defence”.

 

Further, that, in the discharge of its functions, it may have access to any Court of Law, inter-­‐alia to defend or promote the above purpose – (see Article 3 thereof).

 

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It has also indicated that it will seek to limit its intervention to matters of law only and will not in any way descend to the arena of the dispute between the Parties.

 

Whereas there is strong opposition to the Motion, we have seen no bias apparent on the part of the Applicant and we are convinced that it will bring issues of law that would assist the Court in reaching a fair determination of the matters in contest.

 

The Court will also be vigilant and ensure that the Applicant will not overstep its amicus curiae brief and ensure that its actions do not favour any of the Parties.

 

This Court has previously allowed amicus curiae to appear before it, e.g. the East African Law Society vs Secretary General, EAC and Others, Application No.1 of 2009 and benefitted greatly from the intervention.

 

In the present case, we see no prejudice to any Party if the application is granted and we find that the Motion is justified and in enjoining it as amicus curiae and in return for the privilege of participating in the proceedings without having to qualify as a Party, an amicus has a special duty to the Court. That duty is to provide cogent and helpful submissions that assist the Court – see Re Certain Amicus Curiae Applications: Minister of Health and Others vs Treatment Action Campaign and Others 2002 (5) SA 713 (CC) at para.5.

 

For the above reasons, the Motion is allowed and Avocats Sans Frontiers is enjoined as Amicus Curiae in Reference No.11 of 2011.

 

APPLICATION NO.2 OF 2013                                                                                                  Page 6

 

There shall be no order as to costs.

 

It is so ordered.

 

DATED, DELIVERED AND SIGNED AT ARUSHA THIS………………..DAY OF

………………….……… AUGUST, 2013

 

 

….………………………………….

JEAN BOSCO BUTASI PRINCIPAL JUDGE

 

 

….…………………..……………..

JOHN MKWAWA JUDGE

 

 

 

….…..…………………………….

ISAAC LENAOLA

JUDGE

 

APPLICATION NO.2 OF 2013                                                                                                  Page 7

Author
Judgment date
Case number
Application 1 of 2013
Court name
East African Court of Justice
Headnote and holding

IN THE EAST AFRICAN COURT OF JUSTICE AT ARUSHA FIRST INSTANCE DIVISION

(Coram: Johnston Busingye, PJ, John Mkwawa, J, Isaac Lenaola, J.)

APPLICATION NO. 1 OF 2013

(ARISING FROM APPLICATION NO. 12 OF 2012)

(ARISING OUT OF REFERENCE NO. 2 OF 2012)

 

THE ATTORNEY GENERAL

OF THE REPUBLIC OF UGANDA ………...………………………………..APPLICANT

VERSUS

1. THE EAST AFRICAN LAW SOCIETY ………………………1st RESPONDENT

2. THE SECRETARY GENERAL OF THE EAST AFRICAN COMMUNITY ……………………………..2nd RESPONDENT

 

DATE: 17TH MAY, 2013

 


RULING


 Introduction

1. The Attorney General of the Republic of Uganda ( hereinafter “ the Applicant’’) brought this Notice of Motion dated 14th March 2013 under the provisions of Rules 54 (2), 110 (1), (2) and (3) of the Rules of Procedure of this Court and save for the prayers on costs, the only substantive order sought is the following:

“An order doth issue to stay execution of the ruling and orders in application No. 12 of 2012 given on 13th February 2013 pending the determination of the Appeal.”

Background

1. The Applicant was the Respondent in Reference No. 2 of 2012 from which arose Application No. 12 of 2012 which was filed by the instant 1st Respondent, namely the East African Law Society. The Applicant is aggrieved by the Ruling of this Court delivered on 13th February 2013 in the aforesaid Application ( No. 12 of 2012) and now intends to go on appeal against that ruling and orders given in favour of the 1st Respondent. It is on the basis of the foregoing that he now seeks for an order that will have the execution of the ruling and orders of this Court given on 13th February 2013 ,stayed pending the determination of the intended appeal before the Appellate Division of this Court. It may not be out of place to mention that he has filed a Notice of Appeal and that in addition, the Applicant has requested for proceedings in Application No. 12 of 2012 to enable him to file the Record of Appeal.

2. A brief recount of what transpired is a necessary preface to this Application. In Application No. 12 of 2012, the instant 1st Respondent, if we may put it in a nutshell, craved for this Court’s leave to produce additional evidence in form of documentation and electronic format after the close of pleadings in Reference No. 2 of 2012.

3.It is common ground that at the Scheduling Conference, parties had consented that all evidence would be tendered by way of Affidavits. But subsequent to the Scheduling Conference, the 1st Respondent obtained evidence which they allege could not be easily obtained to be used at the Reference as it necessitated “surmounting of diplomatic hurdle and corporate red-tape”.

4. It was against that background that they brought a Notice of Motion dated 2nd September, 2012 under the provisions of Rule 46 (1) of the Rules of this Court seeking for the following substantive order: “That this Honourable Court be pleased to grant leave to the Applicant to produce additional evidence in form of documentation and electronic format after the close of pleadings.

5. It is again common ground between the parties that this Court allowed the application and had this to say:

“In a nutshell, it is our view that the import of Rule 46(1) is to ensure that no evidence is shut out even after pleadings have closed and to enable the Court exercise discretion whenever necessary to do so and to afford an opposing party adequate opportunity to comment on and rebut the new evidence tendered by the other party and if necessary, file fresh evidence to contradict it.”

In conclusion, we find no credible reason to deny the Motion and will now allow it in the following terms:

i. The Applicant, the East African Law Society, shall be granted leave to produce additional evidence in Reference No. 2 of 2012 pending before this Court for determination.

ii. The evidence to be produced shall be in the form of documentation and also in electronic format.

iii. The additional evidence shall be served upon the Respondents within 21 days of this Ruling.

iv. The Respondents are at liberty to file any evidence in rebuttal within 21 days of service of the additional evidence.

v. Parties will thereafter appear for directions on how to proceed with the matter.

vi.Costs of the Motion will abide the determination of Reference No. 2 of 2012. Orders accordingly.”

7. It is the above orders that triggered the Instant Application.

Grounds of the Application

8. The instant Application is based on the following grounds, contained in the affidavit of Mr. Cheborion Barishaki, the Director Civil Litigation, sworn on 7th March 2013 on behalf of the Applicant. Briefly stated they are:

i. That the Applicant lodged a Notice of Appeal against the whole Ruling in Application No. 12 of 2012 and accordingly requested for the record of proceedings to enable him file a record of appeal.

ii. That substantial loss will result to the Applicant unless the order is made.

iii. That the intended appeal has high chances of success.

iv. That if this Court does not grant a stay of execution of the orders in Application No. 12 of 2012, it will render the intended appeal nugatory.

v. That if this Court does not grant a stay of executive the orders in this Application No. 12 of 2012, the Applicant shall suffer extreme prejudice in as far as all prior proceedings including conferencing and submissions shall be rendered nugatory and would likely result in a mistrial.

vi. That this Application has been brought without any unreasonable delay.

vii. That it is just and equitable in the circumstances that this Court orders for a stay of execution of the orders issued in Application No. 12 of 2012 pending hearing and final determination of the intended Appeal to the Appellant Division.

9. The 2nd Respondent filed no response to the Application while the 1st Respondent elected to proceed under Rule 41 of the Court’s Rules of Procedure and filed no Affidavit, but relied on preliminary points of objection filed on 3rd May 2013. The preliminary points of objection are the following:

i. That the application is an abuse of the process of the Court in so far as the same has been overtaken by events, i.e. that the application seeks to stay the execution of orders of this Court issued and/or given on 13th February, 2013 which are spent and not available for challenge in any way.

ii. The Application as drawn and crafted does not relate to a decree; only a decree is capable of execution while an order is capable of compliance, obedience, observance and being abided by.

iii. The Application is devoid of merit, lacks foundation and is fatally defective in as much as it is misconceived.

It is the Respondent’s argument, in a nutshell, that the order should not be granted.

Submissions

10.Mr. Mwaka, Principal State Attorney, who appeared for the Applicant, in his submissions, told the Court that when it comes to an application for stay of execution the law provides for a number of conditions to be met. The conditions are:

11.One, that an Appeal must have been filed. He, however, admitted that there has been debate as to when an appeal is effectively filed and one contention is that an Appeal is effectively filed when the memorandum of appeal is filed. But, that there are also judicial authorities which say that mere filing of a Notice of Appeal is sufficient and he preferred the latter argument. In support of this contention he referred us to a decision of the High Court of Uganda at Kampala, namely, Application No. 178 of 2005 Sewankambo Dickson Vs Ziwa Abby [EA] 227 which quoted with approval a decision of the defunct East African Court of Appeal, namely Ujgar Singh Vs Rwanda CoffeeEstates Ltd. [1966] E. A 263 where Sir Clement De Lestang, Ag. V. P. stated inter- alia that “…It is only fair that an intended Appellant who has filed a notice of appeal should be able to apply for a stay of execution to the Court …as soon as possible and not have to wait until he has lodged his appeal to do so.”

12. It was further submitted by Mr. Mwaka, that over the years, Courts have established three conditions for determination of applications for stay of execution:-

a. That substantial loss may result to the Applicant unless the order of stay is made;

b. That the application has been made without unreasonable delay; and

c. That security for costs has been given by the Applicant.

13. Mr. Mwaka avers that substantial loss may result if the execution of the impugned orders of this Court are executed in that the 1st Respondent (then the Applicant) was in effect allowed to produce open-ended evidence which traverses Masaka, Lira and Jinja areas instead of the original incidents around the city of Kampala. It is his submission therefore that, since the new incidents are over one hundred (100) this is more or less twenty (20) times more than the original evidence which was filed. He further contended that if the new affidavit were allowed, it will have the effect of introducing evidence which would absolutely change the nature and character of the whole Reference to the prejudice and suffering of the Applicant. He then referred us to the recent decision of the Supreme Court of Kenya in Petition No. 5 of 2013 – Raila Odinga v The Independent Electoral and Boundaries Commission and 3 Others as consolidated with Petitions No. 3 and 4 of 2013 where the Court rejected filing of further affidavits for a number of reasons including the Constitutional limitation of time within which to determine the Petition. In that case, Mr. Mwaka contended that the further affidavit was rejected at Conferencing whereas in this case, Conferencing had already been done, pleadings were closed and even submissions had been completed before the new evidence was introduced.

14. Mr. Mwaka’s next line of attack was that if the instant application is not granted, the appeal that he intends to pursue with the Appellate Division of this Court will be rendered nugatory. It is also his argument that the fifth (5th) order given in the impugned Ruling is to the effect that parties will appear for directions on how to proceed with the matter.

15. He contended that it is his understanding that the appearance for directions on how to proceed with this matter would be similar to conferencing and it is his argument that re-conferencing the matter will require them to file new submissions or additional submissions in view of the new evidence tendered by the 1st Respondent. So, at this stage, if the order of stay of execution is not granted, the Applicant will find himself even more prejudiced than he already is, by inter- alia, lack of time and the fact that the re-conferencing would likely lead to a mistrial because of the change of the nature and character of the Reference.

16.It is his stance, therefore, that it is only equitable that parties be allowed to await the outcome of the decision of the Appellate Division of this Court.

17. On the requirement for security for costs, it is his submission that pursuant to the loud and clear provisions of Rule 115 (2) of the Court’s Rules of Procedure, the Applicant is absolved from the requirement for costs. The aforesaid Rule states as follows:

“(2). Provided that where a claimant is a Partner State, the Secretary General, or any of the institutions of the Community no security for costs shall be required” (the emphasis is supplied).

18 It is Counsel’s contention therefore that the Applicant, being a party to the Treaty, cannot be condemned to deposit security for costs as whatever funds that will come by way of security for costs would come from the Consolidated Fund of Uganda and Uganda being a sovereign State cannot be treated the same way as a Corporation and there is, therefore, no need to deposit security for costs in Court.

19. Mr. Mwaka concluded his submission by saying that the Applicant by going on appeal is seeking from the Appellate Court specific guidance, inter alia, on the following:

a. At what stage of the proceedings in Court can new evidence be allowed

b. On what grounds? and

c. How urgent should the grounds be to allow the new evidence to be presented?

For the above reasons Mr.Mwaka argues that this is a fit and proper case for grant of the orders of stay as prayed.

20. In rebuttal, Mr. Mtuy who represented the 1st Respondent in this Application told the Court that he was resisting the Application and in support of his stance he reiterated the points he had raised in the Preliminary points of objection which are reproduced elsewhere above and we need not re-state them.

21. Apart from the foregoing, Learned Counsel submitted that as indicated earlier on, the 1st Respondent encountered a lot of hardship in getting the required evidence in support of their Claim, particularly the video evidence due to the political tension and insecurity prevailing in Uganda at that time.

22. It is his stance that the new evidence which was in the nature of electronic print was not only necessary but relevant to enable this Court make a fair and unbiased decision and to meet the ends of justice.

23. Counsel’s counter-argument in respect of Mwaka’s fear of a re-conference was brief and clear. He submitted that the Ruling of the Court on 13th January 2013 had made it amply clear that:

“The Respondents are at liberty to file any evidence in rebuttal within 21 days of service of the additional evidence’’ (see (iv) at pg.7 of the Ruling in question).

24. It is Mr. Mtuy’s argument in that regard that the Applicant is in no way prejudiced as he has ample time to file any evidence in rebuttal to the new evidence tendered by the 1st Respondent.

For the above reasons he prayed that the Application be struck out with costs.

Determination of the Application

25. We have carefully addressed our minds to the arguments by both Counsel appearing and we opine as follows:

26. One, that we note that the Applicant herein has only lodged the notice of appeal and not the record of appeal although he has applied for the said record.

27. We are alive to the fact that like Bamwine J stated in Sewakambo(supra) authorities appear inconsistent on this area of Law, some stating that the lodgment of a notice of appeal is an intention to appeal and cannot amount to the actual appeal that must be lodged by filing a memo of appeal, record of appeal, payment of fees and security for costs (see G. N. Combined (U) Ltd – vs.- A. K. Detergents (U) Ltd H.C.C.C No. 384 of 1994 reproduced in[ 1995] iv KARL 92 )

28. On our part, we fully agree with the reasoning in Ujagar Singh (Supra) and the Sewankambo case (supra) and we respectfully associate ourselves with the position that a notice of appeal is a sufficient expression of an intention to file an appeal as rightfully submitted to us by Mr. Mwaka and that such an action is sufficient to found the basis for grant of orders of stay in appropriate cases.

29. Two, having so found and held, we will now consider whether the instant Application meets the requirements for orders of stay of execution as prayed namely;

a. That substantial loss may result to the applicant unless the order of stay is made;

b. That the application has been made without unreasonable delay; and

c. That security for costs has been given by the Applicant.

30. On the first requirement, Mr.Mwaka’s main argument was that the impugned Ruling, in essence, added new causes of action to the Reference at the close of the case and long after submissions had been filed and the only action remaining to be undertaken before judgment was the highlighting of those submissions. The effect was that the Applicant was greatly prejudiced and was ambushed by the new evidence tendered by the 1st Respondent. That therefore, he was unable to effectively respond to the new issues raised as the character and nature of the Reference as initially filed had completely changed.

31. Mr. Mwaka , therefore ,contended that the orders sought would have the effect of maintaining the status quo to enable the Applicant seek from the Appellate Division of this Court, guidance on what he described as “the fundamental issues, as to what stage in the course of proceedings can new evidence be adduced and on what grounds.”

That failure to grant the orders of stay would render the appeal preferred by the Applicant nugatory and he will thereby suffer substantial loss.

32. Mr. Mwaka’s arguments on this limb were not, in our considered view, seriously and meaningfully assailed by Mr. Mtuy. The latter, as we have shown much earlier in this Ruling, filed Preliminary points of Objection on three Points of Law but in fact all were issues of fact that were not vindicated by way of evidence in an affidavit as the law and practice would demand. With respect to the Learned counsel, we find no substance in the points raised by Mr. Mtuy, and so we propose to dispose of them only very briefly by saying that they are misconceived and incompetent, in that in the impugned Ruling (the subject matter of the instant Application), we gave seven orders and to- date only one of them has been complied with. It cannot, therefore, be said that the “instant Application is an abuse of the Court process in that the impugned orders have been fully complied with or that what the Applicant seek to stay is spent and not available for challenge in any way.”

33. In view of all the foregoing, we are of the firm view that the Applicant has satisfied the first requirement because this Court is alive to the fact that if it continues with the hearing of Reference No.2 of 2012,the intended appeal will be rendered nugatory and the Applicant will be prejudiced and suffer loss if that appeal were to succeed.

34. As regards the second requirement, namely, that the Application has been made without unreasonable delay, we opine as follows:

35. The impugned Ruling was delivered on 13th February 2013 and the Applicant lodged a Notice of Appeal on 4th March and accordingly on the same day requested for the records of proceedings to enable him file a record of appeal. Happily, he was not challenged on this. It cannot, therefore, by any stretch of imagination be said that there was a delay on the part of the Applicant. It does appear to us that the Application was made without unreasonable delay.

36. We, accordingly, find and hold that the second requirement is also in the Applicant’s favour.

37. This leaves only the third requirement, namely, payment of security for costs. The Applicant in the instant Application is the Attorney General of the Republic of Uganda. Mr. Mwaka has urged us to invoke the provisions of Rule 115 (2) of the Court’s Rules of Procedure to exempt him from the requirement of security of costs.

38. We need not labour on this point as the aforesaid provision is loud and clear that “where a Claimant is a Partner State, the Secretary General or any of the institutions of the Community, no security for costs shall be required.” (the underscoring is ours). The Applicant has been sued for and on behalf of the Republic of Uganda which is a Partner State and therefore exempt from the requirement for payment of security for costs.

39. Before we leave this matter, we wish to say the following:

That pursuant to Rule 1 (2) of this Rules of this Court, this Court has inherent powers to grant the Applicant’s prayers. The aforesaid Rule gives the Court inherent power to:

“Make such orders as, may be necessary for the ends of Justice……”

The main principle to be applied is whether the dictates of justice so demand. This court has done so in a number of similar cases. (See The Attorney General of Uganda vs the East African Law Society – Application No.7 of 2012 and very recently in Angela Amudo vs the Secretary General of the East African Community Case No.1 of 2012)

40. In view of the foregoing, we accordingly grant the Application as prayed, and order that:

a. The orders issued in Application No.12 of 2012 be stayed pending the determination of an intended appeal by the Applicant, which must be filed strictly in accordance with Rules of this Court.

b. The costs of the application shall abide the outcome the intended Appeal.

41. We so order.

 

DATED, DELIVERED AND SIGNED AT ARUSHA THIS………………..DAY OF………………….………2013

 

….…………………..……………..

JOHNSTON BUSINGYE PRINCIPAL JUDGE

….………………………………….

JOHN MKWAWA JUDGE

….…..…………………………….

ISAAC LENAOLA

JUDGE

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Judgment date
Case number
Application 1 of 2012
Court name
East African Court of Justice
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EAST AFRICAN COURT OF JUSTICE

AT ARUSHA-FIRST INSTANCE DIVISION

APPLICATION NO 1 OF 2012

(Arising from Reference No. 1 of 2010)

 

Hon. Sam Njuba…………………………………………...………….…Applicant

Versus

Hon. Sitenda Sebalu…………………………………………………..Respondent

AND

APPLICATION NO 2 OF 2012

(Arising from Reference No. 1 of 2010)

 

Electoral Commission of Uganda………………………………………Applicant

Versus

Hon. Sitenda Sebalu…………………………………………………..Respondent

 

RULING

 

DATE: 12TH FEBRUARY 2013

 

PROF. DR. JOHN EUDES RUHANGISA, TAXING OFFICER

 

Victoria Advocates and Legal Consultants representing Hon. Sam Njuba the applicant filed a Notice of Motion Application No. 1 of 2012 supported by an Affidavit of Dan Wandera Ogalo on 24th February, 2012 while the Legal Department Electoral Commission for the Electoral Commission of Uganda filed its Notice of Motion Application No. 2 of 2012 supported by an Affidavit of Eric Sabiiti on 29th February, 2012. Both applications are seeking leave for extension of time for filing bills of costs by the applicants. The applications have been brought under Rule 2(2) of the Taxation of Costs Rules, Second Schedule of the East African Court of Justice Rules of Procedure.

The genesis of these two Applications goes back to Reference No. 1 of 2010 where in its judgment dated 30th June, 2011the court struck off the 3rd and 4th Respondents, who are the Applicants herein, and directed that the Applicant in that reference, who is the Respondent in these two applications pay their costs. The Applicant, who is the Respondent in these two applications, was as well awarded costs to be paid by the 1st and 2nd Respondents in the Reference, whose bill was filed and taxed by the Registrar.

In the Reference the Applicant was represented by M/s Bakiza & Co. Advocates and M/s Semuyaba, Iga & Co. Advocates. The 1st Respondent was represented by Counsel to the Community; the 2nd and 4th Respondents were represented jointly by The Attorney General of Uganda and the Electoral Commission of Uganda who filed a Response to the Reference jointly while the 3rd Respondent was represented by Victoria Advocates and Legal Consultants.

By letters dated 4th October and 3rd November 2012, Semuyaba, Iga & Company Advocates, Counsel for the Respondent herein, informed the Registrar that his client Hon. Sam Njuba had written letters to the Applicants herein as provided under Rule 2(2) of the Rules on Taxation and that the 21 days had lapsed after sending the request in writing to the parties liable to pay the bills. The Applicants advocates herein came to file their bills of costs and found that the Respondent’s advocates had filed letters asking the Registrar not to accept bills of costs from them as the 21 days the time prescribed by Rule 2(2) had elapsed. Counsels for the Applicants herein then filed applications for extension of time within which to file their bills of costs. Hence this ruling.

The two applications above were fixed for hearing on 29th of March 2012 and all the parties in the applications were served on the 15th day of March, 2012, which was thirteen (13) days before the hearing date. On 28th of March, 2012 a day before the date set for hearing, the Respondent herein filed affidavits headed Affidavit in Support although he was replying to the Applicants Affidavits in support of their applications. The Registrar under Rule 10 of the Provisions of The East African Court of Justice Rules of Procedure accepted the documents but marked them “lodged out time” and informed the advocate lodging them that the affidavits were lodged out of time.

On the date the applications came up for hearing, due to unavoidable circumstances, the Registrar was not available for the hearing and for that reason the hearing of the applications was adjourned. The applications were again fixed for hearing on the 4th of May, 2012.

At the hearing, counsel for the Respondent made an application to have the affidavits filed on 28th March, 2012 in both applications and marked “lodged out of time” properly constituted in Court file and also be allowed to file a supplementary affidavit before the court could proceed with the hearing of the application. Counsel for the Applicants opposed the application.

At the end of the submissions I made a preliminary ruling consolidating the two applications since the two are interrelated. The two applications arise from the same matter, involved the same respondent, raised same issues and sought for same orders from the Court. I found it necessary, on the strength of the foregoing, to consolidate the two applications. By my ruling delivered on 8th June, 2012 the application for leave to file the affidavits out of time and allow filing of supplementary affidavits was dismissed. I further ordered that Applications number 1 and 2 of 2012 proceed for hearing without the affidavits on record and that costs out of the oral application should be borne by the oral applicant/respondent.

At the hearing of the substantive applications Mr. Komakech representing Hon. Sam Njuba argued that the letter written under Rule 2(2) of the Courts Rules was a personal letter written by Applicant Hon. Sitenda Sebalu himself to Hon. Wandera Ogalo and therefore needed his personal attention. He further argued that Hon. Wandera Ogalo was out of Uganda at the time the letter was served and that he returned to Uganda from Southern Sudan on 4th November 2011.

He thereafter travelled to India on 25th November 2011 for treatment and came back in December 2011. Mr. Komakech could not get the exact date that Mr. Ogalo came back as the passport he was referring to did not have that information because it had been replaced with a new passport. He submitted that as such Mr. Ogalo could not respond to the letter which was addressed to him until such he returned from India for treatment. Mr. Komakech attempted to produce the passport as evidence to support this allegation but this could not be admissible as he had omitted it in his affidavit in support of the application therefore it could only be admitted by making a formal application. He submitted that the letter was brought to the attention of Mr. Ogalo in late December 2011upon him resuming his chamber work.

Mr. Komakech contended that the letter should have been written by the firms representing Hon. Sitenda Sebalu the Respondent herein and not himself. He further contended that the letter should have been addressed to the firm representing Hon. Sam Njuba M/s Victoria Advocates and Legal Consultants but in this case it was addressed to Hon. Wandera Ogalo personally. Mr. Komakech submitted that “Had it been that the letter was from Semuyaba or Bakiza Advocates Addressed to Victoria Advocates, we totally agree that there is a breach of the rules of this court which provide that once there is a request for a bill by opposite party, then practically within 21 days, the bill should have been forwarded.” He submitted that there was no formal request as envisaged under Rule 2(2) of the EACJ Second Schedule Taxation of Costs Rules

Mr. Komakech further submitted that Rule 2(2) is very clear and does not provide for a sanction that in the event that the party liable to file the bill fails to furnish the bill within 21 days, he shall forfeit the bill, but rather goes ahead and gives the Registrar powers to exercise his or her discretion in such matters so as to have the matter concluded.

Mr. Komakech also relied on the case of Prof Anyang Nyongo & Others Vs The Attorney General of Kenya Applications No. 1 & 2 of 2010 (EACJ Registry), that this Court has unvetted jurisdiction to extend time depending on the circumstances of the case. He also relied on Fredrick Njebi Arodi & Another Vs I. W. Waweru Trading as Watimoro Safaris, Civil Application No. 127 of 1997 (High Court Kenya) where the delay was not sufficiently explained but as it was not inordinate it did not prevent the judge from exercising his discretion in favor of the Applicants.

Mr. Komakech concluded by submitting that this court be pleased to grant the applicant time to file their bill of costs and have the same taxed given the fact that the 21 days would only have been there had it been that Bakiza and Company Advocates, Semuyaba and Company Advocates had written personally to Victoria Advocates and Legal Consultants that is on record as appearing for the Applicant in this matter. He lastly submitted that Rule 2(2) does not imply that if one fails to file the bill within 21 days he or she forfeits the bill.

Counsel for the Applicant in Application Number 2 of 2012 Mr. Jude Mwasa submitted that the application is supported by an Affidavit of Eric Sabiit which states that the Respondent in this matter did not effectively demand that the Applicant file his bill of costs and have it taxed within time. He submitted that the letter written by the Respondent was addressed to the Secretary of the Applicant and therefore was a personal letter. He further submitted that this letter did not originate from the lawyers of the Respondent and was therefore taken as a personal letter. It had also not been brought to the attention of the lawyer who had personal conduct of the original reference. When I asked Counsel to whom should any official communication to the Commission be addressed he answered “Official communication are addressed to the Chief Secretary but when it comes to matters before a Court, they are addressed to the legal chambers and that has been the practice. In this case the Applicant has been represented by the Attorney General of Uganda and Legal Chambers of the first Respondent”. He submitted that both the Attorney General and the Election Commission Legal Chambers were not informed at all about the demand notices prepared by the Respondent and his lawyers.

Mr. Mwasa submitted that during the period when the Respondent purportedly wrote a letter and served the Applicant herein, that was the period when the High Court of Uganda had fixed a special session for hearing election petitions arising out of the 2011 general elections. During that period which started in June, 2011 to November 2011, the Applicants lawyer who had personal conduct of the original reference was engaged in handling these election petitions that were all over the courts of Uganda. Counsel submitted that the Applicant herein being a subtle Respondent to all the election petitions, all the lawyers in its legal chambers were engaged in several courts in upcountry Uganda and there was no lawyer in its chambers who would attend to any matters that would arise until the session ended.

Mr. Mwasa submitted that the letter was not received by the lawyers and that the applicant came to learn of the letter when he came to file the bill of costs. He further submitted that it is not known whether the letter was received officially or not and he cannot tell because they do not know the origin of the person who stamped on it. He submitted that upon perusal of the record he learned that the lawyers filed another letter to this court without serving the same to the Applicant’s lawyers. Upon the Applicant learning about both of the letters from this Court, it filed this application seeking extension of time for the reasons given.

Mr. Mwasa concluded by submitting that the facts alluded to amount to sufficient cause for this Court to under Rule 4 of its rules to grant the Applicant extension of time to have their bills filed and taxed. He also submitted that Rule 2(2) of the Second Schedule of the Rules as submitted by his colleague do not provide or bar successful parties in this Court from lodging their bills of costs having failed to prepare to lodge them in time, it does not bar them to seek extension of time to have their bills filed and taxed. He prayed that the court considers the circumstances and facts at hand to invoke its inherent powers under Rule 4 and Rule 2(2) of the Second Schedule of the rules to extend time and allow the applicants to file their bills and have them taxed out of time.

In response Mr. Bakiza Counsel for the Respondent submitted that no sufficient reasons have been advanced in Application No. 1 justifying the delay and the court should therefore, not be invoked to exercise its discretion to regularize what the Applicant failed to do within the prescribed rules. He submitted that even if the Court was to exercise its discretion to extend time, the Court should reject reasons advanced for the delay as being insufficient in the circumstances and dismiss this Application with costs.

Mr. Bakiza emphasized the words “party liable” in Rule 2(2) and submitted that since Sitenda Sebalu was party to the proceedings it is reasonably conceived in this rule that the party liable to pay was Sitenda Sebalu who should originate the demand or request for the bill of costs and should not be faulted for doing so. He further submitted that in as much as Victoria and Company Advocates received the letter addressed to Hon. Wandera Ogalo an advocate within the law firm and stamped it without a comment they had undertaken to pass it over to him as he had personal conduct of this matter.

In response to the explanation why Hon. Ogalo did not act in time upon his return, Counsel submitted that no explanation has been given for that failure and that Hon. Ogalo chose to travel on a trip for which no evidence has been adduced. He averred that Hon. Ogalo simply travelled and abandoned his responsibility not only to the Respondent but to the Court itself and even to his client. He further submitted that Hon. Ogalo in his affidavit does not explain why for the three days before he again travelled from Uganda he did not attend to chamber work. He submitted that those three days were enough for him either to act personally or to instruct anybody within the law firm in the same way he instructed somebody who represented him in this application to take the necessary step. He also submitted that Hon. Ogalo did not obtain an affidavit from the secretary or the clerk of his firm to show what transpired.

Mr. Bakiza also submitted that for Counsel Ogalo to submit the bill of costs on 3rd January, 2012, close to about four months constitutes inordinate delay and is inexcusable. Counsel relied on the case of Jane Bugiriza Versus John Nathan Osapil, Uganda Supreme Court, Application No. 7 of 2005 where the Supreme Court was faced with a similar situation of extension of time and it held that a delay for two years and 19 days before filing a bill of costs constituted inordinate delay and was inexcusable. The court observed that the essence for requesting for the bill of costs is that the party paying must know his or her liability without delay and that when a bill of costs causes unquantified date which may cause imprisonment of the party liable, the bill continues to hang on the respondent’s head and that there must be an end to litigation.

In regard to Application No. 2 Mr. Bakiza submitted that once the letter was received as it was by the Electoral Commission on 11th October, 2011the Respondent was not concerned with the goings on at the Electoral Commission. He submitted that the attempts to explain the failure by stating that all the lawyers were involved in election petitions is not reasonable excuse and that no evidence was adduced from the secretary of the Electoral Commission. He submitted that the duty for placing the necessary evidence before the court lies on the Applicant and that duty has not been discharged.

Mr. Bakiza concluded by praying that the application be dismissed with costs on ground that the delay was inordinate and inexcusable and no sufficient reasons have been advanced for grant of extension of time within which to file a bill of costs. He also prayed that in the event that the application is allowed, the cost be payable by counsel who was in default for lodging the application for the bill of costs late.

Mr. Semuyaba also for the Respondent in both applications in his additional submissions to Mr. Bakizas averred that the mere fact that Hon. Ogalo is on court record as the lawyer who represented the party and the mere fact that his law firm is the one that filed the court papers and received and got receiving stamp is a clear testimony that his law firm received the communication.

With regard to Application No. 2 Mr. Semuyaba submitted that the Electoral Commission is an institution which receives communication through its Secretary and that the letter was duly received by their registry on 11th October 2011 and duly stamped. He averred that the affidavit of Eric Sabiit was full of false hoods by stating that their organization was not served and cannot come to court and advance any reasonable cause as to why they sat on their right after a request was made under a mandatory requirement for them to file their bill of costs within 21days. He also submitted that Mr. Eric Sabiit could not have been an advocate of the party as required under Rule 2(1) because he was an employee of the Electoral Commission. He submitted that there is no evidence that the Electoral Commission Law Chambers is a registered law chambers.

He also added that in the case of John Bagiriza, once the party does not as soon as practicable file their bill of costs, then they are deemed to lose that bill of costs. Also relying on the authority of the case of Anyang Nyongo he submitted that no sufficient reason has been advanced and the application should be denied. He prayed that the Application be dismissed with costs.

In rejoinder Mr. Komakech for the Applicant in the first application submitted that it is not in dispute a letter was written and received by Victoria Advocates but what is in dispute is that it was to the attention of Hon. Ogalo thus making it personal. He also submitted that Hon. Ogalo acted with diligence by writing a letter dated 2nd January to Counsel for the Respondent enclosing a draft bill of costs seeking views and indicating his intention of filing it. He acted upon the letter from Sitenda Sebalu having been brought to his attention.

Mr. Mwasa in rejoinder submitted that the Electoral Commission Law Chambers is one of the registered firms in Uganda and therefore it was duly representing the Applicant. He further contended that Mr. Eric Sabiit had personal conduct of this matter because he is the one who handled the original reference and he was among the lawyers who were handling election petitions in Uganda during that period and according to the Uganda laws, all the election petitions take precedence over all matters pending in court.

Having considered submissions by counsels for the parties in both applications I have come up with five issues that I need to make findings on as follows:

1. Whether a party represented by an advocate in a case can act in person without formally withdrawing instructions or filing a notice of change of advocate.

2. Whether the letters in contention served on the applicants by the respondents, constituted proper service as envisaged under Rule 2 (2) of the Taxation of CostsRules.

3. Whether, under Rule 2(2) Second Schedule: Taxation of Costs of the East African Court of Justice Rules of Procedure, a party who fails to lodge a bill of costs within 21 days of receiving a request from the party liable forfeits his right to file a bill.

4. Whether the delay was inordinate

5. Whether sufficient reasons have been established, as provided under Rule 4 of the East African Court of Justice Rules of Procedure, to warrant an extension of time to file bills of costs.

 

1. Whether a party represented by an advocate in a case can act in person without formally withdrawing instructions or filing a notice of change of advocate.

The Respondent was represented by the firms of Bakiza & Company Advocates and Semuyaba Iga & Company Advocates in Reference No. 1 of 2010. In its judgment dated 30th June, 2011the court struck off the 3rd and 4th Respondents, who are the Applicants herein, and directed that the Applicant, who is the Respondent in these two applications pay their costs. The Applicant, who is the Respondent in these two applications, was as well awarded costs to be paid by the 1st and 2nd Respondents in the Reference. The bill was filed by the firms of Bakiza & Company Advocates and Semuyaba Iga & Company Advocates. The bill was taxed by the Registrar at the sum of USD 105, 068.20 payable to Hon. Sitenda Sebalu by The Attorney General of Uganda and The Secretary General of the East African Community.

From the background above, the applicants herein, who were the 3rd and 4th Respondents in the reference and were awarded costs, wish to have their bills of costs in Reference No. 1 of 2010 taxed. Under Rule 17(1) on representation a party to any proceedings in the Court may appear in person or by an agent and may be represented by an advocate. Hon. Sitenda Sebalu is Represented in Reference No. 1 of 2010 by the firms mentioned above and has never withdrawn instructions from being represented by the said firms. The mere mention of the word party in the rules does not mean that, where there is an advocate on record representing a party, the party can act in person without formally notifying the court and the other parties of its intention to withdraw instructions or withdrawal of instructions. Rule 18 provides that a party may, change its advocate but shall within 7 days of the change, lodge with the Registrar notice of the change and shall serve a copy of such notice on each party. This was not done.

Hon. Sitenda Sebalu personally wrote letters dated 27th July, 2011 to Counsel Ogalo and 10th October, 2011 to the Secretary, Electoral Commission requesting for bills in this matter and thereafter his advocates proceeded to inform the court of the written request by its client. This shows that at one stage, in the cause of proceedings in this matter, the party purports to act in person then thereafter the advocates representing continue acting on his behalf. Any change of representation in a matter must be brought to the attention of the court and parties by notification otherwise it may lead to confusion in a matter as is the case here. In my view the letters by Hon. Sitenda Sebalu are procedurally improper and not binding in view of the fact that he instructed firms of advocates to represent him in this matter and has not withdrawn instructions or formally notified this court and parties of withdrawal of instructions. I therefore answer issue number one in the negative.

 

2 Whether the letters in contention served on the applicants by the respondents, constituted proper service as envisaged under Rule 2 (2) of the Taxation of Costs Rules.

I will again refer to the rule on representation above and say that the firm of advocates representing Hon. Sam Njuba is Victoria Advocates and Legal Consultants while the Electoral Commission is being represented by the Attorney General of Uganda and the Electoral Commission Legal Department. This is evidenced by their Response drawn and filed jointly in the Reference and the representation at the hearing of proceedings in the Reference. Hon. Sitenda Sebalu wrote a letter to Hon. Ogalo care of Victoria Advocates and Legal Consultants, and to The Secretary Electoral Commission of Uganda. The letters ought to have been addressed to the firms on record as representing the parties and possibly for the attention of Hon. Ogalo of Victoria Advocates and Legal Consultants or Eric Sabiit of Legal Department Electoral Commission of Uganda or Christine Kaahwa of The Attorney Generals Chambers. I therefore answer issue number two in the negative for the reasons stated hereunder. Taking into consideration all the submissions given by both counsel for the applicants and respondent and the position of the law, I am of the opinion that there was no proper service of the demand letters dated 27th July, 2011 and 4th October, 2011 on the 1st applicant nor was there proper service of the letters dated 11th October and 4th November 2011 on the 2nd applicant for the following reasons/findings.

The law under Rule 8 (6) of the East African Court of Justice Rules of Procedure provides that, “Every pleading lodged in Court shall indicate the address of service of the party making it and be signed by that party or by the party’s advocate or a person entitled under Rule 17 to represent the party.” And whereas Rule 14 provides that, “Where by these Rules a document is required to be served on any person service of that document shall be made by tendering to that person a duplicate thereof and requiring him or her to endorse the original acknowledging service.”

Referring back to the documents/pleadings lodged in this honourable court with regard to the original Reference No.1 of 2010 which gave rise to this bill of cost, the address for the 3rd respondent for purposes of service as provided in the 3rd Respondent’s Response to the Reference was Sam K. Juba, C/o Victoria Advocates & Legal Consultants. And so far there is neither change of address nor any new address that has been furnished in this court for purposes of service in so far as the bill of costs is concerned; the procedure therefore was to use the same address in addressing the notice/request. Moreover it’s the rule of practice that when a person employs the services of an advocate/firm for a particular matter then every correspondence regarding that matter will have to go through the advocate/firm. The respondent henceforth erred in fact and Law by addressing the letter dated 27th July, 2011 to Counsel Wandera Ogalo, MP, EALA, as if it was a letter relating to him as a member of EALA instead of addressing it to Victoria Advocates & Legal Consultants for the attention of Counsel Wandera Ogalo who had conduct of the case.

For ease of reference and understanding, the contents of the said letter are here below reproduced:

To: Ogalo

EALA (MP)

Counsel for 3rd Respondent

Hon. Sam K. Njuba

 

Dear Sir,

First and foremost, I write to thank you for the spirited fight you exhibited without bias throughout the whole trial that has enabled the people of East African Community acquire the appellant extended Jurisdiction of the East African Court of Justice.

I also write to kindly request you for a copy of your bills of costs as ordered by the court of Justice in Arusha.

Lastly, accept my sincere appreciation for your legal prowess and maturity that you and my two sets of lawyers exhibited that has earned me great respect in this region a as seasoned litigant. This clout might compel me to stand for the EALA (MP) slot in order to foresee the quick operationalize of the 2005 protocol by Counsel of Ministers.

Yours faithfully,

 

HON. SITENDA SEBALU

Applicant

 

I am strongly convinced that the failure of the applicant to act promptly was possibly because there was no proper service effected upon the firm as the letter was more of a personal letter than official referring to things that have nothing to do with requests for bill of costs. I am inclined to hold that the notice served on the 1st applicant did not constitute proper service under Rule 2(2).

Again with regard to the 2nd applicant, being an independent body and a registered law firm in Uganda, the address of service as furnished in this court in the original Reference ought to have been used by the respondent in addressing the notice. The respondent addressed the letter to the Secretary of the Commission rather than addressing it to the Legal Department of the Electoral Commission, as it was provided in the pleadings in relation to the original Reference. That is; Legal Department, Electoral Commission, Plot 55 Jinja Road, Kampala. And because of such error, the 2nd Applicant claims that it is unclear whether the letter was received by the Commission or the Attorney General, Uganda but is certain that it never reached the legal chambers and therefore never reached the lawyer who had personal conduct of the case.

Also for ease of reference and understanding, the contents of the said letter are here below reproduced:

 

To:

The Secretary,

Electoral Commission,

Kampala-Uganda

 

Dear Sir,

As you are aware, Judgment of the above mentioned case was delivered on 30th June, 2011in the East African Court of Justice-Arusha.

In this judgment, the Electoral Commission of Uganda as the 4th Respondent was awarded some costs.

The Purpose of this letter therefore, is to request you avail to me copies of your bills of costs to this effect and also other bills of costs as awarded to you in Supreme Court of Uganda in earlier dismissed Election Petition Appeal. This will enable me get quick intervention of Chairman of NRM party and H.E the President of Uganda for a quick bail out.

I am considering standing as a member of EALA in order to participate in the quick operationalization of the protocol 2005 in extending the appellant jurisdiction of the East African court of justice without any encumbrances on my head.

Yours faithfully,

HON. SITENDA SSEBALU WILLIAM

APPLICANT

NRM FLAG BEARER

 

The contents of such a letter which had nothing to do with bill of costs could in effect mislead or confuse any prudent mind at the registry and be the cause for his/her failure to place it to the appropriate department or section

I find that the notice served on the 2nd Applicant by the Respondent failed to satisfy Rule 2(2) as it was required to be sent by the Respondent or his advocates and addressed to the Legal Department as the practice had been during the pendency of Reference No.1 of 2010.

 

3. Whether, under Rule 2(2) Second Schedule: Taxation of Costs of the East African Court of Justice Rules of Procedure, a party who fails to lodge a bill of costs within 21 days of receiving a request from the party liable forfeits his right to file a bill.

To begin with I will cite a decision relied on by counsel in these applications, that is, this courts Appellate Division ruling in Application No 1 and 2 of 2010 Professor Anyang Nyongo & 10 Others Vs The Attorney General of Kenya where the Court referred to the Katatumba case and said:

“In Boney M Katatumba vs Waheed Karim, Civil Application No. 27 of 2007 (unreported), Mulenga JSC (as he then was) while construing rule 5 of the Uganda Supreme Court Rules stated

Under r 5 of the Supreme Court Rules, the Court may, for sufficient reason, extend the time prescribed by the Rules. What constitutes “sufficient reason” is left to the Court’s unfettered discretion. In this context, the Court will accept either a reason that prevented an applicant taking the essential step in time or other reasons why the intended appeal should be allowed to proceed though out of time. For example, an application that is brought promptly will be considered more sympathetically than one that is brought after unexplained inordinate delay. But even where the application is unduly delayed, the Court may grant the extension if shutting out the appeal may appear to cause injustice.’

This Court appreciates the reference to the Court’s “unfettered discretion” indicated in the Katatumba case above. Nonetheless, as a matter of practical application and good jurisprudence, the Court’s “unfettered” discretion arises only after “sufficient reason” for extension of time, has been established. Therefore, to that extent, the Court’s discretion in an application to extend time is not unlimited.”

I have considered submissions by counsels for all parties and find that a party who does not file a bill of costs within the prescribed time under Rule 2(2) does not forfeit his right to file his or her bill. This is because the Registrar has discretion under the same rule to allow such further time for filing the bill. The Rule reads that “A bill of costs shall be lodged as soon as practicable after the making of the order for costs and not later than twenty-one (21) days after a request in writing therefore by the party liable, or such further time as the Registrar may allow.” The emphasis is mine and this is the particular line that gives the Registrar discretion to extend time within which a bill will be filed. This means that a party who fails to lodge a bill of costs within 21 days of receiving a request from the party liable does not forfeit his right to file a bill as the Registrar can still exercise his discretion to extend such time upon the party showing reasonable cause and the delay should not be inordinate. Issue No three is therefore answered in the negative .

 

4 Whether the delay was inordinate

I reiterate my findings hereinabove on issue No. 1 that the letter did not satisfy proper notice as envisaged under Rule 2(2) and if it had satisfied the said rule, then time would have started running on the 27th July 2011. In my view this cannot be said to constitute inordinate delay due to the fact that it is still difficult to say with certainty specific period of delay that would be considered inordinate. This depends on the circumstances of the case and the effects of the delay to the other party. The point to consider here is whether the delay claimed by the respondent as inordinate and inexcusable, prejudices the interest of the respondent and whether the delay gives rise to a substantial risk. In the case of Carroll Shipping Ltd V Mathews Mulcahy and Sutherland Ltd, Unreported, High Court Kenya,18 December 1996, a delay of 15 years since the issue of the plenary summons was held to be “undoubtedly inordinate”, while in the case of Byrne V ITGWU, Unreported ,High Court Kenya,30 November 1995, a delay of 4 years was held to be ordinate. In this matter if we count the time from the date when Hon. Ogalo claimed to have seen the letter according to his affidavit, to the time he came to file the Notice of Motion, there was a two months delay. In my observation therefore I do not think this amount to an inexcusable or inordinate delay and I disagree with counsel for the respondent’s submission that this was inordinate delay.

With regard to the 2nd Applicant, the reasons provided for not filing their bill of Costs within the prescribed time is simple and straight forward. They claim that they did not receive the notice or the copy of the letter they were copied by the Respondent addressed to the Registrar requiring him to take notice of the fact that the 2nd Applicant had been given notice to file their bill of costs and that the twenty one days required for them to do so had lapsed.

The 2nd Applicant’s argument on why they did not receive the said letter is that it was addressed to the Secretary of the Commission instead of having the notice addressed to the legal department.

 

5. Whether sufficient reasons have been established, as provided under Rule 4 of the East African Court of Justice Rules of Procedure, to warrant an extension of time to file bills of costs.

Having considered submissions by counsels for all parties I am of the view that since the letters being relied upon as written requests for the bills as provided under Rule 2(2) of the East African Court of Justice Rules of Procedure do not in themselves constitute requests as provided for in the Rules of the Court, there was no proper service. Although the applicants have not adduced supplementary evidence other than Hon. Ogalo’s affidavit to support the assertion that Hon. Ogalo had travelled during the period, I do not have reasons to doubt that affidavit. The 2nd applicant’s lawyer’s argument that all advocates in the legal department of the Electoral Commission were involved in election petitions during that period cannot be sustained as this court has its own rules and election petitions in Uganda cannot take precedence over matters of the East African Court of Justice. It should be understood that the legal department of the Electoral Commission is not constituted of one lawyer and this Court cannot condone personalization of official matters like the one under consideration. However, the effect of this finding is diluted by my earlier finding on the letters as written requests envisaged under Rule 2 (2) which is in negative.

I should point out as I conclude that the respondent messed up the procedure for service when he decided to unceremoniously take over from his lawyers and acted contrary to the law. He should not be made to benefit from his own messy intervention that made others to suffer.

It is in the strength of the foregoing that I find the applicants having established sufficient reasons, as provided under Rule 4 of the East African Court of Justice Rules of Procedure, to warrant me exercise my discretion and extend time to file bills of costs as applied by the applicants. Holding otherwise in these circumstances may amount to shutting out the applicants from filing their bill of costs for taxation and this would cause injustice. The applicants are ordered to file their respective bills of costs within the next 14 days from the date of this ruling. I also order that each party should bear its own costs.

 

It is so ordered.

 

Delivered at Arusha this…………….day of………………………..2013

 

Prof. Dr. John Eudes Ruhangisa