Mukamulisa J

Author
UAnn Mokone
Judgment date
Court name
African Court on Human and Peoples Rights
Judge
Aboud J
Tchikaya J
Kioko J
Mengue J
Mukamulisa J
Chizumila J
Bensaoula J
Anukam J
Eno R
Author
UAnn Mokone
Judgment date
Court name
African Court on Human and Peoples Rights
Judge
Tchikaya J
Kioko J
Ben Achour J
Mengue J
Mukamulisa J
Chizumila J
Bensaoula J
Anukam J
Eno R
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 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
UAnn Mokone
Judgment date
Court name
African Court on Human and Peoples Rights
Judge
Orè P
Kioko VP
Ben Achour J
Matusse J
Mengue J
Mukamulisa J
Chizumila J
Bensaoula J
Tchikaya J
Anukam J
Aboud J
Eno R
Author
UAnn Mokone
Judgment date
Court name
African Court on Human and Peoples Rights
Judge
Orè P
Kioko VP
Ben Achour J
Matusse J
Mengue J
Mukamulisa J
Chizumila J
Bensaoula J
Tchikaya J
Anukam J
Aboud J
Eno R
Author
UAnn Mokone
Judgment date
Court name
African Court on Human and Peoples Rights
Judge
Orè P
Kioko VP
Ben Achour J
Matusse J
Mengue J
Mukamulisa J
Bensaoula J
Tchikaya J
Anukam J
Aboud J
Eno R