[2016] AfCHPR 54

05112016 $2016$ <br> $200070)$ CCT **UNION AFRICAINE UNIÃO AFRICANA**

**AFRICAN UNION** الاتحاد الأفريقي

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

#### IN THE MATTER OF

**NZIGIYIMANA ZABRON**

V.

## THE UNITED REPUBLIC OF TANZANIA

APPLICATION N0.051/2016


The court composed of; sylvain oRE, president, Ben KloKo, Vice President, G6rard NIYUNGEKO, El Hadji GUISSE, Raf6a BEN ACHOUR, Solomy B. BOSSA, Angelo V. MATUSSE, Ntyam O. MENGUE, Marie-Th6rdse MUKAMULTSA- Judges; and Robert ENo-Registrar 0000? ⁶

ln the matter of

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#### NZIGIYIMANA ZABRON

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### THE UNITED REPUBLIC OF TANZANIA

After having deliberated,

Makes the following Order,

## l. Subject of the Application

- The court received, on 1 september 2016, an Application from Nzigiyimana Zabron (hereinafter referred to as "the Applicant"), instituting proceedings against the United Republic of ranzania (hereinafter referred to as "the Respondent,,), for alleged violations of human rights. 1 - 2. The Applicant, who is currenfly detained at Butimba central Prison, was sentenced to death by the High court of ranzania at Tabora on 25 June 2012. The death sentence was confirmed by

the Court of Appeal, which is the highest Court in Tanzaniq, gn 25 September 2013

- 3. The Applicant alleges, inter alia, that 0000?b - a) During the trial at the High court in Tabora his fundamental rights were violated when his evidence was not taken into consideration and reasons for rejection therefore were not given. - b) His right to a fair trial was violated as he was denied the right to an interpreter and could not understand the language used at the Court. - c) The Trial court and the court of Appeal made an improper and discriminatory evaluation of evidence when it relied on evidence given by Prosecution witnesses who lacked credibility. - d) The Prosecution did not prove its case beyond reasonable doubt, particularly the doctrine of recent possession with regards to the ownership of a bicycle.

## ll. Procedure before the Gourt

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- The Application was received at the Registry of the court on ¹ September 2O16. 4 - Pursuant to Rule 35 of the Rules of court, by a notice dated ¹⁶ November 2016, the Registry served the Application on the Respondent. E

# 1il. Jurisdiction

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- ln dealing with an Application, the court has to asceftain 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 rtself , prima facie, thatit has jurisdiction.l 7 - 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". 8 - The Respondent ratified the charter on g Mai-ch 19g4 and the Protocol on 10 February 2006, and is party to both instruments; it equally deposited, on 2g March zo1o, a declaration accepting the competence of the court to receive cases from individuals and Non-Governmental organisations, within the meaning of Article

¹see Applicalion oo2t2a13 African commission on Human and peoples, Rights ^v Libya (order for Provisional Measures dated 15 March 2013) and Application 00o12012 African commission on Human and peoples, Rights v Kenya (order for Provisional Measures dated 1s March 2013); Application oo4t2o11 African Commission on Human and Peoples' Rights v Libya (Order for provisional Measures dated 25 [March 2011).

34(6) of the Protocol Protocol. read together with Article S(3) of the

- 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 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 Provisional Measures

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- 12. ln his Application, the Applicant did not request the court to order Provisional Measures - ¹³ Under Articte 27(z) of the protocor 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 'lvhich 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

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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. 000072

Given the particular circumstances of the case, where the risk of 16. execution of the death penalty will jeopardize the enjoyment of the rights guaranteed under Articles 3(2) and 7(1)(c) of the Charter, the Court has decided to invoke its powers under Article 27(2) of the Protocol.

- The Court finds that the situation raised in the present Application 17. is of extreme gravity and represents a risk of irreparable harm to the rights of the Applicant as protected by Articles $3(2)$ and $7(1)(c)$ of the Charter, if the death sentence were to be carried out. - Consequently, the Court holds that the circumstances require an 18. 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. - 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 penarty against the Applicant pending the determination of the Application 0000? t

b) report to the court within sixty (60) days from the date of receipt of this order, on the measures taken to impLment: the Order

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

### Signed:

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Ntyam O. MENGUE, Judge


Marie-Thérèse MUKAMULISA- Judge; and

Robert ENO-Registrar