African Court Law Report: Volume 2 (2017-2018)
African Court Law Report: Volume 2 (2017-2018)
African Court Law Report: Volume 2 (2017-2018)
Volume 2 (2017-2018)
African Court Law Report
African Court on Human and Peoples’ Rights
ISBN: 978-1-920538-94-1
PULP
Editors
2019
Report of judgments, orders and advisory opinions of the
African Court on Human and Peoples’ Rights
African Court Law Report Volume 2 (2017-2018)
Published by:
Pretoria University Law Press (PULP)
The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law,
University of Pretoria, South Africa. PULP endeavours to publish and make
available innovative, high-quality scholarly texts on law in Africa. PULP also
publishes a series of collections of legal documents related to public law in
Africa, as well as text books from African countries other than South Africa.
To order, contact:
PULP, Centre for Human Rights, Faculty of Law, University of Pretoria, South
Africa, 0002
Tel: +27 12 420 4948, E-mail: pulp@up.ac.za
www.pulp.up.ac.za
ISSN: 2663-3248
© 2019
The African Court on Human and Peoples' Rights holds the copyright of this Law Report.
The Centre for Human Rights manages its publication.
Table of contents
Editorial.......................................................................................v
User Guide ................................................................................vi
Acknowledgment ...................................................................... vii
Table of Cases ........................................................................ viii
Alphabetical Table of Cases......................................................xi
Subject Index........................................................................... xiii
Instruments Cited .................................................................. xxiii
Cases Cited ................................................................................li
Contentious Matters .................................................................. 1
Advisory Proceedings............................................................ 572
iii
Editorial
v
User Guide
vi
Acknowledgment
vii
Table of Cases
CONTENTIOUS MATTERS
Nyamwasa and Others v Rwanda, Application 016/2015
Order (interim measures), 24 March 2017 (2017) 2 AfCLR 1
African Commission on Human and Peoples’ Rights v Kenya,
Application 006/2012
Judgment (merits), 26 May 2017 (2017) 2 AfCLR 9
Onyachi and Njoka v Tanzania, Application 003/2015
Judgment (merits), 28 September 2017 (2017) 2 AfCLR 65
Jonas v Tanzania, Application 011/2015
Judgment (merits), 28 September 2017 (2017) 2 AfCLR 101
Diakité v Mali, Application 009/2016
Judgment (jurisdiction and admissibility), 28 September 2017 (2017) 2
AfCLR 118
Thomas v Tanzania, Application 001/2017
Judgment (interpretation), 28 September 2017 (2017) 2 AfCLR 126
Abubakari v Tanzania, Application 002/2017
Judgment (interpretation), 28 September 2017 (2017) 2 AfCLR 134
Actions pour la Protection des Droits de l’Homme (APDH) v Côte
d’Ivoire, Application 003/2017
Judgment (interpretation), 28 September 2017 (2017) 2 AfCLR 141
Mulindahabi v Rwanda, Application 008/2017
Order (jurisdiction and admissibility), 28 September 2017 (2017) 2 AfCLR
145
Mugesera v Rwanda, Application 021/2017
Order (provisional measures), 28 September 2017 (2017) 2 AfCLR 149
Johnson v Ghana, Application 016/2017
Order (provisional measures), 28 September 2017 (2017) 2 AfCLR 155
Umuhoza v Rwanda, Application 003/2014
Judgment (merits), 24 November 2017 (2017) 2 AfCLR 165
Judgment (reparations), 7 December 2018 (2018) 2 AfCLR 202
Woyome v Ghana, Application 001/2017
Order (provisional measures), 24 November 2017 (2017) 2 AfCLR 213
viii
Isiaga v Tanzania, Application 032/2015
Judgment (merits), 21 March 2018 (2018) 2 AfCLR 218
Kouma and Diabaté v Mali, Application 040/2016
Judgment (merits), 21 March 2018 (2018) 2 AfCLR 237
Anudo v Tanzania, Application 012/2015
Judgment (merits), 22 March 2018 (2018) 2 AfCLR 248
Gombert v Côte d’Ivoire, Application 038/2016
Judgment (jurisdiction and admissibility), 22 March 2018 (2018) 2 AfCLR
270
Nguza v Tanzania, Application 006/2015
Judgment (merits), 23 March 2018 (2018) 2 AfCLR 287
Mango v Tanzania, Application 005/2015
Judgment (merits), 11 May 2018 (2018) 2 AfCLR 314
Ramadhani v Tanzania, Application 010/2015
Judgment (merits), 11 May 2018 (2018) 2 AfCLR 344
Chrysanthe v Rwanda, Application 022/2015
Judgment (jurisdiction and admissibility), 11 May 2018 (2018) 2 AfCLR 361
Kemboge v Tanzania, Application 002/2016
Judgment (merits), 11 May 2018 (2018) 2 AfCLR 369
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development
in Africa v Mali, Application 046/2016
Judgment (merits), 11 May 2018 (2018) 2 AfCLR 380
Evarist v Tanzania, Application 027/2015
Judgment (merits), 21 September 2018 (2018) 2 AfCLR 402
William v Tanzania, Application 016/2016
Judgment (merits), 21 September 2018 (2018) 2 AfCLR 426
Paulo v Tanzania, Application 020/2016
Judgment (merits), 21 September 2018 (2018) 2 AfCLR 446
Ajavon v Benin, Application 013/2017
Order (re-opening), 5 December 2018 (2018) 2 AfCLR 466
Order (provisional measures), 7 December 2018 (2018) 2 AfCLR 470
Guehi v Tanzania, Application 001/2016
Judgment (merits and reparations), 7 December 2018 (2018) 2 AfCLR 477
Werema v Tanzania, Application 024/2015
Judgment (merits), 7 December 2018 (2018) 2 AfCLR 520
ix
Makungu v Tanzania, Application 006/2016
Judgment (merits), 7 December 2018 (2018) 2 AfCLR 550
ADVISORY PROCEEDINGS
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project, Application 001/2013
Advisory Opinion, 26 May 2017 (2017) 2 AfCLR 572
Request for Advisory Opinion by Rencontre Africaine pour la
Défense des Droits de l’Homme, Application 002/2014
Advisory Opinion, 28 September 2017 (2017) 2 AfCLR 594
Request for Advisory Opinion by the Centre for Human Rights,
University of Pretoria and the Coalition of African Lesbians,
Application 002/2015
Advisory Opinion, 28 September 2017 (2017) 2 AfCLR 606
Request for Advisory Opinion by the Centre for Human Rights,
University of Pretoria and Others, Application 001/2016
Advisory Opinion, 28 September 2017 (2017) 2 AfCLR 622
Request for Advisory Opinion by l’Association Africaine de
Défense de Droits de l’Homme, Application 002/2016
Advisory Opinion, 28 September 2017 (2017) 2 AfCLR 637
x
Alphabetical Table of Cases
xi
Request for Advisory Opinion by Rencontre Africaine pour la Défense des
Droits de l’Homme (Advisory Opinion) (2017) 2 AfCLR 594
Request for Advisory Opinion by the Centre for Human Rights, University of
Pretoria and the Coalition of African Lesbians (Advisory Opinion) (2017)
2 AfCLR 606
Request for Advisory Opinion by the Centre for Human Rights, University of
Pretoria and Others (Advisory Opinion) (2017) 2 AfCLR 622
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Chrysanthe v Rwanda (jurisdiction and admissibility) (2018) 2 AfCLR 361
Thomas v Tanzania (interpretation (2017) 2 AfCLR 126
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Umuhoza v Rwanda (reparations) (2018) 2 AfCLR 202
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Woyome v Ghana (provisional measures) (2017) 2 AfCLR 213
xii
Subject Index
GENERAL PRINCIPLES AND PROCEDURE
Admissibility
Exhaustion of local remedies
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Diakité v Mali (jurisdiction and admissibility) (2017) 2 AfCLR 118
Mulindahabi v Rwanda (jurisdiction and admissibility) (2017) 2 AfCLR 145
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Gombert v Côte d’Ivoire (jurisdiction and admissibility) (2018) 2 AfCLR 270
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Chrysanthe v Rwanda (jurisdiction and admissibility) (2018) 2 AfCLR 361
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
William v Tanzania (merits) (2018) 2 AfCLR 426
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Constitutional petition
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in
Africa v Mali (merits) (2018) 2 AfCLR 380
Availability, effectiveness, sufficiency
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Extra-ordinary remedies
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Isiaga v Tanzania (merits) (2018) 2 AfCLR 218
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Kemboge v Tanzania (merits) (2018) 2 AfCLR 369
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Issues not raised in dometic proceedings
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
xiii
Unduly prolonged
African Commission on Human and Peoples’ Rights v Kenya (merits)
(2017) 2 AfCLR 9
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Pending case
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Previous settlement
Gombert v Côte d’Ivoire (jurisdiction and admissibility) (2018) 2 AfCLR 270
Request for interpretation
Actions pour la Protection des Droits de l’Homme (APDH) v Côte d’Ivoire
(interpretation) (2017) 2 AfCLR 141
Standing of original complainant
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Submission within reasonable time
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Isiaga v Tanzania (merits) (2018) 2 AfCLR 218
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Gombert v Côte d’Ivoire (jurisdiction and admissibility) (2018) 2 AfCLR 270
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
William v Tanzania (merits) (2018) 2 AfCLR 426
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Exceptional crisis
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in
Africa v Mali (merits) (2018) 2 AfCLR 380
xiv
Costs
Pro bono counsel
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Supporting documents
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Evidence
Burden of proof
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Interim measures
Request for interim measures overtaken by events
Nyamwasa and Others (interim measures (2017) 2 AfCLR 1
Interpretation
International instruments
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Universal Declaration forms part of customary international law
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Jurisdiction
Advisory proceedings
Jurisdiction to consider request for advisory opinion from NGO
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Request for Advisory Opinion by Rencontre Africaine pour la Défense
des Droits de l’Homme (Advisory Opinion) (2017) 2 AfCLR 594
Request for Advisory Opinion by the Centre for Human Rights,
University of Pretoria and the Coalition of African Lesbians
(Advisory Opinion) (2017) 2 AfCLR 606
Request for Advisory Opinion by the Centre for Human Rights,
University of Pretoria and Others (Advisory Opinion) (2017) 2
AfCLR 622
Request for Advisory Opinion by l’Association Africaine de Défense de
Droits de l’Homme (Advisory Opinion) (2017) 2 AfCLR 637
xv
Material jurisdiction
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Isiaga v Tanzania (merits) (2018) 2 AfCLR 218
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Kemboge v Tanzania (merits) (2018) 2 AfCLR 369
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
William v Tanzania (merits) (2018) 2 AfCLR 426
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Consular assistance
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Personal jurisdiction
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Temporal jurisdiction
Continuous violation
African Commission on Human and Peoples’ Rights v Kenya (merits)
(2017) 2 AfCLR 9
Limitations of rights
State must show justification
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Procedure
Amicable settlement procedure unsuccessful
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
xvi
Hearing of original complainant
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Public hearing
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Provisional measures
Death penalty
Johnson v Ghana (provisional measures) (2017) 2 AfCLR 155
Extreme urgency, irreparable harm
Mugesera v Rwanda (provisional measures) (2017) 2 AfCLR 149
Woyome v Ghana (provisional measures) (2017) 2 AfCLR 213
Prima facie jurisdiction
Mugesera v Rwanda (provisional measures) (2017) 2 AfCLR 149
Woyome v Ghana (provisional measures) (2017) 2 AfCLR 213
Reparations
Amendment of legislation
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Compensation
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
Eliminate effects of violation
Abubakari v Tanzania (interpretation) (2017) 2 AfCLR 134
Thomas v Tanzania (interpretation (2017) 2 AfCLR 126
Evidence
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Lawyers’ fees
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Material prejudice
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
xvii
Moral prejudice
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Not appellate court
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
William v Tanzania (merits) (2018) 2 AfCLR 426
Power to annul expulsion decision
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Publication of judgment
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Release, exceptional remedy
Isiaga v Tanzania (merits) (2018) 2 AfCLR 218
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
William v Tanzania (merits) (2018) 2 AfCLR 426
Reopening of proceedings
William v Tanzania (merits) (2018) 2 AfCLR 426
Repeal legislation
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
SUBSTANTIVE RIGHTS
Cultural life
Definition of culture
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
xviii
Respect for and protection of cultural heritage
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Equality, non-discrimination
Any other status
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Different age of marriage for men and women
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Elements of discrimination
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Ogieks not granted same recognition as other similar communities
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Expression
Importance
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Limitations
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Political criticism
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Expulsion
Arbitrary
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Fair trial
Absence of accused
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
xix
Appeal
Access to record of proceedings and judgment
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Consular assistance
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Defence
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Evidence
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Isiaga v Tanzania (merits) (2018) 2 AfCLR 218
Mango v Tanzania (merits) (2018) 2 AfCLR 314
William v Tanzania (merits) (2018) 2 AfCLR 426
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Extradition
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Identification parade
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Legal aid
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Isiaga v Tanzania (merits) (2018) 2 AfCLR 218
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
William v Tanzania (merits) (2018) 2 AfCLR 426
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Non-retroactivity
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Presumption of innocence
xx
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Prompt information about charges
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Right to be heard
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Trial within reasonable time
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Harmful practices
Child marriage
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Indigenous peoples
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Inheritance
Women and children
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Life
Physical not existential
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Marriage
Free consent
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Nationality
Statelessness
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
xxi
People
Definition
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Property
Elements of right to property
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Land rights of indigenous peoples
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Limitations in public interest
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Religion
Natural environment, traditional rites
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
xxii
Instruments Cited
AFRICAN UNION INSTRUMENTS
Article 1
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Thomas v Tanzania (interpretation (2017) 2 AfCLR 126
Mulindahabi v Rwanda (jurisdiction and admissibility) (2017) 2 AfCLR 145
Johnson v Ghana (provisional measures) (2017) 2 AfCLR 155
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Article 2
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Diakité v Mali (jurisdiction and admissibility) (2017) 2 AfCLR 118
Woyome v Ghana (provisional measures) (2017) 2 AfCLR 213
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Chrysanthe v Rwanda (jurisdiction and admissibility) (2018) 2 AfCLR 361
William v Tanzania (merits) (2018) 2 AfCLR 426
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
xxiii
Article 3
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Diakité v Mali (jurisdiction and admissibility) (2017) 2 AfCLR 118
Actions pour la Protection des Droits de l’Homme (APDH) v Côte d’Ivoire
(interpretation) (2017) 2 AfCLR 141
Johnson v Ghana (provisional measures) (2017) 2 AfCLR 155
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Woyome v Ghana (provisional measures) (2017) 2 AfCLR 213
Gombert v Côte d’Ivoire (jurisdiction and admissibility) (2018) 2 AfCLR 270
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Chrysanthe v Rwanda (jurisdiction and admissibility) (2018) 2 AfCLR 361
Kemboge v Tanzania (merits) (2018) 2 AfCLR 369
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
William v Tanzania (merits) (2018) 2 AfCLR 426
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Ajavon v Benin (provisional measures) (2018) 2 AfCLR 470
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Article 4
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Mugesera v Rwanda (provisional measures) (2017) 2 AfCLR 149
Johnson v Ghana (provisional measures) (2017) 2 AfCLR 155
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Chrysanthe v Rwanda (jurisdiction and admissibility) (2018) 2 AfCLR 361
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Article 5
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
xxiv
Mugesera v Rwanda (provisional measures) (2017) 2 AfCLR 149
Johnson v Ghana (provisional measures) (2017) 2 AfCLR 155
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
Ajavon v Benin (provisional measures) (2018) 2 AfCLR 470
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Article 6
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Mugesera v Rwanda (provisional measures) (2017) 2 AfCLR 149
Johnson v Ghana (provisional measures) (2017) 2 AfCLR 155
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Ajavon v Benin (provisional measures) (2018) 2 AfCLR 470
Article 7
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Diakité v Mali (jurisdiction and admissibility) (2017) 2 AfCLR 118
Thomas v Tanzania (interpretation (2017) 2 AfCLR 126
Abubakari v Tanzania (interpretation) (2017) 2 AfCLR 134
Mugesera v Rwanda (provisional measures) (2017) 2 AfCLR 149
Johnson v Ghana (provisional measures) (2017) 2 AfCLR 155
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Umuhoza v Rwanda (reparations) (2018) 2 AfCLR 202
Woyome v Ghana (provisional measures) (2017) 2 AfCLR 213
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Gombert v Côte d’Ivoire (jurisdiction and admissibility) (2018) 2 AfCLR 270
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Mango v Tanzania (merits) (2018) 2 AfCLR 314
xxv
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Chrysanthe v Rwanda (jurisdiction and admissibility) (2018) 2 AfCLR 361
Kemboge v Tanzania (merits) (2018) 2 AfCLR 369
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
William v Tanzania (merits) (2018) 2 AfCLR 426
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Ajavon v Benin (provisional measures) (2018) 2 AfCLR 470
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Request for Advisory Opinion by Rencontre Africaine pour la Défense des
Droits de l’Homme (Advisory Opinion) (2017) 2 AfCLR 594
Article 8
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Article 9
Mugesera v Rwanda (provisional measures) (2017) 2 AfCLR 149
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Umuhoza v Rwanda (reparations) (2018) 2 AfCLR 202
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Article 12
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Article 13
Nyamwasa and Others (interim measures (2017) 2 AfCLR 1
Actions pour la Protection des Droits de l’Homme (APDH) v Côte d’Ivoire
(interpretation) (2017) 2 AfCLR 141
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Request for Advisory Opinion by Rencontre Africaine pour la Défense des
Droits de l’Homme (Advisory Opinion) (2017) 2 AfCLR 594
Article 14
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
xxvi
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Diakité v Mali (jurisdiction and admissibility) (2017) 2 AfCLR 118
Abubakari v Tanzania (interpretation) (2017) 2 AfCLR 134
Mulindahabi v Rwanda (jurisdiction and admissibility) (2017) 2 AfCLR 145
Ajavon v Benin (provisional measures) (2018) 2 AfCLR 470
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Article 15
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Article 16
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Kemboge v Tanzania (merits) (2018) 2 AfCLR 369
Article 17
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Chrysanthe v Rwanda (jurisdiction and admissibility) (2018) 2 AfCLR 361
Article 18
Mugesera v Rwanda (provisional measures) (2017) 2 AfCLR 149
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Article 19
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Article 20
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
xxvii
Article 21
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Article 22
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Article 23
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Diakité v Mali (jurisdiction and admissibility) (2017) 2 AfCLR 118
Article 24
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Article 25
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Article 26
Mugesera v Rwanda (provisional measures) (2017) 2 AfCLR 149
Ajavon v Benin (provisional measures) (2018) 2 AfCLR 470
Article 27
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Article 28
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Article 34
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Diakité v Mali (jurisdiction and admissibility) (2017) 2 AfCLR 118
xxviii
Mugesera v Rwanda (provisional measures) (2017) 2 AfCLR 149
Article 40
Gombert v Côte d’Ivoire (jurisdiction and admissibility) (2018) 2 AfCLR 270
Article 50
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Chrysanthe v Rwanda (jurisdiction and admissibility) (2018) 2 AfCLR 361
Kemboge v Tanzania (merits) (2018) 2 AfCLR 369
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Article 56
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Diakité v Mali (jurisdiction and admissibility) (2017) 2 AfCLR 118
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Gombert v Côte d’Ivoire (jurisdiction and admissibility) (2018) 2 AfCLR 270
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Chrysanthe v Rwanda (jurisdiction and admissibility) (2018) 2 AfCLR 361
Kemboge v Tanzania (merits) (2018) 2 AfCLR 369
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
William v Tanzania (merits) (2018) 2 AfCLR 426
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
xxix
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Article 58
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Request for Advisory Opinion by Rencontre Africaine pour la Défense des
Droits de l’Homme (Advisory Opinion) (2017) 2 AfCLR 594
Article 59
Request for Advisory Opinion by the Centre for Human Rights, University of
Pretoria and the Coalition of African Lesbians (Advisory Opinion) (2017)
2 AfCLR 606
Article 61
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Article 2
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Request for Advisory Opinion by the Centre for Human Rights, University of
Pretoria and Others (Advisory Opinion) (2017) 2 AfCLR 622
Article 3
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Article 6
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Request for Advisory Opinion by the Centre for Human Rights, University of
Pretoria and Others (Advisory Opinion) (2017) 2 AfCLR 622
Article 14
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
xxx
Article 21
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Article 2
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Article 3
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Diakité v Mali (jurisdiction and admissibility) (2017) 2 AfCLR 118
Mugesera v Rwanda (provisional measures) (2017) 2 AfCLR 149
Johnson v Ghana (provisional measures) (2017) 2 AfCLR 155
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Woyome v Ghana (provisional measures) (2017) 2 AfCLR 213
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
William v Tanzania (merits) (2018) 2 AfCLR 426
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Ajavon v Benin (provisional measures) (2018) 2 AfCLR 29
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
xxxi
Article 4
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Request for Advisory Opinion by Rencontre Africaine pour la Défense des
Droits de l’Homme (Advisory Opinion) (2017) 2 AfCLR 594
Request for Advisory Opinion by the Centre for Human Rights, University of
Pretoria and the Coalition of African Lesbians (Advisory Opinion) (2017)
2 AfCLR 606
Request for Advisory Opinion by the Centre for Human Rights, University of
Pretoria and Others (Advisory Opinion) (2017) 2 AfCLR 622
Request for Advisory Opinion by l’Association Africaine de Défense de Droits
de l’Homme (Advisory Opinion) (2017) 2 AfCLR 637
Article 5
Nyamwasa and Others (interim measures (2017) 2 AfCLR 1
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Woyome v Ghana (provisional measures) (2017) 2 AfCLR 213
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Chrysanthe v Rwanda (jurisdiction and admissibility) (2018) 2 AfCLR 361
Kemboge v Tanzania (merits) (2018) 2 AfCLR 369
William v Tanzania (merits) (2018) 2 AfCLR 426
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Ajavon v Benin (provisional measures) (2018) 2 AfCLR 29
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
xxxii
Request for Advisory Opinion by Rencontre Africaine pour la Défense des
Droits de l’Homme (Advisory Opinion) (2017) 2 AfCLR 594
Request for Advisory Opinion by the Centre for Human Rights, University of
Pretoria and the Coalition of African Lesbians (Advisory Opinion) (2017)
2 AfCLR 606
Request for Advisory Opinion by the Centre for Human Rights, University of
Pretoria and Others (Advisory Opinion) (2017) 2 AfCLR 622
Request for Advisory Opinion by l’Association Africaine de Défense de Droits
de l’Homme (Advisory Opinion) (2017) 2 AfCLR 637
Article 6
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Diakité v Mali (jurisdiction and admissibility) (jurisdiction and admissibility)
(2017) 2 AfCLR 118
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Gombert v Côte d’Ivoire (jurisdiction and admissibility) (2018) 2 AfCLR 270
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Chrysanthe v Rwanda (jurisdiction and admissibility) (2018) 2 AfCLR 361
Kemboge v Tanzania (merits) (2018) 2 AfCLR 369
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
William v Tanzania (merits) (2018) 2 AfCLR 426
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Request for Advisory Opinion by the Centre for Human Rights, University of
Pretoria and Others (Advisory Opinion) (2017) 2 AfCLR 622
xxxiii
Article 9
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Article 10
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
William v Tanzania (merits) (2018) 2 AfCLR 426
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Article 26
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Article 27
Nyamwasa and Others (interim measures (2017) 2 AfCLR 1
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Thomas v Tanzania (interpretation (2017) 2 AfCLR 126
Abubakari v Tanzania (interpretation) (2017) 2 AfCLR 134
Mugesera v Rwanda (provisional measures) (2017) 2 AfCLR 149
Johnson v Ghana (provisional measures) (2017) 2 AfCLR 155
Woyome v Ghana (provisional measures) (2017) 2 AfCLR 213
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Kemboge v Tanzania (merits) (2018) 2 AfCLR 369
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
William v Tanzania (merits) (2018) 2 AfCLR 426
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Ajavon v Benin (provisional measures) (2018) 2 AfCLR 470
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Werema v Tanzania (merits) (2018) 2 AfCLR 520
xxxiv
Article 28
Thomas v Tanzania (interpretation (2017) 2 AfCLR 126
Abubakari v Tanzania (interpretation) (2017) 2 AfCLR 134
Actions pour la Protection des Droits de l’Homme (APDH) v Côte d’Ivoire
(interpretation) (2017) 2 AfCLR 141
Chrysanthe v Rwanda (jurisdiction and admissibility) (2018) 2 AfCLR 361
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Article 34
Nyamwasa and Others (interim measures (2017) 2 AfCLR 1
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Mugesera v Rwanda (provisional measures) (2017) 2 AfCLR 149
Johnson v Ghana (provisional measures) (2017) 2 AfCLR 155
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Woyome v Ghana (provisional measures) (2017) 2 AfCLR 213
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Gombert v Côte d’Ivoire (jurisdiction and admissibility) (2018) 2 AfCLR 270
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Chrysanthe v Rwanda (jurisdiction and admissibility) (2018) 2 AfCLR 361
Kemboge v Tanzania (merits) (2018) 2 AfCLR 369
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
William v Tanzania (merits) (2018) 2 AfCLR 426
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Ajavon v Benin (re-opening of proceedings) (2018) AfCLR 28
Ajavon v Benin (provisional measures) (2018) 2 AfCLR 29
xxxv
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Request for Advisory Opinion by Rencontre Africaine pour la Défense des
Droits de l’Homme (Advisory Opinion) (2017) 2 AfCLR 594
Request for Advisory Opinion by the Centre for Human Rights, University of
Pretoria and the Coalition of African Lesbians (Advisory Opinion) (2017)
2 AfCLR 606
Request for Advisory Opinion by the Centre for Human Rights, University of
Pretoria and Others (Advisory Opinion) (2017) 2 AfCLR 622
Request for Advisory Opinion by l’Association Africaine de Défense de Droits
de l’Homme (Advisory Opinion) (2017) 2 AfCLR 637
Article 36
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Article 1
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Article 2
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Article 3
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Article 4
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Article 11
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
xxxvi
Article 14
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Article 16
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Article 21
Request for Advisory Opinion by the Centre for Human Rights, University of
Pretoria and Others (Advisory Opinion) (2017) 2 AfCLR 622
Article 10
Actions pour la Protection des Droits de l’Homme (APDH) v Côte d’Ivoire
(interpretation) (2017) 2 AfCLR 141
Article 13
Nyamwasa and Others (interim measures (2017) 2 AfCLR 1
Article 17
Actions pour la Protection des Droits de l’Homme (APDH) v Côte d’Ivoire
(interpretation) (2017) 2 AfCLR 141
Article 19
Nyamwasa and Others (interim measures (2017) 2 AfCLR 1
Article 21
Nyamwasa and Others (interim measures (2017) 2 AfCLR 1
Article 22
Nyamwasa and Others (interim measures (2017) 2 AfCLR 1
Article 23
Nyamwasa and Others (interim measures (2017) 2 AfCLR 1
Request for Advisory Opinion by Rencontre Africaine pour la Défense des
Droits de l’Homme (Advisory Opinion) (2017) 2 AfCLR 594
Rule 26
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
xxxvii
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
William v Tanzania (merits) (2018) 2 AfCLR 426
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Request for Advisory Opinion by Rencontre Africaine pour la Défense des
Droits de l’Homme (Advisory Opinion) (2017) 2 AfCLR 594
Rule 27
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Rule 29
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Rule 30
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Diakité v Mali (jurisdiction and admissibility) (jurisdiction and admissibility)
(2017) 2 AfCLR 118
Thomas v Tanzania (interpretation (2017) 2 AfCLR 126
Abubakari v Tanzania (interpretation) (2017) 2 AfCLR 134
Actions pour la Protection des Droits de l’Homme (APDH) v Côte d’Ivoire
(interpretation) (2017) 2 AfCLR 141
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Gombert v Côte d’Ivoire (jurisdiction and admissibility) (2018) 2 AfCLR 270
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
xxxviii
Chrysanthe v Rwanda (jurisdiction and admissibility) (2018) 2 AfCLR 361
Kemboge v Tanzania (merits) (2018) 2 AfCLR 369
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
William v Tanzania (merits) (2018) 2 AfCLR 426
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Rule 31
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Kemboge v Tanzania (merits) (2018) 2 AfCLR 369
William v Tanzania (merits) (2018) 2 AfCLR 426
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Rule 32
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Request for Advisory Opinion by the Centre for Human Rights, University of
Pretoria and the Coalition of African Lesbians (Advisory Opinion) (2017)
2 AfCLR 606
Rule 34
Mulindahabi v Rwanda (jurisdiction and admissibility) (2017) 2 AfCLR 145
Umuhoza v Rwanda (reparations) (2018) 2 AfCLR 202
Woyome v Ghana (provisional measures) (2017) 2 AfCLR 213
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Werema v Tanzania (merits) (2018) 2 AfCLR 520
xxxix
Rule 35
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Diakité v Mali (jurisdiction and admissibility) (2017) 2 AfCLR 118
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Gombert v Côte d’Ivoire (jurisdiction and admissibility) (2018) 2 AfCLR 270
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Chrysanthe v Rwanda (jurisdiction and admissibility) (2018) 2 AfCLR 361
Kemboge v Tanzania (merits) (2018) 2 AfCLR 369
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
William v Tanzania (merits) (2018) 2 AfCLR 426
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Rule 36
Johnson v Ghana (provisional measures) (2017) 2 AfCLR 155
Umuhoza v Rwanda (reparations) (2018) 2 AfCLR 202
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Rule 37
Johnson v Ghana (provisional measures) (2017) 2 AfCLR 155
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Chrysanthe v Rwanda (jurisdiction and admissibility) (2018) 2 AfCLR 361
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Werema v Tanzania (merits) (2018) 2 AfCLR 520
xl
Rule 38
Nyamwasa and Others (interim measures (2017) 2 AfCLR 1
Rule 39
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Diakité v Mali (jurisdiction and admissibility) (2017) 2 AfCLR 118
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Gombert v Côte d’Ivoire (jurisdiction and admissibility) (2018) 2 AfCLR 270
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Chrysanthe v Rwanda (jurisdiction and admissibility) (2018) 2 AfCLR 361
Kemboge v Tanzania (merits) (2018) 2 AfCLR 369
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
William v Tanzania (merits) (2018) 2 AfCLR 426
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Ajavon v Benin (provisional measures) (2018) 2 AfCLR 29
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Request for Advisory Opinion by Rencontre Africaine pour la Défense des
Droits de l’Homme (Advisory Opinion) (2017) 2 AfCLR 594
Request for Advisory Opinion by the Centre for Human Rights, University of
Pretoria and the Coalition of African Lesbians (Advisory Opinion) (2017)
2 AfCLR 606
Request for Advisory Opinion by the Centre for Human Rights, University of
Pretoria and Others (Advisory Opinion) (2017) 2 AfCLR 622
xli
Request for Advisory Opinion by l’Association Africaine de Défense de Droits
de l’Homme (Advisory Opinion) (2017) 2 AfCLR 637
Rule 40
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Diakité v Mali (jurisdiction and admissibility) (2017) 2 AfCLR 118
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Gombert v Côte d’Ivoire (jurisdiction and admissibility) (2018) 2 AfCLR 270
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Kemboge v Tanzania (merits) (2018) 2 AfCLR 369
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
William v Tanzania (merits) (2018) 2 AfCLR 426
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Rule 45
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
xlii
Rule 46
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Rule 48
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Rule 50
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Rule 51
Nyamwasa and Others (interim measures (2017) 2 AfCLR 1
Mugesera v Rwanda (provisional measures) (2017) 2 AfCLR 149
Johnson v Ghana (provisional measures) (2017) 2 AfCLR 155
Woyome v Ghana (provisional measures) (2017) 2 AfCLR 213
Ajavon v Benin (provisional measures) (2018) 2 AfCLR 470
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Rule 53
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Rule 55
Umuhoza v Rwanda (reparations) (2018) 2 AfCLR 202
Rule 57
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Rule 59
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
Rule 61
Johnson v Ghana (provisional measures) (2017) 2 AfCLR 155
Chrysanthe v Rwanda (jurisdiction and admissibility) (2018) 2 AfCLR 361
Rule 63
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
xliii
Umuhoza v Rwanda (reparations) (2018) 2 AfCLR 202
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Kemboge v Tanzania (merits) (2018) 2 AfCLR 369
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Request for Advisory Opinion by the Centre for Human Rights, University of
Pretoria and the Coalition of African Lesbians (Advisory Opinion) (2017)
2 AfCLR 606
Rule 66
Thomas v Tanzania (interpretation (2017) 2 AfCLR 126
Abubakari v Tanzania (interpretation) (2017) 2 AfCLR 134
Actions pour la Protection des Droits de l’Homme (APDH) v Côte d’Ivoire
(interpretation) (2017) 2 AfCLR 141
Rule 67
Chrysanthe v Rwanda (jurisdiction and admissibility) (2018) 2 AfCLR 361
Rule 68
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Request for Advisory Opinion by Rencontre Africaine pour la Défense des
Droits de l’Homme (Advisory Opinion) (2017) 2 AfCLR 594
Request for Advisory Opinion by the Centre for Human Rights, University of
Pretoria and Others (Advisory Opinion) (2017) 2 AfCLR 622
Rule 69
Request for Advisory Opinion by Rencontre Africaine pour la Défense des
Droits de l’Homme (Advisory Opinion) (2017) 2 AfCLR 594
xliv
Request for Advisory Opinion by the Centre for Human Rights, University of
Pretoria and the Coalition of African Lesbians (Advisory Opinion) (2017)
2 AfCLR 606
Request for Advisory Opinion by the Centre for Human Rights, University of
Pretoria and Others (Advisory Opinion) (2017) 2 AfCLR 622
Rule 70
Request for Advisory Opinion by Rencontre Africaine pour la Défense des
Droits de l’Homme (Advisory Opinion) (2017) 2 AfCLR 594
Rule 72
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Request for Advisory Opinion by Rencontre Africaine pour la Défense des
Droits de l’Homme (Advisory Opinion) (2017) 2 AfCLR 594
Request for Advisory Opinion by the Centre for Human Rights, University of
Pretoria and the Coalition of African Lesbians (Advisory Opinion) (2017)
2 AfCLR 606
Request for Advisory Opinion by the Centre for Human Rights, University of
Pretoria and Others (Advisory Opinion) (2017) 2 AfCLR 622
Request for Advisory Opinion by l’Association Africaine de Défense de Droits
de l’Homme (Advisory Opinion) (2017) 2 AfCLR 637
Rule 118
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Article 3
Actions pour la Protection des Droits de l’Homme (APDH) v Côte d’Ivoire
(interpretation) (2017) 2 AfCLR 141
Article 6
Nyamwasa and Others (interim measures (2017) 2 AfCLR 1
xlv
UNITED NATIONS INSTRUMENTS
Article 1
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Article 2
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Article 3
Johnson v Ghana (provisional measures) (2017) 2 AfCLR 155
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Article 5
Johnson v Ghana (provisional measures) (2017) 2 AfCLR 155
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Article 6
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Article 7
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Gombert v Côte d’Ivoire (jurisdiction and admissibility) (2018) 2 AfCLR 270
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Article 8
Gombert v Côte d’Ivoire (jurisdiction and admissibility) (2018) 2 AfCLR 270
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Article 10
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Article 11
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Article 15
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
xlvi
Article 17
Mulindahabi v Rwanda (jurisdiction and admissibility) (2017) 2 AfCLR 145
Article 18
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Article 19
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Article 1
Thomas v Tanzania (interpretation (2017) 2 AfCLR 126
Article 3
Gombert v Côte d’Ivoire (jurisdiction and admissibility) (2018) 2 AfCLR 270
Article 4
Evarist v Tanzania (merits) (2018) 2 AfCLR 2
Article 6
Johnson v Ghana (provisional measures) (2017) 2 AfCLR 155
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Evarist v Tanzania (merits) (2018) 2 AfCLR 2
Article 7
Thomas v Tanzania (interpretation (2017) 2 AfCLR 126
Johnson v Ghana (provisional measures) (2017) 2 AfCLR 155
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Article 8
Evarist v Tanzania (merits) (2018) 2 AfCLR 2
Article 11
Evarist v Tanzania (merits) (2018) 2 AfCLR 2
Article 13
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
xlvii
Article 14
Thomas v Tanzania (interpretation (2017) 2 AfCLR 126
Johnson v Ghana (provisional measures) (2017) 2 AfCLR 155
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Chrysanthe v Rwanda (jurisdiction and admissibility) (2018) 2 AfCLR 361
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Request for Advisory Opinion by Rencontre Africaine pour la Défense des
Droits de l’Homme (Advisory Opinion) (2017) 2 AfCLR 594
Article 15
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Umuhoza v Rwanda (reparations) (2018) 2 AfCLR 202
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Evarist v Tanzania (merits) (2018) 2 AfCLR 2
Article 16
Evarist v Tanzania (merits) (2018) 2 AfCLR 2
Article 18
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Evarist v Tanzania (merits) (2018) 2 AfCLR 2
Article 19
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Umuhoza v Rwanda (reparations) (2018) 2 AfCLR 202
Article 23
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Article 25
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Request for Advisory Opinion by Rencontre Africaine pour la Défense des
Droits de l’Homme (Advisory Opinion) (2017) 2 AfCLR 594
Article 26
Actions pour la Protection des Droits de l’Homme (APDH) v Côte d’Ivoire
(interpretation) (2017) 2 AfCLR 141
Chrysanthe v Rwanda (jurisdiction and admissibility) (2018) 2 AfCLR 361
xlviii
International Covenant on Economic, Social and Cultural Rights
Article 6
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Article 7
Chrysanthe v Rwanda (jurisdiction and admissibility) (2018) 2 AfCLR 361
Article 9
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Article 11
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Article 15
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Article 25
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Article 5
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Article 10
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Article 16
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Article 1
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
xlix
Vienna Convention on the Law of Treaties
Article 28
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Article 31
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Article 36
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Article 37
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Article 56
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Article 8
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Article 26
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Article 6
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Article 8
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Werema v Tanzania (merits) (2018) 2 AfCLR 520
l
Cases Cited
African Court on Human and Peoples’ Rights
Ababou v Algeria
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Ababou v Morocco
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Abubakari v Tanzania
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Kemboge v Tanzania (merits) (2018) 2 AfCLR 369
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
William v Tanzania (merits) (2018) 2 AfCLR 426
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Action Pour la Protection des Droits de l’Homme v Côte d’Ivoire
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
African Commission on Human and Peoples’ Rights v Kenya
Woyome v Ghana (provisional measures) (2017) 2 AfCLR 213
Gombert v Côte d’Ivoire (jurisdiction and admissibility) (2018) 2 AfCLR 270
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
li
African Commission on Human and Peoples’ Rights v Libya
Mugesera v Rwanda (provisional measures) (2017) 2 AfCLR 149
Johnson v Ghana (provisional measures) (2017) 2 AfCLR 155
Woyome v Ghana (provisional measures) (2017) 2 AfCLR 213
Ajavon v Benin (provisional measures) (2018) 2 AfCLR 470
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Amare v Mozambique and Mozambique Airlines
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Paulo v Tanzania
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Anudo v Tanzania
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
APDF and IHRDA v Mali
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
Association des Juristes d’Afrique pour la Bonne Gouvernance v Côte
d’Ivoire
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Chacha v Tanzania
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Diakité v Mali (jurisdiction and admissibility) (2017) 2 AfCLR 118
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Kemboge v Tanzania (merits) (2018) 2 AfCLR 369
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
lii
Convention Nationale des Syndicats du Secteur Education
(CONASYSED) v Gabon
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Delta International Investments SA and De Lange v South Africa
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
William v Tanzania
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Efoua Mbozo’o v Pan African Parliament
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Ekollo v Cameroon and Nigeria
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Evarist v Tanzania
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Gombert v Côte d’Ivoire
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Falana v African Union
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Isiaga v Tanzania
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Kemboge v Tanzania (merits) (2018) 2 AfCLR 369
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
William v Tanzania (merits) (2018) 2 AfCLR 426
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Jonas v Tanzania
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
liii
William v Tanzania (merits) (2018) 2 AfCLR 426
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Juma v Tanzania
Ajavon v Benin (provisional measures) (2018) 2 AfCLR 470
Konaté v Burkina Faso
Diakité v Mali (jurisdiction and admissibility) (2017) 2 AfCLR 118
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Umuhoza v Rwanda (reparations) (2018) 2 AfCLR 202
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Mango v Tanzania
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Mkandawire v Malawi
Kemboge v Tanzania (merits) (2018) 2 AfCLR 369
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (SERAP) (Advisory Opinion) (2017) 2 AfCLR 572
Mtikila v Tanzania
Umuhoza v Rwanda (reparations) (2018) 2 AfCLR 202
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
William v Tanzania (merits) (2018) 2 AfCLR 426
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Mtingwi v Malawi
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
liv
Ingabire Victoire Umuhoza v Rwanda (merits) (2017) 2 AfCLR
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Kemboge v Tanzania (merits) (2018) 2 AfCLR 369
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
William v Tanzania (merits) (2018) 2 AfCLR 426
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Nganyi v Tanzania
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Nguza v Tanzania
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
William v Tanzania (merits) (2018) 2 AfCLR 426
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Omary and Others v Tanzania
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Onyachi and Njoka v Tanzania
Gombert v Côte d’Ivoire (jurisdiction and admissibility) (2018) 2 AfCLR 270
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Kemboge v Tanzania (merits) (2018) 2 AfCLR 369
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Request for Advisory Opinion by Advocate Marcel Ceccaldi on behalf of
the Great Socialist Peoples Libyan Jamahiriya
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Rutechura v Tanzania
Johnson v Ghana (provisional measures) (2017) 2 AfCLR 155
lv
Thomas v Tanzania
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Kemboge v Tanzania (merits) (2018) 2 AfCLR 369
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
William v Tanzania (merits) (2018) 2 AfCLR 426
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Timan v Sudan
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Uko and Others v South Africa
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Umuhoza v Rwanda
Nyamwasa and Others v Rwanda (provisional measures) (2017) 2 AfCLR 1
Mugesera v Rwanda (provisional measures) (2017) 2 AfCLR 149
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Yogogombaye v Senegal
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Zongo and Others v Burkina Faso
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Umuhoza v Rwanda (reparations) (2018) 2 AfCLR 202
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
lvi
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Zongo and Others v Burkina Faso
APDH v Côte d’Ivoire
Gombert v Côte d’Ivoire (jurisdiction and admissibility) (2018) 2 AfCLR 270
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
William v Tanzania (merits) (2018) 2 AfCLR 426
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
lvii
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
William v Tanzania (merits) (2018) 2 AfCLR 426
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Mansaraj and Others v Sierra Leone
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Modise v Botswana
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Southern African Human Rights NGOs Network and Others v Tanzania
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
Tembani and Freeth v Angola and 13 Others
Gombert v Côte d’Ivoire (jurisdiction and admissibility) (2018) 2 AfCLR 270
lviii
International Court of Justice
Ahmadou Sadio Diallo (Guinea v Congo)
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Bosnia-Herzegovina v Serbia and Montenegro
Gombert v Côte d’Ivoire (jurisdiction and admissibility) (2018) 2 AfCLR 270
Ethiopia v South Africa
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Liberia v South Africa
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Liechtenstein v Guatemala
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
lix
Assanidze v Georgia
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
Del Rio Prada v Spain
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Dennis and Others v United Kingdom
Gombert v Côte d’Ivoire (jurisdiction and admissibility) (2018) 2 AfCLR 270
Dobbertin v France
Umuhoza v Rwanda (reparations) (2018) 2 AfCLR 202
Gafgen v Germany
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Gulijev v Lithuania
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Handyside v United Kingdom
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Ivanova and Ivashova v Russia
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Kamenova v Bulgaria
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Luordo v Italy
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Melnyk v Ukraine
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Miragall Escolano and Others v Spain
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Moisejevs v Latvia
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Murat Vural v Turkey
Dobbertin v France Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Papamichalopoulos and Others v Greece
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Poitrimol v France
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
lx
Ramzy v The Netherlands
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Sejdovic v Italy
William v Tanzania (merits) (2018) 2 AfCLR 426
Seyersted and Wiberg v Sweden
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Tsourlakis v Greece
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
lxi
Nyamwasa and Others v Rwanda (interim measures) (2017) 2 AfCLR 1 1
I. The Parties
African Community which sets out the fundamental principles of the East
African Community, including “recognition, promotion and protection of
human and peoples’ rights in accordance with the provisions of the
African Charter on Human and Peoples’ Rights”.
III. Procedure
the leave and the Reply was served on the Respondent by a notice
dated 14 July 2016.
18. By a letter dated 1 March 2016, received at the Registry of
the Court on 2 March 2016, the Respondent notified the Court of its
deposition of an instrument of withdrawal of its Declaration made under
Article 34(6) of the Protocol with respect of Application No. 003/2014,
Ingabire Victore Umuhoza v Republic of Rwanda wherein the letter
stated that:
“The Republic of Rwanda requests that after deposition of the same, the
Court suspends hearings involving the Republic of Rwanda, [including
Ingabire Victoire Umuhoza v Republic of Rwanda], until review is made to
the Declaration and the Court is notified in due course.”
A. Applicant’s Prayers
I. The Parties
B. Alleged violations
III. Procedure
11. The Application was filed before the Court on 12 July 2012 and
served on the Respondent by a notice dated 25 September 2012.
12. On 14 December 2012, the Respondent filed its Response to
the Application in which it raised several Preliminary Objections and
this was transmitted to the Applicant by a letter dated 16 January 2013.
13. On 28 December 2012, the Applicant requested the Court to
issue an Order for Provisional Measures to forestall the implementation
of the directive issued by the Respondent`s Ministry of Lands on 9
November 2012 limiting the restrictions on transactions for land
measuring not more than five acres within the Mau Forest Complex
Area.
14. By a letter dated 23 January 2013, Ms Lucy Claridge, Head of
Law, MRGI, Mr Korir Sing’oei, Strategy and Legal Advisor, CEMIRIDE,
and Mr Daniel Kobei, Executive Director of Ogiek People’s Development
Programme (OPDP) sought leave to intervene, and be heard in the
case as original complainants before the Commission in accordance
with Rule 29(3)(c) of the Rules.
15. On 15 March 2013, the Applicant filed its Response to the
Preliminary Objections raised by the Respondent and this was
12 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
Applicant’s representatives
Applicant’s witnesses
Respondent’s representatives
29. Pursuant to Rule 45(1) and Rule 29(1)(c) of the Rules, during
the public hearing, the Court heard Ms Lucy Claridge, Head of Law,
14 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
41. In the Application, the Applicant prays the Court to order the
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017) 2 AfCLR 9 15
Respondent to:
“1. Halt the eviction from the East Mau Forest and refrain from
harassing, intimidating or interfering with the community’s
traditional livelihoods;
2. Recognise the Ogieks’ historic land, and issue it with legal
title that is preceded by consultative demarcation of the
land by the Government and the Ogiek Community, and
for the Respondent to revise its laws to accommodate
communal ownership of property; and
3. Pay compensation to the Ogiek Community for all the
loss they have suffered through the loss of their property,
development, natural resources and also freedom to
practice their religion and culture.”
42. In its Supplementary Submissions on Admissibility, the Applicant
made the following specific prayer:
“The Applicant submits that the Application satisfies Article
56 of the African Charter in relation to the requirements
for Admissibility, and therefore prays the Court to declare
the same Admissible.”
43. In its Submissions on the Merits, the Applicant prays the Court
to make the following Orders:
“A. To adjudge and declare that the Respondent State is in
violation of Articles 1, 2, 4, 8, 14, 17(2) and (3), 21 and 22
of the African Charter on Human and Peoples’ Rights.
B. Declare that the Mau Forest has, since time immemorial,
been the ancestral home of the Ogiek people, and that
its occupation by the Ogiek people is paramount for
their survival and the exercise of their culture, customs,
traditions, religion and for the well-being of their
community.
C. Declare that the occupation of the Mau Forest through
time immemorial by the Ogiek people and their use of
the various natural resources therein, including the flora
and fauna, such as honey, plants, trees and wild game
of the Mau Forest, for food, clothing, medicines, shelter
and other needs, was sustainable and did not lead to the
rampant destruction or deforestation of the Mau Forest
D. Find that the granting by the Respondent State, of rights
such as land titles and concessions in the Mau Forest,
at different periods to non-Ogiek persons, individuals and
corporate bodies, contributed to the destruction of the
Mau Forest, and did not benefit the Ogiek people, thus
16 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
1 The Applicant asserts that this list is non-exhaustive and the Court is respectfully
invited to supplement these methods of reparation with additional requirements.
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017) 2 AfCLR 9 17
46. In its Response, the Respondent prays the Court to rule that
the Application is inadmissible and to order that it be referred back
to the Respondent for resolution, notably, through an amicable
settlement for a peaceful and lasting solution. The Respondent also
made submissions on the merits elaborating on its position thereon
and prayed the Court to put the Applicant to strict proof and find that
there has been no violations of the rights of the Ogeiks, as alleged by
the Applicant. The Respondent did not make any additional prayers.
V. Jurisdiction
47. In accordance with Rule 39(1) of the Rules, the Court shall
conduct a preliminary examination of its jurisdiction before dealing with
the merits of the Application.
A. Material jurisdiction
i. Respondent’s objection
48. The Respondent contends that rather than filing the Application
before the Court, the Commission ought to have drawn the attention of
the Assembly of Heads of State and Government of the African Union
(AU) once it was convinced that the communication before it relates to
a special case which reveals the existence of “a series of serious or
massive violations of human and peoples’ rights” as provided under
Article 58 of the Charter.
49. The Respondent further submits that the Court failed to conduct
a preliminary examination of its jurisdiction by virtue of Rule 39 of its
Rules in accordance with Article 50 of the Charter, and that it has not
complied with the above cited provision of the Charter.
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017) 2 AfCLR 9 19
51. The Court notes that Article 3(1) of the Protocol and Rule 26(1)
(a) of its Rules govern its material jurisdiction regardless of whether an
Application is filed by individuals, the Commission or States. Pursuant
to these provisions, the material jurisdiction of the Court extends “to all
cases and disputes submitted to it concerning the interpretation and
application of the Charter, [its] Protocol and any other relevant human
rights instrument ratified by the States concerned”. The only pertinent
consideration for the Court in ascertaining its material jurisdiction in
accordance with both Article 3(1) of the Protocol and Rule 26(1)(a) of
its Rules is thus whether an Application relates to an alleged violation
of the rights protected by the Charter or other human rights instruments
to which the Respondent is a Party. In this vein, the Court has held that
“as long as the rights allegedly violated are protected by the Charter
or any other human rights instruments ratified by the State concerned,
the Court will have jurisdiction over the matter”.2
52. In the instant Application, the Applicant alleges the violation of
several rights and freedoms guaranteed under the Charter and other
international human rights instruments ratified by the Respondent,
especially, the ICCPR and the ICESR. Accordingly, the Application
satisfies the requirements of Article 3(1) of the Protocol.
B. Personal jurisdiction
i. Respondent’s objection
57. The Applicant, citing its own jurisprudence, submits that it has
adopted the actio popularis doctrine which allows anyone to file a
3 See also Rule 118(3) of the Rules of Procedure of the African Commission on
Human and Peoples’ Rights.
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017) 2 AfCLR 9 21
C. Temporal jurisdiction
i. Respondent`s objection
64. The Court has held that the relevant dates concerning its
temporal jurisdiction are the dates when the Respondent became a
Party to the Charter and the Protocol, as well as, where applicable, the
date of deposit of the declaration accepting the jurisdiction of the Court
to receive Applications from individuals and NGOs, with respect to the
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017) 2 AfCLR 9 23
Respondent.5
65. The Court notes that the Respondent became a Party to the
Charter on 10 February 1992 and a Party to the Protocol on 4 February
2004. The Court also notes that, though the evictions by the Respondent
leading to the alleged violations began before the aforementioned
dates, these evictions are continuing. In this regard, the Court notes
in particular, the threats of eviction issued in 2005 and the notice to
vacate the South Western Mau Forest Reserve issued on 26 October
2009 by the Director of Kenya Forestry Service. It is the Court’s view
that the Respondent’s alleged violations of its international obligations
under the Charter are continuing, and as such, the matter falls within
the temporal jurisdiction of the Court.
66. In view of the foregoing, the Court finds that it has temporal
jurisdiction to hear the Application.
D. Territorial jurisdiction
67. The territorial jurisdiction of the Court has not been challenged
by the Respondent, however it should be stated that since the alleged
violations occurred within the territory of the Respondent, a Member
State of the African Union that has ratified the Protocol, the Court has
territorial jurisdiction in this regard.
68. Based on the foregoing, the Court finds that it has jurisdiction to
examine this Application.
VI. Admissibility
70. The Respondent raised two objections under this head, namely
that the Application is still pending before the Commission and that the
Court did not undertake a preliminary examination of its admissibility in
5 See The Beneficiaries of the Late Norbert Zongo, Abdoulaye Nikiema alias Ablasse,
Ernest Zongo and Blaise IIboudo and the Burkinabe Movement on Human and
Peoples’ Rights v Burkina Faso (hereinafter referred to as Norbert Zongo Case)
(Ruling on Preliminary Objections) 21 June 2013, paras 61 to 64.
24 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
a. Respondent’s objection
b. Applicant`s submission
72. The Applicant argues that the Court’s jurisdiction was properly
invoked and avers that the case was referred to the Court by the
Commission pursuant to Article 5(1) (a) of the Protocol, Rule 33(1) (a)
of the Rules and Rule 118(2) and (3) of the Rules of Procedure of the
Commission. According to the Applicant, having seized the Court, it
can no longer be argued that the matter is pending before
the Commission.
73. With regard to the objection by the Respondent that the matter
is pending before the Commission, the Court notes that the Applicant
in the present matter is the Commission, which seized the Court in
conformity with Article 5(1) of the Protocol.
74. Having seized the Court, the Commission decided not to examine
the matter itself. The seizure of the Court by the Commission signifies
in effect that the matter is no longer pending before the Commission,
and there is therefore no parallel procedure before the Commission on
the one hand and the Court on the other.
75. The Respondent’s objection to the admissibility on the grounds
that this matter is pending before the Commission is thus dismissed.
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017) 2 AfCLR 9 25
a. Respondent’s objection
76. The Respondent submits that the Court has failed to conduct a
preliminary examination of the admissibility of the Application by virtue
of Articles 50 and 56 of the Charter and Rule 40 of the Rules, and that
adverse orders should not have been issued against it without being
given an opportunity to be heard.
b. Applicant’s submission
77. The Applicant submits that the Application meets all the
admissibility requirements provided under Article 56 of the Charter,
as it was filed before the Court pursuant to Article 5(1)(a) of the
Protocol against a State Party both to the Protocol and the Charter,
for alleged violations that occurred within the Respondent’s territory.
The Applicant further states that Article 50 of the Charter does not
apply to this Application since it relates to admissibility procedures
for “Communications from States”, whereas the instant Application is
not such an Application. The Applicant maintains that the Respondent
has been accorded an opportunity to be heard at the Commission,
when the Commission served the original complaint before it on the
Respondent and the latter filed submissions on admissibility thereof.
78. The Court observes that even though the rules of admissibility
applied by the Commission and this Court are substantially similar,
the admissibility procedures with respect to an Application filed before
the Commission and this court are distinct and shall not be conflated.
Accordingly, the Court is of the view that admissibility and other
procedures relating to a complaint before the Commission are not
necessarily relevant in determining the admissibility of an Application
before this Court.
79. In any event, as is the case with its jurisdiction, the Court can
decide on the admissibility of an Application before it, only after having
heard from the Parties.
80. The Respondent’s objection is therefore dismissed.
26 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
81. Under this head, the Respondent raised two objections, namely,
the failure to identify the Applicant and failure to exhaust local remedies.
82. In determining the admissibility of an application, the Court is
guided by Article 6(2) of the Protocol, which provides that, the Court
shall take into account the provisions of Article 56 of the Charter. The
provisions of this Article are restated in Rule 40 of the Rules 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 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.”
83. The Respondent has raised objections with respect to the
conditions of admissibility pursuant to Rule 40(1) and Rule 40(5) of
the Rules. The Court will proceed to examine the admissibility of the
Application starting with the conditions of admissibility that are in
dispute.
a. Respondent`s objection
b. Applicant’s submission
a. Respondent`s objection
b. Applicant’s submission
93. Any application filed before this Court must comply with the
requirement of exhaustion of local remedies. The rule of exhaustion
of domestic remedies reinforces and maintains the primacy of the
domestic system in the protection of human rights vis-à-vis the Court.
The Court notes that Article 56(5) of the Charter and Rule 40(5) of the
Rules require that for local remedies to be exhausted, they must be
available and should not be unduly prolonged. In its earlier judgments,
the Court has decided that domestic remedies to be exhausted must be
available, effective and sufficient and must not be unduly prolonged.6
94. The Court also emphasises that the rule of exhaustion of local
remedies does not in principle require that a matter brought before
the Court must also have been brought before the domestic courts by
the same Applicant. What must rather be demonstrated is that, before
a matter is filed before an international human rights body, like this
Court, the Respondent has had an opportunity to deal with such matter
through the appropriate domestic proceedings. Once an Applicant
proves that a matter has passed through the appropriate domestic
judicial proceedings, the requirement of exhaustion of local remedies
shall be presumed to be satisfied even though the same Applicant
before this Court did not itself file the matter before the domestic courts.
95. In the instant Application, the Court notes that the Applicant has
provided evidence that members of the Ogiek community have litigated
several cases before the national courts of the Respondent, some
6 See in this regard Lohé Issa Konaté v Burkina Faso (Judgment on Merits) 5
December 2014 (hereinafter referred to as Issa Konate Case) paragraphs 96 to
115; Norbert Zongo Case (Judgment on Merits) 28 March 2014 paragraphs 56 to
106.
30 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
have been concluded against the Ogiek and some are still pending.7 In
the circumstance, the Respondent can thus reasonably be considered
to have had the opportunity to address the matter before it was brought
before this Court.
96. Furthermore, from available records, the Court notes that some
cases filed before national courts were unduly prolonged, some taking
10 to 17 years before being completed or were still pending at the
time this Application was filed.8 In this regard, the Court observes
that the nature of the judicial procedures and the role played by
the Parties therein in the domestic system could affect the pace at
which proceedings may be completed. In the instant Application, the
records before this Court show that the prolonged proceedings before
the domestic courts were largely occasioned by the actions of the
Respondent, including numerous absences during Court proceedings
and failure to timely defend its case.9 In view of this, the Court holds
that the Respondent`s contention imputing the inordinate delays in the
domestic system to the adversarial nature of its judicial procedures is
not plausible.
97. Regarding the possibility for the original complainants to have
seized the Respondent’s National Human Rights Commission with the
alleged violations, the Court notes that, the said Commission does not
have any judicial powers. The functions of its national human rights
commission are to resolve conflicts by fostering reconciliation and
issuing recommendations to appropriate state organs.10 This Court
has consistently held that for purpose of exhaustion of local remedies,
available domestic remedies shall be judicial.11 In the instant case, the
remedy the Respondent is requesting the Applicant to exhaust, that
is, procedures before the National Human Rights Commission, is not
7 See case of Francis Kemai and 9 Others v Attorney General and 3 Others, High
Court Civil Application No. 238 of 1999 ; case of Joseph Letuya and 21 Others v
Attorney General and 2 Others, Miscellaneous Application No. 635 of 1997 High
Court of Kenya at Nairobi.
8 See case of Joseph Letuya & 210 Others v Attorney General & 2 Others,
Miscellneous Application No. 635 of 1997 before the High Court at Nairobi,
(completed after 17 years of procedure); case of Joseph Letuya & 21 Others v
Minister of Environment, Miscellaneous Application No. 228 of 2001 before the
High Court at Nairobi, (instituted in 2001 and still pending at the time the Application
was filed before this Court);case of Stephen Kipruto Tigerer v Attorney General &
5 Others, No. 25 of 2006 before the High Court at Nakuru, (instituted in 2006 and
was still pending at the time the Application was filed before this Court).
9 For a detailed account, see Complaints’ Submissions on Admissibility, CEMIRIDE,
Minority Rights Group International and Ogiek Peoples Development Programme
(On behalf of the Ogiek Community), pages 15-24.
10 See Section 3 of the Kenya National Human Rights Commission Act.
11 See Mohamed Abubakari Case paras 66 to 70.
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017) 2 AfCLR 9 31
judicial.12
98. In view of the above, the Court rules that the Application meets
the requirements under Article 56(5) of the Charter and Rule 40(5) of
the Rules.
99. The Court notes that the issue of compliance with the above-
mentioned Rules is not in contention and nothing in the Parties’
submissions indicates that they have not been complied with. The
Court therefore holds that the requirements in those provisions have
been met.
100. In light of the foregoing, the Court finds that this Application fulfils
all admissibility requirements in terms of Article 56 of the Charter and
Rule 40 of the Rules and declares the Application admissible.
i. Applicant’s submission
12 Mohamed Abubakari Case para 64; Alex Thomas Case, para 64 and Christopher
Mtikila Case, para 82.3.
32 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
generations since time immemorial and that their way of life and
survival as a hunter-gatherer community is inextricably linked to the
forest which is their ancestral land.
104. The Respondent’s position is that the Ogieks are not a distinct
ethnic group but rather a mixture of various ethnic communities.
During the Public Hearing however, the Respondent admitted that
the Ogieks constitute an indigenous population in Kenya but that the
Ogieks of today are different from those of the 1930s and 1990s having
transformed their way of life through time and adapted themselves to
modern life and are currently like all other Kenyans.
105. The Court notes that the concept of indigenous population is not
defined in the Charter. For that matter, there is no universally accepted
definition of “indigenous population” in other international human rights
instruments. There have, however, been efforts to define indigenous
populations.13 In this regard, the Court draws inspiration from the
work of the Commission through its Working Group on Indigenous
Populations/Communities. The Working Group has adopted the
following criteria to identify indigenous populations:
“i. Self-identification;
ii. A special attachment to and use of their traditional land whereby
their ancestral land and territory have a fundamental importance
for their collective physical and cultural survival as peoples; and
iii. A state of subjugation, marginalisation, dispossession, exclusion,
or discrimination because these peoples have different cultures,
ways of life or mode of production than the national hegemonic
and dominant model.”14
106. The Court also draws inspiration from the work of the United
Nations Special Rapporteur on Minorities, which specifies the criteria
to identify indigenous populations as follows:
“i. That indigenous people can be appropriately considered as
“Indigenous communities, peoples and nations which having a
i. Applicant’s submission
24 See Verbatim Record of Public Hearing 27 November 2014 page 137; the TJRC
Report (2013), paragraphs 32-47 (including other minority and indigenous people
in Kenya); UNCESCR ‘Concluding Observations of the Committee on Economic,
Social and Cultural Rights: Kenya’ (1 December 2008) UN Doc. E/C.12/KEN/CO/1
page 3 paragraph 12; UNHRC, Report of the Special Rapporteur on the situation of
human rights and fundamental freedoms of indigenous peoples’ available at http://
www2.ohchr.org/english/bodies/hrcouncil/docs/15session/A.HRC.15.37.Add.1.pdf
at paras 41 and 65 to 77.
25 See also TJ Kimaiyo, ‘Ogiek Land Cases and Historical Injustices – 1902-2004’
(2004).
36 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
120. The Respondent contends that the Ogieks are not the only tribe
indigenous to the Mau Forest and as such, they cannot claim exclusive
ownership of the Mau Forest. The Respondent states that the title for
all forest in Kenya (including the Mau Forest), other than private and
local authority forest is vested in the State. The Respondent avers that
since the colonial administration it was communicated to the Ogieks
that the Mau Forest was a protected conservation area on which they
were encroaching upon and that they were required to move out of the
forest. The Respondent also argues that the Ogieks were consulted
and notified before every eviction was carried out and that these were
carried out in accordance with the law.
121. The Respondent states that its land laws recognise community
i. Applicant`s submission
30 These include the Constitution of Kenya, 1969 (as Amended in 1997), the
Government Lands Act Chapter 280 of the Laws of Kenya, Registered Land Act
Chapter 300 of the Laws of Kenya, Trust Land Act Chapter 285 of the Laws of
Kenya and the Forest Act Chapter 385 of the Laws of Kenya.
40 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
32 As above.
33 See also Verbatim Record of Public Hearing 27 November 2014 pages 15 to 16 on
the Respondent’s Opening Statement.
34 See Ndung’u Report page 154, Mau Task Force Report page 36 and TJRC Report
Vol IIC paragraphs 204 and 240.
42 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
treatment.35
142. The Court accordingly finds that, if other groups which are in
the same category of communities, which lead a traditional way of
life and with cultural distinctiveness highly dependent on the natural
environment as the Ogieks, were granted recognition of their status
and the resultant rights, the refusal of the Respondent to recognise
and grant the same rights to the Ogieks, due to their way of life as a
hunter-gatherer community amounts to `distinction` based on ethnicity
and/or ‘other status’ in terms of Article 2 of the Charter.
143. With regard to the Respondent’s submission that, following
the adoption of a new Constitution in 2010, all Kenyans enjoy equal
opportunities in terms of education, health, employment, and access
to justice and there is no discrimination among different tribes in Kenya
including the Ogieks, the Court notes that indeed the 2010 Constitution
of Kenya recognises and accords special protection to indigenous
populations as part of “marginalised community” and the Ogieks could
theoretically fit into that category and benefit from the protection of
such constitutional safeguards. All the same, this does not diminish
the responsibility of the Respondent with respect to the violations of
the rights of the Ogieks not to be discriminated against between the
time the Respondent became a Party to the Charter and when the
Respondent’s new Constitution was enacted.
144. In addition, as stated above, the prohibition of discrimination
may not be fully guaranteed with the enactment of laws which condemn
discrimination; the right can be effective only when it is actually
respected and, in this vein, the persisting eviction of the Ogieks, the
failure of the authorities of the Respondent to stop such evictions and
to comply with the decisions of the national courts demonstrate that the
new Constitution and the institutions which the Respondent has set up
to remedy past or on-going injustices are not fully effective.
145. On the Respondent’s purported justification that the evictions
of the Ogieks were prompted by the need to preserve the natural
ecosystem of the Mau Forest, the Court considers that this cannot,
by any standard, serve as a reasonable and objective justification
for the lack of recognition of the Ogieks’ indigenous or tribal status
and denying them the associated rights derived from such status.
Moreover, the Court recalls its earlier finding that contrary to what the
Respondent is asserting, the Mau Forest has been allocated to other
35 For instance, Maasai Mau Trust Land Forest, which forms part of the Mau Forest
Complex is managed by the Narok County Council rather than the Kenya Forest
Service as it is the only Trust Land out of the 22 forest blocks in the complex,
thereby, recognising a special designated area for the Maasai; See in this regard,
Mau Forest Task Force Report, page 9.
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017) 2 AfCLR 9 43
i. Applicant’s submission
147. The Applicant submits that the right to life is the first human right,
the one on which the enjoyment of all other rights depend and that it
imposes both a negative duty on States to refrain from interfering with
its exercise and the positive obligation to fulfil the basic necessities for
a decent survival.37 The Applicant contends that forced evictions may
violate the right to life when they generate conditions that impede or
obstruct access to a decent existence.38 According to the Applicant,
given their special relationship with and dependence on land for their
livelihood, when indigenous populations are forcefully evicted from
their ancestral land, they become exposed to conditions affecting their
decent way of life.
148. The Applicant argues that, similar to other hunter-gatherer
communities, the Ogieks relied on their ancestral land in the Mau
Forest to support their livelihood, their specific way of life and their very
existence. The Applicant contends further that the Ogieks’ ancestral
land in the Mau Forest provided them with, a constant supply of food, in
the form of game and honey, shelter, traditional medicines and an area
for cultural rituals and religious ceremonies and social organisation.
life.39 However, the Court is of the view that the sole fact of eviction and
deprivation of economic, social and cultural rights may not necessarily
result in the violation of the right to life under Article 4 of the Charter.
154. The Court considers that it is necessary to make a distinction
between the classical meaning of the right to life and the right to decent
existence of a group. Article 4 of the Charter relates to the physical
rather than the existential understanding of the right to life.
155. In the instant case, it is not in dispute between the Parties that
that the Mau Forest has, for generations, been the environment in which
the Ogiek population has always lived and that their livelihood depends
on it. As a hunter-gatherer population, the Ogieks have established
their homes, collected and produced food, medicine and ensured
other means of survival in the Mau Forest. There is no doubt that their
eviction has adversely affected their decent existence in the forest.
According to the Applicant, some members of the Ogiek population
died at different times, due to lack of basic necessities such as food,
water, shelter, medicine, exposure to the elements, and diseases,
subsequent to their forced evictions. The Court notes however that
the Applicant has not established the causal connection between the
evictions of the Ogieks by the Respondent and the deaths alleged to
have occurred as a result. The Applicant has not adduced evidence to
this effect.
156. In view of the above, the Court finds that there is no violation of
Article 4 of the Charter.
i. Applicant’s submission
the Ogieks’ religious practices are a threat to law and order, which has
been the Respondent’s basis for the unjustifiable interference with the
Ogieks’ right to freely practice their religion. In this regard, the Applicant
submits that the Ogieks’ traditional burial practices of putting the dead
in the forest have evolved such that now they do bury their dead.
158. Further, the Applicant asserts that the sacred places in the Mau
Forest, caves, hills, specific trees areas within the forest40 were either
destroyed during the evictions which took place during the 1980s,
or knowledge about them has not been passed on by the elders to
younger members of their community, as they can no longer access
them. The Applicant avers that it is only through unfettered access
to the Mau Forest that the Ogieks will be able to protect, maintain,
and use their sacred sites in accordance with their religious beliefs.
The Applicant adds that the Respondent has failed to demarcate and
protect the religious sites of the Ogieks.
159. The Applicant also maintains that though some of the Ogieks
have adopted Christianity, this does not extinguish the religious rites
they practise in the forest. The Applicant adds that, under the Forest Act,
the Ogieks are required to apply annually and pay for forest licences
in order to access their religious sites situated on their ancestral lands,
contrary to the provisions of the Charter.
160. During the public hearing, Dr Liz Alden Wily, the expert witness
called by the Applicant asserted that the livelihoods of hunter-gatherer
communities are dependent on a social ecology whereby their spiritual
life and whole existence depends on the forest and that there is a big
misunderstanding about the hunter-gatherer culture. She emphasised
that for such communities, culture and religion are intertwined and
therefore cannot be separated. According to her, it is usually perceived
that their culture can be easily dissolved or disbanded in situations
where the hunter -gatherers have been assimilated by modernism.
She stated that many forest dwellers like the Ogieks do the hunting and
gathering, not just for their livelihood, but rather, their whole spiritual
life and their entire existence depends on the forest and its intactness.
She stated that whether or not their livelihood is derived from the forest
(as is the case of the Ogieks), people tend to erroneously think that
because today the Ogieks have not turned up in skins or hides, then
they do not need to hunt or that they have given up their culture.
161. The Respondent contends that the Applicant has failed to adduce
evidence to show the exact places where the alleged ceremonies for the
religious sites of the Ogieks are located. They argue that the Ogieks have
abandoned their religion as they have converted to Christianity and that
the religious practices of the Ogieks are a threat to law and order, thereby
necessitating the Respondent’s interference, to protect and preserve law
and order. The Respondent contends that the Ogieks are free to access the
Mau Forest, except between 6 pm and 9 am and that they are prohibited
from carrying out certain activities, unless they have a licence permitting
them to do so.
44 Applicant’s Submission on Merits page 184, paras 431 to 432 and the Affidavit of
Seli Chemeli Koech filed by Applicant.
45 For instance, placing a dead person under the Yemtit tree (Olea Africana).
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017) 2 AfCLR 9 49
the alleged transformation in the way of life of the Ogieks and their
manner of worship cannot be said to have entirely eliminated their
traditional spiritual values and rituals.
169. From the foregoing, the Court is of the view that given the link
between indigenous populations and their land for purposes of practicing
their religion, the evictions of the Ogieks from the Mau Forest rendered
it impossible for the community to continue its religious practices and is
an unjustifiable interference with the freedom of religion of the Ogieks.
The Court therefore finds that the Respondent is in violation of Article
8 of the Charter.
i. Applicant’s submission
170. The Applicant, citing its own jurisprudence in the Endorois Case
avers that “Culture could be taken to mean that complex whole which
includes a spiritual and physical association with one’s ancestral land,
knowledge, belief, art, law, morals, customs and any other capabilities
and habits acquired by humankind as a member of society – the sum
total of the material and spiritual activities and products of a given
social group that distinguish it from other similar groups and in that
it encompasses a group’s religion, language, and other defining
characteristics”. On the basis of this, the Applicant submits that the
cultural rights of the Ogieks have been violated by the Respondent,
through restrictions on access to the Mau forest which hosts their
cultural sites. According to the Applicant, their attempts to access their
historic lands for cultural purposes have been met with intimidation and
detention, and serious restrictions have been imposed by the Kenyan
authorities on their hunter-gatherer way of life, after the Respondent
forcefully evicted them from the Mau Forest.
171. The Applicant maintains that the Ogieks should be allowed to
determine what culture is good for them rather than the Respondent
doing so. The Applicant calls on the Court to be inspired by Article 61
of the Charter and urges the Court to find that the Respondent is in
violation of Article 17 of the Charter in respect of the Ogieks and prays
the Court to issue an Order for reparation.
172. While testifying about the cultural evolution of the Ogieks,
the expert witness maintains and reiterates her earlier position as
elaborated in the section on religion above in paragraph 161.
50 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
46 See Article 2(5) and (6) of the Constitution of Kenya, 2010: (5) “The general rules
of international shall form part of the law of Kenya. (6) Any treaty or convention
ratified by Kenya shall form part of the law of Kenya under this Constitution.” Article
44 of the Constitution of Kenya, 2010 provides for the right to use the language and
to participate in the cultural life of the person’s choice.
47 Articles 1 and 24 of the Charter.
48 Article 69 of the Constitution of Kenya, 2010.
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017) 2 AfCLR 9 51
49 Article 6, Cultural Charter for Africa adopted by the Organisation of African Unity
in Accra, Ghana on 5 July 1976, The Respondent became a State Party to the
Cultural Charter on 19 September 1990.
50 n49 Article 3, .
51 Preamble, paragraph 9 and Articles 3, 5 and 8(a) Cultural Charter for Africa.
Organisation of African Unity on 5 July 1976
52 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
Mau Forest Complex, the Court first notes that Article 17 of the Charter
does not provide exceptions to the right to culture. Any restrictions to
the right to culture shall accordingly be dealt with in accordance with
Article 27 of the Charter, which stipulates that:
“1. Every individual shall have duties towards his family and society,
the State and other legally recognised communities and the
international community.
2. The rights and freedoms of each individual shall be exercised
with due regard to the rights of others, collective security,
morality and common interest.”
188. In the instant case, the restriction of the cultural rights of the
Ogiek population to preserve the natural environment of the Mau
Forest Complex may in principle be justified to safeguard the “common
interest” in terms of Article 27 (2) of the Charter. However, the mere
assertion by a State Party of the existence of a common interest
warranting interference with the right to culture is not sufficient to allow
the restriction of the right or sweep away the essence of the right
in its entirety. Instead, in the circumstances of each case, the State
Party should substantiate that its interference was indeed genuinely
prompted by the need to protect such common interest. In addition,
the Court has held that any interference with the rights and freedoms
guaranteed in the Charter shall be necessary and proportional to the
legitimate interest sought to be attained by such interference.57
189. In the instant case, the Court has already found that the
Respondent has not adequately substantiated its claim that the
eviction of the Ogiek population was for the preservation of the natural
ecosystem of the Mau Forest.58 Considering that the Respondent has
interfered with the cultural rights of the Ogieks through the evictions
and given that the Respondent invokes the same justification of
preserving the natural ecosystem for its interference, the Court
reiterates its position that the interference cannot be said to have been
warranted by an objective and reasonable justification. Although the
Respondent alleges generally, that certain cultural activities of the
Ogieks are inimical to the environment, it has not specified which
particular activities and how these activities have degraded the
Mau Forest. In view of this, the purported reason of preserving the
natural environment cannot constitute a legitimate justification for the
Respondent’s interference with the Ogieks’ exercise of their cultural
rights. Consequently, the Court deems it unnecessary to examine
i. Applicant’s submission
194. The Respondent argues that it has not violated the rights of
out the Charter being left to the human rights protection bodies.”60
197. It is generally accepted that, in the context of the struggle against
foreign domination in all its forms, the Charter primarily targets the
peoples comprising the populations of the countries struggling to attain
independence and national sovereignty61.
198. In the circumstances, the question is whether the notion “people”
used by the Charter covers not only the population as the constituent
elements of the State, but also the ethnic groups or communities
identified as forming part of the said population within a constituted
State. In other words, the question that arises is whether the enjoyment
of the rights unquestionably recognised for the constituent peoples of
the population of a given State can be extended to include sub-state
ethnic groups and communities that are part of that population.
199. In the view of the Court, the answer to this question is in the
affirmative, provided such groups or communities do not call into
question the sovereignty and territorial integrity of the State without
the latter’s consent. It would in fact be difficult to understand that the
States which are the authors of the Charter intended, for example,
to automatically recognise for the ethnic groups and communities
that constitute their population, the right to self-determination and
independence guaranteed under Article 20(1) of the Charter, which
in this case would amount to a veritable right to secession62. On the
other hand, nothing prevents other peoples’ rights, such as the right to
development (Article 22), the right to peace and security (Article 23) or
the right to a healthy environment (Article 24) from being recognised,
where necessary, specifically for the ethnic groups and communities
that constitute the population of a State.
200. In the instant case, one of the rights at issue is the right of peoples
to freely dispose of their wealth and natural resources guaranteed
under Article 21 of the Charter. In essence, as indicated above, the
Applicant alleges that the Respondent violated the aforesaid right
insofar as, following the expulsion of the Ogieks from the Mau Forest,
they were deprived of their traditional food resources.
201. The Court recalls, in this regard, that it has already recognised for
the Ogieks a number of rights to their ancestral land, namely, the right
to use (usus) and the right to enjoy the produce of the land (fructus),
which presuppose the right of access to and occupation of the land. In
so far as those rights have been violated by the Respondent, the Court
holds that the latter has also violated Article 21 of the Charter since the
Ogieks have been deprived of the right to enjoy and freely dispose of
the abundance of food produced by their ancestral lands.
i. Applicant’s submission
202. The Applicant contends that the Respondent has violated the
Ogieks’ right to development by evicting them from their ancestral
land in the Mau Forest and by failing to consult with and/or seek the
consent of the Ogiek Community in relation to the development of
their shared cultural, economic and social life within the Mau Forest.
The Applicant states that the Respondent failed to recognise the
Ogieks’ right to development and as indigenous people, with the right
to determining development priorities and strategies and exercising
their right to be actively involved in developing economic and social
programmes affecting them and, as far as possible, to administering
such programmes through their own institutions. They contend that
failure on the part of the Respondent to give effect to these facets
of the right to development, constitutes a violation of Article 22 of the
Charter.
203. With regard to Article 10(2) of the Respondent’s Constitution, its
Vision 2030 and its budget statements being proof of development for
the Ogieks, the Applicant submits that, it is not a matter of whether or
not these instruments provide for the right to development, but rather
whether the Respondent has discharged its obligation to protect the
Ogieks’ right to development. According to the Applicant, this would be
by establishing a framework which provides for the realisation of this
right in its procedural and substantive processes, including consultation
and participation.
204. Furthermore, the Applicant contends that despite the provisions
of Article 1(2) of the Respondent’s Constitution which demonstrates its
willingness to consult on issues of development, the Respondent has
failed to state how many the representatives of the Ogieks sit in any of
the three or four tier electoral structures in the Respondent, that is, the
local government, County legislative bodies, Parliament and Senate,
or in any government decision making capacity.
205. The Respondent argues that it has not violated the right to
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017) 2 AfCLR 9 59
i. Applicant’s submission
212. The Applicant urges the Court to apply its own approach63 and
that of the Commission64 in respect of Article 1 of the Charter, that if
there is a violation of any or all of the other Articles pleaded, then it
follows that the Respondent is also in violation of Article 1.
63 Tanganyika Law Society and The Legal and Human Rights Centre and Reverend
Christopher R. Mtikila v United Republic of Tanzania.
64 ACHPR Communications 147/95 & 149/96 Sir Dawda K. Jawara v Gambia (2000),
11 May 2000 para 46 13th Annual Activity Report 1999-2000; Communication 211/98
Legal Resources Foundation v Zambia (2001), paragraph 62; Communications
279/03-296/05 Sudan Human Rights Organisation & Centre on Housing Rights
and Evictions (COHRE) v Sudan (2009) at para 227 where the nature of Article 1
as expressed in Dawda Jawara and Legal Resources Foundation are succinctly
combined: The Commission concludes further that Article 1 of the Charter imposes
a general obligation on all State Parties to recognise the rights enshrined therein
and requires them to adopt measures to give effect to those rights; as such any
finding of violation of those rights constitutes a violation of Article 1.
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017) 2 AfCLR 9 61
A. Applicant’s submission
B. Respondent’s submission
220. On the issue of restitution, the Respondent contends that the Mau
Forest Complex is strictly a nature reserve, and that the Respondent is
obliged to protect and conserve it for the benefit of its entire citizenry
under its national laws as well as under the African Convention on
Conservation of Nature and Natural Resources.
221. On the issue of compensation, the Respondent submits that
the Ogieks have adopted modern lifestyles, and as they now exist,
they do not depend on hunting and gathering for their livelihood and
sustainability, and therefore they cannot claim to have sustained any
economic loss through lost opportunities. The Respondent reiterates
that evicting the Ogieks from the Mau Forest was done in fulfilment
of its national and international obligations, and therefore, the issue
of compensation does not arise, otherwise, States will be plagued
with compensation claims from their citizens in the fulfilment of their
international obligations arising from international instruments they
have acceded to or ratified.
IX. Costs
225. The Court notes that Rule 30 of its Rules states that, “Unless
otherwise decided by the Court, each party shall bear its own costs.”
226. The Court shall rule on cost when making its ruling on other
forms of reparation.
227. For these reasons, the Court unanimously:
On jurisdiction
On admissibility
On the merits
shall file its Response thereto within 60 days of receipt of the Applicant’s
submissions on Reparations and Costs.
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65 65
I. The Parties
2005, when they were arraigned before Court on what they claim are
“trumped up and fabricated charges”. The new charges against them
were of (i) stealing, contrary to Section 265 of the Penal Code in Criminal
Case No. 399/2005 and (ii) Armed Robbery, contrary to Section 287
of the Penal Code in Criminal Case No. 400/2005. According to the
Applicants, these two charges had already been heard and determined
by the Kisutu Resident Magistrate’s Court in Dar es Salaam.
9. The Respondent then lodged an appeal in Criminal Appeal No.
125/2005 in the High Court of Tanzania at Dar es Salaam against the
Magistrate’s decision in Case No. 834/2002, challenging the Applicants’
acquittal .
10. On 19 December 2005 the High Court overturned the acquittal
of the Trial Magistrate, convicted the Applicants and sentenced them to
30 years’ imprisonment. The Applicants then lodged an appeal against
the conviction and sentence in Criminal Appeal No. 48 of 2006, in
the Court of Appeal. The Court of Appeal affirmed the conviction and
dismissed the appeal on 24 December 2009.
11. The Applicants were served copies of the judgment of the Court
of Appeal on 2 November 2011, almost 2 years after the dismissal of
their appeal.
12. On 9 June 2013, the 2nd Applicant filed at the Court of Appeal for
a request for extension of time to file for a review of both the conviction
and sentence in the Court of Appeal. The Applicant alleges that his
Application for extension of time to file the Application for review was
dismissed on 9 June 2014 on the ground that the review should have
been filed within 60 days from the date of judgment. This was in spite
of the fact that the Applicants received copies of the appeal Judgment
almost 2 years after the Court of Appeal delivered the judgment.
21. During its 41st Ordinary Session, held from 16 May to 3 June
2016, the Court granted leave to PALU as requested.
22. On 29 July 2016, the Registry transmitted a copy of the Reply to
the Respondent for information and advised the Parties that pleadings
were closed.
25. Pursuant to Rule 39(1) of the Rules, the Court “shall conduct
preliminary examination of its jurisdiction …”
26. In its submissions, the Respondent raised objections to the
material and personal jurisdiction of the Court. Accordingly, the
Court shall first address these preliminary objections to establish its
competence to examine the instant matter.
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65 71
i. Respondent’s submissions
31. On their part, the Applicants argue that the Court has material
jurisdiction to deal with this Application. In this regard, the Applicants
contend that there have been violations of their fundamental human
rights as provided in the Constitution of the Respondent and the
Charter to which the Respondent is a State Party.
32. Responding to the Respondent’s objection that the Application
requires the Court to go beyond its jurisdiction and sit as an Appellate
Court, the Applicants submit that as long as the rights allegedly violated
are protected by the Charter or any other human rights instruments
ratified by the Respondent, the Court has jurisdiction.
1 The Court notes that the other preliminary objections of the Respondent concerning
the jurisdiction of the Court are pertinent to the admissibility of the Application and
hence, will be addressed in the admissibility section on admissibility.
2 Peter Joseph Chacha v The United Republic of Tanzania, Application No. 003/2014
judgment of 8 March 2014 (hereinafter referred to as Peter Chacha case), para 114
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65 73
As such, the substance of the Application falls within the ambit of the
material jurisdiction of the Court. Accordingly, the preliminary objection
of the Respondent that the Application contains a vague allegation
disclosing no particular article of the Charter does not oust the subject
matter jurisdiction of the Court to examine the instant Application.
37. Regarding the argument of the Respondent that the Application
raises issues involving evaluation of evidence and challenges to the
length of penalty specified in the domestic law, matters which require
the Court to sit as a “Supreme Appellate Court”, this Court, in the matter
of Abubakari v Tanzania, 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 file 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.”3
38. Consequently, in the instant case, the Court has the power to
examine whether the evaluation of facts or evidence by the domestic
courts of the Respondent was manifestly arbitrary or resulted in
a miscarriage of justice to the Applicants. The Court also has the
jurisdiction to investigate the manner in which the particular evidence
that resulted in the alleged violation of human rights of the Applicants
was collected and whether such process was carried out with adequate
safeguards against arbitrariness.
39. With regard to the Applicants’ submission that the penalty
imposed by the domestic legislation for armed robbery violates the
Constitution of the Respondent and the rights enshrined in Article 7(1)
of the Charter, the Court observes that it does not have jurisdiction
to examine the constitutionality of domestic legislation. However, the
Court can examine the extent to which such legislation violates the
provisions of the Charter or other international human rights instrument
ratified by the Respondent. Doing so would not require this Court to sit
as a Supreme Court of Appeal because the Court is not applying “the
same law as the Tanzanian national courts, that is, Tanzanian law.”4
The Court rather applies exclusively “the provisions of the Charter
and any other relevant human rights instrument ratified by the State
concerned”.5
40. In view of the above, the Respondent`s preliminary objection to
the material jurisdiction of the Court on these grounds is dismissed and
therefore, the Court finds that it has material jurisdiction to examine
this Application.
B. Personal jurisdiction
i. Respondent’s submissions
42. On their part, the Applicants argue that the Application is not
filed against Kenya, and that the allegations against the Republic of
Kenya are made to provide a full narrative of events as they unfolded
in relation to the case.
5 Ibid.
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65 75
47. With regard to the other aspects of its jurisdiction, the Court
notes:
“i. that it has temporal jurisdiction since the alleged violations are
continuous in nature, the Applicants having remained convicted
on grounds which they believe are flawed by irregularities [see
the Court’s jurisprudence in the Zongo case];6
ii. that it has territorial jurisdiction in as much as the facts of the
case occurred on the territory of a State Party to the Protocol, ie
the Respondent State.”
48. In view of the foregoing observations, the Court finds that it has
jurisdiction to examine this Application.
6 See African Court especially in the Matter of Zongo and Others v Burkina Faso
(Preliminary Objections) Judgment of 21 June 2013, paras 71 to 77.
76 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
Charter;
3. do not contain any disparaging or insulting language;
4. are not based exclusively on news disseminated through the
mass media;
5. are filed after exhausting local remedies, if any, unless it is
obvious that this procedure is unduly prolonged;
6. are filed within a reasonable period from the time 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. do 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 other legal instrument of the
African Union”.
50. In its Response, the Respondent raises objections concerning
two of the above conditions, namely, the requirements of exhaustion of
local remedies and the time limit for seizure of the Court.
i. Repondent’s submission
53. The Applicants, in their Reply, argue that the local remedies
indicated by the Respondent are extra-ordinary remedies, which,
pursuant to the jurisprudence of the Court, need not be exhausted.
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65 77
54. The Court notes that six of the allegations made by the
Applicants relating to: the alleged violation of ‘all accepted principles
of international law’; alleged violation of the right to equality before
the law and equal protection of the law; the re-arrest of the Applicants
after their acquittal; the incommunicado detention of the Applicants
following their re-arrest; the failure of the Respondent to give copies
of judgments of national courts in due time and the non-provision of
legal assistance were not explicitly raised in the domestic proceedings.
These are matters that are being raised for the first time in this Court.
However, these allegations happened in the course of the domestic
judicial proceedings that led to the Applicants’ conviction and sentence
to thirty (30) years’ imprisonment. They all form part of the “bundle
of rights and guarantees” that were related to or were the basis of
their appeals. The domestic authorities thus had ample opportunities
to address these allegations even without the Applicants having raised
them explicitly. It would therefore be unreasonable to require the
Applicants to lodge a new application before the domestic courts to
seek redress for these claims7
55. With regard to the other two claims relating to the procedural
irregularities claimed to have existed in the identification parade and the
alleged violation of the Applicants’ presumption of innocence contrary
to Article 7 of the Charter, the records available before the Court show
that the Applicants raised these matters before the domestic courts.8
Therefore, the Applicants have exhausted local remedies with respect
to such claims.
56. Furthermore, the jurisprudence of this Court has established that
the requirement of exhaustion of local remedies is applicable only with
respect to ordinary, available and efficient judicial remedies but not
extraordinary or non-judicial remedies. In this regard, the Respondent
alleges that the Applicants could have filed a constitutional petition to
the High Court before they bring their matter to this Court. On this
issue, this Court has held that the said constitutional review is “not
common, that it is not granted as of a right and that it can be exercised
only exceptionally … and is available as extraordinary remedy” in the
Respondent State, thus, the Applicant was not required to pursue it.9
In the same vein, it was not necessary for the Applicants in the instant
Application to approach the High Court to seek constitutional redress
for the violations of their rights because such remedy was extraordinary.
57. In view of the foregoing, the Court therefore decides that the
requirement of exhaustion of local remedies is satisfied in the instant
Application in terms of Article 56(5) of the Charter.
i. Respondent’s submission
60. On their part, the Applicants argue that the Court of Appeals’
judgment was delivered on 24 December 2009, but the copies of the
judgment were served on them about two years later, on 2 November
2011. Relying on the Court’s jurisprudence,10 the Applicants contend
that the assessment of reasonableness of the time under Article 56(6)
of the Charter depends on the circumstances of each case, and in
the present case, given that the Applicants are both lay, indigent,
61. The Court notes that Article 56(6) of the Charter does not indicate
a precise timeline in which an Application shall be brought to this Court.
Its mirror provision in the Rules, that is, Rule 40(6) simply provides for
“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.” It is therefore within the
discretion of the Court to determine the reasonableness of the time in
which an Application is filed.
62. On several occasions, this Court has emphasized that “whether
an Application has been filed within reasonable time after exhaustion
of local remedies is decided on a case by case basis depending on
the circumstances of each case.”11 The Court has also held that when
domestic remedies were exhausted before a State made its declaration
under Article 34(6) of the Protocol, reasonable time under Article
56(6) of the Charter shall be reckoned from the date the Respondent
deposited the instrument of its declaration.12
63. In the instant case, the Court notes that the judgment of the
Court of Appeal in Criminal Appeal No. 48 of 2006 was delivered on 24
December 2009 and that the Applicants received the decision of the
Court of Appeal only on 2 November 2011. The Court also notes that
the second Applicant’s application for review of the Court of Appeal
decision was dismissed by the Court of Appeal on 9 June 2014. There
is no evidence on record showing that the first Applicant also pursued
a similar Application for review.
64. Although the judgment of the Court of Appeal was rendered
on 24 November 2009 both Applicants received the copies of the
judgment only on 2 November 2011. With respect to the first Applicant,
the relevant time should thus run from this date when he received
copies of the judgment. From this date until the date the Court was
seized of the matter, that is, 7 January 2015, about three (3) years and
two (2) months had lapsed for the first Applicant.
65. On the other hand, as the second Applicant opted to pursue the
application for review proceeding in the Court of Appeal, the date on
which his Application for review was dismissed, that is, 9 June 2014,
11 Ibid, see also Peter Chacha case, para 141, Abubakari case, para 91.
12 Alex Thomas case, para 73.
80 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
the merits of the Parties’ claims. In line with the sequence of events
which gave rise to the various alleged violations, the Court deems it
appropriate to examine first those allegations relating to Article 7 of the
Charter.
a. Applicants’ submissions
75. The Applicants submit that they were extradited from Kenya
unlawfully as there was no extradition treaty between Kenya and
Tanzania. They also allege that they were prevented from exercising
their rights of appeal following the order of extradition issued by the
Nairobi Law Court on 22 March 2003 as they were immediately taken
to the United Republic of Tanzania by a contingent of both Kenyan and
Tanzanian police.
b. Respondent’s submissions
76. On its part, the Respondent avers that the extradition of the
Applicants was not illegal as it was carried out in accordance with
the Extradition Acts of both countries on a reciprocal basis. The
Respondent annexed a document titled the “Extradition Act, 1965”
showing an extradition agreement between the Respondent and the
Republic of Kenya. On this basis, the Respondent contends that this
allegation lacks merit and that it should be dismissed.
77. The Court notes that the Applicants` complaint in respect of their
extradition has two related facets: first, the claim that the Applicants
were extradited without a pre-existing extradition agreement between
the Respondent and the Republic of Kenya. Second, the allegation
that the Applicants were denied their right to appeal against the
extradition order because of the swift implementation of the order by a
joint Kenyan and Tanzanian Police force.
78. However, the Court recalls its earlier finding that its jurisdiction
82 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
a. Applicants’ submissions
b. Respondent’s submissions
81. On its part, the Respondent argues that the identification evidence
was highly scrutinized by the Court of Appeal in Criminal Appeal No.
48 of 2006, that the Court of Appeal discarded any evidence that was
not watertight, and only admitted the identification evidence that met
the standard of “proof beyond reasonable doubt”. The Respondent
submits that this allegation lacks merit and should be dismissed.
a. Applicants’ submission
90. The Applicants argue that their right to respect for the
presumption of innocence under Article 7(1)(b) of the Charter (sic)
was violated because both the Court of Appeal and the High Court
arbitrarily rejected their defence of alibi.17
91. The Applicants complain that they submitted evidence attesting
that they had never been to Tanzania before their extradition and they
were in Kenya on the day and at the time the crime allegedly was
committed. The Applicants assert that both the High Court and the
Court of Appeal also acknowledged, in their respective judgments,
that the passports of the Applicants show nothing suggesting their
travel to Tanzania on the day of the crime. The Applicants allege that,
this notwithstanding and even though no corroborating evidence was
adduced, both Courts disregarded their defence of alibi on a wrong
assumption that the Applicants could have used illegal routes (“panya
routes”) (to enter Tanzania and this would not have been reflected on
their passports.
b. Respondent’s submission
evidence for one’s defense. The defence of alibi is implicit in the right
of a fair trial and should be thoroughly examined and possibly set
aside, prior to a guilty verdict.18 In its judgment in Mohamed Abubakari
v Tanzania, this Court observed that:
“Where an alibi is established with certitude, it can be decisive on the
determination of the guilt of the accused. This issue was all the more
crucial especially as, in the instant case, the indictment of the Applicant
relied on the statements of a single witness, and that no identification
parade was conducted.”19
a. Applicants’ submissions
b. Respondent’s submissions
98. The Court observes from the particulars of the case, that
with regard to the length of the imprisonment imposed on them, the
Applicants simply assert that their sentence to 30 years imprisonment
violates the Constitution of the Respondent and Article 7(2) of the
Charter. Article 7(2) of the Charter provides that:
“No one may be condemned for an act of 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.”
99. It emerges from the file that the relevant question at stake is
whether the penalty to which the Applicants were sentenced on 19
December 2005 and upheld on 24 December 2009 was not provided
for in the law.
100. The records before this Court indicate that the armed robbery for
which the Applicants were convicted was committed on 5 November
2002. Following their extradition to the Respondent on 24 March 2003,
the Applicants were charged at the Resident Magistrate`s Court of Dar
es Salaam at Kisutu for crimes of armed robbery and conspiracy to
commit crimes contrary to Sections 285 and 286 of the Penal Code as
amended by Act No. 10 of 1989. Both crimes were defined in the Penal
Code and the amending Act. According to Section 286 of this Penal
Code a person convicted of armed robbery is liable to a penalty of
life imprisonment with or without corporal punishment. Section 5(b) of
the Minimum Sentences Act of 1972 as amended by the 1994 Written
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65 87
Laws Amendment, also prescribes that the minimum sentence for the
said offence is thirty (30) years. The two provisions read together show
that the applicable penalty for armed robbery is a minimum of thirty
(30) years imprisonment.
101. It follows that the Applicants were convicted and punished on the
basis of legislation that existed before the date of commission of the
crime, that is, 5 November 2002 and the punishment imposed on them
was also prescribed in the same legislation. The Applicants’ allegation
that their conviction and penalty violates the Charter thus lacks merit
and the Court therefore finds that there was no violation of Article 7(2)
of the Charter.
a. Applicants’ submissions
b. Respondents’ submissions
104. The Court notes that the Charter does not explicitly provide
for the right to legal assistance. However, in its previous judgment in
the matter of Alex Thomas v The United Republic of Tanzania, this
Court stated that free legal aid is a right implicit in the right to defence
enshrined under Article 7(1)(c) of the Charter. In the same case, the
Court identified two cumulative conditions required for an accused
person to be eligible for the right of legal assistance: indigence and the
interests of justice.
105. In assessing these conditions, the Court considers several
factors, including (i) the seriousness of the crime, (ii) the severity of
the potential sentence; (iii) the complexity of the case; (iv) the social
and personal situation of the defendant and , in cases of appeal,
88 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
21 Alex Thomas v The United Republic of Tanzania judgement, para. 118. Abubakari
case, paras. 138-139. See also Case of Granger v The United Kingdom Application
no. 11932/86, European Court of Human Rights, judgment of 28 March 1990, para
44.
22 Judgment of Resident Magistrate`s Court at Kisutu, Dar es Salaam, p 2, Judgment
of the High Court of Tanzania, Dar es Salaam, p 2.
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65 89
111. In these circumstances, the Court is of the view that the interest
of justice made the provision of free legal representation particularly
indispensable in the appellate proceedings of the Court of Appeal.
112. The Court thus concludes that the failure of the Respondent to
provide the Applicants with free legal aid in the Court of Appeal was a
violation of their right to defense under Article 7(1)(c) of the Charter.
a. Applicants’ submission
113. The Applicants submit that their right to a fair trial was violated by
the Respondent’s failure to provide them with copies of the judgment
of the Court of Appeal in Criminal Appeal No. 48 of 2006 until about
two years later. They contend that the delay led to their inability to
file a petition for a review of the Appeal Court’s judgment, and the
subsequent dismissal of their Application for extension of time to file a
petition for review.
b. Respondent’s submissions
114. The Respondent admits that the judgment in Criminal Appeal No.
48 of 2006 was delivered on 24 December 2009 and that the Applicants
received the decision of the Court of Appeal only on 2 November 2011.
The Respondent also concedes that the time in which the Applicants
could have lodged a request for review of the judgment had already
expired when the Applicants received the copies of the said judgment.
115. Nevertheless, the Respondent argues that the reason for the
dismissal of the 2nd Applicant’s application for extension of time to file
a review was not based on the lapse of time, but on the merits of the
application, which according to the Judge of the Court of Appeal, did
not warrant the granting of the extension of time.
116. From the submissions of the Parties, the Court deduces that the
matter in dispute here is whether the delay in the delivery of copies of
judgment of the Court of Appeal affected the right of the Applicants’
right to request for review of the judgment and whether this constitutes
a violation of their right to have one’s cause heard, which is a fair trial
right stipulated under Article 7(1) of the Charter.
117. The Court observes that the right of an individual to have his
90 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
cause heard includes a set of other rights listed under Article 7(1) of
the Charter and other international human rights treaties ratified by
the Respondent. The term “comprises” in Article 7(1) of the Charter
predicates that the list is not exhaustive and the right to be heard
may also include other entitlements available for individuals both in
international law and the domestic law of the concerned State. In
the instant case, the Applicants have had appeals heard by the High
Court and Court of Appeal of the Respondent. The national law further
provides for the possibility of a review of the decision of the Court of
Appeal in the event that a decision is tainted by procedural irregularities,
which have caused injustice to a party.23
118. A party would not be in a position to lodge a meaningful application
for a review of a particular judgment unless it is in possession of
copies of the judgment that it seeks to get reviewed. In this regard, the
timely delivery of copies of a judgment is an important consideration
especially in circumstances where a considerable delay affects the
right of individuals to pursue possible redress available in the domestic
system. In Alex Thomas v. the United Republic of Tanzania, this Court
held that:
“It was the responsibility of the Courts of the Respondent to provide the
Applicant with the Court record he required to pursue his appeal. Failure
to do so and then maintain that the delay in the hearing of the Applicant’s
appeal was the Applicant’s fault is unacceptable. …, the Applicant made
several attempts to obtain the relevant records of proceedings but the
judicial authorities unduly delayed in providing him with these records.”24
119. The Court notes that in Alex Thomas v Tanzania, the delay was
related to the provision of court records to pursue an appeal. In contrast,
in this instant case, the delay relates to the provision of copies of
judgments to enable the Applicants to pursue an application for review.
The Court considers that the principle laid down in Alex Thomas v
Tanzania equally applies in this case in that the right of Applicants to
pursue possible redress available in the domestic system was affected
by the delay in providing them with copies of the judgment.
120. The Court accordingly considers that the failure of the Respondent
to provide the Applicants with copies of the judgment of the Court of
Appeal for almost two years, without adducing any justification, is an
inordinate delay. The Court also holds that the delay certainly affected
the right of the Applicants to request for review within the time specified
23 See Section 66(1) of the Court of Appeal Rules of the Court of Appeal of Tanzania.
24 Alex Thomas case, para 109. It is within this general spirit that the African
Commission on Human and Peoples` Rights also stated that “All decisions of
judicial bodies must be published and available to everyone”, a fortiori, to the
Parties of a case who have a much stake in the judgment.
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65 91
123. The Applicants submit that they were held in custody for 3 weeks
by the authorities of the Republic of Kenya before being arraigned in
court, and that this was in violation of their basic rights. The Respondent
contends that it is directed to the Republic of Kenya, which is not a
party to the instant Application.
124. The Court reiterates its position that it lacks personal jurisdiction
to entertain allegations against the Republic of Kenya and therefore,
dismisses this allegation.
a. Applicants’ submissions
125. The Applicants allege that their rights under Article 6 of the
Charter were violated when they were re-arrested by the Police after
the trial Magistrate at Kisutu acquitted them. The Applicants argue that
after they were acquitted of charges of armed robbery and conspiracy
to commit crimes, they were immediately re-arrested and charged
before the Resident Magistrate Court of Dar es Salaam at Kisutu
with the crime of stealing contrary to section 265 and armed robbery
contrary to Section 287 of the Penal Code of the Respondent. They
claim that the re-arrest and subsequent charges of stealing and armed
robbery violated their right to presumption of innocence.
92 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
b. Respondent’s submissions
126. The Respondent argues that the Applicants were lawfully re-
arrested and that the second charges were subsequently withdrawn in
the interest of justice and the rights of the Applicants.
127. From the records available before it, the Court notes that on
26 March 2003, the Applicants were arraigned at the Kisutu Resident
Magistrate Court in Dar es Salaam and charged with two counts under
the Penal Code, Cap 16. The first count was conspiracy to commit
an offence contrary to Section 384 and the second count was armed
robbery contrary to Sections 285 and 286 of the Penal Code. The
particulars of the case, undisputed by the Respondent, also show that
after the Kisutu Resident Magistrate’s acquitted them of these counts,
they were, on 14 March 2005, again arraigned before the same Court
on two new charges:(i) stealing, contrary to Section 265 of the Penal
Code in Criminal Case No. 399/2005 and (ii) armed robbery, contrary
to Section 287 of the Penal Code in Criminal Case No. 400/2005.
128. These charges were later dropped when the appeal made on
the original charge of armed robbery succeeded at the High Court,
where their acquittal was set aside and substituted with conviction and
a sentence of 30 years’ imprisonment. It appears from this series of
facts that the authorities of the Respondent issued a new charge on
different sections of the Penal Code against the Applicants on the basis
of the same facts as those relied upon in the original armed robbery
charge and to the same trial Magistrate.
129. In view of the above, the question this Court should address is
whether the re-arrest of the Applicants was contrary to Article 6 of the
Charter, which provides that:
“Everyone shall have the right to liberty and security of his person and that
no one shall be deprived of his freedom except for reasons and conditions
laid down by law. In particular, no one may be arbitrarily arrested or
detained.”25
130. Under Article 6 of the Charter, the right to liberty prohibits arbitrary
arrest and this generally involves the deprivation of liberty of individuals
contrary to the law or against the reasons and conditions specified by
25 See also Articles 3 and 9, Universal Declaration of Human Rights (1948) Article
5, European Convention on Human Rights (1950), Article 7, Inter-American
Convention on Human Rights (1969), Article XXV, American Declaration of the
Rights and Duties of Man (1948), Article 14, Arab Charter on Human Rights (2004).
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65 93
132. The Court notes that arrest or detention that lacks any legal
basis is arbitrary.29 Any deprivation of liberty shall have a legal basis or
shall be carried out in “accordance with the law”.30
133. In the case at hand, the Respondent generally argues that the
re-arrest of the Applicants was lawful without indicating the specific
law on the basis of which the re-arrest was made. Nonetheless, the
Court infers from the undisputed submission of the Applicants that they
were re-arrested on the basis of section 265 of the Penal Code of the
Respondent. The Court thus, holds that there was an adequate legal
basis for the re-arrest and that it was conducted “in accordance with
the law”.
134. The Court notes that a deprivation of liberty shall also have clear
and reasonable grounds. Although Article 6 of the Charter does not
26 Ibid.
27 See Mukong v Cameroon, Comm. No. 458/1991, UN Human Rights Committee
adopted on 21 July 1994, para. 9.8, Hugo van Alphen v The Netherlands,
Communication No. 305/1988, UN Doc. CCPR/C/39/D/305/1988 (1990), para. 5.8,
A v Australia, Communication No. 560/1993, UN Doc. CCPR/C/59/D/560/1993 (30
April 1997), para 9.2.
28 See Principle 1(b),African Commission, Principles and Guidelines on the Right to
a Fair Trial and Legal Assistance in Africa, DOC/OS(XXX)247 (2001).
29 General Comment 35, Article 9 (Liberty and security of person), UN HRC, CCPR
/C/GC/35 (2014), para. 11 Essono Mika Miha v Equatorial Guinea, Communication
No. 414/1990, UN Doc. CCPR/C/51/D/414/1990 (1994), para. 6.5.
30 Ibid. See also Communication 368/09 Abdel Hadi, Ali Radi & Others v Republic
of Sudan, African Commission, (2014), paras 79-80; Principle 2, UN Body
of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment General Assembly A/RES/43/173, 9 December 1988.
94 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
31 Communication No. 379/09 Monim Elgak, Osman Hummeida and Amir Suliman
(represented by FIDH and OMCT) v Sudan, 10 March 2015, para 105,
32 Article 9 of ICCPR expressly envisages a situation where individuals may be
deprived of their liberty on the basis of criminal charge. (See para 3).
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65 95
i. Applicants’ submissions
141. The Respondent on its part denies the allegation that the
Applicants were detained incommunicado without food, and requests
that the Applicants be put to the strictest proof thereof.
142. The Court notes that it is a fundamental rule of law that anyone
who alleges a fact shall provide evidence to prove it. However, when it
comes to violations of human rights, this rule cannot be rigidly applied.
By their nature, some human rights violations relating to cases of
incommunicado detention and enforced disappearances are shrouded
with secrecy and are usually committed outside the shadow of law and
public sight. The victims of human rights may thus be practically unable
to prove their allegations as the means to verify their allegation are
likely to be controlled by the State.33
143. In such circumstances, “neither party is alone in bearing the
burden of proof”34 and the determination of the burden of proof depends
on “the type of facts which it is necessary to establish for the purposes
i. Applicants’ submissions
150. This provision has two limbs, namely, the right to equality before
the law and the right to equal protection of the law.
151. With regard to the right to equal protection of the law, the Court
notes that this is recognized and guaranteed in the Constitution of
the Respondent. The relevant provisions (Articles 12 and 13) of the
Constitution enshrine the right in its sacred form and content on equal
par with the Charter, including by prohibiting discrimination.
152. Concerning the right to equality before the law, in their
submissions, the Applicants have alleged that their right under Article 3
of the Charter has been violated by the Respondent without specifying
how and under what contexts that they have been discriminated
against. The Court has, in the case of Abubakari v Tanzania, held
that “it is incumbent on the Party purporting to have been a victim of
discriminatory treatment to provide proof thereof”.36 The Applicants
have not indicated circumstances where they were subjected to
unjustified differential treatment in comparison to other persons in
a similar situation.37 As this Court has stated in its case law of Alex
Thomas v Tanzania, “General statements to the effect that [a] right has
been violated are not enough. More substantiation is required”.38
153. The Court therefore dismisses the Applicants’ allegation that
their rights under Article 3 of the Charter were violated.
i. Applicants’ submissions
154. The Applicants also make a general submission that both the
Kenyan and the Tanzanian Governments have violated all accepted
principles of human rights and international law through their actions.
155. With regard to part of the allegation directed against it, the
Respondent State submits that this allegation is not clear and specific.
It argues that the Applicants have not specified with precision which
principles and what areas of international law have been violated. In
156. The Court has already dismissed the claim of the Applicants
against the Government of Kenya for lack of personal jurisdiction as
specified above (para. 44).
157. As far as the Respondent is concerned, the Court has previously
decided that it can only examine a specific allegation of human rights
violation only when either the facts indicating such violation or the
nature of the right which was allegedly violated is adequately stated in
the Application.39 The instant allegation lacks precision in both respects.
The Applicants have not clearly stated the specific right or principle of
human rights or international law, which is said to be violated nor have
they sufficiently indicated the factual basis of such alleged violation. As
a result, the Court is unable to make a determination on the merits of
the substance of the Applicants` allegation because of its generalised
nature and finds no violation of a right protected in the Charter or other
international human rights instruments ratified by the Respondent.
158. The Applicants allege that the Respondent has breached its
obligation under Article 1 of the Charter by failing to give effect to the
rights enshrined in it.40 The Respondent has not made any submission
on this allegation.
159. The Court reiterates its position in the matter of Alex Thomas v
Tanzania that Article 1 of the Charter imposes on States Parties the duty
to recognize the rights guaranteed therein and to adopt legislative and
other measures to give effect to these rights, duties and freedoms.41
Accordingly, in assessing whether or not a State has violated Article 1
of the Charter, the Court examines not only the availability of domestic
legislative measures taken by the State but also whether the application
of those legislative or other measures is in line with the realization of
the rights, duties and freedoms enshrined in the Charter, that is, the
39 See Tanganyika Law Society and The Legal and Human Rights Centre and
Reverend Christopher Mtikila v The United Republic of Tanzania, Application No
009&011/2011, para 12, Peter Chacha case, paras 121. 122. 131, 134.
40 Rejoinder, p 7.
41 Alex Thomas case, para 135.
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65 99
IX. Reparations
X. Costs
166. In their submissions, the Applicants and the Respondent did not
make any statements concerning costs.
167. The Court notes that Rule 30 of the Rules provides that “unless
otherwise decided by the Court, each party shall bear its own costs”.
168. The Court shall decide on the issue of costs when making a
ruling on other forms of reparation.
169. For these reasons:
42 Ibid.
43 Ibid.
100 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
The Court
Unanimously,
i. Dismisses the Respondent’s preliminary objection on the lack of
personal and material jurisdiction of the Court.
ii. Declares that the Court has jurisdiction
iii. Dismisses the Respondent’s preliminary objections on the
admissibility of the Application for non-exhaustion of local remedies
and for not having been filed within a reasonable period of time after
exhaustion of local remedies.
iv. Declares the Application admissible.
v. Declares that the Respondent has not violated Articles 3, 5, 7 (1)
(a), 7(1) (b) and 7(2) of the Charter.
vi. Finds that the Respondent violated Articles 1, 6 and 7(1), and
7(1) (c) of the Charter.
vii. Orders the Respondent State to take all necessary measures
that would help erase the consequences of the violations established,
restore the pre-existing situation and re-establish the rights of the
Applicants. Such measures could include the release of the Applicants.
The Respondent should inform the Court within six (6) months, from
the date of this judgment of the measures taken.
viii. Grants, in accordance with Rule 63 of the Rules of Court, the
Applicants to file submissions on the request for reparations within
thirty (30) days hereof, and the Respondent to reply thereto within
thirty (30) days of the receipt of the Applicant’s submissions.
ix. Reserves its ruling on the prayers for other forms of reparation
and on costs.
Jonas v Tanzania (merits) (2017) 2 AfCLR 101 101
I. The Parties
2002 before the District Court of Morogoro; before the High Court of
Tanzania under reference Criminal Case No. 6 of 2005; and before the
Court of Appeal of Tanzania sitting at Dar-es-Salaam, under reference
Criminal Case No. 38 of 2006, in which the Applicant was found guilty
and sentenced to thirty (30) years imprisonment for armed robbery, an
offence punishable under Sections 285 and 286 of the Criminal Code,
Chapter 16 of the Laws of Tanzania.
A. The facts
4. The Applicant and one Erasto Samson were jointly charged with
stealing money and various items of value from one Habibu Saidi on
1 October 2002, using violence and injuring the victim in the face with
a machete.
5. On 13 February 2004, the Morogoro District Court rendered
its Judgment finding the Applicant and Erasto Samson guilty of the
offence as charged. They were both sentenced to thirty (30) years
imprisonment and twelve (12) strokes of the cane, Erasto Samson
having been tried in absentia.
6. On 26 February 2004, the Applicant filed an Appeal before the High
Court of Tanzania in Dar-es-Salaam but that Appeal was dismissed on 12
September 2005.
7. On 21 September 2005, the Applicant filed an Appeal before the
Court of Appeal of Tanzania in Dar-es-Salaam. On 27 March 2009, the
Appeal was similarly dismissed as regards the 30-year prison sentence.
However, the Court of Appeal amended the sentence, setting aside
the corporal punishment of twelve (12) strokes of the cane.
B. Alleged violations
iv. Rule that the thirty (30) year prison sentence for the
offence of armed robbery is lawful;
v. Rule that the Government of the United Republic of
Tanzania did not discriminate against the Applicant;
vi. Declare that the Government of the United Republic of
Tanzania should not pay reparations to the Applicant;
vii. Dismiss the Application in its entirety for lack of merit”.
23. In accordance with Rule 39(1) of the Rules, “the Court shall
conduct preliminary examination of its jurisdiction …”
24. The Respondent argues that the Applicant prays the Court to
sit as an appellate court or a supreme court whereas it is not within its
power.
25. According to the Respondent, Article 3 of the Protocol does not
provide this Court with the jurisdiction to adjudicate over matters raised
by the Applicant before the national courts, revise the Judgments of
these courts, evaluate the evidence and come to a conclusion
26. The Respondent maintains that the Court of Appeal of Tanzania,
in its Judgment in Criminal Appeal Case No. 38/2006, examined all the
allegations raised by the Applicant and that this Court (African Court)
should respect the judgment of the Court of Appeal of Tanzania.
27. The Applicant for his part refutes this assertion. Citing this
Court’s jurisprudence in Alex Thomas and Joseph Peter Chacha v
United Republic of Tanzania, the Applicant contends that this Court
has jurisdiction as long as there are allegations of violation of human
rights.
28. The Court reiterates its position that it is not an appeal court with
106 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
31. The Court notes that its personal, temporal and territorial
jurisdiction has not been contested by the Respondent, and nothing in
the file indicates that the Court does not have jurisdiction. The Court
therefore, holds that:
"i. it has jurisdiction ratione personae given that the Respondent
is a party to the Protocol and has deposited the declaration
required under Article 34(6) thereof, which enables individuals
to institute cases directly before it, in terms of Article 5(3) of the
Protocol.
ii. it has jurisdiction ratione temporis in terms of the fact that the
alleged violations are continuous in nature since the Applicant
remains convicted on the basis of what he considers as
irregularities;3
iii. it has jurisdiction rationae loci given that the facts of the matter
occurred on the territory of a State Party to the Protocol, that is,
the Respondent.
32. From the foregoing, the Court concludes that it has jurisdiction
and is therefore competent to hear the instant case.
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 of the Rules, the Court shall conduct
preliminary examination of the admissibility of the Application in
accordance with Articles 50 and 56 of the Charter and Rule 40 of the
Rules.
35. Rule 40 of the Rules which essentially reproduces the content of
Article 56 of the Charter, provides that:
“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;
1. Comply with the Constitutive Act of the Union and the Charter;
2. Not contain any disparaging or insulting language;
3. Not based exclusively on news disseminated through the mass
media;
4. Be filed after exhausting local remedies, if any, unless it is
obvious that this procedure is unduly prolonged;
5. 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;
6. 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”.
37. Whereas some of the aforementioned conditions are not in
contention between the Parties, the Respondent raised objections with
respect to the exhaustion of local remedies and the time frame for
seizure of the Court.
this Court.5
46. The Court therefore rejects the Respondent’s objection to the
admissibility of the Application for failure to exhaust local remedies.
47. The Respondent argues that the Applicant has not filed his
Application within reasonable time. While recognising that Rule 40(6)
of the Rules of Court does not prescribe a specific time frame for
the submission of cases, the Respondent argues that going by the
decisions of regional bodies similar to this Court, a period of six (6)
months would be a reasonable time limit within which the Applicant
should have filed the Application. It maintains that such was the
position of the African Commission on Human and Peoples’ Rights in
Michael Majuru v Zimbabwe, and therefore avers that the period of four
(4) years and 10 months in which the Applicant filed the Application is
much more than the six (6) months regarded as reasonable time6.
48. The Applicant refutes the Respondent’s assertion, indicating
firstly that the Application was filed on 11 May 2015, and not on 28
January 2015. He argues further that the Court’s jurisprudence shows
that the assessment of the reasonable time for the filing of applications
is made on a case-by-case basis; that such was the Court’s position in
Alex Thomas v United Republic of Tanzania, in which the Court took
into account the special situation in which the Applicant found himself,
namely, that he was illiterate, indigent, incarcerated and without legal
assistance, and decided that the timeframe within which the Applicant
filed the Application was reasonable.
49. The Court notes that Article 56(6) of the Charter does not set a
deadline within which applications should be filed.
50. Rule 40(6) of the Rules which reproduces the substance of
Article 56(6) of the Charter, only speaks of a “reasonable time from the
date local remedies are 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”.
51. The Court noes that the local remedies were exhausted on 27
March 2009, being the date on which the Court of Appeal delivered its
judgment. It however also notes that as at that date, the Respondent
had not deposited the declaration accepting the jurisdiction of the Court
to receive cases from individuals as per Article 34(6) of the Protocol.
The Court therefore holds that it would not be reasonable to regard the
time frame for seizure of the Court as running from the date prior to the
deposit of the said declaration, that is, 29 March 2010.
52. Since the Application was filed on 11 May 2015, the Applicant
thus seized the Court in five (5) years, one (1) month and twelve (12)
days. The question here is whether this time frame can be regarded as
reasonable within the meaning of Article 56(6) of the Charter.
53. The Court has established in its previous Judgments that the
reasonableness of the period for seizure of the Court depends on the
particular circumstances of each case and must be determined on a
case-by-case basis.7
54. In Mohammed Abubakari v United Republic of Tanzania, this
Court held 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
55. Given that the Applicant in the instant case is in a situation
similar to that described above, the Court finds that the period of five
(5) years, one (1) month and twelve (12) days, in which it was seized is
a reasonable period within the meaning of Article 56(6) of the Charter. It
therefore dismisses the objection to the admissibility of the Application
on the grounds of non-compliance with a reasonable period for filing
the Application before the Court.
56. The Court notes that the issue of compliance with sub rules
40(1), (2), (3), (4), and (7) of the Rules is not in contention between
the Parties, and nothing in the file indicates that they have not
been complied with. The Court therefore holds that the admissibility
requirements under those provisions have been met.
57. In light of the foregoing, the Court finds that the instant
Application fulfils all the admissibility requirements under Article 56 of
the Charter and Rule 40 of the Rules, and accordingly declares the
same admissible.
and no where did the Applicant solicit legal assistance and was denied
such assistance by the certification authority.
74. The Respondent further maintains that the Applicant nonetheless
has legal means to solicit legal assistance in accordance with Article
3 of the law on legal assistance (Criminal Procedure), [Chapter 21
Revised Edition 2002]; that he could have also sought such assistance
during the procedure before the Court of Appeal under Rule 31(1), Part
II of the 2009 Tanzania Court of Appeal Rules, but he had not availed
himself of the said remedies.
75. The Applicant explains that at no time during the procedure
was he informed of the possibility of obtaining free legal assistance
as prescribed by law; that the Respondent had the positive
obligation to notify the Applicant, suo motu, of the existence
of such right ; that this obligation is even primordial where the
individual concerned is a lay person and an indigent detainee
facing a serious charge; that this is also the position of this Court
in Alex Thomas and Mohamed Abubakari v United Republic of
Tanzania, and that these precedents should equally apply in the
instant case.
76. According to Article 7(1)(c) of the Charter,
“Every individual shall have the right to have his cause heard. This
right comprises:
a. …
b. …
c. the right to defence, including the right to be defended by
counsel of his choice...”.
77. Article 14(3)(d) of the Covenant on its part provides that
“In the determination of any criminal charge against him,
everyone shall be entitled to the following minimum guarantees,
in full equality:
a. …
b. …
c. …
d. To be tried in his presence, and to defend himself in person or
through legal assistance of his own choosing; to be informed, if
he does not have legal assistance, of this right; and to have legal
assistance assigned to him, in any case where the interests of
justice so require, and without payment by him in any such case
if he does not have sufficient means to pay for it.”
78. In its Judgment in Mohamed Abubakari v United Republic of
Tanzania, this Court held that “an indigent individual under prosecution
for a criminal offence has the special right to free legal assistance where
114 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
80. In the Application, it is argued that the thirty (30) year custodial
sentence imposed on the Applicant by the national courts was not in
force at the time the alleged robbery with violence was committed;
that Sections 285 and 286 of the Penal Code prescribed a maximum
sentence of fifteen (15) years; that the thirty (30) year prison sentence
came into force only in 2004, following decree No. 269 of 2004, as
amended, which became Section 287 A of the Penal Code.
81. The Applicant therefore submits, from the foregoing, that the
national courts violated Articles 13(b)(c) of the 1997 Constitution of the
United Republic of Tanzania as well as Articles 1, 2, 3, 4, 5, 6, 7(1) (c)
and 7(2) of the Charter.
82. The Respondent refutes the Applicant’s allegations in their
entirety. It contends that in Criminal Case No. 424/2002, the Applicant
had been accused of armed robbery which is contrary to Sections
285 and 286 of the Penal Code, Chapter 16 of the Laws of Tanzania;
that at the time of conviction and determination of the punishment,
the Minimum Sentence Act of 1972 was in force; that, that Act was
amended in 1994 by the Miscellaneous Amendment Act No. 6/1994;
that the new law abrogated the 20 year imprisonment and introduced
an obligatory minimum punishment of thirty (30) years.
83. The Respondent further indicates that it is not the first time the question
of armed robbery offence, contrary to Sections 285 and 286 of the Penal
Code Chapter 16, has emerged, as well as the punishment commensurate
with this offence before 2004; that the Court of Appeal of Tanzania has made
a ruling on this issue in the Matter of William R Gerison v The Republic, in
Appeal Case No. 69/2004.
84. The Respondent submits in conclusion that the Applicant’s
allegations are without relevance and are baseless given that he was
accused of armed robbery in 2002, whereas the minimum punishment
had been amended eight (8) years earlier.
10 Judgment of 3 June 2016, para 139. See also Alex Thomas v United Republic of
Tanzania, Judgment of 20 November 2015, para 124.
Jonas v Tanzania (merits) (2017) 2 AfCLR 101 115
VII. Reparations
VIII. Costs
I. The Parties
A. The facts
B. Alleged violations
20. In terms of Rule 39(1) of its Rules, the Court “…shall conduct
Diakité v Mali (jurisdiction and admissibility) (2017) 2 AfCLR 118 121
23. The Court notes that the violations alleged by the Applicants
all relate to the Charter and the Covenant, instruments to which
the Respondent is a Party. It therefore holds that it has the material
jurisdiction to examine the instant case.
24. As regards the other aspects of its jurisdiction, the Court holds
that:
i. it has personal jurisdiction given that the Republic of Mali is a
Party to the Protocol, and has also deposited the declaration
prescribed under Article 34(6) cited above (supra paragraph 2);
ii. it has temporal jurisdiction given that the alleged violations
occurred after the entry into force of the afore-mentioned
instruments in respect of the Respondent (supra paragraph 2);
iii. it has territorial jurisdiction in so far as the facts occurred on the
Respondent’s territory.
25. It thus follows from all the foregoing considerations that the
Court has jurisdiction to hear the instant case.
26. 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”.
27. Rule 40 of the Rules which essentially reproduces the contents
of Article 56 of the Charter, provides that:
“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:
robbery of which they are victims, whereas the two cases are distinct
and have no proven link between them.
35. It contends that in the context of Mr Oumar Maré’s arrest,
a search was conducted at his home and none of the items stolen
from the Applicants’ home was found there; that despite all that, the
Applicants are intent on getting justice to prosecute and convict Mr
Oumar Maré as the author of the robbery, whereas no evidence of guilt
has been found against him.
36. It further contends that if the Applicants were so convinced that
Mr. Oumar Maré was the perpetrator of the robbery, and given the
alleged inaction of the Police and the Office of the State Attorney, they
could have brought a civil action before the competent investigating
judge; that, in reality, the Applicants were apprehensive of the uncertain
outcome of such a procedure and would want this Court to substitute
itself for the domestic Courts in order for them to obtain redress.
37. The Respondent, in conclusion, submits that it has not violated
any rights of the Applicants in terms of the domestic proceedings.
38. In their Reply, the Applicants maintain that filing a civil suit is
not a remedy within the meaning of Article 56(5) of the Charter; that
in the Republic of Mali, a victim has the option of referring a case to
the State Attorney or to an Investigating Judge; that the use of either
option closes the other for the purposes of proper administration of
justice; that, besides, the two procedures have the same finality, that
is, investigation by an investigating judge.
39. They maintain that the attitude on the part of the judicial
authorities of Mali of abandoning the procedure at the initial stage for
over three (3) years constitutes an undue prolongation of the procedure
within the meaning of Article 56(5) of the Charter.
40. Relying on the Decision of the African Commission on Human
and Peoples’ Rights in Communication Dawda K Jawara v The
Republic of The Gambia (Communication No. 147/95-149/96), the
Applicants submit that the remedy proposed by the Respondent is
neither effective nor sufficient and that, the undue prolongation of
local procedures provides justification for the Court to declare their
Application admissible.
41. As the Court underscored in its previous judgments, the rule
regarding the exhaustion of local remedies prior to referral to an
international human rights Court is one that is recognized and accepted
internationally.1
42. It is clear from the records that the Applicants do not contest
that they have not used the totality of the judicial remedies existing
in the Respondent State’s system. What is in contention between the
Parties is, on the one hand, the question as to whether the duration of
the procedure at national level has been unduly prolonged within the
meaning of Article 56(5) of the Charter and Rule 40(5) of the Rules;
and, on the other, the question as to whether referral to the investigating
judge is, in the judicial system of the Respondent State, a remedy that
is available, effective and sufficient.
43. Whereas the Respondent contends that the procedure was
stalled because the Police was unable to apprehend the perpetrator(s)
of the robbery, the Applicants, for their part, maintain that the author of
the robbery was identified, but that the Police and Office of the State
Attorney did not take steps to close the case at their level.
44. The question that arises at this juncture is whether there exists
in the Respondent’s judicial system a remedy that the Applicants
could have exercised to by-pass what they have described as “lack of
diligence on the part of the Police and the Office of the State Attorney”.
45. In this regard, Article 62 of the Code of Criminal Procedure of
Mali states that: “Any person claiming to be aggrieved by a crime or a
misdemeanor may lodge a complaint in a civil suit before a competent
investigating judge”.
46. It is clear from the foregoing provision that the Applicants had, at
least, the possibility of bringing the case directly before an investigating
judge by filing a civil suit.
47. As regards the effectiveness and sufficiency of this remedy,
Article 90 of the Code of Criminal Procedure of Mali provides that:
“The investigating judge shall, in accordance with the law, undertake
all such acts of information as he deems useful to ensure manifestation
of the truth.”
48. Article 112 of the same Code stipulates that: “Counsel for the
accused and the civil party, both during the investigation and after
communication of the proceedings to the registry, may in writing close
the hearing of new witnesses, adversarial sessions, expert opinions
and all such acts of investigation as they consider relevant for the
defense of the accused and the interests of the civil party. The judge
shall give reasons for the order by which he refuses to carry out any
additional investigative measures requested of him. The accused and
the civil party may appeal the order, either by themselves or through
their counsel.”
49. It is apparent from the foregoing provisions that the investigating
judge can undertake all acts of investigation requested of him by the
accused or the injured party, and that the latter even has the right to
appeal an order that refuses to undertake the investigative measures
requested.
Diakité v Mali (jurisdiction and admissibility) (2017) 2 AfCLR 118 125
VII. Costs
I. Procedure
holds,
it is required to implement and what the benchmarks for “all” and for
“necessary” are, to enable it take tangible and definitive action.
9. The United Republic of Tanzania asserts that the “violations
found” have not been highlighted in the operative provisions of the
Judgment therefore they are seeking guidance on whether they relate
to what is stated in the text of the judgment or whether the violation to
be remedied should be on the aspect of “specifically precluding the
reopening of the defence case and the retrial of the Applicant”. The
United Republic of Tanzania also seeks to understand how to remedy
the violation.
10. The United Republic of Tanzania is seeking an interpretation of
the word “precluding”, stating that it had initially interpreted the word
“precluding” to mean excluding but that discussions with stakeholders
have brought to light another interpretation to mean “to perform or to
include”. In this regard, the United Republic of Tanzania wishes to have
clarification on whether the order of the Court is “to re-open” the trial
and if so, the Court should clarify at what stage the trial should be
reopened, whether from the beginning or for the defence’s case only.
already spent twenty one (21) years in prison, more than half of the
prison sentence, and given that a fresh judicial procedure could be
long.1 Accordingly, the Court has excluded such a measure.
35. Concerning second option, the Court intended to offer the United
Republic of Tanzania State room for evaluation to enable it to identify
and activate all the measures that would enable it eliminate the effects
of the violations established by the Court.
36. The Court specifies at this juncture that in its Judgment of
20 November 2015, it did not state that the Applicant’s request was
unfounded. It merely indicated that it could order such a measure
directly, only in specific and compelling circumstances which have not
been established in the instant case.
37. The second question for which the United Republic of Tanzania
is seeking clarification is, on whether the violations found are what is
stated in the text of the judgment or whether the violation to be remedied
should be on the aspect of “specifically precluding the reopening of the
defence case and the retrial of the Applicant”. The United Republic of
Tanzania also seeks to understand how to remedy the violation.
38. The Court notes that point vii of the operative provisions of the
Judgment specified the provisions that the United Republic of Tanzania
was found to have violated, that is, Articles 1 and 7(1)(a), (c) and (d)
of the African Charter on Human and Peoples’ Rights and Article 14(3)
(d) of the International Covenant on Civil and Political Rights and
consequently it should take all necessary measures to remedy these
violations.
39. The Court clarifies that the expression “all necessary measures”
includes the release of the Applicant and any other measure that would
help erase the consequences of the violations established and restore
the pre-existing situation and re-establish the rights of the Applicant.
40. The Court further clarifies that the expression “remedy all
violations found” should therefore mean to “erase the effects of the
violations established” through adoption of the measures indicated in
the preceding paragraph.
41. The third question for which the United Republic of Tanzania is
seeking an interpretation is on the word “precluding”.
42. The word precluding means “preventing, banning or forbidding”.
It is therefore clear that the Court is prohibiting certain action, specifically
that the United Republic of Tanzania should not retry the Applicant or
re-open the defence case. As mentioned before, this is because doing
so would result in prejudice to the Applicant who has already served
twenty one (21) years of his thirty (30) years prison sentence.
VII. Costs
I. Procedure
carried out.
28. In its Judgment of 3 June 2016, the Court ordered the United
Republic of Tanzania to take all appropriate measures to remedy the
violations found.
29. On the first question, the United Republic of Tanzania prays the
Court to interpret the expression “all appropriate measures” used in
point xii of the operative provisions of the Judgment.
Abubakari v Tanzania (interpretation) (2017) 2 AfCLR 134 139
VII. Costs
I. Procedure
(5) Rules that the Respondent State has violated its obligation
to establish an independent and impartial electoral body as
provided under Article 17 of the African Charter on Democracy
and Article 3 of the ECOWAS Democracy Protocol, and
consequently, also violated its obligation to protect the right of
the citizens to participate freely in the management of the public
affairs of their country guaranteed by Article 13(1) and (2) of the
African Charter on Human and Peoples’ Rights;
(6) Rules that the Respondent State has violated its obligation to
protect the right to equal protection of the law guaranteed by
Article 10(3) of the African Charter on Democracy, Article 3(2) of
the African Charter on Human and Peoples’ Rights and Article
26 of the International Covenant on Civil and Political Rights;
(7) Orders the Respondent State to amend Law No. 2014-335 of 18
June 2014 on the Independent Electoral Commission to make
it compliant with the aforementioned instruments to which it is a
Party;
(8) Orders the Respondent State to submit to it a report on the
implementation of this decision within a reasonable time which,
in any case, should not exceed one year from the date of
publication of this Judgment”
7. In its Application for interpretation, the Republic of Côte d’Ivoire
prayed the Court to provide answers to the following three questions:
“(i) For the purposes of implementing the Judgment, the State
of Côte d’Ivoire prays the Court to avail it of more specific
indications on the nomenclature of the new IEC especially with
regard to its organization, background, mode of appointment of
its members and distribution of the seats.
(ii) The State would also like to know whether or not the possibility
of submitting the Electoral Law for control by a constitutional
Judge can help guarantee the independence and impartiality of
its members.
(iii) If yes, the Court may wish to accept to further enlighten the Ivorian
authorities on the notion “laws relating to public freedoms.”
8. The APDH submits that none of the three issues raised by
the Republic of Côte d’Ivoire calls for the interpretation of the afore-
said Judgment. It therefore prays the Court to declare the Application
inadmissible.
V. Costs
I. The Parties
III. Procedure
provided for under Articles 18(1) and 9(1) of the Charter, respectively,
given that, despite having obtained authorisation to that effect, practical
obstacles have been put in his way, such as the lack of access to, or
delayed provision of a telephone and in instances where he has been
able to communicate, he became aware that the telephone line had
been tapped.
9. The Applicant claims further that he was transferred to another
prison, his family did not know his whereabouts for several days and
that the lack of information regarding his fate and the several obstacles
he faced were a violation of Articles 6 and 7 of the Charter.
III. Jurisdiction
I. The Parties
III. Procedure
IV. Jurisdiction
_____________________________
5. To start with, it should be made clear that any such time limit
is always counted from the date of receipt of the Court’s Order by the
Respondent State, rather than from the date of delivery of the said
Order by the Court, a provision which protects the Respondent State
from any surprises.
6. It should also be emphasized that, by definition, the provisional
measures concerned are emergency measures which must be taken
quite speedily. Thisplaces the Respondent State in a situation whereby
it has to give priority to implementation of the measures in question;
measures which must be taken as quickly as possible.
7. Having said that, the question as to how much time a Respondent
State should be allowed to report on the measures taken to comply
4 A right protected by Article 4 of the Charter: “Human beings are inviolable. Every
human being shall be entitled to respect for his life and the integrity of his person.
No one may be arbitrarily deprived of this right”, and by Article 6 of the International
Covenant on Civil and Political Rights: 1. Every human being has the inherent right
to life. This right shall be protected by law. No one shall be arbitrarily deprived of his
life. 2. In countries which have not abolished the death penalty, sentence of death
may be imposed only for the most serious crimes in accordance with the law in
force at the time of the commission of the crime and not contrary to the provisions
of the present Covenant and to the Convention on the Prevention and Punishment
of the Crime of Genocide. This penalty can only be carried out pursuant to a final
judgement rendered by a competent court.”
Johnson v Ghana (provisional measures) (2017) 2 AfCLR 155 161
13. In this respect, it seems judicious to recall that, in this matter, the
principle is that of immediate stay of execution and to the minute, and
that no derogation is effective. By way of illustration, the European Court
of Human Rights, in a Judgment issuing provisional measures, strongly
reaffirmed that when life and health are at stake, even “diplomatic
assurances” are ineffective and application of the provisional measure
is immediate, urgent and to the minute.5
14. Admittedly, under the procedure before this Court and by virtue
of Rule 37 of its Rules, the Respondent State has sixty (60) days to
respond to an Application filed against it; but to give the same quantum
when it is comes to informing the Court of the execution of measures to
prevent occurrence of unforeseeable, extremely serious violations with
irreparable consequences, does not seem logical to us.
15. If in the first case (production of defense brief) the Respondent
State must have sixty (60) days to investigate the case, search for,
collect and establish the evidence for its claims, this is not the case
with regard to this Order.
16. For these reasons, it is our view that the decision to grant the
party performing the provisional measure sixty (60) days is neither
logical nor reasonable.
5 Othman v United Kingdom ECHR, Fourth Section, 17 January 2012, No. 8139/09,
paras 148, 151, 170 and 180). See also Marcellus S Williams, Petitioner v Cindy
Griffith, Warden Supreme Court of the United States, decision suspending
execution of the death penalty was followed with immediate effect even though
execution of the convict was already scheduled for the very evening of the day of
the delivery of stay of execution decision and a report thereon followed.
6 See Order of 25 March 2011, African Commission on Human and Peoples’ Rights
v Great Libyan Arab Jamahiriya; Order of 15 March 2013, African Commission on
Human and Peoples’ Rights v Republic of Kenya.
7 See Order of 18 March 2016, Armand Guehi v United Republic of Tanzania.
162 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
_____________________________
8 When it is established that the performing party is not inclined to full cooperation,
the Court should give extremely short time limit, followed by repeated reminders if
need be.
Johnson v Ghana (provisional measures) (2017) 2 AfCLR 155 163
for similar cases (death penalty),1 the time limit accorded to the
Respondent was less than two months (60 days): as a matter of fact,
in its previous Orders, the Court allowed a time limit of thirty (30) days.
This instability in jurisprudence is not such as would enhance the
reliability of the Court’s decisions.
1 See the Orders in: Evodius Rutechura v United Republic of Tanzania (Application
004/2016); Ally Rajabu and Others v United Republic of Tanzania (Application
007/2017); Armand Guehi v United Republic of Tanzania (Application 001/2017).
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165 165
I. The Parties
1 See Ruling of the Court of 3/6/ 2016 of the Respondent’s withdrawal of its
Declaration made pursuant to Article 34(6) of the Protocol.
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165 167
B. Alleged violations
A. Pre-trial investigations
14. According to the Applicant, she was arraigned before the High
Court on the charges enumerated in paragraph 8 above, adding that
“by an order of the President of the High Court the matter was set
down to be heard on 16 May 2011. On the day of the hearing, the
matter was joined with the case ‘the State of Rwanda v Nditurende
Tharcisse, Karuta JM Vinney and Habiyaremye Noel, and the new
matter adjourned for 20 June 2011”.
15. The Applicant submits that on 20 June 2011, the matter was
again adjourned to 5 September 2011, and on the same day, she
deplored the “various acts of violation perpetrated against her, such
as systematic body search, by the security services”. According to her,
“this situation was vehemently protested before the High Court which,
through a pre-trial order, deemed that the said security services had
the latitude to carry out body search operations on anyone found in the
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165 169
16. The Applicant claims that this decision of the High Court was
appealed against, however, “in accordance with relevant Rwandese
law, the appeal could be considered only after a final ruling on the
merits of the main matter”.
17. The Applicant avers that on 26 September 2011, in limine litis,
she raised “many objections to admitting that decision based on the fact
that the indictment order was issued in violation of certain principles,
such as the legality of crimes and penalties, non-retroactivity, lack of
jurisdiction, etc.” The Applicant claims that on 27 September 2011,
she sent a letter to the President of the High Court, with copies to
the President of the Supreme Court, the Attorney General and the
President of the Bar Association, to inform “all these institutions on
how serious the situation was”.
18. According to the Applicant, “by a pre-trial order issued on 13
October 2011, the High Court systematically threw out all the objections
and petitions”. She avers that
“from that moment, the bench went ahead to examine the merits of the
matter, taking into account only the submissions of the prosecution and
those of the accused persons who had opted to plead guilty. Each time
the defence attempted to question the accused persons to prove that their
statements were contrary to the truth and condemn their collusion with
the Office of the State Prosecutor and security services, the defence was
called to order by the presiding judge, who in actual fact was acting not as
a judge but rather as a prosecution body. It is in this climate of mistrust and
suspicion that Habimana Michel, a prosecution witness, was heard”.
20. The Applicant claims that realising that its strategy hitherto based
on statements made by the accused persons, Uwumuremyi Vital,
Nditurende Tharcisse and Karuta J M Vianney, had been undermined
by the witness, the prosecutor seized by panic, “started intimidating
the witness by using subterfuges and intimidation manoeuvres”. She
170 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
alleges that,
“without the knowledge of the bench and the defence, the State prosecutor
ordered prison services to carry out a search on all the personal effects
of the witness in his absence. In the evening of 11 April 2012, he was
interrogated on the testimony he made in Court”.
23. The Applicant stated that on 30 October 2012, the High Court
delivered a judgment on the matter in which it
“(i) admits the case submitted by the Organe Nationale des Poursuites
Judiciares and rules it partially founded …(ii) rules in law that Ingabire
Victoire Umuhoza is guilty of the offences of conspiracy to undermine
established authority and violate constitutional principles by resorting to
terrorism and armed force which are punishable under Law No. 21/1977
instituting the Penal Code. It further rules that Ms. Ingabire Victoire
Umuhoza is guilty of the offence of minimization of the genocide, an offence
punishable under Article 4 of Law No. 6/09/2003 on the punishment of
genocide, crime against humanity and war crimes; (iii) sentences her on
this count to 8 years of imprisonment with hard labour”.
24. The Applicant asserts that in its judgment, the High Court
indicated that the appeal “must be done in a period of 30 days following
the sentencing”.
25. The Court notes that the Respondent State did not contest the
facts presented by the Applicant.
26. While the matter was still pending before the High Court, the
Applicant on 16 May 2012, filed an application before the Supreme
Court sitting in Constitutional Matters, seeking annulment of Articles
2 to 9 of Law No. 18/2008 of 23 July 2008, repressing the crime of
genocide ideology and Article 4 of Law No. 33 bis/2003 of 6 September
2003, punishing the crime of genocide, crimes against humanity and
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165 171
29. Following the High Court judgment of 30 October 2012, both the
Prosecution and the Applicant appealed before the Supreme Court of
Rwanda.
30. The Prosecution argued on appeal, inter alia, that (i) it was not
satisfied with the fact that the Applicant was not convicted of the crime
of creating an armed group with the intent to carry out an armed attack,
(ii) that the Applicant was acquitted of the offence of intentionally
spreading rumours with the intent to incite the population against the
existing authorities by disregarding the legislation in force at the time;
and (iii) that the sentence the Applicant received on the crimes of which
she was convicted was extremely reduced given the gravity of the
crimes at issue.
31. For her part, the Applicant submitted on appeal that the High
Court had disregarded the preliminary issues raised by her counsel,
that the trial proceedings had not respected the basic principles of fair
trial and that she was even convicted for crimes she had not committed.
32. According to Applicant, in its judgment of 13 December 2013,
the Supreme Court ruled that she “has been found guilty of conspiracy
to undermine the Government and the Constitution, through acts of
172 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
34. By a letter dated 3 October 2014, the Applicant seized the Court
with the present Application through her Counsel, and the Application
was served on the Respondent State by letter dated 19 November
2014, given 60 days within which to file its Response.
35. By a letter dated 6 February 2015, the Registry, pursuant to
Rule 35(2) and (3) of the Rules of Court transmitted the Application to
the Chairperson of the African Union Commission and, through her, to
the Executive Council of the Union, as well as to all the other States
Parties to the Protocol.
36. By a letter dated 23 January 2015, the Respondent State
forwarded to the Court its Response to the Application.
37. By a letter dated 9 June 2015, the National Commission for the
Fight against Genocide of Rwanda applied to the Court for leave to
appear as amicus curiae in the Application, and on 10 July 2015, the
Court granted the request.
38. By a letter dated 6 April 2015, the Applicant filed her Reply to the
Respondent’s Response.
39. On 7 October 2015, during its 38th Ordinary Session, the Court
ordered the Respondent State to furnish additional documentation.
The Respondent did not do so.
40. By a letter dated 4 January 2016, the Registry notified the Parties
of the Public Hearing set down for 4 March 2016.
41. By a letter dated 1 March 2016, the Respondent State notified
the Court of its deposit of an instrument of withdrawal of its Declaration
made pursuant to Article 34(6) of the Protocol. The Respondent State in
its letter contended that after deposition of the same, the Court should
suspend hearings involving the Republic of Rwanda until review is
made to the Declaration and the Court is notified in due course.
42. By a letter dated 3 March 2016, the Legal Counsel of the
African Union Commission notified the Court of the submission of the
Respondent State’s instrument of withdrawal of its Declaration made
under Article 34(6) of the Protocol, which was received at the African
Union Commission on 29 February 2016.
43. At the Public Hearing of 4 March 2016, the Applicant was
represented by Advocate Gatera Gashabana and Dr Caroline
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165 173
Buisman. The Respondent State did not appear. The Court heard the
representatives of the Applicant on procedural matters in which they
requested the Court to:
“a. Reject the amicus curiae brief submitted by the National
Commission for the Fight against Genocide;
b. Order the Respondent State to facilitate access to the Applicant
by her representatives;
c. Order the Respondent State to facilitate access to video
conferencing technology for the Applicant to follow the
proceedings of the Court; and
d. Order the Respondent State to comply with the Court’s order of
7 October 2015, to file pertinent documents”.
44. In an order issued on 18 March 2016, the Court decided as
follows:
“a. That Parties file written submissions on the effect of the
Respondent’s withdrawal of its Declaration made under Article
34(6) of the Court Protocol, within fifteen (15) days of receipt of
this Order.
b. That its ruling on the effect of the Respondent’s withdrawal of
its Declaration under Article 34(6) of the Court Protocol shall be
handed down at a date to be duly notified to the Parties.
c. That the Applicant file written submissions on the procedural
matters stated in paragraph 14 above, within fifteen (15) days of
receipt of this Order.”
45. On 3 June 2016, the Court delivered a Ruling on the Respondent
State’s withdrawal of its Declaration made pursuant to Article 34(6) of
the Protocol. In that Ruling, the Court decided, among other things,
that “the withdrawal of its declaration by the Respondent State has no
effect on the instant Application and that the Court has jurisdiction to
continue hearing the Application”.
46. On 22 March 2017, a Public Hearing was held to receive
arguments on jurisdiction, admissibility and the merits. The Applicant
was represented by Advocate Gatera Gashabana and Dr Caroline
Buisman. The Respondent State did not appear.
47. During the public hearing, the Judges posed questions to the
Applicant’s representatives to which the latter provided answers.
49. In its Response, the Respondent State prays the Court to:
“a. Declare the Application vexatious, frivolous and without
merit; and
b. Dismiss the Application with cost”.
V. Jurisdiction
50. In accordance with Rule 39(1) of its Rules, the Court shall
conduct a preliminary examination of its jurisdiction, before dealing
with the merits of the Application.
51. The Respondent State contends that the Applicant has seized
this Court as an appellate Court by requesting the latter to reverse or
quash the decisions of the Respondent State’s courts, and to replace
the Respondent State’s legislative and judicial institutions. According
to the Respondent, “…the African Court is neither a Court of Appeal
nor a legislative body which can nullify or reform court decisions and
make national legislation in lieu of national legislative Assemblies”. The
Respondent State submits in this regard that an “application requesting
the Court to take such action should be dismissed”.
52. In her Reply to the Respondent State’s Response, the Applicant
submits that the Respondent State’s argument is at variance with all
evidence and cannot resist the slightest bit of serious analysis. She
substantiates by indicating that the Application mentions “the legal
instruments of human rights duly ratified by the State of Rwanda which
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165 175
56. The Court notes that its personal, temporal and territorial
jurisdiction has not been contested by the Respondent State,
and nothing in the pleadings indicate that the Court does not have
jurisdiction. The Court thus holds that:
“(i) it has jurisdiction ratione personae given that the Respondent
State is a party to the Protocol and deposited the declaration
VI. Admissibility
58. Pursuant to Rule 39(1) of the Rules, “the Court shall conduct
a preliminary examination of … admissibility of the Application in
accordance with Articles 50 and 56 of the Charter and Rule 40 of these
Rules”.
59. 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:
61. The Respondent State contends that the Applicant failed to seize
the Supreme Court sitting in constitutional matters to challenge the
provisions of Rwandan laws that she alleges to be inconsistent with the
Charter and other relevant international instruments. The Respondent
State contends that the Applicant is challenging the conformity of Law
No. 33 bis of 6 September 2003, on the punishment of genocide,
crimes against humanity and war crimes and that the Constitution of
the Respondent State empowers the Supreme Court to hear petitions
aimed at reviewing laws that are inconsistent with the Constitution.
62. The Respondent State further contends that in terms of Article
145(3) of the Constitution of Rwanda of 3 June, 2003, “the Supreme
Court has jurisdiction and the responsibility to hear petitions aimed at
reviewing adopted laws that are inconsistent with the Constitution”, and
Article 53 of Organic Law N° 03/2012/OL of 13 June 2012, determining
the organization, functioning and jurisdiction of the Supreme Court,
gives the Court, upon petition by any Applicant, jurisdiction to “partially
or completely repeal any Organic Law or Decree-Law for reasons of
non-conformity with the Constitution”.
63. The Respondent State submits that as the Applicant is alleging
that Law No. 33 bis of 6 September 2003, is not in conformity with the
Constitution, “she must exhaust the local remedies available for the
purpose: this being an application made before the Supreme Court
sitting in Constitutional Matters…”. The Respondent State adds that
“having failed to do so, makes the application inadmissible due to non-
compliance with Article 56(5) [of the Charter] and Rule 40 of the Rules
of Court”.
64. The Respondent State avers further that the Applicant failed to
seize competent courts to apply for judicial review of the decisions
against her. According to the Respondent State, Article 78 of the
Organic Law No. 03/2012/OL of 13/06/2012, provides that the
Supreme Court shall have exclusive jurisdiction over applications for
review of final decisions due to injustice, and Article 81(2) provides
that the grounds for an application for review due to injustice, which
include, inter alia, the review of a Court decision in disfavour of anyone
for injustice, especially when there are provisions in this regard and
irrefutable evidence that the judge ignored in rendering the judgment.
The Respondent State submits that “by failure to make an application
for the Supreme Court to review the decision that she considers unjust,
the Applicant has failed to satisfy the requirement set forth in Article
56 of the Charter and Rule 40 of the Rules”, and invites the Court to
declare the application inadmissible.
178 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
65. The Applicant submits that the Respondent State’s courts are not
empowered to hear disputes concerning interpretation and application
of the Charter, the Protocol and other human rights instruments.
According to the Applicant, “Rwandan positive law has never put in
place special courts or tribunals competent to adjudicate human rights
issues”. The Applicant concludes in this regard that “in the absence of
Rwandan courts and tribunals competent to hear cases and disputes
concerning the interpretation and implementation of the Charter, the
Protocol and any other human rights instrument”, the submission
regarding the Applicant’s breach of Article 56(5) of the Charter and
Rule 40(5) of the Rules are devoid of any legal basis, and the objection
must therefore be found “groundless”.
66. On the Respondent State’s submission that the Applicant failed
to challenge the constitutionality of Law No. 33 bis of 6 September
2003, before the Supreme Court, the Applicant’s Counsel contends
that “she filed before the Supreme Court a Motion to challenge the
constitutionality of Law No. 33 bis of 6 September 2003, punishing
the crime of genocide, crime against humanity and war crimes”. To
corroborate her argument, she adds that “the case was entered on
the cause list as No. RINST/PEN/002/12/CS, examined and pleaded
before the Supreme Court for a ruling on the merits of the said Motion
in open court on 19 July 2012”. The Applicant concludes that “in its
open court hearing of 10 October 2012, the Supreme Court dismissed
the Motion, having found it groundless”, and according to the Supreme
Court, “Law No. 33 bis of 6 September 2003…is clearly consistent with
the Constitution”.
67. On the submission that the Applicant failed to avail herself of
the of judicial review remedy, the Applicant contents that “the action
instituted for review of a final judicial decision on grounds of injustice
does not respect the criteria of effectiveness, accessibility, efficiency
and other criteria as required by international jurisprudence”. According
to the Applicant, pursuant to Article 79 of the Organic Law 03/2012 of
June 2012, only the Office of the Ombudsman can petition the Supreme
Court over applications for review, adding that the remedy of judicial
review is subject to the discretion of the Office of the Ombudsman,
the General Inspectorate of Courts and the President of the Supreme
Court, and that the remedy may be subject to undue prolongation.
68. Regarding the appeal on unconstitutionality, this Court notes
from the records before it that the Applicant did approach the Supreme
Court of Rwanda, which is the highest court in the Respondent State,
to challenge the constitutionality of Law No. 33 bis of 6 September
2003, on the punishment of genocide, crimes against humanity and
war crimes, and the Supreme Court handed down its decision on 18
October 2012, finding the motion groundless.
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165 179
69. In relation to the application for review, this Court notes that under
Article 81 of Organic Law 03/2012 of June 2012, on the Organization,
Functioning and Jurisdiction of the Supreme Court, applications for
review may be heard only on the following grounds:
“1. when there is an unquestionable evidence of corruption,
favouritism or nepotism that were relied upon in the judgment
and that were unknown to the losing party during the course of
the proceedings;
2. when there are provisions and irrefutable evidence that the
judge ignored in rendering the judgment;
3. when the judgment cannot be executed due to the drafting of
its content.”
70. An examination of these grounds shows that the review remedy
would not have been sufficient to redress the Applicant’s complaints
which concerned alleged substantive violation of the Applicant’s human
rights and not only allegations of bias or technical and procedural
errors. Moreover, under Article 79 of Organic Law 03/2012 of June
2012, which governs the Procedure for petitioning the Supreme Court
over applications for review of a final decision due to injustice:
“The Office of the Ombudsman shall be the competent organ to petition
the Supreme Court over application for review of a final decision due to
injustice. When, the final decision is made and there is evidence of injustice
referred to under Article 81 of this Organic Law, Parties to the case shall
inform the Office of the Ombudsman of the matter. When the Office of the
Ombudsman finds that there is no injustice in handing down the decision,
it shall inform the Applicant. When the Office of the Ombudsman finds
that the decision handed down is unjust, it shall send to the President
of the Supreme Court a letter accompanied by a report on the issue and
evidence of such injustice and request to re-adjudicate the case”.
B. Compliance with Rule 40(1), (2), (3), (4), (6) and (7) of
the Rules
74. The Court notes that the issue of compliance with sub-rules
40(1), (2), (3), (4), (6) and (7) is not in contention, and nothing in the
Parties’ submissions indicates that they have not been complied with.
The Court therefore holds that the requirements under those provisions
have been met.
75. 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.
78. The elements of the right to a fair trial as raised in the instant
case are as follows:
“a. the right to presumption of innocence;
(b) the right to defence;
(c) the right to be tried by a neutral and impartial court;
(d) the principle of legality of crimes and penalties and non-
retroactivity of criminal law.
82. Article 14(2) of the ICCPR also provides for the same right in the
following terms:
“Everyone charged with a criminal offence shall have the right to be
presumed innocent until proved guilty according to law”.
92. The Court notes that Article 7(1)(c) of the Charter provides that:
“Every individual shall have the right to have his cause heard. This
comprises:
a)……
b)……
c) the right to defence, including the right to be defended by Counsel
of his choice”.
93. An essential aspect of the right to defence includes the right to
call witnesses in one’s defence. Witnesses in turn deserve protection
from intimidation and reprisals to ensure that they can assist the
accused persons and the authorities to reach a just decision.
94. In the instant case, the Court notes that the Applicant submits two
main allegations relating to her right to defence: searches conducted
on her Defence Counsel at the High Court and secondly, the search of
the Defence witness at the prison. Based on the records, at the High
Court after the Defence Counsel complained, the High Court ordered
that the searches have to be done on all Parties, including the public
for security reasons.
95. Regarding the search of prisoners and detainees, the Court
notes that, this is a normal practice in prisons. Similarly, searches of
the Defence Counsel and the public at the Court may be carried out as
part of security measures, given that grenade attacks had happened
in Kigali before the Applicant’s trial. Thus, as far as the searches in the
prison and of the Defence Counsel at the High Court are concerned,
the Court is of the view that the Applicant’s right to defence was not
contravened.
96. The Court however notes from the pleadings that the search
conducted in prison resulted in the seizure of certain documents,
without the knowledge of the Defence, documents which were allegedly
later used against the Applicant before the High Court. Furthermore,
the Applicant complained about the Judges’ refusal to allow her
Counsel to put questions to the co-accused; the questioning and the
threats to which the Defence witness was subjected to on account
of his deposition upon return to prison; the difficulties faced by the
Counsel in visiting their client; the use of the co-accused’s statements
obtained in suspicious conditions after the latter’s stay in a military
camp. The Respondent did not refute each of these allegations but
made a general denial that the allegations of violation of the right to
defence are unfounded.
97. As regards the questioning of a witness by prison authorities
over the testimony he/she has given in court, the Court notes that
this is not a conduct consistent with standards that aim to promote a
fair trial. Such actions may have an intimidating effect on witnesses’
184 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
99. The Applicant contends that the fact that the Judges of the
Supreme Court and the High Court did not react to the national
prosecution authorities’ intimidation of a Defence witness, in the
person of one Habimana Michel, and also that the Court considers
the said acts of intimidation as having had no impact on the content
of the witness’s testimony, is proof of their partiality. The Applicant
further argues that, at the Supreme Court, her counsel mounted a
strong protest denouncing the abuses and excesses of the prosecution
authorities vis-à-vis a defence witness.
100. The Respondent submits that this allegation is unfounded, since
according to the latter, all the guarantees provided by law have been
observed.
101. The Court notes that the Charter in its Article 7(1)(d) provides
that: “Every individual shall have the right to have his cause heard. This
comprises “(d) the right to be tried … by an impartial court or tribunal”.
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165 185
“1. that the position of the judicial officer allows him or her to play a
crucial role in the proceedings;
i. the judicial officer may have expressed an opinion which would
influence the decision-making;
ii. the judicial official would have to rule on an action taken in a
prior capacity”.6
103. The aforementioned Guidelines provide that the impartiality of a
judicial body would be compromised when:
“1. a former public prosecutor or legal representative sits as a
judicial officer in a case in which he or she prosecuted or
represented a party;
2. a judicial official secretly participated in the investigation of a
case;
3. a judicial official has some connection with the case or a party
to the case; or
4. a judicial official sits as member of an appeal tribunal in a case
which he or she decided or participated in a lower judicial body”.7
104. In the instant case, the evidence adduced by the Applicant does
not sufficiently demonstrate that any of the above factors existed in
the course of her trial. In the circumstances, the Court dismisses this
allegation.
105. The Applicant submits that she was first charged and convicted
4 Article 14(1) of the ICCPR provides that: “…All persons shall be equal before the
courts and tribunals. In the determination of any criminal charge against him, or of
his rights and obligations in a suit at law, everyone shall be entitled to a fair and
public hearing by a competent, independent and impartial tribunal established by
law…”.
5 Article 10 of the Universal Declaration: “Everyone is entitled in full equality to a fair
and public hearing by an independent and impartial tribunal, in the determination
of his rights and obligations and of any criminal charge against him”.
6 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in
Africa, 2003, Principle 5.
7 Ibid.
186 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
for the crime of propagating the ideology of genocide under Law No.
18/2008 of 23 July 2008. Subsequently, the Supreme Court found her
guilty of minimising genocide, re-qualifying the acts under a new law,
that is, Law No. 84/2013 on the repression of the ideology of the crime
of genocide, which entered into force on 28 October 2013. According
to her, the reference to this new law by the Supreme Court violates
the principle of non-retroactivity of the law and the non-retroactive
application of the criminal punishment.
106. The Respondent contends that the principle of legality of crimes
and penalties as provided under Article 7(2) of the Charter was fully
respected during the trial. For the Respondent, any Judge both at the
High Court and the Supreme Court has the last word in terms of re-
characterising an offence and applying the appropriate law, and this
does not amount to a violation of the principle of legality and non-
retroactivity of the law.
107. The Court notes that the relevant provision for the issue at hand
is Article 7(2) of the Charter, which states 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...”
Respondent State governing the offences she was charged with: the
1977 law instituting the Penal Code, Law No. 33/2003 of 6 September
2003, on the Repression of Crimes of Genocide and Crimes against
Humanity of 2003, Law No. 18/2008 of the 23 July 2008, on the
Repression of the Crime of Ideology of Genocide and Law No.45/2008
on Counter-terrorism of 2008. Law No. 18/ 2008 repealed the Law No.
33/2003 to the extent the latter contradicts the provisions of the former.
111. The Court notes that Article 4 of Law No. 33/2003 of 2003
contains a provision criminalising minimisation of genocide while Law
No. 18/ 2008 of 2008 on the Crime of the Ideology of Genocide does
not have a similar provision. In other words, as far as the crime of
minimisation of genocide is concerned; Law No. 33/2003 of 2003
continued to apply. However, in 2013, both Law No. 33/2003 of 2003
and Law No. 18/2008 of 2008 were repealed by Law No. 84/2013 of
2013 on the Crime of Genocide and Other related offences. Similarly,
the 1977 Law Instituting the Penal Code was replaced by the 2012 Law
Instituting the Penal Code.
112. Under its Article 6, Law No. 84/2013 of 2013 provides for
provisions on minimisation of genocide. In comparison to Law No.
33/2003 of 2003, which provides for 10-20 years imprisonment for the
crime of minimisation of genocide, Law No. 84/2013 provides for 5-10
years imprisonment for the same crime.9 On the other hand, for crimes
of conspiracy and threatening State security and the Constitution, and
crimes of spreading rumours with intent to incite the population against
the existing authorities, the 1977 Penal Code provides a criminal
punishment extending up to life imprisonment while the 2012 Penal
Code provides a maximum penalty ranging from 20- 25 years for the
same crimes.
113. The Court takes note that the Applicant was initially charged
with propagating the ideology of genocide before the High Court on
the basis of Law No 18/2008 of 2008. However, the High Court re-
qualified the charge and convicted her for the crime of revisionism of
genocide on the basis of Article 4 of Law No. 33/2003 of 2003 and
crime of treason to threaten state security and the Constitution under
the 1977 Penal Code, and sentenced her to 8 years imprisonment.
On appeal, the Supreme Court sustained the conviction but rejected
the mitigating circumstances invoked by Applicant and crimes of which
she was acquitted at the High Court. The Supreme Court, citing the
existence of concurrence of crimes, imposed a punishment of 15
years imprisonment on the basis of Law No. 84/2013 of 2013 and the
9 Article 12(3) Law No. 84/2013 “cum” Article 116 of the 2012 Organic Law
Instituting the Penal Code.
188 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
2012 Penal Code for the crime of minimising genocide and crimes of
conspiracy and threatening State security.
114. The Court is of the view that the rule of non-retroactivity of the
law does not preclude the requalification of a criminal charge in the
course of a criminal trial resulting from the same facts. What is rather
prohibited is the application of new criminal laws, in the instant case,
Law No. 84/2013 of 2013 and the 2012 Penal Code, to crimes alleged
to have been committed before the coming into force of such law.
115. However, as indicated above, the punishments for the crime of
threatening State security and the Constitution in the 1977 Penal Code
may extend to life imprisonment and for the crime of minimisation of
genocide in the Law No. 33/2003 of 2003 ranges from 10-20 years as
opposed to 15 years’ imprisonment in the 2012 Penal Code and 5-10
years imprisonment prescribed in the Law No. 84/2013, respectively.
116. It is therefore evident that the application of the 2012 Penal
Code and Law No. 84/2013 for the Applicant was in general favourable
and is congruent with the exception to the rule of non-retroactivity,
that new criminal laws may be applied to acts committed before their
commission when these laws provide lighter punishment. The fact that
the punishment imposed on the Applicant by the Supreme Court was
higher than the penalty that was initially imposed by the High Court
was not because of the retroactive application of the new laws. As the
records before this Court reveal, this was rather because the Supreme
Court had rejected the mitigating circumstances considered by the
High Court and convicted the Applicant for an offense (spreading of
rumours) for which she had been acquitted by the High Court.
117. The Court, therefore, finds that there was no violation of Article
7(2) of the Charter.
118. For the avoidance of doubt, the Court wishes to state that this
finding of the Court relates to the allegation of violation of the principle
of non-retroactivity only and is without prejudice to its position with
respect to the right to freedom of expression and opinion below.
119. The Applicant contends that she was convicted for minimisation
of genocide whereas the opinion she expressed in the course of her
speech at the Kigali Genocide Memorial concerned the management
of power, the sharing of resources, the administration of justice, the
history of the country and the attack that led to the demise of the former
President of the Republic. The Applicant submits that she had no
intention to minimise and trivialise genocide or to practice the ideology
of genocide and that the right to express her opinion was protected by
the Constitution of Rwanda and other international instruments.
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165 189
120. The Applicant maintains that the laws of Rwanda which criminalise
the negation of genocide are vague and unclear, and do not comply
with the requirement that restrictions on the rights of individuals must
be necessary. She added that the Respondent State had admitted that
there were defects in the laws penalising the minimisation of genocide.
121. The Applicant further contends that she was found guilty of
spreading rumours likely or seeking to cause a revolt among the
population against established authority. She also contends that in
convicting her for propagating rumours, the local courts failed to prove
or to substantiate their arguments through specific and corroborative
evidence showing that her positions were likely to establish her criminal
liability.
122. During the Public Hearing, Counsel for the Applicant, in reference
to a letter from the Applicant, said:
“We are not against a law to punish those who minimize the genocide
committed against Tutsis in Rwanda, as is the case for other genocides
committed elsewhere. But we demand solid benchmarks to avoid any
amalgamation and the use of such a law for political purposes. Thus, we
demand that such a law clearly show the border between the legitimate
freedom of opinion and the actual crime of minimisation of genocide.”
interference.
2. Everyone shall have the right to freedom of expression; this right
shall include freedom to seek, receive and impart information
and ideas of all kinds, regardless of frontiers, either orally, in
writing or in print, in the form of art, or through any other media
of his choice.
3. The exercise of the rights provided for in paragraph 2 of this
article carries with it special duties and responsibilities. It may
therefore be subject to certain restrictions, but these shall only
be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre
public), or of public health or morals.”
131. The right to freedom of expression is one of the fundamental
rights protected by international human rights law, the respect of which
is crucial and indispensable for the free development of the human
person and to create a democratic society. It comprises inter alia, the
freedom to express and communicate or disseminate information, ideas
or opinions of any nature in any form and using any means, whether at
national or international level. The right to free expression requires that
States protect this right from interferences regardless of whether the
interferences originate from private individuals or government agents.
132. While freedom of expression is as important as all other rights
for the self-development of individuals within a democratic society, it is
not a right to be enjoyed without limits. In its Judgment in the Matter
of Lohé Issa Konate v Burkina Faso of 5 December 2014, this Court
emphasised that freedom of expression is not an absolute right and
under some circumstances, it may be subject to some restrictions. In
that judgment, relying on Article 19(3) of ICCPR and the jurisprudence
of the African Commission on Human Rights, and other international
and regional human rights bodies, the Court held that the terms “within
the law” in Article 9(2) envisage the possibility where restrictions may
be put in place on the exercise of freedom of expression provided that
such restrictions are prescribed by law, serve a legitimate purpose and
are necessary and proportional as may be expected in a democratic
society.10
133. In the instant case, the Court infers from the undisputed
submissions of both Parties that the Applicant was convicted and
sentenced both at the High Court and the Supreme Court of the
Respondent State for the remarks that she made at the Kigali Genocide
138. In its submissions, the Respondent alludes that, given its past
history of genocide, the kind of restrictions imposed by the domestic
law (which were applied on the Applicant) are meant to protect State
security and public order. The nature of the crimes for which the
Applicant was charged and convicted also relate to the protection
of national security, from expressions creating divisions among the
people and internal strife against the government.
139. Unlike Article 19(3) of the ICCPR, the Court observes that Article
9(2) of the Charter does not list those legitimate purposes for which
the right to freedom of expression may be restricted. Nonetheless, the
general limitation clause under Article 27(2) of the Charter requires that
all rights and freedoms must be exercised “with due regard to the rights
of others, collective security, morality and common interest”. In its case
law, the Court has also acknowledged that restrictions on freedom of
expression may be made to safeguard the rights of others, national
security, public order, public morals and public health.15
140. In the instant case, the Court considers that the crimes for which
the Applicant was convicted were serious in nature with potential grave
repercussions on State security and public order and the aims of the
abovementioned laws were to protect the same. The Court therefore
13 See for example, Article 8 of Law No. 84/2013 of 28 October 2013 on the crime
of the ideology of genocide, which stipulates that: “The minimization of genocide
is any intentional act manifested in public aimed at: 1. Minimising the seriousness
of the consequences of the genocide; 2. minimising the methods by which the
genocide was committed. Whoever commits an act provided for in the preceding
paragraph, shall be guilty of an offense of minimization of the genocide”. Article
116 of the Code of Criminal Procedure on negation and minimization of
the genocide also stipulates that: “Anyone who, publicly, in his words, writings,
images or in any other way, denies the genocide perpetrated against the Tutsi,
grossly trivializes it, seeks to justify it or to approve its basis or conceals or destroys
the evidence, is liable to imprisonment for more than (5) to (9) years”.
14 Issa Konate Judgment, para 128.
15 Issa Konate Judgment, para. 134-135.
194 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
151. In its submissions, the Respondent has not made any comments
on the authenticity of this statement.
152. However, the Court observes from the records that the Applicant’s
statement at the Memorial, as indicated in the High Court’s judgment of
30 October 2012, reads as follows:
“ … For example, we are honouring at this Memorial the Tutsi victims
of Genocide, there are also Hutus who were victims of crimes against
humanity and war crimes, not remembered or honoured here. Hutus are
also suffering. They are wondering when their time will come to remember
their people (…)”21
153. On the other hand, the Court further notes from the files that
the statements of the Applicant at the Memorial, as recounted by the
Supreme Court reads as:
“… For instance, this memory has been dedicated to people who
were killed during the genocide against the Tutsi, however there is
another side of genocide: the one committed against the Hutu. They
have also suffered: they lost their relatives and they are also asking,
“When is our time?” (…)”22
154. The key issue at stake is whether in that speech which the
Applicant made at the Genocide Memorial she propagated the ‘theory
of double genocide’. According to Article 5 of Law No. 84/2013 of the
2013 “supporting a double genocide theory for Rwanda” is part of the
offence of “negation of genocide”. Pursuant to Article 6 of the said law,
“Minimization of genocide shall be any deliberate act, committed in public,
aiming at:
155. From the above, the Court takes note that the versions of the
Applicant’s speech made at the Memorial, as recited by the High Court
and the Supreme Court, are at variance with each other and with the
Applicant’s version. While the version of the speech as indicated by
the Supreme Court talks about “another side of genocide: the one
committed against the Hutu”, the version of the speech, as recounted
by the High Court talks about Hutus being “…. victims of crimes against
humanity and war crimes”.
156. In the face of these conflicting versions of the speech as quoted
by the domestic courts of the Respondent State, the Court is of the
view that the doubt should benefit the Applicant. In its assessment, the
Court therefore will rely on the speech of the Applicant at the Memorial,
as recounted by the High Court. In fact, the High Court’s version is
similar to what the Applicant herself claims to have said and which was
tendered before this Court as evidence, which was not challenged by
the Respondent State.
157. The Court acknowledges that, as in any country where there
is a history of genocide, the issue is very sensitive, and opinions or
comments made in relation to the genocide may not be treated in a
similar manner as opinions expressed on other matters. Statements
that deny or minimize the magnitude or effects of the genocide or
that unequivocally insinuate the same fall outside the domain of the
legitimate exercise of the right to freedom of expression and should be
prohibited by the law. In the present Application, the Court is however
of the opinion that there is nothing in the statements made by the
Applicant, which denies or belittles, the genocide committed against
the Tutsi or implies the same.
158. Concerning the allegation that the same remarks at the
Genocide Memorial propagated the theory of ‘double genocide’, the
Court is also of the opinion that nothing in her remarks suggests that
she advanced this view. The relevant paragraph which the High Court
used as evidence for the same (quoted above under paragraph 152)
are clear that the Applicant admits “the genocide against the Tutsis”
but has never claimed that a genocide was committed against the
Hutus. The judgment of the High Court of Kigali itself acknowledges
that her statements do not refer to genocide against the Hutu but
rather reached a different conclusion relying on the context in which
they were made. In this connection, the Court understands that the
contexts in which statements are expressed may imply a different
meaning than the ordinary message that they convey. Nevertheless, in
circumstances where statements are unequivocally clear, as is in the
present case, putting severe restrictions such as criminal punishments,
on the rights of individuals merely on the basis of contexts would create
an atmosphere where citizens cannot freely enjoy basic rights and
198 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
23 See Ingabire Victiore and others v the Prosecution, Judgment of the High Court of
Kigali, para 288
24 Ibid, para 306
25 Issa Konate Judgment, para 155.
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165 199
162. The Court therefore finds that there was a violation of Article 9(2)
of the Charter and Article 19 of the ICCPR.
26 Alex Thomas Judgment para 157; Mohamed Abubakari Judgment para 234.
200 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
X. Costs
On admissibility
iii. dismisses the objection to admissibility of the Application raised
by the Respondent State;
iv. holds that the Application is admissible;
On the Merits
v. declares that the Respondent State has not violated Article 7 (1)
b and d of the Charter as regards the right to presumption of innocence
and the right to be tried by a neutral and impartial tribunal;
vi. finds that the Respondent State has not violated Article 7(1) (c)
of the Charter as regards the searches conducted on the Counsel and
on the defense witness;
vii. finds that the Respondent State has violated Article 7(1)(c) of
the African Charter on Human and Peoples’ Rights as regards the
procedural irregularities which affected the rights of the defense listed
in paragraph 96 of this Judgment;
viii. rules that the Respondent State has violated Article 9(2) of the
African Charter on Human and Peoples’ Rights and Article 19 of the
International Covenant on Civil and Political Rights on freedom of
expression and opinion;
ix. orders the Respondent State to take all the necessary measures
to restore the rights of the Applicant and to submit to the Court a report
on the measures taken within six (6) months;
x. dismisses the Applicant’s prayer for the Court to order her direct
release without prejudice to the Respondent State’s power to take this
measure itself;
xi. defers its decision on other forms of reparation;
xii. grants the Applicant, pursuant to Rule 63 of its Rules, a period of
thirty (30) days from the date of this Judgment to file her observations
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165 201
18. Pursuant to Rule 63 of its Rules, “The Court shall rule on the
request for the reparation, submitted in accordance with Rule 34(5)
of these Rules, by the same decision establishing the violation of a
human and peoples’ right or, if the circumstances so require, by a
separate decision.”
19. The Court recalls its earlier judgments,1 and reiterates that to
24. The Applicant prays the Court to order the Respondent State
to annul the criminal conviction and sentence against her, more
particularly the fifteen (15) years prison sentence pronounced by the
Supreme Court of Kigali.
25. She avers also that the most appropriate form of reparation of
the violations of the right to a fair trial is to be set free.
26. The Applicant further prays the Court to order the Respondent
State to expunge the conviction from her judicial records, adding that
33. The Applicant submits that since her return to Rwanda, she has
suffered “multiple arrests, the brunt of which she continues to bear
in the hands of the security services and various other governmental
institutions.”
34. She also claims that she had to incur several costs not only
to defend herself before Rwandese and international courts, but
also to meet certain expenses required for her survival in the prison
environment.
35. For all the foregoing expenses, the Applicant claims the amount
of two hundred thousand (US$ 200,000) United States Dollars to
be paid to her in reparation of the material damages suffered. She
specifically enumerates the following damages:
“i. Cost of obtaining the release of certain documents from the case
file, which amounts to 230,000 Rwandese Francs, equivalent to
US$ 269.10 at the 2010 rate;
ii. Cost of representation before the High Court of Kigali, the
Supreme Court of Rwanda and the African Court, in terms of
the fees paid to her lawyers, which amount to 68,376 Euros, or
US$ 83,364;
iii. Expenditure incurred while in prison which amounts to 1,000
Umuhoza v Rwanda (reparations) (2018) 2 AfCLR 202 207
Euros per month accounting for a total of US$ 109,728 for the 7
years spent in prison.
iv. The Applicant further states that the amounts presented herein-
above do not cover the losses she incurred as a result of her
detention. She prays the Court to bring the overall material
prejudice suffered to a total of US$ 200,000.”
36. The Court notes that the request for reparation of material
prejudice arising from the violation of a human right must be
substantiated by evidence, and where several prayers have been
made, each of these must be accompanied by probative supporting
documents and buttressed by explanations establishing the link
between the expenditure or material loss and the violation.3
37. In the instant case, the Applicant is claiming reimbursement of
four (4) different expenditures, three (3) of which relate to procedural
costs. These, as the Court has already stated, are part of the concept
of reparation such that once established, it could order the Respondent
State to pay compensation to the victim.
incurred to cover the fees and travel expenses of the five (5) lawyers
who defended her both before Rwandan courts and before this Court.
She attached to her application a synoptic list of the fees paid in the
amount of fifty-five thousand three hundred (55,300) Euros, receipts
of bank transfers to the lawyers, and receipts in respect of the travel
tickets of two lawyers in the amount of five thousand six hundred and
twenty-nine Euros, ninety-six cents (5,629.96); and five thousand and
seventy-two Euros, six cents (5,072.6) respectively.
42. Regarding the fees paid to the lawyers, the Court notes that the
file records show that between 2011 and May 2017, four (4) lawyers,
namely: Iain Edwards, J. Hofdijk, Gatera Gashabana and Caroline
Buisman, received transfers from the Applicant’s bank account to
their bank accounts in the sum of nine thousand (9000) Euros, three
thousand, seven hundred and forty-five Euros, sixty cents (3,745.60),
twenty-four thousand seven hundred and fifty-nine (24,759) Euros
and fourteen thousand, one hundred and twenty-nine (14,129) Euros,
respectively. The total amount thus established as lawyers’ fees
stands at fifty-one thousand six hundred and thirty-three Euros, and
sixty cents (51,633.60) or sixty thousand one hundred and fourty-two
United States dollars and seventy-nine cents (US$60,142.79). The fee
agreement signed between Advocate Caroline Buisman, the reasons
for the transfer and the acknowledgement of receipt of payment signed
by the lawyers attest to the link between the said expenditure and the
Applicant’s case before the courts.
43. The Court also notes that the Applicant’s lawyers’ travel costs
are buttressed by two air tickets purchase receipts by Barrister Caroline
Buisman and Barrister Gatera Gashabana, amounting to five thousand
six hundred and twenty-nine Euros, ninety-six cents (5,629.96) and
five thousand and seventy-two Euros, six cents (5,072.6) respectively,
thus representing a total of ten thousand seven hundred and two
Euros, fifty-six cents (10,702.56). However, the Court notes that the
cost of purchase of these tickets had already been accounted for in
the different bank transfers made by the Applicant to the two lawyers.
44. The Court further notes that the fees paid to lawyers Iain Edwars,
van J Hofdijk and Gatera Gashabana were not substantiated in a fees
agreement. The Court however holds that the Applicant must have
incurred these expenses for the purposes of her defence.
45. The Court holds that given that the Applicant is residing in the
territory of the Respondent State, the amount of reparation shall be
calculated in the currency in use in the said State.
46. Since the Applicant has been awarded reparation for part of the
damages, the Court holds that it is more appropriate to consider the
matter in terms of equity and award the Applicant a lump sum of ten
million Rwandese Francs (FRw 10,000,000), as reimbursement for
Umuhoza v Rwanda (reparations) (2018) 2 AfCLR 202 209
lawyers’ fees.
47. The Applicant also contends that from the time she was
incarcerated up to now, her monthly expenses in prison amounts to
one thousand (1,000) Euros over the period of 7 years spent in prison;
hence the claim for reimbursement of one hundred and nine thousand,
seven hundred and twenty-eight (US$109,728) United States dollars.
She justifies this claim with a copy of two (2) receipts of transfer of
funds amounting to one thousand (1,000) Euros each dated 9 and 13
October 2017, respectively.
48. The Court notes that the Applicant has not substantiated her
claim with supporting documents.
49. Consequently, the Court dismisses the claim for reimbursement
of the expenses incurred in prison.
50. The Applicant submits that since the case began, she has been
the subject of threats from security services and “various other public
institutions”. The Applicant further alleges that her homes have been
visited in both Rwanda and The Netherlands and subjected to “illegal
searches” which have “resulted in the confiscation of her property
(computers and telephones, amongst others).” For all these costs,
she prays the Court to put the total reparation compensation at two
hundred thousand (US$ 200,000) United States dollars.
51. The Court has already underscored in its judgment in Lohé
Issa Konaté v Burkina Faso,4 that it does not suffice to show that the
Respondent State committed a wrongful act to claim compensation; it
is equally necessary to produce evidence of the alleged damages and
the prejudice suffered.
52. Since the Applicant has failed to meet the requirement, the Court
rules that her claims regarding the nature of the equipment seized or
the monetary value of the equipment confiscated are unfounded and
therefore dismisses this claim.
53. The Applicant alleges that since her imprisonment, her dreams
4 Konate v Burkina Faso Judgment, op cit paras 46 and 47; Christopher Mtikila v.
Tanzania Judgment, op cit para 31.
210 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
and ambitions as well as her political and family life have been totally
shattered; that she had been arrested on several occasions, ridiculed
and insulted and her honour dragged in the mud. Her reputation and
morale have been seriously undermined as well as those of members
of her family, that is, her husband and her three children.
54. According to the Applicant, all these physical and psychological
suffering are as a result of her arrest, imprisonment and trial in violation
of the guarantees of a fair trial.
55. Therefore, the Applicant prays the Court to rule ex aequo et bono
(based on equity and conscience) and order the Respondent State
to take the necessary measures to pay her the sum of one hundred
thousand (US$ 100,000) United States dollars as damages, or the
equivalent in Rwandese Francs.
56. The Applicant’s prayer for reparation of moral prejudice concerns
not only the Applicant herself but also her spouse and three children.
57. The Applicant contends that immediately after her speech at the
Genocide Memorial, a denigration campaign was orchestrated against
her by the media and the political class which branded her a proponent
of the genocide ideology, sectarianism and negativism, and thus was
monitored and her movements followed until her arrest.
58. She also asserts that her detention condition prior to and after
her sentence was highly restrictive, at times characterized by isolation,
deprivation of food and prohibition from receiving visitors including her
lawyers, two of whom were remanded in custody for more than one
day before being expelled from Rwanda.
59. The Court recalls that, in general, when persons are detained
under such conditions as have been described by the Applicant, the
moral prejudice they invoke is presumed, such that it is no longer
necessary to show proof to the contrary.5
60. The Court also notes that the campaign of denigration against
the Applicant, the number of press articles and the interviews granted
by political and administrative figures on the accusations levelled
against the Applicant, cast a dark shadow over her personality and her
political ambitions.
61. As the International Court of Justice has pointed out in its
Advisory Opinion on Application for Review of Judgment No. 158 of the
5 Norbert Zongo v Burkina Faso Judgment, para 61. See also Inter-American
Court of Human Rights; Lori Berenson v Peru, Seriea C, No. 119/2004, para 237;
European Court of Human Rights, Application No. 9540/07 (2014), Murat Vural v
Turkey, para 86.
Umuhoza v Rwanda (reparations) (2018) 2 AfCLR 202 211
of her family.
70. The Applicant prays the Court to order the Respondent State
to pay her the amount of one hundred thousand (US$ 100,000) US
dollars in reparation of the moral prejudice.
71. The Court notes that presidential pardon which led to the
Applicant’s release on 15 September 2018 constitutes a form of
reparation of the moral damage, but does not preclude the payment
of monetary compensation for the violation of the right to freedom of
expression.
72. In that regard, the Court adjudicates in equity and grants the
Applicant, the amount of fifty-five million Rwandese Francs (FRw
55,000,000) in reparation of the moral damage suffered by herself, her
spouse and children.
73. On costs, the Court notes that these have already been
addressed in the context of refund of lawyers’ fees.
V. Operative part
I. The Parties
III. Procedure
IV. Jurisdiction
1 See Application No. 002/2013. Order for Provisional Measures 15/3/2003, African
Commission on Human and Peoples’ Rights v Libya and Application No. 006/2012.
Order for Provisional Measures 15/3/ 2013, African Commission on Human and
Peoples’ Rights v Kenya; Application No. 004/2011. Order for Provisional Measures
25/3/2011, African Commission on Human and Peoples’ Rights v Libya.
216 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
concerned”.
20. The Court notes that the rights alleged to have been violated are
guaranteed under Articles 2, 3 and 7 of the Charter.
21. As indicated in paragraph 2 of this Order, the Respondent State,
became a Party to the Charter on 1 March 1989 and to the Protocol
on 16 August 2005 and deposited on 10 March 2011 a Declaration
accepting the competence of the Court to receive cases from individuals
and Non-Governmental Organisations.
22. In light of the foregoing, the Court concludes that it has prima
facie jurisdiction to hear the Application.
23. Under Article 27(2) of the Protocol, “In cases of extreme gravity
and urgency, and when necessary to avoid irreparable harm to
persons, the Court shall adopt such provisional measures as it deems
necessary.” In accordance with Rule 51(1) of the Rules, “Pursuant to
Article 27(2) of the Protocol, the Court may, at the request of a party,
the Commission or on its own accord, prescribe to the Parties, any
interim measure which it deems necessary to adopt in the interest of
the Parties or of justice”.
24. It is for the Court to decide whether to issue provisional measures
depending on the circumstances of each case.
25. The Court notes from the record before it that, the Respondent
State is in the process of execution of a court judgment against the
Applicant by seizing his property.
26. The Court finds that the situation raised in the present
Application is of extreme gravity and urgency on the basis that, should
the Applicant’s property be attached and sold to recover the amount
of Ghana Cedi 51, 283, 480.59, the Applicant would suffer irreparable
harm if the Application on the merits is subsequently decided in his
favour. The Court finds that the circumstances require that an order for
provisional measures be issued, in accordance with Article 27(2) of the
Protocol and Rule 51 of the Rules, to preserve the status quo, pending
the determination of the main Application.
27. For the avoidance of doubt, this order shall not in any way
prejudice any findings the Court shall make regarding its jurisdiction,
the admissibility and merits of the Application.
28. For these reasons,
The Court,
Unanimously,
Orders the Respondent State to:
i. stay the attachment of the Applicant’s property and to take all
appropriate measures to maintain the status quo and to avoid the
Woyome v Ghana (provisional measures) (2017) 2 AfCLR 213 217
I. The Parties
B. Alleged violations
11. 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:
“i. The witnesses did not say where the lamp was located
and the direction of its lighting between them and the
robbers.
ii. The witnesses had not mentioned the distance between
them and the robbers during the crime scene.
iii. 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.
iv. 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.
v. 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.”
12. 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
Isiaga v Tanzania (merits) (2018) 2 AfCLR 218 221
24. By a letter dated 16 June 2017, the Registry notified the Parties
that the written procedure was closed with effect from 14 June 2017.
V. Jurisdiction
28. In accordance with Rule 39(1) of the Rules, the Court “shall
conduct a preliminary examination of its jurisdiction …”.
29. 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.
Isiaga v Tanzania (merits) (2018) 2 AfCLR 218 223
30. 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.
31. 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.
32. 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.”
33. 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
34. 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
35. 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
37. 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:
“i. 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;
ii. 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
iii. 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.
38. From the foregoing, the Court finds that it has jurisdiction to
consider this Application.
39. 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”.
40. 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:
42. 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.
43. 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.
44. 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,
226 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
50. 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.
51. 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.
52. 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.”
53. 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.
54. 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.
55. 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.
60. 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.
Isiaga v Tanzania (merits) (2018) 2 AfCLR 218 229
61. 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.
62. 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.
63. 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.
64. 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.
65. 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.
66. 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,
230 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
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
67. 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
68. 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.
69. 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.
70. 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.
71. 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.
72. 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.
73. 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.
74. 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”.
75. 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.
76. In terms of Article 7(1)(c):
“Every individual shall have the right to have his cause heard. This
comprises:
232 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
81. 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.
82. 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.
83. 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”
84. 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.
85. 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.
86. 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.
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.
88. 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.”
92. 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.
93. On the other hand, the Respondent State prayed the Court to
deny the request for reparations and all other reliefs sought by the
Applicant.
94. 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.”
95. 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 Malawi,21 that it is not
an appeal court to quash or reverse the decision of domestic courts,
therefore, it does not grant the request.
96. 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.
97. 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.”
98. 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
X. Operative part
On Admissibility:
On Merits:
v. 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.
vi. 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;
vii. 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
viii. 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.
ix. 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.
x. Reserves its ruling on the prayers for other forms of reparation
and on costs.
xi. Grants, in 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.
Kouma and Diabaté v Mali (admissibility) (2018) 2 AfCLR 237 237
I. The Parties
A. The facts
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.
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 State1;
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;2
iii. the alleged violations occurred subsequent to the entry
into force of the international instruments, as concerns
the Respondent State;3 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.
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
until 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
Kouma and Diabaté v Mali (admissibility) (2018) 2 AfCLR 237 243
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 2016,6 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.7 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.
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
6 Date on which the Court of Appeal referred the case back to the Court of First
Instance Bamako District V.
7 See Application No. 001/2012, Judgment of 28/03/2014: Frank David Omary and
Others v United Republic of Tanzania, paras 133 to 135. http://www.african-court.
org.
Kouma and Diabaté v Mali (admissibility) (2018) 2 AfCLR 237 245
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.
I. The Parties
Tanzanian nationality.
9. In response to that invitation, the Applicant, on 26 August
2014, unaware of the Minister’s letter dated 21 August 2014 went to
the Immigration Office at Manyara with a view to having his passport
returned. He alleges that, upon arrival, he was arrested, detained
and beaten. Seven days later, that is, on 1 September 2014, he was
expelled, with immigration officers escorting him to the Kenyan border
after he was compelled to sign a notice of deportation and a document
attesting that he is a Kenyan citizen.
10. On 5 October 2014, the Applicant’s father brought the matter to
the attention of the Prime Minister of the Respondent State, seeking
annulment of the decision to strip his son of his citizenship and for
his deportation. The Applicant’s father’s letter was transmitted to
the Minister of Home Affairs and Immigration for consideration and
appropriate action. On 3 December 2014, the Minister of Home Affairs
and Immigration confirmed the Applicant’s expulsion.
11. In Kenya, the Applicant was on 3 November 2014, found in
a comatose condition with bruises and injuries, and was taken to
hospital. On 6 November 2014, he was arraigned before the Homa
Bay Resident Magistrate’s Court in Kenya which declared him as being
in an “irregular status” in the territory and sentenced him to pay a fine
for illegal stay. The Applicant was again expelled to Tanzania following
that decision.
12. The Applicant alleges that he has since been living in secret in
the “no man’s land” between the territory of the Respondent State and
the Republic of Kenya, in very difficult conditions, without basic social
or health services.
B. Alleged violations
13. The Applicant alleges that the confiscation of his passport, the
“illegal immigrant” status issued against him and his expulsion from
the United Republic of Tanzania deprived him of his right to Tanzanian
nationality, guaranteed and protected under Articles 15(1) and 17 of the
Tanzanian Constitution and Article 15(2) of the Universal Declaration of
Human Rights.
14. In his Reply to the Respondent State’s Response, the
Applicant, through his Counsel, further states that by depriving him
of his Tanzanian nationality and expelling him to Kenya, which in turn
declared him as being in “an irregular situation”, the Respondent State
violated a number of his fundamental rights:
“i. the right to freedom of movement and residence in his
own country as guaranteed by Article 12 of the Charter,
including;
Anudo v Tanzania (merits) (2018) 2 AfCLR 248 251
ii. the right to liberty and security of his person and freedom
from arbitrary arrest and detention as provided in Article
9(1) of the ICESCR and Article 6 of the Charter;
iii. the right to equality before the law; the right to be
presumed innocent until proven guilty; the right to a fair
and public hearing guaranteed under Article 15 of the
ICCPR and Article 7(b) of the Charter; 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,
under Article 7(a) of the Charter;
iv. the right to participate freely in the government of
his country, either directly or through freely chosen
representatives, as provided under Article 13(1) of the
Charter and Article 25(1) of the ICCPR;
v. the right of access to public office and the use of public
services in his country, as provided under Article 13(2) of
the Charter and Article 25(2) of the ICCPR;
vi. the right to work as provided under Article 15 of the
Charter and Article 6 of the ICESCR;
vii. the right to enjoy the best attainable state of physical and
mental health as guaranteed by Article 16 of the Charter;
viii. the right to protection of his family by the Respondent
State as provided under Article 18 of the Charter, and the
right to an adequate standard of living for himself and his
family as provided under Article 11 of the ICESCR;
ix. the right to marry and found a family guaranteed by Article
23 of the ICCPR;
x. the right to take part in the cultural life of his community as
provided under Article 17(2) of the Charter”.
15. The Application dated 24 May 2015, was lodged at the Registry
of the Court by an email sent on 25 May 2015.
16. The issue of the validity of the email and its registration was
considered by the Court at its 38th Ordinary Session which decided
that the Application be registered.
17. On 15 September 2015, the Application was served on the
Respondent State. On the same date, it was transmitted to all the
States Parties to the Protocol; and on 28 October 2015, was notified
to the other entities listed under Rule 35(3) of the Rules of Court
252 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
26. The Applicant prays the Court to order that the immigration
authorities’ decision to expel him from his own country, be declared
Anudo v Tanzania (merits) (2018) 2 AfCLR 248 253
V. Jurisdiction
29. In terms of Rule 39(1) of its Rules, “the Court shall conduct
preliminary examination of its jurisdiction …”
30. In this respect, the Respondent State raises objection to the
material jurisdiction of the Court on which the Court shall make a ruling
before considering other aspects of jurisdiction.
of the Court by invoking Article 3(1) of the Protocol and Rule 26(1) and
(2) of the Rules which provide that “the Court shall have jurisdiction
to deal with all the cases and all disputes submitted to it concerning
interpretation and application of the Charter, the Protocol and any other
relevant instrument on human rights ratified by the States concerned”.
32. The Respondent State argues that, contrary to the above
provisions, the Applicant does not request the Court to interpret or
apply an Article of the Charter or the Rules, nor invoke any human
rights instrument ratified by the United Republic of Tanzania.
33. The Applicant refutes the Respondent State’s objection to the
Court’s material jurisdiction, contending that even in the absence of any
express reference to the Charter or the Protocol, the alleged violations
fall within the ambit of the international instruments in respect of which
the Court has jurisdiction.
34. The Court notes that, in actual fact, the Application does not
indicate the articles or human rights instruments guaranteeing the
rights alleged to be violated.
35. However, in his Reply to the Respondent State’s Response,
the Applicant specifies the rights allegedly violated as well as the
international instruments which guarantee the said rights. It follows
that the Application raises allegations of violations of human rights
guaranteed by international legal instruments applicable before this
Court and ratified by the Respondent State, particularly the Charter,
the ICCPR and the ICESCR.
36. The Court notes its established case law on this issue and
reiterates that the rights allegedly breached need not be specified in
the Application; it is sufficient that the subject of the Application relates
to the rights guaranteed by the Charter or by any other relevant human
rights instrument ratified by the State concerned.1
37. Accordingly, the Court dismisses the Respondent State’s
objection and rules that it has material jurisdiction to hear the case.
38. The Court notes that its personal, temporal and territorial
jurisdiction is not contested by the Respondent State. Besides, nothing
on record indicates that the Court does not have personal, temporal
and territorial jurisdiction. The Court accordingly holds that:
VI. Admissibility
40. Pursuant 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”. The Respondent State raises objection to the admissibility of
the Application on the basis of Article 6 of the Protocol and Rule 40(5)
of the Rules of Court. It contends not only that the Applicant has not
exhausted the available local remedies, but also that the Application
has not been filed within a reasonable timeframe.
41. In terms of Rule 40 of the Rules, which in substance restates
the content of Article 56 of the Charter, Applications shall be admissible
if they fulfil the following conditions:
“1. Indicate their authors even if the latter request anonymity,
2. 2. Are compatible with the Charter of the Organization of African
Unity or with the present Charter,
3. 3. Are not written in disparaging or insulting language,
4. 4. Are not based exclusively on news discriminated through the
mass media,
5. 5. Are sent after exhausting local remedies, if any, unless it is
obvious that this procedure is unduly prolonged,
6. 6. Are submitted within a reasonable period from the time local
remedies are exhausted or from the date the Commission is
seized of the matter, and
7. 7. Do not deal with cases which have been settled by these
States involved in accordance with the principle of the Charter of
the United Nations, or the Charter of the Organization of African
Unity or the provision of the present Charter.”
256 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
42. The Respondent State avers that the Applicant could have
challenged the decision of the Minister of Home Affairs and Immigration
by filing before him a petition for waiver or cancellation of the “prohibited
immigrant” notice and also introduce an application for authorization to
return to the United Republic of Tanzania, stating the reasons for the
return. It contends that under The Immigration Act, 1995, the Minister
of Home Affairs and Immigration has the discretionary power to grant
exemptions in cases of illegal residence; but that the Applicant never
attempted to exercise this remedy.
43. According to the Respondent State, the Applicant had the
opportunity to challenge the Minister’s decision to publish the
“prohibited immigrant” notice as provided under the Law Reform Act,
(Cap. 310 of the Laws) which offers the right to remedies to people who
feel aggrieved by a measure taken through an organ of Government or
an administrative authority.
44. The Respondent State further states that the Applicant could
have introduced before the High Court of Tanzania, an Application for
review as a way to remedy the alleged violation of his rights.
45. The Respondent State argues that the afore-mentioned
remedies exist because they are provided under Tanzanian laws; are
available and can be exercised without impediment.
46. The Respondent State concludes that since the Applicant did
not exercise the aforesaid remedies available locally, the Application
does not meet the conditions set forth under Rule 40(5) of the Rules
and must therefore be dismissed.
47. The Applicant submits that he has exhausted the local remedies
available in the Respondent State in conformity with section 10(f) of the
Tanzanian Immigration Act which provides that “…every declaration of
the Director…shall be subject to confirmation by the Minister, whose
decision shall be final.”
48. The Applicant also submits that he appealed the “prohibited
immigrant” decision before the Minister through his father, but that the
Minister confirmed the decision.
49. The Applicant further submits that after his expulsion from
the Respondent State, he wrote to the Prime Minister (through his
father), appealing his expulsion, but that the Minister, requested by
the Prime Minister to examine his request responded, confirming the
said expulsion. He avers that, consequently, the Respondent State
was aware of his desire to return to its territory, and that the available
domestic remedies have been exhausted.
50. The Applicant also points out that the Tanzanian Immigration Act
Anudo v Tanzania (merits) (2018) 2 AfCLR 248 257
does not provide judicial remedy for the decisions of the immigration
authorities. According to him, the only other remedy was therefore that
of review which is inefficient, unavailable and illogical.
51. The Court notes that the Applicant did in actual fact exercise the
remedies provided by the Tanzanian Immigration Act by first seizing the
Minister of Home Affairs and Immigration2 of the matter. He also sent
a letter to the Prime Minister.3 The Court also notes that beyond these
remedies exercised by the Applicant, the Tanzanian Immigration Act is
silent on whether or how the Minister’s decision can be challenged in
a court of law.
52. With regard to the Respondent State’s contention that the
Applicant could have challenged the Minister’s decision in the High
Court by way of judicial review, this Court notes that at the time the
Applicant was in a position to exercise the said remedy, he had already
been expelled from Tanzania and was no longer in the territory of the
Respondent State. In the circumstances, it would have been very
difficult for him to exercise the review remedy.
53. Consequently, the Court dismisses the Respondent State’s
objection to the admissibility of the Application on grounds of failure to
exhaust local remedies.
54. The Respondent State alleges that the Application was not filed
within a reasonable time in conformity with Rule 40(6) of the Rules
of Court, arguing that the Applicant seized the Court nine (9) months
after the publication of the “prohibited immigrant” notice, a period it
considers unreasonable.
55. In his Reply, the Applicant notes that the Minister’s letter in
response to his appeal was signed in December 2014, and that he
filed his Application before this Court in May 2015; meaning that only
five (5) months had elapsed between the Minister’s final decision and
the filing of the matter in this Court.
56. The Court notes that Rule 40(6) of the Rules which in substance
reproduces Article 56(6) of the Charter speaks simply of “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.”
57. The Court has established in its previous Judgments that the
61. The Court notes that the instant Application invokes the violation
of three fundamental rights: (i) the Applicant’s right to nationality and
the right not to be arbitrarily deprived of his nationality, (ii) the right not
to be arbitrarily expelled and (iii) the right to have his cause heard by
a court.
62. The Court notes that the rights of which the Application alleges
violation concern not only the rights above cited, but also other
incidental rights.
5 See Case Concerning United States Diplomatic and Consular Staff in Tehran
(United States v Iran) [1980] ICJ page 3, Collection 1980. See also Matter of
South-West Africa (Ethiopia v South Africa; Liberia v South Africa) (Preliminary
Objections) (Bustamente, Judge, separate opinion), ICJ, Collection 1962 page
319, as well as Section 9(f)of the Constitution of the United Republic of Tanzania,
1977.
Anudo v Tanzania (merits) (2018) 2 AfCLR 248 261
89. The Applicant submits that his arrest and expulsion is the result
of his refusal to give a bribe to the immigration officers. Subsequently,
he wrote to the Prevention and Combating of Corruption Bureau to
complain.
90. The Applicant maintains that officials of the Respondent State
Anudo v Tanzania (merits) (2018) 2 AfCLR 248 263
unlawfully seized his passport which was still valid, cancelled it, deleted
it from the Register, and then deported him to Kenya.
91. He submits that it is unlawful to declare him a “prohibited
immigrant” and expel him from his country. He denounces the
Tanzanian authorities’ application of Section 11(1) of the Tanzanian
Immigration Act, which states that “the entry and presence in Tanzania
of any prohibited immigrant shall be unlawful”.
92. The Respondent State, for its part, contends that the Applicant’s
passport was cancelled following an investigation conducted by the
Immigration Department which provided proof that the information
used in obtaining the said passport was false. The decision to expel
the Applicant was taken by the Minister of Home Affairs, the only one
competent to do so.
93. It submits that the Applicant’s stay in its territory was unlawful;
that the “prohibited immigrant” notice was issued in accordance with
the law and that the Applicant’s expulsion was legal.
94. The Respondent State further submits that after the cancellation
of his passport, the Applicant had the opportunity to regularize his
situation in Tanzania but refused to do so.
95. The Court notes that the Applicant alleged the violation of Article
12 of the Charter which stipulates that: (1) “Every individual shall have
the right to freedom of movement and residence ... (2) “Every individual
shall have the right to leave any country, including his own, and to
return to his country ...”
96. In the opinion of the Court, the relevant portion of this provision
which relates to the instant matter is Article 12(2), in particular, the right
“to return to his country”. In the instant case, the Court will consider this
aspect, notwithstanding the fact that the Applicant left the Respondent
State’s territory involuntarily.
97. Having found that the deprivation of the Applicant’s nationality
was arbitrary, the question that arises at this juncture is whether
a citizen can be expelled from his own country or prevented from
returning to his country.
98. In this regard, the United Nations Human Rights Committee has
found “... that there are few circumstances in which a ban on entry
into one’s own country may be reasonable. A State Party may not
… by deporting a person to a third country, prevent that person from
returning to his own country.”8
99. The Court notes that the Applicant’s expulsion resulted from the
arbitrary withdrawal of his nationality by the Respondent State. This
122. In his Application, the Applicant prayed the Court to: (i) order the
annulment of the decision of the immigration authorities to expel him
from his own country, including the notice of “prohibited immigrant”,
and restoration of his nationality by declaring him a citizen of the
United Republic of Tanzania; (ii) allow him to return to and remain in the
Respondent State like all its other citizens; (iii) order the Respondent
State to protect him against victimization as a consequence of the
present application; and (iv) order the Respondent State to amend
268 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
IX. Costs
129. The Court notes that in their pleadings, neither of the Parties
made submissions concerning costs.
130. According to Rule 30 of the Rules “Unless otherwise decided by
the Court, each party shall bear its own costs”.
131. The Court shall decide on the issue of costs when making a
ruling on other forms of reparations.
X. Operative part
on jurisdiction:
i. dismisses the objection on lack of jurisdiction;
ii. declares that it has jurisdiction;
Anudo v Tanzania (merits) (2018) 2 AfCLR 248 269
on admissibility:
iii. dismisses the objection on inadmissibility;
iv. declares the Application admissible;
on the merits
v. declares that the Respondent State arbitrarily deprived the
Applicant of his Tanzanian nationality in violation of Article 15(2) of the
Universal Declaration of Human Rights;
vi. declares that the Respondent State has violated the Applicant’s
right not to be expelled arbitrarily;
vii. declares that the Respondent State has violated Articles 7 of
the Charter and 14 of the ICCPR relating to the Applicant’s right to be
heard;
viii. orders the Respondent State to amend its legislation to provide
individuals with judicial remedies in the event of dispute over their
citizenship;
ix. orders the Respondent State to take all the necessary steps to
restore the Applicant’s rights, by allowing him to return to the national
territory, ensure his protection and submit a report to the Court within
forty-five (45) days.
x. Reserves its Ruling on the prayers for other forms of reparation
and on costs.
xi. Allows the Applicant to file his written submissions on other
forms of reparation within thirty (30) days from the date of notification of
this Judgment; and the Respondent State to file its submissions within
thirty (30) days from the date of receipt of the Applicant’s submissions.
270 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
I. The Parties
B. Alleged violations
V. On jurisdiction
17. Pursuant to Rule 39(1) of the Rules, the Court “shall conduct
preliminary examination of its jurisdiction”. The Court must, in that
regard, satisfy itself that it has personal, material, temporal and
territorial jurisdiction to hear the instant Application.
274 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
18. The Court notes that the Parties do not contest its jurisdiction,
and that in light of the evidence on file, the jurisdiction is established as
indicated hereunder:
“i. Personal jurisdiction: the Application was filed on 11 July
2016, that is, subsequent to the dates mentioned herein-
above. The Respondent State ratified the Protocol and
deposited the Declaration prescribed under Article 34(6);
ii. Material jurisdiction: the Applicant alleges mainly the
violation of the provisions of the Charter and of the ICCPR,
instruments to which the Respondent State is a Party.
iii. Temporal jurisdiction: the alleged violations started prior
of the deposit of the declaration, but continued thereafter,
that is, up to 5 June 2014, the date on which the Supreme
Court delivered the Judgment being challenged by the
Applicant.1
iv. Territorial jurisdiction: the facts occurred on the territory of
the Respondent State which does not contest the same.”
19. In view of the aforesaid, the Court holds that it has jurisdiction to
examine this Application.
20. 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”. Pursuant to Rule 39 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”.
21. Rule 40 of the Rules which in essence reproduces the contents
of Article 56 of the Charter stipulates that:
“In terms of Rule 40 of the Rules of Court, which in substance reproduces
the content of Article 56 of the Charter, Applications shall be admissible if
they fulfil the following conditions:
mass media,
5. Are sent after exhausting local remedies, if any, unless it is
obvious that this procedure is unduly prolonged,
6. Are submitted within a reasonable period from the time local
remedies are exhausted or from the date the Commission is
seized of the matter, and
7. Do not deal with cases which have been settled by the States
involved in accordance with the principle of the Charter of the
United Nations, or the Charter of the Organization of African
Unity or the provision of the present Charter.”
22. The Court notes that, with regard to the admissibility of the
Application, the Respondent State raises three preliminary objections
concerning exhaustion of local remedies, belated referral of the case
to the Court and the previous settlement of the dispute in accordance
with the principles of the United Nations Charter, the Constitutive Act
of the African Union and the African Charter on Human and Peoples’
Rights.
31. In its Response, the Respondent State recognises that the Court
“has the discretionary power to determine the time limit within which
Applications should be brought”.
32. The Respondent State alleges, however, that the instant
Application was not filed within reasonable timeframe. It contends in this
regard that whereas the Supreme Court Judgment to which Application
refers, was rendered on 5 June 2014, this Court was seized of the
matter only on 11 July 2016, that is, two years and one month later.
33. In reply, the Applicant recalls that the provisions of Rule 40(6)
belated referral.
5 See Communication 409/12 Luke Munyandu Tembani and Benjamin John Freeth
(represented by Norman Tjombe) v Angola and thirteen Others (AfCHPR 2013)
para 112; Reference No 1/2007 James Katabazi et al v Secretary General of
the East African Community and Another (2007) AHRLR 119 (EAC 2007) paras
30-32; Application 7920, Judgment of 29 July 1988, Velásquez-Rodríguez v
Honduras CIADH para 24(4); Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia-Herzegovina v Serbia-and-
Montenegro) Judgment of 26 February 2007, ICJ., Collection 2007, p 43.
280 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
VII. Costs
on jurisdiction:
i. declares that it has jurisdiction;
on admissibility
ii. dismisses the inadmissibility objection for non-exhaustion of the
local remedies;
iii. dismisses the inadmissibility objection for failure to submit the
Application within a reasonable time;
iv. upholds the inadmissibility objection on the grounds that the
dispute has been settled within the meaning of Article 56(7) of the
Charter;
v. consequently rules that the Application is inadmissible;
on costs
vi. rules that each party shall bear its own cost.
_____________________________
17. The European Court of Human Rights further noted that “the
piercing of the “corporate veil” or the disregarding of a company’s legal
personality will be justified only in exceptional circumstances.”7
18. Based on the above cited passages we are of the opinion that
one of the reasons why the Applicant’s identity was said to be the same
as that of his company in this case is because the corporate veil had
been lifted and as a result of this, the rights and obligations which
were attributed to the company became the rights and obligations
for the Applicant, which in turn meant that the two have the same
identity. These are the same observations that were made by the
Inter-American Court on Human Rights and the European Court on
Human Rights in the above-mentioned passages. It is therefore our
opinion that the above-mentioned views should have been adopted
I. The Parties
1. The Applicants, Nguza Viking (Babu Seya), hereinafter referred
to as the First Applicant and Johnson Nguza (Papi Kocha) hereinafter
referred to as the Second Applicant, allege that they are citizens of the
Democratic Republic of Congo who lived and worked as musicians in
Dar es Salaam, Tanzania. The Second Applicant is the biological son
of the First Applicant.
2. The Respondent State, the United Republic of Tanzania,
became a Party to the African Charter on Human and Peoples’ Rights
(hereinafter referred to as the “Charter”) on 21 October 1986 and also
became a Party to the Protocol to the African Charter on Human and
Peoples’ Rights on the Establishment of an African Court on Human
and Peoples’ Rights (hereinafter referred to as “the Protocol”) on 10
February 2006. Furthermore, the Respondent State deposited the
declaration prescribed under Article 34(6) of the Protocol on 29 March
288 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
B. Alleged Violations
27. The Applicants requested that the Court facilitates the production
of children of tender age and their parents and teacher as well as a
paediatric expert, as witnesses.
28. The Respondent State maintains that this request should be
rejected.
29. In view of the fact that the Court considered that the written
pleadings were sufficient to consider the matter, it did not deem it
necessary to grant the Applicants’ request.
VI. Jurisdiction
30. In accordance with Rule 39(1) of the Rules, “The Court shall
conduct preliminary examination of its jurisdiction…”.
34. The Applicants rebut this allegation and rely on the Court’s
decisions in Alex Thomas v United Republic of Tanzania2 and Peter
Joseph Chacha v United Republic of Tanzania,3 in both of which the
Court held that as long as the rights allegedly violated are protected by
the Charter or any human rights instrument ratified by the Respondent
State, the Court shall have jurisdiction.
35. This Court reiterates its position as affirmed in Ernest Mtingwi
v Republic of Malawi4 that it is not an appeal court with respect to
decisions rendered by national courts. However, as it underscored
in its Judgment of 20 November 2015 in Alex Thomas v United
Republic of Tanzania, and reaffirmed in its Judgment of 3 June 2016
in Mohamed Abubakari v United Republic of Tanzania, this situation
does not preclude it from examining whether the procedures before
national courts are in accordance with international standards set out
in the Charter or other applicable human rights instruments to which
the Respondent State is a Party.5 In the instant case, this Court has
jurisdiction to examine whether the domestic courts’ proceedings
relating to the Applicant’s criminal charges that form the basis of their
Application before this Court were conducted in accordance with
the international standards set out in the Charter and the Covenant.
Consequently, the Court rejects the Respondent State’s objection that
the Court is acting in the instant matter as a court of first instance and
as an appellate court and finds that it has material jurisdiction to hear
the matter.
36. Furthermore, regarding the allegation that the Application calls
for the Court to sit as a court of first instance, the Court notes that
since the Application alleges violations of provisions of some of the
international instruments to which the Respondent State is a Party, it
has material jurisdiction. This is in accordance with Article 3(1) of the
Protocol, which provides that the jurisdiction of the Court “shall extend
to all cases and disputes submitted to it concerning the interpretation
and application of the Charter, this Protocol and any other relevant
Human Rights instrument ratified by the States concerned”.
37. Consequently, the Court rejects the Respondent State’s
objection that the Court is acting in the instant matter as a court of
first instance and as an appellate court and finds that it has material
jurisdiction to hear the matter.
38. The Court notes that its personal, temporal and territorial
jurisdiction has not been contested by the Respondent State,
and nothing in the pleadings indicate that the Court does not have
jurisdiction. The Court thus holds that:
i. it has jurisdiction ratione personae given that the
Respondent State is a Party to the Protocol and has
deposited the Declaration required under Article 34 (6)
thereof, which enabled the Applicants to access the Court
in terms of Article 5(3) of the Protocol;
ii. it has jurisdiction ratione temporis on the basis that the
alleged violations are continuous in nature since the
Applicants remain convicted on the basis of what they
consider an unfair process;
iii. it has jurisdiction ratione loci given that the facts of the
matter occurred in the territory of a State Party to the
Protocol, that is, the Respondent State.
39. From the foregoing, the Court finds that it has jurisdiction to
hear the instant case.
40. In terms of Article 6(2) of the Protocol, “the Court shall rule on
296 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
44. The Respondent State contends that the Application does not
meet the admissibility conditions stipulated under Articles 56(5) of the
Charter, Article 6 of the Protocol and Rules 40(5) of the Rules.
45. The Respondent State maintains that local remedies were not
Nguza v Tanzania (merits) (2018) 2 AfCLR 287 297
55. The Respondent State contends that the Application does not
meet the admissibility conditions stipulated under Articles 56(6) of the
Charter and Rules 40(6) of the Rules because it was not filed within a
reasonable time after all local remedies were exhausted.
56. The Respondent State contends that though the Court of Appeal
rendered its decision on the Applicants’ appeal on 11 February 2010,
the relevant period in this regard is between 29 March 2010 when the
Respondent State deposited the Declaration required under Article
34(6) of the Protocol as read together with Article 5(3) thereof and
6 March, 2015 when the Applicants filed their Application before the
Court, that is, four (4) years and eleven (11) months after Tanzania
deposited the afore-mentioned Declaration.
57. The Applicants in their Reply to the Respondent State’s
Response contest the Respondent State’s interpretation of what
constitutes reasonable time under Rule 40(6) of the Rules. They
argue that, given their circumstances, their Application was filed within
a reasonable period after the exhaustion of local remedies, adding
in this regard that, at all material times they were both lay, indigent,
incarcerated persons without the benefit of legal advice. They do
not dispute that the Respondent State’s Court of Appeal rendered a
Judgment on 11 February 2010 and that their Application before this
Court is dated 11 February 2015. However, the Applicants submit that
their circumstances warrant the Court to admit their Application as
there are sufficient reasons to explain why they filed their Application
at the time they did.
58. In determining whether the Application was filed within a
reasonable time, the Court is of the view that although the process
of exhaustion of ordinary remedies stops with the appeal at the Court
of Appeal whose decision was rendered on 11 February 2010, the
Applicants should not be penalised for choosing to pursue a review
of this decision. The Applicants’ Application for Review having
been dismissed by the Court of Appeal on 13 November 2013, the
assessment of reasonableness will be based on the time between this
date and 6 March 2015 when they filed their Application.8
59. The Court notes that the Applicants filed the Application one (1)
year, three (3) months and twenty-one (21) days after the Court of
Appeal dismissed their Application for Review.
60. In the Matter of Beneficiaries of late Norbert Zongo, and
Others v. Burkina Faso, the Court established the principle that “the
reasonableness of a time limit of seizure will depend on the particular
circumstances of each case and should be determined on a case-by-
case basis.”9
61. Considering the Applicants’ situation, that they are lay, indigent
and incarcerated persons, without counsel or legal aid, and as the
records show, the time expended in providing them access to Court
records, their attempt to use extraordinary remedies through the
Application for Review of the Court of Appeal’s Decision, the Court finds
that these constitute sufficient justification as to why the Applicants
filed the Application one (1) year, three (3) months and twenty-one (21)
days after the Court of Appeal’s decision on the request for review.
62. For these reasons, the Court finds that the Application has been
filed within a reasonable time as envisaged under Article 56(6) of the
Charter and Rule 40(6) of the Rules. The Court therefore overrules this
preliminary objection on admissibility.
VIII. Merits
75. The Applicants have raised several allegations that fall under
the aegis of Article 7(1) of the Charter which reads as follows:
“Every individual shall have the right to have his cause heard. This
comprises:
79. The Court notes that strictly speaking, the Respondent State
has not challenged the veracity of the Applicants’ allegations in this
regard.
80. The record before this Court shows that the Applicants were
informed of the charges against them on 16 October 2003 when they
were taken before the Resident’s Magistrate’s Court of Kisutu, that is,
four (4) days after they were arrested. In the view of this Court, in the
specific circumstances of this case where there were allegations of
the rape of children of tender age and the possible need for further
investigations, the Applicants were informed promptly of the charges
against them and therefore there was no violation of Article 7(1)(c) of
the Charter in this regard.
81. With regard to the Applicants’ denial of the right to call a Counsel,
the judgment of the Court of Appeal shows that the Applicants were
represented by Advocate Mabere Marando during their appeal at the
Court of Appeal and the Ruling on their application for review shows
that this same Counsel represented them in those proceedings. There
is no record of proceedings at the Resident’s Magistrate’s Court to
enable the Court verify whether the Applicants had access to Counsel
when the charges were read to them and in the course of the trial. In
these circumstances, the Court finds that this allegation has therefore
not been proven.
82. From the foregoing, the Court concludes that the allegations
under consideration are dismissed.
were all under the age of eight (8) at the time, knew the perpetrators of
the alleged offences.
86. The Applicants maintain that, at the time of their arrest, the
police officers even went with some of the alleged victims to the scene
of the crime, and that it is on this basis that the alleged victims saw the
Applicants while they were being arrested and also while in remand.
They contend further that, although the alleged victims could not identify
Papi Kocha, the Second Applicant and instead, they had identified
both Nguza Mbangu and Francis Nguza as being Papi Kocha, the Trial
Magistrate decided that an identification parade was not necessary.
87. The Respondent State did not respond to these allegations
that the Applicants raised in their Reply to the Respondent State’s
Response.
88. The issue that this Court needs to determine is whether the
manner in which the Applicants were identified is in accordance with
Article 7(1)(c) of the Charter.
89. The Court is of the view that the decision on evidence to be
adduced regarding the form of identification of accused persons is to be
left to national courts since they determine the probative value of such
evidence and they enjoy a wide discretion in this regard. This Court
generally would therefore defer to the national Court’s determination
in this regard, so long as doing so, will not result in a miscarriage of
justice.
90. In the instant case, this Court notes from the record that in the
course of domestic proceedings, the Magistrate’s Court considered the
testimony of witnesses regarding the identification of the Applicants
and being satisfied on this, proceeded with the trial. The Court finds
that, on the whole, there is nothing on the record to indicate that this
specific aspect of proceedings occasioned a miscarriage of justice.
The Court consequently holds that there is no violation of Article 7(1)
(c) of the Charter.
91. The Applicants allege that their request for copies of witness
statements during the trial was denied by the Trial Court and this, in
their view, violated their right to a fair trial. They further allege that
this violated their right to a fair trial because the Prosecution failed to
disclose relevant evidence which could have buttressed their defence.
92. The Applicants contend that there was a deliberate failure on
the part of the Trial Magistrate to discharge her duty to ensure that
material witnesses are called. They state that the persons who ought to
Nguza v Tanzania (merits) (2018) 2 AfCLR 287 305
have been called as material witnesses are Selina John, who claimed
to have first informed Candy David Mwaivaji (Prosecution Witness 1)
about Gift Kapapwa (Prosecution Witness 2) allegedly taking money
from the First Applicant; Cheupe Dawa, who was accused of abducting
the children and taking them to the First Applicant; Zizel, the First
Applicant’s grandson and Mangi, who was the owner of the container
shop located near the First Applicant’s house.
93. According to the Applicants, the effect of this omission was the
abuse of the principle of equality of arms. The Applicants maintain that
the failure to call the afore-mentioned four (4) persons as witnesses
meant that though the Prosecution relied on the information they
provided, the defence was unable to cross-examine them because
they were never called to testify.
94. The Applicants submit that “equality of arms” is a principle of
common law which provides that there must be a fair balance between
the Parties. They argue that it is a cardinal tenet of the right to a fair
trial and an intrinsic aspect of the right to adversarial procedures. They
maintain that each Party must be afforded a reasonable opportunity to
present its case especially its evidence, under conditions that do not
place it at a substantial disadvantage vis-à-vis its opponent.
95. The Applicants further contend that this principle imposes an
obligation on the Prosecution to disclose any material in its possession
which may assist the accused in defending himself.
96. The Respondent State submits that, the Applicants must
substantiate the allegation that the afore mentioned four (4) persons
were not called as witnesses to enable the Applicants cross-examine
them. The Respondent State avers that only the victims, and no other
persons were better placed to testify to the facts, particularly because
the Prosecution has the onus to establish that the victims were familiar
with the crime scene.
97. The Court notes that the Respondent State has not challenged
the allegation that the Applicants were not provided with the witness
statements and that the four witnesses above were not called and
were therefore not cross-examined by the Applicants.
98. The Court recalls that in accordance with Article 7(1)(c) of the
Charter everyone has a right to defence, and that according to Article
14(3)(b) of the Covenant, in the determination of any criminal charge
against him, “everyone shall be entitled … (b) to have adequate time
and facilities for the preparation of his defence and to communicate with
counsel of his own choosing”. The Court also notes that Article 14(3)
(e) of the Covenant provides that “in the determination of any criminal
charge against him, everyone shall be entitled… to examine, or have
examined, the witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as
306 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
105. In the instant case however, the records of the domestic judicial
proceedings show that the Applicants’ evidence of an alibi was
considered and rejected by the Respondent State’s Trial and Appellate
Courts. The record of proceedings reveals that the High Court and the
Court of Appeal specifically addressed the alibi defence and rejected it
after weighing it against the testimony of the witnesses, finding that the
witnesses’ testimony was sufficiently reliable to set aside the Applicants’
alibi defence. The Court finds that, on the whole, there is nothing on the
record to indicate that the setting aside of the Applicants’ alibi defence
occasioned a miscarriage of justice.
106. Consequently, the Court holds that the Respondent State has
not violated the Applicants’ right to defence as enshrined in Article 7(1)
(c) of the Charter and thus dismisses the allegation.
12 Section 3(2)(a) of the Law of Evidence Act provides that in criminal matters, the
prosecution must prove the case beyond reasonable doubt; Section 114(1) thereof
provides that the accused bears the burden of proof where he or she claims that
there are circumstances bringing the case under an exception to the operation
of the law creating the offence and this burden can be discharged when there is
evidence from the prosecution in this regard.
308 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
vi. Allegation that the trial judge was biased and that
some of the Applicants’ submissions and evidence were
not duly considered and taken into account
124. The Court notes however that, in the instant case, the Applicants
have not provided sufficient evidence as to the alleged bias and to
the possible implications of the alleged violations on the Trial Court’s
judgment.
125. Accordingly, the Court finds that the alleged violation has not
been proven and therefore dismisses it.
130. On those points, the Court notes that the Applicants limited
themselves to stating that their rights under Articles 13 and 18(1) have
been violated by the Respondent State. They have not specified how
and in what circumstances the alleged violations occurred.
131. As indicated above, this Court has stated in its previous judgments
that, “General statements to the effect that the right has been violated
are not enough” and that “More substantiation is required”.14
132. In view of the aforesaid, the Court finds that the allegations
133. In their Reply, the Applicants lastly state that the Respondent
State has fallen short in its obligations by failing to give effect to the
provisions of Article 1 of the Charter.
134. The Respondent State has not responded to this allegation.
135. The Court notes that in instances where an allegation of violation
of Article 1 of the Charter has been raised, the Court has held that
“when the Court finds that any of the rights, duties and freedoms set
out in the Charter are curtailed, violated or not being achieved, this
necessarily means that the obligation set out under Article 1 of the
Charter has not been complied with and has been violated”.15
136. In the instant case, the Court has held that the Respondent State
has violated Article 7(1)(c) of the Charter with respect to some of the
Applicants’ allegations (supra paragraphs 100 and 117). On the basis
of the foregoing observations, the Court thus finds in conclusion that,
violation of the said rights entails violation of Article 1 of the Charter.
X. Costs
143. The Applicants prayed the Court to order the Respondent State
to pay costs.
144. The Respondent State has not made any prayer as to costs.
145. The Court notes in this regard that Rule 30 of its Rules provides
that “Unless otherwise decided by the Court, each party shall bear its
own costs”.
146. Having considered the circumstances of this matter, the Court
decides to deal with the question of costs when considering the other
forms of reparation.
On jurisdiction:
i. Dismisses the objection to the jurisdiction of the Court;
ii. Declares that it has jurisdiction.
On admissibility:
iii. Dismisses the objections on the admissibility of the Application;
iv. Declares the Application admissible.
On the merits:
v. Finds that the Respondent State has not violated Article 5 of the
Charter;
vi. Finds that the Respondent State has not violated Article 7(1)(c)
of the Charter as regards: the failure to promptly inform the Applicants
of the charges against them and denying them an opportunity to call
their Counsel; the manner of the Applicants’ identification; the rejection
of the Applicant’s alibi defence; the failure to admit the reports of the
Applicants’ urine and blood tests as evidence and the alleged partiality
of national courts;
vii. Finds that the Respondent State has violated Article 7(1)(c) of
the Charter as regards: the failure to provide the Applicants copies of
witness statements and to call material witnesses; the failure to facilitate
the First Applicant to conduct a test as to his impotence; consequently
finds that the Respondent State has violated Article 1 of the Charter;
viii. Finds that the allegations of violation of Articles 13 and 18 (1) of
the Charter have not been established;
ix. Holds that the Applicants’ prayer to be released from prison has
become moot;
x. Orders the Respondent State to take all necessary measures
to restore the Applicants’ rights and inform the Court, within six (6)
months from the date of this Judgment of the measures taken.
xi. Defers its ruling on the Applicants’ prayer on the other forms of
reparation, as well as its ruling on Costs; and
xii. Allows the Applicants, in accordance with Rule 63 of its Rules,
to file their written submissions on the other forms of reparation within
thirty (30) days from the date of notification of this judgment; and the
Respondent State to file its Response within thirty (30) days from the
date of receipt of the Applicants’ written submissions.
314 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
I. The Parties
endorsed with the stamp of the District Registrar of the High Court
on 17 June 2013. The Applicants allege that following a considerable
period of enquiry about the Constitutional Petition, it was returned to
them by the Registrar of the High Court without an official letter. They
allege that they were verbally instructed to direct their petition to the
Court of Appeal.
B. Alleged violations
the Court to grant them an extension of time to file their Reply to the
Respondent State’s Response; by a notice dated 14 March 2016, the
Registry notified the Applicants of the Court’s decision to grant them
thirty (30) days extension of time to file the said Reply. The Applicants’
filed Reply to the Respondent State’s Response on 23 March 2016.
19. By a notice dated 10 June 2016 the Registry informed the Parties
that the written procedure was closed with effect from 3 June 2016.
V. Jurisdiction
24. In accordance with Rule 39(1) of the Rules, the Court “shall
conduct preliminary examination of its jurisdiction …”
25. The Respondent State raised only one objection, on the material
jurisdiction of the Court.
37. The Court notes that its personal, temporal and territorial
jurisdiction has not been contested by the Respondent State, and
nothing on the record indicates that the Court does not have jurisdiction.
The Court thus holds:
i. 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
4 Alex Thomas v Tanzania Judgment op cit para 130 and Application No. 007/2013.
Judgment of 03/06/2016, Mohamed Abubakari v United Republic of Tanzania
(Mohamed Abubakari v Tanzania Judgment). para 29.
5 Application No. 012/2015. Judgment of 23/03/2018. Anudo Ochieng Anudo v
United Republic of Tanzania, (Anudo Anudo v Tanzania Judgment) para 76; Case
Concerning United States Diplomatic and Consular Staff in Tehran (United States
v Iran) [1980] ICJ Rep 3 p 42, Collection 1980; Article 9(f) of the Constitution of the
United Republic of Tanzania, 1977.
322 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
the Protocol;
ii. it has temporal jurisdiction on the basis that the alleged
violations are continuous in nature since the Applicants
remain convicted and are serving a thirty (30) year
imprisonment sentence on the basis of what they consider
an unfair process;6
iii. it has territorial jurisdiction given that the facts of the
matter occurred in the territory of a State Party to the
Protocol, that is, the Respondent State.
38. From the foregoing, the Court finds that it has jurisdiction to
hear the instant case.
39. 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.”
40. 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:
42. The Respondent State contends that the Applicants should have
raised their complaints within the domestic courts as required by Article
56(5) of the Charter, before filing their application before this Court.
The Respondent State also alleges that it first became aware of the
allegations enumerated in paragraph 11 above, after the filing of this
Application. The Respondent State maintains that the Applicants can
still pursue a Constitutional Petition within the domestic courts in this
regard.
43. The Applicants contend that they exhausted all the local remedies
available because they were heard up to the Court of Appeal which is
the highest court in the Respondent State. The Applicants state that
any other remedies available are to be considered as “extraordinary
remedies” which they were under no obligation to pursue.
44. The Applicants have raised thirteen (13) claims before this Court
as indicated in paragraph 11 above. The record indicates that eight (8)
of the claims indicated at paragraph 11(i), (iii), (iv), (v), (vi), (vii), (viii)
and (ix) were raised at various stages during their trial and appeals
before the courts of the Respondent State. The record also indicates
that, five (5) claims are being raised for the first time before this
Court. They are denial of their right to legal representation, prolonged
detention in police custody; the dismissal of the Application for Review
before the Court of Appeal; the irregular rejection of their constitutional
petition and the illegality and harshness of the sentence imposed on
the Applicants following their conviction.
45. Any application before the Court must comply with the
requirement of exhaustion of local remedies.7 However, in Alex Thomas
v United Republic of Tanzania, the Court also held that the Applicant
was not required to exhaust domestic remedies in respect of alleged
violations of fair trial rights which were occasioned in the course of his
60. The Applicants have raised several claims that stem from the
alleged violation of the right to a fair trial under Article 7 of the Charter
which reads as follows:
“1. Every individual shall have the right to have his cause heard. This
comprises:
62. The Applicants allege that considering the gravity of the offence
and the sentence they were facing, their identification through an
informal identification process was insufficient and did not meet national
and international standards. They allege that proper identification
processes ought to have been undertaken. The Applicants maintain
that no identification parade took place and no documentary evidence
relating to their identification was tendered in Court. They claim that
Prosecution Witness 3, Inspector Peter Mvulla stated that police
investigators took the suspects to the complainant to be identified. The
Applicants also argue that the whole evidence adduced in the Trial
Court was not in compliance with the principles of law and practice
governing visual identification The Applicants maintain that their
conviction should be quashed, because they were based on their
identification that did not follow the procedure set out in the law.
63. The Respondent State submits that this allegation was a ground
of the Applicants’ appeal before the Court of Appeal in Criminal Case No.
27 of 2006 and that the Court of Appeal considered the allegation and
upheld the findings of the Trial Court and High Court. The Respondent
State submits that the allegation lacks merit and should be dismissed.
64. The contention is whether the Applicants were properly
identified and whether the Respondent State’s Courts applied the
appropriate principles and law in evaluating the evidence of witnesses
on identification.
65. The record indicates that both the High Court and Court of Appeal
considered the issue of visual identification and satisfied themselves
that the criterion under the law was met and that the identification
parade was carried out properly.12
66. The High Court examined the evidence of Fatuma Said, the
Bureau de Change staff who was manning it when the robbery took
place and who testified that she saw both Applicants on the material day
and that the Second Applicant pointed a pistol at her. The High Court
further noted that Fatuma Said was able to identify both Applicants at
the identification parade which was carried out two (2) days later on 5
July 1999.
67. The Court of Appeal also considered both issues relating to
identification and observed that there was no dispute in the description
that Fatuma Said gave of the robbers. The Court of Appeal also
observed that the clothing found in the Second Applicant’s possession
at the time of his arrest matched the description of the robbers.
68. On the issue of visual identification, this Court notes that the
Court of Appeal observed that the identification by a single witness
must be absolutely watertight to justify a conviction. The Court notes
that the Court of Appeal also considered the principles guiding
visual identification as set out in the Respondent State’s relevant
jurisprudence.13 The Court of Appeal examined these principles and
the findings of the Trial Court and High Court and it was satisfied there
was no mistaken identity.
69. Moreover, the record before this Court shows that the Police
Form (PF) 186 recording the conduct of the identification parade
was tendered in evidence and the Police Officer who conducted
the identification parade, Deputy Sergeant Nuhu also testified as
Prosecution Witness 5 during the trial.
70. In the view of this Court, nothing on the record shows that the
domestic courts did not apply the law appropriately and in light of
applicable standards. Both the High Court and the Court of Appeal
examined the applicable principles governing the issue of identification
and applied them to the evidence tendered in a manner that was fair
and just.
71. The Court finds that the Respondent State did not violate the
right to a fair trial with regard to the identification of the Applicants.
80. The Applicants submit that they were not given any opportunity
330 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
the judicial proceedings in the local courts.15 In the instant case, the
Applicants were charged with armed robbery, an offence that attracts a
minimum sentence of thirty (30) years imprisonment.
87. The Court therefore finds that by failing to provide the Applicants
with a lawyer to represent them in the proceedings, the Respondent
State violated the Applicants’ right to defence.
iv. Allegation that the Courts did not apply the required
standard of proof
throughout the trial. The High Court examined the record which shows
that Fatuma Said who testified as Prosecution Witness 4 stated that
she was attacked by two suspects who pointed a gun at her. The High
Court also found that the third Accused in the trial, Mr. Wilfred Wilbert
(now deceased) also confessed that he and the Second Applicant
robbed Fatuma Said. The record shows that the Third Accused’s
testimony was corroborated by Detective Constable Shaban and
Moses who interrogated and witnessed the Third Accused’s confession
and testified as Prosecution Witnesses 1 and 2, respectively.
93. This Court also notes that the Court of Appeal examined the
record and the findings of the Trial Court and the High Court and
found no fault therein. The Court of Appeal found that the absence
of the weapon used to commit the crime and of the testimony of the
owner of the Bureau de Change on their own did not prevent the
Applicants from defending themselves and the Courts from finding that
the Prosecution had proven the case beyond reasonable doubt since
there were other sources of evidence that corroborated the testimony
of the victim, Fatuma Said. The Court notes that the Applicants have
also not demonstrated how the absence of the weapon and the lack
of testimony by the owner of the Bureau de Change could lead to the
domestic courts to conclude that the required standard of proof was
not met.
94. In line with its jurisprudence, in the Matter of Mohamed
Abubakari v United Republic of Tanzania, this Court is of the view that
a fair trial requires that where a person faces a heavy prison sentence,
the finding that he or she is guilty and the conviction must be based
on strong and credible evidence.16 In the instant case, the Court notes
that the Trial Court, the High Court and the Court of Appeal determined
that there was evidence to prove beyond reasonable doubt that the
Applicants committed the crime they were charged with despite the
fact that the weapon alleged to have been used to commit the crime
was not tendered in evidence and the owner of the Bureau de Change
did not testify.
95. In the view of this Court, there is nothing on the record to show
that the domestic courts did not apply the required standard of proof
in convicting the Applicants. In any event, the Applicants have not
provided sufficient evidence to show that the procedures followed by
the domestic courts in addressing the issue of the weapon used to
commit the crime and the testimony of owner of the Bureau de Change
violated their right to a fair trial with respect to the standard of proof.
96. Accordingly, the Court finds that the Respondent State did not
97. The Applicants allege that the changing of the Magistrate denied
them a chance to be heard and that therefore they did not have a fair
trial.
98. The Respondent State submits that the Court of Appeal
considered this matter in Criminal Appeal No. 27 of 2006 and found
that the change of magistrates did not occasion an injustice. The
Respondent State avers that Section 214 of the Criminal Procedure
Act provides for conviction or committal where proceedings are heard
partly by one magistrate and partly by another.17
99. The issue for determination is whether the change of the
Magistrate hearing the case affected the Applicants’ right to be heard.
100. The Court notes that the record indicates that the case was heard
by three different Magistrates successively, in three different instances.
The first Magistrate heard the matter until he was transferred to another
duty station. The second Magistrate continued hearing the matter until,
following the Applicants’ complaints of loss of confidence in her, she
recused herself from hearing the case. Thereafter, the third Magistrate
completed the hearing of the case and delivered the judgment.
101. The record also indicates that the High Court considered
whether the second Magistrate had proper grounds to recuse herself
and whether the Applicants were prejudiced when the second and
third Magistrates did not address the Applicant’s concerns in terms of
Section 214 of the Criminal Procedure Act. The High Court examined
the circumstances under which a judicial officer may be recused namely,
that there should be evidence of a conflict between the litigant and
the Magistrate or the latter has a close relationship with the adversary
party or one of them, and that the Magistrate or a family member has
an interest in the outcome of the litigation other than the administration
of justice. After examining these circumstances in light of the facts of
the case, the High Court found that there was no justification for the
second Magistrate to have disqualified herself.
102. Nonetheless, the High Court found that the failure of the second
and third Magistrates to address the accused in terms of Section 214
of the Criminal Procedure Act did not amount to an omission that would
17 Section 214 of the Criminal Procedure Act [Cap. 20 Revised Edition 2002] provides
that if a magistrate is unable to continue hearing a case, it is at the discretion of
the magistrate who takes it over whether to proceed with the matter based on the
evidence recorded so far or start taking the evidence afresh.
334 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
occasion an injustice.
103. The Court of Appeal also examined the issue and found that the
Trial Court’s failure to accord the Applicants an opportunity to address
it on whether the trial should have proceeded or started afresh did not
constitute a fatal omission as, pursuant to Section 214 of the Criminal
Procedure Act, the Trial Court had the discretion to proceed with the
hearing without according the Applicants this opportunity. The Court
of Appeal found that the second and third Magistrates who heard the
case applied the discretion given to them under the law judiciously.
104. The Court notes further that, the Applicants did not prove whether
the Magistrates were biased, whether the evidence admitted by the
Second Magistrate was prejudicial to their case or how the Magistrates
failed to properly apply their discretion by proceeding with the matter
rather than hearing it afresh.
105. In light of the foregoing, the Court finds that the replacement of
the Magistrate in charge of the case does not violate the Applicants’
right to be tried by an impartial court.
106. The Applicants submit that during the trial, the Court did not
consider or accord any weight to their written submissions tendered
in Court as their defense, and that the High Court and Court of Appeal
did not draw any adverse inference on this omission by the Trial Court.
107. The Respondent State submits that the Second Applicant raised
this allegation as his eleventh ground of appeal before the Court of
Appeal, but that the Court of Appeal did not consider it because it
could not consider matters of evidence not adduced at the High Court,
without good reason.
108. The question for the Court to determine is whether the Applicants’
right to be heard would be violated if their written submissions are not
referenced in the judgment.
109. The Court is of the view that the right to be tried heard as
provided under Article 7(1) of the Charter extends to the right to be
given reasons for the decision.18
110. In the instant case, the record shows that the Magistrate recorded
the Applicants’ oral evidence and after the close of the defence case,
only the Second Applicant chose to file written submissions. The record
18 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in
Africa adopted by the African Commission on Human and Peoples’ Rights in 2003
para 2(i).
Mango v Tanzania (merits) (2018) 2 AfCLR 314 335
119. The Applicants submit that the Court of Appeal determined their
appeal contrary to principles of law.
120. The Respondent State avers that the Court of Appeal considered
the argument and did not find fault with the findings of the Trial Court
or the High Court.
121. The Court notes that the Applicants have not elaborated on this
claim.
122. In a previous case, this Court has stated that
“General statements to the effect that this right has been violated
are not enough. More substantiation is required”.19
123. The Court notes that, in the instant case, the Applicants are
making general claims regarding the violations of their rights without
substantiation.
124. Accordingly, the Court finds that the alleged violations have not
been proven, and therefore dismisses the same.
has raised it for the first time before this Court. The Respondent State
maintains further that, the applicable law required that conviction for
armed robbery attracted a minimum sentence of thirty (30) years’
imprisonment.20
127. In view of the fact that the Applicants abandoned this claim, the
Court finds that this allegation has become moot.
128. The Applicants allege that the Respondent State has violated
their rights provided under Articles 8 (right to an effective remedy by
competent national tribunals for acts violating fundamental rights)
and 10 (entitlement in full equality to a fair hearing by an independent
and impartial tribunal in determination of rights and obligations and of
criminal charges) of the Universal Declaration of Human Rights.
129. The Respondent State did not specifically respond to these
allegations.
130. The provisions of Articles 8 and 10 of the Declaration are
reflected in Article 7 of the Charter under the aegis of which the
Court has already made determinations regarding some allegations
of violation of the Applicants’ rights by the Respondent State. In this
regard therefore, the Court finds that it is not necessary to determine
whether the Respondent has violated Articles 8 and 10 of the Universal
Declaration of Human Rights.
131. The Applicants claim that Section 142 of the Respondent State’s
Evidence Act is incompatible with international standards on the right
to a fair trial on the basis that it denies accused persons the opportunity
to cross-examine accomplices who testify for the prosecution.
132. The Respondent State did not make submissions regarding this
prayer.
133. Section 142 of the Law of Evidence Act [Cap. 6 Revised Edition,
2002] provides that:
“An accomplice shall be a competent witness against an accused
20 Section 285 and 286 of the Penal Code [Cap 6. As amended by Act No. 10 of
1989], the Minimum Sentences Act [Cap. 90 of 1972] as amended by Act No. 6 of
1994 Written Laws (Miscellaneous Amendments) and Court of Appeal of Tanzania
(Criminal Appeal No. 69 of 2004), William R Gerison v The Republic.
338 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
person; and conviction is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice.”
134. The Court notes that national laws are considered as fact before
international courts and can form the basis of allegations of violations
of international law.21 The Court observes however that it does not
appear from the above-mentioned provision that there is a restriction
on cross-examination of accomplices. In any event, the Applicants
have not elaborated how the aforementioned provision of the Evidence
Act does not conform to the international standards on the right to a
fair trial. The Court therefore finds that this allegation lacks merit and
consequently dismisses it.
135. The Applicants submit that their Application for Review of the
Court of Appeal’s decision of 12 May 2010 was dismissed on the basis
that their grounds for review may have been raised in an Appeal. They
also submit that their first ground of appeal regarding their identification
qualified as a ground for review.
136. The Respondent State maintains that the Applicants’ ground for
review that the decision was based on a manifest error on the face of
the record resulting in a miscarriage of justice did not fall within the
criteria set by the Court of Appeal Rules.
137. This Court notes that the Applicants have not provided proof to
support this allegation and nothing on record to indicate that the Court
of Appeal rejected the Application for Review arbitrarily. This Court
accordingly dismisses this allegation for lack of merit.
138. The Applicants state that they filed an Application in the High
Court of Tanzania pursuant to the Basic Rights and Duties Enforcement
Act. They claim that their Application was acknowledged as received
142. The Applicants allege that the Respondent State has violated
Articles 2 (right to enjoyment of the rights and freedoms recognised in
the Charter without distinction of any kind such as race, ethnic group,
colour, sex, language, religion, political or other opinion, national and
social origin, fortune, birth or other status), 3 (right to equality before
the law and equal protection of the law), 5 (right to respect of one’s
dignity and to recognition of legal status and prohibition of all forms of
exploitation and degradation of man, particularly slavery, slave trade,
torture, cruel, inhuman or degrading punishment and treatment),
19 (equality of all peoples) and 28 (duty to consider others without
discrimination) of the Charter. The Applicants also claim that the
Respondent State has violated Articles 1 (recognition of freedom and
equality in dignity and rights), 2 ( entitlement to the rights and freedoms,
without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status), 5 (right not to be subjected to torture or to cruel,
340 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
IX. Costs
159. The Court notes in this regard that Rule 30 of its Rules provides
that “Unless otherwise decided by the Court, each party shall bear its
own costs”.
160. None of the Parties have made a prayer as to costs.
161. Having considered the circumstances of this case, the Court
decides that each Party shall bear its own costs.
X. Operative part
On jurisdiction:
i. Dismisses the objection to the jurisdiction of the Court;
ii. Declares that it has jurisdiction;
On admissibility:
iii. Dismisses the objections on the admissibility of the Application;
iv. Declares the Application admissible;
On the merits:
v. Finds that the Applicants have not established the alleged
violation of Articles 2, 3, 5 ,19 and 28 of the Charter and Articles 1, 2,
5, 6 and 7 of the Universal Declaration of Human Rights
vi. Finds that the Respondent State has not violated Article 7 of
the Charter as regards: the Applicants’ identification; the changing of
the Magistrate hearing the case; the alleged failure by the national
courts to apply the required standard of proof; the alleged lack of
consideration of the Second Applicant’s written submissions by the
Trial Court and the allegation that the judgments against the Applicants
were defective and erroneous; Consequently finds that the prayer that
the Respondent State has violated Articles 8 and 10 of the Universal
Declaration of Human Rights has become moot;
vii. Finds that the incompatibility of Section 142 of the Evidence Act
with the international standards on the right to a fair trial has not been
established;
viii. Finds that the allegations relating to the dismissal of the Applicants’
Application for Review and the rejection of their Constitutional Petition
have not been established;
ix. Finds that the Respondent State has violated Article 7(1)(c) of
the Charter as regards: the failure to provide the Applicants with free
legal assistance; and the failure to provide the Applicants with copies
of some witness statements and the delay in providing them some
witness statements; Consequently finds that the Respondent State
has violated Article 1 of the Charter;
On remedies
x. Does not grant the Applicants’ prayer for the Court to directly
order their release from prison, without prejudice to the Respondent
State applying such a measure proprio motu; and
Mango v Tanzania (merits) (2018) 2 AfCLR 314 343
On costs
xii. Decides that each Party shall bear their own costs.
344 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
I. The Parties
B. Alleged violations
prison sentence.
V. Jurisdiction
19. Pursuant to Rule 39(1) of its Rules, the Court “shall conduct
preliminary examination of its jurisdiction….”
20. The Respondent State submits that the Applicant requires this
Court to act as an Appeal Court or Supreme Court, whereas it does not
have the power to do so.
21. According to the Respondent State, Article 3 of the Protocol
does not give the Court the latitude to adjudicate on issues that have
not been raised by the Applicant before the national courts, review
judgments rendered by the said courts, reassess the evidence and
make a finding.
22. The Respondent State asserts that in its judgment in Criminal
Case No. 228/2005, the Court of Appeal of Tanzania examined all
the allegations made by the Applicantand that this Court is bound to
respect the Judgment rendered by that Court.
23. The Applicant refutes this assertion. Citing the Court’s
jurisprudence, particularly in Alex Thomas v United Republic of
Tanzania and Peter Joseph Chacha v United Republic of Tanzania, he
submits that the Court has jurisdiction as long as the allegations made
are in respect of human rights violations.
24. The Court reiterates its position, that it is not an appellate body
with respect to the decisions of national courts.1 As the Court had
emphasised in its 20 November 2015 Judgment in Alex Thomas v
United Republic of Tanzania, it held that: “though this Court is not an
appellate body with respect to decisions of national courts this does
not preclude it from examining relevant proceedings in the national
courts in order to determine whether they are in accordance with the
standards set out in the Charter or any other human rights instruments
ratified by the State concerned”.2 In the instant case, the Court’s
26. The Court notes that its personal, temporal and territorial
jurisdiction is not contested by the Respondent State, and that nothing
on record indicates that the Court lacks jurisdiction. It therefore holds:
i. that 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) allowing
individuals to bring applications directly to the Court,
pursuant to Article 5(3) of the Protocol (supra, paragraph
2);
ii. that it has temporal jurisdiction insofar as the alleged
violations are of a continuing nature, since the Applicant
is still convicted for what he considers to be defects;4
iii. that it has territorial jurisdiction insofar as the facts
occurred in the territory of the Respondent State, a State
Party to the Protocol.
27. In light of the foregoing considerations, the Court holds in
conclusion that it has jurisdiction to hear the case.
32. In its Response, the Respondent State argues that the Application
has not complied with the admissibility conditions prescribed under
Article 56(5) of the Charter and Rule 40(5) of the Rules and that it
has not been filed within a reasonable time after local remedies were
exhausted.
33. The Respondent State further argues that with regard to the
alleged violation of the rights enshrined in the Bill of Rights, Part III,
Articles 12 to 29 of the Constitution of the United Republic of Tanzania,
as in this case, the Applicant has the possibility to file a Constitutional
Petition before the High Court of Tanzania orrequest a review of the
decision of the Court of Appeal in accordance with Rule 65 of that
Court’s Rules.
34. The Respondent State argues in conclusion that the Applicant’s
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344 351
41. The Respondent State submits that the Applicant filed this
Application five (5) years and two (2) months, after the Respondent
State deposited the Declaration prescribed under Article 34(6) of the
Protocol.
42. The Respondent State maintains that the Application is
inadmissible on the grounds that it has not complied with the conditions
of admissibility envisaged in Rule 40(6) of the Rules.
43. The Respondent State relying on the jurisprudence of the African
Commission on Human and Peoples’ Rights in Majuru v Zimbabwe,7
maintains that six (6) months is a reasonable period within which the
Application should have been filed.
44. In his Reply, the Applicant refutes the Respondent State’s
allegations on reasonable time and argues that the Declaration filed
under Article 34(6) of the Protocol was deposited thirty (30) months
after the Court of Appeal’s Judgment in Criminal Case No. 228/2005.
The Applicant adds that, at that time, he was already incarcerated
following his conviction and moreover, he had no access to information.
45. The Applicant asserts that, in the circumstances, the Application
was filed within a reasonable time as envisaged by Article 56(6) of the
Charter and Rule 40(6) of the Rules and he prays that the Court should
refer to its own jurisprudence which requires that compliance with this
requirement should be determined on a case-by-case basis.
46. The Applicant further contends that, in the circumstances, it was
difficult for him being a lay person with regard to judicial matters to be
aware that new remedies which were hitherto unavailable were now
possible.
47. Lastly, the Applicant submits that, if the Court dismisses his
Application on the ground that it should have been filed earlier than
was the case, this would amount to a flagrant injustice and a continuing
violation of the rights set forth in Articles 6 and 7 of the Charter, given
that he is still in prison.
48. The Court notes that Article 56(6) of the Charter does not specify
any time frame within which a case must be filed before this Court.
Rule 40(6) of the Rules, which, in substance, restates Article 56(6) of
the Charter, simply mentions “a reasonable time from the date local
remedies were exhausted orfrom the date set by the Court as being
the commencement of the time limit within which it shall be seized with
the matter.”
8 Alex Thomas v Tanzania Judgment op cit, para 73; Zongo and Others v Burkina
Faso Judgment op cit para 121.
354 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
53. In light of the foregoing, the Court finds that this Application
meets all the admissibility conditions set out in Article 56 of the Charter
and Rule 40 of the Rules and declares the Application admissible.
54. The Applicant alleges that the Respondent State has violated
Articles 1, 2, 3, 4, 5, 6, 7(1)(c) and 7(2) of the Charter. The Court
however notes that the Applicant dwelt only on violations of Articles 1
and 7 of the Charter which relate to rights, duties and freedoms, and
the right to a fair trial, which this Court will now examine.
55. The Applicant raises several claims that relate to the alleged
violation of the right to a fair trial which reads as follows:
“1. Every individual shall have the right to have his cause heard. This
comprises:
62. The Applicant alleges that the Trial Judge and the Appelate
Judges relied on the statements of Prosecution Witness 1 (PW1)
obtained by a police officer acting in lieu of a Criminal Investigation
Police Officer who showed up at the crime scene for the purpose of
investigation, in breach of the procedure in this respect.
63. The Respondent disputes these allegations and submits that the
Applicant has not provided irrefutable proof.
64. It is apparent from the record on file and, more specifically, from
a reading of the three judgments delivered by the national courts that
the Applicant’s guilt was based not only on the statement of witness
PW1, but also on witnesses PW2, PW3 and PW4, and at no point
in the proceedings was the allegation regarding the annulment of the
proceedings in relation to prosecution evidence PW1 raised. The Court
further notes that the Applicant has not provided proof of this allegation.
65. The Court holds in conclusion that the allegation regarding
procedural error relating to the statement of the prosecution witness
PW1 is unfounded.
356 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
70. The Applicant submits that the thirty (30) years prison sentence
pronounced by the Trial Court against him was excessive in terms of
Sections 285 and 286 of the Penal Code which prescribes a maximum
sentence of fifteen (15) years; and therefore that his conviction
contravened the Constitution of the United Republic of Tanzania. He
further submits that the 30 years prison sentence introduced and
published by the Official Gazette No. 269 of 2004 in its Section 287 A,
was not applicable at the time the facts occurred.
71. The Respondent State contests the above allegations,
submitting that it lies with the Applicant to prove it. According to the
Respondent State, the punishment applicable to the offence of armed
77. The Court has already found that the Respondent State has
violated Article 7(1) (c) of the Charter for having failed to provide the
Applicant with legal assistance. Consequently, the Court reiterates its
finding in Alex Thomas v United Republic of Tanzania, that: “… when
the Court finds that any of the rights, duties and freedoms set out in the
Charter are curtailed, violated or not being achieved, this necessarily
means that the obligation set out under Article 1 of the Charter has not
IX. Costs
X. Operative part
On jurisdiction:
i. Dismisses the objection to the jurisdiction of the Court;
ii. Declares that it has jurisdiction;
On admissibility:
iii. Dismisses the objections on admissibility of the Application;
iv. Declares the Application admissible;
On the merits:
v. Finds that the alleged violation of Article 7relating to irregularities
in the Charge Sheet has not been established;
vi. Finds that the Respondent State has not violated Article 7(1)(b)
of the Charter as regards the Applicant’s allegation on procedural error
in respect of the statement of PW 1;
vii. Finds that the Respondent State has not violated Article 7(2) of
the Charter as regards the applicability of the sentence at the time the
robbery was committed;
viii. Finds however, that the Respondent State has violated Article
7(1)(c) of the Charter as regards the failure to provide the Applicant
with free legal assistance during the judicial proceedings; and
consequently, finds that the Respondent State has also violated Article
1 of the Charter;
ix. Does not grant the Applicant’s prayer for the Court to quash his
conviction and sentence.
360 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
x. Does not grant the Applicant’s prayer for the Court to directly
order his release from prison, without prejudice to the Respondent
State applying such a measure proprio motu;
xi. Reserves its decision on the Applicant’s prayer on other forms
of reparation:
xii. Decides that each Party bear its own Costs;
xiii. Allows the Applicant, in accordance with Rule 63 of its Rules,
to file his written submissions on the other forms of reparation within
thirty (30) days from the date of notification of this Judgment; and the
Respondent State to file its Response within thirty (30) days from the
date of receipt of the Applicants’ written submissions.
Chrysanthe v Rwanda (jurisdiction and admissibility) (2018) 2 AfCLR 361 361
I. The Parties
1 See the Court’s Order on this matter dated, 3 June 2016 on the Respondent State’s
withdrawal of the declaration made by virtue of Article 34(6) of the Protocol.
362 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
B. Alleged violations
2 Supra para 2.
364 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
V. Jurisdiction
18. In terms of Rule 39(1) of the Rules of Court, “the Court shall
conduct preliminary examination of its jurisdiction…”.
19. The Court notes that its material, personal, temporal and
territorial jurisdiction has not been contested by the Respondent State
and nothing on the record indicates that the Court does not have
jurisdiction. The Court thus holds that:
“i. it has material jurisdiction because the Application alleges
violations of the rights guaranteed by international human
rights instruments ratified by the Respondent State3;
ii. it has personal jurisdiction given that the Respondent State
is a Party to the Protocol and deposited the Declaration
contemplated in Article 34(6) which enables individuals
and NGOs to directly access the Court under Article 5(3)
of the Protocol;4;
iii. it has temporal jurisdiction insofar as the alleged violations
are of a continuing nature;
iv. it has territorial jurisdiction given that the facts of the
Matter occurred in the territory of a State Party to the
Protocol, that is, the Respondent State.”
20. From the foregoing considerations, the Court finds that it has
jurisdiction to hear the instant case.
VI. Admissibility
33. In accordance with 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 of the Rules, the Court shall conduct
preliminary examination of its jurisdiction and the admissibility of the
Application in accordance with Articles 50 and 56 of the Charter, and
rule 40 of the Rules.
35. Rule 40 of the Rules, which substantially reproduces the content
of Rule 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:
VII. Costs
49. The Court notes that, in the instant case, the Respondent State
has prayed the Court to order the Applicant to pay costs, and the
Applicant did not submit on this issue.
50. According to Rule 30 of the Rules “unless otherwise decided by
the Court each Party shall bear its own costs”. The Court decides that
each Party shall bear its own costs.
I. The Parties
years of age, an offence punishable under Section 130(1) and (2)(e) and
Section 131(1) of the Tanzania Penal Code Cap. 16, as revised in 2002
(hereinafter referred to as the “Penal Code”).
4. The Applicant filed Criminal Appeal No. 85/2012 before the High
Court of Tanzania sitting at Mwanza (hereinafter referred to as the
“High Court”); and Criminal Appeal No. 327/2013 before the Court of
Appeal of Tanzania sitting at Mwanza (hereinafter referred to as the
“Court of Appeal”). The High Court upheld the Applicant’s sentence on
13 September 2013 and this was affirmed by the Court of Appeal on
30 October 2014.
B. Alleged violations
5. The Applicant alleges that the following rights have been violated:
“i. the right to equal protection of the law, provided under
Article 3(2) of the Charter;
ii. the right to enjoy the best attainable state of physical and
mental health, provided under Article 16 of the Charter.”
April 2017, the Applicant filed his Reply to the Response and this was
served on the Respondent State by a notice dated 11 April 2017.
12. The Court decided to close written pleadings with effect from 14
June 2017, pursuant to Rule 59(1) of the Rules.
13. By a letter dated 6 April 2018, the Parties were informed that
the Court will make a determination on the matter on the basis of the
written pleadings and materials on file without holding a public hearing.
V. Jurisdiction
16. In accordance with Rule 39(1) of its Rules “[t]he Court shall
conduct preliminary examination of its jurisdiction...”
examine the evidence, quash the sentence and acquit him. To this end,
the Applicant cites the Court’s Judgment in Application No. 005/2013
- Alex Thomas v United Republic of Tanzania.
19. This Court reiterates its position as affirmed in Ernest Mtingwi
v Republic of Malawi1 that it is not an appeal court with respect to
decisions rendered by national courts. However, as it underscored in
its Judgment of 20 November 2015 in Alex Thomas v United Republic
of Tanzania, this situation does not preclude it from examining
whether the procedures before national courts are in accordance with
international standards set out in the Charter or other applicable human
rights instruments to which the Respondent State is a Party.2
20. In the instant case, the Applicant alleges violations of his rights
protected by the Charter. This Court, accordingly, has jurisdiction to
determine whether the domestic courts’ proceedings that form the basis
of his Application before this Court had been conducted in accordance
with international standards set out in the Charter.
21. In view of the forgoing, the Court dismisses the Respondent
State’s objection that the Court is acting as an appellate court and finds
that it has material jurisdiction to hear the matter.
22. The Court notes that its personal, temporal and territorial
jurisdiction has not been contested by the Respondent State; and
nothing in the pleadings indicates that the Court 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
required declaration under Article 34(6) thereof, which
enables the Applicant to directly access the Court in terms
of Article 5(3) of the Protocol;
ii. it has temporal jurisdiction on the basis that the
alleged violations are continuous in nature since the
Applicant remains convicted on the basis of what he
considers an unfair process;
iii. it has territorial jurisdiction given that the facts of the
matter occurred in the territory of a State Party to the
24. In terms of Article 6(2) of the Protocol, “The Court shall rule on
the admissibility of cases taking into account the provisions of Article
56 of the Charter”.
25. Pursuant to 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.”
26. Rule 40 of the Rules, which in substance restates the provisions
of Article 56 of the Charter, provides as follows:
“Pursuant to the provisions of Article 56 of the Charter to which Article
6(2) of the Protocol refers, Applications to the Court shall comply with the
following conditions:
28. The Respondent State contends that the Applicant has not
374 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
exhausted local remedies with regard to the alleged violation of the right
to equal protection of the law and the right to legal assistance. According
to the Respondent State, these alleged violations are being raised before
this Court for the first time.
29. The Respondent further contends that the right to equal
protection of the law is provided under Article 13(1) of the Tanzanian
Constitution of 1977, and as such, the alleged violation could have
been challenged through a Constitutional Petition in accordance with
the Basic Rights and Duties Enforcement Act.
30. In support of its claim, the Respondent State relies on the
Commission’s jurisprudence in Communication Article 19 v Eritrea and
the Court’s own jurisprudence in Applications No. 003/2012 - Peter
Joseph Chacha v United Republic of Tanzania and No. 003/2011 –
Urban Mkandawire v Republic of Malawi.
31. In his Reply, the Applicant reiterates that he has exhausted
all local remedies. He claims that, with respect to the constitutional
petition, the Judge of the High Court could never make a ruling which
would be at variance with the judgment rendered by a bench of judges
of the Court of Appeal. With regard to the Respondent State’s allegation
on legal aid, the Applicant submits that the legal aid sought is that
provided for in Rule 31 of the Rules.
32. 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, with the prayer to adjudicate on the various allegations,
especially those regarding violations of the right to a fair trial.
33. Concerning the possibility of filing a constitutional petition, the
Court has previously stated that this remedy in the Tanzanian judicial
system is an extraordinary remedy that the Applicant is not required to
exhaust.3
34. Regarding the objection of the Respondent State that the issue
of legal aid was being raised in this Court for the first time, the Court
holds that the said objection is no longer an issue because, according
to the Applicant, the legal assistance he referred to in his Application
was not in relation to the domestic proceedings, but rather a request
to this Court to grant him legal aid in accordance with Rule 31 of the
Rules.
35. Accordingly, the Court finds that the Applicant exhausted local
remedies as envisaged under Rule 40(5) of the Rules. The Court,
therefore, dismisses this preliminary objection to the admissibility of
the Application.
39. The Applicant states that the judgment of the Court of Appeal
was obtained “by overlooking the court records and prejudiced [his]
defence.” The Applicant alleges further that two of his three grounds
of appeal were not considered by the Court of Appeal because that
court found that the Applicant did not raise them in his appeal before
the High Court.
40. The Applicant claims that by overlooking the grounds in question,
the Court of Appeal has confined itself only to procedural matters, rather
than considering the interests of justice. Accordingly, the Applicant alleges
that his right to equal protection of the law provided under Article 3(2) of
the Charter has been violated.
41. In his Reply, the Applicant refutes the contention of the Respondent
State that he confessed to having committed the crime, and insists that he
has always pleaded not guilty. He also claims that, before the domestic
courts, the issue should have been about the marriage between him and
the victim rather than the crime of rape since he was living with the victim
in a marital relationship.
42. In this regard, the Applicant states that there is a contradiction
376 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
regarding the age of the victim: on the one hand, the public prosecutor
claims that the victim was fifteen (15) years old, whereas the mother, on
the other hand, says she was sixteen (16) years old; on her part, before
living together with the Applicant, the victim had told the Applicant that
she was 18 years old.
43. The Applicant avers that in the community to which they belong,
it is common practice for a man and woman to live together under the
same roof before formalizing the traditional marriage. He claims that
he had offered the victim’s mother a dowry that was higher than the
one offered by another individual who wanted to marry the victim.
44. The Applicant also claims that even if the victim was under 18,
the mother had given her consent for them to live together; otherwise,
she would never have kept silent for two weeks without saying anything
to her neighbours, only to show up at the Applicant’s home after all that
time demanding to have her daughter and reporting the case to the
police.
45. The Respondent State refutes the Applicant’s arguments that
the Court of Appeal did not examine his contention regarding the
victim’s age and the mother’s consent. It submits that the Court of
Appeal did not take the contentions into consideration because it never
considered them relevant for the reason that the Applicant had himself
admitted having had sexual intercourse with a minor and that the said
arguments have not been raised before the High Court.
46. The Respondent State also submits that the issue requiring
determination is the age of the victim. Having been proven that the
victim was 16 years old, it remained to be ascertained whether during
the time she lived with the Applicant they had intercourse. According to
the Respondent State, however, the Applicant himself confessed and
confirmed the victim’s statement that they had sexual intercourse at
least once during the time they lived together in the Applicant’s home.
47. The Respondent State alleges that, not only did the Applicant
confess to sexual intercourse with the victim, but also that, during
cross-examination, the Applicant did not interrogate the victim on the
issue of her age and the alleged sexual intercourse. According to the
Respondent State, this silence amounts to tacit acceptance of the
veracity of the victim’s testimony.
48. The Applicant alleges violation of Article 3(2) of the Charter
which guarantees the right to equal protection of the law. However,
it appears from the record and the content of the allegations that the
relevant provision is rather Article 3(1) of the Charter, which states that
“Every individual shall be equal before the law.”
49. In a previous case, this Court has stated that the right to equality
before the law requires that “all persons shall be equal before the courts
Kemboge v Tanzania (merits) (2018) 2 AfCLR 369 377
and tribunals”.4 In the instant case, the Court notes that, in his appeal
before the Court of Appeal, the Applicant presented three arguments,
namely: (i) the absence of documentary proof that the victim is a minor
(birth certificate); (ii) the fact that the absence of parental consent has
not been established; and (iii) the fact that the court did not determine
the case on the merits after evaluation of all the evidence on record.
50. The Court notes that, according to the records, the Court of
Appeal declared itself as lacking the jurisdiction to hear allegations
which had not been raised before, nor settled by, the first appellate
court.5 It held, however, that the victim was sixteen (16) years old at the
time of the crime and upheld the Applicant’s conviction.
51. The Court notes that the Applicant has not demonstrated how
the Court of Appeal’s refusal to consider two of his three allegations
violated his right to equal protection before the law. This Court has, in
the past, held that “General statements to the effect that [a] right has
been violated are not enough. More substantiation is required.”6
52. Moreover, the documents in file demonstrate that the Court
of Appeal justified the dismissal of the Applicant’s two arguments on
the grounds that they relate to issues that were not previously raised
before the lower courts. 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 proceedings7.
53. In view of the forgoing, the Court dismisses the Applicant’s
allegation that his rights under Article 3(1) of the Charter have been
violated.
54. In his Reply, the Applicant alleges the violation of his right
to enjoy the best attainable state of physical and mental health
guaranteed under Article 16 of the Charter, on the grounds that he was
not recognized as married to the victim.
55. The respondent State has not made submissions on this
allegation.
56. Article 16 of the Charter provides that:
“1. Every individual shall have the right to enjoy the best attainable
state of physical and mental health.
2. States Parties to the present Charter shall take the necessary
measures to protect the health of their people and to ensure that
they receive medical attention when they are sick.”
57. The Court notes that the Applicant alleges the violation of his
right to enjoy the best attainable state of physical and mental health on
the grounds that he was not recognized as married to the victim.
58. The Court is of the view that the Applicant has not demonstrated
how the Respondent State’s refusal to recognize his alleged marriage
with the victim has violated his right to enjoy the best attainable state
of physical and mental health.
59. In view of the forgoing, the Applicant’s allegation lacks merit
and, therefore, the Court dismisses this allegation.
IX. Costs
65. The Respondent prays the Court to rule that the cost of the
proceedings be borne by the Applicant.
66. The Applicant has made no specific submission on this matter.
67. The Court notes that Rule 30 of its Rules provides that: “Unless
Kemboge v Tanzania (merits) (2018) 2 AfCLR 369 379
otherwise decided by the Court, each party shall bear its own costs.”
68. The Court holds that in the circumstances of this case, there is
no reason for it to decide otherwise and, consequently, rules that each
Party shall bear its own costs.
X. Operative part
On jurisdiction
i. Dismisses the objection to its material jurisdiction;
ii. Declares that it has jurisdiction.
On admissibility
iii. Dismisses the objection on the admissibility of the Application;
iv. Declares the Application admissible.
On the merits
v. Declares that the Respondent State has not violated the Applicant’s right
to equality before the law, provided for under Article 3(1) of the Charter;
vi. Declares that the Respondent State has not violated the Applicant’s right
to enjoy the best attainable state of physical and mental health, provided for
under Article 16 of the Charter;
vii. Holds that the issue of reparations does not arise and dismisses
the claim for remedies;
viii. Rules that each Party shall bear its own costs.
380 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
I. The Parties
B. Alleged violations
16. The Applicants pray the Court to order the Respondent State to:
“i. Amend its Persons and Family Code by bringing back the
minimum age of marriage for girls to 18;
ii. Eliminate the provisions of the Family Code which allow
for age exemptions;
iii. Introduce a sensitisation programme for the population on
APDF and IHRDA v Mali (merits) (2018) 2 AfCLR 380 383
V. Jurisdiction
19. In terms of Rule 39(1) of its Rules, “the Court shall conduct
preliminary examination of its jurisdiction….”
20. The Respondent State contends that the subject of the Application
does not relate to any of the five areas of the Court’s jurisdiction set out
in Rule 26(1) of the Rules.
21. The Respondent State maintains that it is evident that the areas
in question enumerated in Rule 26(1)(a)1 do not correspond to the
subject of the Application which invokes cases of violations of human
rights conventions. For the Respondent State, the Application does not
pose a problem of interpretation of the Charter or other international
human rights instruments.
22. The Respondent State further contends that the said instruments
have no application difficulties in the legal and judiciary system of Mali,
proof thereof being the fact that Article 116 of the Malian Constitution
provides that treaties duly ratified or approved by the State have, upon
publication, superior authority over that of laws; that the Family Code
cannot therefore pose an obstacle to the interpretation and application
of the provisions of duly ratified international conventions.
23. The Respondent State also argues that, in the instant case, only
simple technical issues of harmonisation of the Family Code with the
said international instruments may be taken into account to make the
application of national laws more consistent.
24. The Respondent State maintains, lastly, that the Application is
more concerned with issues of sensitisation and popularisation rather
than those of interpretation and application of the Charter and other
international instruments ratified by Mali, and consequently prays the
Court to declare that it does not have jurisdiction.
1 “The Court shall have jurisdiction to deal with all cases and all disputes submitted
to it concerning interpretation and application of the Charter, the Protocol and
any other relevant human rights instrument ratified by the States concerned.”
APDF and IHRDA v Mali (merits) (2018) 2 AfCLR 380 385
29. The Court notes that its personal, temporal and territorial
jurisdiction is not contested by the Respondent State, and that nothing
on file indicates that it does not have jurisdiction. Consequently, it holds
that:
“i. it has personal jurisdiction given that the Respondent State
is a Party to the Protocol and has filed the Declaration
prescribed under Article 34(6) of the Protocol; and that the
Applicants have Observer Status before the Commission;
ii. It has temporal jurisdiction given the fact that the alleged
facts occurred subsequent to the entry into force, for the
Respondent State, of the aforementioned international
instruments;
iii. It has territorial jurisdiction given the fact that the alleged
violations occurred in the territory of the Respondent
State.”
30. In view of the foregoing considerations, the Court holds in
conclusion that it has jurisdiction to hear this case.
386 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
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. Pursuant to Rule 39 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. Rule 40 of the Rules, which substantially reproduces the content
of Rule 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:
35. The Respondent State maintains that the Applicants did not
exhaust local remedies before seizing the Court with the matter. It
APDF and IHRDA v Mali (merits) (2018) 2 AfCLR 380 387
argues that the Applicants had all the opportunities to bring the matter
before the national judicial authorities; that the Malian Judiciary is
totally independent because it is separate from the Executive and the
Legislative arms; that the Applicants however, did not make any effort
to submit their alleged violations to the national courts.
36. At the public hearing of 16 May 2017, the Respondent State
responding to questions put by the Court, contended, inter alia, that the
Applicants acted too hastily given that they did not adduce any specific
evidence to justify the alleged violations; and that they should have
gone to court on the basis of Articles 115 and 116 of the Respondent
State’s Constitution prior to bringing the case before this Court.
37. The Respondent State in conclusion prays the Court to rule that
the Applicants have not exhausted local remedies and consequently,
dismiss the Application outright.
38. In their Reply, the Applicants submit that no remedy exists at
the national level; that the Respondent State only argues that the
Applicants have the opportunity to seize the Malian justice system with
the matter without specifying the jurisdiction competent to determine
such an action.
39. The Court notes that the only remedy which the Applicants
could have utilised is that of filing a Constitutional Petition against the
impugned law.
40. In that regard, Article 85 of the Constitution of Mali provides
that “The Constitutional Court is the judge of the constitutionality of the
laws and it shall guarantee the fundamental rights of the individual and
public liberties…”
41. Article 88 of the same Constitution provides that “Organizational
laws shall be submitted by the Prime Minister to the Constitutional
Court before their promulgation. Other categories of laws, before their
promulgation, may be referred to the Constitutional Court either by
the President of the Republic, the Prime Minister, the President of the
National Assembly, one tenth of the deputies of the National Assembly,
the President of the High Council of Collectives or one tenth of the
National Counsellors, or by the President of the Supreme Court”.
42. The above provision is reproduced in extenso by Article 45 of
Law No. 97-010 of 11 February 1997 establishing an organic law that
defines the organisational and operational rules of the Constitutional
Court of Mali as well as the procedure to be followed before it.
43. The above provisions show that human rights NGOs are not
entitled to seize the Constitutional Court with applications concerning
the unconstitutionality of laws.
44. In view of the aforesaid, the Court finds that no remedy was
available to the Applicants.
45. Consequently, the Court dismisses the objection to the
388 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
2 The European Court of Human Rights in the matter of Dennis and Others v United
Kingdom (No. 76573/01) Judgment of 2 /7/2002, page 6.
APDF and IHRDA v Mali (merits) (2018) 2 AfCLR 380 389
Charter.
53. The Court in its previous judgments established that the
reasonableness of the time within which the Application was filed at
this Court depends on the particular circumstances of each matter and
must be examined on a case-by-case basis.3
54. In the instant case, in order for this Court to determine the
reasonableness of the period of seizure, it is necessary to take into
account two important elements: first, that the Applicants needed time
to properly study the compatibility of the law with the many relevant
international human rights instruments to which the Respondent State
is a Party; and secondly, given the climate of fear, intimidation and
threats that characterised the period following the adoption of the law
on 3 August 2009, it is reasonable to expect the Applicants to have
been affected by that situation as well. The country found itself in a
situation of exceptional crisis with a vast protest movement of the
religious forces which, according to the Respondent State, could even
be “fatal for peace, harmonious living and social cohesion.”
55. The Court accordingly dismisses the objection to the admissibility
of the Application for failure to abide by a reasonable time limit in
submitting the Application to the Court.
VII. Merits
59. The Applicants aver that Article 281 of the impugned law
establishing the Family Code sets the minimum age for contracting
marriage at eighteen (18) for boys and sixteen (16) for girls, whereas
Article 6(b) of the Maputo Protocol sets that age at 18 for girls.
60. The Applicants further indicate that the impugned law allows
for special exemption for marriage as from fifteen (15) years, with the
father’s or mother’s consent for the boy, and only the father’s consent,
for the girl.
61. The Applicants also aver that according to the World Bank
survey conducted in Mali between 2012 and 2013, 59.9% of women
aged 18 and 22 were married before the age of 18, 13.6% at 15 years
and 3.4% before the age of 12; that despite these alarming statistics on
child marriage, Mali has not taken appropriate measures to eradicate
this phenomenon.
62. The Applicants recall the relevant provisions of the Children’s
Charter, namely, Article 1(3) thereof, which provides that “Any custom,
tradition, cultural or religious practice that is inconsistent with the
rights, duties and obligations contained in the present Charter shall
to the extent of such inconsistency, be discouraged”; Article 2 thereof,
defines a child as “every human being below the age of 18 years” and
Article 21, which provides that “State Parties to the present Charter
shall take all appropriate measures to eliminate harmful social and
cultural practices affecting the welfare, dignity, normal growth and
development of the child and in particular those customs and practices
prejudicial to the health or life of the child; and those customs and
practices discriminatory to the child on the grounds of sex or other
status”.
63. The Respondent State, in its Response, submits that the National
Assembly of Mali, on 3 August 2009, enacted the Family Code which
contains provisions compliant with the international commitments of
Mali, but that this Code could not be promulgated following a “force
majeure” which affected the process.
64. The Respondent State argues that, prior to the promulgation of
the text by the President of the Republic, a mass protest movement
against the Family Code halted the process; that the State was faced
with a huge threat of social disruption, disintegration of the nation
and upsurge of violence, the consequence of which could have been
detrimental to peace, harmonious living and social cohesion; that the
mobilisation of religious forces attained such a level that no amount of
resistance action could contain it.
65. The Respondent State further argues that, in the circumstances,
APDF and IHRDA v Mali (merits) (2018) 2 AfCLR 380 391
the Government was obliged to submit the text for a second reading,
always involving Islamic organisations, which culminated in the Family
Code of 2011, enacted by the National Assembly on 2 December 2011
and promulgated by the President of the Republic on 30 December
2011; that it was therefore unjustified to accuse the State of violating
rights whereas the State was only revising the initial text in order to
garner consensus and avoid unnecessary disruptions; and that the said
revision comprises flexibilities which do not in any way detract from the
rights protected by the Charter and other human rights instruments to
which the State is a Party.
66. With regard to the allegation of violation of the minimum age
of marriage, the Respondent State maintains that the established
rules must not eclipse social, cultural and religious realities; that the
distinction contained in Article 281 of the Family Code should not be
seen as a lowering of the marriage age or a discrimination against girls,
but should rather be regarded as a provision that is more in line with
the realities in Mali; that it would serve no purpose to enact a legislation
which would never be implemented or would be difficult to implement
to say the least; that the law should be in harmony with socio-cultural
realities; that it would serve no useful purpose creating a gap between
the two realities, especially as, according to the Respondent State, at
the age of fifteen (15), the biological and psychological conditions of
marriage are in place, and this, in all objectivity, without taking sides in
terms of the stance adopted by certain Islamist circles.
67. The Respondent State in conclusion asserts that the question
is not that of violation of international obligations or maintenance of
practices that should be discouraged but rather that of adapting the
said obligations to social realities and that for these reasons, the
Applicants’ argument should be dismissed as unfounded.
68. In their Reply, the Applicants argued that by ratifying the Charter,
the Maputo Protocol and the Children’s Charter, the Respondent
State committed itself fully to the relevant instruments; that the
threats generated by the protests cannot justify derogation from the
commitments imposed on it as a State Party to the said instruments.
69. Concerning the minimum age for marriage, the Applicants
submit that the limitations on which the Respondent State relies to
exempt itself from its international obligations are not permitted under
Article 6(b) of the Maputo Protocol which, without exemption, sets the
minimum age of marriage for girls at eighteen (18) years.
70. With regard to the Respondent State’s allegation that the
biological and psychological conditions of marriage are in place at
age 15 for the girl, the Applicants submit that these assertions are
contrary to the jurisprudence of the African Committee of Experts on
392 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
the Rights and Welfare of the Child4, the Committee on the Elimination
of Discrimination against Women5 and the research conducted into the
disadvantages of early marriage.
71. Article 2 of the Children’s Charter defines a child as “every
human being below the age of 18 years”.
72. Article 4(1) stipulates that “In all actions concerning the child
undertaken by any person or authority the best interests of the child
shall be the primary consideration”.
73. Article 21 of the same Charter stipulates that: “State Parties …
shall take all appropriate measures to eliminate harmful social and
cultural practices … and those customs and practices discriminatory to
the child on the grounds of sex or other status”.
74. Article 6(b) of the Maputo Protocol provides that: “States Parties
shall ensure that women and men enjoy equal rights and are regarded
as equal partners in marriage. They shall enact appropriate national
legislative measures to guarantee that: b) the minimum age of marriage
for women shall be 18 years…”
75. The Court notes that the afore-mentioned provisions focus on
the obligation for States to take all appropriate measures to abolish
negative practices and customs as well as practices discriminatory to
children born out of wedlock for reasons of their gender, especially
measures to guarantee the minimum age for marriage at 18 years.
76. The Court further notes that, as indicated in paragraphs 67, 68
and 69 above, the Respondent State implicitly admits that the present
Family Code, adopted in a situation of “force majeure” is not consistent
with the requirements of international law.
77. The Court also notes that Article 281 of the impugned Family
Code effectively sets the marriage age at 18 for men and 16 for
women. Furthermore, the Article also includes the possibility for the
administrative authorities to grant special exemption for girls to be
married at 15 years for “compelling reasons”.
78. The Court holds in conclusion that it lies with the Respondent
State to guarantee compliance with the minimum age of marriage,
which is 18 years, and the right to non-discrimination; that having failed
to do so, the Respondent State has violated Article 6(b) of the Maputo
Protocol and Articles 2, 4 (1) and 21 of the Children’s Charter.
4 Centre for Human Rights and Rencontre Africain pour la Défense des Droits de
l’Homme v Senegal (2014), ACRWC 003/12, para 71.
5 General Recommendations No. 21,1994 (Committee 21), para 36.
APDF and IHRDA v Mali (merits) (2018) 2 AfCLR 380 393
79. The Applicants allege that the impugned law, in its Article 300,
entitles religious ministers, alongside civil registry officials to perform
marriages but that no provision of this law provides for verification of
the Parties’ consent by the religious ministers.
80. The Applicants further aver that Article 287 of the impugned law
prescribes sanctions against any civil registry official who performs
marriage without verifying the consent of the Parties, but no sanctions
are prescribed against defaulting religious ministers who fail to perform
the verification.
81. The Applicants also submit that Article 283 of the same law
specifies that consent must be given orally and in person before the civil
registry official by each party but that, that provision was not prescribed
for religious ministers; the conditions that must be fulfilled by the civil
registry official to be able to celebrate a marriage without the presence
of the Parties are similarly not required of religious ministers.
82. The Applicants contend that the way religious marriages are
performed in Mali poses considerable risk, given that the marriages
are forced, in as much as they are generally celebrated without the
presence of the Parties; that the marriages consist in the two families
exchanging kola nuts in the presence of a specialist of the Muslim
religion; that even if these marriages are performed in the mosque, the
presence of women is not required; that this practice, combined with
traditional attitudes which encourage the marriage of the girl at puberty,
is fraught with considerable risk as the marriages are performed without
the consent of the girl.
83. The Applicants conclude from the foregoing that by enacting a
law that permits the maintenance of the marriage customs and traditions
that do not allow for the consent of the Parties, the Respondent State
has violated its commitment under Article 6(a) of the Maputo Protocol
and Article 16(a) and (b) of CEDAW.
84. In its Response, the Respondent State refutes this allegation. It
argues that paragraph 1 of section 283 of the Family Code makes it clear
that there is no marriage when there is no consent; that furthermore,
section 300 of the same Family Code makes it clear that marriage is
publicly celebrated by the religious minister subject to compliance with
the substantive conditions of marriage and the prohibitions enshrined
by the Family Code; that these constitute guarantees of compliance
with the obligation to ensure the consent of prospective spouses before
any marriage celebration.
85. With regard to the practical organisation of marriage celebration,
the Respondent State indicates that, at any place and at any time, it is
left to the discretion of the prospective Parties who may celebrate their
394 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
new Family Code, children born out of wedlock do not have the right
to inheritance and that they may be accorded inheritance only if their
parents so wish and the conditions set out in Article 751 of the Family
Code have been met (see supra paragraph 97).
101. The Applicants further submit that the Respondent State also
violated Article 4(1) of the Children’s Charter, and Article 3 thereof
which prohibits all forms of discrimination.
102. The Applicants contend that although the new Code provides for
equal share of inheritance between the legitimate child and the child
born out of wedlock where inheritance is governed by the provisions of
the Family Code, this right is rendered illusory by the application of the
customary or religious regime as the law applicable in the absence of
a will to the contrary; that the regime applicable to most children born
out of wedlock in Mali remains the customary or religious law, and that
in the circumstances, the right to inheritance is no longer a right but a
favour for children born out of wedlock in Muslim families.
103. In its Response, the Respondent State indicates that, until
recently, Mali did not have an inheritance legislation that was entirely
customary; that by a commitment entered into, the State of Mali
regulated inheritance in the Family Code of 2009 by enshrining equal
share for men and women with the participation of the children born
out of wedlock in the devolution of estate on the same footing as the
legitimate child; but that, under the pressure and for fear of social
unrest, the State had to consent to a re-drafting of this text.
104. The Respondent State further submits that the Family Code
promulgated in 2011 has the advantage of being flexible in the sense
that it allows for reconciliation of entrenched positions, offering each
citizen the possibility of determining his mode of inheritance; that
anyone who does not wish his succession to be arranged according
to customary or religious rules simply expresses his will to have his
inheritance devolved according to Family Code rules or his will; that
the legislator has simplified the mode of expression of this choice
which can be made even by testimony.
105. Based on the above considerations, the Respondent State
concludes that it must be recognised that Mali’s Family Code offers
immense possibilities to every citizen and, therefore, does not violate
the right to inheritance.
106. In their Reply, the Applicants maintain the arguments developed
in their Application that under Islamic law, granting equal inheritance
shares to men and women is a favour and not a right; and also, that
equal share between children born in wedlock and children born out of
wedlock is similarly a favour.
107. The Applicants therefore pray the Court to rule that, by legalising
discrimination against women and children born out of wedlock, the
APDF and IHRDA v Mali (merits) (2018) 2 AfCLR 380 397
116. The Applicants submit that by adopting the impugned law, the
Respondent State has demonstrated a lack of willingness to eliminate
the traditional practices that undermine the rights of women and girls,
and children born out of wedlock, especially early marriage, the lack of
consent to marriage, the unequal inheritance - all in contravention of
Article 1(3) of the Children’s Charter.
117. The Applicants assert that the impugned law makes early
marriage of girls easier compared to the 1962 Family Code which
permits the marriage of girls aged between 15 and 17 only with the
consent of their parents, whereas the 2011 law permits the marriage of
girls aged between 16 and 17 without parental consent. They further
submit that the 1962 Code sets the special exemption for marriage at
15 years for girls with the consent of their father and mother, whereas
the impugned law allows for the marriage of 15-year-old girls even
where the mother is opposed to it since only the father’s consent
suffices.
118. In conclusion, the Applicants maintain their arguments and
reiterate their prayers in this regard (see supra paragraph 16).
119. In the Response, the Respondent State contends that it is
excessive to assert that Mali does not deploy efforts to eliminate the
said practices; and that the Family Code of 2009 provides an adequate
illustration of this contention. The Respondent State recalls the efforts
deployed on this issue, particularly the launch of programmes for
sensitisation and promotion of the rights of women and children, and
the various laws enacted to guarantee the protection of these rights.
120. Article 2(2) of the Maputo Protocol provides that: “States Parties
shall commit themselves to modify the social and cultural patterns of
conduct of women and men through public education, information,
education and communication strategies, with a view to achieving the
elimination of harmful cultural and traditional practices and all other
practices which are based on the idea of the inferiority or the superiority
of either of the sexes, or on stereotyped roles for women and men.”
121. Article 5(a) of CEDAW stipulates that:
“States Parties shall take all appropriate measures:
against women in all matters relating to marriage and family relations and
in particular shall ensure, on a basis of equality of men and women:
VIII. Reparations
126. In the Application, the Applicant prays the Court to order the
measures listed in paragraph 16, aimed at amending the law, on the
one hand, and the adoption of measures to enlighten, sensitise and
educate the population, on the other.
127. In its Response, the Respondent State sought the outright
dismissal of the Application as being unfounded.
128. Article 27(1) of the Protocol provides that
“If the Court finds that there has been a violation of a human or peoples’
rights, it shall make appropriate orders to remedy the violation, including
the payment of fair compensation or reparation.”
of the national law, the Court holds that the Respondent State has to
amend its legislation to bring it in line with the relevant provisions of the
applicable international instruments.
131. As regards the measures requested in paragraph 16 (iii), (viii),
(ix), (x), (xii) and (xiii), the Court notes that Article 25 of the Charter
stipulates that State Parties have the duty “to promote and ensure
through teaching, education and publication, the respect of the rights
and freedoms contained in the present Charter and to see to it that
these freedoms and rights as well as the corresponding obligations
and duties are understood”. The Respondent State has the obligation
to comply with the commitments under Article 25 of the Charter.
132. In the instant case, neither the Applicants nor the Respondent
State has raised the issue of costs.
133. The Court notes, in this respect, that Rule 30 of the Rules
stipulates that: “Unless otherwise decided by the Court, each Party
shall bear its own costs.”
134. Considering the circumstances of this case, the Court decides
that each Party shall bear its own costs.
X. Operative part
I. The Parties
B. Alleged violations
V. Jurisdiction
17. In accordance with Rule 39(1) of its Rules, “The Court shall
conduct preliminary examination of its jurisdiction...”.
a Party.2 Indeed, this falls within the very scope of the powers of the
Court as provided for under Article 3(1) of the Protocol.
21. Accordingly, the Court dismisses this objection and holds that it
has material jurisdiction.
22. The Court notes that its personal, temporal and territorial
jurisdiction has not been contested by the Respondent State, and
nothing in the pleadings indicates that the Court lacks jurisdiction. The
Court thus holds that:
“i. it has personal jurisdiction given that the Respondent
State is a Party to the Protocol and has deposited the
Declaration required under Article 34(6) thereof, which
enabled the Applicants to access the Court in terms of
Article 5(3) of the Protocol;
ii. it has temporal jurisdiction on the basis that the alleged
violations are continuous in nature since the Applicant
remains convicted on the basis of what he considers an
unfair process;
iii. it has territorial jurisdiction given that the facts of the
matter occurred in the territory of a State Party to the
Protocol, that is, the Respondent State.”
23. From the foregoing, the Court concludes that it has jurisdiction
to hear the instant case.
24. In terms of Article 6(2) of the Protocol “The Court shall rule on
the admissibility of cases taking into account the provisions of Article
56 of the Charter”.
25. Pursuant to Article 39(1) of the Rules, “the Court shall conduct
preliminary examination of (…) the admissibility of the application in
accordance with Articles 50 and 56 of the Charter and Rule 40 of these
Rules.”
26. Rule 40 of the Rules, which in substance restates the provisions
of Article 56 of the Charter, provides as follows:
“Pursuant to the provisions of Article 56 of the Charter to which Article
6(2) of the Protocol refers, Applications to the Court shall comply with the
following conditions:
3 Petition to the High Court against violations of the fundamental rights and duties
provided for in Articles 12 to 29 of the Constitution.
4 Alex Thomas v Tanzania Judgment, op cit, paras 60 – 62; Mohamed Abubakari v
Tanzania Judgment, op cit, paras 66 – 70; Application No.011/2015. Judgment of
28/9/20l7, Christopher Jonas v United Republic of Tanzania (hereinafter referred
to as “Christopher Jonas v Tanzania Judgment”, para 44.
5 Alex Thomas v Tanzania Judgment, op cit, paras. 60 – 65.
Evarist v Tanzania (merits) (2018) 2 AfCLR 402 409
Rule 40(5) of the Rules. The Court therefore overrules this preliminary
objection to the admissibility of the Application relating to the exhaustion
of local remedies.
37. The Respondent State argues that, should the Court find that
the Applicant has exhausted domestic remedies, it should still dismiss
the Application because it was not filed within a reasonable time after
local remedies were exhausted.
38. It further contends that, even though Article 40(6) of the Rules
of Court is not specific on the issue of reasonable time, international
human rights case law has established that six months would be a
reasonable time limit within which the Applicant should have filed the
Application, maintaining that such was the position of the Commission
in Communication No. 308/05, Michael Majuru v Zimbabwe.
39. The Respondent State also maintains that three (3) years and
six (6) months had elapsed between the decision of the Court of Appeal
of Tanzania (16 February 2012) and the date this Court was seized (10
October 2015), and that this timeframe is not reasonable given that the
Applicant had no difficulty in filing the Application earlier.
40. The Applicant refutes the Respondent State’s allegations
regarding the reasonableness of the timeframe for seizing the Court,
arguing that there is no provision in the Rules for assessment of the
reasonable time for filing applications before the Court. To this end, he
cites the Court’s decision in Application No. 013/2011: Beneficiaries
of Late Norbert Zongo and Others v Burkina Faso, that the Court had
established that the “reasonableness of a timeframe of seizure will
depend on the particular circumstances of each case and should be
determined on a case-by-case basis.”
41. The Applicant then states that he was awaiting the decision of
the Court of Appeal of Tanzania on his application for review of the
decision of 16 February 2012, which took a long time.
42. The Court observes that the question at issue is whether the
time that elapsed between the exhaustion of local remedies and filing
of the case before it, is reasonable within the meaning of Rule 40(6)
of the Rules.
43. The Court notes that the ordinary judicial remedies available
in the Respondent State were exhausted on 16 February 2012, the
date of the Court of Appeal decision and that the Application was filed
before the Court on 10 October 2015. Between the Court of Appeal’s
decision and the filing of the Application at this Court, three (3) years,
seven (7) months and twenty-four (24) days had elapsed.
410 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
same admissible.
VII. Merits
50. The Applicant alleges two violations, which fall within the ambit
of the right to a fair trial, namely: the violation of the Applicant’s right
to have his cause heard by a court of law and the violation of the right
to legal aid.
51. The Applicant alleges that the Court of Appeal failed to examine
all of his arguments, since it grouped them into three clusters, although
each of his grounds of appeal were invoked for different purposes.
According to the Applicant, this affected the merits of each of his pleas
and consequently violated “... his fundamental right to have his cause
heard by a court of law, as provided for in Article 3(2) of the Charter”.
The Applicant also contends that there should have been a voir dire
examination of the witnesses before they were allowed to testify.
52. The Respondent State rebuts the Applicant’s allegation, and
submits that all his arguments were duly examined by the Court of
Appeal, which held that of the three arguments submitted only the third
was relevant, which states that “... the prosecution has not been able
to gather evidence beyond reasonable doubt ...”
53. The Court notes that the Applicant’s allegation does not relate
to Article 3(2) of the Charter, as he asserts, which provides that “Every
individual shall be entitled to equal protection of the law”, but rather to
Article 7(1), which stipulates that: “Every individual shall have the right
to have his cause heard...”
54. The Court observes that the question that arises here is
whether the pleas raised in the appeal were duly examined by the
Court of Appeal in conformity with the abovementioned Article 7(1) of
the Charter. On this point, the Court has consistently ruled that the
examination of particulars of evidence is a matter that should be left for
the domestic courts, considering the fact that it is not an appellate court.
The Court may, however, evaluate the relevant procedures before the
national courts to determine whether they conform to the standards
prescribed by the Charter or all other human rights instruments ratified
412 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
59. The Applicant submits that “... he was not afforded legal
representation, he was deprived of his right to have his cause heard”,
which had a prejudicial effect on him and that … “such a position
constitutes a violation of his fundamental rights as set forth in Article
7(1)(c) and (d) of the Charter, and also in Articles 1 and 107A(2)(b) of
the Tanzanian Constitution.”
60. He challenges the Respondent State’s arguments, admits that
he “… never asked for legal aid”, and that domestic law provisions on
legal aid “… does not provide for a procedure or directives on how to
seek legal aid.”
61. The Respondent State refutes the Applicant’s allegations that
its domestic law does not provide for a procedure as to how to seek
legal aid, and requests proof in that regard. It contends that legal aid
is provided in Section 310 of the Tanzanian Criminal Procedure Act,
9 Ernest Francis Mtingwi v Tanzania Decision, op cit para 14; Alex Thomas v
Tanzania Judgment, op cit para 130; Mohamed Abubakari v Tanzania Judgment,
op cit, paras 25 and 26, Application No. 032/2015. Kijiji Isiaga v United Republic of
Tanzania, Application No. 032/2015. Judgment, 21/3/2018 (hereinafter referred to
as “Kijiji Isiaga v Tanzania Judgment”) para 63.
10 Alex Thomas v Tanzania Judgment, op cit, para 140.
Evarist v Tanzania (merits) (2018) 2 AfCLR 402 413
Section 3 of the Legal Aid Act and Rule 31(1) of the Court of Appeal
Rules, 2009.
62. It further contends that, at any rate, the competent judicial
authority applies for legal aid on behalf of the defendant, where required,
provided the following conditions have been met: the defendant must
be indigent and unable to pay lawyer’s fees; and whether the interests
of justice so demand.
63. The Respondent State further prays the Court to take into
account the fact that legal aid is progressively being made available
and that it is mandatory in cases of murder and homicide. It submits
that while legal aid is granted by all its courts, there are however
constraints that may impede the mandatory nature of the automatic
provision of legal aid in all cases, especially the inadequate number of
lawyers to meet this need across the country, as well as the constraint
of shortage of financial and other resources.
64. The Respondent State further submits that the right to be
represented by a Counsel of one’s choice is guaranteed to all those
who can afford it. As regards legal aid, however, the Respondent avers
that it is neither easy nor practical to provide the defendant with a pro
bono lawyer of his own choice. It, therefore, prays the Court to take
into account the fact that legal aid is not an absolute right and that
States exercise their discretionary powers in providing the said aid,
depending on their capacity to do so; and this is how the extant legal
aid system in the country operates.
65. In conclusion, the Respondent State indicates that the process
of review of its legal aid system is ongoing, and that the outcome will
be communicated to the Court in due course.
66. The Court notes that Article 7(1)(c) of the Charter provides
“Every individual shall have the right to have his cause heard. This
comprises:
67. The Court notes that even though this Article guarantees the
right to defence, including the right to be assisted by counsel of one’s
choice, the Charter does not expressly provide for the right to free legal
assistance.
68. However, in its judgment in the Alex Thomas v United Republic of
Tanzania, this Court held that free legal aid is a right intrinsic to the right
to a fair trial, particularly, the right to defence guaranteed in Article 7(1)
(c) of the Charter. In its previous jurisprudence, the Court also held that
an individual charged with a criminal offence is automatically entitled
to the right of free legal aid, even if the individual has not requested for
it, whenever the interests of justice so require, in particular, if he/she
414 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
72. The Applicant submits that, although he filed his application for
review before the Court of Appeal and provided all the materials and
evidence to corroborate the same, the application was not scheduled
for hearing, whereas other applications filed subsequently were
registered, set down for hearing and determined.
73. The Respondent State merely refutes this claim and calls on the
Applicant to provide proof thereof.
74. The Court notes that the situation described by the Applicant as
a violation of his right to equal protection of the law relates to Article
3(2) of the Charter, which stipulates that: “Every individual shall be
entitled to equal protection of the law.”
75. However, the Court notes that the Applicant has made general
allegations without sufficient evidence to substantiate them. Relying
11 Ibid para. 123, see also Mohamed Abubakari v Tanzania Judgment, op cit, paras
138 and 139.
Evarist v Tanzania (merits) (2018) 2 AfCLR 402 415
IX. Costs
86. In its Response, the Respondent prays the Court to rule that the
costs of the proceedings be borne by the Applicant.
87. The Applicant has made no specific requests on this issue.
88. The Court notes in this regard that Rule 30 of its Rules provides
that “Unless otherwise decided by the Court, each party shall bear its
own costs.”
89. In the instant case, the Court decides that the Respondent State
shall bear the costs.
X. Operative part
On jurisdiction:
i. Dismisses the objection to the jurisdiction of the Court;
ii. Declares that it has jurisdiction.
On admissibility:
iii. Dismisses the objection to the admissibility of the Application;
iv. Declares the Application admissible.
On the merits:
v. Finds that the alleged violation of the Applicant’s right to be
Evarist v Tanzania (merits) (2018) 2 AfCLR 402 417
On reparations
ix. Awards the Applicant an amount of Three Hundred Thousand
Tanzania Shillings (TZS 300,000) as fair compensation;
x. Orders the Respondent State to pay the Applicant the said sum
and report to the Court thereon within six (6) months from the date of
notification of this Judgment; and
By a majority of Six (6) for, and Four (4) against, Justices Ben KIOKO,
Ângelo V MATUSSE, Tujilane R. CHIZUMILA and Stella I ANUKAM
dissenting:
On costs
xi. Orders the Respondent State to pay the costs.
_____________________________
1 Article 3 of the Protocol to the African Charter on Human and Peoples’ Rights on
the Establishment of an African Court on Human and Peoples’ Rights.
2 Article 3 of the Protocol to the Afric of the individual that are protected within the
rule of law and democracies. Fundamental rights are also called fundamental
freedoms, and are inherent in the very notion of individual” https://droit-finances.
commentcamarche.com/faq/23746-droits-fondamentaux-definition. In the context
of the European Union, the notion of fundamental right has been enshrined in
The Charter of Fundamental Rights of the European Union which was signed
and proclaimed by the Presidents of the European Parliament, the Council and
the Commission at the Nice European Council on 7 December 2000. See L.
Burgorgue-Larsen, et al (eds.), ‘Treaty Establishing a Constitution for Europe.
Part II. The Charter of Fundamental Rights of the European Union’– (2005) Article
Commentary p 837.
Evarist v Tanzania (merits) (2018) 2 AfCLR 402 419
3 In international human rights law, intangible rights are those excluded by Article
4 of the International Covenant on Civil and Political Rights (ICCPR) from any
derogation, namely:
• Right not to be discriminated against based solely on race, color, sex, language,
religion or social origin (Article 4 (1) ICCPR)
• Right to life (Art 6. ICCPR)
• Right not to be subjected to torture or to cruel, inhuman or degrading treatment
(Article 7 ICCPR)
• Right not to be held in slavery or servitude (Articles 8 (1) and 2 ICCPR)
• Right not to be imprisoned merely on the ground of inability to fulfil a contractual
obligation (Article 11 ICCPR)
• Right not to apply criminal law retroactively (Article 15 ICCPR)
• Right to be recognized as a person everywhere before the law (Article 16
ICCPR)
• Freedom of thought, conscience and religion (Article 18 ICCPR).
4 Basic Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law; 60/147 Resolution adopted by the
General Assembly on 16 December 2005.
5 Principle 19.
6 CPJI, 13 September 1928, Matter of the Factory at Charzòw (Claim for Indemnity),
Série A – No. 77.
420 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
violation”.7 Further, the august Court adds that: “The essential principle,
which stems from the very notion of an unlawful act and which seems to
emerge from international practice, in particular from the jurisprudence
of arbitral tribunals, is that reparation must as far as possible erase all
the consequences of the unlawful act and restore the state that would
presumably have existed if the act had not been committed. Restitution
in kind, or, if it is not possible, payment of an amount corresponding to
the value of restitution in kind; allowance, if any, for damages for losses
suffered which are not covered by the refund in kind or the payment
which takes the place of it”.8
8. For its part, the African Commission recognized the importance
of restitution, and has held that a State in violation of the rights set forth
in the African Charter must “take measures to ensure that victims of
human rights abuses are given effective remedies, including restitution
and compensation.”9 A restitution order should specify precisely which
rights of the victim should be restored so as to indicate to the State the
best way to correct the violation and put the victim in the situation prior
to the commission of the violation, as far as possible
9. In its basic principles and guidelines, the United Nations refers to
a variety of violations that require specific forms of restitution, including
restoration of the right to a fair trial, restoration of freedom, restoration
of citizenship and return to one’s place of residence, etc.
10. In the event that the violations found by the Court do not require a
full restitution measure, such as release or re-opening of proceedings,
it goes without saying that the appropriate compensation is pecuniary
compensation; and this is the solution chosen by the Court in the
instant case.
11. Article 27(1) of the Protocol to the Charter on the Establishment
of an African Court on Human and Peoples’ Rights (hereinafter referred
to as “the Protocol”) states 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”. It is clear from that Article that the Court has full discretion
to determine measures of reparation such that can “remedy the
situation”.
12. Compared with similar Articles of the European Convention
(Article 41) and the Inter-American Convention (Article 63 paragraph
10 See in this sense H Tigroudja, “The Reparation of Human Rights Violations: The
Practice of Regional and Universal Bodies”. Audiovisual Library of International
Law, http://legal.un.org/avl/ls/Tigroudja_HR.html#
11 D Shelton Remedies in international human rights law (2009).
422 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
_____________________________
position from the majority. In the said paragraph, on the issue of costs,
the majority has decided that “the Respondent State shall bear the
costs”. In our considered opinion, this decision of the majority requiring
the Respondent State to bear all the costs in the instant case is not
correct for the reasons we outline below.
2. At the outset, we wish to point out that international human rights
litigation is mostly but not exclusively between an individual and a State
and due to the nature of the proceedings and the unequal capacity of
the Parties, it is not always the rule that the loser party bears costs,
which may be the norm in other forms of litigation. In particular, in
circumstances where the loser party is the individual, he or she shall
not in principle be penalized for exercising his/her right to be heard by
being required to bear the entire costs of the litigation.
3. The only exception to this principle would be if the State sufficiently
demonstrates that the individual abused his/her rights or acted in bad
faith by filing frivolous claims while having been fully aware/ knowing
that he was not entitled to make such claims. Even when the bad
faith of the individual is sufficiently vindicated, the financial capacity of
the individual and the amount of costs that the State incurred should
guide the determination of whether the former shall bear the costs.
It therefore rests on the discretion of a Court to assess and identify,
having regard to the specific contexts of each case, the party which
shall incur the costs.
4. In the instant case, it is evident from the facts on record that the
Respondent State has prayed the Court to order that the Applicant
shall bear the costs. However, the Applicant has neither prayed for
costs nor did he provide any supporting documents showing expenses
in relation to his Application, if any.
5. On the other hand, the Court has, in our view rightly, found that
the Respondent State has violated the right to defence of the Applicant
by failing to provide him legal assistance during his trial contrary to
Article 7(1)(c) of the Charter (See paragraph 71 of the Judgment).
From this finding, it is clear that the Respondent State is the losing
party and in accordance with the general default principle, that a losing
party meets the costs of the suit, it would ordinarily be the case that it
shall be the Respondent State to bear the costs.
6. However, Rule 30 of the Rules provides that “Unless otherwise
decided by the Court, each party shall bear its own costs”. According to
this rule, the default principle for the Court is thus that each party bears
its cost unless the Court decides otherwise. In the past, the Court has
applied this rule on many occasions and held in majority of cases that
each party covers its own costs, even where the Respondent State
was found to be in breach of the Charter and other relevant human
rights instruments. This has been the case also where neither of the
424 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
Parties has filed submissions on costs.1 This reinforces the fact that
costs are not damages for the violations of human rights as such, but
a compensation or reimbursement of expenses incurred by a party for
the litigation.
7. The opinion of the majority in the instant case is therefore a
clear departure from the Court’s established position. While we do not
have problems with this shift in approach, we nevertheless believe
that the departure should have been necessitated by some cogent
reasons or, at the minimum, supported by adequate justification, which
the majority did not provide. Regrettably in another judgment, in the
Matter of Dicoles William v United Republic of Tanzania, delivered on
the same day with similar facts relating to costs, the Court contradicted
itself by deciding that each party shall bear its own costs, in spite of
the fact that in that matter, as in the instant Application, the Applicant
neither claimed costs nor provided any supporting documentation, and
only the Respondent State prayed the Court to order the Applicant to
bear the costs, the majority in this case agreed that each party bears
its own costs.2
8. Consequently, we are of the view that the position of the Court
in the instant case reveals an unjustified inconsistency in its decisions
with respect to similar cases that the Court has concluded so far.
9. Furthermore, according to the established jurisprudence
of other human rights courts, a party is entitled to a refund of costs
and expenses only in so far as it is demonstrated that such costs
or expenses have been actually and necessarily incurred and are
reasonable as to quantum.3 This requires that the Applicant should
substantiate his claims with evidence showing that he incurred the
said costs or expenses and were indeed necessary for pursuing his
Application.
10. This is not the case in the instant Application. As we indicated
earlier, the Applicant has not made any submissions or prayed for
costs, or provided documents indicating that he incurred any costs.
While ordering the Respondent State to bear the costs, the majority
1 See Application No. 010/2015. Judgment 11/05/ 2018. Amiri Ramadhani v United
Republic of Tanzania, para 90, Application No. 046/2016, Judgment of 11/05/2018.
APDF & IHRDA v Republic of Mali, para 134, Application No. 011/2015, judgment
28/09/2017. Christopher Jonas v United Republic of Tanzania, para 98, Application
No. 032/2015 – Kijiji Isiaga v United Republic of Tanzania. Judgment of 21/03/2018
para 101.
2 Application No. 016/2016. Judgment of 21/09/2018. Diocles William v United
Republic of Tanzania, paras 107-110.
3 Applications 68762/14 and 71200/14. Judgment of 20/09/2018. Case of Aliyev
v Azerbaijan, para. 236, Series C No. 352. Judgment of 13/03/2018, Case of
Carvajal Carvajal et al v Colombia Merits, Reparations and Costs. Inter-American
Court of Human Rights, para 230.
Evarist v Tanzania (merits) (2018) 2 AfCLR 402 425
also did not specify or reckon the necessary and reasonable costs
that the Respondent State is expected to bear. Nor did the Court, as it
has done in some other cases,4 indicate in the instant case that it will
in a future separate proceeding, determine the exact amount of such
costs that the Applicant is entitled to get reimbursement. It is thus not
clear what the majority envisaged as costs that should be borne by
the Respondent State, since the Applicant is self-represented, and the
Court does not charge any fees.
11. We therefore conclude that the majority should, for purpose of
maintaining consistency, have followed the Court’s established position
that, in the absence of submissions or claims on costs from one or both
Parties, each party shall bear its own costs. Alternatively, the majority
should have provided reasons to justify their departure from the court’s
established position.
4 In some previous cases, the Court has deferred the issue of costs to a later stage to
consider it together with other forms of reparations. See Application No. 012/2015.
Judgment of 22 /03/2018. Anudo Ochieng Anudo v United Republic of Tanzania,
para 131.
426 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
I. The Parties
B. Alleged violations
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.
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.
William v Tanzania (merits) (2018) 2 AfCLR 426 429
V. Jurisdiction
23. Pursuant to Rule 39(1) of its Rules: “The Court shall conduct
preliminary examination of its 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
430 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
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.
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:
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)
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
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.
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
436 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
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:
62. The right to effective defence includes, inter alia, the right to
call witnesses for the defence.8 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.9
64. In the instant case, it emerges from the file that the Applicant
called witnesses on three (3) occasions without success, and in the
8 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.”
9 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.”
William v Tanzania (merits) (2018) 2 AfCLR 426 437
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,11 the High Court of Tanzania,12 and the Court of
Appeal,13 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.”14
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
11 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.”
12 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.”
13 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.”.
14 Mohamed Aboubakari v Tanzania Judgment, op cit, para 174.
William v Tanzania (merits) (2018) 2 AfCLR 426 439
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 pm and 5:00 pm). 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,15 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
15 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.
440 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
were not corroborated, and the circumstances of the crime were not
clarified.
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:
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
William v Tanzania (merits) (2018) 2 AfCLR 426 441
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.”22
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”. 23
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”24.
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
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.
25 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 17 September 1997, para 84
William v Tanzania (merits) (2018) 2 AfCLR 426 445
X. Operative part
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.
446 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
I. The Parties
3. The file record indicates that on the night of 28 July 1997, four
Paulo v Tanzania (merits) (2018) 2 AfCLR 446 447
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
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.
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.
Paulo v Tanzania (merits) (2018) 2 AfCLR 446 449
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…”
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.
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.
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:
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
Paulo v Tanzania (merits) (2018) 2 AfCLR 446 453
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
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.
454 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
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
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.
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
Paulo v Tanzania (merits) (2018) 2 AfCLR 446 457
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:
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.
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.
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…”
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.
460 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
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.
12 Sejdovic v Italy no. 56581/00, para 39, ECHR 2004-II; or Poitrimol v France no.
14032/88, para 33, ECHR 1993-II.
Paulo v Tanzania (merits) (2018) 2 AfCLR 446 461
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.
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:
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.
462 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
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
13 Mohamed Abubakari v Tanzania Judgment. op cit para 139. See also Christopher
Jonas v Tanzania Judgment. op cit para 77.
Paulo v Tanzania (merits) (2018) 2 AfCLR 446 463
VIII. Reparation
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 a token amount of
three hundred thousand Tanzania Shillings (TZS300,000 ) 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
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
v. Declares that the Respondent State did not violate the Applicant’s
right to freedom as provided under Article 6 of the Charter;
vi. 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;
vii. 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;
viii. 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;
Paulo v Tanzania (merits) (2018) 2 AfCLR 446 465
ix. 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;
x. Awards the Applicant a token amount of Three Hundred
Thousand Tanzania Shillings (TZS 300,000) as fair compensation;
xi. 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
xii. Orders the Respondent State to pay the costs.
466 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
I. The Parties
25. The Court notes that the developments that occurred after the
matter was placed on the deliberations are linked to the facts alleged
in the Application filed on 27 February 2017 and represent an obvious
continuity with the facts in question.
26. In this regard, the Court holds that in the interest of proper
administration of justice, it has the inherent power to decide to set aside
the deliberation, reopen the pleadings and admit the new evidence
filed by the Parties after the matter has been placed under deliberation.
V. Operative part
I. The Parties
and his three employees for trafficking eighteen (18) kilograms of pure
cocaine found in a container of frozen goods imported by Société
Comptoir Mondial de Négoce (COMON SA) of which he is the Chief
Executive Officer.
5. On 4 November 2016, the Criminal Chamber of Cotonou First
Class Court of First Instance Court, by Judgment No. 262/IFD-16,
acquitted the Applicant and one of his employees for lack of evidence
and for benefit of the doubt. The other two employees were released
without charge.
6. The Applicant alleges that, in the process, the Customs
Administration suspended the container terminal of the Transit and
Consignment Brokerage Company (SOCOTRAC) and withdrew its
customs brokerage license. The High Authority for the Audiovisual and
Communication (HAAC), by two decisions both dated 28 November
2016, disconnected the signals of the radio station SOLEIL FM and
the TV channel SIKKA TV. The Applicant alleges that he is the majority
shareholder in all these companies.
7. In his application of 27 February 2017, the Applicant indicated
that he brought the matter before this Court in the belief that the
international drug trafficking case and the subsequent proceedings
were part of a conspiracy orchestrated against him and violated his
human rights guaranteed and protected by international human rights
instruments.
8. Moreover, in October 2018, the Applicant reported the creation
by the Respondent State, in July 2018, of a special court to try him once
again for the same case of drug trafficking, and actually sentenced him
to twenty years in prison.
9. The Applicant argued that the sentences passed against him by
CRIET on 18 October 2018 violate the international conventions ratified
by the Respondent State and place him in a precarious and extremely
serious situation. He also argued that the Respondent State basically
violated his right to a fair trial in several respects, citing the following
violations: the right to be notified of the charges levelled against him;
the right of access to the record of proceedings; the right to have his
cause heard by the competent national courts; the right to respect for
the principle of reasonable time; the right to respect for the principle of
the independence of the judiciary; the right to assistance by Counsel;
the right to respect for the principle of non bis in idem and the right to
respect for the principle of two-tier jurisdiction.
letter dated 29 May 2017 received at the Registry on 1 June 2017, the
Respondent State filed its brief on preliminary objections.
11. In a letter dated 17 July 2017 received by the Registry on 19 July
2017, the Applicant filed his rejoinder to the preliminary objections raised
by the Respondent State; and on 29 August 2017, the Respondent
State submitted its rejoinder on the preliminary objections.
12. On 9 October 2017, the Applicant responded to the rejoinder; and
on 14 November 2017, the Respondent State submitted its response
to the Applicant’s observations on its rejoinder.
13. On 27 November 2017, the Registry notified the Parties that the
written procedure in the case was closed.
14. In a letter dated 6 November 2017 received at the Registry
on 11 December 2017, the Applicant alleged further attacks against
his person, the use of new methods by the Respondent State to stifle
his businesses and, for that reason, solicited a public hearing. He
reiterated this prayer on 26 March 2018.
15. On 9 May 2018, the Court held its public hearing, placed the
matter under deliberation and allowed the Respondent State leave to
file its response to the Applicant’s new observations within thirty (30)
days. The response was submitted at the Registry on 13 May 2018.
16. In a letter dated 15 October 2018 received on 16 October 2018,
the Applicant brought new allegations on the matter before the Court,
arguing in his written pleadings that while the Court’s decision was
being awaited by the Parties, the State of Benin, by a law dated 2
July 2018, created a special court named “Anti-Economic Crimes and
Terrorism Court (hereinafter referred to as “CRIET”) to once again
hear the case of international drug trafficking in which he was involved.
Alleging that this new procedure involves further violations of his rights,
the Applicant requested that the Court issue an order requesting the
Respondent State to stay its proceedings before CRIET.
17. On 24 October 2018, the Registry notified the Respondent State
of the Applicant’s new allegations.
18. On 26 October 2018, the Applicant filed another letter in which
he referred to the CRIET judgment No. 007/3C.COR of 18 October
2018 convicting him, and prayed the Court to issue, as an interim
measure, an order for a stay of execution of the said judgment. This
letter was registered in the Registry on 31 October 2018.
19. On 31 October 2018, the Registry received from the Applicant a
letter dated the same day by which the Applicant tendered the record
of proceedings of the General Assembly of Cotonou Magistrates
highlighting the illegality of CRIET, and requested the Court to take all
appropriate measures, including a stay of execution of the judgment
delivered by CRIET until examination of the cassation appeal.
20. On 5 November 2018, the Applicant addressed to the Court
Ajavon v Benin (provisional measures) (2018) 2 AfCLR 470 473
27. In dealing with any Application filed before it, the Court has to
ascertain that it has jurisdiction pursuant to Rule 39 of its Rules and
Articles 3 and 5(3) of the Protocol.
28. However, in examining a request for provisional measures, the
Court need not establish that it has jurisdiction on the merits of the
474 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
case, but simply satisfy itself that it has prima facie1 jurisdiction.
29. Article 3(1) of the Protocol stipulates 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 instruments ratified by the States
concerned.”
30. In terms of Article 5(3) of the Protocol, “The Court may entitle
relevant Non-Governmental organizations (NGOs) with observer
status before the Commission, and individuals to institute cases directly
before it, in accordance with Article 34(6) of this Protocol.”
31. As specified in paragraph 2 of this Order, the Respondent State
is a party to the Charter and to the Protocol, and also has deposited
the declaration accepting the jurisdiction of the Court to receive
applications from individuals and non-governmental organizations as
per Article 34(6) of the Protocol read together with Article 5(3) thereof.
32. In the instant case, the rights of which the Applicant alleges
violation are protected by the provisions of Articles 3(2), 5, 6, 7, 14 and
26 of the Charter.
33. In light of the foregoing, the Court concludes that it has prima
facie jurisdiction to hear the Application.
34. The Applicant prays the Court to order a stay of execution of the
18 October 2018 Judgment No. 007/3C.COR rendered by CRIET.
35. He contends that, notwithstanding his appeal before the Court
of Cassation, the Respondent State can at any time proceed with
execution of the judgment of CRIET; adding that CRIET decisions are
not subject to appeal and that the appeal before the Court of Cassation
is an extraordinary remedy.
36. The Applicant submits further that execution of judgment No.
007/ 3C.COR of 18 October 2018 rendered by CRIET, would have
unforeseeable consequences for him, and prays the Court take the
decision for a stay of execution of the said judgment, as a matter of
urgency.
37. The Respondent State submits that the Applicant cannot ask
the Court for a stay of execution of a judgment of a Benin court under
Benin’s positive law and the laws declared by the Constitutional Court
as being in conformity with Benin’s Constitution.
38. It further submits that it is established jurisprudence that
community courts do not have jurisdiction to issue injunctions to
Member States in respect of their domestic laws and procedures;
adding that to admit such injunctions would lead to the obliteration
of domestic court decisions. The Respondent State also refers to the
Applicant’s cassation appeal, describing the same as premature and
unfounded.
39. Finally, the Respondent State prays the Court to dismiss the
Applicant’s claims as premature and baseless. The Court notes that
Article 27(2) of the Protocol provides that:
“In cases of extreme gravity and urgency, and when necessary to avoid
irreparable harm to persons, the Court shall adopt such provisional
measures as it deems necessary”.
40. Further, Rule 51(1) of the Rules provides that the Court may:
“[a]t the request of a party, the Commission or on its own accord, prescribe
to the Parties any interim measure which it deems necessary to adopt in
the interest of the Parties or of justice.”
41. The Court notes that it lies with it to decide for each case, whether
in light of the particular circumstances of the matter, it should exercise
the jurisdiction conferred on it by the aforementioned provisions.
42. The Court notes that, although in terms of Article 19 paragraph 2
of the Law establishing CRIET, its judgments are subject to cassation
appeal,2 Article 594 of the Benin Code of Criminal Procedure declares
invalid the appeal of convicted persons who are not in detention or
have not obtained exemption from execution of the sentence.3
43. In the circumstances of the instant case, wherein the Applicant
is not in detention and has not obtained exemption from execution of
the sentence, the Court holds that there is still the risk that the prison
sentence would be executed notwithstanding possible cassation
appeal.
44. In view of the foregoing, the Court finds that the circumstances
of this case highlight a situation of extreme gravity and presents a
risk of irreparable harm to the Applicant if the CRIET’s decision of 18
October 2018 were to be enforced prior to this Court’s decision in the
2 “The judgments of the Economic Crimes and Terrorism Court shall be justified.
They shall be delivered in open Court and shall be subject to cassation appeal by
the convicted person, the Public Prosecutor’s Office and the civil Parties.”
3 “Persons subject to custodial sentence with or without bail shall be declared
incompetent to file any appeal. In order for his Application to be admitted, It is
sufficient for the Applicant to present him/herself before the Office of the Prosecutor
to undergo the detention.“
476 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
I. The Parties
Governmental Organisations.
3. In accordance with Article 5(2) of the Protocol as well as Rules
33(2) and 53 of the Rules, the Republic of Côte d’Ivoire (hereinafter
referred to as the “Intervening State”) was permitted to join.
B. Alleged violations
V. Jurisdiction
24. Pursuant to Rule 39(1) of the Rules, “the Court shall conduct a
preliminary examination of its jurisdiction …”.
25. The Respondent State avers that the Application is asking this
Court to act as a tribunal of first instance given that the Applicant’s
allegations that his statement was taken in a language unknown to
him and without the presence of his lawyer are being raised for the
first time. According to the Respondent State, the Applicant should
have raised these allegations during the trial proceedings or before the
Court of Appeal.
26. During the public hearing, the Respondent State reiterated this
argument and extended the same to the allegations that it arbitrarily
disposed of the Applicant’s property, never facilitated him with consular
assistance and did not investigate several pieces of core evidence,
which could have led to other suspects besides him.
27. The Respondent State further alleges that by asking this Court
to quash the conviction, set aside the sentence and set him at liberty,
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477 483
31. The Court is of the view, with respect to whether it is called to act
as a court of first instance, that, by virtue of Article 3 of the Protocol, it
has material jurisdiction so long as “the Application alleges violations of
provisions of international instruments to which the Respondent State
is a party”.4 In the instant matter, the Applicant alleges violations of
rights guaranteed in the Charter.
32. The Court therefore dismisses the Respondent State’s objection
on this point.
35. The Applicant alleges that the Respondent State violated his
right to consular assistance provided for under Article 36(1)(b) and (c)
of the Vienna Convention on Consular Relations (hereinafter referred
to as “the VCCR”) adopted on 22 April 1963. The Applicant specifically
avers that, as a consequence, the Respondent State violated his right
to a fair trial and, in particular, the rights to be assisted by an interpreter
and to be represented by a lawyer.
36. Although the Respondent State did not raise an objection in
relation to this point, the Court has to make a determination on whether
it has jurisdiction to examine this allegation.
37. The Court notes in that respect that Article 36(1) of the VCCR to
which the Respondent State became a party on 18 April 1977 provides
40. In light of the foregoing, the Court finds that it has jurisdiction to
hear this Application.
41. Pursuant to Rule 39(1) of the Rules, “the Court shall conduct
a preliminary examination of … the admissibility of the Application in
accordance with Articles 50 and 56 of the Charter, and 40 of these
Rules”.
42. Rule 40 of the Rules, which in substance restates the provisions
of Article 56 of the Charter, provides as follows:
“Pursuant to the provisions of Article 56 of the Charter to which Article
6(2) of the Protocol refers, Applications to the Court shall comply with the
following conditions:
44. The Respondent State avers that the Applicant did not exhaust
local remedies with respect to the allegation that he was not accorded
an interpreter during his interrogation by police. According to the
Respondent State, while he could have done so, the Applicant did not
raise this matter either for a trial within the trial, as a ground of appeal or
as a basic rights enforcement claim during the trial as provided under
the Basic Rights and Duties Enforcement Act. The Respondent State
asserts that the basic rights enforcement remedy similarly applies to
the Applicant’s claim that his right to property was violated.
45. In its oral submissions, the Respondent State reiterated its
written observations on the abovementioned issues and further
contended that the Applicant could have raised before domestic courts
his allegations concerning the defective statement taken by the police,
key evidence that was not pursued and the lack of consular assistance.
46. It is also the Respondent State’s contention that the review
process initiated by the Applicant is evidence that he understood
the said process as an available remedy, which he left pending and
thus has not exhausted. During the hearing, the Respondent State
stressed that the Applicant understood that the review process applied
in his case and informed the Court that the hearing of the Applicant’s
application for review was scheduled for 18 July 2018.
47. In his Reply, the Applicant argues that “the failure to challenge the
legality of any of the legal processes that took place in the first instance
cannot be interpreted as resulting in the extinction of the Applicant’s
right to contest the said legality”. The Applicant further contends that
the provision for filing a basic rights enforcement action with respect to
property does not in itself mean that the laws are observed. In support
of that contention, he states that his arrest, followed by a lengthy trial
process and lack of measures by the Respondent State to preserve his
property, resulted in the loss of the said property.
48. In response to the Respondent State’s contention that the review
process is pending, the Applicant asserts that it is an extraordinary
remedy, which, even if sought, would not change the fact that the Court
of Appeal is the highest court of the land. The Applicant reiterated these
arguments during his oral submissions.
49. The Intervening State submits that the Application meets the
requirement of Article 56(5) of the Charter because the Court has
488 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
53. The Respondent State avers that this Application was filed
eleven (11) months after exhaustion local remedies, which is not
reasonable as per the decision of Majuru v Zimbabwe11 where the
African Commission applied the six-month standard of the European
and Inter-American human rights conventions. The Respondent State
reiterated this argument during the public hearing.
54. The Applicant does not address this issue specifically in his
written submissions. In his oral submissions, the Applicant avers that
the period of eleven (11) months should be considered as a reasonable
time if assessed by the Court’s approach, which is to deal with the issue
9 See Alex Thomas v Tanzania, op. cit., paras 60-65; and Application 003/2015.
Judgment of 28/09/2017, Kennedy Owino Onyachi and Charles John Mwanini
Njoka v United Republic of Tanzania (hereinafter referred to as “Kennedy Owino
Onyachi and Charles John Mwanini Njoka v Tanzania”), para. 54.
10 See Alex Thomas v Tanzania, ibid; and Kennedy Owino Onyachi and Charles John
Mwanini Njoka v Tanzania, op. cit., para 56.
11 Michael Majuru v Zimbabwe (2008) AHRLR 146 (ACHPR 2008).
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477 489
61. The Court notes that the conditions set out in Article 56 sub-
Articles (1), (2), (3), (4) and (7) of the Charter 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 evidence adduced, and the previous settlement of the case
respectively are not in contention.
62. The Court further notes that the pleadings do not indicate that
these conditions have not been met and therefore holds that the
Application meets the requirements set out under those provisions.
63. As a consequence of the foregoing, the Court finds that the
Application fulfils all the requirements set out under Article 56 of the
Charter and accordingly declares the same admissible.
VII. Merits
64. The Applicant alleges that the Respondent State violated his
rights to a fair trial, consular assistance, property as well as his right not
to be subjected to inhuman and degrading treatment. He also alleges
65. The Court notes that some of the violations of fair trial rights
alleged in the present Application relate to the right to defence. These
are the alleged violations of the right to be assisted by an interpreter,
the right to have access to a lawyer and the right to consular assistance.
The relevant provision of the Charter with respect to the said rights is
Article 7(1)(c), which provides that everyone has “The right to defence
including the right to be defended by counsel of his choice”.
66. The Applicant alleges that the Respondent State did not provide
him with an interpreter during his interview by the police where he
made a statement, which was later used against him during the trial.
He asserts that the lack of language assistance at a time he could only
properly speak and understand French undermined his right to a fair
trial.
67. The Applicant also avers that he expressed his language
limitations to the court and requested an interpreter during the
committal proceedings, which were conducted in a language he did
not understand. He further contends that his failure to repeatedly point
this out does not mean that the violation should be overlooked given
that the Respondent State had an obligation to provide language
assistance at all stages due to the gravity of the offence and the nature
of the sentence he faced.
68. During the public hearing, Counsel for the Applicant reiterated
these arguments and further submitted that the fact that the Applicant
was able to follow part of the proceedings and pleaded not guilty did not
mean that he understood English in a way that relieved the Respondent
State from its obligation to provide an interpreter. Counsel averred that,
had the Applicant been afforded language assistance in the four hours
following his arrest, “he would not be in the situation he is in today” as
he would have understood the reason for being detained, the extent
of the accusations he was facing including their gravity, the existence
of his right to have access to a lawyer of his choice to assist him in
preparing his defence and the consequences of giving a statement to
authorities that could later on be used against him.
69. The Applicant also claims to have raised the issue of his
492 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
17 See Record of Proceedings, High Court of Tanzania at Moshi, Criminal Case No.
40 of 2007, page 129, lines 20 to 24.
494 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
an interpreter.
80. The Applicant claims that he was not provided with a lawyer
during the recording of his police statement even though he requested
one. This position was reiterated during the public hearing and the
Applicant averred that he was detained for nine (9) days before being
informed of his right to a lawyer of his choice, this being contrary to
Article 7(1)(c) of the Charter.
81. Without challenging the Applicant’s allegation that he was not
allowed to communicate with a lawyer during the police interview, the
Respondent State avers that, under Section 54(1) and (2) of its Criminal
Procedure Act, “upon request by a person who is under restraint”, the
police should facilitate “communication with a lawyer, a relative or
friend of his choice”. However, such request may be refused regarding
a relative or friend if the police “believes on reasonable grounds that it
is necessary to prevent the person under restraint from communicating
… for the purpose of preventing the escape of an accomplice … or the
loss, destruction or fabrication of evidence relating to the offence”.18
82. In its oral submissions, the Respondent State asserts that the
Applicant was presented with the opportunity to be represented by a
lawyer.
83. The Intervening State contends that persons facing criminal
charges must be provided legal assistance at all times during the
proceedings, including at the first interrogation, and failure to do so
violates the right to a fair trial. The Intervening State supports its
contention by referring to the judgment of the European Court of
Human Rights in the matter of Abdulgafur Batmaz v Turkey.19
84. The Court recalls, with respect to whether the Applicant was
allowed to communicate with a lawyer, that, generally, access to a
lawyer is a fundamental right especially in a case where a person is
accused of murder and faces the death sentence.20
85. The Court refers to the facts as earlier established regarding the
allegation that language assistance was not provided during the police
interrogation. According to these facts, the Applicant did not demand
the assistance of a lawyer before or while giving his statement despite
the fact that the police asked him whether he wished to do so in the
87. The Applicant alleges that the Respondent State did not facilitate
consular assistance, which he avers should not be confused with legal
assistance.
88. In response to the Court’s enquiry into the kind of assistance
he expected, the Applicant referred to Article 36(1)(b) and (c) of the
VCCR as quoted earlier, and avers that once he requested consular
assistance, it was the Respondent State’s obligation to ensure he was
granted the same, timely and effectively. He alleges that the failure
to do so constituted an infringement of his right to a fair trial. It is
the Applicant’s contention that, had the Respondent State provided
consular assistance, he would have had the opportunity to insist on
access to an interpreter and legal representation.
89. The Applicant reiterates these arguments in his oral submissions
and further contends that the VCCR is customary international law and
that it is therefore irrelevant that the Intervening State, the Republic of
Côte d’Ivoire, is not a party to it. According to the Applicant, accessing
consular assistance was critical given the charges he faced and the
fact that he was not conversant with the Respondent State’s judicial
system.
90. In its response, the Respondent State asserts that the Applicant
had access to counsel during his preliminary hearing, trial and appeal.
91. During the public hearing, the Respondent State averred that it
was not under the obligation to provide consular assistance given that it
does not have any agreement with the Applicant’s state of origin, which
is Côte d’Ivoire, to that effect. It is the Respondent State’s contention
that there was no sending state as provided under Article 36 of the
VCCR since the Applicant resided in Tanzania under his wife’s consular
protection as granted by the ICTR. The Respondent State considers
that, as such, it did not have an obligation to inform Côte d’Ivoire of the
deprived him of the possibility to enjoy assistance from his country with
respect to the protection of his fair trial rights. The Court further notes
the Applicant specifically mentioned the rights to be assisted by an
interpreter and a lawyer.
96. As this Court has found earlier, these rights accruing from the
provision of Article 36(1) of the VCCR are also protected under Article
7(1)(c) of the Charter. Having also concluded that the related claims
made under Article 7(1)(c) of the Charter are unfounded, the Court
does not find it necessary to examine the same under the VCCR.
97. The Applicant claims that the Respondent State did not ensure a
“proper, fair, professional and diligent investigation of the matter” given
especially that “core evidence” that could have led to other potential
suspects were not investigated or were destroyed. He alleges that if
the evidence referred to had been presented in court it would have
proved that he did not commit the crime.
98. It is also the Applicant’s contention that two other bodies had
previously been discovered at the same place where his wife’s body
was found, but there was no investigation into whether there was a
connection between the three (3) victims, which could have raised a
reasonable doubt as to his involvement.
99. The Applicant further avers that extraneous evidence was used
to convict him, such as evidence that he had previously beaten his
wife and that he was allegedly having an extra marital affair. He also
claims that emails allegedly between him and his lover were admitted
as evidence, despite the fact that no investigation was conducted to
verify their origin and the Applicant denied being the author.
100. In his Reply, the Applicant alleges that the Respondent State failed
to investigate several contradictions. First, the Applicant avers that he
was convicted on only circumstantial evidence as the Respondent State
failed to find evidence directly linking him to the crime. Second, he claims
that no investigation was conducted on the deceased’s car from which the
police did not take fingerprints because they were convinced of his guilt
since he had been seen driving it and he was the last person to drive it.
101. Finally, the Applicant alleges that, due to the fact that he was not
represented by a lawyer at the time he gave his statement to the police,
the said statement was manipulated and used against him during the
trial. He further alleges that the fact that the judgment of the High Court
did not expressly refer to the statement does not mean it was not used
against him.
102. The Respondent State disputes these allegations and avers that
498 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
119. The Applicant alleges that he was convicted in 2010 after being
arrested in October 2005 and that this undue delay infringed his right to
be tried within a reasonable time. In his oral submissions, the Applicant
avers that the process of nolle prosequi entered by the State Attorney,
on account of mistakes in terms of procedure, almost two (2) years
after he was first charged violates his right to be tried without undue
delay.
120. The Respondent State does not address this allegation in its
written pleadings and did not respond to the submissions made by the
Applicant on the same issue during the public hearing.
121. The Court notes that, as provided under Article 7(1)(d) of the
Charter, every individual has the right “to be tried within a reasonable
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477 501
126. The Applicant alleges that the Respondent State violated his
right not to be subjected to inhuman and degrading treatment by
detaining him for ten (10) days in very poor conditions, including being
given little to no food, having to sleep on the floor without blankets
with the same set of clothes, and being deprived of the support of his
36 See Application No. 013/2011. Judgment of 28/03/14 (Merits) Norbert Zongo and
Others v Burkina Faso, para 152; Application No. 006/2013. Judgment of 18/03/16,
Wilfred Onyango Nganyi v United Republic of Tanzania, para 155.
37 See Norbert Zongo v Burkina Faso (Merits), paras 92-97; Alex Thomas v Tanzania,
op. cit., para 104; and Wilfred Onyango Nganyi v Tanzania, ibid.
38 See Applicant’s reply, para 3; and verbatim records of the public hearing, pages
1649 and 1639.
502 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
the State, the burden of proof will shift to the Respondent State as long
as the Applicants make a prima facie case of violation.41
133. The Court notes that, in the instant case, the Applicant adduced
prima facie evidence that he was given food two (2) times only in the
course of ten (10) days, including once by his house maid. While it
does not challenge this assertion, the Respondent State avers that the
Applicant’s statement shows that he was not prevented from receiving
food.
134. In the Court’s view, the Respondent State bore the duty to
provide the Applicant with food so long as he was in its custody. Once
the Applicant adduces prima facie evidence that he was not given food
on a regular basis, the burden shifts to the Respondent State to prove
the contrary. Given that it has not done so in the present circumstances,
this Court finds that the Respondent State violated the Applicant’s right
not to be subjected to inhuman and degrading treatment.
135. With respect to the allegation that the Applicant was left to sleep
on the floor without a blanket and restricted from accessing friends
and relatives, the Court considers that detention conditions necessarily
involve some restrictions of movement, communication and comfort.
Furthermore, the Applicant does not adduce any prima facie evidence
to support his allegation. This allegation is therefore dismissed.
136. In light of the foregoing, the Court finds that the Respondent
State violated the Applicant’s right not to be subjected to inhuman
and degrading treatment protected under Article 5 of the Charter with
respect to deprivation of food.
137. The Applicant alleges that after his arrest, the Respondent
State failed to secure his properties left in his house in Arusha and
as a result, agents of the Respondent State arbitrarily disposed of the
said properties. Upon request by this Court, the Applicant provided an
itemised list of all the property with the values. To prove the Respondent
State’s responsibility in securing his properties, the Applicant alleges
that, after his arrest, his son was taken away and the house maid was
asked to leave the house. The house was then placed under the custody
of the police officers and officers of the ICTR Security Department.
138. The Applicant also avers that ICTR officers came to him at
Karanga Prison in Moshi with documents, including two court orders
from Côte d’Ivoire, which they requested him to sign in order to dispose
41 See Kennedy Owino Onyachi and Charles John Mwanini Njoka v Tanzania, op.
cit., paras 142-145.
504 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
145. The Applicant avers that he has suffered a lot of mental anguish
as a result of being first arrested, the charges being dropped and
another case being opened against him.
146. In its oral submissions, the Respondent State avers that, given
that the Applicant’s conviction and sentencing are lawful, the emotional
anguish is the result of his guilt and there should be no finding of
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477 505
148. The Applicant does not substantiate his claim that the
Respondent State violated Article 1 of the Charter. The Respondent
State challenges the claim without substantiating its contention.
149. As this Court has consistently held, a determination on whether
Article 1 of the Charter was violated involves an examination not
only of whether the domestic legislative measures taken by the
Respondent State are available but also whether the said measures
were implemented, which is that the relevant object and purpose of
the Charter was attained.42 In the same case, the Court held that if it
finds that any of the rights in the Charter is curtailed, violated or not
achieved, then Article 1 is violated.43
150. Having found that the Respondent State violated Articles 5 and
7(1)(d) of the Charter, the Court also finds a violation of Article 1 of the
Charter.
VIII. Reparations
151. The Applicant requests the Court to order that his liberty be
restored. He also asks the Court to order that damages be paid to him
by the Respondent State for the moral and material loss suffered by
himself and that suffered by his friends and relatives. The Applicant
finally requests for orders on measures of satisfaction, non-repetition
and costs.
152. The Respondent State prays the Court to dismiss all the reliefs
and orders sought by the Applicant for lack of merit or not being
supported with evidence.
153. The Court notes that, as Article 27(1) of the Protocol provides,
“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
42 See Alex Thomas v Tanzania, op. cit., para 135; Kennedy Owino Onyachi and
Charles John Mwanini Njoka v Tanzania, op. cit., paras 158 and 159.
43 n42
506 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
160. The Applicant requests the Court that his conviction be quashed,
the sentence set aside and his liberty be restored. He avers that there
are specific and compelling circumstances as to warrant the Court to
order his release. The Applicant asserts that ordering his release is the
only way that the prejudice suffered could be restored given the fact
that having a re-trial after (thirteen) 13 years would be impossible since
the evidence has been destroyed.
161. The Applicant also urges the Court to take into consideration
the fact that he has been incarcerated for many years without the
support of his friends and family which is vital for a life in prison. He
alleges that his incarceration far from his friends and family increases
the damages that he has endured and will continue to endure as long
as his incarceration continues. It is the Applicant’s contention that his
continued incarceration may only lead to further violations to occur
and not releasing him would have devastating consequences that no
amount of pecuniary damages could remedy.
162. The Respondent State submits that the Applicant should serve
his time for the crime as he was duly sentenced by domestic courts.
The Respondent State further submits that the Applicant did not provide
any specific or compelling circumstance to substantiate his request to
be released and that he is, as such, not entitled to the relief sought
especially because he committed the offence.
163. With respect to the prayer that the conviction be quashed and
the sentence set aside, the Court reiterates its position that it is not an
appellate court as it does not operate within the same judicial system
as national courts; and does not apply the same law.47 This Court
cannot therefore entertain the Applicant’s prayer.
164. Regarding the prayer for release, the Court refers to its
established case law where it held that a measure such as the
release of the Applicant can only be ordered in special or compelling
circumstances.48 The Court is of the view that such circumstances are to
be determined in casu bearing in mind mainly proportionality between
the measure of restoration sought and the extent of the violation
established. Determination must be done with the ultimate purpose
of upholding fairness and preventing double jeopardy.49 As such, the
procedural violation that underpins the request for a particular relief
has to have fundamentally affected domestic processes to warrant
such a request.
165. In the case at hand, the violations found by the Court did not
affect the processes which led to the conviction and sentencing of the
Applicant to the extent that he would have been in a different position
had the said violations not occurred. Furthermore, the Applicant
did not sufficiently demonstrate nor did the Court establish that his
conviction and sentencing were based on arbitrary considerations and
his continued incarceration is unlawful.50
166. In light of the facts and circumstances, this prayer is therefore
dismissed.
i. Moral damages
167. The Applicant asks the Court to award him damages for the
moral prejudice he suffered as well as for the moral prejudice suffered
by his friends and relatives. The Applicant also claims that he suffered
mental anguish due to being charged twice. He quantifies the prejudice
as follows:
“i. US Dollars Twenty Thousand ($20,000) for the moral
prejudice suffered by the Applicant himself (caused by
long imprisonment following an unfair trial, emotional
anguish during the trial and imprisonment, disruption of
his life plan, loss of social status, lack of contact with his
family based in Côte d’Ivoire, chronic illnesses and poor
health due to lack and failure of treatment; and physical
and psychological abuse);
ii. US Dollars Five Thousand ($5,000) for the moral prejudice
suffered as indirect victims by each of the family members
and friends of the Applicant namely, Mr. Lambert Guehi
(father), Ms. Espérance Houeyes (sister) and Ms.
Elizabeth Mollel Lesitey (friend).”
168. The Applicant also prays the Court to grant him compensation
as a substitute to restitution as he cannot be returned to his situation
before incarceration.
169. With respect to the principle of reparation, the Respondent State
submits that a request for reparation must fulfil three main conditions,
these being, a deliberate or negligent failure of the State to comply with
52 See Norbert Zongo and Others v Burkina Faso (Reparations), op. cit., para 55; and
Lohé Issa Konaté v Burkina Faso (Reparations), para 58.
53 See Norbert Zongo and Others v Burkina Faso (Reparations), op.cit., para. 61.
54 See Norbert Zongo and Others v Burkina Faso (Reparations), op.cit., para. 62.
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477 511
184. The Applicant asks the Court to grant him the amount of US
Dollars Fifteen Thousand ($15,000) for monetary loss suffered by his
friends and family due to his undue detention (the loss resulting among
others from his family having to sell their cocoa farm to pay a lawyer
and Ms Mollel having suffered from witnessing the Applicant’s injuries
55 See, Norbert Zongo and Others v Burkina Faso (Reparations), op. cit., paras 45-
54.
512 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
and pain, and having to incur costs of a flight to Côte d’Ivoire to inform
the Applicant’s family about his situation).
185. The Respondent State submits that there is no proof regarding
the claims of loss due to the sale of a cocoa farm and a trip by Ms
Mollel to Côte d’Ivoire, which are new and fabricated evidence.
186. The Court notes that the claim for US Dollars Fifteen Thousand
($15,000) being the “monetary loss suffered by the Applicant’s friends
and family members due to his undue detention” is not supported by
evidence or justification. The Court further notes that, in any event,
the claim relates to the conviction, sentencing and incarceration of the
Applicant and does not therefore warrant damages as earlier found.
The Court consequently dismisses the request.
i. Non-repetition
56 See Norbert Zongo and Others v Burkina Faso (Reparations), op. cit., paras. 79-
93; and Reverend Christopher Mtikila v Tanzania (Reparations), op. cit., para. 39.
57 Norbert Zongo and Others v Burkina Faso (Reparations), para. 81; and Reverend
Mtikila v Tanzania (Reparations), op. cit., para. 40.
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477 513
190. The Applicant requests the Court to make an order for guarantee
of non-repetition of the violations. The Respondent State prays the
Court to dismiss the claim given that there was no violation to warrant
an order of non-repetition.
191. The Court notes that, while they seek to prevent the commission
of future violations,58 guarantees of non-repetition are generally used
to eradicate structural and systemic human rights violations.59 These
measures are therefore not usually aimed to remedy individual harm
but rather to address the underlying causes of the violation. Having
said that, the Court is of the view that guarantees of non-repetition can
also be relevant, especially in individual cases, where there is evidence
that the violation will not cease or is likely to occur again. Such cases
include when the Respondent State has challenged or not complied
with earlier findings and orders of the Court.60
192. In the instant case, the Court found that the Applicant’s rights
were violated only with respect to his lengthy trial and deprivation of
food for which remedy has been granted. These violations are not
systemic or structural in nature within the circumstances of this case.
Furthermore, there is no evidence that the violations have been or
are likely to be repeated. The Court also notes that, in compliance
with its Order for provisional measures, the Respondent State has not
carried out the execution of the Applicant pending consideration of
the merits of the present Application. The Court is of the view that, in
the circumstances, the order sought is not warranted. The request is
consequently denied.
58 See Norbert Zongo and Others v Burkina Faso (Reparations), op.cit., paras. 103-
106.
59 African Commission on Human and Peoples’ Rights, General Comment No.
4 on the African Charter on Human and Peoples’ Rights: The Right to Redress
for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or
Treatment (Article 5), para. 10 (2017). See also Case of the “Street Children”
(Villagran-Morales et al.) v Guatemala, Inter-American Court of Human Rights,
Judgment on Reparations and Costs (May 26, 2001).
60 See Reverend Christopher Mtikila v Tanzania (Reparations), op. cit., para. 43.
514 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
IX. Costs
is 200 hours for two Assistant Counsel and 100 hours for the lead
Counsel, charged at US Dollars One Hundred ($100) per hour for the
lead Counsel and US Dollars Fifty ($50) per hour for the Assistants).
199. The Respondent State disputes the claim for payment of legal
fees as counsel for the Applicant served on a pro bono basis under the
African Court’s legal aid scheme. The Respondent State further prays
the Court to deny the request as it is not supported by any receipts.
200. The Court notes that the Applicant was duly represented by
PALU throughout the proceedings under the Court’s legal aid scheme.
Noting further that the current Court’s legal aid scheme is pro bono in
nature, the request is denied.
201. The Applicant asks for the payment of the following amounts for
other expenses:
“i. US Dollars Two Hundred ($200) for postal services;
ii. US Dollars Two Hundred ($200) for printing and photocopy
fees;
iii. US Dollars Four Hundred ($400) for the transport to
and from the seat of the African Court from the PALU
Secretariat and from the PALU Secretariat to Kisongo
Prison;
iv. US Dollars One Hundred ($100) for communication fees.”
202. With respect to the costs incurred by the Applicant, the
Respondent State avers that the claims must be dismissed given
that the expenditure relates to postage, printing and photocopying,
transport, and communication, which are all paid for by the prison
authorities.
203. The Court notes that the requests for payment of US Dollars
Two Hundred ($200) for postal services; US Dollars Two Hundred
($200) for printing fees; US Dollars Four Hundred ($400) for transport
fees; and US Dollars One Hundred ($100) for communication fees are
not backed with supporting documents. They are therefore dismissed.
204. As a consequence of the above, the Court decides that each
Party shall bear its own costs.
X. Operative part
Unanimously:
516 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
On jurisdiction
i. Dismisses the objections on the lack of material jurisdiction of
the Court;
ii. Declares that the Court has jurisdiction;
On admissibility
iii. Dismisses the objections on the admissibility of the Application;
iv. Declares that the Application is admissible;
On the merits
v. Finds that the Respondent State has not violated Articles 7, 7(1)
(b) and (c) of the Charter with respect to the claims that the Applicant’s
rights to be assisted by an interpreter, to have access to a lawyer, to
consular assistance, in relation to the allegation that the investigation
was improper and insufficient, and to be presumed innocent were
breached;
vi. Finds that the Respondent State has not violated Article 14 of
the Charter in relation to the allegation that the Applicant’s property
was disposed of by agents of the Respondent State;
vii. Finds that the Respondent State has violated Article 5 of the
Charter for failing to provide the Applicant with food;
viii. Finds that the Respondent State has violated Article 7(1)(d) of
the Charter with respect to the allegation that the Applicant’s trial was
unduly delayed;
ix. Finds that the Respondent State has violated Article 1 of the
Charter.
On reparations
x. Does not grant the Applicant’s prayer for the Court to quash his
conviction and sentence, and order his release;
xi. Does not grant the Applicant’s prayers related to compensation
for moral prejudice;
xii. Does not grant the Applicant’s prayer to be paid material
damages for monetary loss;
xiii. Does not grant the Applicant’s prayers related to payment of
legal fees incurred in the course of domestic proceedings;
xiv. Does not grant the Applicant’s prayers related to the guarantee
of non-repetition and publication of this Judgment;
xv. Grants the Applicant the sum of US Dollars Five Hundred ($500)
for being subjected to inhuman and degrading treatment;
xvi. Grants the Applicant the sum of US Dollars Two Thousand
($2,000) for not being tried within a reasonable time and the anguish
that ensued therefrom;
xvii. Orders the Respondent State to pay the amounts indicated in
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477 517
sub-paragraph (xv) and (xvi) of this part within six (6) months, effective
from this date, failing which it will also be required to pay interest on
arrears calculated on the basis of the applicable Bank of Tanzania rate
throughout the period of delayed payment until the amounts are fully
paid;
xviii. Orders the Respondent State to submit within six (6) months
from the date of notification of this Judgment a report on the status of
implementation of the Orders herein.
On costs
xix. Does not grant the Applicant’s prayer related to payment of legal
fees and other expenses incurred in the proceedings before this Court;
xx. Decides that each Party shall bear its own costs.
_____________________________
In conclusion
I. The Parties
B. Alleged violations
8. The Applicants submit that both their conviction and the refusal
of the Court of Appeal to review the convictions on the basis that their
application for review was filed out of time contravene the provisions
of the Charter and the 1977 Tanzanian Constitution. In this regard, the
Applicants allege that they were convicted based on a mistaken identity
and solely on the basis of incriminating evidence of visual identification
522 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
12. The Application was filed on 2 October 2015 and was served on
the Respondent State on 4 December 2015 in accordance with Rule
35 and Rule 37 of the Rules.
13. On the same date, pursuant to Rules 35 and 53 of the Rules,
the Registry also transmitted the Application to all State Parties to the
Protocol, the African Union Commission and the Executive Council
of the African Union, through the Chairperson of the African Union
Commission.
14. On 11 February 2016, the Respondent State requested the
Court for an extension of time to file its Response on the basis that it
is still collecting information from stakeholders involved in the matter.
524 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
on this Application;
ii. That, the Application has not met the admissibility
requirements stipulated under Rule 50(5) of the Rules
of the Court and it is therefore inadmissible and be duly
dismissed;
iii. That, the Application is dismissed with costs.”
V. Jurisdiction
25. In accordance with Rule 39(1) of the Rules, the Court “shall
conduct a preliminary examination of its jurisdiction …”
26. In the instant Application, the Court notes from the Respondent
State’s submission that the Respondent State disputes only the Court’s
material jurisdiction. However, the Court shall also satisfy itself that it
has personal, temporal and territorial jurisdiction.
The Applicants, citing the jurisprudence of the Court,1 aver that the
Court has the power to receive and consider matters, including those
relating to decisions of domestic courts and determine whether the
proceedings and judgments of the national courts are in accordance
with international human rights standards.
29. Article 3(1) of the Protocol and Rule 26(1)(a) of the Rules specify
that 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.” In this regard, the Court has observed
that it exercises its jurisdiction over an Application in so far 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.2 The Court has further stated that it
does not have appellate jurisdiction to uphold or reverse judgments of
domestic courts merely depending on the manner in which evidentiary
issues were considered in the national proceedings.3
30. In the instant Application, the Court notes that the Applicants
raise issues relating to alleged violations of human rights protected
by the Charter. The Court further notes that the Applicants’ allegations
essentially challenge the manner in which the domestic courts of the
Respondent State evaluated the evidence that was used to justify their
conviction.
31. However, the fact that the Applicants question the manner in
which domestic courts have assessed evidence does not prevent the
Court from making determination on the allegations contained in the
Application. It is also well-established in the jurisprudence of this Court
that where allegations of violations of human rights relate to the way in
which domestic courts evaluate evidence, the Court retains the power
to examine whether such assessment is compatible with international
human rights standards.4 This is within the purview of its jurisdiction
and doing so, does not require the Court to sit as an appellate Court.
The Respondent State’s objection in this regard is thus dismissed.
32. The Court therefore finds that it has material jurisdiction to
33. The Court notes that the other aspects of its jurisdiction are not
contested by the Respondent State and nothing on the record indicates
that the Court lacks jurisdiction in this regard. The Court thus holds:
“i. 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 Applicants to access the Court in terms of
Article 5(3) of the Protocol;
ii. that it has temporal jurisdiction on the basis that the
alleged violations are continuous in nature, in that the
Applicants remain convicted and are serving a sentence
of thirty (30) years’ imprisonment on grounds which they
consider are wrong and indefensible5; and
iii. that it has territorial jurisdiction given that the facts of the
matter occurred in the territory of a State Party to the
Protocol, that is, the Respondent State.”
34. From the foregoing, the Court concludes that it has jurisdiction
to examine this Application.
35. 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 50 and 56 of the Charter, and Rule 40 of these
Rules”.
36. 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:
43. The Respondent State contends that, should the Court find that
the Applicants have exhausted local remedies, it should reject the
Application on the basis that it was not filed within a reasonable time
after local remedies were exhausted. In this regard, the Respondent
State asserts that even though Rule 40(6) of the Rules is not specific
on the question of a reasonable time, international human rights
9 Norbert Zongo and Others v Burkina Faso Ruling, para 92; See also Kijiji Isiaga v
Tanzania Judgment, para 56.
Werema v Tanzania (merits) (2018) 2 AfCLR 520 531
55. The Applicants submit that their conviction in the domestic courts
was based solely on incriminating evidence of visual identification
which is “perjured, concocted and privy”. The Applicants as indicated
532 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
11 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.
12 Kijiji Isiaga v Tanzania Judgment, para 65.
13 Ibid.
14 Ibid, para 73.
534 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
75. The Applicants contend that they were isolated during the
procedures when the decision of the domestic courts were rendered
and this violated their fundamental rights.
76. The Respondent State denies the allegation and argues that
the Applicants were present during their trial from the time the armed
robbery charge was read out to them on 7 May 2001 in which they
pleaded not guilty, up to the conclusion of the trial on 16 November
2001. The Respondent State also avers that the Applicants were also
present when their appeal was heard at the High Court on 12 August
2002. The Respondent State further indicates that the Applicants were,
except at the Court of Appeal, represented by a lawyer and at the Court
of Appeal, they were not provided with legal counsel because they did
not apply for it, as required under Rule 31 of the Tanzania Court of
Appeal Rules, 2009.
77. The Court notes that the right to a fair trial, in particular, the right
to defence under Article 7(1) requires that an accused person must be
given the opportunity to take part in all the hearings in respect of his
trial, and to adduce his arguments and evidence in accordance with
the adversarial principle.15 This is an inherent component of the basic
precept of equality of arms, which demands that both the accused and
the prosecution must have the possibility to present in an equal manner
their case and examine or cross-examine the evidence proffered by
the other party.
78. In the instant case, the Applicants generally allege, without
indicating the violation of a specific right, that they were isolated
during the procedures and the decisions of the domestic courts. In
their submissions however, they did not clearly state how and why
they were isolated in the domestic proceedings. As submitted by the
Respondent State, the Applicants indeed participated in all the trial and
appeal proceedings and they were also represented by a lawyer at
the District Court and at the High Court. The Court observes in this
regard that, nothing on record indicates that the Applicants were kept
in isolation or isolated in any manner during their trial and appellate
proceedings.
79. The Court is therefore of the view that the allegation that the
80. The Applicants allege that both their conviction on the basis of a
mistaken identity and the refusal of the Court of Appeal to review their
conviction to rectify the wrong citing the reason of filing the application
of review out of time contravene Articles 3(1) and (2) of the Charter.
The Applicants submit that the Court of Appeal should have applied not
only the Charter but also Article 107A(2)(c) and (e) of the Respondent
State’s Constitution to allow their application for review as the victim
was paid compensation by the real perpetrators under the aegis of the
local authority.
81. On its part, the Respondent State denies the allegation and
contends that the Applicants should be put to strict proof thereof. The
Respondent State indicates that its Constitution contains provisions
similar to Article 3(1) and (2) of the Charter and the rights enshrined
therein are therefore duly protected. The Respondent State submits that
the Applicants have not showed how their rights in the said provisions
were infringed upon to the extent that they have been so aggrieved as
to file the instant Application before the Court to seek remedy.
82. The Respondent State avers that, in the course of their trial and
appeals, the Applicants had a lawyer of their own choice and they never
raised the issue of discrimination during those proceedings, rather they
raise the claim of unequal treatment for the very first time before this
Court. The Respondent State argues that the Applicants therefore
enjoyed the right to defend themselves and to file their first and second
appeals and they were not subjected to any wrong procedure in that
regard. The Respondent State reiterates its position that the Applicants
could have had the chance to apply for review of their conviction, if only
they sought an extension of the time to file the application for review.
83. The Respondent State further contends that Article 107A(2)(c)
and (e) of its Constitution require national courts to deliver justice in
civil and criminal matters in accordance with the laws, which its Courts
have duly done. According to the Respondent State, the Applicants
have not shown how the Respondent State has breached these
provisions of the Constitution.
84. The Court notes from the outset that it does not have jurisdiction
to interpret or apply the domestic legislation of the Respondent State,
rather it has jurisdiction only to interpret and apply the Charter and
other human rights instruments ratified by the Respondent State.
538 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
VIII. Reparations
IX. Costs
96. In its submissions, the Respondent State prays the Court “to
dismiss the Application with Costs”.
97. The Applicants did not make any submissions concerning costs.
98. The Court notes that Rule 30 of the Rules provides that “unless
otherwise decided by the Court, each party shall bear its own costs”.
99. The Court holds that in the instant Application, there is no
reason for it to depart from the provisions of Rule 30 of the Rules and,
consequently, rules that each Party shall bear its own costs.
X. Operative part
On jurisdiction:
i. Dismisses the objection to the jurisdiction of the Court;
ii. Declares that it has jurisdiction.
By a majority of nine (9) for, and one (1) against, Justice Blaise
TCHIKAYA Dissenting
On admissibility:
iii. Dismisses the objection to the admissibility of the Application;
iv. Declares the Application is admissible;
Unanimously:
On the merits:
v. Finds that the Respondent State has not violated the Applicants’
right to a fair trial in Article 7 of the Charter
vi. Finds that the Respondent State has not violated the Applicants’
right to equality before the law and equal protection of the law provided
for in Article 3 of the Charter
On reparations:
vii. Consequently, does not grant all requests for reliefs sought by
the Applicants.
On costs:
viii. Decides that each Party shall bear its own costs.
_____________________________
_____________________________
14. Having not been able to agree with my colleagues in the decision
Werema Wangoko Werema and Waisiri Wangoko Werema v United
Republic of Tanzania, I hereby explain why I hold a different view. My
idea is that this case should have been dismissed as inadmissible by
the Court sitting in Tunis. The matter has been brought too late before
this Court.
15. In the instant case, the Applicants are serving 30 years prison
sentence at Butimba Central Prison in Mwanza, Tanzania, following
their conviction for armed robbery. They petitioned the African Court on
2 October 2015. The petition came after the Tanzanian courts (the High
Court and the Court of Appeal) upheld their conviction by Judgments
of 9 October 2002 and 1 March 2006.1 The Application was filed before
the African Court in 2015, that is, nine years after the last decisions of
the domestic courts. This Application should have been rejected by this
honourable Court because of the time - too long - elapsing between
2006 and 2015.
16. Procedural incidents seem to have been debated in the case,
but this could not convince. The context of the case, indeed, shows
that no legally valid element intervened to breach the nine years period
preceding the Application before the African Court. The Court should
have proffered as reason for rejecting the Applicant’s case the general
principle of reasonable time2.
17. It will therefore be shown that this appeal is manifestly out of
time (I). Besides, the imperativeness of reasonable time will be raised
as it renders legally incomprehensible the decision of the Court in this
case. The appeal of Messers Werema against Tanzania should be
deemed inadmissible (II).
18. The mere fact that an appeal is out of time obliges the judge to
dismiss it, whatever the cause. This is somehow a counterpart to the
obligation on the part of States to organize their judicial system in a
way that ensures that their courts can guarantee for everyone the right
to obtain a final decision on disputes within a reasonable time.
19. As has been stated, the dates, which are not contested by the
Applicants, indicate clear nine years between the Tanzanian domestic
judges and the date on which this Court was seized (2006-2015).
Two elements, which are fairly broadly recognized in the Court’s
jurisprudence could have interrupted and reactivated these time
frames; they are the present application for review in this case (A) and
the incident resulting from a letter from the Tanzania Human Rights
Commission(B). The inadmissibility of the application for review as
submitted confers no new right in as much as the appeal was submitted
out of time. The issue is therefore no longer that of exhaustion of local
remedies, since the local remedies had been exhausted in this case.
This can therefore be considered as having no legal effect, same as
the issue of the letter from the Tanzania Human Rights Commission
referred to in the case file.
2 IN Fauveau , ‘Duration of international trial and the right to a fair trial’,(2010) Revue
québécoise de droit international, Hors-série, 243.
Werema v Tanzania (merits) (2018) 2 AfCLR 520 545
5 Article 8.1 of the Inter-American Convention on Human Rights provides that: “Every
person has the right to a hearing, with due guarantees and within a reasonable
time, by a competent, independent, and impartial tribunal, previously established
by law…”
6 Article 7 of the African Charter on Human and Peoples’ Rights stipulates that:
“Every individual shall have the right to have his cause heard. This comprises:
… the right to be tried within a reasonable time by an impartial court or tribunal”.
7 ICJ : Application for review of Judgment No. 158 of the United Nations Administrative
Tribunal, Advisory Opinion, 12 July1973, Rec. 1973, p. 209, para92
Werema v Tanzania (merits) (2018) 2 AfCLR 520 547
30. The Court had two options: (1) to dismiss, by way of an order,
after finding that the 19 March 2015 review decision had been dismissed
for having been filed out-of- time; or, (2) having associated the merits
with the procedure, take a relatively simple decision to dismiss.
31. Our jurisprudence is precise. Applicants are not required to
exhaust extraordinary remedies. The Court had noted that in the
Tanzania judicial system, the procedure for filing an application for
review before the Court of Appeal is an extraordinary remedy which the
Applicants are not required to exhaust before bringing a case before
it.11 When they exercise this remedy to activate a deadline, the balance
of rights and legal certainty must be recognized in order to recognize
the procedural and substantive conditions that must be respected. The
Werema review application did not meet these conditions.
32. The duty of promptness attached to human rights litigations has
been observed by the Tanzania judicial authorities. The deficiencies
were not held against them until the late application submitted for
review. In Wong Ho Wing v Peru,12 the Inter-American Court analyzed
compliance with the right to judicial protection and procedural
safeguards. In that case, the Inter-American Court sets forth four
10 Among the three criteria identified for assessing reasonable time, complexity of the
case, behavior of the Parties and the attitude of the courts, are recognized.
11 Matter of Mohamed Abubakari, 3/6/2016, paras 66 to 68.
12 IACHR Matter of Wong Ho Wing v Peru, Preliminary Objection, Merits, Reparation
and Costs 30/6/2015.
Werema v Tanzania (merits) (2018) 2 AfCLR 520 549
I. The Parties
B. Alleged violations
are:
“i. This Hon. Court on Human and People’s (sic) Rights
to declare the respondent (sic) administrative omission
unconstitutional.
ii. Declaratory order to enable the Applicant to be immediately
(with time limit) supplied with copies of proceeding(sic)
and Judgment (sic), and if the opposes (fail to supply),
order the immediate release of the Applicant from prison.
iii. Costs to follow the event, and
iv. Any other order(s)/relief(s) that would suit the current and
future interest of justice in the circumstances of the case.
v. That, this Hon. Court be pleased to grant the Applicants(sic)
prayer to be facilitated with free legal representation or
legal assistance as governed by Rule 31 of the Rules of
the court and Article 10(2) of the protocol on the court.”
25. In the Reply to the Respondent State’s Response, the Applicant
also prays the Court to declare:
“That: Since the respondent state (The United Republic of Tanzania)
has violated the Applicant’s rights provide (sic) under Article 2, 3(1)
and (2) and 7(1)(a) of the African Charter on Human and Peoples’
Right be pleased to grant and declare orders of merits expressed
in this (sic) grounds.
That: the application declared has merit and be granted with costs
following the event.”
V. Jurisdiction
VI. Admissibility
34. 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”.
35. Rule 40 of the Rules which in substance restates Article 56 of the
Charter sets outs the requirements for the admissibility of applications
as follows:
37. The Respondent State contends that the Application does not
meet the admissibility conditions stipulated under Articles 56(5) of
the Charter, Article 6 of the Protocol and Rules 40(5) of the Rules on
exhaustion of local remedies.
38. The Respondent State argues that the Applicant has not made
use of the local remedy provided for under the Constitution of the
United Republic of Tanzania. In this regard, the Respondent State
submits that its Basic Rights and Duties Enforcement Act, which was
enacted for the enforcement of the rights and duties provided for under
Part III of its Constitution, provides for a procedure for enforcement of
constitutional rights such as those the Applicant alleges were violated.
The Respondent State avers that the Applicant however failed to
pursue this remedy before seizing the Court.
39. The Applicant states that he has been unsuccessful in his
attempts to ensure that his basic rights as provided for under Articles
12 to 29, under Part III of the Constitution of the United Republic of
Tanzania are respected, because of the unaffordable costs of filing
Makungu v Tanzania (merits) (2018) 2 AfCLR 550 557
Applicant with the records and judgments to facilitate the filing of his
appeals but the instruction in the said obiter dictum was not followed.
44. Consequently, despite the Applicant having filed the notices
of appeal indicating his intention to appeal, he could not pursue his
appeals for lack of the certified true copies of the records of proceedings
and judgments. In this regard, the Court recalls its position that, for
remedies to be considered available, it is not enough that they should
be established in the domestic system but also that individuals should
be able to use them without any hindrance.3
45. Accordingly, in the instant case, the Court concludes that the
Applicant was impeded from pursuing the local remedies as a result
of the Respondent State’s failure to provide him with the certified true
copies of the records of proceedings and judgments.
46. With regard to the Respondent State’s contention that the
Applicant could have filed a constitutional petition regarding the
violation of his rights, the Court has already 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.4
Notwithstanding this, the Applicant filed a petition under the procedure
provided in the Respondent State’s Constitution for the enforcement of
fundamental rights, seeking to be allowed to file his appeal without the
records of proceedings and the judgments but this was dismissed for
lack of merit.
47. The Court thus finds that though local remedies were available,
the Applicant, was unable to utilise them due to the Respondent State’s
omission and failure to provide him with the necessary documents.
48. The Court therefore dismisses the Respondent State’s objection
to the admissibility of the Application for lack of exhaustion of local
remedies.
49. The Court notes that following its finding that local remedies
were not available to the Applicant to exhaust, the issue of compliance
with Article 56(6) of the Charter as restated in Rule 40(6) of the Rules
3 Norbert Zongo v Burkina Faso Judgment, op cit, para 68; Application No.
001/2014. Judgment of 18/11/2016, Ac t ion Pour L a P r o t e c t i o n D e s D r o i t s
De L ’Homme v Cot e d’I v oir e, paras 94 - 106.
4 Alex Thomas v Tanzania Judgment, op cit, paras 60 - 62; Application No.007/2013.
Judgment of 03/06/2016, Mohamed Abubakari v United Republic of Tanzania
(hereinafter referred to as “Mohamed Abubakari v Tanzania Judgment”) paras 66 -
70; Application No.011/2015. Judgment of 28/09/2017, Christopher Jonas v United
Republic of Tanzania, para 44.
Makungu v Tanzania (merits) (2018) 2 AfCLR 550 559
VII. Merits
53. The Applicant alleges the violation of the right to appeal, the
right to equality before the law and equal protection of the law and the
right to non-discrimination, provided for under Articles 7(1)(a), 3(1) and
3(2) and 2 of the Charter, respectively.
54. The Applicant claims that his right to have his cause heard,
including the right to appeal, was violated when the Respondent
State failed to supply him with certified true copies of the records of
proceedings and judgments of the two cases in which he was convicted
by the District Court of Bunda. The Applicant alleges that it is due to
this failure that for more than twenty (20) years, he has been unable
to file appeals against the decisions of the District Court of Bunda.
The Applicant maintains that this failure is a violation of his right under
Article 7(1)(a) of the Charter.
55. The Respondent State refutes this allegation. It maintains that
the Applicant has the option of instituting a constitutional petition for the
enforcement of his basic rights and the remedies sought can be issued
by the High Court of Tanzania.
56. The Court observes that the right to appeal is a fundamental
element of the right to a fair trial protected under Article 7(1)(a) of the
Charter, which provides that:
“1. Every individual shall have the right to have his cause heard. This
comprises:
be treated equally before courts and tribunals. The Applicant has made
a general claim that the denial of the opportunity to file an appeal at
either the High Court or the Court of Appeal due to the Respondent
State’s failure to provide him with the certified true copies of the
records of proceedings and judgments of the District Court of Bunda
has resulted in a violation of this right.
70. The Court reiterates that the Applicant bears the burden of
proving this claim,5 but he has failed to show how his right to equality
before the law and equal protection of the law has been violated. The
Court has stated that general claims are not enough to establish that
the Respondent State has violated a right.6
71. The Court therefore finds that the Respondent State has not
violated the Applicant’s right to equality before the law and equal
protection of the law provided under Article 3(1) and (2) of the Charter.
VIII. Reparations
Respondent State fails to provide him with the certified true copies of
the record of proceedings and judgments, the Court has established
that such a measure could be directly ordered by the Court only in
exceptional and compelling circumstances.9 The Court has stated that
examples of such compelling circumstances include “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”.10
85. In the instant case, the Court has found at paragraph 65 of this
judgment that the Respondent State has violated the Applicant’s right
to appeal under Article 7(1)(a) of the Charter by not providing him the
certified true copies of the records of proceedings and judgments in
the two Criminal Cases. The Court notes that this has resulted in the
Applicant having served twenty (20) years in prison, a period which
represents two-thirds of the total prison term of thirty (30) years
following his convictions, without having exercised his right to appeal.
86. The Court considers that these circumstances have resulted in a
miscarriage of justice and are compelling enough to warrant it to grant
the Applicant’s prayer to be released as being the most proportionate
measure to restore the Applicant.
IX. Costs
X. Operative part
The Court,
Unanimously:
On jurisdiction
i. Declares that the Court has jurisdiction.
On admissibility
ii. Dismisses the objection on the admissibility of the Application;
iii. Declares that the Application is admissible.
On merits
iv. Finds that the Respondent State has not violated Article 2 of the
Charter as regards the right to non-discrimination;
v. Finds that the Respondent State has not violated Article 3(1)
and 3(2) of the Charter as regards to the right to equality before the law
and equal protection of the law;
vi. Finds that the Respondent State violated Article 7(1)(a) of the
Charter as regards the failure to provide the Applicant with the certified
true copies of the records of proceedings and judgments in Criminal
Case No. 244 of 1995 and Criminal Case No. 278 of 1995 heard at
the District Court of Bunda, to facilitate the Applicant file the appeals
therefrom and therefore orders the Respondent State to provide them
to the Applicant;
On reparations
vii. Orders the Respondent State to release the Applicant from
prison within thirty (30) days of this Judgment;
viii. Reserves its decision on the Applicant’s prayer on other forms
of reparation;
ix. Allows the Applicant, in accordance with Rule 63 of its Rules,
to file his written submissions on the other forms of reparation within
sixty (60) days from the date of notification of this Judgment; and the
Respondent State to file its Response thereto within thirty (30) days
from the date of receipt of the Applicants’ written submissions;
x. Orders the Respondent State to submit to the Court a report on
the measures taken in respect of paragraphs (vi) and (vii) above within
sixty (60) days of notification of this Judgment; and
On costs
xi. Reserves its decision on costs.
566 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
3 The violations are: “the right to equality before the law and to equal protection
of the law (Section 13(1) of the Charter); the right to protection of its interests
by courts and public bodies; the right to non-discrimination by persons exercising
state functions (Section 13(3) of the Charter); the right to a fair trial, to lodge an
appeal or to exercise any other remedy against the decision of a court or any other
competent body (Article 13(6)(a)) of the Charter; and also as this led to a failure to
observe National Law, there was a breach of the duty to observe and respect the
Constitution and laws (Article 26(1))...finally, an infringement of the right to appeal
(Article 7(1)(a)).
568 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
probative value of the evidence and they have a wide discretion in this
respect. The Court generally defers to the decision of national courts
as long as this does not give rise to a denial of justice”4. The Court
adopted a concrete approach to its investigation; a public hearing was
required.
7. A litigation is the sum total of litigious material facts5 in so far as
those facts constitute essential elements of the decision. The material
accuracy of such elements is consubstantial with the decision. Here is
a meeting point between domestic human rights law and international
human rights law6. The administration of evidence will always be a legal
as well as a practical issue. Mr Mgosi acknowledged before the Court
that he had filed two notices of appeal without being able to tender
exhibits. Apart from the fact that he does not state before the Court that
his appeal would have succeeded, had it been filed, it is further clear
that the refusal of the State which he alleges according to the Court,
is based only on his claim. He simply alleged that because of the
refusal he could not defend his cause before the court of Appeal. Even
if there had been no lawyer, it is possible to suppose that Mr Mgosi,
just as he was able to file the notices of Appeal, did not continue the
procedure normally, in the belief that because of his heavily sanctioned
offences, he was already condemned. It may also be said that the
different approaches of the Applicant, some of them through defence
organisations, entailed unearthing a dispute that has already been
settled. The judgement states that “the president of the Mwanza District
Court, on which the Bunda District Court is administratively dependent,
wrote to the Applicant on 13 October 2010 to inform him that the record
of proceedings in criminal cases had not yet been returned from the
High Court, where they had been sent to by letter dated 7 November
2003”.7 Similarly, it is reasonable to assume that subsequent events in
which the Applicant “sought the intervention of the Respondent State’s
Commission for Human Rights and Good Governance in his criminal
cases of 1995”8 cannot be used in judicial decisions. The commission’s
9 See ECHR, Gafgen v Germany, 1 June 2010: the Applicant brought an action
before the court alleging a violation of Article 3 ECHR on the ground that the
treatment he was allegedly subjected to during the interrogation of the National
Police concerning the whereabouts of the child he had abducted amounted to
torture. The use of material evidence obtained through his confession, which
incriminated him, should have been excluded by respect for the right to a fair trial.
The court had issued a decision on this evidence, Article 6 ECHR on the right
to a fair trial would have been violated. Also see ECHR, 1 June 2010, Gafgen v
Germany (application No. 22978/05), reports of judgements and decisions 2010-
IV, 327-407.
10 Mohamed Abubakari v United Republic of Tanzania, 3/6 2016.
570 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
to the case at hand lies in the fact that the Mgosi decision sets aside
the necessary and thorough verification of the Applicant’s claims and
allegations concerning his initiative to lodge an appeal. Reasonable
doubt persists
14. A special feature is worth noting. It is tied to the specificity of the
litigation of the Court. This is also present in the Mgosi case. While the
burden of proof did not always rest with the Applicants in human rights
cases, it was desirable for the court to make reasonable use of the
principle. It is right that the person who alleges a wrongful practice or
initiative that causes damage should adduce proof thereof. The adage
is universally known: “actori incumbit probatio, reus in excipiendo
fit actor” (the one who asserts a right must prove it). The material
elements of human rights abuses leading to a suit in court, are often
extremely damaging, and come after lengthy internal proceedings. The
emergence of evidence at international level is necessary as much as
it is complex. The African Human Rights judge, as in Mgosi case, must
face up to this fact.
15. While sharing the position of my colleagues on the decision on
the merits, I nevertheless express this individual opinion to highlight the
insufficiency of unsubstantiated or unproven claims before the Court.
572 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
livingʺ.3
III. Procedure
24. Six (6) Member States of the African Union submitted written
observations, some touching on the jurisdiction of the Court. The
States are:
i. Republic of Uganda;5
ii. Republic of Zambia;6
iii. Federal Republic of Nigeria;7
iv. Republic of Cape Verde;8
v. Burkina Faso;9 and
vi. Republic of Burundi.10
11 One may assume that the Republic of Zambia must have been referring here to the
African Commission on Human and Peoples’ Rights.
578 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
30. In its observations, the Republic of Cape Verde argues that the
Request may, à priori, raise the issue as to SERAP’s legitimacy to
make such a Request before the Court, and submits that:
“… the exposé appended to the Request does effectively indicate that
SERAP is a Nigerian NGO whose aim is to promote transparency and
accountability in the public and private sectors through human rights.
It would appear, then, SERAP is an African organization, and thus
precludes the provisions of Article 4, which stipulates that it must be an
intergovernmental organization.”
32. Burkina Faso and Burundi did not address the question of the
jurisdiction of the Court.
33. The Centre, acting as amicus curiae, and relying on Rule 45(1)
of the Rules of Court, argues that
“the ordinary meaning of the phrase ‘any African organization recognized
by the OAU’, read within the textual context of the Court Protocol as a
whole, and in accordance with the object and purpose of the Court’s
Protocol, supports an interpretation of this phrase that would include
NGOs.
participants during the drafting of the Protocol”,12 and that the use of
the word “any” in the phrase “any African Organization” in Article 4(1)
of the Protocol also indicates an intention to create wider access to the
Court.
35. According to the Centre, the Court has jurisdiction to provide
advisory opinions on the request of NGOs, such as SERAP, within the
meaning of Article 4, and
“this is because SERAP meets all the 3 requirements of the third category
of entities that may request for advisory opinion from the Court, that is,
‘any African organization recognized by the OAU’. First, by virtue of its
geographical location in Africa, its predominantly African management and
membership, as well as its thematic focus on African issues, it qualifies as
‘African’. Second, that it qualifies as an ‘organization’ within the ordinary
meaning and context of Article 4(1) of the Protocol. Third, SERAP ‘is
recognized by the AU’, having enjoyed observer status with the African
Commission since 2008”.
Rule 72: The Court shall apply, mutatis mutandis, the provisions of Part
IV of these Rules to the extent that it deems them to be appropriate and
acceptable.
A. Personal jurisdiction
43. The Court notes that neither the Constitutive Act of the African
Union nor the Charter nor the Protocol defines the term “African
Organisation.”
44. On the other hand, in the document titled the Criteria for granting
observer status and for a system of accreditation within the AU,14 the
African Union defines an organisation as “a regional integration or
international organisation, including sub-regional, regional or inter-
African organisation that are not recognised as Regional Economic
Communities”. It defines an NGO as “an organisation at the sub-
regional, regional or inter-African levels, as well as those in the Diaspora
as may be defined by the Executive Council”. This definition is restated
in the Protocol on the Statute of the African Court of Justice and
Human Rights which defines African Non-Governmental Organization
as “Non-Governmental Organizations at the sub-regional, regional or
inter-African levels as well as those in the Diaspora as may be defined
by the Executive Council”.15
45. The Court observes from the foregoing paragraph that there is
13 The first three categories of entities entitled to request the Court for advisory
opinion are: A M em ber St at e of t he AU, t he A U i t s e l f a n d A U o r g a n s .
14 EX.CL/195 (VII) Annex V, adopted by the 7th Ordinary Session of the Executive
Council and endorsed by the 5th Ordinary Session of the Assembly held in Sirte,
Libya, on 1-2 and 4-5 July 2005, respectively.
15 Protocol on the Statute of the African Court of Justice and Human Rights, Preamble
paragraph 6.
SERAP (Advisory Opinion) (2017) 2 AfCLR 572 581
Nigeria, but also within the West Africa region and the continent as a
whole, and thus meets the description of an African organization within
the meaning of Article 4 of the Protocol.
52. It has been argued by the Applicant and certain States as well
as the amicus curiae that every NGO with observer status before any
organ of the African Union, particularly the Commission, is automatically
an organization recognized by the African Union within the meaning of
Article 4(1) of the Protocol.
53. In the view of the Court, only African NGOs recognized by
the African Union as an international organization with its own legal
personality are covered by this Article, and may bring a request for
Advisory Opinion before the Court. As a matter of fact, not only does
Article 4(1) of the Protocol make a clear distinction between “the
African Union” on the one hand, and “any organ of the African Union”
on the other, but in fact, the African Union has developed a system of
recognition of NGOs distinct from that of the Commission.
54. Pursuant to Article 4(1) of the Protocol, in determining the entities
empowered to make a request for Advisory Opinion, the Protocol
clearly establishes a distinction between the African Union and any
organ of the African Union and targets the two separately. However,
in describing the African organizations empowered to bring requests
for Advisory Opinion before the Court, the same Protocol in the same
provision makes reference only to organizations recognized by the
African Union and says nothing about those recognized by any organ
of the African Union. Had the authors of the Protocol wanted to also
target African organizations recognized by any organ of the African
Union, they would certainly not have hesitated to make this clear. In
particular, had they wanted to target recognition by the Commission
through the granting of observer status, they would have explicitly
made mention of this as they did in Article 5 in which reference to
observer status before the Commission is indicated expressis verbis,
with respect to seizure of the Court in contentious matters.
55. Given the fact that the Member States of the African Union did
not do so, one is obliged to conclude that they deliberately did not
wish to include African organizations recognized by any organ of the
African Union other than those mandated to engage directly with the
SERAP (Advisory Opinion) (2017) 2 AfCLR 572 583
continental organization.16
56. In the instant case, the term “recognized by the African
Union” cannot be understood as meaning “recognized by the African
Commission on Human and Peoples Rights”.
57. It is established that in the system of the continental organization,
the granting of observer status to an NGO constitutes one of the forms
of recognition of the latter.
58. With respect to the Commission, its Rules of Procedure of August
2010 provides in its Article 68 that observer status may be granted to
an NGO operating in the field of human rights in Africa, enjoying the
rights and discharging the duties as stipulated in a separate resolution.
In effect, Resolution No. 33 on the Review of the Criteria for Granting
and Enjoying Observer Status to Human Rights NGOs before the
Commission adopted at its 25th Ordinary Session held from 26 April
to 5 May 1999, spells out in its Annex, the criteria for granting such
status, the procedure to be followed before the Commission and the
rights and duties of the NGOs granted the status. It naturally specifies
that it is the Commission which, as the case may be, grants, suspends
or withdraws observer status from NGOs.
59. Furthermore, in Rules 32(3)(e) and 63(1), of its Rules of
Procedure, the Commission itself makes a distinction between NGOs
with observer status before it on the one hand, and the organizations
recognized by the African Union, on the other, as regards the possibility
for them to propose or add items for inclusion on the agenda of Ordinary
Sessions of the Commission.
60. As regards the African Union per se, it has, separately, as an
international organization also itself determined not only the criteria for
granting observer status to NGOs but also the procedure to be followed
and the competent organ in this regard. By its decision EX.CL 195
(VII), Annex V of 1 to 2 July 2005, the Executive Council of the African
Union adopted the “Criteria for Granting Observer Status and for a
System of Accreditation within the African Union”, and this document
was endorsed by the 5th Ordinary Session of the Assembly of Heads
of State and Government of the African Union in July 2005.
61. On the granting of observer status to NGOs, the document
spells out the applicable principles, the procedure for introducing the
request as well as the rights and duties emanating from the status
for the beneficiaries. It follows from the above, that a request for
16 This interpretation of the term “recognized by the African Union” as per Article 4(1)
of the Protocol is founded on Article 31(1) of the Vienna Convention of 1969 on
the Law of Treaties which states that “A treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to the terms of the treaty in their
context and in the light of its object and purpose”.
584 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
_____________________________
1 “At the request of a Member State of the OAU, the OAU, any of its organs, or any
African organization recognized by the OAU, the Court may provide an opinion
on any legal matter relating to the Charter or any other relevant human rights
instruments, provided that the subject matter of the opinion is not related to a
matter being examined by the Commission”
586 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
personae.
8. In my view, the Court should have concluded its Opinion by
reaffirming what it had developed in the reasons, namely that:
i. SERAP is an African organization within the meaning of Article
4(1) of the Protocol
ii. SERAP is not recognized by AU
iii. The Court cannot therefore answer the second question posed
by SERAP as to whether extreme, systemic and widespread
poverty is a violation of certain provisions of the African Charter,
in particular, Article 2 which prohibits discrimination based on
“any other status,” in the absence of the Applicant’s capacity to
seek an advisory Opinion.
9. This position is firmly grounded in the jurisprudence of the
Permanent Court of International Justice (PCIJ) and in that of its
heiress, the International Court of Justice (ICJ).
10. With regard to PCIJ, the august Court had to reject a request
on one occasion. The Opinion concerned is that of 23 July 1923 in the
matter of the Status of Eastern Carelia.2 In that Opinion, the Court does
not declare that it has no jurisdiction. It explains that its discretionary
refusal to give the requested Advisory Opinion was motivated by the
following factors:
1. the fact that the question raised in the request for an Advisory
Opinion related to a dispute between two States (Finland and
Russia);
2. the fact that answering the question was tantamount to settling
that dispute;
3. the fact that one of the States Parties (Russia) to the dispute in
respect of which an Advisory Opinion was sought, was neither a
party to the Statute of the PCIJ nor, at that time, a member of the
League of Nations, and had refused to give his consent;
4. the fact that the League of Nations did not have jurisdiction to
deal with a dispute involving non-member States which refused
its intervention on the grounds of the fundamental principle
that no State should be obliged to submit its disputes with
other States, either for mediation or arbitration, or for any other
method of peaceful settlement, without its consent;
5. the fact that, following Russia’s refusal, the Court could not
establish the facts on equal terms between the Parties, and was
therefore faced with the concrete lack of “material information
necessary to enable it to pass judgment on the question of fact”
raised in the request for Advisory Opinion.
11. The ICJ, for its part, has constantly held that “in principle, a
2 PCIJ, Advisory Opinion, Status of Eastern Carelia, 23 July 1923, Serie B No. 5
SERAP (Advisory Opinion) (2017) 2 AfCLR 572 587
request for an Opinion must not be refused”3 and that only compelling
reasons could lead the Court to such a refusal of a request for an
Advisory Opinion “.4 The compelling reasons relied on by the Court
include the non-juridical5 nature of the questions, matters which
concern cases essentially within the ambit of national jurisdiction,6
or indeed questions which should lead to a “final determination of a
dispute”,7 etc.
12. Like PCIJ, the ICJ refused on only one occasion to respond
to a request for an Advisory Opinion. That was the Opinion on the
request by the World Health Organization (WHO) on the Legality of
the use of nuclear weapons in armed conflict.8 In that request, WHO
prayed the Court to rule on the following question: “given the effects of
nuclear weapons on health and the environment, would their use by a
State in the course of a war or other conflict constitute a breach of its
obligations under international law, including the WHO Constitution?.”
Referring to Article 2 of the Constitution of WHO9 which lists the 22
functions conferred on the Organization, the Court notes that “none of
these points expressly concerns the legality of any activity dangerous
to health; and none of the functions of WHO is predicated on the
legality of the situations which require it to act “(paragraph 20). Later
on, the Court adds, in relation to Article 2 of the Constitution of WHO
concerning the Organization’s means of achieving its aims, that “ the
provisions of Article 2 may be read as empowering the organization
to address the health effects of the use of nuclear weapons or any
other hazardous activity and to take preventive measures to protect
the health of populations in the event such weapons are used or such
activity is carried out (paragraph 21). However, the Court notes that
“the question posed in the present case, relates not to the effects of the
use of nuclear weapons on health, but to the legality of the use of such
1 Protocol to the African Charter on Human and People’s Rights on the Establishment
of an African Court on Human and People’s Rights.
2 Request for Advisory Opinion by Advocate Marcel Ceccaldi on behalf of the Great
Socialist People’s Libyan Jamahiriya, Judgement of 30 March 2012.
3 Request for Advisory Opinion by The Socio-Economic Rights & Accountability
Project (SERAP), “Order” of 15 March 2013.
4 Request No 001/2014 - Coalition on the International Criminal Court Ltd/
gte(ciccn),Legal Defence & Assistance Project Ltd/gte (LEDAP), Civil Resource
Development & Documentation Center (Cirddoc) and Women Advocates
Documentation Center Ltd/gte(WARDC), “Order” of 05 June 2015.
5 Request No 002/2012 - The Pan African Lawyers’ Union (PALU) and Southern
African Litigation Centre (SALC), “Order” of 15 March 2013.
590 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
of the Orders for Provisional Measures that the Court has issued.14
11. The Court has extensively used the expression “Decision” to
declare that it lacked jurisdiction in contentious matters.15
III. Analysis
12. In the instant case, the Court found that it lacks jurisdiction
ratione personae, and yet it designated the act by which it arrived at that
conclusion an “Advisory Opinion”, which looks, at least, contradictory.
13. For me, the Court either has jurisdiction hence moves on to issue
the Advisory Opinion, or it lacks jurisdiction, in which case it issues no
Advisory Opinion.
14. My fellow judges might have been influenced by the fact that, in
its Request, SERAP asks the Court to take a position with regard to its
locus standi to seize the Court in terms of Article 4(1) of the Protocol.
Meanwhile, this is an issue that would, in any case, be examined by
the Court, since, according to Article 39(1) of the Rules, applicable by
virtue of Article 72 of the Rules, “[The] Court shall conduct preliminary
examination of its jurisdiction and the admissibility of the application ...”
(my emphasis), before it can adjudicate on any case brought before it.
15. In my view, Article 39(1) of the Rules requires the Court to
conduct preliminary examination in order to ascertain its jurisdiction
and the admissibility of the application, a proceeding that under no
circumstance can be termed, per se, an “Advisory Opinion”, even if, in
instances where the Court has jurisdiction, the decision on jurisdiction
and admissibility becomes part of the Advisory Opinion issued, as it
was the case in the Request for Advisory Opinion No. 002/2013.
IV. My position
the Court should use the term “Decision” to name the act by which it
conducts preliminary examination of its jurisdiction and the admissibility
of request for Advisory Opinion, in light of Article 39 of the Rules of the
Court. Indeed, the recurring practice of using the term “Decision” when
it declares its lack of jurisdiction to adjudicate on contentious matters,
is perfectly applicable in matters for advisory opinion. This is because
Article 72 of the Rules requires that the Court applies mutatis mutandis
the procedure for contentious matters to procedure relating advisory
opinions.
21. The use of the term “Decision” would avoid giving the wrong
impression that the Court issues an Advisory Opinion, even when
it has issued none. On the other hand, this Court would benefit by
remaining consistent in using appropriate terms for its acts, and this
would ensure that it is in line with its well-established jurisprudence
wherein it uses the term “Decision” when it determines jurisdiction on
contentious matters.
594 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
I. The Applicant
view, aims at achieving greater “... efficiency in its actions and ensure
better information of the victims...”
4. The Request for Advisory Opinion is based on three key
questions:
5. Firstly, the Applicant requests the Court for clarification as to
whether, in light of Article 13 of the African Charter on Human and
Peoples’ Rights (herein-after referred to as “the Charter”); Article
23 of the African Charter on Democracy, Elections and Governance
(hereinafter referred to as “the African Charter on Democracy); Article
4 of the Constitutive Act of the African Union; and Article 25 of the
International Covenant on Civil and Political Rights (hereinafter referred
to as “the ICCPR”):
a. It is possible to institute legal action before the Commission
or the Court against a State following an unconstitutional
change of government, especially since no national court
has the jurisdiction to examine such an action.
b. If so, which entity would be entitled to initiate such action;
the citizens of the country concerned, or any African Non-
Governmental human rights Organisation recognized by
the African Union and within what time limit?
c. If, following an unconstitutional change of government,
presidential elections are organized, will this new factor
obviate any action against the State under accusation for
the aforesaid change of government?
6. Secondly, the Applicant prays the Court to clarify:
a. The meaning of the expression “serious or massive
violations of human and peoples’ rights”, referred to in
Article 58(1) of the Charter;
b. Whether the foregoing provision involves only the direct
responsibility of the State or whether it also applies to
the State’s indirect responsibility, where the violations in
question stem from acts committed by pro-government
militia or from the inaction of the State; and
c. What criteria should apply in determining the emergency
situation referred to in Article 58(3) of the Charter.
7. Thirdly, the Applicant prays the Court to provide clarification on
the question as to whether the fairness and impartiality of the justice
system as contemplated by Article 7 of the Charter, Article 14 of the
ICCPR and the Commission Principles and Guidelines on the Right to a
Fair Trial and Legal Assistance in Africa (2003) are compatible with the
expression of political support to government by the judiciary or by its
senior officers, particularly when such support is expressed collectively
(through demonstration) or in the discharge of the judicial function
596 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
20. At its 41st Ordinary Session, held from 16 May to 3 June 2016,
the Court decided to close the procedure for the filing of written
submissions.
27. Article 4(1) of the Protocol provides that “At the request of a
Member State of the [African Union], the AU], any of its organs, or any
African organization recognised by the [AU], the Court may provide an
opinion on any legal matter relating to the Charter or any other relevant
human rights instruments…”
598 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
28. The fact that the NGO which filed the request does not fall
within the first three categories within the meaning of Article 4(1) of the
Protocol is not contested.
29. The first question which arises is whether the NGO is of the
fourth category, that is, whether it is an “African organisation” within the
meaning of Article 4(1) of the Protocol.
30. On this issue, the Court has, in its Advisory Opinion Socio-
Economic Rights and Accountability Project (SERAP) established
that the term “organisation” used in Article 4(1) of the Protocol
covers both non-governmental organisations and inter-governmental
organisations.1
31. As regards the appellation “African”, the Court has established
that an organisation may be considered as “African” if it is registered
in an African country and has branches at the sub-regional, regional
or continental levels, and if it carries out activities beyond the country
where it is registered.2
32. The Court notes that the Applicant is registered in Senegal and
with its Observer Status before the Commission, is entitled to carry
out its activities beyond the country in which it is registered. The Court
concludes that the Applicant is an “African Organisation” in terms of
Article 4(1) of the Protocol.
33. The second question that follows is whether the Applicant is
recognised by the African Union.
34. The Court notes that the Applicant has relied on its Observer
Status before the Commission to contend that it is recognised by the
African Union.
35. In this respect, the Court has, in the afore-mentioned SERAP
Advisory Opinion, indicated that Observer Status before any African
Union organ does not amount to recognition by the latter. It has thus
established that only the NGOs recognised by the African Union itself
are covered by Article 4(1) of the Protocol.3
36. The Court has further established that recognition of NGOs by
the African Union is through the granting of Observer Status or the
signing of a Memorandum of Understanding and Cooperation between
the African Union and those NGOs.4
37. In the instant case, the Applicant has not claimed and has not
provided proof as to its Observer Status before the African Union or
_____________________________
2 “At the request of a Member State of the OAU, the OAU, any of its organs or any
African organization recognized by the OAU, the Court may provide an Opinion
on any legal matter relating to the Charter or any other relevant human rights
instrument, provided that the subject matter of the Opinion is not related to a matter
being examined by the Commission”.
3 Clearly on condition that the State has subscribed to the jurisdiction clause set forth
in Article 34 (6) of the Protocol.
RADDOH (Advisory Opinion) (2017) 2 AfCLR 594 601
_____________________________
1 Protocol to the African Charter on Human and People’s Rights on the Establishment
of an African Court on Human and People’s Rights.
602 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
2 Request for Advisory Opinion by Advocate Marcel Ceccaldi on behalf of the Great
Socialist People’s Libyan Jamahiriya, Judgement of 30 March 2012.
3 Request for Advisory Opinion by The Socio-Economic Rights & Accountability
Project (SERAP), “Order” of 15 March 2013.
4 Request No 001/2014 - Coalition on the International Criminal Court Ltd/
gte(ciccn),Legal Defence & Assistance Project Ltd/gte (LEDAP), Civil Resource
Development & Documentation Center (Cirddoc) and Women Advocates
Documentation Center Ltd/gte(WARDC), “Order” of 05 June 2015.
5 Request No 002/2012 - The Pan African Lawyers’ Union (PALU) and Southern
African Litigation Centre (SALC), “Order” of 15 March 2013.
6 Request No 001/2015 - Coalition on International Criminal Court LTD/GTE, “Order”
of 29 November 2015.
7 Request No 002/2013 - The African Committee of Experts on the Rights and
Welfare of the Child on the Standing of the African Committee of Experts on the
Rights and Welfare of the Child before the African Court on Human and Peoples’
Rights, “Order” of 05 December 2014.
8 App. No. 019/2015 – Femi Falana v African Commission on Human and Peoples’
Rights, “Order” of 20 November 2015.
RADDOH (Advisory Opinion) (2017) 2 AfCLR 594 603
III. Analysis
12. In the instant case, the Court found that it lacks jurisdiction
ratione personae, and yet it designated the act by which it arrived at that
conclusion an “Advisory Opinion”, which looks, at least, contradictory.
13. For me, the Court either has jurisdiction hence moves on to issue
IV. My position
18 Why not termed formally as such. Only at the end of the provision is “(...) Present
Avis ... (…)” mentioned.
19 Decision of the Third Ordinary Session of 23 July 1923, Dossier F. v V Rôle III.
3, available at http://www.icj-cij.org/pcij/serie_B/B_05/Statut_de_la_Carelie_
orientale_Avis_consultatif.pdf , accessed 24.05.2017.
606 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
I. The Applicants
1 Doc.EX.CL/921(XXVII), EX.CL/Dec.887(XXVII).
608 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
III. Procedure
17. In terms of Rule 72 of the Rules: “The Court shall apply, mutatis
mutandis, the provisions of Part IV of these Rules to the extent that it
deems them to be appropriate and acceptable”.
18. In terms of Rule 39 of the Rules, “The Court shall conduct
preliminary examination of its jurisdiction…”
19. From the provisions of these Rules, the Court must determine
whether it has jurisdiction on the Request before it.
20. In determining whether it has personal jurisdiction in the instant
matter, the Court must satisfy itself that the Centre and the Coalition are
amongst the entities entitled to institute a request for advisory opinion
CHR and Another (Advisory Opinion) (2017) 2 AfCLR 606 609
under Article 4(1) 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”).
A. Applicants’ arguments
21. The Centre and the Coalition recall that Article 4(1) of the
Protocol lists four categories of entities entitled to bring a request for
Advisory Opinion before the Court, namely: (1) Member States, (2) the
African Union; (3) any of its organs, and (4) any African organisation
recognised by the African Union.
22. They maintain that they fall under the fourth category and that the
expression “any African organisation recognized by the African Union”
should be interpreted within its ordinary meaning and in accordance
with the objectives and purposes of the Protocol.
23. According to the Applicants, the term “organisation” defined by
the Oxford English Dictionary as “an organized group of persons with
a specific objective” is sufficiently wide to cover non-governmental
organisations.
24. They assert that, apart from Article 4(1), the term is also used in
other articles of the Protocol such as Article 5(1) in which reference is
made to “non-governmental organisations”; thus showing that the use
of the expression “any African organization” in Article 4(1) is deliberate,
intended to place various types of organisation under the generic term
“organisation”.
25. The Centre and the Coalition further argue that, contrary to Article
5 of the Protocol which concerns the Court’s contentious jurisdiction,
Article 4 (1) does not make a distinction between Governmental and
Non-Governmental Organisations.
26. They therefore conclude that the term “organisation” includes
but is not limited to “inter-governmental organisations”, and that it also
includes African Human Rights NGOs, such as the Centre and the
Coalition.
27. As regards the adjective “African”, the Centre and the Coalition
argue that the Oxford English Dictionary defines it as “that which is
related to Africa”, that according to this ordinary meaning, this term
can also relate to (i) the geographical situation of an organisation
which, according to them, is valid for organisations based in Africa,
(ii) organisations with a predominantly African management structure
even where they are not based in Africa, and lastly, (iii) international
human rights NGOs with essentially African composition and mission.
28. They conclude that an organisation is regarded as “African”
under Article 4(1) of the Protocol when it fulfils any of the criteria listed
in the three aforementioned categories.
610 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
41. The Republic of Côte d’Ivoire submits that under Article 4(1) of
the Protocol, Requests for Advisory Opinion are reserved for Member
States of the Union, its organs and African organisations recognised by
the latter; that contrary to the assertions of the requesting NGOs, the
expression “African organisation recognised by the African Union” used
in Article 4 of the Protocol does not cover both African International
Organisations and non-governmental organisations having Observer
Status before the Commission; that if that were the case, the drafters
of the Protocol would not have taken pains to enumerate in Article 5
thereof, these two entities as entitled to file applications against State
Parties before the Court.
42. The Republic of Côte d’Ivoire contends that, in law, prohibition
from making a distinction where the law does not do so, carries with it
the obligation to make such a distinction where the law so does; that
consequently, in the absence of specific mention thereof in Article 4 of
the Protocol, as was the case in Article 5, NGOs with Observer Status
before the Commission must not be considered as entitled to seize the
Court with Requests for Advisory Opinion.
43. She further contends that the notion “African organisation” as
used in Article 4 of the Protocol concerns African inter-governmental
organisations and not NGOs, and that the organisations concerned
include, notably, Regional Economic Communities, like the Arab
Maghreb Union (AMU), Economic Community of West African States
(ECOWAS), West African Economic and Monetary Union (WAEMU),
Central Africa Economic and Monetary Community (CEMAC), Indian
Ocean Community (IOC) and the East African Community (EAC).
44. The Republic of Côte d’Ivoire also maintains that to offer NGOs
with Observer Status before the Commission, the possibility of seizing
the Court with a request for Advisory Opinion, would enable them
to target States, even those that are yet to make the Declaration
prescribed by Article 34(6) of the Protocol, that the initiatives of the
Centre and the Coalition clearly falls within this logic; that the real
target of their request is, in fact, the African Union which, through the
Executive Council, has recommended the withdrawal of the Coalition
of African Lesbians’ Observer Status before the Commission.
45. The Republic of Côte d’Ivoire therefore requests the Court to rule
that it has no jurisdiction to examine the request for Advisory Opinion
filed by the Centre and the Coalition.
46. Article 4(1) of the Protocol, which lists the four categories of
CHR and Another (Advisory Opinion) (2017) 2 AfCLR 606 613
_____________________________
_____________________________
3 Clearly on condition that the State has subscribed to the jurisdiction clause set forth
in Article 34(6) of the Protocol.
CHR and Another (Advisory Opinion) (2017) 2 AfCLR 606 617
1 Protocol to the African Charter on Human and People’s Rights on the Establishment
of an African Court on Human and People’s Rights.
2 Request for Advisory Opinion by Advocate Marcel Ceccaldi on behalf of the Great
Socialist People’s Libyan Jamahiriya, Judgement of 30 March 2012.
3 Request for Advisory Opinion by The Socio-Economic Rights & Accountability
Project (SERAP), “Order” of 15 March 2013.
4 Request No 001/2014 - Coalition on the International Criminal Court Ltd/
gte(ciccn),Legal Defence & Assistance Project Ltd/gte (LEDAP), Civil Resource
Development & Documentation Center (Cirddoc) and Women Advocates
Documentation Center Ltd/gte(WARDC), “Order” of 05 June 2015.
5 Request No 002/2012 - The Pan African Lawyers’ Union (PALU) and Southern
African Litigation Centre (SALC), “Order” of 15 March 2013.
6 Request No 001/2015 - Coalition on International Criminal Court LTD/GTE, “Order”
of 29 November 2015.
618 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
III. Analysis
12. In the instant case, the Court found that it lacks jurisdiction
ratione personae, and yet it designated the act by which it arrived at that
conclusion an “Advisory Opinion”, which looks, at least, contradictory.
13. For me, the Court either has jurisdiction hence moves on to issue
the Advisory Opinion, or it lacks jurisdiction, in which case it issues no
Advisory Opinion.
14. My fellow judges might have been influenced by the fact that, in
its Request, SERAP asks the Court to take a position with regard to its
locus standi to seize the Court in terms of Article 4(1) of the Protocol.
Meanwhile, this is an issue that would, in any case, be examined by
the Court, since, according to Article 39(1) of the Rules, applicable by
virtue of Article 72 of the Rules, “[The] Court shall conduct preliminary
examination of its jurisdiction and the admissibility of the application ...”
(my emphasis), before it can adjudicate on any case brought before it.
15. In my view, Article 39(1) of the Rules requires the Court to
conduct preliminary examination in order to ascertain its jurisdiction
and the admissibility of the application, a proceeding that under no
circumstance can be termed, per se, an “Advisory Opinion”, even if, in
instances where the Court has jurisdiction, the decision on jurisdiction
and admissibility becomes part of the Advisory Opinion issued, as it
was the case in the Request for Advisory Opinion No. 002/2013.
16. It is, therefore, my understanding that preliminary examination,
as envisaged under Article 39(1) of the Rules, is clearly different from
issuing an Advisory Opinion, even though, sometimes, may form part
of the issued Advisory Opinion.
17. In other words, when the Court, as a result of the preliminary
examination so conducted holds that it has no jurisdiction, by no means
it can still term the act by which it arrives to that conclusion an Advisory
Opinion.
18. In terms of comparative law, when the Inter-American Court
of Human Rights (TIDH) decides not to issue an Advisory Opinion,
it adopts a form of “Resolución”16 in lieu of an “Opinión Consultiva”
(Advisory Opinion). Even when issuing the “Opinión Consultiva”,
it makes a clear separation between the section pertaining to its
jurisdiction (wherein it ascertains whether or not it has jurisdiction vis-
à-vis the request for advisory opinion) from the section pertaining to
the Advisory Opinion itself (wherein it gives its opinion on the issue it
has been seized with, in the event it finds that it has jurisdiction to issue
the Advisory Opinion).17
19. The Permanent Court of International Justice (PCIJ), in the
Request for Advisory Opinion submitted by the Council of the League of
Nations in the case of Russia v Finland, implicitly18 used the expression
“Advisory Opinion”,19 when it found that it could issue the Advisory
Opinion due to Russia’s ad hoc refusal to accept its jurisdiction.
However, this precedent is an incongruous and isolated dating back
a century, and it cannot inform the instant case. In actual fact, this
precedent has never informed any of the approaches adopted by the
Court in its previous decisions on Requests for Advisory Opinion.
IV. My position
Article 72 of the Rules requires that the Court applies mutatis mutandis
the procedure for contentious matters to procedure relating advisory
opinions.
21. The use of the term “Decision” would avoid giving the wrong
impression that the Court issues an Advisory Opinion, even when
it has issued none. On the other hand, this Court would benefit by
remaining consistent in using appropriate terms for its acts, and this
would ensure that it is in line with its well-established jurisprudence
wherein it uses the term “Decision” when it determines jurisdiction on
contentious matters.
622 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
I. The Applicants
11. The Applicants contend that the overall purpose of the Women’s
Rights Protocol and particularly Article 2 thereof require that in addition
to “taking legislative measures”, State parties are obligated to take
measures aimed at promoting awareness of the obligation to register
marriages and to allocate financial and other resources aimed at
facilitating such registration.
12. The Applicants maintain that the word “shall” in Article 6(d) of the
Women’s Rights Protocol is peremptory and denotes a duty requiring
State Parties to guarantee the registration of marriages in order for
them to be legally recognised. The Applicants submit further that there
is nothing in this provision suggesting that, in meeting this obligation,
States Parties should impose penalties or sanctions for non-compliance
with the registration requirements set out in their national laws.
13. The Applicants contend that Article 2 of the Women’s Rights
Protocol requires State Parties to put in place measures aimed at
combatting discrimination, among which are:
a. integrating a gender perspective into their policy and
other decisions; and
b. taking positive and corrective actions in those areas
where discrimination in law continue to exist.
14. The Applicants submit that in order to give effect to the overall
purpose of the Women’s Rights Protocol, the commitment towards
eliminating discrimination in Article 2 and the rights and protections
in marriage established in Articles 6(e) to 6(j) thereof and affirmed in
other regional and international human rights treaties, Article 6(d) must
be interpreted purposively and in a way that rejects the imposition of
unnecessary sanctions for non-compliance by its rights holders and
does not perpetuate indirect discrimination against women.
15. The Applicants argue that non-recognition of marriages that are
not recorded in writing or registered perpetuates discrimination against
women as it results in vulnerability, compromises enjoyment of marital
rights enshrined in Article 6(e) to 6(j) of the Women’s Rights Protocol
and other regional and international instruments. The Applicants submit
further that, this discrimination is particular where non-registered
marriages are automatically and as a matter of law presumed void,
invalid or nullified such that the personal and proprietary consequences
and protections in marriage are denied.
16. The Applicants state that Article 6(d) of the Women’s Rights
Protocol was not intended and should not be interpreted as suggesting
that a failure to register will invalidate a marriage, and that while
national laws must require registration of marriages, non-compliance
with registration requirements should not as a matter of law void, nullify
or invalidate the marriage.
CHR and Others (Advisory Opinion) (2017) 2 AfCHR 622 625
22. The Request dated 7 January 2016 was received at the Registry
of the Court on 8 January 2016 and registered forthwith as Request
No.001/2016.
23. By a letter dated 15 February 2016, the Registry requested
the Commission to advise whether the Request relates to a matter
pending before it. The Commission responded by a letter dated 18
May 2016, indicating that the Request does not relate to any matter
pending before it.
24. By a letter dated 15 March 2016, the Registry sought confirmation
from the Commission, of the Applicants’ Observer Status. By a letter
dated 30 March 2016, the Commission confirmed that they have
Observer Status before the Commission.
25. By a notice dated 13 June 2016, the Request was notified to
African Union Member States, the Commission, the African Union
Commission, the Pan African Parliament, the Economic, Social and
Cultural Council of the African Union, the African Union Commission
on International Law, the Directorate of Women and Gender of the AU
Commission and Women’s Rights Non-Governmental Organisations.
The Court set a ninety (90) day time limit for receipt of observations
from the date of receipt. By a notice dated 6 October 2016, the Court
extended the time for receipt of such observations by sixty (60) days.
This period elapsed on 31 January 2017.
26. One of the entities to whom the request was transmitted
pursuant to Rule 69 of the Rules, L’Association des Femmes Juristes
de Cote’ d’Ivoire filed their Observations on the merits of the request
on 13 September 2016.
CHR and Others (Advisory Opinion) (2017) 2 AfCHR 622 627
27. By a notice dated 12 July 2017, the Applicants and other entities
to whom the Request was transmitted were notified of the close of the
procedure for the filing of written submissions.
28. In accordance with Rule 72 of the Rules, “The Court shall apply,
mutatis mutandis, the provisions of Part IV of these Rules to the extent
that it deems them to be appropriate and acceptable”.
29.
30. In terms of Rule 39(1) of the Rules, “The Court shall conduct
preliminary examination of its jurisdiction”.
31.
32. From the provisions of these Rules, the Court must determine
whether it has jurisdiction on the Request before it.
33. In determining whether it has personal jurisdiction in the instant
matter, the Court must satisfy itself that the Applicants are amongst
the entities entitled to institute a request for advisory opinion under
Article 4(1) 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”).
A. Applicant’s arguments
34. The Applicants state that Article 4(1) of the Protocol as read with
Article 68(1) of the Rules confer a discretionary competence to the
Court to provide an Advisory Opinion at the request of, among others,
any African Organisation recognised by the African Union.
35. The Applicants submit that an interpretation of the clause “any
African organisation recognised by the African Union encompasses
any organisation with Observer Status with the Commission”.
36. The Applicants submit that this interpretation is consistent
with the principles of statutory interpretation that requires courts
to give effect to every word and clause of a statute, to assume that
the construction was intentional and to avoid rendering any statutory
language superfluous.
37. The Applicants also submit that on a reasonable construction
of the overall text of the Protocol, two types of organisations are
envisaged: African Intergovernmental Organisations, as mentioned
in Article 5(1)(e) thereof, and Non-Governmental organisations, as
mentioned in Article 5(3) thereof, which may or may not have been
granted Observer Status with the Commission.
38. The Applicants submit that in their view, the phrase “African
Organisations recognised by the African Union” must be construed
628 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
40. Article 4(1) of the Protocol provides that “At the request of a
Member State of the [African Union], the [AU], any of its organs, or any
African organization recognised by the AU, the Court may provide an
opinion on any legal matter relating to the Charter or any other relevant
human rights instruments…”.
41. The fact that the Applicants do not fall within the first three
categories within the meaning of Article 4(1) of the Protocol is not
contested.
42. The first question which arises, however, is whether they
fall under the fourth category, that is, whether they are “African
organisations recognised by the AU” within the meaning of Article 4(1)
of the Protocol.
43. On this issue, the Court has in the past in the Advisory Opinion
in Socio-Economic Rights and Accountability Project (SERAP)
established that the term “organization” used in Article 4(1) of the
Protocol covers both Non-Governmental Organisations and Inter-
Governmental Organisations.1
44. As regards the appellation “African”, the Court noted in the same
Opinion that an organisation may be considered as “African” if it is
registered in an African country and has branches at the sub-regional,
regional or continental levels and if it carries out activities beyond the
country where it is registered.2
45. The Court notes that the Applicants are registered in South
Africa, Kenya, Nigeria and Zimbabwe, respectively and with their
Observer Status before the Commission, they are entitled to carry out
their activities beyond the countries where they are registered. In view
_____________________________
In conclusion, we wish to reiterate our hope that the African Union will
amend Article 4(1) of the Protocol with a view to opening up possibilities
for referrals to African Court and relaxing the conditions required of
NGOS to bring their request for Advisory Opinion within the ambit of
the Court’s jurisdiction; or, the way of amendment being uncertain, to
broaden its criteria for granting observer status to include NGOs with
similar status before the Banjul Commission.
_____________________________
3 Clearly on condition that the State has subscribed to the jurisdiction clause set forth
in Article 34(6) of the Protocol.
632 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
1 Protocol to the African Charter on Human and People’s Rights on the Establishment
of an African Court on Human and People’s Rights.
2 Request for Advisory Opinion by Advocate Marcel Ceccaldi on behalf of the Great
Socialist People’s Libyan Jamahiriya, Judgement of 30 March 2012.
3 Request for Advisory Opinion by The Socio-Economic Rights & Accountability
Project (SERAP), “Order” of 15 March 2013.
4 Request No 001/2014 - Coalition on the International Criminal Court Ltd/
gte(ciccn),Legal Defence & Assistance Project Ltd/gte (LEDAP), Civil Resource
Development & Documentation Center (Cirddoc) and Women Advocates
Documentation Center Ltd/gte(WARDC), “Order” of 05 June 2015.
5 Request No 002/2012 - The Pan African Lawyers’ Union (PALU) and Southern
African Litigation Centre (SALC), “Order” of 15 March 2013.
CHR and Others (Advisory Opinion) (2017) 2 AfCHR 622 633
of the Orders for Provisional Measures that the Court has issued.14
11. The Court has extensively used the expression “Decision” to
declare that it lacked jurisdiction in contentious matters.15
III. Analysis
12. In the instant case, the Court found that it lacks jurisdiction
ratione personae, and yet it designated the act by which it arrived at that
conclusion an “Advisory Opinion”, which looks, at least, contradictory.
13. For me, the Court either has jurisdiction hence moves on to issue
the Advisory Opinion, or it lacks jurisdiction, in which case it issues no
Advisory Opinion.
14. My fellow judges might have been influenced by the fact that, in
its Request, SERAP asks the Court to take a position with regard to its
locus standi to seize the Court in terms of Article 4(1) of the Protocol.
Meanwhile, this is an issue that would, in any case, be examined by
the Court, since, according to Article 39(1) of the Rules, applicable by
virtue of Article 72 of the Rules, “[The] Court shall conduct preliminary
examination of its jurisdiction and the admissibility of the application ...”
(my emphasis), before it can adjudicate on any case brought before it.
15. In my view, Article 39(1) of the Rules requires the Court to
conduct preliminary examination in order to ascertain its jurisdiction
and the admissibility of the application, a proceeding that under no
circumstance can be termed, per se, an “Advisory Opinion”, even if, in
instances where the Court has jurisdiction, the decision on jurisdiction
and admissibility becomes part of the Advisory Opinion issued, as it
was the case in the Request for Advisory Opinion No. 002/2013.
IV. My position
the Court should use the term “Decision” to name the act by which it
conducts preliminary examination of its jurisdiction and the admissibility
of request for Advisory Opinion, in light of Article 39 of the Rules of the
Court. Indeed, the recurring practice of using the term “Decision” when
it declares its lack of jurisdiction to adjudicate on contentious matters,
is perfectly applicable in matters for advisory opinion. This is because
Article 72 of the Rules requires that the Court applies mutatis mutandis
the procedure for contentious matters to procedure relating advisory
opinions.
21. The use of the term “Decision” would avoid giving the wrong
impression that the Court issues an Advisory Opinion, even when
it has issued none. On the other hand, this Court would benefit by
remaining consistent in using appropriate terms for its acts, and this
would ensure that it is in line with its well-established jurisprudence
wherein it uses the term “Decision” when it determines jurisdiction on
contentious matters.
ASADHO (Advisory Opinion) (2017) 2 AfCLR 637 637
I. The Applicant
11. In accordance with Rule 72 of the Rules, “the Court shall apply,
mutatis mutandis the provisions of Part IV of these Rules to the extent
that it deems them to be appropriate and acceptable”.
12. In terms of Rule 39(1) of the Rules, “the Court shall conduct
preliminary examination of its jurisdiction…”
13. From the provisions of the Rules, the Court must determine
whether it has jurisdiction to examine the Request before it.
ASADHO (Advisory Opinion) (2017) 2 AfCLR 637 639
A. Applicant’s arguments
1 Document developed exclusively for the Applicant with financial support from the
European Union.
2 This refers to the draft law which the Court is requested to determine consistency
thereof with the Charter.
3 Ruashi Mining is a mining company based in the Democratic Republic of Congo
on which the investigation was conducted. Vide page 18 of the Draft Model Law for
Mining in Africa implementation document.
640 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
_____________________________
2 “At the request of a Member State of the OAU, the OAU, any of its organs or any
African organization recognized by the OAU, the Court may provide an Opinion
on any legal matter relating to the Charter or any other relevant human rights
instrument, provided that the subject matter of the Opinion is not related to a matter
being examined by the Commission”.
3 Clearly on condition that the State has subscribed to the jurisdiction clause set forth
in Article 34 (6) of the Protocol.
644 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
Union will amend Article 4(1) of the Protocol with a view to opening up
possibilities for referrals to African Court and relaxing the conditions
required of NGOS to bring their request for Advisory Opinion within
the ambit of the Court’s jurisdiction; or, the way of amendment being
uncertain, to broaden its criteria for granting observer status to include
NGOs with similar status before the Banjul Commission.
_____________________________
1 Protocol to the African Charter on Human and People’s Rights on the Establishment
of an African Court on Human and People’s Rights.
2 Request for Advisory Opinion by Advocate Marcel Ceccaldi on behalf of the Great
Socialist People’s Libyan Jamahiriya, Judgement of 30 March 2012.
3 Request for Advisory Opinion by The Socio-Economic Rights & Accountability
Project (SERAP), “Order” of 15 March 2013.
ASADHO (Advisory Opinion) (2017) 2 AfCLR 637 645
III. Analysis
12. In the instant case, the Court found that it lacks jurisdiction
ratione personae, and yet it designated the act by which it arrived at that
conclusion an “Advisory Opinion”, which looks, at least, contradictory.
13. For me, the Court either has jurisdiction hence moves on to issue
the Advisory Opinion, or it lacks jurisdiction, in which case it issues no
Advisory Opinion.
14. My fellow judges might have been influenced by the fact that, in
its Request, SERAP asks the Court to take a position with regard to its
locus standi to seize the Court in terms of Article 4(1) of the Protocol.
Meanwhile, this is an issue that would, in any case, be examined by
IV. My position
19 Decision of the Third Ordinary Session of 23 July 1923, Dossier F. v V Rôle III.
3, available at http://www.icj-cij.org/pcij/serie_B/B_05/Statut_de_la_Carelie_
orientale_Avis_consultatif.pdf , accessed 24.05.2017.