muwinda and others v united republic of tanzania 2021 afchpr 56 5 march 2021

AFRICAN UNION UNION AFRICAINE UNIÃO AFRICANA AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS COUR AFRICAINE DES DROITS DE L’HOMME ET DES PEUPLES THE MATTER OF ALMAS MOHAMED MUWINDA, SYLVESTER ZANGANYA, MARGRET MHANDO & 56 OTHERS V. UNITED REPUBLIC OF TANZANIA APPLICATION No. 030/2017 ORDER (RE-OPENING OF PLEADINGS & EXTENSION OF TIME) 5 MARCH 2021 The Court composed of: Sylvain ORÉ, President; Ben KIOKO, Vice-President; Rafaâ BEN ACHOUR, Ângelo V. MATUSSE, Suzanne MENGUE, M-Thérèse MUKAMULISA Tujilane R. CHIZUMILA, Chafika BENSAOULA, Blaise TCHIKAYA, and Stella I. ANUKAM - Judges, and Robert ENO, Registrar. In accordance with Article 22 of 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 9(2) of the Rules of Court (hereinafter referred to as “the Rules”), Justice Imani D. ABOUD, member of the Court and a national of Tanzania did not hear the Application. ln the Matter of: Almas Mohamed MUWINDA, Sylvester ZANGANYA, Margret MHANDO & 56 Others Represented by: Omari KILWANDA, East Africa Law Society Versus UNITED REPUBLIC OF TANZANIA Represented by Dr Clement J MASHAMBA, Solicitor General, Office of the Solicitor General after deliberation, issues the following Order: 1 I. THE PARTIES 1. Almas Mohamed Muwinda, Sylvester Zanganya, Margret Mhando and 56 others (hereinafter referred to as “the Applicants”), are all Tanzanian nationals. The Applicants bring this action claiming a violation of their right to be paid their subsistence allowances following their retrenchment by a publicly owned corporation, Urafiki Textile Mills, in 1997. 2. The Application is filed against the United Republic of Tanzania (hereinafter referred to as “the Respondent State”), which became a Party to the African Charter on Human and Peoples’ Rights (hereinafter referred to as “the Charter”) on 21 October 1986 and the Protocol on 10 February 2006. It deposited, on 29 March 2010, the Declaration under Article 34(6) of the Protocol through which it accepted the jurisdiction of the Court to receive cases from individuals and Non- Governmental Organisations. On 21 November 2019, the Respondent State deposited, with the Chairperson of the African Union Commission, an instrument withdrawing its Declaration. The Court held that this withdrawal did not have any effect on pending cases as well as new cases filed before 22 November 2020, which is the day on which the withdrawal took effect, being a period one (1) year after its deposit. 1 II. SUBJECT OF THE APPLICATION 3. In their Application, the Applicants allege the violation of their right to be paid emoluments pending their repatriation subsequent to their retrenchment from Urafiki Textile Mills. 4. According to the Applicants, notwithstanding the fact that the Respondent State dissolved Urafiki Textile Mills by a notice published in the Gazette on 21 March 1997, their terminal benefits were not paid immediately. The Applicants further 1 Andrew Ambrose Cheusi v United Republic of Tanzania, ACHPR, Application No. 004/2015, Judgment of 26 June 2020, § 38. 2 allege that the payment of their terminal benefits was only finalised in March 1998. The Applicants thus claim for the payment of subsistence allowance for the time they were jobless while waiting for the payment of their terminal benefits. III. SUMMARY OF THE PROCEDURE BEFORE THE COURT 5. The Application was filed on 25 September 2017 and served on the Respondent State on 23 February 2018. 6. Notwithstanding several reminders from the Registry, the Respondent State has not filed its full List of Representatives, Response or Submissions on Reparations. 7. Pleadings were closed on 28 May 2019 and the Parties were duly notified. 8. On 14 December 2020, the Registry received a request from the Respondent State for extension of time within which to file its Response and Submissions on Reparations. 9. On 7 January 2021, the Registry transmitted the Respondent State’s request for extension of time to the Applicants giving them fifteen (15) days within which to file observations, if any. 10. The Applicant did not file any observations within the time prescribed by the Court. IV. ON THE REQUEST FOR EXTENSION OF TIME AND SUBSEQUENT REOPENING OF PLEADINGS 11. The Respondent State avers that the request for extension of time is due to the fact that “information were being sought from Government stakeholders on the 3 matters, especially in light of the fact that most of the applications need consultations and deliberations with different Governmental agencies.” . 12. The Applicant did not file observations on the request for extension. 13. The Court observes that Rule 45(2) provides: “Where a party seeks to file out of time, the request shall be made within a reasonable time, giving reasons for the failure to comply with the time limit.” 14. The Court further observes that Rule 46(3) of the Rules provides that “the Court has the discretion to determine whether or not to reopen pleadings”. 15. The Court recalls that, where the interests of justice so require, it is empowered by the Rules to order that pleadings be reopened or grant an extension of time for a Party to file its pleadings. In the present case, the Court considers that it appropriate, in the interests of justice, to grant the Respondent State’s request for extension of time to file its pleadings. However, given that pleadings were already closed in this matter, the Court also considers it necessary that pleadings be re-opened for purposes of enabling the Respondent to file its pleadings. V. OPERATIVE PART 16. For these reasons: THE COURT Unanimously, Orders that: i. In the interests of justice, pleadings in Application No. 030/2017 be and are hereby re-opened. ii. The Respondent State should file its full List of Representatives, Response and Submissions on Reparations within thirty (30) days of receipt of this Order. 4 Signed: Sylvain ORÉ, President; Robert ENO, Registrar. Done at Arusha, this Fifth Day of March in the year Two Thousand and Twenty One in English and French, the English/French text being authoritative. 5