Guehi v United Republic of Tanzania (Order for Provisional Measures) (Application 001/2015) [2016] AfCHPR 72 (18 March 2016)

AFRICAN UNION AFRICAN UNION UNION AFRICAINE UNION AFRICAINE UNIAO AFRICANA UNIAO AFRICANA AFRICAN COURT ON HUMAN AND PEOPLES' RIGHTS AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS COUR AFRICAINE DES DROITS DE L'HOMME DES PEUPLES COUR AFRICAINE DES DROITS DE L’HOMME DES PEUPLES IN THE MATTER OF IN THE MATTER OF ARMAND GUEHI ARMAND GUEHI vs. VS. THE UNITED REPUBLIC OF TANZANIA THE UNITED REPUBLIC OF TANZANIA APPLICATION NO .001 /2015 APPLICATION NO .001/2015 ORDER FOR PROVISIONAL MEASURES ORDER FOR PROVISIONAL MEASURES J The Court Composed of; Elsie N. THOMPSON, Vice President , Gerard NIYUNGEKO, The Court Com posed of; Elsie N. THOMPSON, Vice President, Gérard NIYUNGEKO, Fatsah OUGUERGOUZ, Duncan TAMBALA , El Hadji GUISSE , Ben KIOKO , Rafaa BEN Fatsah OUGUERGOUZ, Duncan TAMBALA, El Hadji GUISSÉ, Ben KIOKO, Rafâa BEN ACHOUR , Angelo Vasco MATUSSE- Judges; and Robert ENO-Registrar. ACHOUR, Angelo Vasco 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 o f 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 Protocol') 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 of 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 of the Court and a national of Tanzania, did not hear the Application. not hear the Application. In accordance with Article 22 of the Protocol and Rule 8 (2) of the Rules, In accordance with Article 22 of the Protocol and Rule 8 (2) of the Rules, Justice Sylvain Ore, Member of the Court and a national of Cote d'Ivoire, did Justice Sylvain Oré, Member of the Court and a national of Côte d ’Ivoire, did not hear the Application. not hear the Application. In accordance with Rule 8(2)(d) of the Rules of Court, Justice Solomy In accordance with Rule 8(2)(d) of the Rules of Court, Justice Solo my Balungi BOSSA, Member of the Court, did not hear the Application. Balungi BOSSA, Member of the Court, did not hear the Application. In the matter of: In the m atter of; ARMAND GUEHI ARM AND GUEHI vs VS 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. Subject of the Application Subject of the Application l 1 The Court received on 6 January, 2015, an application by Armand Guehi, a citizen 1 The Court received on 6 January, 2015, an application by Armand Guehi, a citizen of Cote d'Ivoire (herein after referred to as "the Applicant"), instituting proceedings of Cote d'Ivoire (herein after referred to as "the Applicant"), instituting proceedings against the United Republic of Tanzania, (hereinafter referred to as against to as the United Republic of Tanzania, (hereinafter referred 'the ‘the Respondent"), alleging that the Respondent has violated his rights contained in Respondent”), alleging that the Respondent has violated his rights contained in International Human Rights Treaties. International Human Rights Treaties. 2. The Applicant, who is in Ukonga Central Prison, Dar es Salaam, Tanzania, was 2. The Applicant, who is in UKonga Central Prison, Dar es Salaam, Tanzania, v/as sentenced to death by the High Court of Tanzania at Moshi on 30 March, 2010 sentenced to death by the High Court of Tanzania at Moshi on 30 March, 2010 for murder. That death sentence was confirmed by the Court of Appeal, which is for murder. That death sentence was confirmed by the Court of Appeal, which is the Highest Court in Tanzania, on 28 February, 2014 . the Highest Court in Tanzania, on 28 February, 2014. 3. The Applicant alleges, inter alia, that: 3. The Applicant alleges, inter alia, that: (a) His conviction cannot be said to have been fair and just, adding that his right (a) His conviction cannot be said to have been fair and just, adding that his right to fair trial was prejudiced, and several of his rights were violated in the to fair trial was prejudiced, and several of his rights were violated in the process. process. (b) Save for the trial in 2010, the Respondent did not provide him with language (b) Save for the trial in 2010, the Respondent did not provide him with language assistance at critical stages of the case, such as when he was interviewed and assistance at critical stages of the case, such as when he was interviewed and recorded his statements at the Police Station, while at the time of his arrest he recorded his statem ents at the Police Station, while at the tim e of his arrest he could only speak and understand the French language. In addition, he alleges could only speak and understand the French language. In addition, he alleges that the Respondent never facilitated consular assistance for him. that the Respondent never facilitated consular assistance for him. (c) After his arrest, the Respondent failed to secure his properties in his house in (c) After his arrest, the Respondent failed to secure his properties in his house in Arusha and as a result the said properties were arbitrarily disposed of. Arusha and as a result the said properties were arbitrarily disposed of. II. Procedure before the Court II. Procedure before the Court 4. The Application was received at the Registry of the Court on 6 January, 2015. 4. The Application was received at the Registry of the Court on 6 January, 2015. 2 5. Pursuant to Rule 35(2)(b) and 35(4)(b) of the Rules of Court, on 21 January 2015, 5. Pursuant to Rule 35(2)(b) and 35(4)(b) of the Rules of Court, on 21 January 2015, the Registry forwarded copies of the application to the Republic of Cote d'Ivoire, the Registry forwarded copies of the application to the Republic of Côte d'Ivoire, , in accordance with Article 5(2) of the Protocol and drew the attention of Cote , in accordance with Article 5(2) of the Protocol and drew the attention of Côte d'Ivoire to the provisions on intervention set out in Rule 53(1) of the Rules of Court. d'Ivoire to the provisions on intervention set out in Rule 53(1) of the Rules of Court. 6. By Note Verbale dated 1 April, 2015, the Republic of Cote d'Ivoire notified the 6. By Note Verbale dated 1 April, 2015, the Republic of Côte d’Ivoire notified the Registry of its intention to intervene in the matter. Registry o f its intention to intervene in the matter. 7. By letter dated 5 January 2016, the Respondent submitted its Response to the 7. By letter dated 5 January 2016, the Respondent submitted its Response to the Application. Application. 8. On 2 March 2016, the Registry received Cote d'lvoire's application to intervene in 8. On 2 March 2016, the Registry received Côte d ’Ivoire’s application to intervene in the matter. the matter. Ill. III. Jurisdiction Jurisdiction 9. 9. In dealing with an application, the Court has to ascertain that it has jurisdiction on 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 Protocol. the merits of the case under Articles 3 and 5 of the Protocol. 10. However, in ordering provisional measures, the Court need not satisfy itself that 10. However, in ordering provisional measures, the Court need not satisfy itself that it has jurisdiction on the merits of the case, but simply needs to satisfy itself, prima it has jurisdiction on the merits of the case, but simply needs to satisfy itself, prima facie, that it has jurisdiction. 1 facie, that it has jurisdiction.1 11. Article 3(1) of the Protocol provides that 'the jurisdiction of the Court shall extend 11. Article 3(1) o f the Protocol provides that ‘the jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation of the to all cases and disputes submitted to it concerning the interpretation of the Charter, this Protocol and any other relevant human rights instrument ratified by Charter, this Protocol and any other relevant human rights instrument ratified by the States concerned' the States concerned’ ' See Application 002/2013 Alr1cen Commission on Human and Peoples Rights v Libya (Order tor Prov1s1onal Measures daled15 ' See Application 002/2013 African Commission on Human and Peoples Rights v Libya (Order for Provisional Measures dated 15 March 2013) and Application 006/2012 African Commission on Human and Peoples· Rights v Kenya (Order for Provisional Measures March 2013) and Application 006/2012 African Commission on Human and Peoples' Rights v Kenya (Order for Provisional Measures da1ed15 March 2013); Application 004/2011 African Commission on Human and Peoples' Rights v Libya (Order for Provlsioral dated15 March 2013); Application 004/2011 African Commission on Human and Peoples' Rights v Libya (Order for Provisioral Measures daled 25 March 2011) Measures dated 25 March 2011 ). 3 12. The Respondent ratified ~ne African Charter on Human and Peoples' Rights on 9 12. The Respondent ratified tne African Charter on Human and Peoples’ Rights on 9 March 1984 and the Protocol on 10 February2006, and is party to both March 1984 and is party to both the Protocol on 10 February2006, and instruments; it equally deposited, on 29 March 2010, a declaration accepting the instruments; it equally deposited, on 29 March 2010, a declaration accepting the competence of the Court competence of the Court to to receive cases receive cases from from individuals and Non individuals and Non- Governmental Organizations, within the meaning of Article 34(6) of the Protocol Governmental Organizations, within the meaning of Article 34(6) of the Protocol read together with Article 5(3) of the Protocol. read together with Article 5(3) of the Protocol. 13. The alleged violations the Applicant is complaining about are guaranteed under 13. The alleged violations the Applicant is complaining about are guaranteed under Article 7 of the Charter and Article 14 of the International Covenant on Civil and Article 7 of the Charter and Article 14 of the International Covenant on Civil and Political Rights ("hereinafter referred to as ICCPR"), and the Court therefore has Political Rights (“hereinafter referred to as ICCPR"), and the Court therefore has prima facie jurisdiction ratione matenae over the application . The Respondent prima fa d e jurisdiction ratione m atenae over the application. The Respondent acceded to the International Covenant on Civi l and Political Rights (ICCPR) on 11 acceded to the International Covenant on Civil and Political Rights (ICCPR) on 11 June 1976 and deposited its instrument of accession on the same date. June 1976 and deposited its instrument of accession on the same date. 14 In light of the foregoing, the Court has satisfied itself that, prima facie , it has 14 In light of the foregoing, the Court has satisfied itself that, prim a facie, it has jurisdiction to deal with the application . jurisdiction to deal with the application. IV. On the provisional measures sought IV. On the provisional m easures sought 15. In his Application, the Appl icant did not request the Court to order provisional 15. In his Application, the Applicant did not request the Court to order provisional measures ; measures; 16. Under Article 27(2) of the Protocol and Rule 51 (1) of the Rules , the Court is 16. Under Article 27(2) of the Protocol and Rule 51(1) of the Rules, the Court is empowered to order provisional measures proprio motu in cases of extreme empowered to order provisional measures proprio m otu in cases of extreme gravity and when necessary to avoid irreparable harm to persons", and ''which it gravity and when necessary to avoid irreparable harm to persons", and “which it deems necessary to adopt in the interest of the parties or of justice; deems necessary to adopt in the interest of the parties or of justice; 17. It is for the Court to decide in each situation if, in the light of the particular 17.lt is for the Court to decide in each situation if, in the light of the particular the the it should make use of the power provided it should make use of the power provided for by for by circumstances, circumstances, aforementioned provisions; aforementioned provisions; 18. The Applicant is on death row and it appears from this application that there exists 18. 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 irreparable harm to the Applicant; a situation of extreme gravity, as well as a risk of irreparable harm to the Applicant; 4 19. Given the particular circumstances of the case, where there is risk of execution of 19. Given the particular circumstances of the case, where there is risk of execution of the death penalty which will jeopardise the enjoyment of the rights guaranteed the death penalty which will jeopardise the enjoyment of the rights guaranteed under Article 7 of the Charter and Article 14 of the ICCPR, the Court has decided under Article 7 of the Charter and Article 14 of the ICCPR, the Court has decided to invoke its powers under Article 27(2) of the Protocol ; to invoke its powers under Article 27(2) of the Protocol ; 20 The Court finds that the situation raised in the present application is of extreme gravity 20 The Court finds that the situation raised in the present application is of extreme gravity and represents a risk of irreparable harm to the rights of the Applicant as protected by and represents a risk of irreparable harm to the rights of the Applicant as protected by Article 7 of the Charter and Article 14 of the ICCPR , if the death sentence were to be Article 7 of the Charter and Article 14 of the ICCPR, if the death sentence were to be carried out. carried out. 21 . Consequently, the Court concludes that the circumstances require an Order for 21. Consequently, the Court concludes that the circumstances require an Order for provisional measures, in accordance with Article 27(2) of the Protocol and Rule 51 of its provisional measures, in accordance with Article 27(2) of the Protocol and Rule 51 of its Rules , to preserve the status quo ante, pending the determination of the main application Rules, to preserve the status quo ante, pending the determination of the main application 22 For the avoidance of doubt, this Order shall not in any way prejudice any final findings 22 For the avoidance of doubt, this Order shall not in any way prejudice any final findings the Court shall make regarding its jurisdiction , the admissibility and the merits of the the Court shall make regarding its jurisdiction, the admissibility and the merits of the application application For these reasons, For these reasons, 23. The Court, unanimously, orders the Respondent: 23. The Court, unanimously, orders the Respondent: a) To refrain from executing the death penalty against the Applicant pending a) To refrain from executing the death penalty against the Applicant pending the determination of the application. the determination of the application . b) To report to the Court within thirty (30) days from the date of receipt of this b) To report to the Court within thirty (30) days from the date of receipt of this Order, on the measures taken to implement the Order. Order, on the measures taken to implement the Order. Done at Arusha, this J'r:.~ .. day ot./1//.~ Done at Arusha, this Y ^ .....day o f/!$ ^ > ...in the y .. . in the year .......... ~ .... , in English . French. ..... in English, French, e a r Portuguese and Arabic , the English version being authoritative . Portuguese and Arabic, the English version being authoritative. s Signed: Signed: Elsie N. THOMPSON, Vice President Elsie N. THOM PSO N, Vice President Gerard NIYUNGEKO, Judge Gérard NIYUNGEKO, Judge Fatsah OUGUERGOUZ, Judge Fatsah OUGUERGOUZ, Judge Duncan TAMBALA, Judge Duncan TAM BALA, Judge El Hadji GUISSE, Judge El Hadji GUISSÉ, Judge Ben KIOKO, Judge Ben KIOKO, Judge Rafaa Ben ACHOUR, Judge Rafaa Ben ACHOUR, Judge Angelo Vasco MATUSE, Judge; and Angelo Vasco MATUSE, Judge; and Robert ENO, Registrar. ~ Robert ENO, Registrar. \ ( 6