[2016] AfCHPR 60

**AFRICAN UNION** الاتحاد الأفريقي


**UNION AFRICAINE UNIÃO AFRICANA**

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

# IN THE MATTER OF

**AMINI JUMA**

$V$ .

THE UNITED REPUBLIC OF TANZANIA

APPLICATION No.024/2016

ORDER FOR PROVISIONAL MEASURES


**The Court Composed of;** Elsie N. THOMPSON, Vice President, Gérard NIYUNGEKO, Fatsah OUGUERGOUZ, Duncan TAMBALA, Sylvain ORÉ, El Hadji GUISSÉ, Ben KIOKO, Rafâa BEN ACHOUR, Solomy B. BOSSA, Angelo V. MATUSSE- Judges; and Robert ENO-Registrar. **The Court Composed of;** Elsie N. THOMPSON, Vice President, Gerard NIYUNGEKO, Fatsah OUGUERGOUZ, Duncan TAMBALA, Sylvain ORE, El Hadji GUISSE, Ben KIOKO, Raf~a BEN ACHOUR, Solomy B. BOSSA, Angelo V. MATUSSE- 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 Augustino S. L. RAMADHANI, President of the Court and a national of Tanzania, did not hear the Application.* 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 Protocof'J and Rule 8(2) of the Rules of Court ("hereinafter referred to as the Rules"), Justice Augustina S. L. RAMADHANI, President of the Court and a national of Tanzania, did not hear the Application.

In the matter of: In the matter of:

### **AMINI JUMA AMINI JUMA**

#### **V. V.**

#### **THE UNITED REPUBLIC OF TANZANIA THE UNITED REPUBLIC OF TANZANIA**

After having deliberated, After having deliberated,

Makes the following Order, Makes the following Order,

#### **I. Subject of the Application** I. **Subject of the Application**

1. The Court received, on 13 April 2016, an Application by Amini Juma (hereinafter referred to as "the Applicant"), instituting proceedings 1. The Court received, on 13 April 2016, an Application by Amini Juma (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. against the United Republic of Tanzania (hereinafter referred to as "the Respondent"), for alleged violations of human rights.

- 2. The Applicant is a convict, currently detained at Maweni Central Prison in Tanga, Tanzania. The Applicant was convicted for murder by the High Court of Tanzania at Arusha on 18 September 2008 and sentenced to life imprisonment. The Applicant appealed to the Court of Appeal of Tanzania which is the highest Court in Tanzania, in Criminal Appeal No. 303 of 2008, and his appeal was dismissed on 17 October 2011 and his life imprisonment sentence set aside and revised with the mandatory sentence to suffer death by hanging. 2. The Applicant is a convict, currently detained at Maweni Central Prison in Tanga, Tanzania. The Applicant was convicted for murder by the High Court of Tanzania at Arusha on 18 September 2008 and sentenced to life imprisonment. The Applicant appealed to the Court of Appeal of Tanzania which is the highest Court in Tanzania, in Criminal Appeal No. 303 of 2008, and his appeal was dismissed on 17 October 2011 and his life imprisonment sentence set aside and revised with the mandatory sentence to suffer death by hanging. - 3. The Applicant states that he lodged an application for review at the Court of Appeal but that the Court of Appeal has delayed in the review of its decision until today. 3. The Applicant states that he lodged an application for review at the Court of Appeal but that the Court of Appeal has delayed in the review of its decision until today. - 4. The Applicant states, *inter alia,* that: 4. The Applicant states, ;nter alia, that: - (a) The evidence used to convict him was facial identification and that the description by Prosecution Witness 1 was very scanty and that it could fit any other person. (a) The evidence used to convict him was facial identification and that the description by Prosecution Witness 1 was very scanty and that it could fit any other person. - (b) There were contradictions in the evidence. He states that Exhibit P3, the motorcycle found in the possession of the Applicant was a HONDA 250, yet Prosecution Witness 2 identified it as a YAMAHA. (b) There were contradictions in the evidence. He states that Exhibit P3, the motorcycle found in the possession of the Applicant was a HONDA 250, yet Prosecution Witness 2 identified it as a YAMAHA.

- (c) The Court of Appeal of Tanzania did not fully evaluate the evidence on record as they were required to do. - (d) The Court of Appeal misled itself as to the location of the crime. He states that at the committal proceedings, the crime was alleged to have occurred at Kivuyo at Meserani Village in Monduli District, whereas in the judgment of the Court of Appeal, the scene of the crime is stated to be Meserani Village in Monduli. This, the Applicant states instead that he was arrested at Mererani in Simanjiro District and Manyara Region. The Applicant states that this misdirection created the false impression that he was arrested near the scene, yet he was arrested more than one hundred (100) kilometres away. - (e) The Applicant contends there were undue delays in the hearing of his application for review at the Court of Appeal and discrepancies in trial and appellate proceedings.

#### **Procedure before the Court** $\mathbf{H}^{\top}$

- $5.$ The Application was received at the Registry of the Court on 13 April 2016. - $6.$ Pursuant to Rule 36 of the Rules of Court, by a notice dated 31 May 2016, the Registry served the Application on the Respondent.

# **III. Jurisdiction Ill. Jurisdiction**

- 7. In 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. 7. In 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. - 8. 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.1 8. 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. ¹ - 9. 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". 9. 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". - 10. 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-10. 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-

¹ See Application 002/2013 African Commission on Human and Peoples' Rights v Libya (Order for Provisional Measures dated15 March 2013) and Application 006/2012 African Commission on Human and Peoples' Rights v Kenya (Order for Provisional Measures datedl 5 March 2013); Application 004/2011 African Commission on Human and Peoples' Rights v Libya (Order for Provisional Measures dated 25 March 2011). ¹See Application 002/2013 African Commission on Human and Peoples' Rights v Libya (Order for Provisional Measures dated15 March 2013) and Application 006/2012 African Commission on Human and Peoples' Rights v Kenya (Order for Provisional Measures dated15 March 2013); Application 004/2011 African Commission on Human and Peoples' Rights v Libya (Order for Provisional Measures dated 25 March 2011 ).

Governmental Organisations, within the meaning of Article 34(6) of the Protocol read together with Article 5(3) of the Protocol. Governmental Organisations, within the meaning of Article 34(6) of the Protocol read together with Article 5(3) of the Protocol.

- 11. The alleged violations the Applicant is complaining about are guaranteed under Articles 3 and 7(1) of the Charter and the Court therefore has jurisdiction *ratione materiae* over the Application. 11. The alleged violations the Applicant is complaining about are guaranteed under Articles 3 and 7(1) of the Charter and the Court therefore has jurisdiction ratione materiae over the Application. - 12. In light of the foregoing, the Court has satisfied itself that, *prima facie*, it has jurisdiction to deal with the Application. 12. In light of the foregoing, the Court has satisfied itself that, prima facie, it has jurisdiction to deal with the Application.

## **IV. On the provisional measures IV. On the provisional measures**

- 13. In his Application, the Applicant did not request the Court to order provisional measures. 13. In his Application, the Applicant did not request the Court to order provisional measures. - 14. Under Article 27(2) of the Protocol and Rule 51(1) of the Rules, the Court is empowered to order provisional measures *proprio motu* In 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". 14. Under Article 27(2) of the Protocol and Rule 51 (1) of the Rules, the Court is empowered to order provisional measures proprio motu '1n 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". - 15. 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. 15. 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.

- The Applicant is on death row and it appears from this Application that 16. there exists a situation of extreme gravity, as well as a risk of irreparable harm to the Applicant. - Given the particular circumstances of the case, where there is a risk $17.$ of execution of the death penalty which may jeopardise the enjoyment of the rights guaranteed under Articles 3 and $7(1)$ of the Charter, the Court has decided to invoke its powers under Article $27(2)$ of the Protocol. - $18.$ 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 and $7(1)$ of the Charter, if the death sentence were to be carried out. - Consequently, the Court holds that the circumstances require an 19. Order for provisional measures, in accordance with Article 27(2) of the Protocol and Rule 51 of its Rules, to preserve the *status quo*, pending the determination of the main Application. - For the avoidance of doubt, this Order shall not in any way prejudice 20. any findings the Court shall make regarding its jurisdiction, the admissibility and the merits of the Application.

# For these reasons,

- $21.$ 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 3^rd day of June in the year 2016, in English, French, Portuguese and Arabic, the English version being authoritative.

#### **Signed: Signed:**

| Elsie N. THOMPSON, Vice President<br>Elsie<br>N.<br>THOMPSON,<br>Vice<br>President | |------------------------------------------------------------------------------------| | NIYUNGEKO,<br>Gerard<br>Judge | | I<br>OUGUERGOUZ,<br>Fatsah<br>Judge | | '6\}W<br>Duncan TAMBALA, Judge<br>TAMBALA,<br>Judge<br>\S W<br>A<br>Duncan<br>,~ | | Sylvain ORÉ, Judge<br>Sylvain<br>ORE,<br>Judge | | GUISSE,<br>Judge<br>El<br>Hadji | | KIOKO,<br>Ben<br>Judge | | A<br>))d<br>'i<br>/<br>Rafaa<br>ACHOUR,<br>Judge<br>BEN<br>--<br>, | | BOSSA,<br>Judge<br>Solomy<br>B.<br>, | | SSE,<br>Judge;<br>and<br>Angelo<br>V.<br>MA<br>TU<br>J | | Robert<br>ENO,<br>Registrar | | |