[2016] AfCHPR 56


**AFRICAN UNION** الاتحاد الأقريقي


**UNION AFRICAINE UNIÃO AFRICANA**

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

IN THE MATTER OF

**OSCAR JOSIAH**

V.

### THE UNITED REPUBLIC OF TANZANIA

APPLICATION N0.053/2016

ORDER FOR PROVISIONAL MEASURES 18 NG **EMBER-2016**

The Court Composed of; Sylvain ORE, President, Ben KIOKO, Vice President, G6rard NIYUNGEKO, El Hadji GUISSE, Rafaa BEN ACHOUR, Solomy B. BOSSA, Angelo V. MATUSSE, Ntyam O. MENGUE, Marie-Th6rdse MUKAMULISA- Judges; and Robert ENO-Registrar

ln the matter of

#### OSCAR JOSIAH

V

#### THE UNITED REPUBLIC OF TANZANIA

After having deliberated,

Makes the following Order,

# !. Subiect of the Application

- The Court received, on 2 September 2016, an Application from Oscar Josiah (hereinafter referred to as "the Applicant"), instituting proceedings against the United Republic of Tanzania (hereinafter referred to as "the Respondent"), for alleged violations 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 2 October 2015 following his conviction for a crime of murder committed contrary to Section 196 of the Penal Code CAP 16. That

death sentence was conflrmed by the Court of Appeal, which is the highest Court in Tanzania, on 25 February 2016.

3. The Applicant alleges, inter alia, that, the High Court and the Court of Appeal erred when they failed to consider the inconsistencies and contradictions in the testimonies of the prosecution witnesses, and also went further to convict the Applicant using the evidence of PW2 (wife of the accused) whose evidence kept changing throughout.

# II. Procedure before the Gourt

- The Application was received at the Registry of the Court on ² September 2016. 4 - Pursuant to Rule 35 of the Rules of Court, on 15 November 2016, the Registry served the Application on the Respondent. 5

### !!1. Jurisdiction

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

- 7 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 - I Article 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". - The Respondent ratified the Charter on 9 March 1984 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 34(6) of the Protocol read together with Article 5(3) of the Protocol. I - ¹⁰ The alleged violations the Applicant is complaining about are guaranteed under Articles 3(2) and 7(1Xc) of the Charter, and the Court therefore has jurisdiclion ratione materiae over the Application.

¹See Application 002/2013 African Commission on Human and Peoples' Rights v Libya (Order for Provisional Measures datedl5 March 2013) and Application 006/2012 African Commission on Human and Peoples' Rights v Kenya (Order for Provisional Measures datedl5 March 2013); Application OO4|2O11 African Commission on Human and Peoples' Rights v Libya (Order for Provisional Measures dated 25 March 2011).

¹¹ ln light of the foregoing, the Court has satisfied itself thal, prima facie,lt has jurisdiction to deal with the Application.

# !V. On the Provisional Measures

- ln his Application, the Applicant did not request the Court to order Provisional Measures. 12 - Under Article 27(2) ot the Protocol and Rule 51(1) of the Rules, the Court is empowered to order provisional measures proprio motu'7n cases of extreme gravity and when necessary to avoid irreparable harm to persons" and '\which it deems necessary to adopt in the interest of the parties or of justice". 13 - It is for the Court to decide in each situation if, in the light of the particular circumstances, it should make use of the power provided for by the aforementioned provisions. 14 - 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. 15 - 16 Given the particular circumstances of the case, where the risk of execution of the death penalty will jeopardise the enjoyment of the rights guaranteed under Articles 3(2) and 7(1Xc) of the Charter, the

Court has decided to invoke its powers under Article 27(2) ol 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 Articles 3(2) and 7(1Xc) od the Charter, if the death sentence were to be carried out. - 18 Consequently, the Court holds that the circumstances require an Order for provisional measures, in accordance with Article 27(2) of the Protocol and Rule 51 of its Rules, to preserve the sfafus quo, 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,

- 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 (60) days from the date of receipt of this Order, on the measures taken to implement the Order.

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

### Signed:

Sylvain ORE, President

Ben KIOKO, Vice President

G6rard NIYUNGEKO, Judge

El Hadji GUISSE, Judge

Rafaa BEN ACHOUR, Judge

Solomy B. BOSSA, Judge

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Angelo V. MATUSSE, Judge

Ntyam O. MENGUE, Judge

Marie-Th6rdse MUKAMULISA- Judge; and

Robert ENO-Registrar 0n ,t


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