John v United Republic of Tanzania (Application No. 049/2016) [2016] AfCHPR 51 (18 November 2016)

cal 2016 $01600175)$ CET **UNION AFRICAINE UNIÃO AFRICANA**

**AFRICAN UNION** الاتحاد الأفريقي

> AFRICAN COURT ON HUMAN AND PEOPLES' RIGHTS 000185 COUR AFRICAINE DES DROITS DE L'HOMME ET DES PEUPLES

## IN THE MATTER OF

**CHRIZANT JOHN**

V.

## THE UNITED REPUBLIC OF TANZANIA

### APPLICATION N0.049/2016

ORDER FOR PROVISIONAL **MEASURES** 18 NOVEMB

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# 000184

The Court Composed of; Sylvain ORE, President, Ben KIOKO, Vice President, G6rard NIYUNGEKO, EI Hadji GUISSE, Rafaa BEN ACHOUR, Solomy B. BOSSA, Angelo V. MATUSSE, Ntyam O. IVIENGUE, Marie-Th6rdse MUKAIVIULISA- Judges; and Robert ENO-Registrar

ln the matter of

### CHRIZANT JOHN

o <sup>V</sup>

## THE UNITED REPUBLIC OF TANZANIA

After having deliberated,

o

Makes the following Order,

## l. Subject of the Application

- <sup>1</sup> The Court received, on 1 September 2016, an Application from Chrizant John (hereinafter referred to as "the Applicant"), instituting proceedings against the United Republic of Tanzania (hereinafter referred to as "the Respondent"), for alleged violations of human rights. - 2. The Applicant, who is currently detained at Butimba Central Prison, was sentenced to death by the High Court of Tanzania at Bukoba on

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26 June 2015. That death sentence was confirmed by the C6urt of Appeal, which is the highest Court in Tanzania, on 23 February 2016.

3. The Applicant alleges, inter alia, that

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- a) The trial Court and the Court of Appeal erred in law and in fact when they relied on Exhibit 1 and Exhibit 2, which is a postmortem report of the deceased and a sketch map of the crime scene as evidence to convict him. - b) The High Court and the Court of Appeal erred when they failed to consider the inconsistencies and contradictions in the testimonies of the prosecution witnesses and visual identification evidence of Veronica John (PW1), thereby resulting in a miscarriage of justice and a violation of his rights. - c) Both Courts erred in law and in fact when they discarded the evidence of the Applicant and did not give any reason as to why they reached this decision. - d) Being subjected to the death penalty violates his right to life which is enshrined in the Universal Declaration of Human Rights as well as Articles 13 and 14 of the Constitution of Tanzania.

#### il Procedure before the Court

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- The Application was received at the Registry of the Court on <sup>1</sup> September 2016. 4 - Pursuant to Rule 35 of the Rules of Court, on 26 September 2016, the Registry served the Application on the Respondent. 5

# O lll. Jurisdiction

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- ln 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. o - 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 facie,lhat it has jurisdiction.l 7 - Article 3(1) of the Protocol provides that "the jurisdiction of the Coutl shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any 8

<sup>1</sup> See Application 002/2013 African Commission on Human and Peoples' Rights v Libya (Order for Provisional Measures datedl5 March 2013) and Application 006/2012 African Commission on Human and Peoples' Rights v Kenya (Order for Provisional Measures datedl 5 March 2013); Application OO4I2O11 African Commission on Human and Peoples' Rights v Libya (Order for Provisional Measures dated 25 March 2011).

## 000181

other relevant Human concerned". Rights instrument ratified by the States

- The Respondent ratified the Charter on 9 March 1984 and the Protocol on 10 February 2006, and is party to both instruments; it equally deposited, on 29 March 2010, a declaration accepting the competence of the Court to receive cases from individuals and Non-Governmental Organisations, within the meaning of Article 34(6) of the Protocol, read together with Article 5(3) of the Protocol. I - The alleged violations the Applicant is complaining about are guaranteed under Articles 3(2),4 and 7(1)(c) of the Charter, and the Court therefore has jurisdiclion ratione materiae over the Application. 10 - ln light of the foregoing, the Court has satisfied itself thal, prima facie, il has jurisdiction to deal with the Application. 11

# lV. On the Provisional Measures

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- <sup>12</sup> The Applicant did not request the Court to order Provisional Measures. - 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 'ln cases of extreme gravity and when necessary to avoid irreparable

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harm to persons" and 'Which it deems necessary to adopt in the interest of the parties or of justice".

- 14 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 by the aforementioned provisions. - 15 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.

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- 16 Given the particular circumstances of the case, where the risk of execution of the death penalty will jeopardize the enjoyment of the rights guaranteed under Articles 3(2), 4 and 7(1)(c) of the Charter, the Court has decided to invoke its powers under Article 27(2) of lhe Protocol. - 17 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 Articles 3(2), 4 and 7(1)(c) of the Charter, if the death sentence were to be carried out. - 18 Consequently, the Court holds that the circumstances require an 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 the determination of the main Application.

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19 For the avoidance of doubt, this Order shall not in any way prejudice any findings the Court shall make regarding its jurisdiction, the admissibility and the merits of the Application.

## For these reasons,

- 20. The Court, unanimously, orders the Respondent to - a a) refrain from executing the death penalty against the Applicant pending the determination of the Application. - 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.

Done at Arusha, this 18th day of November in the year 2016, in English and French, the English version being authoritative.

## Signed:

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Sylvain ORE, President Ben KIOKO, Vice President G6rard NIYUNGEKO, Judge El Hadji cUISSE, Judge Rafda BEN ACHOUR, Judge

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