[2023] AfCHPR 56

| | | | | --- | --- | --- | | AFRICAN UNION |  | UNION AFRICAINE | |  | UNIÃO AFRICANA | | **AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS** **COUR AFRICAINE DES DROITS DE L’HOMME ET DES PEUPLES** P. O Box 6274 Arusha, Tanzania- Telephone: +255 732 979506/9; Fax. +255 732 979503 | | |

**ALEXANDER MGUNDA ALIAS CHEKNORIS**

**V.**

**UNITED REPUBLIC OF TANZANIA**

**APPLICATION NO. 005/2020**

**ORDER**

**(REOPENING OF PLEADINGS)**

**24 FEBRUARY 2023**

**TABLE OF CONTENTS**

CONTENT

[I. PARTIES 4](#_Toc118704910)

[II. SUBJECT OF THE APPLICATION 4](#_Toc118704911)

[A. Facts of the Matter 4](#_Toc118704912)

[III. SUMMARY OF PROCEDURE BEFORE THE COURT 5](#_Toc118704913)

[IV. ON THE REASON FOR REOPENING OF PLEADINGS 8](#_Toc118704914)

[V. OPERATIVE PART 9](#_Toc118704915)

**The Court composed of**: Blaise TCHIKAYA, Vice-President; Ben KIOKO, Rafaâ BEN ACHOUR, Suzanne MENGUE, Tujilane R. CHIZUMILA, Chafika BENSAOULA, Stella I. ANUKAM, Dumisa B. NTSEBEZA, Modibo SACKO, Dennis D. ADJEI – 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 9(2) of the Rules of Court[[1]](#footnote-1) (hereinafter referred to as "the Rules"), Justice Imani D. ABOUD, President of the Court and a national of Tanzania, did not hear the Application.

In the Matter of:

ALEXANDER MGUNDA ALIAS CHEKNORIS,

*Represented by;*

Mr. Kundiata MADUHU and Mr. Halfani MOSHI of Kofi Annan International Organisation.

Versus

UNITED REPUBLIC OF TANZANIA,

*Represented by;*

Dr. Boniphace Nalija LUHENDE, Solicitor General

Ms. Sarah Duncan MWAIPOPO, Deputy Solicitor General

after deliberation,

*renders this Order:*

PARTIES

Alexander Mgunda Alias Checknoris (hereinafter referred to as “the Applicant”) is currently at Ruanda Central Prison Mbeya where he is serving a sentence of thirty (30) years imprisonment for the offence of armed robbery. The Applicant alleges violations of his rights during the course of these proceedings by the Respondent State.

The Respondent State became a Party to the African Charter on Human and Peoples’ Rights (hereinafter referred to as the “the Charter”) on 21 October 1986 and the Protocol on the 10 February 2006. It deposited, on 29 March 2010, the Declaration under Article 34(6) of the Protocol through which it accepts the jurisdiction of the Court to receive cases from individuals and Non-Governmental Organisations. On 21 November 2019, the Respondent State deposited, with the Chairperson of the African Union Commission, an instrument withdrawing its Declaration. The Court has held that thiswithdrawal will have no bearing on pending cases and will only take effect one year after its filing, namely, 22 November 2020.[[2]](#footnote-2)

SUBJECT OF THE APPLICATION

**Facts of the Matter**

On 13 October 2014, at Nduli area, Iringa the Applicant, Alexander Mgunda Alias also known as Checknoris and his co accused Mikidadi Usiga alias Afrika, while armed with a club, matchet and shotgun stole one pouch with cash Tsh.550,000/= (Tanzanian shillings five hundred fifty thousand), Vodacom airtime credit vouchers worth 350,000/= (Tanzanian shillings three hundred fifty thousand only) and two Tecno 340 mobile phones with their sim cards from Happy Ignas and Mama Barton.

The District Court of Iringa convicted the Applicant on 2 December 2016 and sentenced him to thirty (30) years imprisonment for the offence of Armed robbery. The Applicant was also ordered to return the property that he and his co-accused had stolen.

The Applicant appealed to the High Court of Tanzania at Iringa in *Criminal Appeal No. 04 of 2017* against the conviction, sentence and orders of the District Court of Iringa. On 11 August 2017 his appeal was dismissed by the High Court.

The Applicant then appealed to the Court of Appeal of Tanzania at Iringa in Criminal Appeal No. 336 of 2017 against the conviction and sentence of the High Court of Tanzania at Iringa. On 30 August 2019, the Court of Appeal dismissed his appeal for lack of merit.

SUMMARY OF PROCEDURE BEFORE THE COURT

On the 24 January 2020, the filed this Application before the Court.

On 10 March 2020 the Court notified the Applicant that his request for Legal Assistance had been granted and that he would be allocated counsel to represent him before the Court

On 8 April 2020, the Registry transmitted the case file to Kofi Annan International Organization (KIAO-Tanzania), which had agreed to represent the Applicant with a notification to the Applicant.

On 7 January 2021, the Application filed by the Applicant was served on the Respondent State giving it 60 days to respond.

On 17 February 2021, in accordance with the new Rules of the Court, Rule (44) (1), the Respondent State was granted an additional 30 days from the expiry of the initial 60 days granted to respond to the Application.

On 31 March 2021, the Respondent State filed its Response to the original Application, which was transmitted to the Applicant on 24 May 2021, giving him 30 days to respond.

On 12 May 2021, Counsel for the Applicant filed an amended Application which was transmitted to the Respondent State on 28 February 2022.

On 18 June 2021, the Registry sent a 1st reminder to the Applicant, to respond to the Respondent States response to the original Application, within 45 days.

On 15 September 2021, the Registry sent a 2nd reminder for the Applicant to file his response to the Respondent State’s Response to the Application within 30 days. In view of the notification to the Registry on 5 August 2021, that the (KIAO-Tanzania), was in the process of re-organising its structure, the Registry in the Notice requested the organisation to confirm the legal representative of the Applicant.

On 21 September 2021, the (KIAO-Tanzania) responded that it had not received the Respondent State’s Response to the Application and also confirmed the legal representative as Mr. Halfani MOSHI.

On 24 September 2021, the Registry acknowledged receipt of KIAO-Tanzania’s response on and re-transmitted the Respondent State’s Response to the Application, which was previously transmitted to the Applicant on 15 September 2021. In the Notice of transmission, the Registry informed the Applicant that he had been granted an additional ten (10) days, to make up for the time lost.

On 20 October 2021, the Applicant informed the Registry that his organization had not yet received the Respondent State’s response to their Application to enable them file submissions. The Applicant notified the Registry that document attached to the 2nd reminder on the Registrar’s letter was not the Respondent’s State response rather the Applicant’s reparation report submitted to the Court in May 2021. The Applicant therefore requested for the correct State Response to be sent to him. The correct attachment was sent to the Applicant by the Registry on the same date.

On 21 October 2021, the Applicant acknowledged the receipt of the Respondent’s reply to the original Application and requested the Registry for additional time to file their submission.

On 28 February 2022, the Registry transmitted the amended Application filed by the Applicants Counsel on 12 May 2021 to the Respondent State giving it 45 days to respond to the amended Application and on reparations.

On 20 May 2022, The Registry sent a 1st Reminder to the Respondent State to file its submissions to the amended Application and on reparations. The Respondent State was given 45 days to respond.

On 12 July 2022, a 2nd Reminder to the Respondent State to file its submissions on the amended Application and on reparations, was transmitted giving it 30 days to respond while drawing its attention to Rule 63 of the Rules of the Court.

The Respondent State acknowledged receipt of the Notice on 12 July 2022 via email to the Registry.

The 30 days granted expired on 4th August 2022 without the Respondent State filing its response to the amended Application.

Pleadings were closed on 1 September 2022 with a notification to the Parties.

On 21 October 2022, the Respondent State filed a Reply to the Applicant’s Amended Application on Merits and Reparation, out of time pursuant to Rule 45 (2) of the Rules of Court of 2020. The Respondent State submitted that the delay was caused due to collation of information from various stakeholders.

On 25 October 2022, the Registry acknowledged receipt of the Respondent State’s Response to the amended Application on the Merits and on Reparations and transmitted the same to the Applicant on 27 October 2022, giving the Applicant 15 days to respond. The Applicant did not respond

ON THE REASON FOR REOPENING OF PLEADINGS

The Court observes that Rule 46(3) of the Rules of Court provides that "[t] he Court has the discretion to determine whether or not to reopen pleadings". Furthermore, Rule 44(2) provides: ‘’ [A]fter the Respondent State has filed its Response; the Applicant may file a Reply thereto within forty-five (45) days’’. The Court further notes that under Rule 90 of the Rules, provides that "[n]othing in these Rules shall limit or otherwise affect the inherent power of the Court to adopt such procedure or decisions as may be necessary to meet the ends of justice”.

It emerges from the proceedings in the instant case, as summarized above, that the Respondent State’s Response to the Applicant’s Amended Application contains crucial submissions on which the Court will be called upon to rule. Therefore, it is in the interest of justice that the attention of both parties be drawn to the procedure applicable under Rule 46(3) as read together with Rule 44(2) of the Rules.

In view of the foregoing, it is in the interest of justice to re-open the pleadings and allow the Applicant forty-five (45) days to reply to the Respondent State's response on the Amended Application on the Merits and on Reparations.

OPERATIVE PART

For these reasons

The Court,

*Unanimously*

*Orders* the re-opening of pleadings in Application No. 005/2020 *Alexander Mgunda Alias Cheknoris v. United Republic of Tanzania* and deems in the interest of justice, that the Respondent State’s Response is properly filed*.*

*Orders* the Applicant to submit the Reply to the Respondent State’s Response on the Amended Application on the Merits and on Reparations within forty-five (45) days of receipt thereof.

Signed:

Blaise TCHIKAYA, Vice - President;

and Robert ENO, Registrar.

Done at Arusha, this Twenty Fourth Day of February in the year Two thousand and twenty-three, in the English, Arabic and French languages, the English text being authoritative.

1. Rule 8(2) of the Rules of Court, 2 June 2010. [↑](#footnote-ref-1) 2. *Andrew Ambrose Cheusi v. United Republic of Tanzania,* ACtHPR*,* Application No. 004/2015, Judgment of 26 June 2020 (merits and reparations) §§ 37-39. [↑](#footnote-ref-2)