Rutechura v United Republic of Tanzania (Application No. 004/2016) [2016] AfCHPR 76 (18 March 2016)

$\frac{00}{18}$ 000196 $90/00$ 000196 AFRICAN UNION **UNION AFRICAINE UNIÃO AFRICANA** الأتحاد الأفريقي

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

# IN THE MATTER OF

# **EVODIUS RUTECHURA**

V.

# THE UNITED REPUBLIC OF TANZANIA

APPLICATION No. 004/2016

# ORDER FOR PROVISIONAL MEASURES


00'01s5 The Court composed of: Elsie N. THOMPSON, Vice President, G6rard NIYUNGEKO, Fatsah OUGUERGOUZ, Duncan TAMBALA, Sylvain ORE, El Hadji GUISSE, Ben Kioko, RafAa Ben-ACHOUR, Solomy Balungi BOSSA, Angelo Vasco MATUSSE - Judges; and Robert ENO-Registrar.

ln accordance with Article 22 ol the Protocol to the African Charter on Human 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 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 not hear the Application.

ln the Matter of:

o

o

# Evadius Rutechura

v.

### The United Republic of Tanzania

After deliberations, Makes the following Order

# l. Subject of the Application

- 1. On 13 January 2016, the Court received, an Application by Evodius Rutechura (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 at Butimba Central Prison in Mwanza, was sentenced to death by the High Court of Tanzania at Moshi on 19 November, 2009 for murder. The death sentence was confirmed by the Court of Appeal, which is the highest Court in Tanzania on 13 September,2012. - 3. The Applicant allege that

- <sup>00</sup>0l9l The decision against him was based on manifest errors on the record, to the extent that the evidence regarding their identification at the scene of the crime was not satisfactorily established due to the discrepancies among the prosecution witnesses. - During his trial there was non-compliance with some of the procedures, such as the procedure on Preliminary hearing as provided under Section 1g2(5) of the Criminal Procedure Act. il - The Prosecution failed to call important witnesses

# ll. Procedure before the Court

- <sup>4</sup> The application dated 29 December 2015 was received at the Registry of the Court on 13 January 2016 - 5. ln accordance with Rule 3s(2) and 3s(4) of the Rules of the court, the Registry fonrrarded theApplication to the United Republic of Tanzania on 18 February 2016 and invited them to respond to the Application within sixty (60) days and to indicate within thirty (30) days of receipt of the Application, the names and addresses of its representatives.

# lll. Jurisdiction

o

o

- <sup>6</sup> 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 - 7. 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, that it has jurisdiction.l

<sup>1</sup>See Application 00212013 African commission on Human and peoples' Rights v Libya (Order for Provisional Measures dated'15 I\4arch 2013) and Applicatio n 006]2012 African commission on Human and peoples' Rights v Kenya (order for provisional Measures datedl5lvarch 2013), Application oo4lzo11 African commission on Human and peoples, Rights v Libya (order for Provisionar rVreasures dated 25 lvrarch 2011)

8. 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 interpretation of the Charter, this Protocol and any other relevant human rights instrument ratified by the States concerned'.

- 9. The Respondent ratified the African Charter on Human and Peoples' Rights on 9 March 1984 and the Protocol on 10 February2006, and is party to both instruments. On 29 March 2010, the Respondent made a declaration accepting the competence of the Court to receive cases from individuals and Non- Governmental Organizations, within the meaning of Article 34(6) of the Protocol read together with Article 5(3) of the Protocol. - 10. The Applicant is complaining about violations of rights guaranteed under 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 prima facie jurisdiction ratione materiae over the application. The Respondent 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. - 11. In light of the foregoing, the Court is satisfied that, prima facie, it has jurisdiction to deal with the application.

## **IV. Provisional measures**

- 12. In his Application, 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 in cases of extreme 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". - 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 under Article 27 92) of the Rules of the Court.

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- ,' . 15. The Applicant is on death row and it appears from this application that there exists <sup>a</sup> - risk of irreparable harm to the Applicant. 000192 - 16. Given the particular circumstances of the case, where there is risk of execution of the death penalty, which may jeopardize the enjoyment of the rights guaranteed under Article 7 of the Charter and Article 14 of the ICCPR, the Court has decided to invoke its powers under Article 27(2) aforesaid ; - 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 Article 7 of the Charter and Article 14 of the ICCPR, if the death sentence were to be carried out. - O f A 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 Rules, to preserve the sfafus quo ante, pending the determination of the main application. - 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,

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

Done at Arusha, this t8 day of in the year Portuguese and Arabic, the English version being authoritative {\t\*l^ ,s-tL , in English, French,

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# 000191

Signed:

Elsie N. THOMPSON, Vice President

Ouspoll.

Gérard NIYUNGEKO, Judge


Julat mangaiz

Fatsah OUGUERGOUZ, Judge

Duncan TAMBALA, Judge

Sylvain ORÉ, Judge

El Hadji GUISSÉ, Judge *St. Guan*

Ben KIOKO, Judge

Rafâa Ben-ACHOUR, Judge

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Solomy Balungi BOSSA, Judge Reading

Angelo Vasco MATUSSE, Judge; and

Robert ENO, Registrar.


# 000190

# **AFRICAN UNION** الاتحاد الأفريقے


# **UNION AFRICAINE**

**UNIÃO AFRICANA**

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

P. O Box 6274 Arusha, Tanzania, Tel: +255 732 979506/9; Fax: +255 732 979503 Web site: www.african-court.org Email registrar@african-court.org

### OFFICE OF THE REGISTRAR

## Ref: AFCHPR/Reg. /Appl. 004/2016/007

COR

## APPLICATION N<sup>o.</sup> 004/2016

## **EVODIUS RUTECHURA VS THE UNITED REPUBLIC OF TANZANIA**

### **CORRIGENDUM**

I write to transmit for your kind attention a corrected version of the attached order with Command A 12/21/20 corrections made as follows:-

Paragraph 2

the words in brackets have been deleted and replaced with "for murder".

Paragraph 16

the word "which" was wrongly spelt.