African Court of Human and Peoples’ Rights
The Applicant, Mr. Alex Thomas (hereinafter the Applicant), a citizen of Tanzania was convicted for his alleged participation in an armed robbery which took place along the Tanzania and Kenyan boarder in December 1996. He was subsequently convicted in absentia on 3 June 1998 by the District Court of Rombo and sentenced to serve a 30 years custodial sentence which is serving at Karanga Central Prison in Moshi, Kilimanjaro, Tanzania since July 1997. He had also failed to attend Court when the defence case opened because he was admitted in hospital suffering from Tuberculosis, proof which he tendered before the Court.
He appealed to the High Court amongst other grounds, on the fact that the trial was plagued by many irregularities and discrepancies. His appeal to the High Court was dismissed, with his attempts to seize the Court of Appeal failing as well. His first appeal was dismissed on a technicality and the second dismissed in its entirety. The Applicant’s appeal to the High Court was dismissed without allowing him to file a rejoinder and two of further appeals he filed to the Court of Appeal were also dismissed.
In all of these instances, the Applicant was defending himself, applying and appealing as a lay, indigent, incarcerated person, without the benefit of the legal advice, assistance or representation.
He then applied for a review of the Court of Appeal decision on 5 June 2009 and until 2 August 2013 when he filed his Application at the African Court his review had not been heard. The Applicant filed this Application before the African Court on Human and Peoples’ Rights (African Court) against the United Republic of Tanzania in August 2013
Before seizing the African Court the Applicant had made appeals to the Justice System of Tanzania for legal aid and for his case to hear but his pleas were not attended to.
In his Case before the African court he alleged that the following rights had been violated:
- He was seeking redress for a violation of his right to a fair trial rights arising from Criminal Case No. 321 of 1996, the Republic v. Joseph s/o Vonifasi and four Others in the District Court of Rombo; Criminal Appeal No. 230 of 1998, Alex Thomas v. the Republic in the High Court of Tanzania at Moshi; and Criminal Appeal No. 230 of 2008, Alex Thomas v. the Republic in the Court of Appeal of Tanzania at Arusha.
That in accordance with Section 181 and 387 of the 1985 Criminal Procedure Act of Tanzania (CPA) the Tanzanian courts lacked jurisdiction to try him as the alleged robbery occurred in Kenya;
- That the Prosecution did not prove the case against him beyond reasonable doubt due to the discrepancies and irregularities between the charge sheet and the trial process. Amongst other things, there were variances between the charge sheet and the prosecution’s evidence, particularly its witnesses’ testimonies during the hearing; ownership, quantity, value and actual description of the stolen property. There were also discrepancies as to the manner the robbery was committed, whether the complainants were attacked with a gun;
- That he was not provided with legal assistance to defend himself effectively;
He was also not given the opportunity to make a rejoinder to the prosecution’s statement during the hearing of his appeal violating his right to be heard;
- There had been undue delay to review the decision of the Court of Appeal of 29 May 2009 to uphold his conviction. He applied to the Court for the review of the decision on 5 June 2009 which was never heard;
In October 2013 the Pan African Lawyers Union (PALU) accepted a request from the African Court to be pro bono legal counsel for the Applicant. PALU represented the Applicant during the public hearing on preliminary objection, admissibility and merits of the matter in December 2014.
At the hearing, Counsel for the Applicant highlighted violations by the Respondent state: the right to a fair trial, right to be heard, right to legal representation demonstrating the manner in which trial proceedings of the in the national court was riddled with irregularities and discrepancies including missed opportunity for the Applicant to defend himself, cross-examine witnesses as well not being afforded presence during his conviction. There were the defects on the charge sheet, unascertained record of ownership, amount and exact nature of the alleged stolen goods. The case before the national court of first instance proceeded in his absence nonetheless, testimony was taken in his absence, he never cross-examined the witnesses and tragically, he was convicted in absentia. All this took place when he was sick and hospitalised for 6 months suffering from TB.
The Respondent State, on jurisdiction requirements, challenged the non-citation by the Applicant, of specific Articles of the violated rights in the original Application filed by the Applicant before the African Court prior his access to counsel appointed on his behalf by the African Court. Relying on two decisions of the African Court itself; Application 1 of 2012-Frank David Omari and Others v. Tanzania and Application 3 of 2012-Peter Joseph Chacha v. Tanzania; the Applicant’s legal representative offered that according to African Court standards non-citation of provisions does not matter as long as prima facie, violation of the provisions of the African Charter have been disclosed or are easily disclosable.
On admissibility requirements, the Respondent State made two major objections; exhaustion of local remedies; and the timely filling of the Application. The Applicant’s legal representative submitted that by virtue of the African Court’s decision in Peter Joseph Chacha’s case, local remedies had been exhausted at the time Alex Thomas’ Appeal had been dismissed by the Court of Appeal which is the highest Court in the land.
On the issue of a delayed filing of the Application, the Applicant’s legal representative highlighted the manner in which the Applicant went out of his way to give the Respondent State an opportunity to resolve the matter. That, less than a month after he sent the last of several reminders for request of a decision of the Court of Appeal concerning his Application for review, the Applicant filed his Application pleading to seize the Honourable African Court.
Counsel for the Applicant then detailed the merits of the Application starting with the denial of the Applicant’s right to be heard and to defend oneself. Annexing a copy of Hospital Discharge Summary, the Applicant’s legal representative submitted that the trial court proceeded to hear the matter involving the Applicant in his absence despite the fact that he was admitted to a hospital for eight months with tuberculosis during the period of the Trial. Reiterating the duration of proceedings of cases involving the Applicant in national courts, the Applicant’s representative stressed the inordinate delay in determining the Applicant’s Application for review before the Court of Appeal.
Another issue of merit submitted by the Applicant was the denial of free legal counsel by the Respondent State in a case that involved a capital offence of which the Applicant was charged with. To compound the omission by Respondent State regarding this complaint, the Applicant’s representative averted to Article 7(1)(c) of the African Charter, Article 14(3)(d) of the International Covenant on Civil and Political Rights, Article 11(1) of the Universal Declaration, among others.
On behalf of the Applicant it was highlighted that the Respondent State’s legal aid legislation, the Legal Aid (Criminal Proceedings) Act places a positive obligation on the State itself to make a determination to grant legal aid, where it is in the interest of justice, among other circumstances. The Respondent State, it was submitted, had acted contrary to what was decided in its own precedent under Criminal Appeal No. 17 of 2002, Moses Muhagama Lawrence v. The Government of Zanzibar; whereby the Court of Appeal held that an accused person, stemming from the purposeful construction of Section 3(10) of the Respondent State’s Legal Aid Act, has a statutory right to be provided with free legal aid and to be informed of that right by the Court.
The Applicant’s prayers to the African Court were for a Declaration that the Respondents violated Articles 1, 3, 5, 6, 7(1) and 9(1) of the African Charter; Orders, compelling the Respondent to release the Applicant from detention, for reparations, for Respondent State to report to the Court every six months on progress of the implementation of the decision and any other order or remedy that the Court may deem fit.
Application No. 003/2012: Peter Joseph Chacha vs. The United Republic of Tanzania
On 30 September 2012, the Applicant filed a case against the Respondent while incarcerated as an indigent litigant, on the grounds that he was unlawfully arrested, detained, charged and imprisoned contrary to Sections 13(1) (a) and (b) and 13 (3) (a), (b) and (c) of the Criminal Procedure Act (CPA), Chapter 20 of the Laws of The United Republic of Tanzania and a violation of his right to property guaranteed under Article 15 (1) and (2) (a) of the Constitution of The United Republic Tanzania. The Applicant was detained at the Arusha Central Prison since 2007 but was acquitted in March 2013.
The Applicant filed a case before the AfCHPR alleging that his fundamental rights guaranteed under the African Charter on Human and Peoples’ Rights were violated. These rights include his right to equal protection under the law (Art. 3); his right not be subjected to cruel, inhuman and degrading treatment and punishment (Art. 5); his right to liberty (Art. 6); his right to a fair trial (Art. 7 (1) ); his right to property (Art. 14); and violation of Art. 26 guaranteeing the independence of the judiciary.
The Respondent raised preliminary objections regarding the jurisdiction of the Court to hear the case and admissibility on the grounds that local remedies were not exhausted by the Applicant. The Respondent also contested the merits of the application concerning violation of the right to personal freedom and to property on the grounds that the Applicant was arrested and charged with armed robbery and murder, and his property was legally searched and seized in accordance with Section 38 of the CPA pending the finalization of the criminal cases against him.
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The case was heard on 2-4 December 2013.
Judgement to be delivered on Friday 28 March 2014
- Application - Application No. 003/2012 Peter Joseph Chacha vs. Tanzania
- Reply to Application - Application No. 003/2012 Peter Joseph Chacha vs. Tanzania
- Rejoinder of Applicant - Application No. 003/2012 Peter Joseph Chacha vs. Tanzania
- Respondent’s Reply to Rejoinder - Application No. 003/2012 Peter Joseph Chacha vs. Tanzania
- Closing Submission of the Applicant - Application No. 003 of 2012 Peter Joseph Chacha vs. Tanzania
Request No. 002/2012: Pan African Lawyers Union(PALU) and Southern African Litigation Centre (SALC)
The Pan African Lawyers Union (PALU) and the Southern Africa Litigation Centre (SALC) lodged a request for an advisory opinion on the legality of the suspension of the Southern African Development Community (SADC) Tribunal on the 23 November 2012.
The Applicants maintained that the decisions taken by SADC Heads of State and Government to suspend the SADC Tribunal were unlawful and were in violation of judicial independence, access to justice, the right to effective remedies and the rule of law, rights guaranteed under Articles 26, 7 and 3 respectively of the African Charter on Human and Peoples’ Rights.
To support this request, the Applicants equally relied on fundamental instruments such as Universal Declaration of Human Rights, UN Basic Principles on the Independence of the Judiciary;
UN 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; the Protocol on SADC Tribunal and the Rules of Procedure; the SADC Treaty; the Treaty on the Establishment of the African Economic Treaty; and the Protocol on Relations between the African Union and the Regional Economic Communities
Request denied as it relates to a matter pending before the African Commission on Human and Peoples’ Rights (Art. 4(1) of the Protocol and Rule 68(3) of the Rules of the Court). (15 March 2013)
- Application for Advisory Opinion - Request No. 002/2012: Pan African Lawyers Union(PALU) and Southern African Litigation Centre (SALC)
- Annexure 1 - AU - PALU Memorandum of Understanding on Cooperation and Collaboration with the AU
- Annexure 2 - Communique of the 49th Ordinary Session of the African Commission on Human and Peoples' Rights
- Annexure 3 - Treaty for the Establishment of the Southern African Development Community
- Annexure 4 - Protocol on Tribunal and Rules of Procedure Thereof
- Annexure 6 B - Report of the World Trade Institute Advisors of 6 March 2011
- Annexure 7 - Communiqué of the 30th Jubilee Summit of SADC Heads of State
Application No. 009 and 011/2011: Tanganyika Law Society (TLS) and Legal and Human Rights Centre (LHRC) and Rev. Christoper R. Mtikila v. The United Republic of Tanzania
The application was filed against the Respondent, alleging that Tanzanian law violated Rev. Mtikila’s right to freedom of association and to participate in public/government affairs by prohibiting independent candidates to contest at presidential, parliamentary and local council elections.
Rev. Mtikila alleged that the Tanzania government violated the democratic principles and the political rights of its citizens by enacting the Eighth Constitutional Amendment of 1992 and the Eleventh Constitutional Amendment Act No 34 of 1994 which prohibit independent candidates from standing for or contesting for the Presidential, Parliamentary and Local Government elections, given that the Constitution provides that a candidate had to be a member of and/or be sponsored by a political party.
Rev Mtikila’s attempts to run for political office were prohibited by the government influence in expelling him from a registered party. Although he successfully registered a political party as required by the Tanzanian Constitution, he felt the violation of his rights and the continuous discrimination amongst Tanzanians ought to stop.
The Applicants alleged that the action of the Respondent amounted to a violation of his rights guaranteed under Articles 2, 10, 13(1) of the African Charter on Human and Peoples’ Rights, Articles 22, 25, 26 of the International Covenant on Civil and Political Rights (ICCPR) and Articles 1, 7, 20 and 21(1) of the Universal Declaration of Human Rights.
The Respondent raised preliminary objections on admissibility on the lack of exhaustion of local remedies, the delay in filling of applications by the Applicant and the Court’s lack of jurisdiction to hear the matter.
Court ruled in favour of the Applicants (14 June 2013). The Court found a violation of the right to participate freely in the government of one’s country since for a Tanzanian individual to participate in Presidential, Parliamentary or Local Government elections in Tanzania, one must belong to a political party. A Hearing on the claim for Reparations shall be heard in the course of 2014.
- Application– Application No. 009 of 2011 Tanganyika Law Society and Legal and Human Rights Centre vs. The United Republic of Tanzania
- Application – Application No. 011 of 2011 Rev. Christopher R. Mtikilia vs. The United Republic of Tanzania
- Order of Joinder – Application No. 009 and 011 2011 Tanganyika Law Society and Legal and Human Rights Centre and Rev. Charles R. Mtikilla vs. The United Republic of Tanzania
- Judgement - Application No. 009 and 011 2011 Tanganyika Law Society and Legal and Human Rights Centre and Rev. Charles R. Mtikilla vs. The United Republic of Tanzania
Application No. 004/2011: African Commission on Human and People's Rights v. The Great Socialist Libyan People's Arab Jamahiriya
PALU was admitted as amicus curiae following the institution of proceedings by the African Commission on Human and Peoples’ Rights against Libya. According to the Applicant, it received complaints against the Respondent alleging that after a series of peaceful demonstrations following the detention of an opposition leader, the Respondent’s security forces engaged in excessive use of heavy weapons and machinery against the population including targeted aerial bombardment and all types of attacks, and that these actions amount to serious violations of the right to life and to the integrity of persons, freedom of expression, demonstration and assembly.
According to the Applicant, these actions amount to serious and widespread violations of the rights enshrined in Articles 1, 2, 4, 5, 9, 11, 12, 13 and 23 of the African Charter and therefore sought adequate measures to be put in place to investigate and prosecute the authors of the alleged violence equitably compensate affected by the alleged violence.
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The Case was dismissed by the Court for want of prosecution.
- Application for Leave to Participate as Amicus Curiae - Application no. 004 of 2011 African Commission on Human and People's Rights v. The Great Socialist Libyan People’s Arab Jamahiriya
- Letter to PALU on Request for Leave to Participate as Amicus Curiae in Application 004 of 2011 African Commission on Human and People's Rights v. The Great Socialist Libyan People’s Arab Jamahiriya
- Response of PALU to Registry on Proposed Contribution as Amicus Curiae - Application No. 004 of 2011 African Commission on Human and People's Rights v. The Great Socialist Libyan People’s Arab Jamahiriya
- Order on the Application to Participate as Amicus Curiae - Application No. 004 of 2011 African Commission on Human and People's Rights v. The Great Socialist Libyan People’s Arab Jamahiriya
- Order of Court Stricking Out Application -Application No. 004 of 2011 African Commission on Human and People's Rights vs. Libya
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