Juma v United Republic of Tanzania (Order for Provisional Measures) (Application 024/2016) [2016] AfCHPR 60 (3 June 2016)

AFRICAN UNION AFRICAN UNION ~ - - "~ ' .l b..,"4j\ f %v Jf UNION AFRICAINE UNION AFRICAINE UNIAO AFRICANA UNIÂO AFRICANA AFRICAN COURT ON HUMAN AND PEOPLES' RIGHTS AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS COUR AFRICAINE DES DROITS DE L'HOMME ET DES PEUPLES COUR AFRICAINE DES DROITS DE L’HOMME ET DES PEUPLES IN THE MATTER OF IN THE MATTER OF AMINI JUMA AMINI JUMA V. V. THE UNITED REPUBLIC OF TANZANIA THE UNITED REPUBLIC OF TANZANIA APPLICATION No.024/2016 APPLICATION No.024/2016 ORDER FOR PROVISIONAL MEASURES ORDER FOR PROVISIONAL MEASURES f The Court Composed of; Elsie N. THOMPSON, Vice President, Gerard The Court Composed of; Elsie N. THOMPSON, Vice President, Gérard NIYUNGEKO, Fatsah OUGUERGOUZ, Duncan TAMBALA, Sylvain ORE, NIYUNGEKO, Fatsah OUGUERGOUZ, Duncan TAMBALA, Sylvain ORÉ, El Hadji GUISSE, Ben KIOKO, Raf~a BEN ACHOUR, Solomy B. BOSSA, El Hadji GUISSÉ, Ben KIOKO, Rafâa BEN ACHOUR, Solomy B. BOSSA, Angelo V. MATUSSE- Judges; and Robert ENO-Registrar. Angelo V. MATUSSE- Judges; and Robert ENO-Registrar. In accordance with Article 22 of the Protocol to the African Charter on Human In accordance with Article 22 of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and and Peoples’ Rights on the Establishment of an African Court on Human and Peoples' Rights ("hereinafter referred to as the Protocof'J and Rule 8(2) of Peoples’ Rights (“hereinafter referred to as the Protocol”) and Rule 8(2) of the Rules of Court ("hereinafter referred to as the Rules"), Justice Augustina the Rules o f Court (“hereinafter referred to as the Rules”), Justice Augustino S. L. RAMADHANI, President of the Court and a national of Tanzania, did S. L. RAMADHANI, President o f the Court and a national o f Tanzania, did not hear the Application. not hear the Application. In the matter of: In the matter of: AMINI JUMA AMINI JUMA V. V. THE UNITED REPUBLIC OF TANZANIA THE UNITED REPUBLIC OF TANZANIA After having deliberated, After having deliberated, Makes the following Order, Makes the following Order, I. I. Subject of the Application Subject of the Application 1. 1. The Court received, on 13 April 2016, an Application by Amini Juma The Court received, on 13 April 2016, an Application by Amini Juma (hereinafter referred to as "the Applicant"), instituting proceedings (hereinafter referred to as “the Applicant”), instituting proceedings against the United Republic of Tanzania (hereinafter referred to as against the United Republic of Tanzania (hereinafter referred to as "the Respondent"), for alleged violations of human rights. “the Respondent”), for alleged violations of human rights. 2. 2. The Applicant is a convict, currently detained at Maweni Central The Applicant is a convict, currently detained at Maweni Central Prison in Tanga, Tanzania. The Applicant was convicted for murder Prison in Tanga, Tanzania. The Applicant was convicted for murder by the High Court of Tanzania at Arusha on 18 September 2008 and by the High Court of Tanzania at Arusha on 18 September 2008 and sentenced to life imprisonment. The Applicant appealed to the Court sentenced to life imprisonment. The Applicant appealed to the Court of Appeal of Tanzania which is the highest Court in Tanzania, in of Appeal of Tanzania which is the highest Court in Tanzania, in Criminal Appeal No. 303 of 2008, and his appeal was dismissed on Criminal Appeal No. 303 of 2008, and his appeal was dismissed on 17 October 2011 and his life imprisonment sentence set aside and 17 October 2011 and his life imprisonment sentence set aside and revised with the mandatory sentence to suffer death by hanging. revised with the mandatory sentence to suffer death by hanging. 3. 3. The Applicant states that he lodged an application for review at the The Applicant states that he lodged an application for review at the Court of Appeal but that the Court of Appeal has delayed in the review Court of Appeal but that the Court of Appeal has delayed in the review of its decision until today. of its decision until today. 4. 4. The Applicant states, ;nter alia, that: The Applicant states, inter alia, that: (a) The evidence used to convict him was facial identification and (a) The evidence used to convict him was facial identification and that the description by Prosecution Witness 1 was very scanty that the description by Prosecution Witness 1 was very scanty and that it could fit any other person. and that it could fit any other person. (b) There were contradictions in the evidence. He states that Exhibit (b) There were contradictions in the evidence. He states that Exhibit P3, the motorcycle found in the possession of the Applicant was P3, the motorcycle found in the possession of the Applicant was a HONDA 250, yet Prosecution Witness 2 identified it as a a HONDA 250, yet Prosecution Witness 2 identified it as a YAMAHA. YAMAHA. (c) The Court of Appeal of Tanzania did not fully evaluate the (c) The Court of Appeal of Tanzania did not fully evaluate the evidence on record as they were required to do. evidence on record as they were required to do. (d) The Court of Appeal misled itself as to the location of the crime. (d) The Court of Appeal misled itself as to the location of the crime. He states that at the committal proceedings, the crime was He states that at the committal proceedings, the crime was alleged to have occurred at Kivuyo at Meserani Village in Monduli alleged to have occurred at Kivuyo at Meserani Village in Monduli District, whereas in the judgment of the Court of Appeal, the District, whereas in the judgment of the Court of Appeal, the scene of the crime is stated to be Meserani Village in Monduli. scene of the crime is stated to be Meserani Village in Monduli. This, the Applicant states instead that he was arrested at This, the Applicant states instead that he was arrested at Mererani Mererani in Simanjiro District and Manyara Region. The in Simanjiro District and Manyara Region. The Applicant states Applicant states that that this misdirection created this misdirection created the the false false impression that he was arrested near the scene, yet he was impression that he was arrested near the scene, yet he was arrested more than one hundred (100) kilometres away. arrested more than one hundred (100) kilometres away. (e) The Applicant contends there were undue delays in the hearing (e) The Applicant contends there were undue delays in the hearing of his application for review at the Court of Appeal and of his application for review at the Court of Appeal and discrepancies in trial and appellate proceedings. discrepancies in trial and appellate proceedings. II. II. Procedure before the Court Procedure before the Court 5. 5. The Application was received at the Registry of the Court on 13 April The Application was received at the Registry of the Court on 13 April 2016. 2016. 6. 6. Pursuant to Rule 36 of the Rules of Court, by a notice dated 31 May Pursuant to Rule 36 of the Rules of Court, by a notice dated 31 May 2016, the Registry served the Application on the Respondent. 2016, the Registry served the Application on the Respondent. Ill. III. Jurisdiction Jurisdiction 7. 7. In dealing with an Application, the Court has to ascertain that it has In dealing with an Application, the Court has to ascertain that it has jurisdiction on the merits of the case under Articles 3 and 5 of the jurisdiction on the merits of the case under Articles 3 and 5 of the Protocol. Protocol. 8. 8. However, in ordering provisional measures, the Court need not satisfy However, in ordering provisional measures, the Court need not satisfy itself that it has jurisdiction on the merits of the case, but simply needs itself that it has jurisdiction on the merits of the case, but simply needs to satisfy itself, prima facie, that it has jurisdiction. 1 to satisfy itself, prima facie, that it has jurisdiction.1 9. 9. Article 3(1) of the Protocol provides that "the jurisdiction of the Court Article 3(1) of the Protocol provides that “the jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any interpretation and application of the Charter, this Protocol and any other relevant Human Rights other relevant Human Rights instrument ratified by the States instrument ratified by the States concerned". concerned”. 10. 10. The Respondent ratified the Charter on 9 March 1984 and the Protocol The Respondent ratified the Charter on 9 March 1984 and the Protocol on 10 February 2006, and is party to both instruments; it equally on 10 February 2006, and is party to both instruments; it equally deposited, on 29 March 2010, a declaration accepting deposited, on 29 March 2010, a declaration accepting the the competence of the Court to receive cases from individuals and Non- competence of the Court to receive cases from individuals and Non- 1 See Application 002/2013 African Commission on Human and Peoples' Rights v Libya 1 See Application 002/2013 African Commission on Human and Peoples’ Rights v Libya (Order for Provisional Measures dated15 March 2013) and Application 006/2012 African (Order for Provisional Measures dated15 March 2013) and Application 006/2012 African Commission on Human and Peoples ' Rights v Kenya (Order for Provisional Measures Commission on Human and Peoples' Rights v Kenya (Order for Provisional Measures dated15 March 2013); Application 004/2011 African Commission on Human and Peoples' datedl 5 March 2013); Application 004/2011 African Commission on Human and Peoples’ Rights v Libya (Order for Provisional Measures dated 25 March 2011 ). Rights v Libya (Order for Provisional Measures dated 25 March 2011). Governmental Organisations, within the meaning of Article 34(6) of Governmental Organisations, within the meaning of Article 34(6) of the Protocol read together with Article 5(3) of the Protocol. the Protocol read together with Article 5(3) of the Protocol. 11. 11. The alleged violations the Applicant The alleged violations the Applicant is complaining about are is complaining about are guaranteed under Articles 3 and 7(1) of the Charter and the Court guaranteed under Articles 3 and 7(1) of the Charter and the Court therefore has jurisdiction ratione materiae over the Application. therefore has jurisdiction ratione materiae over the Application. 12. 12. In light of the foregoing, the Court has satisfied itself that, prima facie, In light of the foregoing, the Court has satisfied itself that, prima facie, it has jurisdiction to deal with the Application. it has jurisdiction to deal with the Application. IV. IV. On the provisional measures On the provisional measures 13. 13. In his Application, the Applicant did not request the Court to order In his Application, the Applicant did not request the Court to order provisional measures. provisional measures. 14. 14. Under Article 27(2) of the Protocol and Rule 51 (1) of the Rules, the Under Article 27(2) of the Protocol and Rule 51(1) of the Rules, the Court is empowered to order provisional measures proprio motu '1n Court is empowered to order provisional measures proprio motu In cases of extreme gravity and when necessary to avoid irreparable cases of extreme gravity and when necessary to avoid irreparable harm to persons" and "which it deems necessary to adopt in the harm to persons” and “which it deems necessary to adopt in the interest of the parties or of justice". interest of the parties or of justice”. 15. 15. It is for the Court to decide in each situation if, in the light of the It is for the Court to decide in each situation if, in the light of the particular circumstances, it should make use of the power provided for particular circumstances, it should make use of the power provided for by the aforementioned provisions. by the aforementioned provisions. 16. 16. The Applicant is on death row and it appears from this Application that The Applicant is on death row and it appears from this Application that there exists a situation of extreme gravity, as well as a risk of there exists a situation of extreme gravity, as well as a risk of irreparable harm to the Applicant. irreparable harm to the Applicant. 17. Given the particular circumstances of the case, where there is a risk 17. Given the particular circumstances of the case, where there is a risk of execution of the death penalty which may jeopardise the enjoyment of execution of the death penalty which may jeopardise the enjoyment of the rights guaranteed under Articles 3 and 7(1) of the Charter, the of the rights guaranteed under Articles 3 and 7(1) of the Charter, the Court has decided to invoke its powers under Article 27(2) of the Court has decided to invoke its powers under Article 27(2) of the Protocol. Protocol. 18. 18. The Court finds that the situation raised in the present Application is The Court finds that the situation raised in the present Application is of extreme gravity and represents a risk of irreparable harm to the of extreme gravity and represents a risk of irreparable harm to the rights of the Applicant as protected by Articles 3 and 7(1) of the rights of the Applicant as protected by Articles 3 and 7(1) of the Charter, if the death sentence were to be carried out. Charter, if the death sentence were to be carried out. 19. Consequently, the Court holds that the circumstances require an 19. Consequently, the Court holds that the circumstances require an Order for provisional measures, in accordance with Article 27(2) of the Order for provisional measures, in accordance with Article 27(2) of the Protocol and Rule 51 of its Rules, to preserve the status quo, pending Protocol and Rule 51 of its Rules, to preserve the status quo, pending the determination of the main Application. the determination of the main Application. 20. 20. For the avoidance of doubt, this Order shall not in any way prejudice For the avoidance of doubt, this Order shall not in any way prejudice any findings the Court shall make regarding its jurisdiction, the any findings the Court shall make regarding its jurisdiction, the admissibility and the merits of the Application. admissibility and the merits of the Application. Li/,,, f 6 For these reasons, For these reasons, 21. 21. The Court, unanimously, orders the Respondent to: The Court, unanimously, orders the Respondent to: a) refrain from executing the death penalty against the Applicant a) refrain from executing the death penalty against the Applicant pending the determination of the Application. pending the determination of the Application. b) report to the Court within sixty (60) days from the date of receipt b) report to the Court within sixty (60) days from the date of receipt of this Order, on the measures taken to implement the Order. of this Order, on the measures taken to implement the Order. Done at Arusha, this 3rd day of June in the year 2016, in English, French, Done at Arusha, this 3rd day of June in the year 2016, in English, French, Portuguese and Arabic, the English version being authoritative. Portuguese and Arabic, the English version being authoritative. A Signed: Signed: Elsie N. THOMPSON, Vice President Elsie N. THOMPSON, Vice President Gerard NIYUNGEKO, Judge Fatsah OUGUERGOUZ, Judge I Duncan TAMBALA, Judge Duncan TAMBALA, Judge '6\}W,~ \S W A Sylvain ORE, Judge Sylvain ORÉ, Judge El Hadji GUISSE, Judge Ben KIOKO , Judge Rafaa BEN ACHOUR , Judge Solomy B. BOSSA, Judge / A 'i,))d- Angelo V. MA TU SSE, Judge; and Robert ENO, Registrar , J 8