Thomas v United Republic of Tanzania (Application No. 005/2013) [2015] AfCHPR 22 (20 November 2015)

I o o uo5\3ura 2\Ur\2b\s \ QotosL-rruoryBa) sbl , ootutf * : AFRICAN UNION -i;rrtt -rLiYt UNION AFRICAINE ut'tfio AFRIcANA AFRICAN COURT ON HUMAN AND PEOPLES' RIGHTS COUR AFRICAINE DES PR,OITS DE L'H. OMME DES PEUPLES IN THE MATTER OF AI-EX THOMAS V UNITED REPUBLIC OF TANZANIA APPLTCATTON NO.005/201 3 .,7 a) t o ,o0tp50 The Gourt composed of: Elsie N. THoMpsoN, vice-president; G6rard NIYUNGEKO, Duncan TAMBALA, sylvain oRE, El Hadji GUlssE, Ben KloKo, Rafia Ben ACHOUR and solomy B. BossA Judges; and Robert ENO, Registrar. ln accordance with Articte 22 of the protocot to the Afican charter on Human and Peoples'Rrghfs on the Estabtishment of an Afican court on Human and Peoples'Rrghfs ("hereinafrer refened to as the Protocol") and Rule s (2) of the Ru/es of court ("hereinafter referred fo as the Rules"), Justice Augustino s. L. RAMADHANI, president of the court and a national of ranzania, did not hear the Apptication. ln the matter of: Alex Thomas Represented by. Pan African Lawyers'Union (PALU) o v United Republic of Tanzania, Represented by: i. Ambassador lrene Kasyanju Head of Legal Division Ministry of Foreign Affairs and lntemational cooperation hl* /\ .-Ar-* qs9 * I o o { at 'l.l 0010{g Dar es Salaam, Tanzania ii. Ms. Sarah D. Mwaipopo Acting Director Division of ConstitutionalAffairs and Human Rights Attomey General's Chambers Dar es Salaam, Tanzania iii. Mr. Edson Mweyunge Assistant Director Division of Contracts and Treaties Attorney General's Chambers Dar es Salaam, Tanzania iv. Ms. Nkasori Sarakikya Principal State Attomey Attomey General's Chambers Dar es Salaam, Tanzania ' v. Mr. Mark Mulwambo Senior State Attomey Attorney General's Chambers Dar es Salaam, Tanzania vi. Ms. Sylvia Matiku Senior State Attomey Attorney General's Chambers Dar es Salaam, Tanzania J/v tsttr ?Et #- I o a mr0*8- vii. Mr. Benedict T. Msuya Second Secretary - Legal Officer Ministry of Foreign Affairs and lntemational Cooperation Dar es Salaam, Tanzania After deliberation, delivers the following judgme:nt: The Parties 1. Mr. Alex Thomas, (.hereinafter referred to as the Applicant,') is a citizen of the united Republic of ranzania ("hereinafter referred to as the Respondent;;, who at the time of filing his application is a convict serving a thirty (30) year custodiat sentence at Karanga central Prison at Moshi, Kilimanjaro Region, United Republic of Tanzania. He is convict number 355/2OOg. 2. The Applicant filed his apprication against the united Republic of Tanzania through the Attor.ney General of the united Republic of Tanzania, being the Principar Legal Adviser to the Government of the United Republic of Tanzania. Nature of the Application 3. The Applicant brings the apprication on the basis of criminat case Number 321 of 1g96 in the District court of Rombo at Mkuu, criminalAppeal Number a2of 1g98 in the High court of ranzania at Moshi and criminal Appeal Number 230 of 200g in the court of rI UA^ Jrv w\t? ,/ \ o o 00r0t? Appeal of ranzania at Arusha, in respect of which he was convicted of armed robbery and sentenced to thirty (30) years' imprisonment. 4. The Applicant alleges that the triar and Appellate courts wrongfully convicted him because, he aileges that, in accordanee with sections 181 and 387 of the criminal procedure Act, the Respondent's courts lacked jurisdiction to try him as the allegecl robbery occurred'in Kenya. He also alleges that he was wrongly convicted because the charges against him were,defective, contrary to section 132 of the criminal procedure Act because, there were inconsistencies between the charge sheet and the evidence. ln this regard therefore, the Applicant claims that the prosecution did not prove the case against him beyond reasonable doubt. The Applicant alleges that this is particularly so, with regard to the ownership of the property alleged to have been stolen, the actual property alleged to have been stolen, the value of the property and whether or not the Applicant attacked the complainants with a gun. The Applicant also alleges that he was not given an opportunity to defend himself during the trial. ln addition, the Applicant states that, after being denied the right to defend himself and subsequenfly being convicted for robbery with violence, he was stiil denied the opportunity to explain the reasons for his absence during the defence, contrary to section 226(2) of the criminal procedure Act. 6. The Applicant further states that he was not provided with a lawyerto defend him during the trial and appealas required byArticle 13 of the constitution of the united Republic of ranzania and by the Universal Declaration of Human Rights, as he had been charged with -(l*- bltlt ffi &- 00r0if the serious offence of armed robbery. This situation resulted in confavention of the principle of equality of arms. ln addition, the Applicant alleges that he was not given the opportunity to make a rejoincier to the prosecution's statement during the hearing of his appeal. Procedure 7. The Application was filed on 2 August 2013 and seryed on the Respondent by a letter dated 10 september 2a13. pursuant to the Rules of court, by a letter dated 10 september 2a13, the Application was notified to the chairperson of theAfrican union commission and through the chairperson of the African union commission, to the Executive council of the African Union and state parties to the Protocoland requesting that any state party to the protocol wishing to intervene in the proceedings should do so as soon as possible, and in any case, before the closure of the written proceedings. 8. At the request of the court, pan African Lawyers, union (PALU) is representing the Applicant. 9. on 11 December 2013, and foriowing the decision of the court taken at its 31"t ordinary session, the Registrar reminded the Respondent that it is yet to file a Response to the Application, that it had fifteen (15) days from receipt of the reminder within which to do so and to note the provisions of Rule 5s of the Rules of court. Thereafter, on 16 December 2a13, the Respondent requested an extension of time to file the Response, which the court granted by thirty (30) days. Jrv b.w a o ! a a t 0010{s 10. The Respondent's Response dated 23 January 2014, was received at the Registry on s February 2014, out of time. The court, in the interest of justice, accepted the Respondent's response out of time and served it on the Applicant by a letter of the same date and giving the Applicant thirty (30) days from receipt thereof to file his Reply. 11. At the request of the Applicant, on 7 March 2014, the court granted the Applicant's request for extension of time to file its Reply to the Respondent's Response on or before 7 April 2014. The Applicant filed his response on 8 April 2014, within time. pleadings were closed on 17 April 2014 after the Applicant,s Reply to the Respondent's Response was duly filed. 12. During the public hearing on the matter held on 3 December 2014 at the Headquarters of the African union in Addis Ababa, Ethiopia, the parties made oral submissions in support of their positions. The appearances were as follows: For the Applicant: i. Mr. Donald Deya ii. Ms. Evelyn H. Chijarira For the Respondenf. L ii. iii. iv. Ms. Sarah D. Mwaipopo Ms. Nkasori Sarakikya Mr. Jumanne Ramadhan Mziray Mr. Mark Mulwambo '.fQ" ,. Ar- -z A= 00101s v. Mr. Elisha Suka 13. Further, the parties were directed to provide additional documents within thirty (30) days from the date of the hearing. The Applicant was to.provide a copy of the Applicant's Notice of Motion for Review of the decision of the court of Appeal in criminal Appeal Number 230 of 2008. The Respondent was to provide a certified copy of the record of proceedings in criminalAppeal Number 23o of 20oB of the court of Appeal and a certified copy of warrant of commitment on a sentence of imprisonment issued. 14. On 22 January 2015, PALU submitted the documents requested by the Court during the public hearing. 15. On 5 February 2015, the Respondent submitted to the Registrar, a certified copy of the record of proceedings at the court of Appeal in criminal Appeal Number z3o of 2oog and its observations on the authenticity of the copy of the Applicant's Notice of Motion for Review of the decision of the court of Appeal in criminal Appeal Number 230 of 2008 submitted to the Registrar by pALU. 16. on 24 February 2015, PALU objected to the Respondent's purported explanation of some of the issues arising from the record of proceedings in criminal Application Number 230 of 200g. The Respondent did not respond to PALU's contention. The decision of the court on this objection follows in this judgment (infra paragraphs 7e-80). I o (4/'.-- Nil" B )- r.sr(. -.- T}OIUfJ I t The l\pplicant?s Prayers 17 . ln his Application dated 2 August 2013, the Applicant asks that the court makes any orders and rerieft that it may deem fit to grant, The Applicant also requests that the eourt quashes the decisions by the trial court and the Appellate courts convfcting him of the offences he was charged with, acquits him and sets him fee. 18. The Applicant filed the Application and subsequenfly, pALU started representing him. 19. ln the Reply to the Respondent's Response dated g April 2A14, filed by PALU, he prayers are that: 'The Applicant seeks the following;ielieE from this. Honourable court; a. A Declaration that the Respondent state has violated the Applicant,s rights as guaranteed under Articles 1 , 3, 5, 6, 7(1), and 9(1) of.the African Charter on Human and Peoples,RiQhts. b. An order compelling the Respondent state to release the Applicant fom detention. c, An Order for reparations. d. An order compelling the Respondent state to report to tris Honourable court every six (6) montrs on the implementation of its decision. e. Any oher order or remedy that this Honourable court may deem fit.', 20. During the public hearing, the Applicant reiterated his prayers, and specifically with regard to reparations, requested that if the court Bvu^ o 0010tg C o finds for the Applicant, it should schedule a pub$c hearing on reparations. The Respondent's Prayers 21. ln its Response to the Application, dated 5 February 2014: "The Respondentprays that the African Court on. Human and peoples' Rights grant the following orders with respect to the admissibility of the Apptication: That the Application be dismissed as it has not met fre admissibitity requirements stipulated under Rule 40(1-7) of the Rules of Court, Article 56 of the Charter and Article 6(2) of the Protocot. ii. That the Application be dismissed in accordance with Rule 3g of the Rules of Court. iii That the Application has not evoked (sic) the jurisdiction of the Honourable Court. iv. That the costs of this Application be borne by the Appticant.,, |The Respondent prays that the African Court on Human and peoples, Rights grant the following orders with respect trc the merits of the Application: That the Gove.rnment of the United Republic of Tanzania has not violated the Applicanfs right to be heard. il. iii That the Government of the United Republic of Tanzania has not violated the Applicanfs right to defend himself. That the Govemment of the United Republic of Tanzania has not violated. the Applicanfs right to liberty. 4L KUr^, 10 *1t000 I a iv. That all aspects of the prosecution of criminal case No- 321 of 19g6 were conducted lawfully and the prosecution proved its case against the Applicant beyond reasonable doubt. V That there has been no delay of juStice for the Applicanl' 22. During the public hearing the Respondent reiterated its prayers as stated in its Response to the Application. Historical and factual background to the Application 23. On 31 December 1996, the Applicant was charged with the offence of armed robbery, allegedly committed along the Kenya/Tanzania border in Rombo District. lt was aileged that he stole one hundred (100) sets of clutch covers valued at Tanzania shillings Eight Hundred rhousand (Tshs. 800,000/=), the property of Mr. Elimani Maleko. He was charged with four other persons before the District court of Rombo at Mkuu in criminal case Number 321 of 1996. The Applicant pleaded not guilty. 24. On 30 January 1997, the Applicant applied for bail on the grounds of ill health and this application was heard on 31 January 1997 and granted on 5 February 1997. on 20 March 1gg7 when the matter was mentioned, the Applicant was absent and the Magistrate ordered the arrest of the Applicant and his sureties. on 26 Marclr 1997, when the matter came up for mention and the court directed the Applicant to show cause why his bail should not be forfeited, he explained that he had been sick. The court was satisfied with this explanation and, by an order of the same date, extended his bail. The prosecution opened its case on 26 March 1gg7 and closed its E\A^, --?J- I c 00t0{0 case on 12 June 1997. The Applicant was present throughout the prosecution's case. The defence opened its case onz|June 1gg7 and finalised the same on 25 June 1gg7. 25. when the defence opened its case on 24 June 1g97, the Applicant was absent and the prosecution applied to the tr.iat court that the trial should proceed under section 226 of the criminal Procedure Act and that the Applicant be arrested for jumping bail. The application was granted and the matter proceeded under section 226 of the criminal Procedure Act. This provision, specifically section 226(1) thereof, allows the trial court to proceecl with a hearing that had been adjourned, if an accused person is not present when the trial resumes. on 2s June 1ggr, the trial court ordered that a warrant of arrest be issued against the Applicant; and his sureties be summoned to show cause why their bail bond shoulcj not be forfeited. The record shows that the Applicant had been admitted to hospital on 20 June 1ggr, suffering from extra pulmonary tuberculosis and asthmatic statae. He was hospitalised until 21 February 1998. 26. on 30 June 1997, judgment was delivered in the absence of the Applicant, wherein he was convicted of armed robbery and sentenced to thirty (30) years imprisonment under the Minimum sentences Act No.1 of lgzz as amended by Miscellaneous Amendment Act No. 10 of 1989, He was arso to receive twelve (12) strokes of the cane. The Applicant and the first co-accused were also ordered to pay compensation in respect of the stolen properties yet to be recovered, with a total value of ranzania Shillings one Hundred and Fifty Thousand (Tshs.150,000/=). The Applicant 4,\ \ Nt,r.t &- I_ . 00r03s t a commenced his sentence on 3 June lgg8 and is currenfly serving his sentence at Karanga central prison at Moshi, Kilimanjaro Region. 27. The Applicant appealed against his conviction and sentence, vide criminal Appeal Number 82 or 19gg at the High court of Tanzania at Moshi, This appear was dismissed on 23 March 2000. The High court held that, as the Appricant did not appear when the case was fixed for the defence, he cannot blame the trial court for convicting him in absentia, on the strength of the prosecution,s case. The High court found that the trial magistrate acted properly under section 227 of the criminal procedure Act and that the sentence of thirty (30) years' imprisonment is the statutory minimum and therefore dismissed the appeal in its entirety. section z2z of the Criminal Procedure Act provides as follows: .where in any case to.which section226 does not apply, an accused being tried by a subordinate court fails to appear on the date fixed for. the continuation of the hearing after the close of the prosecution case or on the date fixed for the passing of sentence, the court may, if it is satisfied that the accusecj's attendancr.; cannot be secured without undue delay or expense, proceed to dispose of the case in accordance with the provisions of section 231 as if the accused, being present, had failed to make any statement or adduce any evidence or; as the case may be, make any further statement or adduce further evidence in relation to any sentence which the murt may pass: Provided that - (a) where the accused so faits to appear but his advocate appears, the advocate, subject to the provisions of this Act, be entifled to call any defence witness and to address the court as if the accused had been or is convicted, and the advocate shall be entifled to call any witness and to addresu the court on matters relevant to any sentence which the court may pass; and Iv\rr z G a t 00f03s (b) where the accursed appears on any subsequent date to which the proceedings may have been adjourned, the proceedings under this section on the day or days on which the accused was absent shall not be invalid by reason only of his absence." 28. Following the dismissal on 23 March 2000, of the Appticant's Appeal to the High court of Tanzania at Moshi in criminal case Number 82 of 1998, the Applicant filed his Notice of Appeal at the court of Appeal of ranzania at Moshi on the same date. The Applicant subsequently filed his appeat on 17 April 2003, which was registered as CriminalAppeal Number 153 of 2003. 29- ln order to prosecute this appeal, on 23 April 2003, the Applicant wrote to the High court requesting for the court record of the proceedings at the High Court in Griminat Case Number g2 of 1998. on 27 January zoo4, the Appricant wrote to the court of Appeal requesting the same, and again on s August 2004,1 to the Registrar of the High court at Moshi. on 13 september 2004, he wrote a letter to the Registrar of the court of Appeal requesting a copy of the court record of proceedings at the High court. on- 1g october 2004, the Applicant fired a comptaint with the commission for Human Rights and Good Governance of ranzania for faiture to be furnished with copies of the court record.2 on 1T June 2005, he wrote a further tetterto the Registrar of the court of Appeal regardin5l 1 This is the letterwherein the Applicant makes reference to the letters of 23 April 2003 and27 January2004. 2 This is deduced from the Cornmission's letter of acknowledgment dated 23 November 2004, of the Applicant's letter of 19 October 2004. Nfl^ @-- V a e o -, t.- 00103? the delay in having his appeal heard. On 21 September 2005, aftei' the expiry of two (2) years and five (5) months, the Applicant's appeal to the Court of Appeal, Criminal Appeal Number 153 of 2003, was heard and dismissed. At the time of the hearing of this appeal, the Applicant had not been provided with a copy of the court record. The Appeal was dismissed for being filed out of time. 30. On 31 October 2005, the Applicant made an application to the High Court at Moshi, vide Miscellaneous Criminal Application Number 40 of 2005, for leave to file his Notice of Appeal out of time. The High Court of Tanzania at Moshi granted his Application, on 12 February 2OO7 and on the same date, the Applicant filed a Notice of Appeal to the Court of Appeal, being CriminalAppeal Number 217 ot 2007. On 28 June 2OO7,and after the expiry of four (4) years and six (6) months, the Applicant received the record of proceedings in Criminal Appeal Number 82 of 1998 at the High Court of Tanzania at Moshi. On 15 October 2007, Criminal Appeal Number 217 ol2OO7 was struck out on the basis that the Notice of Appeal was unsigned and was filed out of time. 31. On 7 February 2008, the Applicant filed Miscellaneous Criminal Case Number 3 of 2007 at the High Court of Tanzania at Moshi seeking that his Notice of Appeal be heard out of time. ln the course of the proceedings for this application, the Applicant requested to amend the application' in order to cite the proper provisions applicable and the Court granted this application. The Court ordered that the Applicant file the amended application before 11 June 2008. ln compliance with this order, on 6 June 2008, the Applicant applied to the High Court of Tanzania at Moshi vide JrV L b{\r^- xg @- a t ,- ",f 00r036 Amended Miscellaneous Application Number 3 of 200g, seeking leave to lodge a fresh appeat out of time, on 1 1 June 200g, the High court, being satisfied that the Applicant had complied with the order to file the amended Application, granted the Applicant leave to file the Notice of Appeal to the court of Appear within ten (10) days thereof. on 13 June 2008, the Appricant filed at the High court of Tanzania at Moshi, a Notice of Appeal to the court of Appeal. This new appeal to the court of Appeal was filed as crimina! Appeal Number 230 of 2008. 32. on 10 July 2008, the Appricant wrote a letter to the Registrar of the court of Appeal to inform him of the delay in the hearing of his appeal. on 2 February 2009 the Applicant wrote a letter to the District Registrar of the High court of ranzania at Moshi requesting the record of the proceedings at the High court. on .17 March 2009, the Applicant received a copy of the court record. 33. on 29 May 2009, the court of Appeal delivered its judgment in criminal Appeal,Number 230 of 2008, dismissing the appeal, and finding that the prosecution's case had merit, upheld the Applicant's conviction and sentence. u. on 10 June 2009, the Applicant fired a Notice of Motion for review of the decision of the court of Appeal in criminal Appeal Number 230 of 2008. on 4 January zo1o, the Applicant wrote to the chief Justice of the United Republic of ranzania reminding him of his requestfor pro bono legar counsel and requestiqg hearing of his Application for Review. Ntu, 'r'L 2Lry w t o 00103$ 35. Though it is not clear from the record when the Applicant first requested for pro bono legal counsel, on 3 september 2010, the Applicant wrote a further letter reminding the chief Justice of his request for pro bono legal counsel and requesting hearing of his Application for Review. 36. on 10 January 2011 and 20 september 2011, the Applicant wrote to the chief Justice reminding him of his request to have his Application for Review heard. on 1z July 2013, he further wrote to the Registrar of the court of Appeal requesting that his Application for Review be included and heard at the next court of Appeal session. The Applicant alleges that, at the time of filing this Application at the African court on 2 August 2013, he has received "no substantive response as to the status of his review". The Preliminary Objections 37. The Respondent raises preliminary objections on issues of ju risdiction and admissibility. Preliminary objections on jurisdiction 38. The Respondent contends that the Applicant's citation of Articles 5 and 34(6) of the Protocol and Rule 33 of the Rules of Gourt to invoke the jurisdiction of the court is not proper as these articles only provide him standing before the court. The Respondent argues that, therefore, the jurisdiction of the court has not been invoked. 39. The Respondent contends further that, the Application does not refer to, or ask for, the interpretation or application of the charter, tL N{\i'- W & o I 0010$* the Protocolor any other relevant human rights instrument ratified by the united Republic of ranzania. The Applicant has merely listed his grievances against the application of the criminal procedure Act in relation to the originating criminal case against him, being caser Number 321 of 1996. 40. The Respondent asserts that, because the Appricant is not clear in the remed'les he seeks, he therefore, has not invoked the jurisdiction of the court and the Application should be dismissed. 41. The Applicant maintains that the court has the jurisdiction ratione materiae to determine this case on the basis that there arc allegations of violations of the human rights of the Applicant as guaranteed under the Charter. 42. ln the Reply to the Respondent's Response, the Applicant alteges violation of the obligation of Member states to give effect to the rights, duties and freedoms enshrined therein, violation of the right to equality before the law and equal protection of the law and violation of the prohibition of torture, cruel, inhuman and degrading treatment which resulted from the inordinate delay in the hearing of the Applicant's cases. The Applicant also states that his right to personal liberty and protection from arbitrary arrest have been violated by his continued detention occasioned by the delay in thu hearing of his cases. He asserts that his right to a fair trial was violated because he was not given the opportunity to present his defence, he was not provided pro bono regar aid despite being charged with a serious offence and that there were systematic ancl prolonged delays in his appeals and his application for review at the a-- N\t^ -4 @_ t o o0iori"' Court of Appeal. The Applicant maintains that these delays were compounded by the dilatory conduct of the state in providing the record of proceedings of the trial courts which hampered his ability to file his appeal. The Applicant maintains that this also violated his right to receive information and his right to freedom of expression. 43. The Applicant also argues that, the Court has jurisdiction ratione petsonae and that he is entitled to file an Application before the Court on the basis that he is a citizen of the United Republic ol Tanzania, and the Respondent State has ratified the Protocol and filed a declaration allowing direct access for individuals to file cases before this Court. 44. The Applicant further asserts that, the Court has held a similar view on its jurisdictional requirements in Apptication Number 001/2012 Frank David Omary and Others v The United Republic of Tanzania and Application Number 003/2012 Peter Joseph Chacha v The lJnited Republic of Tanzania. Jurisdiction ratione materiae 45. The Court considers that the Respondent's objection that "fhe Court lacks juisdiction because the Appticant improperty cites Aftictes 5 and 3a$) otthe Protocot and Rute 33 of theRules of Court and that the Articles only provide him standing before the Courf' lacks merit. The Court finds that as long as the rights allegedly violated are protected by the Charter or any other human rights instrument ratified by the State concerned, the Court will have jurisdiction over the matter. The Court first elaborated on this in Htu 1e -fu lre' @- _.-I .001032 Application Number 001/2012 Frank David omary and others u united Republic of ranzama and thereafter, in Application Number oog/2al2 Peter Joseph chacha v tJnited Repubtic o,f ranzania. The court, in the above cases held that, the substance of the complaint must relate to rights guaranteed by the charter or any other human rights instrurnent r:atified by the State eoncerned. lt is not necessary that the rights atleged to have been violated are specified in the Application. 46. ln any event, in the instant case, the Applicant,s Reply to the Respondent's Response specifies the rights guaranteed by the Charter alleged to have been violated (supra paragraph 42). 47. The- court finds that the Applicant's Application states facts which relate to human and peoples' rights protected under the charter, and therefbre holds that it has jurisdiction ratione mateiae. J urisdietion rati o n e p ers onae 48. Although the parties raised an issue purportedly relating to the court's jurisdiction ratione personae, the court does not consider. this to be an objection on its jurisdiction ratione personae. The Respondent is a state Party to the Protocor, which has also made the dectaration in terms of Article 34(6) of the protocol accepting the seizure of the Court by an individual. The Respondent deposited its; instrument of ratification of the Protocor on 10 February 2006 and deposited the dectaration required under 34(6) of the protocol on zg March 2010. Though the alleged violations occurred before the deposit of the instruments of ratification and dectaration -.4\-- 6r\,\ 2A NC @- o t f-,j 00ls3t aforementioned, the court finds that it has jurisdiction ratione personae Prelimi nary objections on adm issi bility 49. The Respondent raises preliminary objections on admissibirity based on different components of the requirements of Article 56 of the charter. These are on incompatibility of the Application with the Charter and the Constitutive Act of the African Union, on non- exhaustion of local remedies and in the alternative thereto, that the Application has not been filed within a reasonable time from when local remedies were exhausted t. lncompatibility of the Application with the Charter and the Constitutive Act of the African lJnion 50. The Respondent contends that the Application does not complywith the Constitutive Act of the African Union and the charter as it does not address issues compatible with the charter or the principles enshrined in the charter of the organisation of African Unity and further, that no provisions of the African charter have been referenced in the Application. 51 . The Applicant avers that he has met the requirements of Article 56(2) of the charter which stipulate that applications must be compatible thereto. This is because, the Court has decided, in Application Number 003/2012 Peter Joseph chacha v The tJnited Republic of ranzania that, so long as the rights alleged to have been , a -(k Ww @ .r violated are contained in the Charter, they need not be specifically cited in the application. 52. Regarding the Respondent's objection to the apprication on the grounds of its incompatibility with the charter of the organization of African Unity, now the constitutive Act of the African Union, the court notes that this argument lacks merit. The constitutive Act of the African Union provides that one of the objectives of the African union shall be to promote and protect human and peopres' rights ilr accordance with the charter and other relevant human rights instruments. ln addition, the court finds that the Applicant's Application states facts whi-ch relate to human and peoples' rights pfotected under the charter. Moreover, the court has decided on this issue in Application Number 001/2,012 Frank David omary and others v united Republic of ranzania and Application Number oo3/2o12. Peter Joseph chacha v United Republic of ranzanra. ln lhe latter case, the Court found that'... the Applicanfs Apptication states facts which rwealed a pima facle violation of his rights; furthermore, the court finds that the Application relates to human and peoples' rights protected under the Charter, therefore the requirements of Article 3(1) of the Protocol and Article 56(2) of the Charter have been mef. ll. Non-exhaustion of local remedies 53. The Respondent states that the application has not been filed after exhausting local remedies. The Respondent states that the a O -'L Nl^ N,e - @- l_i _l-1 ffiItEgi a a Appticant should have waited for the 5 June 20093 Notice of Motion to Review the Court of Appeal's decision in CriminalAppeal Numbe:' 230 of 2008 to be heard. The Respondent further states that the Applicant could have also instituted a Constitutional Petition before the High Court of Tanzania vide the Basic Rights and Duties Enforcement Act, 1994, regarding the alleged violation of his rights, which form the basis of his application before this Court. 54. The Applicant avers that local remedies were fully exhaustetl when the Court of Appeal of Tanzania, the highest court of the land, finally and in its entirety, dismissed his appealon 29 May 2009. 55. The Applicant avers that one need not file an application fo: review so as to exhaust local remedies. He also states that the assertion of the Respondent State that the Applicant should have filed a constitutional petition to challenge the delay in the hearing of the review is both unnecessary and redundant as it imposes a requirement to utilise a procedur:e that falls outside the scope of the rule requiring exhaustion of local remedies. 56. On the preliminary objection that the Applicant did not exhaust local remedies, the Court finds that the Applicant went through the required criminaltrial process up to the highest Court in the land qnd finally applied for review to the Court of Appeal. ln a case involving the Respondent State before the African Commission, the 3 The Notice of Motion fi)r Review in the matter of Criminal Appeal Number 230 of 2008 in the Court of Appeal of Tanzania.lt was signed by the Applicant by way of thumbprint on 5 June 2009 and lodged in the Registry at Dar es Salaam on 10 June 2009. ,4w N\{- e- NC" - .l- Respondent State rnaintained that the Court of Appeal is the highest Court in the land.a Additionally, the procedures followed on local remedies were unduty prolonged. 57. The Court finds that there were systematic and prolongerl delays in the determination of his appeal to the Court of Appeal. Following the dismissal, on 23 March 2000 of the Applicant's appeal to the High Court, being Criminal Appeal Number 82 of 1g98, it was only on 17 April 2003 that his Appeal to the Court of Appeal was registered. There were atso unreasonable delays in providing the Applicant with the record of proceedings of the appeal heard by the High Court, (CriminalAppealNumber 82of 1998), which he requirecl to prosecute his Appeal at the Court of Appeal. A period of two (2) years and five (5) months lapsed between 23 April 2003, when the Applicant first requested for this record of proceedings, and 21 September 2005, when the appeal at the Court of Appeal was heard and dismissed, for being filed out of time. The court notes that bir the time the court of Appeal dismissed his appeal, the Appricant was yet to be provided with the record of the proceedings of criminal Appeal Number 82of 1998. 58. The Applicant then filed a Miscellaneous Application at the High court, on 31 october 2005, seeking leave to hle his Notice of Appealto the court of Appeal, out of time. once this application was granted on 12 February 2OO7, his new appeal to the Court of Appeal was registered on the same date, as criminalAppeal Number 217 ot a See Communication 333/06 Soutfigm Africa Human Rights NGO Network and Othen v Tanzania 28s Activity Report November 2009 - May 2010 paragraph 2g, -L $wt e-- {q a a o a 00I0t? 2007.lt was only after the filing of this second appeal to the Court of Appeal that, on 28 June 20A7, four ( ) years and six (6) months after first requesting for the record of proceedings of the appeal at the High Court (Criminal Appeal Number 82 of 1998), the Applicant received the record. However, on 15 October 2007, the Court of Appeal struck out CriminalAppeal Nqmber 217 o12OO7 on the basis that the Notice of Appeal was unsigned and was filed out of time. 59. On 7 February 2008, the Appticant filed a Miscellaneour; Application at the High Court seeking leave to file his Appeal out of time. This application was subsequently grantred and on 13 June 2008, the Applicant filed a new appeal to the Court of Appeal vide Criminal Appeal Number 230 of 2008. This appeal was dismissed on 29 May 2009 on the basis that the prosecution had proven the case against the Applicant in the original criminal case. The Applicant represented himself throughout these processes, despite the fact that the charges against him were serious offences and canied a heavy custodialsentence and his requests for pro bono legalcounsel were not responded to. 60. Regarding the Respondent's contention that the Applicant should have applied for a constitutional petition to vindicate his rights under the Basic Rights and Duties Enforcement Act, the Court finds that the Applicant was not under an obligation to do so. The alleged non-conformity by the trial court, with the due process, with its bundle of rights and guarantees, formed the basis of his appeals to the High Court and the Court of Appeal. The Court of Appeal decided on the Applicant's appeal with finality therefore he accessed the highest Court in the Respondent State. /,__ 25 N^r @_ x9 a a f-l 00ro2t :' 61. Furthermore, the Court notes that if in proceedings in ;r subordinate court, basic rights are albged to have beerl contravened, an application is made under the Basic Rights and Duties Enforcem.nt Act, to the High Court to be decided by a three - Judge Bench and an appeal therefrom lies to the Court of Appeal.s 62. ln the instant case, once the Court of Appeal of Tanzania decided on the Applicant's appeal, it would have been unreasonable to require him to lodge a fresh application regarding his right to a fair trial, to the High Court, which is a court lower than the Court of Appeal of Tanzania. 63. Regarding the Respondent's contention that the Applicant should have pursued the application for review to its conctusion, the Court finds that this was neither necessary nor mandatory. The final appeal in criminaltrials lies, as of right, to the Court of Appeal, which the Applicant has proved that he accessed. ln addition, his appeal to the Court of Appeal was based on allegations of violations of his basic right to afair trial, which the Court of Appeal also decided on6, therefore, it was not necessary for him to file a separate constitutional petition to the High Court vide, the procedure set out in the Basic Rights and Duties Enforcement Act, based on the alleged violation of his basic right to a fair trial. The Court also finds that an application for review is an extraordinary remedy because 5 Basic Rights and Duties Enforcement Act, Act Number 33 of 1994, Sections 9 and '10. 6 Court of Appeal of Tanzania at Arusha, Criminal Appeal Number 230 of 2OO8 Alex Thomas v The Repub/ic Judgment of 29 May 2009. J/- ^!g N[t w 00I025 J a a the granting of leave by the Court of Appeal to file an application for review of its decision is based on specific groundsT and's granted at the discretion of the Court. E 64. The Court is persuaded by the reasoning of the African Commission in Southern Afican Human Righfs NGO Nettwork v Tanzanias. where it stated that, the remedies that need to be exhausted are ordinary rernedies. 65. ln view of this, the Court finds that the Respondent's assertion that the Applicant should have filed a Constitutional Petition to challenge the delay in the hearing of the application for Review, 7 See Section 66 (1) of the Court of Appeal Rules of the Court of Appeal of Tanzania which provides: "The Court may review its judgment or order, but no application for review sha[ be entertained except on the following grounds (a) the decision was based on.a manifest enor on fre face of the record resulting in the miscarriage of justice; or (b) a party was wrongly deprived of an opportunity to be heard; (c) the court's decision is a nullity; or (d) the court had no jurisdiclion to entertain the case: or (e) the judgment was procured illegally, or by fraud or perjury.' a Kaim Karia v Republicl Criminal Application N[umber] 4 of 2a07 Court of Appeal of Tanzania at Dodoma quoting the case of TanzaniaTnnicontinental Co. Ltd v Design Partnership Ltd (Civit) Apptication N[umber] 62 of 1996. e Communication 333/2006 28th Activity Report November 2009 - May 2010. paragraph 64. The Commission held that: 'Furthermore, the 'remedies' reErred to in Article 56(5) indude all judicial remedies hal are easily accessible for justice. The Commission in /NIER/GHIS aind Otherc v Mauritdnia, declared: 'The fact remains that the generally accepted meaning of local remedies, which must be exhausted prior to any communication/complaint procedure before the Aftican Commission, are ordinary remedies of common law that exist in jurisdictions and normally accessible to people seeking justice." -'A-'- Ntr4^ @- q :. frf 0010gri I a would have been impracticaland an extra-ordinary measure thatwas not required of the Applicant. Since the Applicant's appeal was dismissed by the Court of Appeal of Tanzania, the Applicant therefore exhausted local remedies. lll. The Application has not heen filed within a reasonable time after exhaustion of locat remedies. 66. ln the altemative, and without prejudice to the Respondent's argument that the application is inadmissible for non-exhaustion of local remedies, the Respondent argues that the Application has not been filed within a reasonable time vis-A-vis his Notice of Motion of 5 June 2009, to Review the Court of Appeal's decision in Criminal Appeal Number 230 of 2008. This is because three (3) years and almost three (3) months have lapsed since th'rs Notice of Motion was filed. The Respondent submits that the "reasonable period; specified in the Charter for filing apptications after exhaustion of local remedbs should be sef af six months in line with developments in international human ight;; jurisprudence and considering this, the Applicant has fited his application out of time". The Respondent maintains that, by these standards, the Applicant would still be out of time for filing the Application, if time was reckoned from 2O'september 2011, being the date of the Applicant's correspondence to the Chief Justice, reminding the Chief Justice of the Application for Review of the judgment of the Court of Appeal. 67. The Respondent concludes that on this basis, since the Application has failed to meet some of the conditions of admissibility, it should be declared inadmissible and be dismissed with costs. --rr-- 28 NI\" q.-- somes t G a o 68. The Applicant contends that this Application was filed within a reasonable period foltowing the exhaustion of local remedies, given the circumstances and position of the Appticant, being a lay, indigent and incarcerated person. 69. The Applicant contends that, without prejudice to the above, should the Court consider that the period from the exhaustion of local remedies to the filing of the Application before this Court was unreasonably prolonged, there are'sufficient reasons to explain the delay. 70. The Applicant contends that he embarked on a reasonable pursuit to have his complaints disposed of within his national ;jurisdiction by filing an Application for Review of the decision of the Court of Appeal 71. ln addition, the Applicant contends that he repeatedly wrote several letters to the Chief Justice and Registrar of the Court of Appeal requesting to have his Application for Review heard. The last letter was sent to the Registrar of the Court of Appeal on 12 July 2O1g and the Applicant seized this Court on 2 August 2013. The multiple requests to agents of the Respondent State went unanswered. lt is the Applicant's strong contention that he gave reasonable time to the Respondent State to finally remedy the violation of his rights. 72. The Applicant, in support of the above facb, relies on the jurisprudence of the African Commission which has held, in Southem Nl^' g-- t a .f - l Afica Human Rights NGO Network and Others v Tanzania, thal awaiting responses on applications or judicial reviews are sufficient grounds to explain a delay in seizing an international body. It is the contention of the Applicant that the jurisprudence of the African Cornmission on the matter forms a highly persuasive source of law and that this Court be inclined to reach the same decision. 73. On the preliminary objection that the Applicant did not file the application within a reasonable time from the time local remedies were exhausted, the Court finds that in considering whether the application was filed within a reasonable time, time should have started running from 29 May 2009 when the Court of Appeal dismissed the Applicant's appeal. However, the Respondent deposited its declaration under Article 34(6) of the Protocol on 29 March 2010, therefore the time should be reckoned from that date. This Court has, in Apptication 013/201 1 Beneftciaies of the late Norbert Zongo, Abdoutaye Nikiema atias Ablasse, Emest Zongo anc! Btaise ttboudo & The Burkinabe Movement on Human and Peoples' Rrghfs v Burkina Feso (Ruling on Preliminary Objections of 21 June o 2013) set out 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". 74. Considering the Applicant's situation, that he is a lay, indigent, incarcerated person, compounded by the delay in providing him with Court records, and his attempt to use extraordinary measures, that is; the application for review of the Court of Appeal's decision, we find that these constitute sufficient grounds to explain why he filed the Application before this Court on 2 August 2013, being three (3) --Av ry N" g- o ,+-,/--- l" tiotdff years and five (5) months afterthe Respondent made the declaration underArticle 34(6) of the Protocol. Forthese reasons, the Court finds that the application has been filed within a reasonable time after the exhaustion of local remedies as envisaged by Article 56(5) of the Charter. The Court therefore overrules this preliminary objection and dismisses the same. ' Respondent's objection to the alleged introduction of new issues by the Applicant 75. Following the Respondent's Response dated 5 February 2014, to the Application, the Applicant filed, in conformity with the deadline provided by the Court, a Reply dated 8 April 2014 responding to the Respondent's Response. The Applicant sought the reliefu listed in paragraphs 17, 19 and 20 above. 76. During the public hearing, the Respondent raised an objection to the Applicant's Reply to the Respondent's Response. The Respondent contended that ".,. the Rejoinder has raised new issues, which were not part of the Application, being issues related to both jurisdiction .and admissibility of the case.' The Respondent maintained that, 'a Reloinder is only meant to address and ansvver issues raised in the Reply and not to raise new issues. However, the socalled Rejoinder by the Applicant is a fresh Application, which raises new allegations." The Respondent further stated that, this results in an unfair situation and is contrary to the principle of equality of arms- The Respondent also stated that the 'court should onty address irsetf on the issues raised in the Application and not the issues raised in the purported Rejoinder, This is especially as there is no provision for a Sur-Rejoinder in the Rules of Court." a o & Ng- {\,1 L ) a o o 00I0e0 in 77. The position of the Applicant as stated during the public hearing is that "there is no allegation that the Applicant makes pursuant to having Counsel assigned to him that the Applicant did not himself make, albeit without the sophistication that comes with having Counsel.' ln other words, the Applicant's rejoinder merely refined the Applicant's application which followed from his being represented by Counsel. The Applicant stated that " ... in total, the fourteen pages that the Applicant, on his own, without the benefit of Counsel fiied, contains all the allegations and all the complaints that he has made ffrat are merely reiterated in the Rejoinder. ln fact, apart fom perhaps a change of language, the only thing the Rejoinder articulates that was not there in the earlier fourteen pages, are the speciflc Articles of the African Charter alleged to have been violated'. 78. The Court notes that the Applicant's Reply to the Respondent's Response largely restated the Applicant's position as enunciated in the Application. Counsel for the Applicant merely links the allegecl violations with the relevant articles of the Charter. The Application alluded to alleged violations of the right to fair trial as set out in Article 7 of the Charler and Counsel merely expressly stated the same in the Reply. The Reply to the Respondent's Response alleges violations of Articles 1, 3, 5, 6, 7(1) and 9(1 ) of the Charter. The Court finds that the Applicant's Reply to the Respondent's Response linked more precisely with the Charter, the rights that the Applicant alleged were violated, and that it did not introduce new issues. < Ne- Nt @ I a o o l-r. ,.1 'borsis Applicant's objection to the Respondenf s explanations relating to the Record of Proceedings in Criminal Appeal Number 230 of 79. On 22 January 2015, PALU submitted the documents requested by the Court during the public hearing. On 5 Februanr 2015, the Respondent submitted to the Registrar, a certified copy of the record of proceedings at the Court of Appeal in Criminal Appeal Number 23A d 2OO8 and its observations on the authenticity of the copy of the Applicant's Notice of Motion for Review of the decision of the Court of Appeal in Criminal Appeal Number 230 of 2008 submitted to the Registrar by PALU. On 24 February 2A15, PALU objected to the Respondenfs purported explanation of some of the issues arising from the record of proceedings in Criminal Appeal Number 230 of 2008. This was on the basis that by doing so, the Respondent was analysing freshly, both its own and the Applicant's arguments and that the Respondent is providing information and arguments to strengthen its defence. PALU urged that these explanations be disrbgarded as they were not included in the prior written and oral submissiofls,. Th€ Respondent did not respond to PALU's contention 80. The Court did not direct that the parties provide explanations regarding the documents to be submitted after the public hearing. ln this regard therefore, the Respondent was merely required to submit the documents as directed, An examination of the purportecl explanation by the Respondent of the record of proceedings in Criminal Appeal Number 230 of 2008 shows that this indeed amounts to fresh arguments by the Respondent, on its case and on b"**- - €_ )'[9 o o o 0010rg t the Applicant's submissions. The pleadings having been closed, the Parties could not make fresh arguments. Therefore, the said explanation, provided by the Respondent regarding the record of proceedings in the Appeal at the Court of Appealwill be disregarded and will not affect the decision of the Court on the merits of the Application. The Merits t. The alleged Denial of the Right to be Heard and to Defend Oneself 81. The Applicant alleges that he was denied the right to be heard and to defend himself because the trial court proceeded to hear the case in his absence. During the trial, the Applicant atleges that he was admitted in hospital for eight (8) months, suffering from pulmonary tuberculosis and asfhm atic sitatae. He also alleges that even after he was convicted in absentia, he was also not allowed to provide the trial court with reasons for his absence, pursuant to section 226(2) of the Criminal Procedure Act which reads: "lf the court convicts the accused person in his absence, it may set aside the conviction, upon being satisfied that his absence was from causes over which he had no control and that he had a probable debnce on the merit." 82. The Respondent contends that section 226(1) of the Criminal Procedure Act provides for circumstances in which a court can proceed with a hearing and convict and sentence an accused person in absentia. The Respondent puts the Applicant to strict proof A--- x9 6u^4 34 e ,*{- a o o 0sr0rr regarding this allegation. Section 226(1) of the Criminal Procedure Act provides that "lf at the time or place to which the hearing or further hearing is adjourned, the accused person does not appear before the court in which the order of adjournment was made, it shall be lawful for the court to proceed with the hearing or fudher hearing as if the accused were present; and if the complainant does not appear, the court may disrniss the charge and acquit the accused with or without costs as the court thinks fit.' 83. ln the Respondent's written submissions to the High Court at Moshi, in respect of Criminal Appeal Number 82 ol 1998, the Respondent conceded that, if the record does not show compliance with Section 226(2) of the Criminal Procedure Act, which requires that even after being tried in absentia, the Applicant (who was the Appellant in that Appeal) should have been allowed an opportunif,r to provide the Court with reasons for his absence, then the Applicant should be granted this opportunity. 84. The Respondent's submission before this Court on this issue is to maintain that the Applicant was absent during the defence case at the trial court and that Section 226(1) of the Criminal Procedure Act was properly applied in proceeding with the trial. 85. lt is also the Applicant's allegation that the court did not admit his rejoinder in the appeal before the High Court. The Respondent's position is that it denies these allegations and the Applicant is put to strict proof thereof. A^ %:- N^" e- l-l-- t o 00t0rg .! 86. The Court observes that Article 7(1Xc) of the Charter is relevant in this regard. lt provides that: "Every individual shall have the right to have his cause heard. This comprises: (a) ... (b) .. . (c) the right to defense, including the right to be defended by counsel of his choice;" 87. Article 7 of the Protocol provides that: . The Court shall apply the provision of the Charter and any other relevant human rights instruments ratified by the State concerned.' 88. ln view of the fact that the Respondent acceded to the lnternationri Cor"nrnt on Civil and Political Rights (ICCPR) on 11 June 1976 and deposited its instrument of accession on the same date, in accordance with Article 7 of the Protocol, the Court can interpret Article 7(1Xc) of the Charter in light of the provisions of Article 14(3Xd) of the ICCPR. o 89" Article 14(3Xd) of the ICCPR is more elaborate than Article 7(1Xc) of the Charter and it reads: 'ln 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 ar- -. I N\^ @ a o o .f - i., O$rffitr case where the lnterests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.' 90. The above mentioned provision of the ICCPR, Article 14(3Xd) contains three distinct guarantees. First, the provision stipulates that accused persons are entitled to be present during their trial. Second, the provision refers to the right of the accused to defend himself or herself, whether in person or through legal assistaqqe of their own choosing. Third, the provision guarantees the right to have legal assistance assigned to accused persons whenever the interests of justice so require, and without payment by them in any such case, if they do not have sufficient means to pay for it. 91. Article 7(1)(c) of the Charter and Article 14(3Xd) of the ICCPR required that the Applicant be present to defend himself. The Applicant was not physically able to defend himself during the hearing of Criminal Case Number 321 of 1996 as he had been granted bail by the trial magistrate on grounds of ill health and, according to the tial record, had been admitted to hospital at the time the defence was making its case on 24 and 25 June 1997. 92. It is worthy to note that, prior to the defence case, the Applicant was not present in Court during the mention of the case on two occasions, that is, on 20 and 26 March 1997. With regard to both occasions, when the Applicant later presented himself to Court, the magistrate was satisfied with his explanation that he failed to attend court because of his ill health. During the trial of the case, in the Applicant's absence, despite the magistrate being aware of the 4L- Ng Kr^ e- t/ , - ooto{ e Applicant's sureties, he did not enquire frorn them as to the Appl icant's wherea bouts. 93. Given the serious nature of the offence that the Applicant had been charged with, the fact that the magistrate had granted the Applicant bail on the basis of his serious ill health and that he was unrepresented, warranted the Court to have more consideration br the Applicant and adjoum the proceedings to give him the opportunity to defend himself. 94. lt is also important to note that, from the record, the Applicant was never prosecuted for jumping bail. This would suggest that the court was aware of the reasons for his absence during the trial at the time of his defence. ltwould, in the circumstances have been prudent for the trial magistrate to make an enquiry on the whereabouts of the Applicant, especially because, from the trial record, the Court had knowledge of the Applicant's ill health. 95. The Court is fortified in its reasoning by the decisions of the African Commission and the European Court of Human Rights and the lnter*American Court of Human Rights, which are courts of similar jurisdiction. 96. The African Commission considered the right to defend oneself, in Avocats Sans Frontidrcs (on ,behalf of Gadtan Bwampamye) v Burundiand held that the right implies an accused's presence at each stage of the proceedings.l0 O O 10 Communication 231/9914th Activity Report 2000 - 2001 paragraph 28 4t-'^' Ml- e O o 0ol013 tr 97. ln the case of Colozza v ltaly,11 the European Court of hluman Rights held that the right to a hearing in one's presence is part of the right to a 'fair hearing' in Article 6(1) of the European Convention on Fundamental Rights and Freedoms' (the European Convention).12 The Court notes that Article 6 of the European Convention is similar to Article 7 of the Charter.ts 98. ln a similar vein, the lnter-American Court of Human Rights has found violations of Article 8 of the American Convention on Human Rights which provides for the right to a fair trial, similarto the provisions of Article 7 of the Charter. Of note is the Case of Sudrez-Rosero v Ecuadorwhere the lnter-American Court of Human Rights affirmed the minimum guarantees to which every person is entitled under Article 8(2)(c), (d) and (e) of the American Convention on Human Rights, with full equality.la ll Appliqation No, 9024/80 A 89 (1985) 7 European Human Rights Reports 516. 12,.1n that case, the European. Court of Human Rights stated that'Although this is nct expressly mentioned.in paragraph 1 of Article 6 (art 6-1), the object and purpose of the Article taken as a whole show that a person "charged with a criminal offence" is entitled to take part in the hearing. Moreover, suFparagraphs (c), (O and (e) of paragraph 3 (art. G3-c, art. 6-3.d, art. &&e) guarantee to "everyone charged with.a criminal offence" the right "to defend himself in person", "to examine or have examined witnesses" and to have the free assistance of an interpreter if he cannot understand or speak the language used in court', and it is diffcult to see how he could exercise these rights without being present 13 Application No. 9024/80 Colozza v ttaty A 89 (1985) 7 European Human Rrghfs Repofts 516 paragragh 27. 1a Judgment of 12 November, 1997 (Merits) paragraph 82, These guarantees include '[a]dequate time and means for the preparation of his defense [t]he right of the accused to defend himself personally or to be assisted by legal counsel of his oarn choosing, and to communicate freely and privately with his counsel; [and] the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not -L Nv{rt- e -x ,/ 1l t0r0tE 99. ln the circur,tstances, the Court finds that the Applicant was denied the right to be heard and to defend himself in respect of Criminal Case Number 321 of 1996. ll. The alleged lnordinate Delay in the Appellate and Review Proceedings 100. The Applicant alleges that there has been an inordinate delay in the hearing or determination of his Notice for Review of the judgment of the Court of Appeal. 101. The Respondent states that the alleged delays in the Applicant's Appeals have been caused by the Applicant and that he has been afforded ample opportunity to keep pursuing his appeal. The Respondent avers that the Applicant even received guidance from the Court on how to seek extension of time to file his Notice of Appeal out of time. The Respondent maintains that their records do not show that the Applicant filed any application for review. 102. The applicable law in this regard is Article 7(1Xd) of the Charter which provides for 'The right to be tried within a reasonable time by.an impartial court or tribunal." ln determining whether this right has been violated, the Court has to assess whether the trial was concluded within a reasonable time. The standards to be applied in this tegard have been set out in jurisprudence. a o defend himself personally or engage his own counsel within the time period established by lar,rr I]' \k- 40 e x/i f , r -.t .l- l. :00t0tt o o 103. The African Comm'ssion has found that the right to be tried by an impartial tribunal within a rffisonable time is one of the cardinal principles of the right to a fair trialls and that the undue prolongation of the case at the appellate level is contrary to the letter and spirit of Articte 7(1)(d) of the African Charter.l6 104. Similarly, the lnter-American Court of Human Rights has elaborated on the principle of reasonable time, as set forth in Article 8(1) of the American Convention on Human Rights, which is similar to Article 7(1Xd) of the Charter.lT ln doing so, the lnter-American Court has adopted the approach of the European Court of Human Rights in this regard, in respect of which the latter Court has laid out three elements which should be taken into account to establish the fairness of the time incurred in judicial proceedings. These are: a) the complexity of the matter, b) the procedural activities carried out by the interested party, and c) the conduct of judicial authorities.* 15 Communication 301/05 Haregewoin Gebre-Sellaise & lnstitute for Human RiQhts and Development in Africa (on behalf of former Dergue otricials) v Ethiopia decision of 7 November 201 1 paragraph 215.. 16 Communication 199i97 Odjouonby Cossi Paulv Benin (171h Activity Report 2OO3 - 2004) paragraph 28. 17 Case of Sudrez-Rosero v Ecuador Judgment of 12 November 1997 (Merits) paragraph 72. See also Case of Ximenes-Lopes v. Bnzil,4 Juty 2006, IACHR Series C No. 149, paragraph 196; and 6ase of the ttuango Massacres v. Colombia, 1 Jul-v 2006, IACHR Series C No. 148 paragraph 289, Ca* ot Yttaanza Ramlrez de' Batde6n and athers (on behalf of Balde6n Garcia) v Peru,|ACHR Judgment of 6 April 2006, paragraph 15. 18 See ECHR Ruiz Mateos v. Sparn Judgment of 23 June 1993, Series A No. 262, paragraph 30. N.{/ -K/'- €=v- )k I 00roff {$ t 105. ln the instant Application, the Court finds that there was nc) inordinate delay in the hearing, of the appeal to the High Court as it was filed on 8 September 1998 and dismissed on 24 March 2000, one (1) year and seven (7) months after the appeal was filed, 106. The Court also finds that there was inordinate delay with regard to the hearing of the appeal at the Court of Appeal. Following the dismissat of the Appticant's appeal to the High Court at Moshi in Criminal Case Number 82 of 1998 on 23 March 2000, the Applicant commenced what woutd turn out to be a lengthy process of filing an appeal at the Court of Appeal of Tanzania. 107. The chronology of the Appticant's actions in this regard has atready been set out in paragraphs 28 to 33 of this judgment. It was only on 6 June 2008, when the Appticant's appeal, was finally deemed properly filed befiore the Court of Appeal. This amounted to a period of eight (8) years and three (3) months of attempting to file an appealat the Court of Appeal. 108. The Applicant's previous attempts to file the appeal failed due to the lack of court records, which the Applicant consistently requested for, but was not provided with. Furthermore, being a lay, indigent and incarcerated person, the Applicant filed Notices of Appeal which were dismissed on the ground that they were procedurally defective for being unsigned or filed out of time. The Applicant could not have proceeded with his appeal without the Court record, therefore the Respondent's contention that the delays in the appeals were caused by the Applicant lacks substance o o /1/.--' Nlu* 42 u 9 )&' osrooh r o t 109. lt was the responsibility of the Courts of the Respondent to provide the Applicant with the Court record he required to pursue his appeal. Faiture to do so and then maintain that the delayrin the hearing of the Applicant's appeal was the Applicant's fault is unacceptable. The Applicant's case was not a complex one, the Applicant made several attempts to obtain the relevant records of proceedings but the judiciai authorities unduly delayed in providing him with these records. 1 10. Regarding the Applicant's application for review and whether it contributed to the inordinate delay of hearing the Appiicant's matters, the Court considers this to be moot. This is because the Court has found that there was an inordinate delay in the hearing of the Applicant's appeal by the Court of Appeal emanating from the original Criminal Case Number 321 of 1996. lll. The alleged Denial of Legal Aid 1 1 1 . The Applicant alleges that his right to free legal assistance was violated when he was denied legal aid despite being alay, indigent and incarcerated person, having been charged with a serious offence. 112. The Applicant states that Section 3 sf the Legal Aid (Criminal Proceedings) Act places a positive obligation on the certiffing authority to make a determination to grant legal aid where it is desirable, in the interests of justice, or where the accused does not have the means to retain legal aid. The Applicant further states that there is no requirement under the Act stipulating that the accused -fu NJ.4, r@l-/- # I 't 00I008 must request legal aid in order for it to be granted to him or her. He states that his right to pro bono legal assistance was and continuet; to be violated b date, as he has still not been provided with legal aid regarding his Notice for Review, despile repeated requests. 113. The Respondent contends that the Applicant is put to strict proof regarding his allegation that he was not given free legal counsel by the State in any of his cases, which contributed to his various convictions by the Court and that he should prove that he reqr.rested for such assishnce and that he is indeed an indigent person. 114. The relevant provision of the Charter in this regard is,Article 7(1) (c) which has been previously set out. As stated earlier, even though Article 7(1) (c) of the African Charter does not specifically provide for legal aid, the Court can, in accordance with, Article 7 of the Protocol, apply this provision in light of Article 14(3Xd) of the ICCPR. Article 14(3Xd) of the ICCPR provides for one to be provided legal assistance where the interests of justice so require and for such assistance to be provided free of charge where one is unable to pay for the same. 115. ln view of the Respondent having acceded to the ICCPR, itwas enjoined to provide the Applicant with legal aid, given the serious nature of the charges against him and the potential sentence hr: faced if convicted. I l M //v {W N,1,4^ ra g a o 00t00?" 116. The Court is fortified in this position by jurisprudence of the African Commission, which also applies and interprets the Charter, the European Court of Human Rights, which is a Court of similar jurisdiction and applies provisions similar to those in the Charter, being Article 6(3Xc) of the European Convention and the Human Rights Committee which applies Article 14(3Xd) of the ICCPR. 117. The African Commission has, if iCommunication 231/99 Avocats Sans Fronitidres (on behatf of Gadtan Bwarnpamye) v Burundi elaborated on this provision in relation to the right to legal assistance.le 118. The European Court has identified four factors that should be taken into account, eitherseverally or jointly, when determining if the 'interests of justice" necessitates free legal aid, namely: (i) The seriousness of the offence; (ii) The severity of the potential sentence; (iii) The complexity of the case and; (iv) The social and personal situation of the defendant.zo 1s Communication 231/99, Paragraph 30, 14th Activity Report 2000 - 2001.'The Commisslon emphatically recalls that the right to legal assigtance is a fundamental elernent of the right to fairtrial. More so where the interests of justice demand it. lt holds the view that in the case under consideration, considering the gravity of the allegations brought against the accusecl and he nature of the penalty he iaced, it was in the interest of justice for him to have the benefit of the assistance of a lawyer at each stage of the case.' 20 Benham v lJnited Kingdom, ECIHR, Judgmentof 10 June 1996, at paragraph 59; Quamnta v Switzertand, ECIHR. Judgment of 24 May'199't, at paragraph 33; Zdravka Stanev v Bulgaia, ECIHR, Judgment of 6 November 2012, at paragraph 38: Tatat Tun? v Turkey, EQTHR: Judgment of 27 March 2QOt, at paragraph 56; Prezec v Croatia, ECIHR, Judgment of 15 October 2009, at paragraph 29. Biba v Greece, ECIHR, Judgment of 26 September 2000, at paragraph 29. ts(A @-- ry/J-- ,l-r, postfllt t I 119. ln Benham v The tJnited Kngdomz7, the applicant had been charged with non-payment of a debt and faced a maximum penalfT of three (3) months in prison. The European Court held that this potential sentence was severe enough that the interests of justice demanded that the applicant ought to have benefrted from legal aid. ln Salduz v Turkey, the Court held that legal aid should be available for people accused or suspected of a ctime, irrespective of the nature of the particular crime and that legal assistance is particularly crucial for people suspected of serious crimes.22 120. The Court draws inspiration from the jurisprudence of the Human Rights Committee on the interpretation and application of Article 14(3Xd) of the ICCPR. This is with respectto Anthony Cunie v Jamaica, whose circumstances are similarto those of the Applicant in the case before thls Court, as they both raised issues of compliance with constitutional guarantees of their rights to fair trial in their criminal triats and appeals. ln this communication, the Human Rights committee held that Article 1a(3xd) of the lccPR requires; the provision of legal aid in the course of criminal proceedings, where the interests of justice so requirs."zs 21 Application No 19380/92, Judgment of 10 June 1996 (Grand Chamber). 22 ApplicationNo. 36391/02, Salduz v Turkey, Judgment of 27 November 2008 (Grand Chamber) paragraph 54. B Communication Number3TIl}g paragraph 13.2. 'The auhor has claimed hat the absence of legal aid br the purpose of filing a constittttionai motion itself consfitutes a violation of the Covenant. The Committee notes that the Covenant does ncfi contain an express obligation as suct for a State to provide legal hid for individuals in all cases but only, in accordance.with artide 14 (3) (d), in the determination of a criminal charge where the interests of justice so require'. -//- }F-'-/ N,L @- "qn , T t f _ l 00[00!t 121. The African Commission has elaborated on the question of legal assistance in the 'Pinciptes and Guidelines on the Right to a Fair Tial and Legal Assrsfance in Afica' which it adopted in 2003. The guidelines state that an accused person or a party to a civilcase has a right to have free legal assistance, where the interest of justice so require or if he is indigent. The guidelines state that, in criminal matters, whether an accused should be provided free legal assistance in the interests of justice is to be determined by the seriousness of the offence and the severity of the sentence. The Lilongwe Declarction on Acce.ssing Legal Aid in the CriminatJustice Sysfem in Afica goes further to require that legal aid programmes should include all stages of the criminal process from investigation to appeals and all proceedings brought to ensure the proteclion of human rights.2a The Court notes that the Guidelines and Declaration are in line with the jurisprudence elaborated. 122. ln addition, the situation in the United Republic of Tanzania is that the law goveming the provi-sion of legal aid is the Legal Aicl (Criminal Proceedings) Act, 1969. Section 3 thereof requires an officer presiding over judicial proceedings to determine if an arcused person should, in the interests of justice, get legal aid in the 24 This Declaration was adopted by the Conference on Legal Aid in Criminal Justice: the Role of Lawyers and Other Service provide.rs in Africa held in Lilongwe from 22 to 24 November 2004. The declaration has been endorsed by the African Commission on Human and People's Rights vide its Dectaration on the Adoption of the Litongwe Declaration on Accessrn g Legat Aid in the CiminalJustice Sysfem adopted during the Commission's 40th Ordinary Session, held.in Banjul, The Gambia, from 15:29 November 2006. N'\A @ g JL )-Z t t 00100{ . preparation and conduct of his defence or appeal and if such a person has insufficient means to obtain such aid, the officer shoukl certify that the person ought to have such legal aid. Once it is so certified, the Registrar shall, as far as practicable assign to the accused person, an advocate for that purpose. The Court observes that the Court of Appealof Tanzania has held thatthis provision, read togetherwith Section 310 of the Criminal Procedure Act provides for the right of accused persons to get legal aid, the right to be informed of that right and that failure to so inform an accused person witl render a trial a nullity.2s 123. ln conclusion, the Court finds that, the Applicant was entitled to legal aid and he need not have requested for it. The Court notes that even after requesting for it, his request was not granted. The Applicant was charged with the offence of armed robbery, which is a serious offence and which carries a minimum sentence of thirty (30) years imprisonment. He was unrepresented and of ill health, which occasioned him to be absent during the presentation of his defence. Under these circumstances, it was desirable and in the interests of justice for the courts of the Respondent State to have provided the Applicant with legal aid. 124, ln the instant case, the relevant factors that the Court finds should have been borne in mind in the determination of the provision of legal aid to the Applicant, are, the gravity of the offences that the Applicant was facing; the minimum sentence the offence carries as 2s Moses Muhagama Laurance v Govemment of Zanzibar Criminal Appeal N[umber] 17 of 2QO2 citing Ihomas Miengiv R[epublic] [1992] JTLR 157 Pages 11 - 14 of the Judgment 8 October 2001. . J,- A- N,\" ,>? rl - r, 00rf6$: t I specified under the Minimum Sentences Act and his being unrepresented. Having considered allthe above circumstances, the Court finds that it was incumbent upon the trial magistrate and Appellate Judges to ensure that, the Applicant was provided with legal aid. Therefore the Respondent failed to comply with its obligations underthe Charter and the ICCPR to provide the Applicant with legal representation in respect of the trial and subsequent appeals. lV. The alleged Manifest Errors at Trial with Regard to Criminal Case Number 321 of 1996 and their subsequent consideration by the High Court and Court of Appeal 125. The Applicant contends that there were grave inconsistencies between the Charge Sheet and the evidence of the Prosecution Witnesses which adversely affected his right to a fair hearing at the trial and Appellate Courts. These inconsistencies related to: i. Attribution of ownership of stolen items: The Charge Sheet stated that the stolen goods belonged to Mr. Elimani Maleko while in evidence, Prosecution Witness 1, Mr. William Mika, stated that the stolen goods belonged to him. ii. Description of items stolen: The Charge Sheet describes the stolen items as "clutch covers" while Prosecution Witness 1, Mr Mika describes them as "clutch plates" andProsecutiorr Witness 2,Mr. Fredrick Martin Minja, describes them as "clutch facings." b[^ @g Jr- L v sBl{}oa o o iii. Number of items stolen: The Charge Sheet states that the number of stolen items were one hundred (1OO) sets of clutch covers while Prosecution Witness 1, Mr Mika said they were two hundred and fifty (250) sets of clutch covers. iv. Value of items stolen: The Charge Sheet states that the items were valued at Eight HundredThousand Tanzania Shillings fl-shs. 800,0001=) while Prosecution \Mtness 1, Mr Mika testified to their value being Two Million Two Hundred Thousand Tanzania Shillings (Tshs. 2,200,000/=). v. Proof that the offence of armed robbery occuned. The Applicant states that Prosecution Wtness 4, Mr. Ally Saidiwho was one of the two persons alleged to have been attacked and injured during the robbery did not testify to seeing the Applicant at the scene of the robbery incident. The Applicant maintains therefore, that it was wreng to charge hirn with the offence of armed robbery and that, instead he should have at most, been charged with the offence of being in possession of stolen property. vi. The authenticity of the Police Form 3 issued to the alleged victim of the armed robbery: Prosecution Witness 4, Mr. Alty Saidi. The Police Form 3 is issued by a Police Officer who holds the rank of Police Constable and above, te a person claiming to have been injured as a result of a criminat act. The form allows him or her tc obtain medical attention from a health facility. The Applicant @ntends that there was no prosecution testimony to authenticate the Police Form 3 issued to Mr. Ally Saidi. \}A e= J-- ),- ,? Ydl | , , :, i- r "' -,o,pJPoI 'tL.. I I t vii. The causal connection between the Applicant and the alleged recently stolen goods, thus the invocation of the doctrine of recent possession2o to link him to the crime. ln his memorandum of appeal to the High Court at Moshi, vide Criminal Appeal Number 82 of 1998, the Applicant contends that there is no traceability to him, of the items alleged to have been stolen from Mr. William Mika, as these could have been obtained from any motor spares shop. He states that he was at the shop of Prosecution Witness 2, Mr. Fredrick Martin Minja, to collect money that one Mr. Kipisi owed him and not that he was there to sell the alleged stolen items. He alleges that Mr. Kipisi was selfing some items to Mr. Minja then Mr. Kipisi would pay him back from the money he received from Mr. Minja. 126. The Respondent contends that the Applicant is put to strict proof regarding the above allegations. The Respondent also contends that the Applicant was lawfully charged with the offence of armed robbery and that the trial courts had jurisdiction to try the matter. The Respondent furtherstates that these are matters that are not within the purview of this Court because the Court of Appeal of lanzania, being the final court of appeal has already adjudicated upon them. 20 This doctrine relates to a common law principle applied where an accused person is in possession of property which has been recently stolen and the accused either gives no explanation as to how he came to have it, or gives an explanation which could not reasonably be true thus the conclusion that he strcle it or that he received it knowing it to be stolen. /\-'' N*e \= v g I o l.r, 00I000"; 127. ln the Respondent's written submissions to the High Court at Moshi, in respect of Criminal Appeal Number 82 af 1998, the Respondent maintains that though the Applicant was not identified at the scene of the crime, he was found selting the stolen items, a few hours after the robbery. , 128. The record of proceedings for the Applicant's appeal to the High Court at Moshi shows that, in its judgment, the High Court did not considerthe issues of inconsistencies between the charge sheet and one of the prosecution witness's statements regarding' the ownership of the property alleged to have been stolen, the description, number and value of the items stolen, proof that the offence occurred and the application of the doctrine of recent possession to link the Applicant to the crime. These issues were raised by the Applicant in his Appeal. lnstead, the High Court upheld the Applicant's conviction on the basis that he did not use the opportunity to defend himself in the trial court and that the trial magistrate must have therefore been convinced of the strength of the prosecution's case. The High Court upheld the Applicant's conviction and sentence, the latter being the statutory minimurn under the Minimum Sentences Act. 129. The Court of Appeal of Tanzania, considered these points of appeal raised by the Applicant but it did not determine the issue of the owne-rship of the property alleged to have been stolen. 130. This Court does not accept the Respondent's contention that, the issue of manifest errors at trial are not within the purview of this I \Jr, & dl rl-l-, l- r' "t f$ ootreils' o a Court because the Coutt of Appealof Tanzania has determined them with finality. Though this Court is not an appellate body with respect to decisions of national courts27, 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 instrument ratified by the State concerned. With regard to manifest errors in proceedings at national courts, this Qourt will exarnine whether the national courts applied appropriate principles and international standards in resolving the errors. This is the approach that has been adopted by similar intemational courts.28 131. The Court finds that the alleged manifest errors relating to the value of the property, proof that the offence of armed robbery occurred, the authenticity of the Police Form 3 issued to the alleg6d victim of the armed robbery and the causal connection between the Applicant and the allegedly recentty stolen goods lvere not of such a nature as to deny the Applicant his right to a fair trial. However, the 27 See Application OO1|2O13 Emest Fnncis Mtingwiv Republic of Malawi. 2a See Application Na. 76809/01 Baqmann v Austia ECHR Judgment of 7 October 2004 pamgraph 49; Communication 375/09 Priscitta Njei Echaria (rcpresented b,r Fe&mtion of Women Lawyerc, Kenya and lntemational Center for the Protection of Human Rights) v Kenya ACHPR 5 November 2011 paragraph 36; Case of Santiago Manioni v Aryentina 11.673, Repoft No. 39/96, lnter-Ameican Commission on Human Rights, OENSer. Wtl.95 Doc.7 rcv. at 76 (1997) paragraph 51. Also see Application No. 30544/96 Garcla Ruiz v Sparn, Judgment ol21 January 1999 (Grand Chamber) paragraph 28, Application No. 47287199 Percz v Fnnce Judgment of 12February 2004 (Grand Chamber) paragraph 81, Application No S+SSYei, Dulaurans v Fnnce Judgment of 21 March 2000, paragraph 39. - . A* \ n ld" @ '-L-/?} (l00ee8 tl.,* l F Court finds that the failure to deternrine the issue of the ownership of the property alleged to have been stolen and the discrepancies in the description of this property, were violations of a fundamental nature an{ adversely affected his right to a fair hearing at the trial and Appellate Courts. V. The alleged Violation by the Respondent of ,fs Obligation to Recogarse the Rights, Duties and Freedoms Enshrined in the Charter and to Adopt Measures to Give Them Eftecl 132. The Applicant contends generally, that the Respondent has violated Article 1 of the Charter on the obligation to recognise the rights, duties and freedoms enshrined in the Charter andl to undertake to adopt measures to give effect to them. 133. ln response, the Respondent denies violating article 1 of the Charter. The Respondent states that it has domesticated the Charter through the Bill of Rights of its Constitution, the Basic Rights and Duties Enforcement Act and the Criminal Procedure Act. The Respondent has also made the declaration underArticle 34(6) of the Court's Protocol. 134. The Court notes that the Respondent State has ratifled the Charter and adopted constitutional and statutory measuies to domesticate it and made the declaration under Article 34(6) of the Protocol. a t s 9. NL e-(k t T lr ,* 000es? , ., a a 135. However, it should be noted that, in assessing whether the obligation set out under Article 1 of the Charter has been fulfilled, the Court does not merely examine whether the Respondent has enacted legislation or adopted other measures to domesticate thrl Charter. The Court will also assess whether the application of those legislative or other measures is in line with the achievement of the rights, duties and freedoms enshrined in the Charter, that is, the attainment of the objects and purposes of the Charter. This means 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. 136. The Court reiterates its finding in Application No. 1312011 Beneficiaies of Late Norbert Zsngo, Abdoutaye Nikiema Alias Ablasse, EmestZongo and Blaise llboudo & The Burkinabe Human and Peoples'Righfs Movement v Burkina Faso. ln that case, the Court found that, by not seeking out, investigating, prosecuting and putting to trial the killers of Nor:bert Tongo and his companions, Burkina Faso violated Article 7 of the Charter and that by so doing, it simultaneously violated Article 1 of the Charter. The Court is also persuaded by the reasoning of the African Commission with regard to the overarching applicability of Article 1 of the Charter.2e 2s Communication 147195 - 149/96 Sir Dawda K. Jawara v The Gambia 13h Activity Report 1999-2000 paragraph 46'The Commission held that 'Article 1 givesthe Charter the legally biding characler atways attibuted to international treafies of tlris sori Therefore a violation of any prcvision of the Chafter automatically means a violation of Articte 1. /f a Sfatr party to the Charter fails to recognise the Brevisions of the same, there is no doubt that it is ht violation of this Article. ttsvidation, thereforc, goes to the root of the Charter. b$.^ e-,k 000s$* 137. l-taving found that the Applicant was denied a right, to be heard, to defend himself and to legal assistance, the Court therefore finds that the Respondent has violated its obligation under Article 1 of the Charter. Vt. The alteged Deniat of the Right to Equalityr, Before the Law and Equal Treatment of the Law 138. The Applicant makes general allegations regarding the violation of his right to equality before the law and equal treatment of the law as provided for in Article 3(1) and (2) of the Charter. 139. On its part, the Respondent maintained that Articles 12 and 13 of the Constitution of the United Repubtic of Tanzania enshrine these rights and that the Applicant has failed to demonstrate how these guarantees of equality were not applied to him therefore resulting in the alleged violations. 140. The Court finds that the Applicant has failed to substantiate how the guarantees of equality before the law and equal treatment of the law have resulted in a violation of Article 3 of the Charter. The Applicant has failed to show whether and how he was treated in a manner different to that meted out to others who were in the same position as he was. General statements to the effect that this right has been violated are not enough. More substantiation is required. The Court therefore finds no viotation of the said article. I I s6 -l. N9/ ,SL a@ 09/ f 00ogss I I Vll. The alleged Denial of the Right to the Respecf of the Dignity inherent in a Human Being and to the Recognition of his Legal Sfafus and the Prohibition from alt Forms o,f Exploitation and Degndation of Man, Particularly Torture, Cruel, lnhuman or Degnding Punishment and Treatment 141 . The Applicant alleges that the undue delay in the hearing of his appeal and review amounts to torture, cruel, inhuman and degrading punishment and treatment contrary to Article 5 of the Charter. 142. The Respondent maintains that torture, cruel, inhuman and degrading punishment and treatment are prohibited'under Section 13(c) and (e) of the Constitution of the United Republic of Tanzania and that the Applicant should show proof of the same. The Respondent asserts that there has been no delay in hearing the Appticant's appealand review and that his imprisonment is lawful. 143. The Court has found that there has been an undue delay in the hearing of the Applicant's Appeal at the Court of Appeal. The Applicant started pursuing his appeal from 23 March 2000 to 29 May 2009, when the Court of Appeal dismissed the appeal. This was il period of nine (9) years and two (2) months. The issue for determination is whether this nine (9) years and two (2) months' delay in the Applicant's appeal amounts to torture, cruel or inhuman or degrading punishment and treatment. 144. The Court, like the African Commission, applies and interprets the Charter. ln this regard, the Court takes into consideration, the N\it^ e-g .jP V .t,i, i f-i" pp0ssf African Commission's Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, lnhuman or Degrading Treatment ar Punishment in Afica.3o These Guidelines refer to the definition of tortur-e as set out in Article 1 of the United Nations Convention Against Torture which reads: "1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, ,whether physical or mental, is intentionally inflicted on a person for sUch purposes as obtaining from him or a third person information or a conbssion, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing hirn or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. lt does not include pain or suffering arising only from, inherent in or incidental ts lawful sanctions. 2. This article. is without prejudice to any intemational instrument or national legislation which does or rnay contain provisions of wider application." 145. ln view of the above, the Court finds that the Applicant has not proved that the delay in the hearing of his appeal is tantamount to torture. This is because he has not proved that the delay caused him severe mental or physical pain which was intentionally inflicted for a particular purpose. ln addition, he is serving a prison sentence pursuant to lawful sanctions imposed on him. For this reason therefore, the Court finds that there has been no violation of Article 5 of the Charter. 30 The African Commission adopted these guidelines in 2008; the Guidellnes are commonly known as the Robben lstand Guidetines. See also Application 2881C4 Gabiel Shumba v Zmbabwe Decision of 2 May 2012, paragraphs 142 to 166. -'e'-' ,bt'$ Ug I I a a 0f,q$.** 146. The Court also finds that the delay in the Applicant's appeal proceedings does not amount to eruel, inhuman and degrading punishment and treatment, as it does not meet the threshold of severity, intention, and severe humiliation required by the definitions established in jurisprudence.3l Moreover; the Court is of the view that the delay does not per se, constitute cruel, inhuman or degrading ppnishment and treatment, even if it may have saused the Applicant mental anguish. The Court is forttfied in its decision in this regard by the jur:isprudence of the Human Rights Committee.e Vlll. The alleged Violation of the Right to Liberty and Security of the Person. 147. The relevant provision in this regard isArticle 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. ln particular, no one may be arbitrarily anested or detained. , 148. The Applicant has contended that his arbitrary and continued detention caused by the delay in the hearing of his cases amounts to a violation of his right to liberty as provided by Article 6 of the Charter. 31 Prtce v United Kingdom, Judgment of 10 July 2001, paragraphs 24-30; Vala5inas v. Lithuania, Judgment of 24 July 2001, paragraph 117; and Pretty v United Kngdon;, Judgment of 29 April 2002, paragraph 52. 32 Communications 210/1986 & 225t1987, Earl Praft & lvan Morgan v Jamaica CC P RyC/3 5/D 121 0 I 1 9f36 ; CCP R/C/35/D l?2s I 1 987, 7 April 1 989. & s\h @_- M a o o l- r.: j', oq0sst 149. The Respondent on its part, maintains that it has not violated the Applicant's right to liberty. The Respondent states that the right to liberty is not absolute and can be curtailed under conditions laid down by the law, which in the Respondenfs case, the law in this regard is the Criminal Procedure Act. The Respondent asserts that, the Applicant was arrested, arraigned in Qourt, prosecuted and convicted in accordance with the Criminal Procedure Act and the Penal Code. The Respondent maintains that the Applicant cannot therefore contend that his arrest and detention were arbitrary and untawful and that his allegations on the violations of Article 6 are unfounded, baseless and without merit. 1 50. The Court's finding that there is an undue delay in the hearing of the Applicant's appeal at the Court of Appeal does not necessarily mean that there has been a violation of the right to liberty and security of the person. This may be so where the Court finds that there has been such a flagrant denial of justice that the resulting imprisonment of an Applicant would be incompatible with the provisions of Article 6 of the Charter. ln the instant Application, the Applicant was tried and convicted by a legally constituted Court; which passed a sentence against the Applicant based on domestic law, therefore his imprisonment was being carried out pursuant to the court's order. This Court therefore finds that the undue delay in the hearing of the Applicant's appeal did not result in a violation of the right to liberty and security of his person. 4,-' :H N9 Njt"eg a o o . 000991 lX. The alleged Violation of the Right to Receive lnformation 151. The Applicant has stated that the delay in providing him with the record of proceedings of the trial court in respect of Criminal Case Number 321 of 1996 and of the High Court in respect of Criminal Appeal Number 82 o11998 and the lack of information regarding his application for review, violated his right to receive information as provided for in Article 9(1) of the Charter. 152. The Respondent denies that there was a prolonged and unreasonable delay in providing the Applicant with the information that would enable the Applicant prepare his Appeal. 153. The Respondent maintains that the delays in the hearing of the Applicant's cases from the District Court to the Court of Appeal were caused by the Applicant himself and the fact that he had jumped bail. The Respondent asserts that this inadvertently led to him being late to request for copies of proceedings and documents which would have assisted him in the hearing of his appeals. The Respondent further asserts that it does not have a record of the Applicant's Notice for Review therefore, the Applicant's contention that the hearing of his application for Review of the Court of Appeal's judgment cannot be maintained. 154. The Court notes that the record indicates that the Applicant filed a Notice of Review seeking leave to have the decision of the Court of Appeal reviewed. The Court has found that there was an undue delay in the Applicant receiving the record of proceedings in Av :L y2 v\i^ Lg a a o t s0(}$$rl respect of Criminal Case Number 321 of 1996 and the record of proceedings at the High Court in respect of Criminal Appeal Number 82 of :1998 and the lack of information regarding his application foi' review. Article 9(1) relates to the right to receive information in connection with the right to express and disseminate one's opinions within the law. The Court finds that since the requests for the record of proceedings of the High Court were made in the context of the Applicant's appeals to the Court of Appeal, this issue has been addressed by the Court when resolving the contention regarding thb violation of the right to a fair trial as guaranteed by Article 7(1) of the Charter. The Court consequently finds that there was no breach of the right to information as set out in Article 9(1) of the Charter. X. The Applicant's Request to be Released from Prison 155. ln his application, the Applicant requested the Court to order his release from prison. He reiterated this prayer in his Reply to the Respon dent's Response. 156. The Respondent did not speciflcally respond to the Applicant's request to be released from prison. 157. The Court observes that an order for the Applicant's release from prison can be made only under very specific and/or, compelling circumstances.s ln the instant case, the Applicant has not set out 33 See lnter-American Court of Human Rights Qase of Loayza-Tamayo v. Peru Merits. ,f Judgment of '17 September 1gbZ. Series C No. 33, Resolutory paragraphs 5 and 84; ln this case, the Court ordered the Applicant's release since not doing so would have 6! j-- K$^ t-,, a ogfls8g * o a specific or compelling circumstances that would warrant the Court to grant such an order. 158. The Qourt recalls that it has already found violations of various aspects of the Applicant's right to a fiair trial contrary to Article 7(1)(a),(c) and (d) of the Charter and Article 14(3Xd) of the ICCPR. The appropriate recourse in the circumstances would have been to avail the Applicant an opportunity for reopening of the defence caqe or a retrial. s However, considering the length of the sentence he has seryed so far, being about twenty (20) years out of thirty (30) years, both remedies would result in prejudice and occasion it miscarriage of j ustice. 159. The Court therefore orders the Respondent State to take appropriate measures to remedy the violations taking into account the above fractors. Xl. Costs 160. The Respondent prayed that the Court orders the Applicant to bear the costs of the Application. The Court notes that Rule 30 of the Rules of Court states that "[U]nless otherwise decided by the Court, each party shall bear its own costs.'The Court will decide on the issue of costs when it considers the issue of reparations. resulted in a double jeopardy situation which is prohibited by the Amerlcan Convention on Human Rights. 3a See ECTHR Stoyanov v. Bulgaia, Application No. 39206/07, 31 January 2012. -2u -Z\ 63 N* @-,-.g a o o 000ssc For these reasons: 161 . The Court holds: On the Respondenfs Preliminary Objection on Jurisdiction i. Unanimously, that the Respondent's preliminary objection on the lack,of jurisdiction ratione mateiae of the Court as required by Article 3(1) of the Protocol is dismissed and declares that the Court has jurisdiction. On the Respondent's Preliminary Objections on Admissibility ii. Unanimously, that the Respondent's preliminary objection on the admissibility of the Application for incompatibility with the African. Charter and the Constitutive Act of the African Union as required by Article 6(2) of the Protocol read together with Article 56(2) of the Charter and Rule a}Q) ot the Rules is dismissed. l iii. Unanimously, that the Respondenfs preliminary objection on the admissibility of the Application for non-exhaustion of locat remedies as required by Article 6(2) of the Protocol read together with Afticle 56(5) of the Charter and Rule 40(5) of the Rules is dismissed . The Court finds that ttre Applicant exhausted local remedies. iv. Unanimously, that the Respondent's preliminary objection on the admissibility of the Application for not being filed within a reasonable time after exhaustion of local remedies \(^/'L L a e o o 00098r as required by Article 6(2) of the Protocol read together with Article 56(6) of the Charter and Rule 40(6) of the Rules is dismissed. V Unanimously, that the Application is admissible. On the Merits VI Unanimously, that there has been no violation of Articles 3, 5, 6,7(1) (b) and 9(1) of the Charter. vii. Unanimously, that there has been a violation of Articles 1 and 7(1) (a), (c) and (d) of the Charter and Articte 14(3)(d) of the ICCPR. viii. By a vote of six (6) to two (2), Judge Elsie N. THOMPSON, Vice-President and Judge Rafda BEN ACHOUP. dissenting; that the Applicant's prayer for release from prison is denied. tx x. Unanimously, that the Respondent is directed to take all necessary measures within a reasonable time to remedy the violations found, specifically precluding the reopening of the defence case and the retrial of the Applicant, and to inform the Court, within six (6) months, from the date of this judgment of the measures taken. Unanimously, that in accordance with Rule 63 of the Rules of Court, the Court directs the Applicant to file submissions on the request for reparations within thirty (30) days hereof -'0t- N\F 65 & -t _ i-- a o o o$sns* I and the Respondent to reply thereto within thirty (30) days of the receipt of the Applicant's submissions. ln accordance with Article 28(7) of the Protocol and Rule 60(5) of the Rules of Court, the joint Dissenting Opinion of Judge Elsie N. THOMPSON; Vice-President and Judge RafAa BEN ACHOUR, on the Applicant's prayer for release from prison is appended to this Judgment Done, at Arusha this twentieth day of November 2015, in the English and French tanguages, the English text being authoritative. Elsie N. THOMPSON, Vice President; G6rard NIYUNGEKO, J Duncan TAMBAT-A, Judge bA^t Sylvain ORE, Judge El Hadji cUISSE, Judge Ben KIOKO, Judge Raf6a Ben ACHOUR, Judge Solomy B. BOSSA Judge G ti: r.:r1.{ -4. z A \\N L 0effiil a , and Robert ENO, Registrar' a o o t 67