amir and others v tanzania application no 0142015 2019 afchpr 49 28 november 2019

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 JIBU AMIR alias MUSSA and SAIDI ALLY alias MANGAYA V. UNITED REPUBLIC OF TANZANIA APPLICATION NO. 014/2015 JUDGMENT 28 NOVEMBER 2019 1 TABLE OF CONTENTS TABLE OF CONTENTS......................................................................................................I I. THE PARTIES............................................................................................................2 II. SUBJECT OF THE APPLICATION............................................................................2 A. Facts of the matter......................................................................................................2 B. Alleged violations........................................................................................................3 III. SUMMARY OF THE PROCEDURE BEFORE THE COURT.....................................3 IV. PRAYERS OF THE PARTIES....................................................................................4 V. JURISDICTION..........................................................................................................5 A. Objections to material jurisdiction...............................................................................5 B. Other aspects of jurisdiction.......................................................................................7 VI. ADMISSIBILITY..........................................................................................................7 A. Conditions of admissibility in contention between the Parties...................................8 i. Objection relating to exhaustion of local remedies.................................................9 ii. Objection relating to failure to file the Application within a reasonable time........11 B. Conditions of admissibility not in contention between the Parties...........................14 VII. MERITS................................................................................................................15 A. Allegation relating to the legality of the conviction and sentence............................15 B. Allegation relating to failure to provide the Applicants with free legal assistance....18 C. Allegation relating to denial of right to information...................................................20 VIII. REPARATIONS....................................................................................................22 A. Pecuniary Reparations.............................................................................................22 B. Non-Pecuniary Reparations.....................................................................................23 IX. COSTS.....................................................................................................................24 X. OPERATIVE PART..................................................................................................24 i 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 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 8(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. In the Matter of: Jibu Amir alias MUSSA and Saidi Ally alias MANGAYA, Self-represented versus UNITED REPUBLIC OF TANZANIA, represented by: i. Ms. Sarah MWAIPOPO, Director, Division of Constitutional Affairs and Human Rights; ii. Ambassador Baraka LUVANDA, Director, Legal Affairs, Ministry of Foreign Affairs, East Africa and International Cooperation; iii. Ms. Nkasori SARAKIKYA, Principal State Attorney; iv. Mr. Mark MULWAMBO, Principal State Attorney; v. Mr. Abubakar MRISHA, Senior State Attorney; vi. Ms. Blandina KASAGAMA, Foreign Service Officer, Ministry of Foreign Affairs, East Africa and International Cooperation. after deliberation, 1 renders the following Judgment: A. THE PARTIES 1. Jibu Amir alias Mussa and Saidi Ally alias Mangaya (hereinafter referred to as “the Applicants”) are nationals of the United Republic of Tanzania, who are currently serving 30 years’ prison sentence each, at the Ukonga Central Prison, Dar es Salaam, having been convicted of the offence of armed robbery. 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 to the Protocol on 10 February 2006. Furthermore, the Respondent State, on 29 March 2010, deposited the Declaration prescribed under Article 34(6) of the Protocol, by which it accepted the jurisdiction of the Court to receive applications from individuals and NGOs. B. SUBJECT OF THE APPLICATION C. Facts of the matter 3. The record before this Court indicates that on 31 December 2001, at 7pm, the Applicants jointly with others not before this Court stole an amount of twelve thousand (12,000) Tanzanian Shillings from one, Frank Munishi, at his shop. During the robbery, one of the Applicants that is Jibu Amir shot Frank Munishi and his wife Gladiness Munishi with a pistol as the victims tried to flee from the scene of the crime. Frank Munishi was further stabbed by the other Applicant – Saidi Ally, with a “bush knife” to coerce him into giving the Applicants the money which he subsequently did, following which, the Applicants left the crime scene. Thereafter, neighbours of the victims converged at the crime scene and rushed the victims to Temeke Police station and subsequently to the hospital. 2 4. Three (3) of the Prosecution Witnesses, that is, PW1, PW2 and PW3 testified in the District Court of Temeke, Dar es Salaam that they were at the scene of the robbery. Furthermore, PW1 testified that he served the Applicants on the material day of the crime while PW2 could only identify the second Applicant. 5. The Applicants were subsequently arraigned before the District Court and on 25 February 2004, convicted of armed robbery in accordance with Sections 285 and 286 of the Respondent State’s Penal Code and sentenced to a term of 30 years’ imprisonment. 6. Dissatisfied with the conviction and sentence, the Applicants jointly filed appeals to the High Court and subsequently, to the Court of Appeal, which were dismissed on 21 June 2009 and 14 April 2011, respectively. Then on 19 April 2011, the Applicants filed before the Court of Appeal an application for review of their case, which was also dismissed on 20 March 2015. D. Alleged violations 7. The Applicants allege that the Respondent State pronounced an “improper” sentence on them and that it also denied them the right to free legal assistance. The Applicants contend that as a result, the Respondent State has violated their rights protected by the Tanzanian Constitution and Articles 1, 2, 3, 6 and Article 7(1) (c) and (2) of the Charter. E. SUMMARY OF THE PROCEDURE BEFORE THE COURT 8. The Application was received on 6 July 2015 and served on the Respondent State and the entities listed under Rule 35(3) of the Rules on 23 September 2015 and 19 October 2015, respectively. 3 9. The parties were notified of the pleadings and filed their submissions within the time stipulated by the Court. 10. On 24 September 2019, the Court informed the parties that written pleadings were closed. F. PRAYERS OF THE PARTIES 11. The Applicants pray the Court the following: “i. a declaration that the Respondent State violated their rights as guaranteed under Article 1,2,3,4,5,6 and 7(1)(c) and (2) of the African Charter; ii. an order compelling the Respondent State to release the Applicants from detention as they have already served the term stipulated in Section 285 and 286 of the penal code. When the robbery was committed on 31 December 2001; iii. an order for reparations should this honourable find merit in the application and in the prayers; iv. an order of this honourable court to supervise the implementation of the court’s order...” 12. The Respondent State prays the Court to grant the following orders: i) “That the Honourable Court is not vested with jurisdiction to adjudicate the Application; ii) That the Application has not met the admissibility requirements stipulated under Rule 40(6) of the Rules of Court; 4 iii) That the cost of this Application be borne by the Applicants; iv) That the sentence of 30 years imposed by the Respondent State neither contravened the Charter nor its Constitution and thus was lawful; v) That the Respondent State has not violated any of the rights alleged by the Applicants.” G. JURISDICTION 13. Pursuant to Article 3 of the Protocol: “(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 instruments ratified by the States concerned. (2) In the event of a dispute as to whether the Court has jurisdiction, the Court shall decide”. 14. In accordance with Rule 39(1) of the Rules, “the Court shall conduct preliminary examination of its jurisdiction …..” 15. The Respondent State has raised objections to the material jurisdiction of the Court. A. Objections to material jurisdiction 16. The Respondent State avers that the Applicants raise two allegations before this Court for the first time asking it to adjudicate on them as a court of first instance, namely, the ones relating to the constitutionality of the sentence, and the right to be represented by Counsel. 17. The Applicants assert that the Court is empowered by Article 3(1) of the Protocol to interpret and apply the Charter. Further, the Applicants argue that their Application 5 discloses the violation of rights protected by the Charter and thus, the Court has jurisdiction. *** 18. The Court, relying on Article 3 of the Protocol, has consistently held that it has material jurisdiction if the Application brought before it raises allegations of violation of human rights; and for it to exercise its jurisdiction, it suffices that the subject of the Application relates to the rights guaranteed by the Charter or any other relevant human rights instrument ratified by the State concerned. 1 19. In the instant case, the Court notes that the Applicants raise allegations of violation of human rights protected under Articles 1, 2, 3, 4, 5, 6 and 7 of the Charter. By virtue of Article 3 of the Protocol, the determination of the said allegations falls within the ambit of the Court’s mandate of interpreting and applying the Charter and other international instruments ratified by the Respondent State. 20. Accordingly, the Court has the power to consider and make determination on the Application. 21. Consequently, the Court dismisses the Respondent State’s objection herein and holds that it has material jurisdiction. B. Other aspects of jurisdiction 1 See Alex Thomas v Tanzania (merits) (2015) 1 AfCLR 465 § 45; Frank David Omary and Others v. United Republic of Tanzania (Admissibility) (2014) 1 AfCLR 358 (“Frank Omary v Tanzania (Admissibility)”), § 115; Peter Joseph Chacha v Tanzania (admissibility) (2014) 1 AfCLR 398, § 114; Application No. 20/2016. Judgment of 21/09/2018 (Merits and Reparations), Anaclet Paulo v United Republic of Tanzania (“Anaclet Paulo v. Tanzania (Merits and Reparations)”), § 25; Application No. 001/2015. Judgment of 7/12/2018 (Merits and Reparations), Armand Guehi v United Republic of Tanzania ( “Armand Guehi v Tanzania (Merits and Reparations)”), § 31; Application No. 024/15. Judgment of 7/12/2018 (Merits and Reparations), Werema Wangoko v United Republic of Tanzania (“Werema Wangoko v Tanzania (Merits and Reparations)”), § 29. 6 22. The Court notes that its personal, temporal and territorial jurisdiction have not been contested by the Respondent State, and nothing on the record indicates that it lacks such jurisdiction. The Court therefore holds that: (i) it has personal jurisdiction given that the Respondent State is a party to the Protocol and has made the Declaration prescribed under Article 34(6) thereof, which enabled the Applicants to file this Application pursuant to Article 5(3) of the Protocol. (ii) it has temporal jurisdiction in view of the fact that the alleged violations are continuous in nature since the Applicants remain convicted on the basis of what they consider as irregularities2 ; and (iii) it has territorial jurisdiction given that the facts of the matter occurred within the territory of a State Party to the Protocol, that is, the Respondent State. 23. In light of the foregoing, the Court holds that it has jurisdiction to hear the case. C. ADMISSIBILITY 24. In 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 Charter .” Pursuant to Rule 39(1) 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.” 25. Rule 40 of the Rules, which in substance restates the content of Article 56 of the Charter, provides as follows: “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: 2 See Beneficiaries of late Norbert Zongo, Abdoulaye Nikiema alias Ablasse, Ernest Zongo, Blaise Ilboudo and Mouvement Burkinabe des Droits de l’Homme et des Peuples v Burkina Faso (preliminary objections) (2013) 1 AfCLR 197, §§ 71 to 77. 7 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 Constitutive Act of the African Union, the provisions of the Charter or of any legal instrument of the African Union.” A. Conditions of admissibility in contention between the Parties 26. The Respondent State submits that the Application does not comply with two admissibility requirements; namely, exhaustion of local remedies provided for under Rule 40(5) and the need for applications to be filed within a reasonable time after exhaustion of local remedies provided for under Rule 40(6) of the Rules . i. Objection relating to exhaustion of local remedies 8 27. The Respondent State, citing the decision of the African Commission on Human and Peoples’ Rights of Southern African Human rights NGO Network and others v Tanzania, avers that the requirement of exhaustion of local remedies is an essential principle in international law and that the principle requires a complainant to “utilise all legal remedies” in the domestic courts before seizing an international human rights body like the Court. 28. In this regard, the Respondent State submits that there were legal remedies available to the Applicants which they should have exhausted. The Respondent State contends that it enacted the Basic Rights and Duties Enforcement Act, to provide the procedure for the enforcement of constitutional and basic rights as set out in Section 4 thereof. 29. According to the Respondent State, the rights claimed by the Applicants are provided for under Article 13(6)(a) of the Constitution of Tanzania of 1977, noting that though the Applicants are alleging violations of the various rights under the Constitution; they did not refer the alleged violations to the High Court during the trial as required under Section 9 (1) of the Basic Rights and Duties Enforcement Act. 30. The Respondent State submits that the Applicants’ failure to refer the violations of their rights to the High Court or to raise them during the trial, denied it the chance to redress the alleged violations at the domestic level. 31. The Respondent State also reiterates its submission that the Applicants’ allegations are being raised for the first time before this Court and thus it was never given an opportunity to address them in its national courts. 32. The Applicants submit that the principle of exhaustion of local remedies is indeed recognised in international human rights law. Nevertheless, they argue that having been convicted in the District Court, they filed appeals in both the High Court and the Court of Appeal. Moreover, they filed an application for review of the Court of 9 Appeal’s decision before the same Court. It is thus their contention that “all available local remedies were fully exhausted.” 33. Citing the judgment of the Court in the matter of Alex Thomas v United Republic of Tanzania, the Applicants state that having seized the Court of Appeal, it would not have been reasonable to require them to file a new human rights case at the High Court, which is a lower court than the Court of Appeal. *** 34. The Court notes that pursuant to Rule 40 (5) of the Rules, an application filed before the Court shall meet the requirement of exhaustion of local remedies. The rule of exhaustion of local remedies reinforces the primacy of domestic courts in the protection of human rights vis-à-vis this Court and, as such, aims at providing States the opportunity to deal with human rights violations occurring in their jurisdiction before an international human rights body is called upon to determine the responsibility of the States for such violations.3 35. In its established jurisprudence, the Court has consistently held that an Applicant is only required to exhaust ordinary judicial remedies. 4 Furthermore, in several cases involving the Respondent State, the Court has repeatedly stated that the remedies of constitutional petition and review in the Tanzanian judicial system are extraordinary remedies that an Applicant is not required to exhaust prior to seizing this Court. 5 36. In the instant case, the Court observes from the record that the Applicants filed an appeal against their conviction and sentence before the High Court which was dismissed on 21 June 2009 and before the Court of Appeal of Tanzania, the highest judicial organ of the Respondent State, which upheld the judgments of the High 3 Application No. 006/2012. Judgment of 26/05/2017. African Commission on Human and Peoples’ Rights v the Republic of Kenya, §§ 93-94. 4 Alex Thomas v Tanzania Judgment, § 64. See also Application No. 006/2013. Judgment of 18/03/2016 (merits), Wilfred Onyango Nganyi and 9 Others v. United Republic of Tanzania, § 95. 5 See Alex Thomas v Tanzania (merits) (2015) 1 AfCLR 465, op. cit. § 65; Mohamed Abubakari v Tanzania (merits) (2016) 1 AfCLR 599 op. cit., §§ 66-70; Christopher Jonas v Tanzania (Merits), § 44. 10 Court and the District Court on 14 April 2011. In addition to pursuing the ordinary judicial remedies, the Applicants have also, albeit unsuccessfully, attempted to use the review procedure at the Court of Appeal. The Respondent State had therefore the opportunity to redress their violations. 37. Regarding those allegations that have been raised before this Court for the first time, namely, the illegality of the sentence imposed on the Applicants and the denial of free legal assistance, the Court observes that the alleged violations occurred in the course of the domestic judicial proceedings. They accordingly form part of the “bundle of rights and guarantees” that were related to or were the basis of their appeals, which the domestic authorities had ample opportunity to redress even though the Applicants did not raise them explicitly. 6 It would be unreasonable to require the Applicants to lodge a new application before the domestic courts to seek relief for these claims.7 The Applicants should thus be deemed to have exhausted local remedies with respect to these allegations. 38. In light of the foregoing, the Court dismisses the Respondent State’s objection relating to the requirement of exhaustion of local remedies. B. Objection relating to failure to file the Application within a reasonable time 39. The Respondent State contends that the Applicants have not complied with the requirement under Rule 40(6) of the Rules that an application must be filed before the Court within a reasonable time after the exhaustion of local remedies. It asserts that the Applicants’ case at the national courts was concluded on 14 April 2011, and it took four (4) years and three (3) months for the Applicants to file their case before this Court. 6 Application No. 003/2015. Judgment of 28/09/2017 (Merits), Kennedy Owino Onyanchi and Another v. United Republic of Tanzania, (hereinafter referred to as “Kennedy Owino Onyanchi and Another v. Tanzania (Merits)), § 54 7 Alex Thomas v Tanzania (Merits), ibid, §§ 60-65, Kennedy Owino Onyachi and Another v United Republic of Tanzania, § 54. 11 40. The Respondent State draws this Court’s attention to the fact that, even though Rule 40(6) of the Rules does not prescribe the time limit within which individuals are required to file an application, the African Commission in Michael Majuru v Zimbabwe (2008) as well as the Inter-American Court of Human Rights and European Court of Human Rights have held a period of six (6) months to be a reasonable time. 41. The Respondent State further avers that the Applicants have not referred to any impediments which caused them not to lodge the Application within six (6) months, and for these reasons, submits that the Application should be declared inadmissible. 42. In their Reply, the Applicants argue that the review of the decision of the Court of Appeal was dismissed on 20 March 2015, that is, three (3) months and six (6) days before filing the Application before this Court. 43. Citing the Court’s jurisprudence in Peter Joseph Chacha v United Republic of Tanzania and Christopher Mtikila v the United Republic of Tanzania, the Applicants contend that the Court rejected the six (6) months period that the Respondent State considers to be the standard for reasonable time in international human rights jurisprudence. 44. The Applicants also cited the matter of Norbert Zongo v Burkina Faso in support of their contention that reasonable time should be considered on a case by case basis. In this regard, they aver that the Court should take their being lay, incarcerated, and having not benefitted from legal aid service in the national courts as factors in their favour when deciding on whether the Application has been filed within a reasonable time. *** 45. The Court notes that Article 56(6) of the Charter does not specify any time frame within which a case must be filed before this Court. Rule 40 (6) of the Rules, which 12 in substance restates Article 56(6) of the Charter, simply states: “ 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.” The Court recalls its established jurisprudence that: “…the reasonableness of the timeframe for seizure depends on the specific circumstances of the case and should be determined on a case-by-case basis.” 8 46. The records before this Court show that local remedies were exhausted on 14 April 2011, when the Court of Appeal delivered its judgment. In principle, this should be the date from which reasonable time limit as envisaged under Rule 40(6) of the Rules and Article 56 (6) of the Charter, should be reckoned. 47. In the instant case, the Application was filed before this Court on 6 July 2015, that is, four (4) years and two (2) months and twenty three (23) days after exhaustion of local remedies. The key question for determination is whether such delay of four years and two months is, in the circumstances of the case, reasonable in terms of Rule 40 (6) of the Rules. 48. The Court notes from the file that the Applicants, following the dismissal of their appeal by the same, filed an application for review before the Court of Appeal on 19 April 2011, which was dismissed on 20 March 2015. The Court observes that the Applicants pursued the review procedure even though it was an extraordinary remedy. 49. In the opinion of this Court, the fact that the Applicants attempted to exhaust the review procedure should not be used to their detriment and should accordingly be taken as a factor in the determination of reasonable time limit in Rule 40 (6) of the 8 See Beneficiaries of late Norbert Zongo, Abdoulaye Nikiema alias Ablasse,Ernest Zongo, Blaise Ilboudo and Mouvement Burkinabe des Droits de l’Homme et des Peuples v Burkina Faso (merits) (2014) 1 AfCLR 219 op.cit., § 121, Kenedy Ivan v Tanzania (Merits and Reparations) § 51, Oscar Josiah v Tanzania (Merits)”), § 24, Judgment of 28/03/2019 (Merits). Lucien Ikili Rashidi v United Republic Tanzania (hereinafter “Lucien Ikili Rashidi v Tanzania (Merits and Reparations)”), § 54. 13 Rules.9 In this regard, the Court takes note that the Applicants filed their Application before this Court three (3) months after the dismissal of their application for review at the Court of Appeal on 20 March 2015. 50. In addition, the Court notes that the Applicants are lay, incarcerated, and without the benefit of free legal assistance. 51. Given the above circumstances, the Court considers that the delay of four years and two (2) months and twenty three (23) days taken to file the Application before this Court, after the judgment of the Court of Appeal, is reasonable in terms of Rule 40 (6) of the Rules and Article 56 (6) of the Charter. 52. Accordingly, the Court dismisses the objection of the Respondent State relating to the non-compliance of the Applicants with the requirement of filing the Application within a reasonable time after exhaustion of local remedies. B. Conditions of admissibility not in contention between the Parties 53. The Court notes that there is no contention regarding the compliance with the conditions set out in Rule 40, Sub-rules1, 2, 3, 4 and 7 of the Rules on, the identity of Applicants, the language used in the Application, compliance with the Constitutive Act of the African Union, the nature of the evidence adduced and the previous settlement of the case, respectively, and that nothing on the record indicates that these requirements have not been complied with. 54. The Court therefore finds that all the admissibility conditions have been met and that this Application is admissible. C. MERITS 9 See Armand Guehi v. Tanzania (Merits and Reparations), § 56; Application No. 024/2015. Werema Wangoko v United Republic of Tanzania (Merits and Reparations), § 49. 14 55. The Applicants allege the violations of Articles 1, 2, 3, 4, 5, 6, 7 and 9 of the Charter. The Court notes however that the Applicants’ grievances can be summarized into three allegations, falling under the right to a fair trial in Article 7 of the Charter, namely: a. Illegal conviction and sentence imposed against the Applicants; b. The failure to provide the Applicants with free legal assistance; c. Denial of right to information. A. Allegation relating to the legality of the conviction and sentence 56. The Applicants allege that they were indicted and convicted for robbery with violence pursuant to Sections 285 and 286 of the Penal Code which they aver provides for a punishment of fifteen (15) years imprisonment. 57. According to the Applicants, the Respondent State’s argument that Section 285 and 286 of the Penal Code should be read together with Section 5(b) of the Minimum Sentencing Act “is devoid and wants merits.”(sic) 58. It is the view of the Applicants that the Penal Code which establishes the offence for robbery with violence provides for a lesser sentence than the Minimum Sentencing Act which provides for the thirty years’ imprisonment and that the Penal Code’s provision as the foundation of the offence, supersedes the Minimum Sentencing Act. The Applicants thus submit that the national courts erred in sentencing them to a term of thirty (30) years’ imprisonment. 59. The Respondent State refutes all the allegations raised by the Applicants, noting that a term of thirty (30) years’ imprisonment is the applicable sentence for robbery with violence pursuant to Section 285 and 286 of the Penal Code as read together with Section 5(b) of the Minimum Sentences Act 1972 as amended by Act No. 10 of 1989 and Act No. 6 of 1994. 15 60. It is the Respondent State’s contention that Section 5(b) (ii) of the Minimum Section Act is applicable to “all robberies in which the offender was armed with a dangerous weapon or instrument” or was in the company of one or more persons and caused personal violence in the act of the robbery. 61. The Respondent State avers that the facts of this case fit perfectly in the scenario envisaged under the Minimum Sentencing Act and thus, the Applicants’ allegations are groundless and should be dismissed. *** 62. Article 7(2) of the Charter provides: “No one may be condemned for an act of omission, which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.” 63. The Court notes that Article 7 (2) of the Charter encapsulates the principle of legality, which among other things, proscribes the imposition of a criminal punishment except when this is prescribed by a law in force at the time of the commission of a criminalised act entailing such punishment. 64. In the instant case, the relevant question for determination is whether the 30 years’ penalty to which the Applicants were sentenced was provided in the laws of the Respondent State at the time the offence of which they were convicted was committed. 65. The records before this Court indicate that the incident that led to the arrest of the Applicants happened on 31 st December 2001. Following their arrest, the Applicants 16 were subsequently charged and convicted of robbery with violence pursuant to Sections 285 and 286 of the Penal Code as amended by Act No. 10 of 1989. 66. The Court notes that the penalty for robbery with violence carries a similar punishment as armed robbery in the laws of the Respondent State, which according to Section 5 (b) of the Minimum Sentences Act of 1972, as amended by the 1994 Written Laws Amendment, is a minimum of thirty (30) years’ imprisonment. The Court has affirmed this in Mohamed Abubakari v United Republic of Tanzania 10 and Christopher Jonas v United Republic of Tanzania, where it stated that “thirty years has been in the United Republic of Tanzania, the minimum punishment applicable for the offence of armed robbery since 1994”.11 67. It follows that the Applicants were convicted on the basis of legislation which was in force on the date of commission of the crime, that is, 31 st December 2001, and the punishment imposed on them was also prescribed in a law which was enacted prior to the commission of the crime, that is, the Minimum Sentences Act 1972 as amended by Act No. 10 of 1989 and Act No. 6 of 1994. 68. The Applicants’ allegation that their conviction and punishment violates the Charter thus lacks merit. 69. The Court therefore finds that there was no violation of Article 7 (2) of the Charter. B. Allegation relating to failure to provide the Applicants with free legal assistance 70. The Applicants contend that they were not provided with free legal representation throughout their trials at the domestic court even though this is required by the 10 Mohamed Abubakari v Tanzania (merits) (2016) 1 AfCLR 599 § 210. 11 Christopher Jonas v. Tanzania (Merits) § 85. 17 International Convention on Civil and Political Rights under Article 14(3) and under Article 7(1)(c) of the Charter. 71. Citing the judgment of the Court in Alex Thomas v United Republic of Tanzania and Thomas Miengi v Republic of the High Court of Appeal, the Applicants argue that they were charged and convicted of “a very serious offence” which carries a “serious punishment of imprisonment”, and the trials were very technical requiring legal knowledge and skills. In addition, the Applicants indicate that they did not have the financial means to hire their own lawyers while the Respondent State had the benefit of the representation of various state attorneys. According to the Applicants all these circumstances justified the provision of free legal assistance and the failure of the Respondent State to do so disadvantaged them and violated their right to a fair trial. 72. The Respondent State refutes the allegation of the Applicants and submits that the Applicants should be put to strict proof. It argues that the right of legal assistance is not mandatory in its domestic laws and that the provision of legal aid is contingent on the accused person not having the means to afford Counsel and only if the interests of justice so require. 73. Further, the Respondent State avers that the fact that the Applicants were unrepresented does not imply that they were disadvantaged in any way. In this vein, it contends that the Applicants’ right to defence was guaranteed before the District Court and the appellate courts. Citing its Criminal Procedure Act [2002], the Respondent State submits that in its jurisdiction, evidence must be taken in the presence of the accused to ensure that the accused is well informed at the stage of defence. *** 74. Article 7(1)(c) of the Charter provides: “Every individual shall have the right to have his cause heard. This comprises: 18 […] c) The right to defence, including the right to be defended by counsel of his choice.” 75. The Court notes that Article 7 (1) (c) of the Charter does not provide explicitly for the right to free legal assistance. This Court has however, interpreted this provision in light of Article 14 (3) (d) of the International Covenant on Civil and Political Rights (ICCPR)12, and determined that the right to defence includes the right to be provided with free legal assistance.13 76. The Court further notes that in the present Application, the Applicants were not afforded free legal assistance throughout the trial and appeal proceedings in the national courts. This is not disputed by the Respondent State, which simply contends that the provision of free legal assistance is not automatic but depends on its and the Applicants’ economic capacity. 77. On several occasions, the Court has however held that an individual charged with a criminal offence is entitled to the right to free legal assistance without having requested for it, provided that the interests of justice so require. This will be the case where an accused is indigent and is charged with a serious offence which carries a severe penalty.14 78. In the instant case, the Applicants were charged with a serious offence, that is, robbery with violence, carrying a severe punishment, a minimum punishment of thirty (30) years’ imprisonment. In addition, the Respondent State has not adduced any evidence to challenge the contention that the Applicants were lay and indigent, without legal knowledge and technical legal skills to properly defend their case in the course of their trial and appellate proceedings. In these circumstances, the Court is 12 The Respondent State became a State Party to ICCPR on on 11 June 1976. 13 Alex Thomas v Tanzania (Merits), § 114; Kijiji Isiaga v Tanzania (Merits), § 72, Application No. 003/2015. Judgment of 28/09/2018 (Merits), Kennedy Owino Onyachi and Another v United Republic of Tanzania, § 104. 14 Alex Thomas Ibid, § 123, see also Mohammed Abubakari v Tanzania (Merits), § § 138-139. 19 of the view that the interests of justice warranted that the Applicants should have been provided with free legal assistance. 79. The Court takes note of the Respondent State’s contention that the Applicants were not in any way disadvantaged for having not been given legal assistance, as they were able to defend themselves. However, the Court observes that the Applicants do not need to show that the non-provision of legal assistance occasioned some disadvantage to them in the course of their trial and appeals at the District Court and appellate courts. In so far as the interests of justice required the provision of free legal assistance and the Respondent State had failed to do afford one, its responsibility would be engaged. 80. The Court further underscores that the Respondent State’s citation of its domestic laws requiring the provision of legal assistance is not sufficient to demonstrate that the Applicants have in fact got the benefit of free legal assistance. The Respondent State’s contention in this regard thus lacks merit. 81. In view the above, the Court finds that the Respondent State has violated Article 7(1) (c) of the Charter. C. Allegation relating to denial of right to information 82. According to the Applicants, the failure to be informed about their rights in the trial amounts to the denial of the right to information. The Applicants argue that they were not informed of their right to legal representation or fair trial by the national courts. 83. The Applicants further argue that the national courts have a duty to inform an accused person of all their rights at the beginning of the trial and they cited Thomas Miengi v Republic of the High Court of Tanzania. 20 84. The Respondent State contends that the allegation is baseless and the Applicants have not demonstrated how they were denied the right to information. *** 85. The Court notes that, the Applicants allege the violation of their right to information as a result of the Respondent State’s failure to inform them of their right to legal representation. The Court is of the view that the substance of the Applicants’ allegation relates more to the right to a fair trial, specifically, the right to be informed of one’s right to Counsel than to the right to information and will deal with it accordingly. 86. The Court observes that although Article 7 of the Charter does not expressly provide for the right to be informed of one’s right to Counsel, Article 14 (3) (d) of the International Covenant for Civil and Political Rights (ICCPR) 15 require that in criminal cases, any accused shall be informed of his right to legal representation. As repeatedly affirmed by the European Court of Human Rights, the right to be informed of one’s right to a lawyer is critical to the respect for one’s right to defence and authorities owe a positive obligation to proactively inform accused individuals of their right to legal representation at the earliest time. 16 87. In the instant case, the Respondent State does not dispute the Applicants’ allegation that they were not informed of their right to Counsel at the time or prior to their trial, but simply argues that their contention is baseless. The Court also found nothing on the record showing that this was done by the authorities of the Respondent State. Nor are there any justifications provided by the Respondent State as to why the Applicants were not informed of their right to have Counsel of their choice. Evidently, this has constrained the Applicants’ capacity to defend themselves. 15 The Respondent State became a State Party to ICCPR on on 11 June 1976. 16 See for example, Panovits v. Cyprus, Application no. 4268/04, judgment of 11 December 2008, § 72- 75, Padalov v. Bulgaria, Application no. 54784/00, 10 August 2006, § 61 21 88. In view of the above, the Court therefore finds that the failure of the Respondent State to inform the Applicants of their right to legal representation has violated Article 7(1)(c) of the Charter as read together with Article 14 (3) (d) of ICCPR. D. REPARATIONS 89. The Applicants pray the Court to find a violation of their rights, set them free and make an order for reparations and for supervision of implementation. 90. On the other hand, the Respondent State prays the Court to find that it has not violated any of the rights of the Applicants and to dismiss the Application. *** 91. 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." A. Pecuniary Reparations 92. The Court notes its finding above that the Respondent State has violated the Applicants’ right to a fair trial by failing to provide free legal assistance and the right to be informed of the right to Counsel in the course of the criminal proceedings against them. In this regard, the Court recalls its position on State responsibility that "any violation of an international obligation that has caused harm entails the obligation to provide adequate reparation”. 17 93. The Court has established in its jurisprudence that moral prejudice is presumed in the case of a violation of human rights and the quantification of the damages in this 17 See Reverend Christopher R. Mtikila v Tanzania (reparations) (2014) 1 AfCLR 72§ 27 and Application No. 010/2015. Judgment of 11/05/18, Amiri Ramadhani v. The United Republic of Tanzania (Merits), § 83.ss 22 regard must be equitable taking into account the circumstances of the case. 18 The Court has adopted the practice of granting a lump sum in such circumstances. 19 94. The Court notes that the violations it has found in the instant case caused moral prejudice to the Applicants. The fact that they were not informed of their right to Counsel and that they did not get legal assistance in the course of their trial at the District Court and appellate courts evidently caused them some moral damage as a result of their lack of knowledge of court procedures and technical legal skills to defend themselves. 95. The Court therefore, in exercising its discretion, awards each Applicant an amount of Tanzania Shillings Three Hundred Thousand (TZS300, 000) as fair compensation. 20 B. Non-Pecuniary Reparations 96. Regarding the application for an order of release prayed by the Applicants, the Court has stated that it can be ordered only in specific and compelling circumstances. 21 Examples of such circumstances include “if an Applicant sufficiently demonstrates or the Court by itself establishes from its findings that the Applicant’s arrest or conviction is based entirely on arbitrary considerations and his continued imprisonment would occasion a miscarriage of justice.” 22 97. In the instant case, the Court established that the Respondent State has violated the Applicants’ right to a fair trial relating to their right to be informed of their right legal 18 Beneficiaries of late Norbert Zongo, Abdoulaye Nikiema alias Ablasse, Ernest Zongo, Blaise Ilboudo and Mouvement Burkinabe des Droits de l’Homme et des Peuples v Burkina Faso (reparations) (2015) 1 AfCLR 258, § 55. 19 Lucien Ikili Rashidi Ikili v. United Republic of Tanzania. Judgment (Merits and Reparation) op.cit, Ikili §. 119 20 See Anaclet Paulo v Tanzania (Merits and Reparations) § 107; Minani Evarist v Tanzania (Merits and Reparations), § 85. 21 Alex Thomas v Tanzania (merits) (2015) 1 AfCLR 465op. cit., § 157; Diocles William v Tanzania (Merits), § 101; Minani Evarist v Tanzania (Merits and Reparations), § 82; Application No. 006/2016. Judgment of 07/12/2018 (Merits), Mgosi Mwita v United Republic of Tanzania, § 84; Kijiji Isiaga v Tanzania (Merits), § 96; Armand Guehi v Tanzania (Merits and Reparations), §164. 22 Minani Evarist v Tanzania (Merits and Reparations), § 82. 23 representation and right to free legal assistance contrary to Article 7 (1) (c) of the Charter as read together with Article 14 (3) (d) of the ICCPR. Without minimizing the seriousness of these violation, it is the Court’s opinion that the nature of the violations in the particular contexts of this case does not reveal any circumstance which would make their continued imprisonment a miscarriage of justice or arbitrary. Nor have the Applicants demonstrated the existence of other specific or compelling reasons to warrant an order for release. 98. Accordingly, the Court rejects the Applicant’s request to be released from prison. C. COSTS 99. Pursuant to Rule 30 of the Rules “unless otherwise decided by the Court, each party shall bear its own costs.” 100. In their submissions, both parties prayed the Court to order the other to pay costs. 101. Based on the foregoing, the Court rules that each party shall bear its own costs. D. OPERATIVE PART 102. For these reasons: The COURT Unanimously, On jurisdiction i. Dismisses the objections to its material jurisdiction; 24 ii. Declares that it has jurisdiction. On admissibility iii. Dismisses the objections on admissibility; iv. Declares the Application admissible. On merits v. Finds that the Respondent State has not violated Article 7(2) of the Charter as regards the sentence imposed on the Applicants; vi. Finds that the Respondent State has violated Article 7 (1) (c) of the Charter in relation to the right of the Applicants to be informed of their right to Counsel and the lack of provision of free legal assistance to them. On reparations Pecuniary reparations vii. Orders the Respondent State to pay the Applicants the sum of Tanzania Shillings Three Hundred Thousand (TZS300,000) each free from tax as fair compensation to be made within six (6) months from the date of notification of this Judgment, failing which it will 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 is fully paid. viii. Orders the Respondent State to submit a report to it within six (6) months of the date of notification of this judgment on 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. Non-pecuniary reparations 25 ix. Dismisses the Applicants’ prayer for release from prison. On costs x. Orders each Party to bear its own costs. Signed: Sylvain Oré, President; Ben KIOKO, Vice President; Rafaâ BEN ACHOUR, Judge; Ângelo V. MATUSSE, Judge; Suzanne MENGUE, Judge; M-Thérèse MUKAMULISA, Judge; Tujilane R. CHIZUMILA, Judge; Chafika BENSAOULA, Judge; Blaise TCHIKAYA, Judge; Stella I. ANUKAM, Judge; and Robert ENO, Registrar. 26 ln accordance with Article 28 (7) of the Protocol and Rule 60(5) of the Rules, the Separate Opinion of Justice Chafika BENSAOULA is appended to this Judgment. Done at Zanzibar, this Twenty-Eighth day of November, in the year Two Thousand and Nineteen in English and French, the English text being authoritative. 27