Kenedy Ivan vUnited Republic of Tanzania

Application No. 025/2016

African Court On Human and Peoples’ Rights

S Ore, P; B Kioko, VP; R B Achour, A V Matusse, S Mengue, M T Mukamulisa, T R Chizumii-A, C Bensaoula, B Tchikaya, S L Anukam JJ

March 28, 2019

Reported by: Claris Njihia

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International law-law of treaty- Protocol to the African Charter on Human and Peoples` Rights on the Establishment of an African Court on Human and Peoples` Rights-jurisdiction-jurisdiction of the African Court on Human and People’s rights to hear cases of violation of human rights and fundamental freedoms- whether the African Court on Human and People’s Rights had the material jurisdiction to hear and determine the application before it- Protocol to the African Charter on Human and Peoples` Rights on the Establishment of an African Court on Human and Peoples` Rights,1987, article 3(1).

International law— law of treaty- African (Banjul) Charter On Human and Peoples’ Rights- time limit-time limit for filing applications before the African court on human and people’s rights-whether the African (Banjul) Charter On Human and Peoples’ Rights stipulated timelines within which to file an application before the African Court on Human and People’s Rights-African (Banjul) Charter On Human and Peoples’ Rights,1981, article 56 (6).

International law-appeals-violation of human rights and fundamental freedoms-appeals to theAfrican Court on Human and People’s Rights on violation of human rights and fundamental freedoms- whether the African Court on Human and People’s Rights was sitting as an appellate court while determining the application pertaining to violation of human rights and fundamental freedoms

Brief Facts:

The applicant alleged violation of his human rights and fundamental freedoms arising from previous proceedings. The record before the Court indicated that in the applicant together with others stole cash Tshs. 35,000/=, a radio make Panasonic valued at Tshs. 20,000/=. It was alleged that the applicant used a fire arm and a machete in order to steal or overcome resistance.

Three (3) of the prosecution witnesses testified in the District Court that they were in the house that was the subject of the robbery. They identified the applicant and one Baraka as being among the assailants on the day of the robbery. The applicant alleged that he was deprived of a fair hearing when the magistrate failed to summon his witnesses in spite of his request and that that violated his rights. He also alleged that he had no legal representation at both the initial trial and appeal stages of his case.

Issues:

i. Whether the African Court on Human and People’s Rights had the material jurisdiction to hear and determine the application before it.

ii. Whether the court was sitting as an appellate court while determining the application pertaining to violation of human rights and fundamental freedoms Whether an applicant had to exhaust local remedies before referring an application to the African Court on Huma and People’s Rights.

iii. Whether the African Charter On Human and Peoples’ Rights stipulated timelines within which to file an application before the African Court on Human and People’s Rights.

iv. Whether the instant court could evaluate matters of evidence that were settled in national courts.

v. Whether the applicant was entitled to free legal aid

Relevant Provisions of Law

Protocol to The African Charter On Human and Peoples` Rights On the Establishment of an African Court On Human and Peoples` Rights,1987

Article 3(1) –Jurisdiction

1) The jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned

Article 6(2)- Admissibility of Cases

2)The Court shall rule on the admissibility of cases taking into account the provisions of article 56 of the Charter

African (Banjul) Charter On Human and Peoples’ Rights,1981

Article 7(c)– Every individual shall have the right to have his cause heard. This comprises:

(c) the right to defense, including the right to be defended by counsel of his choice

Article 56 (6)- Communications relating to human and peoples’ rights referred to in 55 received by the Commission, shall be considered if they:

6. Are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter

Rules of African Court On Human and Peoples’ Rights

Rule 39 -Preliminary Examination of the Competence of the Court and of Admissibility of Applications

The Court shall conduct preliminary examination of its jurisdiction and the admissibility of the application in accordance with articles 50 and 56 of the Charter, and Rule 40 of these Rules.

Rule 40(6)-conditions for admissibility of applications

Pursuant to the provisions of article 56 of the Charter to which article 6(2) of the Protocol refers, applications to the Court shall comply with the following conditions:

6. be filed within a reasonable time from the date local remedies were exhausted or from the date set by the Court as being the commencement of the time limit within which it shall be seized with the matter

Held:

1. The Court’s material jurisdiction was established if the application brought before it raised allegations of violation of human rights; and it sufficed that the subject of the application related to the rights guaranteed by the Charter or any other relevant human rights instrument ratified by the State concerned. The instant application invoked violation of the human rights protected by the Charter and other human rights instruments ratified by the respondent State.

2. The Court was not an appellate body with respect to decisions of national courts. That did not preclude it from examining relevant proceedings in the national courts in order to determine whether they were in accordance with the standards set out in the Charter or any other human rights instruments ratified by the state concerned. The Court exercised jurisdiction as long as the rights allegedly violated were protected by the Charter or any other human rights instruments ratified by the respondent state. By exercising that mandate, the Court was not acting as an appellate Court.

3. The applicant filed an appeal against his conviction before the Court of Appeal of Tanzania, the highest judicial organ of the respondent state and that Court of Appeal upheld the judgments of the High Court and the District Court. The remedies of constitutional petition and review in the Tanzanian judicial system were extraordinary remedies that the applicant was not required to exhaust prior to seizing the instant Court. It was thus clear that the applicant had exhausted all the available domestic remedies.

4. Article 56(6) of the Charter did not specify any time frame within which a case had to be filed before the African Court on Human and Peoples’ Rights. The records before the instant Court showed that local remedies were exhausted on February 17, 2012, when the Court of Appeal delivered its judgment. Therefore, that should be the date from which time should be reckoned regarding the assessment of reasonableness. The application was filed on April 22,2016, four (4) years and thirty-six (36) days after exhaustion of local remedies. Therefore, the Court had to determine whether that time was reasonable. The reasonableness of the timeframe for seizure depended on the specific circumstances of the case and had to be determined on a case-by-case basis. The time spent by the applicant in attempting to exhaust the said remedy should thus be taken into account when assessing the reasonableness of time.

5. From the record, the applicant was in prison, restricted in his movements and with limited access to information; he was indigent and unable to pay for a lawyer. The applicant also did not have free assistance of a lawyer throughout his initial trial and appeals; and was not aware of the existence of the instant Court before filing the application. Ultimately, the above mentioned circumstances delayed the applicant in filing his claim to the instant Court. Thus, the four (4) years and thirty-six (36) days taken to file the application before the instant Court was reasonable.

6.The Court did not have the power to evaluate matters of evidence that were settled in national courts. The Court had the power to determine whether the assessment of the evidence in the national courts complied with relevant provisions of international human rights instruments. Domestic courts enjoyed a wide margin of discretion in evaluating the probative value of a particular evidence. As an international human rights court, the Court could not take up that role from the domestic courts and investigate the details and particularities of evidence used in domestic proceedings.

7. When visual or voice identification was used as evidence to convict a person, all circumstances of possible mistakes should be ruled out and the identity of the suspect should be established with certitude. That demanded that the identification should be corroborated by other circumstantial evidence and had to be part of a coherent and consistent account of the scene of the crime.

8. The record before the Court showed that the national courts convicted the applicant on the basis of evidence of visual identification tendered by three (3) prosecution witnesses, who were at the scene of the crime. Those witnesses knew the applicant before the commission of the crime, since they were neighbours. The national courts assessed the circumstances in which the crime was committed, to eliminate possible mistaken identity and they found that the applicant was positively identified as having committed the crime. The Court found that the respondent state had not violated article 7(1) of the Charter as regards the trial Court’s alleged reliance on defective evidence and the failure to summon the defence witnesses.

9. The applicant’s allegation that there was not enough light to properly identify him as the assailant so as to warrant his conviction were all details that concerned particularities of evidence, the assessment of which had to be left to the national courts. The manner in which the national courts evaluated the facts and evidence and the weight they gave to them did not disclose any manifest error or miscarriage of justice to the applicant which required the instant Court’s intervention.

10. An essential aspect of the right to defence included the right to call witnesses in one’s defence. The applicant claimed that at both the trial court and the High Court, he requested his witnesses to be summoned. The respondent state refuted that assertion, arguing that the applicant did not give notice of any witness appearing to testify in his defence. The Court could only rely on the information on record. The applicant did not give any information on the names of witnesses that he allegedly notified the national courts to summon and when he made the request. Further, there was nothing on record to show that the applicant made any request for the summoning of the defence witnesses and that the courts refused to grant it.

11. Article 7(1)(c) of the Charter did not provide explicitly for the right to free legal aid. It established the right to free legal aid where a person was charged with a serious criminal offence, who could not afford to pay for legal representation and where the interest of justice so required. The interest of justice was required in particular, if the applicant was indigent, the offence was serious and the penalty provided by the law was severe.

12. The applicant was not afforded free legal aid throughout the proceedings in the national courts. The respondent state did not dispute that the applicant was indigent, that the offence was serious and the penalty provided by law was severe, it only contended that he did not make a request for legal aid. Given that the applicant was charged with a serious offence-armed robbery, carrying a minimum punishment of thirty (30) years imprisonment; the interest of justice required that the applicant should have been provided with free legal aid irrespective of whether he requested for such assistance.

13. The respondent state violated the applicant’s right to a fair trial due to the fact that he was not afforded free legal aid in the course of the criminal proceedings against him. Any violation of an international obligation that had caused harm entailed the obligation to provide adequate reparation The violation it established caused moral prejudice to the applicant.

14. The Court could be ordered only in specific and compelling circumstances such as; if an applicant sufficiently demonstrated or the court by itself established from its findings that the applicant’s arrest or conviction was based entirely on arbitrary considerations and his continued imprisonment would occasion a miscarriage of justice. The determination of whether factors in a given case were special or compelling had to be done with a goal of maintaining fairness and avoiding double jeopardy. The applicant had not demonstrated specific or compelling circumstances to warrant an order for release.

Application allowed; each party to bear its own costs

Orders

 i.   The respondent state was to pay the applicant the sum of Tanzania Shillings Three Hundred Thousand (TZS 300,000) free from tax as fair compensation to be made within six (6) months from the date of notification of the Judgment, failing which it would be required to pay interest on arrears calculated on the basis of the applicable rate of the Central Bank of Tanzania throughout the period of delayed payment until the amount was fully paid.

ii.  The respondent state was to submit a report on the status of implementation of the decision set forth within six (6) months from the date of notification of the Judgment.

iii. The applicant’s prayer for release from prison, without prejudice to the respondent state applying such a measure proprio motu was dismissed.

Relevance to the Kenyan Situation

Article 50 of the constitution of Kenya 2010 on fair hearing provides at 2(h) that every person has a right to a fair trial which includes the right to have an advocate assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result.

The Constitutional and human Rights division of the High Court is mandated under article 165(3) to determine questions on violation of human rights and fundamental freedoms.

John Muruge Mbogo v Chief of the Kenya Defence Forces & another [2018]eKLR that there can be no sufficient redress for violation of human rights and fundamental freedoms through monetary compensation. This is because Courts cannot place a commercial value on violated human rights. They merely impose some monetary compensation as a consequence of infringement of human rights and fundamental freedoms which is intended to deter future violations, but not to repair the already violated rights and fundamental freedoms. Through the act of compensation, Courts send a message to the would be violators of  human rights that Courts will not let go such violations without some form of reparation. 

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