jonas v united republic of tanzania application no 0112015 2017 afchpr 8 28 september 2017

r AFRIGAN UNION UNION AFRICAINE uuIAo AI=RICANIA *ffirrl=f,[r AFRICAN COURT ON HUMAN AND PEOPLES' RIGHTS COU'R AFRICAINE DES iDROITS DE L'HOMME ET DES PEUPLES IN THE MATTER OF APfUCATON No. fi1l20{5 CHRISTOPHERJOhIAS v. UNIIED REPUBLIS OF TATEANIA JUDGMENT 28 SEPTEMBER 2:017 ffi v- @- The Csurt composed of: Sylvain ORE, President, Ben KIOKO, Mce-President Gerard NIYUNGEKO, El Ha ji GUISSE, Rafda BEN ACHOUR, Solomy B. BOSSA, Angelo V. MATUSSE, Ntyam O. MENGUE, Marie-Therese MUKAMULISA, Tuiilane R. CHIZUMILA and Chafika BENSAOULA: Judges-; and Robert ENO, Registrar. In the Matter of: Christopher Jonas, represented by Pan African Lawyers Union (PALU) V United Republic of Tanzania, represented by: i) Ambassador Baraka H. LUVANDA, Director, Legal Affairs, Ministry of Foreign Affairs East Africa, Regional and and lnternational Cooperation ii) Ms. Sarah MWAIPOPO, Director, Gon'stitutional Affairs and Human Rlghts, Attorney General's Chambers iii) Ms. Nkasori SARAKIKYA, Assistant Director, Human Rights, Principal State Attorney, Attorney General's Chambers iv) Mr. Mark MULWATUBO, Principal State Attorney, Attorney General's Chambers v) Ms. Sylvia MATIKU, Principal State Attorney, Attorney General's Chambers vi) Ms- Blandina KASAGAMA, Legal Officer Ministry of Foreign Affairs East Afriea, Regional and and lnternational Cooperation ti I T After deliberation, l '/ ll,) renders the followlng Judgment: t.. / l B 7 .,/ ) r 2 /\ -n' - \-- ' ./ i\-, ) tt '.-- > c__> I. THE PARTIES 1. The Applicant, Mr Christopher Jonas, is a national of the United Repubtic of Tanzania, currently serving a thirty year custodial sentence at the Ukonga Prison in Dar-es-Salaam, United Republic of Tanzania. 2. The Application is filed against the United Republic of Tanzania (hereinafter referred to as the "Respondent"), which became party to the African Charter on Human and Peoples' Rights (hereinafter referred to as the "Charter") on I March, 1984, and the Protocolto 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") on 10 February, 2006. lt also deposited the declaration under Article 34(6) of the Protocol, accepting the jurisdiction of the Court to receive cases from individuals and Non- Governmental Organizations on 29 March, 2010. The Respondent has also ratified and acceded to other regional and international human rights instruments, including the lnternational Covenant on Civil and Political Rights (hereinafter referred to as the "Covenant") on 11 July, 1976. II. SUBJECT OF THE APPLICATION 3. The instant Application concerns Criminal Case No. 429 of 2002 before the District Court of Morogoro; before the l{igh Coirrt of Tanzanla under reference Criminal Case No. 6 of 2005; and before the Court of Appeal of Tanzania sitting at Dar-es-Salaam, under reference Criminal Case No. 38 of 2006, in which the Applicant was found guilty and sentenced to thirty (30) years imprisonment for armed robbery, an offence punishable under Sections 285 and 286 of the Criminal Code, Chapter 16 of the Laws of Tanzania. sd 3 '-.,r (.- \:*,-* f' ./) A) The Facts 4. The Applicant and one Erasto Samson were jointly charged wth stealing money and various rtems of mlue fom one Habib-u Sailion 1 Odober, 2W2, using violence and injuring fre victim intrefacewitt a machete. 5. On 13 February,2004, the Morogoro District Court rendered its Judgment finding the Applicant and Erasto Samson gutlty of the offence as charged. They were both sentenced to thirty (30) years imprisonment and twelve (12) strokes of the cane, Erasto Samson having been tried tn absenfla. 6. On 26 February, 2004, the Applicant flled an Appeal before the High Court of Tanzania in Dares-Salaam but that Appeal was dismissed on 12 September, 2005. 7. On 21 September, 2005, the Applicant filed an Appeal before the Court of Appeal of Tanzania in Dar=es-Salaam. On 27 March, 2009" the Appeal was similarly dismissed as regards the 3O-year prison sentence. However, the Court of Appeal amended the sentence, setting aside the corporal punishment of twelve (12) strokes of the cane. B) Alleged violations B. The Applicant alleges: "(i). That he had been charged and wrongly convicted for armed robbery with thirty (30) year custodial sentence; that the Trial Magistrate and the Appeal Court judges grossly erred in law and fact for having taken into account the key testimony of Prosecution Witness PW1, Habibu Saidi Shomari, whlch evidence does not corroborate the particulars on the charge sheet, especially the list of the items allegedly stolen, their respective values and the estimated total amount; (ii). That the thtrty (30) year sentence pronounced against him by the Trial Magistrate was not in force at the time the robbery was committed (1 October 2OO2); that Sections 285 and 286 of the Penal Code provide a maximum punishment of fifteen(15) years imprisonment; that the thirty (30) year prison sentence came into force only in 2004 sequel to decree No. 269 of 2O04, as amended and which became Section 287 A of tlre Penal Code; (iii) That he was denied the right to i n; € 4 -#.) (iv) That lre did not have the benefit of Counsel or legal assistance throughout his trial; and (v) That for all these reasons, the Respondent State violated Section 13 (b) (c) of the 1977 Constitution of the United Republic of Tanzania as well as Articles 1,2,3,4.5.6,7(1)(c) and 7(2) of theAfrican Charteron Human and Peoples'Rights." III. PROCEDURE BEFORE THE COURT g. The Application was received at the Registry on 11 May, 2015 10.8y a letter dated I June,2015, the Registry, pursuantto Rule 35 (2) and (3) of the Rules of Court (hereinafter referred to as "the Rules"), transmitted the Application to the Respondent, the Chairperson of the African Union Commission and, through her, to other States Parties to the Protocol. 1 1. On 15 July, 2015, the Respondent transmifted to the Registry the names and addresses of its representatives; and on 11 August, 2015, submitted its Response to the Application. 12. On 17 August , 2015, the Registry transmitted the Respondent's Response to the Applicant. 13. On the Coutt's directive to seek legal assistance for the Applicant, the Registry, on 6 January, 2016, wrote to the Pan African Lawyers' Union (PALU), to enquire whether the latter would consider providing legal assistance to the Applicant. 14.8y a letter dated 20 January,2A16, PALU agreed to provide assistance to the Applicant; and on 30 March, 2016, requested an extension of the time for submission of its Reply to the Respondent's Response^ 15.On 29 April, 2016, the Couft granted PALU the extension requested, and the Parties were accordingly notified by a notice of the same date. 16.On 14 June, 2016, PALU filed the Reply to the t's Response ffi which was transmitted to the Respondent for informat 5 / ." ,r 'rJ -{/ <-1) C--t-- 17.At its 42nd Ordinary Sssirn heH fom 5b 16 Sepbmber, 2016, he Cou( pursnnttrc Rub 59 (1) ofhe Rulesdqiledbdcetewittsn poeedlngs ardbprwed wih defbemtirs. M. PRAYERS OF THE PARTIES 18,ln the Application, the Court is requested to: '(i) uphold all the rights flouted and vlolated by the Respondent State; (ii) rehabilitate the Applicant with respect to all his rights; (iii) order reparations for all the darnages he suffered' 19.1n his Reply to the Respondent'S Response, the Applicant prays the Court to '(i) find that the Respondenl has violated his right to full equality before the law and his right to equal protection of the law as enshrined in Article 3 of the Charter; (ii) find that the Respondent has violated his right to a fair trial as enshrined in Article 7 of the Charter; (iii) set aside the guilty verdict and the punishment imposed on him and, consequently order his release from prison; (iv) issue an order for reparation; (v) order such other measures or remedies as this Honourable Couft may deem appropriate". 20.|n its Response to the Application, the Respondent prays the Court, with respect to its jurisdiction and the admissibility of the Application, to: !(i) Rule that the Applioation has not evoked (sic) the jurisdiclion of the Cou( and shsuld consequ€ntly be dismissed; (ii) Rule that the Application has not met the admissibility requirements stipulated under Rule 40 (5) and (6) of the Rules of Court and consequently dismiss it & 6 JL / (iii) Rule that the Court has no jurisdiction to issue an order compelling the Respondent State to release the Applicant from detention". 21.On the merits of the case, the Respondent prays the Court to: '(i) Rule that the Govemment of thre United Republic of Tanzania has not violatedArticles 1,2,3,4, 5,6,7:1 c)and7.2 of the Charter; (ii) Rule that the Government of the United Republic of Tanzania did not breachArticle 13. b) and c) of the Constitution of the United Republic of Tanzania; (iii) Rule that the conviction and sentence imposed on the Applicant by the Trial Court, the High Court and the Court of Appeal of Tanzania were proper and not excessive; (iv) Rule that the thirty (30) year prison sentence for the sffence of armed robbery is lavrrful; (v) Rute that the Government of the United Republic of Tanzania did not discriminate against the Applican( (vi) Deelare that the Government of the United Republic of Tanzania should not pay reparations to the Applicant; (vii ) Dismiss the Application in its entirety for lack of merit" V, PRELIMINARY OB.IEGTIONS BAISED BY THE RESPONDENT 22.1n its Response to the Application, the Respondent raised preliminary objections on both the jurisdiction of the Court and the admissibility of the Application. F I .l:-.- 7 r A. ON THE JURISDICTION OF THE COURT 23. ln accordance with Rule 39 (1) of the Rules, "the Court shall conduct preliminary examination of its jurisdiction..." i) Objection with respect to the material jurisdiction of the Couri 24.The Respondent argues that the Applicant prays the Court to sit as an appellate court or a supreme court whereas it is not withln its power. 25.According to the Respondent, Article 3 of the Protocol does not provide this Court with the jurisdiction to adjudicate over matters raised by the Applicant before the national couds, revise the Judgments of these courts, evaluate the evidence and come to a conclusion 26,The Respondent maintains that the Court of Appeal of Tanzania, in its Judgment in Criminal Appeal Case No. 38/2006, examined all the allegations raised by the Applicant and that this Court (African Court) should respect the judgment of the Court of Appeal of Tanzania. 27.The Applicant for his part refutes this assertion. Citing this Court's jurisprudence in Alex Thomas and Josepft Peter Chacha against the United Republic of Tanzanla, the Applicant contends that this Couft has jurisdiction as long as there are allegations of violation of human rights. 28. The Court reiterates its position that it is not an appeal court with respect to the decisions rendered by the national courtsl. However, as it underscored in its Judgment in Alex Thomas v. United Republic of Tanzania, and Mohamed Abubakai v. United Republic of Tanzama, this does not preclude it from ascertaining whether the procedures before national courts are in 1 See Ernest Francis Mtingwi v. Republic of Malawi(Application No. 001/2013), Judgment of 15 March 2013, paragraph 14; ,da -l lt \l 8 r ,rt-\ .4; ! L,.+ ,l,l' .,-'t- / .t : _)- -1-/ .t ,/\ accordance with the international standards set out in the Charter or other applicable human rights instruments2. 29. Be that as it may, the Applicant alleges violation of the rights gr.raranteed by the Charter. 30.The Court therefore dismisses the objection raised by the Respondent in this regard, and holds that it has materialjurisdiction. ii) Ather aspects of jurisdiction 31. The Court notes that its personal, temporal and territorialjurisdiction has not been contested by the Respondent, and nothing in the file indicates that the Court does not have jurisdiction. The Court therefore, holds that: (i) it has jurisdiction ratione personae given that the Respondent is a party to the Protocol and has deposited the declaration required under Article 34 (6) thereof, which enables individuals to institute cases directly before it, in terms of Article 5(3) of the Protocol (ii) it has jurisdiction ratione temporis in terms of the fact that the alleged violations are continuous in nature since the Applicant remains convicted on the basis of what he considers as irregularities3 ; (iii) it has jurisdiction rationae loci given that the facts of the matter occurred on the territory of a State Party to the Protocol, that is, the Respondent. 32^ From the foregoing, the Court concludes that it has jurisdiction and is therefore competent to hear the instant case. 2 Alex Thomas v. United Republic of Tanzania (Application No. 005 of 2013), Judgment of 20 November 2015, paragraph 130 and Mahamed Ahubakari v. United Republic of Tanzania (Application No. 003 of 2012), Judgment of 3 June 2016, paragraph 29 3 Zongo and Others v. Burkina Faso, pr:elimina ry objections, Judgment of une 2013, s 71 to 77. tG 9 I ,1,, , 'll/ e-t .f _) 4 B. oN THE /qDMlSSlBlLlTY OF THE APPLICATION 33. ln terms of Article 6 (2) of the Protocol, "the Court shall rule on the admissibility of cases taking into account the provisions of Article 56 of the Clrartei'. 34. Pursuant to Rule 39 of the Rules, the Court shall conduct preliminary examination of the admissibility of the Application in accordance with Articles 50 and 56 of the Charter and Rule 40 of the Rules. 35. Rule 40 of the Rules which essentially reproduces the content of Article 56 of the Charter, provides that: "Pursuant to the provisions of Artiole 56 of the Charter to which Article 6(2) of the Protocol refers, applications to the Coud shall comply with the following conditions: 1. Disclose the identity of the Applicant notwithstanding the latter's request for anonymity, 2. Comply with the Constitutive Act of the Union and the Charter: 3. Not contain any disparaging or insulting language; 4. Not based exclusively on news disseminated through the mass media; 5. Be filed after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged; 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; 7. Not raise any Matter or issues previously settled by the parties in accordance with the principles of the Charter of the United Nations, the Corrstitutive Act of the African Union, the provisions of the Charter or of any legal instrument of the African Union". 36.Whereas some of the aforementioned conditions are not in contention between the Parties, the Respondent raised objections with respect to the exhaustion of local remedies and the tlme frame tor seizure of the Court. '$I ') 10 7 .) ) /; --! v ( '' t) -4/I (---" t) Condifions that are in contention hetween fhe Padies a) Objectlon to admissibility on grounds of failure to exhaust local remedies 37.The Respondent, relying on the jurisprudence of the Commissiona, contends that it is premature for the Applicant to bring the instant case before an international body given that he still has internal remedies at his disposal. 33.According to the Respondent, the Applicant first of all has the possibility of filing a constitutional petition before the High Court of Tanzania to obtaln relief for the alleged violation of his rights, under the Basic Rights and Duties Enforcement Act Chapter 3 as amended in 2002 (Basic Rights and Duties Enforcement Act [Chapter 3 Reyised Edition 20021). 39,The Respondent maintains that after the Court of Appeal decision, the Applicant also had the possibility of requesting that same court to review its Judgment under Rule 66 of its Rules. 40.The Respondent, in conclusion, submits that since the Applicant has not exercised the aforesaid remedies available at national level, the Application does not meet the requirements set out in Rule 40 (5) of the Rules and must therefore be dismissed. 41. The Applicant maintains that he has exhausted all the local remedies in filing an appeal against the Judgment of the High Court of Tanzania before the Court of Appeal of Tanzania which is the highest court in the country. He adds that since the Court of Appeal has made a ruling on his appeal, it would not be reasonable to require him to file a new application in respect of his a Communication No. 333/06: Southern African Human Rrghts NGOs Network and Others v Tanzania; Communication No. 2632AA2; Kenyan Section of the lnternational Commission of w Society of Kenya, Rituo Cha Shena v..Kenya; Communication No. 275103 E L7 t l .li ut) (!_ right to a fair trial before the High Court which is a court lower than the Court of Appeal" 42.He further contends that the constitutional petition and the review remedy mentioned by the Respondent are extraordinary remedies which he was under no obligation to exhaust before filing the Application before this Court. 43.The Court notes that the Applicant appealed against his conviction before the Court of Appeal of Tanzania which is the highest judicial body in the country, and that Court upheld the Judgments of the Morogoro District Court and the High Court of Tanzania. 44. Concerning the constitutional petition and review, the Court has concluded from other mafters filed against the Respondent that these are, in the Tanzanian legal system, extraordinary remedies whioh Applicants are not obliged to exhaust before filing their Applications in this Courts- 45,The Court therefore rejects the Respondent's objection to the admissibility of the Application for failure to exhaust local remedies. b) Objection to admissibility based on non-compliance with a reasonable time in filing the Application before the Court 46.The Respondent argues that the Applicant has not filed his Application within reasonable time. While recognising that RLlle 40 (6) of the Rules of Court does not prescribe a speoific time frame for the submission of cases, the Respondent argues that going by the decisions of regional bodies similar to this Court, a period of six (6) months would be a reasonable time limit within which the Applicant should have filed the Application. lt maintains that such was the position of the African Commission on Human and Peoples' Rights in Michael Majuru v. Zimbabwe, and therefore avers that the period of four 5 Alex Thomas v. United Republic of Tanzania (Application No. 005/2013), Judgment of 20 November 2015, paragraphs 6045 ; Mohamed Abubakai v. United Republic of Tanzania (Application No. 007/2013), Judgment of 3 June 2016, paragraphs 65-72 ', Wilfred Onyango v United Republic of Tanzania (Application No 006/2013), Judgment of 18 May 2016, paragraph 1 lir i 72 -)t '." /'' (l .It" {' e: - (,r },J/ Lr' ./ (4) years and 10 months in which the Applicant filed the Application is much more than the six (6) months regarded as reasonable time. 47.Fhe Applicant refutes the Respondent's assertion, indicating firstly that the Application was filed on 11 May 2015, and not on 28 January 2015. He argues further that the Court's jurisprudence shows that the assessment of the reasonable time for the filing of applications is made on a case-by-case basis; that such was the Court's position in Alex Thomas v. United Republic of Tanzania, in which the Court took into account the special situation in which the Applicant found himself, namely, that he was illiterate, indigent, incarcerated and without legal assistance, and decided that the timeframe within which the Applicant filed the Application was reasonable, 48.The Court notes that Article 56 (6) of the Charter does not set a deadline within which applications should be filed. 49. Rule 40 (6) of the Rules which reproduces the substance of Article 56(6) of the Charter, only speaks of a "reasonable time from the date local remedies are 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". 50.The Court notes that the local remedies were exhausted on 27 March 2009, being the date on which the Court of Appeal delivered its judgment. lt however also notes that as at that date, the Respondent had not deposited the declaration accepting the jurisdiction of the Court to receive cases from individuals as per Article 34 (6) of the Frotocol. The Court therefore holds that it would not be reasonable to regard the time frame for seizure of the Court as running from the date prior to the deposit of the said declaration, that is,29 March 2010. 51.Since the Application was filed on 11 May 2015, the Applicant thus seized the Court in five (5) years, one (1) month and twelve (12) days. The question here is whether this time frame can be regarded as reasonable within the meaning of Article 56 (6) of the Charter 0E'- 13 tr hn't (o' I j-, .. ) 7_- 52. The Court has established in its previous Judgments that the reasonableness of the period for seizure of the Court depends on the particular circumstances of each case and must be determined on a case-by-case basiss. 53. ln Mohammed Abubakai v. United Republic of Tanzania, this Court held that the fact that the Applicant was incarcerated, is indigent, did not have the beneftt of free assistance of a lawyer throughout the proceedings at national level, his being an illiterate and his being unaware of the existence of the Court due to its relatively recent establishment - are all circumstances that can work in favour of some measure of flexibitity in determining the reasonableness of the time fiame for seizure of the CourtT. 54. Given that the Applicant in the instant case is in a situation similar to that described above, the Court finds that the period of five (5) years, one ( 1) month and twelve (12) days, in which it was seized is a reasonable period within the meaning of Article 56 (6) of the Charter. lt therefore dismisses the objection to the admissibility of the Application on the grounds of non- compliance with a reasonable period for filing the Apptication before the Court. ii) Condifions that are not in contention between the Parties 55.The Court notes that the issue of compliance with sub rules 40(1), (2), (3), (4), and (7) of the Rules is not in contention between the parties, and nothing in the file indicates that they have not been complied with. The Couft therefore holds that the admissibility requirements under those provisions have been met- 6Ernesf Zongo and Others v. Burkina Faso(Application No. 01312011 ) , Ruling on Preliminary Objections, 21 June, 2013, paragraph 121, Alex Thomas v United Republic of Tanzania. (Application No 005/2013),Judgment of 20 November, 2015, paragraph 73; Mohamed Abubakari v. United Republic af Tanzania (Apptication No, 007/2013), Judgment of 3 June 2016, paragraph 91. 7 lVlohamed Abubakari v. United Republic of Tanzania,(Application No. 007 Ju of3 June 2016 paragraph 92 ['? 1,4 !lj---L i./ v € l 56.1n light of the foregoing, the Court finds that the instant Application fulfils all the admissibility requirements under Article 56 of the Charter and Rule 40 of the Rules, and accordingly declares the same admissible. VI. THE MERITS 57. The Applicant alleges that the Respondent vlolated Articles 1, ?,3,4, 5, 6, 7 (1) (c) and 7 (2) of the Charter. The Court however notes that the Applicant made submissions only in regard to the violation of the right to fair trial. 58.ln the circumstances, only the allegations substantiated by the Applicant, namely, the allegations regarding violation of Article 7 of the Charter, will be examined by the Court. A) The allegation that the Applicant was charged and convicted on the basis of a deposition which does not corroborate the particulars on the charge sheef 59. ln the Application, it is contended that the trial magistrate and theAppellate Judges grossly ened in law and in fact for having taken into account the core statement of Prosecution Witness 1 (PW1), which stratement does not corroborate the particulars on the charge sheet, especially the list of the items alleged to have been stolen, their respective value and the totalestimated amount. 60.The Respondent refutes this allegation, contending that following an evaluation of the evidence presented, the trial magistrate found that the theft actually took place; that probative testimonies had established that the Applicant was indeed the person who participated in the theft, and that it was on the strength of this evidence that the Applicant was convicted. 61.lt further states that the Court of Appeal clearly indicated that the guilty verdict against the Applicant was not grounded on the doctrine of recent possession, but that "he was convicted because he und, nded, along with other people, robbing the complainant"; ln 15 ffi ./n ,v/ 4 7.. I it does not matter whether or not the testimony of the Prosecution Witness 1 (PW1) corroborated the content of the charge sheet as there was direct credible evidence which the Judge duly took into account. 62.The Respondent, in conclusion, submits that tlris allegation is baseless and must consequently be dismissed. 63. The relevant section of Article 7 (1) (c) of the Charter provides that: "Every individual shall have the right to have his cause heard..." 64.This Article may be interpreted in liQht of the provisions of Article 14 (1) of the Covenant which provides that: "All persons shall be equal before the courts and tribunals. tn the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled lo a fair and public hearing by a competent, independent and impartial tribunal established by |aw...." (italics odded) 65.|t is evident from the above two provisions, read together, that everyone has the right to a fair trial. 66.The records of proceedings at national level show that the Applicant was caught red-handed committing armed robbery. The Court also notes that the national courts heard the Applicant as well as three eye witnesses, in addition to the victim; and that all declared having seen the Applicant in the act of committing the offence. 67.It is also evident from the judgement of the Court of Appeal that it examined all the pleadings by the Applicant before upholding the decision rendered by the lower courts. 6B.The Court recalls that its role in regard to evaluation of the evidence on which the conviction by the national judge was grounded is limited to determining whether, generally, the manner in which the latter evaluated s 16 il J- 4\L-( r r'J--f -+- \l t,/ -o./ ,ful- | '. such evidence is in conformity with the relevant provisions of applicable international human rights instruments.s 69.|n view of the foregoing, the Court finds that the evidence of the national courts has been evaluated in conformity with the requirements of fair trial within the meaning of Article 7 of the Charter. 70.The Court thus dismisses the Applicant's allegation that he had been ch,arged and convicted on the basis of a single deposition which does not corroborate the particulars on the charge sheet, and holds that there was no violation of Article 7 (1) (c) of the Charter in this regard. B) The allegation that during the proceedings fhe Applicant was not affo rded leg a I assisfance 71.|n the Application, it is alleged that the Respondent violated the Applicant's right to be represented by Counsel. 72.The Respondent argues that the Applicant has not raised this issue before the national courts. lt submits that it has gone through the records of the court procedure as well as the two appeal procedures, and no where did the Applicant solicit legal assistance and was denied such assistance by the certification authority. 73.The Respondent further maintains that the Applicant nonetheless has legal means to solicit legal assistance in accordance with Article 3 of the law on legal assistance (Criminal Procedure), [Chapter 21 Revised Edition 2002]; that he could have also sought such assistance during the procedure before the Court of Appeal under Rule 31(1), Part ll of the 2009 Tanzania Court of Appeal Rules, but he had not availed himself of the said remedies. 8 Mohamed Abubakai v. United Republic of Tanzania (Application No. 007/20 udg June 2016, paragraph 26 ) tr/ G 17 tl t i." .rl+. l ,'-l' ) &/ -"L/ ry- L- 74.The Applicant explains that at no time during the procedure was he informed of the possibility of obtaining free legal assistance as prescribed by law; that the Respondent had the positive obligation to notify the Appticant, suo motu, of the existence of such right; that this obtigation is even primordial where the individual concerned is a lay person and an indigent detainee facing a serious charge; that this is also the position of this Court in Alex T'homas and Mohamed Abuba'kari v. United Republic of Tanzania, and that these precedents should equally apply in the instant case. T5.According to Article 7 (1) (c) of the Charter, "Every individualshall have the right to have his cause heard, This right comprises: a)-.. b)... c) the rlght to defence, including the right to be defended by counsel of his choice...". T6.Article 14.(3) (d) of the Covenant on its part provides that "ln the determination of any criminal eharge against him, everyone shall be entitled to the following minimum guarantees, in full equality: a)... b) .. c)... d) To be tried in his presence, and to defend lrimself in person or thr:ough legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so req,uire, and without payment by him in any such oase if he does not have sufficient means to pay for itl' 77 .ln its Judgment in filohamed Abubakari vs United Republic af Tanzania, this Court held that "an indigent individual under proseoution for a criminal offence has W 18 it) (' l-/ /' ) €--r5 >Fttt r the special right to free legal assistance where the offence is serious and punishment prescribed by law severe".e 78.ln the instant case, the Applicant being in the same situation as described above, the Court holds that the Respondent should have offered him, propio motu and free of charge, the services of a lawyer throughout the judicial procedure. Having failed to do so, the Respondent violated Article 7 (1) (c) of the Charter. C) The allegation that the thirty (30) year prison senfence was not in force at the time the robhery occurred 79.|n the Application, it is argued that the thirty (30) year custodial sentence imposed on the Applicant by the national courts was not in force at the time the alleged robbery with violence was committed; that Sections 285 and 2BG of the Penal Code prescribed a maximum sentence of fifteen (15) years; that the thirty (30) year prison sentence came into force only in 2004, following decree No. 269 of 2004, as amended, which became Section 287 A of the Penal Code. 80.The Applicant therefore submits, from the foregoing, that the national courts violated Articles 13(b) (c) of the 1997 Constitution of the United Republic of Tanzania as well as Articles 1,2,3,4, 5, 6, 7(1) (c) and 7(2) of the Charter. 81.The Respondent refutes the Applicant's allegations in their entirety. lt contends that in Criminal Case No. 42412002, the Applicant had been accused of armed robbery which is contrary to Sections 285 and 286 of the Penal Code, Chapter 16 of the Laws of Tanzania; that at the time of conviction and determination of the punishment, the Minimum Sentence Act of 1972 was in force, that, that Act was amended in 1994 by the s Judgment of 3 June 2016, paragraph 139. See also AIex Thomas vs ublic ol Tanzania, Judgment of 20 November 2015, paragraph 124. (8 19 {: { u ( --;)) ./ ',t A,I L @_ Itrliscellaneous Amendment Act No. 6/1994; that the new law abrogated the 20 year imprisonment and introduced an obligatory minimum punishment of thirty (30) years. 82.The Respondent further indicates that it is not the first time the question of atmed robbery offence, contrary to Sections 285 and 286 of the Fena[ Code Chapter 16, has emerged, as rrrrell as the punishment commensurate wilh this offence before 2004; that flre Court of Appeal of Tanzania has made a ruling on this issue in the Matterof llVilliam R. Genson v. The Republic,inAppealCase No.69D0M. 83.The Respondent submits in conclusion that the Applicant:s allegatlons are without relevance and are baseliess given that he was aceused of armed robbery in 2002, whereas the minimum punishment had been amended eight (8) years earlier. 84.ln his Reply, the Applicant states that he no longer intends to adduce arguments on the legality of the punishment imposed on him and that the Court may therefore consider this issue as no longer in contention between the Parties. 85.The Court notes that the Applicant abandoned this allegation. Fo-r its part, the Court has already found that thirty (30) years has been, in the United Republic of Tanzania, the minimum punishment applicab,le to the offense of armed robbery since 199410. Consequently, it holds that the Respondent has not violated any provision of the Charter in sentencing the Applicant to this term of imprisonment. 10 Mohamed Abubaikoi u. tJnited Repuhlie of Tanzania (Applieation No. 007/ 2013) of3 June 2016, paragraph 210. ,&- 20 Mt- D) Ifte allegation that the Respondent violated Adicle 'l of the Charter 86. ln the Application, it is alleged in general terms that the Respondent violated Article 1 of the Charter. The Respondent did not fiake any submission on this allegation. 87. Article 1 of the Gharter provides that: "The Member States of the Organisation of African Unity, parties to the present Charter shall recognize the rights, duties and freedoms enshrined in the Charter and shall undertake to adopt legislative or other measures to give effect to them". BB. The Court has found that the Respondent violated Article 7(1) (c) of the Charter for failing to avail the Applicant with free legal assistance. lt therefore reiterates its decision in Alex Thomas v. the United Republic of Tanzanla. ln that Matter, the Courtnoted that "...when the Courtfinds that any of the rights, duties and freedoms set out in the Charter are curtailed, violated or not being achieved, this necessarily means that the obligation set out under Article 1 of the Charter has not been complied with and has been violated."ll 89.Having established that the Appticant was denied his right to free legal assistance, in violation of Article 7(1) (c) of the Charter, the Court finds that the Respondent consequently violated its obligation under Article 1 of the Charter" VII. ON REPARATIONS 90.|n the Application, the Court is requested to; (i) restore the Applicant's rights, (ii) annul the guilty verdict and the punishment imposed on him, (iii) order his release from detention, and (iv) order that reparations be made for all the human rights violations established. 11Alex Thomas v. United Republic of Tanzania (Application No. 005/20 { liiu KE November, 2015, paragraph 135. .) l,/ 21' \--l ,. /\ 1i' 1 I \J v\ i\ U/\ /\ ,1, ) 't$(- /'- {-, --/ I g- lt 91.ln its Response, the Respondent prays the Court to dismiss the Application in its entirety for being groundless, and therefore rule that the Applicant is not entitled to reparations. 92.Article 27(1) of the Protocol provides that "if the Court finds that there has been violation of a human or peoples' rights it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation." 93.|n this respect, Rule 63 of the Rules provides that 'tlre Court shall rule on the request for the reparation by the same decision establishing the violation of a human and people's rights, or if the circumstances so require, by a separate decision"- 94.As regards the Applicant's prayer to be set free, the Court has established that such a measure could be directly ordered by the Court only in exceptional and compelling circumstancesl2. ln the instant case, the Applicant has not provided proof of such circumstances. Consequently, the Court dismisses the prayer. 95.The Court however notes that such finding does not preclude the Respondent from considering such measure on its own. 96. On the request to annul the conviction and sentence against the Applicant, the Court notes that it does not have the power to annul Decisions rendered by national courts. lt therefore dismisses that request. 97.The Court finally notes that none of the parties made submissions on the other forms of reparations. lt will therefore make a ruling on this question at a later stage of the procedure after having heard the parties. tz Alex Thontas United Republic of Tanzania (Application No 00512013/, Judgment of 20 November 2015, paragraph 157; Mohamed Abubakari v- United Republic of Tan o. 0O7DA13), Judgment of3 June 2016, paragraph 234. G. 22 ,NA z:/' i .--/' 4 o/I \ ?l a-- wr, cosTs 98. tn terms of Rule 30 of the Rules "unless otherwise decided by the Court, each party shall bear its own costs-" 99. Having consider€,d the circumstances of this matter, the Court decides that each party should bear its own costs 100 For these reasons: THE COURT Unanim,ously. i) Disml-sses the objection to the jurisdiction of the Gourt raised by the Respondent; ii) Declares that it has jurisdiction to hear the instant Application; iii) Drsmisses the objection on the admissibility of the Application raised by the Respondent; iv) Declares the Application admissible . v) Holds that the Respondent has not violated Article 7(1) of the Charter in terms of the Appticant's allegations that he was charged and convicted on the basis of a deposition which does not corroborate the particulars on the charge sheet and that the 30 year prison sentence was not in force at the time the offence was committed; vi) Holds that the Respondent violated Article 7 (1) (c) of the Charter in terms of the Applicant's allegation that he did not have the benefit of free legal assistance, and that, consequently, the Respondent also violated Article 1 of the Charter; ({?- 23 r ^u /l -.-. C, (a J- ./" ,fl .),{L_ _./. C- ,gt vlil $f5mfsses rfihe Aflp,lloaffillr prqrer ffqr he Gqqrd ta direeU.y ,qrdgr hk rre-lmEe fium plrson urtfihe.urE,pleNd[qe ts dhp Reepq'lde{nfr egEylngr : gqqflh r ffirBfl surr,e fl rbprfu mof$ ; viif,l Drisrmfu'ses the ,Agplllffimt's plelryBr ffer the' @-umt tn Bet ns{dle l'ilist ,(ffirul,G$tlofl flnd setrfiernce urrirthourt prefludliee, [s the. lffieeporrrdenfl arp, plMtIWr sudfir rflp-EguLr-'B,pr,:ry.rrp rwl4l f,4 lieqenres it* itrurtillngl on tlle :F,prplilcrimflS iprayer on dhem frnrns ut r€paunt'ien meeBu,,mEgi x) Rerytrnrfu'the ApPl[mt'tt tol suhnnii{ ftg ffhe EoUd irnris ErdH 6fiir ffisr1 fsnms offiBetperatiene w,f,filn thlrtty drys O[repstBt,Ef h'lE U,udganrgmt: also rcqrum:ts;the Respandent h aubr'r'rilt to,the, GeE[t 'rt+ Rssp-uruee orn Reparatisne *,sfrhiin tffirrry dayE q,'i$reqrcriFtof t[neAppllmriillq Brieh iliilr mUffifid.eoEfr piltycfiafi bwurhs'qun,re@EilE+ gR-- .,24 ,-n 'l(ho fffi---g v rY &ll 4f _,_t ) *Y il' 'ft- - r, if ,Signed: Sylvain ORE, President .\ Ben KIOKO, Vice-President: G6rard NIYUNGEKO, El Hadii GUlSSEJudge 1 RafiAa BEN ACHOUR, Judge i Solomy B. BOSSA, Judge Angelo V. MATUSSE, Judge Ntyam O. MENGUE, Judge +* Mar"ie -Th6r6se MU I(AMU LISA, Judge- (\ Tujilane R. CHIZUMILA, Judge 1$n-- Chafika BENSAOULA, Judge; and Robert ENO, Registrar Done at Arusha, this 28th day of the month of September, in the year Two Tho.usand and Seventeen, in English and French, the English text being authoritative. E o E IlEs 25