nhabi v tanzania application no 0042018 2019 afchpr 61 20 march 2019

AFRICAN UNION UNION AFRICAINE UNIÃO AFRICANA AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS COUR AFRICAINE DES DROITS DE L’HOMME ET DES PEUPLES 1 2 3 4 THE MATTER OF 5 6 7 NGASA NHABI 8 9 V. 10 11 UNITED REPUBLIC OF TANZANIA 12 13 14 APPLICATION No. 004/2018 15 16 17 18 ORDER OF PROVISIONAL MEASURES 19 20 21 20 MARCH 2019 22 23 24 1 The Court composed of: Sylvain ORÉ, President; Ben KIOKO, Vice-President; 2 Rafaâ BEN ACHOUR, Ângelo V. MATUSSE, M-Thérèse MUKAMULISA, Suzanne 3 MENGUE, Tujilane R. CHIZUMILA, Chafika BENSAOULA, Blaise TCHIKAYA, Stella I. 4 ANUKAM, Judges; and Robert ENO, Registrar. 5 6 In the matter of: 7 8 Tembo HUSSEIN 9 10 representing himself 11 12 versus 13 14 UNITED REPUBLIC OF TANZANIA, 15 16 represented by: 17 Dr. Clement Julius MASHAMBA, Solicitor General, Attorney General’s Chambers 18 19 after deliberation, 20 issues the following Order: 21 I. SUBJECT OF THE APPLICATION 22 23 1. On 2 March 2018, the Court received an Initial Application filed by Ngasa 24 NHABI (hereinafter referred to as “the Applicant,” against the United Republic 25 of Tanzania (hereinafter referred to as “the Respondent State,” for alleged 26 violation of his human rights. 27 28 2. The Applicant, currently imprisoned in Uyui Central Prison, was convicted of 29 murder and sentenced to death by hanging on 7 March 2008, by the High 30 Court of Tanzania sitting in Tabora. On 24 June 2011, the Court of Appeal in 31 Tabora, Tanzania's highest court, upheld the sentence. The Applicant lodged 32 an appeal for review before the Court of Appeal in Tabora, which was also 33 dismissed on 5 October 2015. ii 1 2 3. The Applicant alleges, inter alia, that the trial before the High Court was 3 marred by irregularities, and that both the High Court and the Court of Appeal 4 erred in their assessment of prosecution and visual identification evidence. 5 6 4. In the Application, the Court was requested to order provisional measures. 7 II. PROCEEDINGS BEFORE THE COURT 8 9 5. The Application was received at the Court’s Registry on 2 March 2018. 10 11 6. In accordance with Rule 35 of the Rules of Court, the Application was served 12 on the Respondent State on 23 July 2018. 13 III. JURISDICTION 14 15 7. When seized of an application, the Court conducts a preliminary examination 16 of its jurisdiction, pursuant to Articles 3 and 5 of the Protocol to the African 17 Charter on Human and Peoples' Rights on the Establishment of an African 18 Court of Human and Peoples' Rights (hereinafter referred to as “the 19 Protocol”). 20 21 8. However, before ordering provisional measures, the Court need not satisfy 22 itself that it has jurisdiction on the merits of the case, but needs to simply 23 ensure that it has prima facie jurisdiction. 1 24 25 9. Article 3 (1) of the Protocol stipulates that “the jurisdiction of the Court shall 26 extend to all cases and disputes submitted to it concerning the interpretation and 27 application of the Charter, this Protocol and any other relevant Human Rights 28 instrument ratified by the States concerned.” 29 1 1 See Application No. 002 /2013, African Commission on Human and Peoples’ Rights v. Libya (Order of 2 provisional measures, 15 March 2013) and Application No. 006/2012, African Commission on Human 3 and Peoples’ Rights v. Kenya (Order of provisional measures, 15 March 2013); Application No. 4 004/2011, African Commission on Human and Peoples’ Rights v. Libya (Order of provisional measures, 5 25 March 2011). iii 1 10. On 9 March 2006, the Respondent State became party to the African Charter 2 on Human and Peoples' Rights (hereinafter referred to as “the Charter”) and 3 the Protocol on 10 February 2006. It also made the declaration on 29 March 4 2010 accepting the jurisdiction of the Court to receive applications from 5 individuals and non-governmental organizations in accordance with Articles 6 34(6) and 5(3) of the Protocol read together. 7 8 11. The alleged violations which form the subject of the Application concern the 9 rights protected in Articles 3(2), 4 and 7(1)(c) of the Charter. The Court 10 therefore has jurisdiction rationae materiae to entertain the Application in the 11 present case. 12 13 12. In light of the foregoing, the Court has satisfied itself that it has prima facie 14 jurisdiction to examine the Application. 15 IV. PROVISIONAL MEASURES 16 17 13. As stated in paragraph 4 above, the Applicant requests the Court to order 18 provisional measures. 19 20 14. According to Article 27(2) of the Protocol and Rule 51(1) of the Rules of Court 21 “in cases of extreme gravity and urgency, and when necessary to avoid 22 irreparable harm to persons, the Court shall adopt such provisional measures 23 as it deems necessary” or “any interim measure which it deems necessary to 24 adopt in the interest of the parties or of justice.” 25 26 15. It lies with the Court to decide in each situation whether, in light of the 27 particular circumstances of the case, it must exercise the jurisdiction conferred 28 upon it by the afore-cited provisions. 29 30 16. It is apparent from the case-file that the Applicant has been sentenced to 31 death. 32 iv 1 17. In view of the circumstances of this case which bear the risk that execution 2 of the death sentence may impair the enjoyment of the rights set forth in 3 Articles 3(2), 7(1)(c) of the Charter, the Court decides to exercise its powers 4 under Article 27(2) of the Protocol. 5 6 18. Accordingly, the Court finds that the circumstances require an Order of 7 Provisional Measures pursuant to Article 27(2) of the Protocol and Rule 51 of 8 the Rules of Court, so as to preserve the status quo, pending the 9 determination of the main Application. 10 11 19. To remove any ambiguity, this Order is provisional and in no way prejudges 12 the decisions of the Court as to its jurisdiction, admissibility of the Application 13 and the merits of the case. 14 V. OPERATIVE PART 15 16 20. For these reasons, 17 The Court, 18 unanimously orders the Respondent State: 19 20 a) to stay execution of the death sentence, subject to the decision on the 21 main Application, and 22 23 b) to report to the Court within sixty (60) days of receipt of this Order, on 24 the measures taken to implement it. 25 26 Done at Arusha this Twentieth Day of March in the Year Two Thousand and 27 Nineteen, in English and French, the English text being authoritative. 28 29 Signed: 30 31 Sylvain ORÉ, President 32 Robert ENO, Registrar v