The African Court on Human and Peoples’ Rights has ordered the United Republic of Tanzania to release two Kenyans: Kennedy Owino Onyachi and Charles John Mwanini Njoka from the Ukonga Central Prison in Dar es Salaam.

The African Court also ordered the Tanzania 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.

It said such measures could include the release of the Applicants and inform the African Court within six months, from the date of this judgment – September 28 of the measures taken.

The African Court unanimously, also dismissed the United Republic of Tanzania’s (Respondent) preliminary objection on the lack of personal and material jurisdiction of the Court and declared that the Court has jurisdiction.

The African Court also dismissed 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 and declared that the application was admissible.

African Court ruled in the matter of: Kennedy Owino Onyachi and Charles John Mwanini Njoka; the Applicant who were represented by

Advocate Donald DEYA, Pan African Lawyers Union (PALU) verse the United Republic of Tanzania.

The Government of Tanzania was represented by: Ms. Sarah MWAIPOPO, Acting Deputy Attorney General and Director of Constitutional Affairs and Human Rights, Attorney General’s Chambers; Ms. Nkasori SARAKIKYA, Assistant Director of Human Rights, Principal State Attorney, Attorney General’s Chambers.

Others are: Mr. Elisha E. SUKA, Foreign Service Officer, Legal Affairs Unit, Ministry of Foreign Affairs and International Cooperation; Mr. Mark MULWAMBO, Principal State Attorney, Attorney General’s Chambers; and Ms. Sylvia MATIKU, Principal State Attorney, Attorney General’s Chambers. APPLICATION NO. 003/2015.

The African Court also declared that the Respondent has not violated Articles 3, 5, 7 (1) (a), 7(1) (b) and 7(2) of the African Charter but finds that the Respondent violated Articles 1, 6 and 7(1), and 7(1) (c) of the Charter.

African Court also ordered that in accordance with Rule 63 of the Rules of Court, the Applicants to file submissions on the request for reparations within 30 days hereof, and the Respondent to reply thereto within 30 days of the receipt of the Applicant’s submissions.

African Court ruling made available to the CDA Consult in Accra revealed that the court however reserves its ruling on the prayers for other forms of reparation and on costs.

The African Court was composed of: Sylvain ORÉ, President; Ben KIOKO, Vice President; Gérard NIYUNGEKO, El Hadji GUISSÈ, Rafâa BEN ACHOUR, Solomy B. BOSSA, and Ángelo V. MATUSSE, Judges; and Robert ENO, Registrar.

After deliberation, delivers the following Judgment:

  1. The Respondent is Tanzania. The Respondent became a State Party to the African Charter on Human and Peoples’ Rights (hereinafter, referred to as “the Charter”) on 18 February 1984, and the Protocol on 7 February 2006; and deposited the declaration accepting the competence of the Court to receive cases from individuals and Non-Governmental Organizations on 29 March 2010.

II. SUBJECT MATTER OF THE APPLICATION

  1. The Application was brought by the Applicants on 7 January 2015. The Application reveals that the Applicants were first arrested in Kenya on 30 November 2002, on suspicion of having committed robbery in Tanzania. They remained in custody until 20 December 2002, when they were arraigned before the Resident Magistrate at the Nairobi Law Courts on charges of armed robbery.
    
  2. Following a request in 2002 for the Applicants’ extradition to Tanzania, the Resident Magistrate at the Nairobi Law Courts ordered on 21 March 2003, that the Applicants be extradited to Tanzania to answer armed robbery charges against them. The Resident Magistrate then granted the Applicants leave to appeal the order within 14 days.
    
  3. On 22 March 2003, before the expiry of the 14 days’ time for appeal against the order, the Applicants were bundled by Kenyan and Tanzanian police straight into waiting Police cars and transported to Tanzania.
    

However, the relatives of the Applicants appealed on their behalf against the decision of the Resident Magistrate, to the High Court of Kenya. According to the Applicants, the Appellate Judge later delivered his ruling on this application on 30 July 2003. The Applicants did not avail the ruling of the appeal to this Court despite being requested to do so.

  1. On arrival at the Namanga border post, the Applicants were received by a contingent of Tanzanian Police and media personnel from the Independent Television Limited (I.T.V) and Tanzania Television (TVT).

The Applicants also allege that they were then immediately taken to the Dar es Salaam Central Police Station on 22 March, 2003, where identification parades were conducted on 25 March, 2003, by which time their images were already published in various local newspapers and television channels. The Applicants aver that this made it easier for witnesses to identify them, as the latter had already seen them in the local media.

  1. On 26 March, 2003, the Applicants were arraigned at the Kisutu Resident Magistrate’s Court in Dar es Salaam and charged with two counts in Criminal Case No. 111 of 2003: conspiracy to commit an offence contrary to Section 384 and crime of armed robbery contrary to Sections 285 and 286 of the Penal Code. On 30 March, 2004, the case number was changed to Criminal Case No. 834 of 2002.
    
  2. On 11 March 2005, the Applicants were tried and acquitted by the Kisitu Magistrate’s Court, but the Tanzanian Police re-arrested them and detained them at the Central Police Station in Dar es Salaam.
    

The Applicants complain that they remained in the Police cells with no food and were denied communication with anyone until 14 March 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.

  1. 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 .
    
  2. 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.
    
  3. 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.
  4. 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.

III. ALLEGED VIOLATIONS

  1. On the basis of the aforementioned, the Applicants make the following allegations:

i) That they were held in custody for 3 weeks by the authorities in the Republic of Kenya, in violation of their basic rights, before being arraigned in Court.

ii) That they were deprived of their right of Appeal as the Kenyan and Tanzanian Police transported them to Tanzania on 22 March 2003 before they appealed to the Kenyan High Court.

iii) That at the time the two Applicants were being extradited to the United Republic of Tanzania, the Republic of Kenya and the United Republic of Tanzania did not have an extradition treaty between them.

iv) That the Kenyan Government, violated all accepted principles of human rights and international law.

v) That the Respondent violated all accepted principles of human rights and international law.

vi) That the Applicants were deprived of their liberty after they were acquitted on 11 March 2005 in Case No. 834/200 at the Kisutu Resident Magistrate’s Court in Dar es Salaam by the authorities of the Respondent. That they were detained at the Central Police Station in Dar es Salaam by the authorities of the Respondent from 11 March 2005 to 15 March 2005 without food and denied communication with anyone.

That the conviction and sentence of thirty (30) years’ imprisonment was unconstitutional and is contrary to Article 7 (2) of the African Charter on Human and Peoples’ Rights.

IV. SUMMARY OF THE PROCEDURE BEFORE THE COURT

  1. The Application was filed on 7 January 2015.
  • On 25 February 2015, the Registry, pursuant to Rule 35(2) and (3) of the Rules of Court (hereinafter, referred to as “the Rules”) transmitted the Application to the Respondent State, the Chairperson of the African Union Commission and to the Executive Council of the Union, as well as to all the other States Parties to the Protocol.

  • The Registry also sent a copy of the Application to the Minister of Foreign Affairs of the Republic of Kenya, pursuant to Rule 35 (4) (b) of the Rules, and invited the latter, should it wish to intervene in the proceedings, to do so within thirty (30) days of receipt.

  • The Respondent filed its response on 31 July 2015.

  • During its 36th Ordinary Session held from 9 to 27 March 2015, the Court instructed the Registry to request the Pan-African Lawyers` Union (PALU) to provide legal assistance to the Applicants. By a letter dated 16 April 2015, the Registry requested PALU to offer legal representation to the Applicants.

  • By a letter dated 30 June 2015, PALU notified the Registrar and the Respondent that PALU would represent the Applicants and by a letter dated 4 August 2015, the Registrar transmitted a copy of the case file to PALU.

  • By letter dated 25 February 2016, PALU filed the Reply to the Response out of time and requested the Court to deem it as properly filed, stating that the delay was caused by various unforeseen and inevitable circumstances.

  • During its 41st Ordinary Session, held from 16 May to 3 June 2016, the Court granted leave to PALU as requested.

  • 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.

  • V. PRAYERS OF THE PARTIES

    1. In their respective submissions, the Parties made the following prayers.

    On behalf of the Applicants,

    The Applicants seek the following orders from the Court:

    1. A declaration that the Respondent State has violated the Applicants` rights guaranteed under the Charter, in particular, articles 1 and 7
      
    2. A declaration that the Applicants` right to a fair trial was violated when their images were shown on television and in newspapers before the identification parade was held.
      
    3. A declaration that the testimony tendered by Prosecution Witness (PW 8) was unlawful as evidence from the identification parade should have been dismissed in its entirety.
      
    4. A declaration that the Respondent State violated Article 7 of the Charter by not providing legal aid at the Court of Appeal.
      
    5. An order that the Respondent State takes immediate steps to remedy the violations throughout the trial especially at the Appeal.
      
    6. A declaration that the extradition process violated international standards of the right to a fair trial by not affording the Applicants the opportunity to appeal the primary Court`s Extradition Order.
      
    7. An order for reparations
      
    8. Any other orders or remedies that this Court may deem fit."
      

    On behalf of the Respondent State,

    The Respondent prays the Court to order as follows, in respect of jurisdiction and admissibility of the Application:

    I) That the Court has no jurisdiction to adjudicate over this Application.

    II) That the Applicants have no locus to file the Application before the Court and hence, should be denied access to the Court as per Articles 5 (3) and 34 (6) of the Protocol.

    III) That the Application be dismissed as it has not met the admissibility requirements stipulated under Rule 40 (5) of the Rules.

    IV) That the Application be dismissed as it has not met the admissibility requirements stipulated under Rule 40 (6) of the Rules.”

    1. With regard to the merits, the Respondent requests the Court to rule that

    “ i) the Government of the United Republic of Tanzania has not violated accepted principles of Human Rights and International law;

    ii) the Government of the United Republic of Tanzania abides to the rule of law during extradition process.

    iii) the Government of the United Republic of Tanzania has not violated article 3 of the Charter.

    iv) the Government of the United Republic of Tanzania has not violated article 6 of the Charter.

    v) the Government of the United Republic of Tanzania has not violated article 7 (1) of the Charter.

    vi) the Government of the United Republic of Tanzania has not violated article 7 (2) of the Charter.

    vii) the Applicants request for Reparations be denied.

    viii) this Application be dismissed in its entirety.

            ix)  the Applicants are denied all reliefs sought.”
    

    VI. JURISDICTION OF THE COURT

    1. Pursuant to Rule 39 (1) of the Rules, the Court “shall conduct preliminary examination of its jurisdiction …”
  • 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.

  • A. Objections to Material Jurisdiction

    i) Respondent’s Submissions

    1. The Respondent objects to the material jurisdiction of the Court averring that neither Article 3 (1) of the Protocol nor Rule 26 (1) (a) of the Rules allows the Court to sit as a court of first instance or as an Appellate Court. The Respondent argues that the instant Application contains allegations that require this Court to sit both as a first instance and an appellate court.
  • The Respondent submits that, the Applicants are raising the following allegations for the first time before this Court and, their determination would require the Court to sit as a court of first instance:

  • i. The allegation that the Tanzanian Government through all its official actions violated all accepted principles of human rights and international law;

    ii. The allegation that the Respondent State violated Article 3 of the Charter;

    iii. The allegation that the Respondent State violated Article 6 of the Charter by re-arresting the Applicants on 11 March 2005, after their acquittal by the trial Magistrate, of charges of armed robbery and conspiracy to commit crimes, and by detaining them incommunicado in a police cell at the Central Police Station in Dar es Salaam for four days without food;

    iv. The allegation that the conviction and sentencing of the Applicants to 30 years imprisonment by the High Court is unconstitutional and contrary to Article 7 (2) of the Charter.

    1. The Respondent also avers that the allegation of the Applicants that the identification parade was flawed with procedural irregularities is a matter requiring the Court to sit as a “supreme appellate court”. The Respondent argues that the Applicants are asking the Court to adjudicate on an issue of evidence, which was already addressed and concluded by the Court of Appeal of Tanzania.
  • Finally, the Respondent challenges the material jurisdiction of the Court contending that the Applicants’ allegation that it “violated all acceptable principles of human rights” is vague and does not disclose any particular article alleged to have been violated.

  • ii) Applicants’ submissions

    1. 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.
  • 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.

  • iii) The Court’s assessment

    1. In order to ascertain its material jurisdiction, the Court will consider three of the preliminary objections raised by the Respondent: the allegation that the conviction and sentence of the Applicants to 30 years’ imprisonment was unconstitutional and contrary to Article 7 (2) of the Charter; the allegation that the identification parade was flawed with procedural irregularities is a matter that requires this Court to sit as a “Supreme Appellate Court”; and the allegation that the Respondent violated ‘all accepted principles of human rights’ “is vague” and does not disclose any particular article alleged to have been violated.
  • The Court notes that Article 3 (1) of the Protocol provides 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 jurisprudence of the Court has, in the judgment of Peter Chacha v The United Republic of Tanzania, established that:

    “As long as the rights allegedly violated fall under the aegis of the Charter or any other human rights instrument ratified by the State concerned, the Court can exercise its jurisdiction over the matter.”

  • The instant Application contains allegations of violations of human rights protected by the Charter and other international human rights instruments ratified by the Respondent, specifically, ICCPR. 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.

  • 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.”

  • 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.

  • 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.” The Court rather applies exclusively “the provisions of the Charter and any other relevant human rights instrument ratified by the State concerned” .

  • 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

    1. The Respondent challenges the Court’s personal jurisdiction stating that the Application contains allegations against a State, the Republic of Kenya, which has not made the declaration accepting the Court’s competence to receive complaints from individuals and NGOs as required by Article 34(6) of the Protocol.

    ii) Applicants’ Submissions

    1. 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.

    iii) The Court’s Assessment

    1. The Court notes that the Application is brought against the Republic of Tanzania, which is a State Party to the Charter and the Protocol, and which deposited the declaration in terms of Article 34(6) of the Protocol on 29 March 2010, accepting the competence of the Court to receive cases from individuals and NGOs filed against the Respondent.
  • Concerning those allegations that implicate the Republic of Kenya, the Court observes that the Republic of Kenya has not made the declaration required under Article 34 (6) of the Protocol allowing individuals to directly file an application before this Court. In this regard, the Court notes that the Registry of the Court has, in accordance with Rule 35 (2) (b) and (4) (b) of its Rules, invited the Republic of Kenya to intervene in the case, if it so wishes, since the Applicants are its nationals, but the Republic of Kenya did not do so and in these circumstances, the Court lacks personal jurisdiction to entertain allegations against Kenya.

  • The Court observes that its lack of competence on some allegations of the Applicants directed to the Republic of Kenya does not prevent it from proceeding with the examination of this Application and address those allegations raised against the Respondent. Articles 5 (3) and 34 (6) of the Protocol empower the Court to examine allegations brought before it in so far as these allegations involve the Respondent, which has deposited the required declaration.

  • In view of the above, the Respondent`s preliminary objection to the competence of the Court on the basis that the present Application contains allegations which implicate the Republic of Kenya is dismissed and the Court finds that it has personal jurisdiction to examine the allegations against the Respondent in the instant Application.

  • C. Other Aspects of Jurisdiction

    1. 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] ;

    (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, i.e. the Respondent State.

    1. In view of the foregoing observations, the Court finds that it has jurisdiction to examine this Application.

    VII. ADMISSIBILITY OF THE APPLICATION

    1. The admissibility requirements before the Court are provided in Articles 50 and 56 of the Charter, Article 6 (2) of the Protocol and Rules 39 and 40 of the Rules. These provisions mandate the Court to conduct a preliminary examination of an Application in accordance with Article 50 and 56 of the Charter. Rule 40 of the Rules provides as follows:

      “Pursuant to the provisions of article 56 of the Charter… applications to the Court shall comply with the following conditions:

  • disclose the identity of the Applicant notwithstanding the latter’s request for anonymity;
    
  • comply with the Constitutive Act of the African Union or the  Charter;
    
  • do not contain any disparaging or insulting language;
    
  • are not based exclusively on news disseminated through the mass media;
    
  • are filed  after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged;
    
  • 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
    
  • 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”.
    
  • 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.

  • Objection based on non-exhaustion of local remedies
    
  • The Respondent argues that this Application fails to meet the requirement of Article 56(5) of the Charter. It contends that all allegations of violation of the rights of the Applicants are being raised and brought to its notice for the very first time in the instant Application, although local avenues of redress existed.

  • In this regard, the Respondent asserts that the Applicants had the possibility of lodging a petition regarding the alleged violations of their constitutional rights before the High Court pursuant to the Basic Rights and Duties Act No.9, Chapter 3, 2002. According to the Respondent, the Applicants should have utilised these available local avenues before approaching the Court. The Respondent adds that the Court is not a Court of first instance, but a Court of last resort.

  • 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.

  • The Court’s Assessment

    1. 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 claims
  • 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. Therefore, the Applicants have exhausted local remedies with respect to such claims.

  • 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. 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.

  • 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.

  • Objection based on the alleged failure to file the Application within a reasonable time 
    
  • i) Respondent’s Submission

    1. The Respondent submits that the Application should be found to be inadmissible on the ground that it was not filed within a reasonable time after exhaustion of local remedies. The Respondent contends that the Applicants received the Court of Appeal’s judgment on 19 December 2005 (sic) and the Respondent deposited the declaration in terms of Article 34 (6) of the Protocol on 29 March 2010. According to the Respondent, reckoned from the date when the Respondent deposited its declaration, it was after four (4) years and two (2) months that the Application was filed before the Court on 7 January 2015.
  • With regard to the second Applicant, the Respondent argues that the decision on his Application for review of the Court of Appeal’s judgment was delivered on 12 June 2013 and as the Respondent had already accepted the individual complainant mechanism under Article 34(6) of the Protocol on 29 March 2010, this date, that is, 12 June 2013, should be the relevant date to calculate the time under Article 56 (6) of the Charter. On this basis, the Respondent submits that three (3) years and two (2) months lapsed when the Application was filed, which according to the Respondent is not a reasonable time.

  • ii) Applicants’ Submission

    1. 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 , 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, and incarcerated persons without the benefit of legal education or assistance, their particular circumstances provide sufficient grounds for this Application to be admissible.

    iii) The Court’s Assessment

    1. 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.
  • 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.” 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.

  • 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 24th of December 2009 and that the Applicants received the decision of the Court of Appeal only on the 2nd of 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.

  • Although the judgment of the Court of Appeal was rendered on 24 November 2009 both Applicants received the copies of the judgment only on 2nd of 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.

  • 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, should be the relevant date to assess reasonableness under Article 56(6). Accordingly, from this date, about seven months had lapsed until the date when the Application was filed before the Court.

  • The key issue for the Court to determine is whether the three years and two months period for the first Applicant and the seven months’ time for the second Applicant are, in view of the circumstances of the case, to be considered as reasonable in terms of Rule 40 (6) of the Rules.

  • With respect to the second Applicant, given that he is lay, incarcerated and indigent person with no legal assistance, the Court holds that seven months period is not unreasonable.

  • Regarding the first Applicant, the Court observes that three years and two months’ time is relatively long to bring an Application to the Court. However, like the second Applicant, he is also lay, incarcerated and indigent person without the benefit of legal education and legal assistance until this Court assigned PALU to provide him with pro bono legal representation services. In view of this, with respect to the second Applicant, too, the Court finds that the time in which the Application was filed is reasonable.

  • The Court thus, finds that the filing of the Application was done within a reasonable time in terms of Article 56 (6) of the Charter as restated in Rule 40(6) and therefore, that the Application meets this criterion.

  • Admissibility requirements that are not in contention between the Parties
    
  • The requirements regarding the identity of Applicants, the language used in the Application, compliance with the Constitutive Act of the African Union, the nature of the evidence and the non bis in idem principle (Rule 40(1), 40(2), 40(3), 40(4), 40(7) of the Rules) are not in contention between the Parties.

  • The Court also notes, for its part, that nothing in the records 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 in this regard have been fully met and concludes that the Application is admissible.

  • VIII. ON THE MERITS

    1. The Applicants` allegations relate to violations of Articles 1, 3, 5, 6 and 7 of the Charter. The Court now makes an assessment of each of these alleged violations, the Respondent’s responses thereto and 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. Allegations of violations of the right to a fair trial under Article 7 of the Charter

    1. In relation to Article 7, of the Charter, the allegations of the Applicants have several prongs, which are treated separately below.

    1/ Allegation regarding illegal extradition

    i) Applicants’ Submissions

    1. 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.

    ii) Respondent’s Submissions

    1. 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.

    iii) The Court’s Assessment

    1. 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.
  • However, the Court recalls its earlier finding that its jurisdiction is only limited to allegations involving the responsibility of the Respondent, as the Republic of Kenya has not made a declaration allowing individuals and NGOs to access this Court and is not party to these proceedings.

  • The Court observes that it is the Republic of Kenya which extradited the Applicants and the Respondent may not be held responsible for the conduct of the Republic of Kenya in the course of the extradition. Therefore, the allegation of the Applicants that they were extradited unlawfully and that their extradition violated their right to appeal under article 7 (1) (a) of the Charter is hereby dismissed.

  • 2/ Alleged Violations relating to the Identification Parade

    i) Applicants’ Submissions

    1. The Applicants allege that the identification parade exercise of 25 March 2003, was carried out after their pictures and descriptions taken by I.T.V and TVT media, the day before at the Namanga border, were in most of the local newspapers and had been aired by different TV channels in Tanzania. The Applicants contend that this made it easier for some witnesses to identify them, and therefore, the identification parade was null, as it was not carried out following standard procedures.

    ii) Respondent’s Submissions

    1. 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.

    iii) The Court’s Assessment

    1. Article 7 (1) of the Charter provides as follows:

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

    1. The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;
      
    2. The right to be presumed innocent until proved guilty by a competent court or tribunal;
      
    3. The right to defence, including the right to be defended by counsel of his choice;
      
    4. The right to be tried within a reasonable time by an impartial court or tribunal”
      
    5. From the submissions of both parties, the main issue for determination is whether the identification parade that led to the conviction of the Applicants was conducted in manner contrary to the Charter or other international human rights standards.
  • From the records available before it, the Court notes that the only evidence on which the Court of Appeal relied to sustain the conviction of the Applicants by the High Court is the testimony given by an eye witness (PW 8) who claimed to have identified the Applicants during the identification parade.

  • The Court also notes that the witnesses who participated in the identification parade have, while providing their testimony, indicated that they did not see the Applicants on TV before the date of the said parade. However, the Applicants further allege that their images were disseminated not only on TV but also through newspapers before the parade, which the Respondent has not directly refuted.

  • It is a matter of common sense that in criminal proceedings, identification parade is not necessary and cannot be carried out if witnesses previously knew or saw a suspect before the identification parade. The Court notes that this is also the practice in the jurisdiction of the Respondent State .

  • In the instant case, the records of both the High Court and the Court of Appeal do not show that this requirement was fulfilled. Although some of the witnesses provided affidavits stating that they had not watched TV before the identification parade, neither of them (including PW 8 whose only testimony was used to sustain conviction) clearly stated that he/she did not see the images of the Applicants before the said parade in local newspapers. This implies that the identification parade was conducted despite the fact that the witnesses may have had a chance to see the Applicants in local newspapers.

  • In this regard, the Respondent has not supplied evidence showing that the domestic courts took measures to verify whether or not the witnesses read newspapers. In light of the probability that witnesses may have seen the Applicants on local TV channels and newspapers, the safeguards which applied in the assessment of the evidence were inadequate. Given that the conviction of the Applicants depended only on evidence from a single witness testimony obtained during this identification parade, there is an additional reason to doubt the context in which they were convicted. In these circumstances, the Court concludes that the procedural irregularities in the identification parade affected the fairness of the Applicants’ trial and conviction.

  • The Court, therefore, holds that there was a violation of the right to a fair trial of the Applicants under Article 7 (1) of the Charter.

  • 3/ The allegation concerning the defense of Alibi

    i) Applicants’ Submission

    1. 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 defense of alibi.
  • 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 defense 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.

  • ii) Respondent’s Submission

    1. The Respondent has not made any submissions on this allegation.

    iii) The Court’s Assessment

    1. The Court notes that an alibi is an important instrument of evidence for one’s defense. The defense 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. In its judgment in Mohamed Abubakari v Tanzania, this Court observed that:

    Source: CDA Consult

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