guehi v united republic of tanzania order for provisional measures application 0012015 2016 afchpr 72 18 march 2016

AFRICAN UNION UNION AFRICAINE UNIAO AFRICANA AFRICAN COURT ON HUMAN AND PEOPLES' PEOPLES’ RIGHTS COUR AFRICAINE DES DROITS DE L’HOMME L'HOMME DES PEUPLES IN THE MATTER MATTER OF ARMAND GUEHI vs. VS. THE UNITED REPUBLIC OF TANZANIA TANZANIA .001 /2015 APPLICATION NO .001/2015 ORDER FOR PROVISIONAL MEASURES MEASURES J The Court Composed Com posed of; Elsie N. N. THOMPSON, Vice President, President , Gérard Gerard NIYUNGEKO, NIYUNGEKO, Fatsah OUGUERGOUZ, OUGUERGOUZ, Duncan TAMBALA TAMBALA,, El Hadji GUISSÉ, GUISSE , Ben KIOKO KIOKO,, Rafaa Rafâa BEN ACHOUR ACHOUR,, Angelo Vasco MATUSSE- M ATUSSE- Judges; Judges; and Robert ENO-Registrar. ENO-Registrar. In accordance with Article 22 of o f the Protocol to the African Charter on Human and Peoples Peoples’' Rights on the Establishment of an African Court on Human and Peoples Peoples'' Rights ("hereinafter referred to as the Protocol") Protocol') and Rule 8 (2) of the Rules of Court ("hereinafter (“hereinafter referred to as the Rules”), Rules') , Justice Augustino Augustina S. L. RAMADHANI, RAMADHANI, President of the Court and a national of Tanzania Tanzania,, did not hear the Application. Application. In accordance with Article 22 of the Protocol and Rule 8 (2) of the Rules, Rules, Justice Sylvain Ore, Oré, Member of the Court and a national of Cote d'Ivoire, Côte d ’Ivoire, did not hear the Application. Application. In accordance with Rule 8(2)(d) of the Rules of Court, Court, Justice Solomy Solo my Balungi BOSSA, Member of the Court, Court, did not hear the Application. In the matter m atter of: of; ARMAND ARM AND GUEHI vs VS THE UNITED REPUBLIC OF TANZANIA TANZANIA After having deliberated deliberated,, Makes the following Order, Order, I. Subject of the Application 1l 1 The Court received on 6 January, 2015, an application by Armand Guehi, a citizen of Cote d'Ivoire (herein after referred to as "the Applicant"), instituting proceedings against the United Republic of Tanzania, (hereinafter referred to as 'the ‘the Respondent"), Respondent”), alleging that the Respondent has violated his rights contained in International Human Rights Treaties. 2. 2. The Applicant, who is in Ukonga UKonga Central Prison, Dar es Salaam, Tanzania, v/as was sentenced to death by the High Court of Tanzania at Moshi on 30 March, 2010 for murder. That death sentence was confirmed by the Court of Appeal, which is the Highest Court in Tanzania, on 28 February, 2014 2014.. 3. The Applicant alleges, inter alia, that: (a) His conviction cannot be said to have been fair and just, just, adding that his right to fair trial was prejudiced, and several of his rights were violated in the process. (b) Save for the trial in 2010, the Respondent did not provide him with language assistance at critical stages of the case, such as when he was interviewed and recorded his statem statements ents at the Police Station, while at the tim timee of his arrest he could only speak and understand the French language. In addition, he alleges that the Respondent never facilitated consular assistance for him. (c) After his arrest, the Respondent failed to secure his properties in his house in Arusha and as a result the said properties were arbitrarily disposed of. of. II. Procedure before the Court 4. The Application was received at the Registry of the Court on 6 January, 2015. 2 5. Pursuant to Rule 35(2)(b) and 35(4)(b) of the Rules of Court, on 21 January 2015, the Registry forwarded copies of the application to the Republic of Côte Cote d'Ivoire, , in accordance with Article 5(2) of the Protocol and drew the attention of Cote Côte d'Ivoire to the provisions on intervention set out in Rule 53(1) of the Rules of Court. 6. 6. By Note Verbale dated 1 April, 2015, the Republic of Côte Cote d’Ivoire d'Ivoire notified the Registry of o f its intention to intervene in the matter. 7. By letter dated 5 January 2016, the Respondent subm submitted itted its Response to the Application. 8. On 2 March 2016, the Registry received Côte Cote dd'lvoire's ’Ivoire’s application to intervene in the matter. Ill. III. Jurisdiction 9. 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 Protocol. 10. 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 jurisdiction. 1 facie, that it has jurisdiction.1 11. Article 3(1) of o f the Protocol provides that ‘the 'the jurisdiction 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' concerned’ ' See Application 002/2013 African Alr1cen Commission on Human and Peoples Rights v Libya (Order for tor Prov1s1onal Provisional Measures dated daled15 15 March 2013) and Application 006/2012 African Commission on Human and Peoples' Peoples· Rights v Kenya (Order for Provisional Measures da1ed15 dated15 March 2013); Application 004/2011 African Commission on Human and Peoples' Rights v Libya (Order for Provisioral Provlsioral Measures daled dated 25 March 2011) 2011 ). 3 12. The Respondent ratified ~ne tne African Charter on Human and Peoples' Peoples’ Rights on 9 March 1984 and the Protocol on 10 February2006, 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 Organizations, within the meaning of Article 34(6) of the Protocol read together with Article 5(3) of the Protocol. 13. 13. The alleged violations the Applicant is complaining about are guaranteed under Article 7 of the Charter and Article 14 of the International Covenant on Civil and Political Rights ("hereinafter (“hereinafter referred to as ICCPR"), and the Court therefore has prima facie fa d e jurisdiction ratione matenae application . The Respondent m atenae over the application. acceded to the International Covenant on Civil Civi l and Political Rights (ICCPR) on 11 June 1976 and deposited its instrument of accession on the same date. 14 In light of the foregoing, the Court has satisfied itself that, prim prima facie,, it has a facie jurisdiction to deal with the application application.. IV. On the provisional measures m easures sought 15. In his Application, the Appl icant did not request the Court to order provisional Applicant measures measures;; 16. Under Article 27(2) of the Protocol and Rule 51(1) 51 (1) of the Rules, Rules , the Court is empowered to order provisional measures proprio m motu extreme otu in cases of extreme gravity and when necessary to avoid irreparable harm to persons", and “which ''which it deems necessary to adopt in the interest of the parties or of justice; justice; 17. It is for the Court to decide in each situation if, 17.lt if, in the light of the particular circumstances, it should make use of the power provided for by the aforementioned provisions; provisions; 18. 18. 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 irreparable harm harm to the Applicant; Applicant; 4 19. 19. Given the particular circumstances of the case, where there is risk of execution of the death penalty which will jeopardise 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) of the Protocol ; 20 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 ICCPR,, if the death sentence were to be carried out. 21 21.. Consequently, 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 Rules,, to preserve the status quo ante, ante, pending the determination of the main application 22 For the avoidance of doubt, doubt, this Order shall not in any way prejudice any final findings the Court shall make regarding its jurisdiction, jurisdiction , the admissibility and the merits of the application For these reasons, 23. The Court, unanimously, orders the Respondent: a) To refrain from executing the death penalty against the Applicant pending application.. 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. Order, Done at Arusha, this J'r:.~ .. day oot./1//. Y ^ .....day f/!$~^ > ...in .. . in the ~ the yyeare .......... .... ,ininEnglish, a r ..... English .French, French. Portuguese and Arabic Arabic,, the English version being authoritative. authoritative . s5 Signed: THOM PSO N, Vice President Elsie N. THOMPSON, Gérard NIYUNGEKO, Judge Gerard Fatsah OUGUERGOUZ, Judge BALA, Judge TAMBALA, Duncan TAM El Hadji GUISSE, Judge GUISSÉ, Judge Ben KIOKO, Judge Rafaa Ben ACHOUR, Judge Angelo Vasco MATUSE, Judge; and Registrar. Robert ENO, Registrar. ~ \ ( 6