[2016] AfCHPR 58

**AFRICAN UNION** الاتحاد الأقريقي

,


#### AFRICAN COURT ON HUMAN AND PEOPLES' RIGHTS COUR AFRICAINE DES DROITS DE L'HOMME ET DES PEUPLES

### IN THE MATTER OF

#### **MULOKOZI ANATORY**

#### $V$ .

#### THE UNITED REPUBLIC OF TANZANIA

#### APPLICATION N0.057/2016


The court Composed of; Sylvain ORE, President, Ben KlOKSqr0'30? President, G6rard NIYUNGEKO, El Hadji GUISSE, Raf0a BEN ACHOUR, Solomy B. BOSSA, Angelo V. MATUSSE, Ntyam O. MENGUE, Marie-Th6rdse MUKAMULISA- Judges; and Robert ENO-Registrar

ln the matter of

a

o

#### MULOKOZI ANATORY

V

#### THE UNITED REPUBLIC OF TANZANIA

After having deliberated,

ltlakes the following Order,

### I. Subject of the Application

- The Court received, on 15 September 2016, an Application from Mulokozi Anatory (hereinafter referred to as "the Applicant"), instituting proceedings against the United Republic of Tanzania (hereinafter referred to as "the Respondent"), for alleged violation of human rights. 1 - 2. The Applicant, who is currently detained at Butimba Central Prison, was sentenced to death by the High Court of Tanzania at Bukoba on 6 March 2014. That death sentence was confirmed by

I

000206 the Court of Appeal, which is the highest Court in Tanzania, on 23 February 2015.

- 3. The Applicant alleges, inter alia, thal - a) The caution statement as evidence which the prosecution relied on was weak since it was taken when he was in hospital receiving treatment, placing him in a position not to be a free agent to give such a caution statement. - b) The High Court and the Court of Appeal erred in law when they disregarded his defense of alibi. - c) The High Court and the Courl of Appeal violated his rights to a fair trial. - d) The Prosecution failed to prove its case beyond reasonable doubt.

## ll. Procedure before the Gourt

a

o

- The Application was received at the Registry of the Court on 15 September 2016. 4 - Pursuant to Rule 35 of the Rules of Court, by a notice dated 15 November 2016 2016, the Registry served the Application on the Respondent. 5

### lll. Jurisdiction

a

o

### ⁰0020s

- ln dealing with an Application, the Court has to ascertain that it has jurisdiction on the merits of the case under Articles 3 and 5 of the Protocol. 6 - However, in ordering Provisional Measures, the Court need not satisfy itself that it has jurisdiction on the merits of the case, but simply needs to satisfy itself , prima facie, that it has jurisdiction.l 7 - Adicle 3(1) of the Protocol provides that "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 instrument ratified by the States concerned". I - The Respondent ratified the Charter on g t\Iarch 1g84 and the Protocol on 10 February 2006, and is party to both instruments; it equally deposited, on 29 March 2010, a declaration accepting the competence of the court to receive cases from individuals and Non-Governmental organisations, within the meaning of Article o

^lsee Application 00212013 African commission on Human and peoples' Rights ^v Libya (order for Provisional Measures datedlS March 2013) and Application 00612012 African commission on Human and peoples' Rights v Kenya (order for Provisional Measures datedl5 March 2o1z); Apptication oo4t2o11 African Commission on Human and Peoples' Rights v Libya (Order for Provisional Measures dated 25 March 201 1).

34(6) of the Protocol read together with Article Protocol. '8PgPffT

- 10 The alleged violations the Applicant is complaining about are guaranteed under Article T(1) of the charter, and the court therefore has jurisdiction ratione materiae over the Application. - ¹¹ ln light of the foregoing, the court has satisfied itself that, prima facie, it has jurisdiction to deal with the Application.

# lv. on the Applicant's Request for provisionar Measures

a

o

- 12 ln his Application, the Applicant requested the court to order Provisional [VIeasures. - 13 Under Article 27(2) of the protocor and Rule s1(1) of the Rutes, the court is empowered to order provisional measures ,in cases of extreme gravity and when necessai-y to avoid irreparable harm to persons" and 'khich it deems necessary to adopt in the interest of the parties or of justice". - 14 It is for the court to decide in each situation if, in the light of the particular circumstances, it should make use provided for by the aforementioned provisions. of the power - 15 The Applicant is on death row and it appears from this Application that there exists a situation of extreme gravity, as well as a risk of irreparable harm to the Applicant.

# 00020 ³

- 16 Given the particular circumstances of the case, where the risk of execution of the death penalty willjeopardise the enjoyment of the rights guaranteed under Arlicle 7(1) of the charter, the court has decided to invoke its powers underArticre 27(z) of the protocol. - 17 The court finds that the situation raised in the present Application is of extreme gravity and represents a risk of irreparable harm to the rights of the Applicant as protected by ArticleT(1) of the Chafter, if the death sentence was to be carried out. - 18 consequently, the court holds that the circumstances require an order for provisional measures, in accordance with Article 27(z) of the Protocol and Rule 51 of its Rules, to preserve the stafus guo, pending the determination of the main Application. - 19 For the avoidance of doubt, this order shall not in any way prejudice any findings the court shall make regarding its jurisdiction, the admissibility and the merits of the Application.

#### For these reasons,

a

o

- 20. The Court, unanimously, orders the Respondent to - a) refrain from executing the death penalty against the Applicant pending the determination of the Application.

b) report to the Court within sixty (00) d"y, frggCIt? 02ed ate of receipt of this Order, on the measures taken to implement the Order.

Done at Arusha, this 18th day of November in the year 2016, in English and French, the English version being authoritative.

Signed:

o