jonas v united republic of tanzania 2020 afchpr 20 25 september 2020

AFRICAN UNION UNION AFRICAINE ,?a r-l'- rü.r. a§*. é^ltt .tl=f,ll UNIAO AFRICANA AFRICAN COURT ON HUMAN AND PEOPLES' RIGHTS COUR AFRICAINE DES DROITS DE L'HOMME ET DES PEUPLES THE MATTER OF CHRISTOPHER JONAS V UNITED REPUBLIC OF TANZANIA APPLICATION No. 011 12015 JUDGMENT (REPARATTONS) 25 SEPTEMBER 2O2O TABLE OF CONTENTS TABLE OF CONTENTS... I. SUBJECT OF THE APPLICATION ...2 II. BRIEF BACKGROUND OF THE MATTER ............... ...2 III, SUMMARY OF THE PROCEDURE BEFORE THE COURT................ ... 3 IV. PRAYERS OF THE PARTIES... ...4 v. REPARAT|ONS............. ... 5 A. Pecuniary reparations ... 6 i. Materialloss.......... ... 6 ii. Moral prejudice............. ,..7 a. Moral prejudice suffered by the Applicant ,'.7 b. Moral prejudice suffered by indirect victims ... I B. Non-pecuniaryreparations............. ... I i. Guarantees of non-repetition of the violations and report on implementation . ... I ii. Measures of satisfaction ................ ,.. 9 VI. COSTS ..10 A. Legalfees related to proceedings before this Court ..11 B. Other costs related to proceedings before this Court ,.11 VII. OPERATIVE PART ..12 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, Stella l. ANUIGM- 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 lmani D. ABOUD, a national of Tanzania, did not hear the Application. ln the Matter of: Christopher JONAS represented by: Advocate Donald O. DEYA, Pan African Lawyers Union (PALU) VETSUS UNITED REPUBLIC OF TANZANIA represented by: Dr Clement J. MASHAMBA, Solicitor General, Office of the Solicitor General; Ms Sarah MWAIPOPO, Director, Division of Constitutional Affairs and Human Rights, Attorney General's Chambers; iii Mrs lrene KASYANJU, Ambassador, Head of Legal Unit, Ministry of Foreign Affairs and lnternational Cooperation; IV Ms Nkasori SARAKIKYA, Assistant Director, Human Rights, Principal State Attorney, Attorney General's Chambers; 1 V. Mr Mark MULWAMBO, Principal State Attorney, Attorney General's Chambers; vi Ms Sylvia MATIKU, Principal State Attorney, Attorney General's Chambers; and vii Mr Elisha SUKA, Foreign Service Officer, Ministry of Foreign Affairs and I nternational Cooperation. after deliberation, renders the following Judgment: I. SUBJECT OF THE APPLICATION 1. The present request for reparations, filed on 11 October 2018, arises from the judgment on the merits dated 28 September 2017 in which the Court found that the United Republic of Tanzania (hereinafter referred to as "the Respondent State") violated Article 7(1Xc) of the African Charter on Human and Peoples'Rights (hereinafter referred to as "the Charte/') for failing to provide the Applicant with free legal assistance during his trial. II. BRIEF BACKGROUND OF THE MATTER 2. ln the Application on merits, the Applicant alleged that his right to a fair trial had been violated by the Respondent State by reason of lack of access to information on the proceedings and to legal representation, being convicted on the basis of uncorroborated testimonies and being subjected to a sentence thatwas not applicable at the time of trial. ln the said proceedings before domestic courts, the Applicant was sentenced to thirÿ (30) years imprisonment for armed robbery. 3. On 28 September 2017, the Court rendered the judgment on the merits whose operative part, at paragraphs vi, ix, and x, reads as follows: 2 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; ... ix. Reserves its ruling on the Applicant's prayer on other forms of reparation; x. Reguesfs the Applicant to submit to the Court his Brief on other forms of reparations within thirty (30) days of receipt of this Judgment; also requests the Respondent to submit to the Court its Response on reparations within thirty (30) days of receipt of the Applicant's Brief; ... . 4. lt is the above mentioned Judgment on the merits that serves as the basis for the present request for reparations. III. SUMMARY OF THE PROCEDURE BEFORE THE COURT 5. On 3 Octobet 2017 , the Registry transmitted to the Parties a certified true copy of the Judgment on the merits. 6 The Parties filed their submissions on reparations within the time stipulated 7 On 9 March 2020, pleadings were closed and the Parties were duly notified 8. On 12 May 2020, the Applicant was informed that the Respondent State had, on 21 November 2019, deposited with the Chairperson of the African Union Commission an instrument withdrawing its Declaration deposited in accordance with Article 3a(6) of the Protocol and that since the effective date of the withdrawal is, in accordance with the Court's case-law,1 22 November 2020, this has no effect on the consideration of his Application.2 L lngabire Victoire Umuhoza v. Republic of Rwanda (withdrawal, jurisdiction) (3 June 2016) I AfCLR 562, § 66. 2 Andrew Ambrose Cheusiv. United Republic of Tanzania, ACtHPR, Application No. 004/2015, Judgment of 26 June 2020 (merits and reparations), §§ 35-39. See also, Jebra Kambole v. United Republic of Tanzania, ACIHPR, Application No. 01 8/2018, Judgment of 15 July 2020, § 19. 3 IV. PRAYERS OF THE PARTIES 9. The Applicant prays the Court to grant him the following reparations i. The amount of one hundred and eighty-five thousand dollars (USD 185,000) to Christopher Jonas as a direct victim for moral prejudice suffered; ii. The amount of eight hundred thousand dollars (USD 800,000) to Christopher Jonas for material prejudice suffered or in the alternative, the amount of thirty- six thousand six hundred and forty dollars, (USD 36,6a0); iii. The amount of thirÿ thousand dollars (USD 30,000) to his mother and twenty thousand dollars (USD 20,000) to his siblings identified as indirect victims; iv. The amount of sixÿ-five thousand dollars (USD 65,000) in Counsel's legal fees. v. The amount of two thousand dollars (USD 2,000) for expenses incurred. 10. The Applicant further prays that: vi. the Court apply the principle of proportionaliÿ when considering the award for compensation to be granted to him; vii. the Court order the Respondent State to guarantee the non-repetition of the violations to the Applicant; viii. the Court request the Respondent State to report back to the Court every six months until they satisfy the orders the Court shall make when considering the subm issions for reparations. 11. The Applicant also asks the Court to order the Respondent State to publish in the Official Gazette the judgment on the merits of 28 September 2017 in both English and Swahili within three (3) months as a measure of satisfaction. 12.The Respondent State prays the Court to make the following order and declaration that, the Judgment of the Court dated 28 September 2017 is sufficient reparation to the prayers found in the Applicant's submission for reparation; ll. that, the Applicant's claim for reparations be dismissed in its entirety. 4 V. REPARATIONS l3.Article 27(1) of the Protocol provides that: lf 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. 14.The Court recalls its earlier judgments and restates its position that: To examine and assess applications for reparation of prejudices resulting from human rights violations, it takes into account the principle according to which the State found guilty of an internationally wrongful act is required to make full reparation for the damage caused to the victim.3 15.The Court further restates that reparation "... must, as far as possible, erase all the consequences of the wrongful act and restore the state which would presumably have existed if that act had not been committed."a 16. The Court also recalls that measures that a State would take to remedy a violation of human rights includes, notably, restitution, compensation and rehabilitation of the victim, satisfaction and measures to ensure non-repetition of the violations taking into account the circumstances of each case.5 17 .The Court reiterates that with regard to material prejudice, the general rule is that there must be existence of a causal link between the alleged violation and the prejudice caused and the burden of proof is on the Applicant who has to provide evidence to 3 Mohamed Abubakari v. United Republic of Tanzania, ACtHPR, Application No. 007/2013, Judgment of 4 July 2019 (reparations), § 19; Alex Thomas v. United Republic of Tanzania, ACIHPR, Application No. 005/2013, Judgment of 4 July 2019 (reparations), § 11: Wilfred Onyango Nganyi and g others v. United Republic of Tanzania, ACtHPR, Application No. 006/2013, Judgment of 4 July 2019 (reparations), § 13; Lucien lkili Rashidiv. United Republic of Tanzania, ACIHPR, Application No. 009/2015, Judgment of 28 March 2019 (merits and reparations), § 116; lngabire Victoire Umuhoza v. Republic of Rwanda (reparations) (7 December 2018) 2 AfCLR 202, § 19. 4 Mohamed Abubakai v. Tanzania (reparations) , § 20; Alex Thomas v. Tanzania (reparations) , § 12; Wiltred Onyango and Others v. Tanzania (reparations), § 't6; /ngaôire Victoire Umuhoza v. Rwanda (reparations), § 20; Lucien lkili v. Tanzanra (merits and reparations), § 118. 5 Mohamed Abubakai v. Tanzania (reparations), § 21; Alex Thomas v. Tanzania (reparations), § 13; lngabire Victoire Umuhoza v. Rwanda (reparations), § 20. 5 justiÿ his/her prayers.o Exceptions to this rule include moral prejudice, which need not be proven. 18. The Court having found in its judgment on the merits of 28 September 201 7 that the Respondent State violated Article 7(1Xc) of the Charter, the Applicant prays for pecuniary reparations for (i) material loss, (ii) moral prejudice for himself and indirect victims and non-pecuniary reparations in the form of (a) guarantees of non-repetition and (b) measures of satisfaction. A. Pecuniary reparations i. Material loss 19. The Applicant claims that prior to his arrest, he was a street trader at Kariakoo market in Dar es Salaam selling hand clothes from 1998 to 2002. He further claims that he started his business with a capital of Two Hundred and Fifÿ Thousand Tanzanian Shillings CIZS 250,000), which is equivalent to One Hundred and Nineÿ-Nine USD (US$ 199) as at2002. He avers that he was making an average of Six Thousand Tanzanian Shillings (TZS 6,000), which is equivalent to Six Dollars (US$ 6) a day as of 2002. *** 20. The Court notes that the above stated claims are based on the conviction, sentencing and incarceration of the Applicant, which this Court did not find unlawful and thus do not warrant damages.T The Court consequently dismisses the claim. 6 Tanganyika Law Socieÿ, the Legal and Human Rights Centre v. United Republic of Tanzania, Application 00912011, Reverend Chistopher R. Mtikila v. United Republic of Tanzania, 01112011 (Consolidated I Applications) (reparations) (13 June 2014) AfCLR 72, § 40; Lohé lssa Konaté v. Burkina Faso (reparations) (3 June 2016) 1 AfCLR 346, § 15; Mohamed Abubakai v. Tanzania (reparations) , § 22; Alex Thomas v. Tanzania (reparations), § 1a; Beneficiaies of late Norbert Zongo, Abdoulaye Nikiema Alias Ablasse, Ernest Zongo, Blaise llboudo and Mouvement Burkinabe des Droits de I'Homme et des Peuples v. Burkina Faso (reparations) (5 June 2015) 1 AfCLR 258, § 24. 7 See Armand Guehi v. United Republic of Tanzania (merits and reparations) (7 December 2018) 2 AfCLR 477, § 186; and Werema Wakongo Werema and Another v. United Republic of Tanzania (merits) (7 December 2018) 2 AfCLR 520. 6 ii. Moral prejudice a. Moral prejudice suffered by the Applicant 21.The Applicant claims that he suffered undue stress from the lack of provision of legal assistance by the Respondent State during his trials at the District Court, the High Court and the Court of Appeal, which led to his unfair conviction. He requests the Court to order the Respondent State to pay him the amount of One Hundred and Eighÿ-Five Thousand Dollars (US$ 185,000) as a compensation for moral damages as a direct victim of his violation. 22.The Respondent State avers that the judgment on the merits is sufficient reparation and prays the Court to dismiss this claim. 23.The Court recalls that, as established in its case-law, moral prejudice is presumed in cases of human rights violations, and quantum of damages in this respect is assessed based on equiÿ, taking into account the circumstances of the case.8 The Court has adopted the practice of granting a lump sum in such instances.e 24.The Court notes that, as established in its Judgment on the merits of the present matter, the Respondent State violated the Applicant's right to legal assistance.l0 Prejudice therefore ensued and the Applicant is entitled to moral damages. 25.|n assessing the quantum of damages, the Court recalls that it had adopted the practice of granting applicants an average amount of Three Hundred Thousand Tanzanian Shillings (TZS 300.000) in instances were legal aid was not availed by the 8 Norbert Zongo and Others v. Burkina Faso (reparations), § 55; and lngabire Victoire Umuhoza v. Rwanda (reparations), § 59. e Lucien lkili Rashidi v. Tanzania (merits and reparations), § 119; Minani Evaist v. United Republic of Tanzania (merits) (21 September 2018) 2 AfCLR 402, § 18; and Armand Guehiv. Tanzania (merits and reparations), § 177. 10 See Christopher Jonas v. United Republic of Tanzania (merits) (28 September 2017) 2 AfCLR 101, § 100(vi). 7 Respondent State without any peculiar prevailing circumstances.ll The Court notes that in the present case, theApplicant's claim to be awarded One Hundred and Eighÿ- Five Thousand Dollars (US$ 185,000) is exaggerated and there is also no reason that warrants awarding damages in United State Dollars.l2 Against these standards and in exercising its discretion, the Court awards the Applicant the amount of Three Hundred Thousand Tanzanian Shillings (TZS 300.000) as fair compensation.l3 b. Moral prejudice suffered by indirect victims 26. The Applicant prays the Court to award an amount of Thirÿ Thousand Dollars (US$ 30,000) to his mother as an indirect victim for the emotional anguish she suffered, the social stigma of having an incarcerated son, the death of her husband due to his blood pressure as a result of the Applicant's imprisonment, the financial implications of the Applicant's arrest on self-sustenance, and the financial implications of the occasional visits to the prison to see her son. The Applicant further requests the payment of Twenÿ Thousand Dollars (US$ 20,000) to his siblings: Juliana Kusena, Jenifer Kusena, Veronika Kusena, and Kalekwa Kusena for the loss of financial support and the financial and mental implications of their visits to the Applicant while he was in detention. *** 27.The Court notes that the claims related to loss incurred by the indirect victims are based on the conviction, sentencing and incarceration of the Applicant, which as earlier established did not cause prgudice. As such, damages are not called for. The Court consequently dismisses the claims. § 90; and Anaclet Paulo v. United Republic of Tanzania (merits) 11 See Minani Evaist v. Tanzania (merits), (21 September 2018) 2 AfCLR 446, § 11 1. 12 See Mohamed Abubakari v. Tanzania (reparations), § 23; Alex Thomas v. Tanzania (reparations), § 15. 13 Minani Evarist v. Tanzania (merits), § 85. I B. Non-pecuniary reparations Guarantees of non-repetition of the violations and report on implementation 28.The Applicant prays the Court to order that the Respondent State guarantees non- repetition of the violations against them and reports back every six (6) months until the orders made by this Court on reparation are implemented. *** 29. The Court considers that, as it has held in the case of Lucien lkili Rashidi v. United Republic of Tanzania, guarantees of non-repetition are generally aimed at addressing violations that are systemic and structural in nature rather than to remedy individual harm.la The Court has however also held that non-repetition could apply in individual cases where there is a likelihood of continued or repeated violations.l5 30.The Court notes that, as earlier recalled, the violations found in the Judgment on the merits did not fundamentally affect the outcome of the proceedings before the courts. Furthermore, the said violations are not repetitive in nature and this Court has earlier, in this Judgment, awarded compensation in their respect. ln light of the fact that the proceedings at the domestic courts have already been completed, this Court does not deem it necessary to issue an order regarding non-repetition.16 The prayer is therefore dismissed. ii. Measures of satisfaction 31. The Applicant prays the Court that the Respondent State should be ordered to publish in the national Gazette, the Judgment of 28 September 2017 on the merits of this la Lucien lkili Rashidi v. Tanzania (merits and reparations), §§ 146-149; Armand Guehi v. Tanzania (merits and reparations), § 191 i and Norbert Zongo and Others v. Burkina Faso (reparations), §§ 103-106. 15 Lucien lkili Rashidi v. Tanzania (merits and reparations), § 146; Armand Guehi v. Tanzania (merits and reparations), § 191; and Reverend Chistopher R. Mtikila v. Tanzania (reparations), § 43. 16 Armand Guehi v. Tanzania (merits and reparations), §§ 191 and 192. 9 matter in both English and Swahili within three (3) months of the present Judgment as a measure of satisfaction. *** 32. The Court considers that, as established in its jurisprudence, a judgment per se may constitute a sufficient reparation for an established violation. However, other measures such as the publication of the decision can be ordered as the circumstances warrant.lT 33. The Court finds that, in the instant matter, there is no peculiar circumstance that warrants an order for publication. Furthermore, the Respondent State had, on 31 January 2017 , which is prior to the Judgment on the merits of the present case, passed its LegalAid Act. ln light of these considerations, the Courtdoes not deem it necessary to grant the prayer for publication of any of its judgments in the present matter. The prayer is therefore dismissed. VI. COSTS 34. Rule 30 of the Rules provides that, "[u]nless othenrvise decided by the Court, each Parÿ shall bear its own costs." *** 35. The Court notes that, in line with its earlier judgments, reparation may include payment of legal fees and other expenses incurred in the course of both domestic and 17 Alex Thomas v. Tanzania (reparations), § 7a; Wilfred Onyango Nganyi and g Others v. Tanzania (reparations), § 86; and Reverend Chistopher R. Mtikila v. Tanzania (reparations), § 45. 10 iii. us Dollars one Thousand (us$ 1,ooo) for communication costs; and iv. us Dollars Two Hundred (us $ 200) fortransportation to and from ukonga Prison. *** 39. The court dismisses this prayer for rack of supporting documents. VII. OPERATIVE PART 40.For these reasons: THE COURT, Unanimously. On pecuniary reparations i- Does not grant the Applicant's prayer for material damages due to his conviction and sentencing; ii. Does not grant the Applicant's prayer for damages for moral prejudice suffered by the indirect victims; iii. Grants the Applicant's prayer for damages for the moral prgudice he suffered and awards him the sum of Tanzanian Shillings Three Hundred Thousand (TZS 300,000); iv. Orders the Respondent State to pay the amount indicated under (iii) above free from taxes effective six (6) months from the date of notification of this Judgment, failing which it will 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 is fully paid. On non-pecu niary reparation s v. Does nof grant the Applicant's prayer regarding non-repetition of the violations; vi. Does not grant the Applicant's prayer regarding publication of the Judgment. On implementation and repofting 12 vil Orders the Respondent State to submit to this Court, within six (6) months from the date of notification of the present Judgment, a report on the measures taken to implement the orders set forth herein and thereafter, every six (6) months until the court considers that there has been full implementation thereof. On cosfs viii. Does not grant the prayer related to payment of the legal fees, costs and other expenses incurred in proceedings before this Court; ix. Decides that each parÿ shall bear its own costs. Signed: Sylvain ORÉ, President; Ben KIOKO, Vice-President; n Rafaâ BEN ACHOUR, Judge; ù Ângelo V. MATUSSE, Judge; t (- Suzanne MENGUE, Judge; '',À r*r--- r M-Thérèse MUKAMULISA, Judge; -fifux-- Tujilane R. CH IZU M I Iâ, Judge ; r*-X-- (.s Cl*^_.,,* Chafika BENSAOULA, Judge;,..-74 ! Blaise TCHII(AYA, ç*,2 13 Stella l. ANUKAM, Judge; :"bv!-Sz.r n and Robert ENO, Registrar. Done at Arusha this Twenÿ Fifth Day of Septemb-er in the year Two Thousand and Twenÿ, in English and French, the English text b'eing authoritative. ,l\ :: I i .! l,: 14