Faustine v United Republic of Tanzania (Order for Provisional Measures) (Application 018/2016) [2016] AfCHPR 46 (3 June 2016)

AFRICAN UNION AFRICAN UNION ~J~\ .) h.,;f \ UNION AFRICAINE UNION AFRICAINE UNIAO AFRICANA UNIÄO 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 COSMA FAUSTIN COSMA FAUSTIN V. V. THE UNITED REPUBLIC OF TANZANIA THE UNITED REPUBLIC OF TANZANIA APPLICATION N0.018/2016 APPLICATION NO.018/2016 ORDER FOR PROVISIONAL M E A S U R E S /^ ? The Court Composed of; Elsie N. THOMPSON, Vice President, Gerard The Court Composed of; Elsie N. THOMPSON, Vice President, Gérard NIYUNGEKO, Fatsah OUGUERGOUZ, Duncan TAM BALA, Sylvain ORE, NIYUNGEKO, Fatsah OUGUERGOUZ, Duncan TAMBALA, Sylvain ORÉ, El Hadji GUISSE, Ben KIOKO, Raf~a BEN ACHOUR, Salamy 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 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 Peoples’ Rights on the Establishment of an African Court on Human and Peoples' Rights ("hereinafter referred to as the Protocol'? and Human and Peoples’ Rights (“hereinafter referred to as the Protocol”) and Rule 8(2) of the Rules of Court ("hereinafter referred to as the Rules'?, Rule 8(2) of the Rules of Court (‘‘hereinafter referred to as the Rules”), Justice Augustina S. L. RAMAOHANI, President of the Court and a Justice Augustino S. L. RAMADHANl, President of the Court and a national of Tanzania, did not hear the Application. national of Tanzania, did not hear the Application. In the matter of: In the matter of: COSMA FAUSTIN COSMA FAUSTIN 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 22 March 2016, an Application by Cosma The Court received, on 22 March 2016, an Application by Cosma Faustin (hereinafter referred to as "the Appl icant"}, Faustin (hereinafter referred to as inst1tutin proceedings against the United Republic of Tanzania (hereinafter proceedings against the United Republic of Tanzania (hereinafter referred to as "the Respondent"), for alleged violations of human referred to as “the Respondent”), for alleged violations of human rights. rights. 2. The Applicant, who is currently detained at Butimba Central Prison, The Applicant, who is currently detained at Butimba Central Prison, was sentenced to death by the High Court of Tanzania at Bukoba was sentenced to death by the High Court of Tanzania at Bukoba on 23 August 2006. That death sentence was confirmed by the on 23 August 2006. That death sentence was confirmed by the Court of Appeal, which is the highest Court in Tanzania on 8 Court of Appeal, which is the highest Court in Tanzania on 8 November 2011 . The Applicant then made an application to the November 2011. The Applicant then made an application to the Court of Appeal for review of its judgment in Application No.6 of Court of Appeal for review of its judgment in Application No.6 of 2012. 2012 . 3. The Applicant alleges, inter alia, that: The Applicant alleges, inter alia, that: (a) (a) the High Court erred by relying on the evidence of prosecution the High Court erred by relying on the evidence of prosecution witnesses to convict him because it was not credible, and witnesses to convict him because it was not credible, and which was contradictory and inconsistent; and which was contradictory and inconsistent; and (b) (b) the Court of Appeal caused him prejudice occasioning a the Court of Appeal caused him prejudice occasioning a miscarriage of justice by not considering his application for a miscarriage of justice by not considering his application for a review of the appeal judgment. review of the appeal judgment. II. Procedure before the Court Procedure before the Court 4. The Application was received at the Registry of the Court on 22 The Application was received at the Registry of the Court on 22 March 2016. March 2016. Pursuant to Rule 36 of the Rules of Court, on 10 May 2016, the Pursuant to Rule 36 of the Rules of Court, on 10 May 2016, the Registry served the Application on the Respondent. <£,_. Registry served the Application on the Respondent, ~ g_ Ill. III. Jurisdiction Jurisdiction 6. 6. 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. 7. 7. However, in ordering provisional measures, the Court need not However, in ordering provisional measures, the Court need not satisfy itself that it has jurisdiction on the merits of the case, but satisfy itself that it has jurisdiction on the merits of the case, but simply needs to satisfy itself, prima facie, that it has jurisdiction.1 simply needs to satisfy itself, prima facie, that it has jurisdiction.1 8. 8. 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 instrument ratified by the States other relevant Human Rights instrument ratified by the States concerned". concerned”. 9. 9. The Respondent ratified the Charter on 9 March 1984 and the The Respondent ratified the Charter on 9 March 1984 and the Protocol on 10 February 2006, and is party to both instruments; it Protocol on 10 February 2006, and is party to both instruments; it equally deposited, on 29 March 2010, a declaration accepting the equally deposited, on 29 March 2010, a declaration accepting the competence of the Court to receive cases from individuals and competence of the Court to receive cases from individuals and Non-Governmental Organisations, within the meaning of Article Non-Governmental Organisations, within the meaning of Article 34(6) of the Protocol, read together with Article 5(3) of the Protocol. 34(6) of the Protocol, read together with Article 5(3) of the Protocol. 1 See Application 002/2013 African Commission on Human and Peoples' Rights v 1 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 Libya (Order for Provisional Measures dated15 March 2013) and Application 006/2012 African Commission on Human and Peoples' Rights v Kenya (Order for Provisional African Commission on Human and Peoples’ Rights v Kenya (Order for Provisional Measures dated15 March 2013); Application 004/2011 African Commission on Human Measures datedl 5 March 2013); Application 004/2011 African Commission on Human and Peoples' Rights v Libya (Order for Provisional Measures dated 25 March 2011 ). and Peoples’ Rights v Libya (Order for Provisional Measures dated 25 March 2011 ). ~ ( -0' 10. 10. The alleged violations the Applicant is complaining about are The alleged violations the Applicant is complaining about are guaranteed under Articles 3(2) and Article 7(1) (d) of the Charter guaranteed under Articles 3(2) and Article 7(1) (d) of the Charter and the Court therefore has jurisdiction ratione materiae over the and the Court therefore has jurisdiction ratione materiae over the Application. Application. 11. 11. In light of the foregoing, the Court has satisfied itself that, prima In light of the foregoing, the Court has satisfied itself that, prima facie, it has jurisdiction to deal with the Application. facie, it has jurisdiction to deal with the Application. IV. IV. On the provisional measures On the provisional measures 12. 12. 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. 13. Under Article 27(2) of the Protocol and Rule 51 (1) of the Rules, the 13. 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 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”. 14. 14. 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 particular circumstances, it should make use of the power provided for by the aforementioned provisions. for by the aforementioned provisions. 15. 15. The Applicant is on death row and it appears from this Application 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 that there exists a situation of extreme gravity, as well as a risk of irreparable harm to the Applicant. irreparable harm to the Applicant. 16. Given the particular circumstances of the case, where the risk of 16. Given the particular circumstances of the case, where the risk of execution of the death penalty will jeopardise the enjoyment of the execution of the death penalty will jeopardise the enjoyment of the rights guaranteed under Articles 3(2) and 7(1 )(d) of the Charter, the rights guaranteed under Articles 3(2) and 7(1 )(d) 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. 17. 17. The Court finds that the situation raised in the present Application The Court finds that the situation raised in the present Application is of extreme gravity and represents a risk of irreparable harm to is of extreme gravity and represents a risk of irreparable harm to the rights of the Applicant as protected by Articles 3(2) and 7(1 )(d) the rights of the Applicant as protected by Articles 3(2) and 7(1 )(d) of the Charter, if the death sentence were to be carried out. of the Charter, if the death sentence were to be carried out. 18. Consequently, the Court holds that the circumstances require an 18. Consequently, the Court holds that the circumstances require an Order for provisional measures, in accordance with Article 27(2) of Order for provisional measures, in accordance with Article 27(2) of the Protocol and Rule 51 of its Rules, to preserve the status quo, the Protocol and Rule 51 of its Rules, to preserve the status quo, pending the determination of the main Application. pending the determination of the main Application. 19. 19. For the avoidance of doubt, this Order shall not in any way For the avoidance of doubt, this Order shall not in any way prejudice any prejudice any findings findings the Court shall make regarding the Court shall make regarding its its jurisdiction, the admissibility and the merits of the Application. jurisdiction, the admissibility and the merits of the Application. For these reasons, For these reasons, 20. 20. The Court, unanimously, orders the Respondent to: The Court, unanimously, orders the Respondent to: a) refrain from executing the death penalty against the a) refrain from executing the death penalty against the Applicant pending the determination of the Application. Applicant pending the determination of the Application. b) report to the Court within sixty (60) days from the date of b) report to the Court within sixty (60) days from the date of receipt of this Order, on the measures taken to implement receipt of this Order, on the measures taken to implement the Order. 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. Signed: Signed: Elsie N. THOMPSON, Vice President ----c(._ ~-" Elsie N. THOMPSON, Vice President Gerard NIYUNGEKO, Judge Gérard NIYUNGEKO, Judge Fatsah OUGUERGOUZ, Judge Fatsah OUGUERGOUZ, Judge << --r l Duncan TAMBALA, Judge Duncan TAMBALA, Judge ~ lui Sylvain ORE, Judge ~ Sylvain ORÉ, Judge El Hadji GUISSE, Judge El Hadji GUISSÉ, Judge Ben KIOKO, Judge Rafaa BEN ACHOUR , Judge Solomy B. BOS SA, Judge Angelo V MATUSSE, Judge· and ,,..,. t I Robert ENO, Registrar 6