African Court Law Report: Volume 2 (2017-2018)

Report of judgments,
orders and advisory opinions of the
Volume 2 (2017-2018)
African Court Law Report
African Court on Human and Peoples’ Rights

Volume 2 (2017-2018)
Pretoria University Law Press

PULP
www.pulp.up.ac.za
ISBN: 978-1-920538-94-1
PULP
Editors
Editors Convening Editor

Ben Kioko Magnus Killander
Vice-President of the Court and Chair of Professor, Centre for Human Rights,
the Working Group on Publications Faculty of Law, University of Pretoria
Rafaâ Ben Achour Assistant Editors

Judge
Sorie Bangura
Angelo V. Matusse Master’s student, Centre for Human
Judge Rights, Faculty of Law,
University of Pretoria
Marie-Thérèse Mukamulisa
Judge Trésor Makunya Muhindo
Doctoral student, Centre for Human
Tujilane Chizumila Rights, Faculty of Law,
Judge University of Pretoria
Chafika Bensaoula Susan Mutambasere

Judge Doctoral student, Centre for Human
Rights, Faculty of Law,
Blaise Tchikaya University of Pretoria
Judge
Assistant Editors
Dr. Robert Eno
Registrar
Dr. Sègnonna H. Adjolohoun

Principal Legal Officer
Dr. Mwiza Jo Nkhata

Principal Legal Officer
Report of judgments,
orders and advisory opinions of the

Volume 2 (2017-2018)
2019
Report of judgments, orders and advisory opinions of the
African Court Law Report Volume 2 (2017-2018)
Published by:
Pretoria University Law Press (PULP)
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University of Pretoria, South Africa. PULP endeavours to publish and make
available innovative, high-quality scholarly texts on law in Africa. PULP also
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ISSN: 2663-3248
© 2019
The African Court on Human and Peoples' Rights holds the copyright of this Law Report.
The Centre for Human Rights manages its publication.
Table of contents
Editorial.......................................................................................v
User Guide ................................................................................vi
Acknowledgment ...................................................................... vii
Table of Cases ........................................................................ viii
Alphabetical Table of Cases......................................................xi
Subject Index........................................................................... xiii
Instruments Cited .................................................................. xxiii
Cases Cited ................................................................................li
Contentious Matters .................................................................. 1
Advisory Proceedings............................................................ 572
iii
Editorial
This is the second volume of the Report of judgments, orders and

advisory opinions of the African Court on Human and Peoples’ Rights.
This volume covers decisions from 2017 to 2018.
The volume includes all the Judgments, including Separate and
Dissenting Opinions, Advisory Opinions, Rulings, Decisions,
Procedural Orders and Orders for Provisional Measures adopted by the
Court during the period under review.
Each case has a headnote setting out a brief summary of the case
followed by keywords indicating the paragraphs of the case in which the
Court discusses the issue. A subject index at the start of the reports
indicates which cases discuss a particular issue. This index is divided
into sections on general principles and procedure, and substantive
issues.
v
User Guide
This second volume of the African Court Law Report includes 37

decisions of the African Court on Human and Peoples’ Rights.
Decisions are sorted chronologically with decisions dealing with the
same case (eg procedural decisions, orders for provisional measures,
merits judgments and reparations judgments) sorted together. A table
of cases setting out the sequence of the decisions in the Report is
followed by an alphabetical table of cases. The Report also includes a
subject index, divided into sections on procedure and substantive
rights. This is followed by lists of instruments cited and cases cited.
These lists show which of the decisions include reference in the main
judgment to specific articles in international instruments and case law
from international courts and quasi-judicial bodies.
Each case includes a chapeau with a brief summary of the case
together with keywords and paragraph numbers where the issue is
discussed by the Court or in a separate opinion.
The year before AfCLR in the case citation indicates the year of the
decision, the number before AfCLR the volume number (2), while the
number after AfCLR indicates the page number in this Report.
vi
Acknowledgment
The support of the following persons in the process of publication of this

Report is acknowledged with much appreciation:
• Mr. Nouhou Madani Diallo, Deputy Registrar

• Ms. Grace Wakio Kakai, Head of Legal Division
• Dr. Serges Frédéric Mboumegne Dzesseu, Research Assistant to the
President of the Court
• Ms. Milka Mkemwa, Documentalist
vii
Table of Cases
CONTENTIOUS MATTERS
Nyamwasa and Others v Rwanda, Application 016/2015
Order (interim measures), 24 March 2017 (2017) 2 AfCLR 1
African Commission on Human and Peoples’ Rights v Kenya,
Application 006/2012
Judgment (merits), 26 May 2017 (2017) 2 AfCLR 9
Onyachi and Njoka v Tanzania, Application 003/2015
Judgment (merits), 28 September 2017 (2017) 2 AfCLR 65
Jonas v Tanzania, Application 011/2015
Diakité v Mali, Application 009/2016
Judgment (jurisdiction and admissibility), 28 September 2017 (2017) 2
AfCLR 118
Thomas v Tanzania, Application 001/2017
Judgment (interpretation), 28 September 2017 (2017) 2 AfCLR 126
Abubakari v Tanzania, Application 002/2017
Actions pour la Protection des Droits de l’Homme (APDH) v Côte
d’Ivoire, Application 003/2017
Mulindahabi v Rwanda, Application 008/2017
Order (jurisdiction and admissibility), 28 September 2017 (2017) 2 AfCLR
145
Mugesera v Rwanda, Application 021/2017
Order (provisional measures), 28 September 2017 (2017) 2 AfCLR 149
Johnson v Ghana, Application 016/2017
Order (provisional measures), 28 September 2017 (2017) 2 AfCLR 155
Umuhoza v Rwanda, Application 003/2014
Judgment (merits), 24 November 2017 (2017) 2 AfCLR 165
Judgment (reparations), 7 December 2018 (2018) 2 AfCLR 202
Woyome v Ghana, Application 001/2017
Order (provisional measures), 24 November 2017 (2017) 2 AfCLR 213
viii
Isiaga v Tanzania, Application 032/2015
Judgment (merits), 21 March 2018 (2018) 2 AfCLR 218
Kouma and Diabaté v Mali, Application 040/2016
Anudo v Tanzania, Application 012/2015
Gombert v Côte d’Ivoire, Application 038/2016
Judgment (jurisdiction and admissibility), 22 March 2018 (2018) 2 AfCLR
270
Nguza v Tanzania, Application 006/2015
Mango v Tanzania, Application 005/2015
Ramadhani v Tanzania, Application 010/2015
Chrysanthe v Rwanda, Application 022/2015
Judgment (jurisdiction and admissibility), 11 May 2018 (2018) 2 AfCLR 361
Kemboge v Tanzania, Application 002/2016
Association pour le Progrès et la Défense des Droits des Femmes
Maliennes and the Institute for Human Rights and Development
in Africa v Mali, Application 046/2016
Evarist v Tanzania, Application 027/2015
William v Tanzania, Application 016/2016
Paulo v Tanzania, Application 020/2016
Ajavon v Benin, Application 013/2017
Order (re-opening), 5 December 2018 (2018) 2 AfCLR 466
Order (provisional measures), 7 December 2018 (2018) 2 AfCLR 470
Guehi v Tanzania, Application 001/2016
Judgment (merits and reparations), 7 December 2018 (2018) 2 AfCLR 477
Werema v Tanzania, Application 024/2015
Judgment (merits), 7 December 2018 (2018) 2 AfCLR 520
ix
Makungu v Tanzania, Application 006/2016
Judgment (merits), 7 December 2018 (2018) 2 AfCLR 550
ADVISORY PROCEEDINGS
Request for Advisory Opinion by the Socio-Economic Rights and
Accountability Project, Application 001/2013
Advisory Opinion, 26 May 2017 (2017) 2 AfCLR 572
Request for Advisory Opinion by Rencontre Africaine pour la
Défense des Droits de l’Homme, Application 002/2014
Advisory Opinion, 28 September 2017 (2017) 2 AfCLR 594
Request for Advisory Opinion by the Centre for Human Rights,
University of Pretoria and the Coalition of African Lesbians,
Application 002/2015
University of Pretoria and Others, Application 001/2016
Request for Advisory Opinion by l’Association Africaine de
Défense de Droits de l’Homme, Application 002/2016
x
Alphabetical Table of Cases
Abubakari v Tanzania (interpretation) (2017) 2 AfCLR 134

Actions pour la Protection des Droits de l’Homme (APDH) v Côte d’Ivoire
(interpretation) (2017) 2 AfCLR 141
African Commission on Human and Peoples’ Rights v Kenya (merits) (2017)
2 AfCLR 9
Ajavon v Benin (re-opening) (2018) 2 AfCLR 466
Ajavon v Benin (provisional measures) (2018) 2 AfCLR 470
Paulo v Tanzania (merits) (2018) 2 AfCLR 446
Anudo v Tanzania (merits) (2018) 2 AfCLR 248
Maliennes and the Institute for Human Rights and Development in Africa
v Mali (merits) (2018) 2 AfCLR 380
Diakité v Mali (jurisdiction and admissibility) (2017) 2 AfCLR 118
William v Tanzania (merits) (2018) 2 AfCLR 426
Evarist v Tanzania (merits) (2018) 2 AfCLR 402
Gombert v Côte d’Ivoire (jurisdiction and admissibility) (2018) 2 AfCLR 270
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477
Isiaga v Tanzania (merits) (2018) 2 AfCLR 218
Johnson v Ghana (provisional measures) (2017) 2 AfCLR 155
Jonas v Tanzania (merits) (2017) 2 AfCLR 101
Kemboge v Tanzania (merits) (2018) 2 AfCLR 369
Kouma and Diabaté v Mali (merits) (2018) 2 AfCLR 237
Mango v Tanzania (merits) (2018) 2 AfCLR 314
Makungu v Tanzania (merits) (2018) 2 AfCLR 550
Mugesera v Rwanda (provisional measures) (2017) 2 AfCLR 149
Mulindahabi v Rwanda (jurisdiction and admissibility) (2017) 2 AfCLR 145
Nguza v Tanzania (merits) (2018) 2 AfCLR 287
Nyamwasa and Others (interim measures (2017) 2 AfCLR 1
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65
Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344
Request for Advisory Opinion by l’Association Africaine de Défense de
Droits de l’Homme (Advisory Opinion) (2017) 2 AfCLR 637
xi
Request for Advisory Opinion by Rencontre Africaine pour la Défense des
Request for Advisory Opinion by the Centre for Human Rights, University of
Pretoria and the Coalition of African Lesbians (Advisory Opinion) (2017)
2 AfCLR 606
Pretoria and Others (Advisory Opinion) (2017) 2 AfCLR 622
Accountability Project (Advisory Opinion) (2017) 2 AfCLR 572
Chrysanthe v Rwanda (jurisdiction and admissibility) (2018) 2 AfCLR 361
Thomas v Tanzania (interpretation (2017) 2 AfCLR 126
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Umuhoza v Rwanda (reparations) (2018) 2 AfCLR 202
Werema v Tanzania (merits) (2018) 2 AfCLR 520
Woyome v Ghana (provisional measures) (2017) 2 AfCLR 213
xii
Subject Index
GENERAL PRINCIPLES AND PROCEDURE
Admissibility
Exhaustion of local remedies
Constitutional petition
Maliennes and the Institute for Human Rights and Development in
Africa v Mali (merits) (2018) 2 AfCLR 380
Availability, effectiveness, sufficiency
Extra-ordinary remedies
Issues not raised in dometic proceedings
xiii
Unduly prolonged
African Commission on Human and Peoples’ Rights v Kenya (merits)
(2017) 2 AfCLR 9
Pending case
2 AfCLR 9
Previous settlement
Request for interpretation
Standing of original complainant
2 AfCLR 9
Submission within reasonable time
Exceptional crisis
Maliennes and the Institute for Human Rights and Development in
Africa v Mali (merits) (2018) 2 AfCLR 380
xiv
Costs
Pro bono counsel
Supporting documents
Evidence
Burden of proof
Interim measures
Request for interim measures overtaken by events
Interpretation
International instruments
2 AfCLR 9
Universal Declaration forms part of customary international law
Jurisdiction
Advisory proceedings
Jurisdiction to consider request for advisory opinion from NGO
Request for Advisory Opinion by Rencontre Africaine pour la Défense
des Droits de l’Homme (Advisory Opinion) (2017) 2 AfCLR 594
University of Pretoria and the Coalition of African Lesbians
(Advisory Opinion) (2017) 2 AfCLR 606
University of Pretoria and Others (Advisory Opinion) (2017) 2
AfCLR 622
Request for Advisory Opinion by l’Association Africaine de Défense de
xv
Material jurisdiction
2 AfCLR 9
Consular assistance
Personal jurisdiction
2 AfCLR 9
Temporal jurisdiction
Continuous violation
African Commission on Human and Peoples’ Rights v Kenya (merits)
(2017) 2 AfCLR 9
Limitations of rights
State must show justification
2 AfCLR 9
Procedure
Amicable settlement procedure unsuccessful
2 AfCLR 9
xvi
Hearing of original complainant
2 AfCLR 9
Public hearing
2 AfCLR 9
Provisional measures
Death penalty
Extreme urgency, irreparable harm
Prima facie jurisdiction
Reparations
Amendment of legislation
Compensation
Eliminate effects of violation
Evidence
Lawyers’ fees
Material prejudice
xvii
Moral prejudice
Not appellate court
Power to annul expulsion decision
Publication of judgment
Release, exceptional remedy
Reopening of proceedings
Repeal legislation
SUBSTANTIVE RIGHTS
Cruel, inhuman or degrading treatment

Burden of proof
Cultural life
Definition of culture
2 AfCLR 9
xviii
Respect for and protection of cultural heritage
2 AfCLR 9
Equal protection of the law

Allegations require substantiation
Equality, non-discrimination
Any other status
2 AfCLR 9
Different age of marriage for men and women
Elements of discrimination
2 AfCLR 9
Ogieks not granted same recognition as other similar communities
2 AfCLR 9
Expression
Importance
Limitations
Political criticism
Expulsion
Arbitrary
Fair trial
Absence of accused
xix
Appeal
Access to record of proceedings and judgment
Consular assistance
Defence
Evidence
Extradition
Identification parade
Legal aid
Non-retroactivity
Presumption of innocence
xx
Prompt information about charges
Right to be heard
Trial within reasonable time
Harmful practices
Child marriage
Indigenous peoples
2 AfCLR 9
Inheritance
Women and children
Life
Physical not existential
2 AfCLR 9
Marriage
Free consent
Nationality
Statelessness
xxi
People
Definition
2 AfCLR 9
Peoples’ right to development

Lack of consultation
2 AfCLR 9
Peoples’ right to freely dispose of wealth and natural resources

Eviction from forest
2 AfCLR 9
Personal liberty and security

Arbitrary arrest after acquittal
Bail
Legitimate aim of restrictions
Property
Elements of right to property
2 AfCLR 9
Land rights of indigenous peoples
2 AfCLR 9
Limitations in public interest
2 AfCLR 9
Religion
Natural environment, traditional rites
2 AfCLR 9
xxii
Instruments Cited
AFRICAN UNION INSTRUMENTS
African Charter on Human and Peoples’ Rights
Article 1
2 AfCLR 9
Article 2
2 AfCLR 9
xxiii
Article 3
2 AfCLR 9
Article 4
2 AfCLR 9
Article 5
xxiv
Article 6
Article 7
xxv
Article 8
2 AfCLR 9
Article 9
Article 12
Article 13
Article 14
2 AfCLR 9
xxvi
Article 15
Article 16
Article 17
2 AfCLR 9
Article 18
Article 19
Article 20
2 AfCLR 9
xxvii
Article 21
2 AfCLR 9
Article 22
2 AfCLR 9
Article 23
2 AfCLR 9
Article 24
2 AfCLR 9
Article 25
Article 26
Article 27
2 AfCLR 9
Article 28
Article 34
xxviii
Article 40
Article 50
2 AfCLR 9
Article 56
2 AfCLR 9
xxix
Article 58
2 AfCLR 9
Article 59
2 AfCLR 606
Article 61
2 AfCLR 9
Protocol to the African Charter on Human and Peoples’ Rights on

the Rights of Women in Africa (Maputo Protocol)
Article 2
Article 3
Article 6
Article 14
xxx
Article 21
Protocol to the African Charter on Human and Peoples’ Rights on

the Establishment of the African Court on Human and Peoples’
Rights
Article 2
2 AfCLR 9
Article 3
2 AfCLR 9
xxxi
Article 4
2 AfCLR 606
Request for Advisory Opinion by l’Association Africaine de Défense de Droits
de l’Homme (Advisory Opinion) (2017) 2 AfCLR 637
Article 5
2 AfCLR 9
xxxii
2 AfCLR 606
Article 6
2 AfCLR 9
Diakité v Mali (jurisdiction and admissibility) (jurisdiction and admissibility)
(2017) 2 AfCLR 118
xxxiii
Article 9
2 AfCLR 9
Article 10
Article 26
Article 27
xxxiv
Article 28
Article 34
2 AfCLR 9
Ajavon v Benin (re-opening of proceedings) (2018) AfCLR 28
xxxv
2 AfCLR 606
Article 36
African Charter on the Rights and Welfare of the Child
Article 1
Article 2
Article 3
Article 4
Article 11
xxxvi
Article 14
Article 16
Article 21
African Charter on Democracy, Elections and Governance
Article 10
Article 13
Article 17
Article 19
Article 21
Article 22
Article 23
Rules of Court of the African Court on Human and Peoples’

Rights
Rule 26
2 AfCLR 9
xxxvii
Rule 27
Rule 29
2 AfCLR 9
Rule 30
Diakité v Mali (jurisdiction and admissibility) (jurisdiction and admissibility)
(2017) 2 AfCLR 118
xxxviii
Rule 31
Rule 32
2 AfCLR 606
Rule 34
xxxix
Rule 35
Rule 36
Rule 37
xl
Rule 38
Rule 39
2 AfCLR 9
2 AfCLR 606
xli
Rule 40
2 AfCLR 9
Rule 45
2 AfCLR 9
xlii
Rule 46
Rule 48
Rule 50
Rule 51
Rule 53
Rule 55
Rule 57
2 AfCLR 9
Rule 59
Rule 61
Rule 63
xliii
2 AfCLR 606
Rule 66
Rule 67
Rule 68
Rule 69
xliv
2 AfCLR 606
Rule 70
Rule 72
2 AfCLR 606
Rules of the African Commission on Human and Peoples’ Rights
Rule 118
2 AfCLR 9
OTHER REGIONAL INSTRUMENTS
ECOWAS Protocol on Democracy and Good Governance
Article 3
East African Community Treaty
Article 6
xlv
UNITED NATIONS INSTRUMENTS
Universal Declaration of Human Rights
Article 1
Article 2
Article 3
Article 5
Article 6
Article 7
Article 8
Article 10
Article 11
Article 15
xlvi
Article 17
Article 18
Article 19
International Covenant on Civil and Political Rights
Article 1
Article 3
Article 4
Article 6
Article 7
Article 8
Article 11
Article 13
xlvii
Article 14
Article 15
Article 16
Article 18
Article 19
Article 23
Article 25
Article 26
xlviii
International Covenant on Economic, Social and Cultural Rights
Article 6
Article 7
Article 9
Article 11
Article 15
2 AfCLR 9
Article 25
Convention on the Elimination of all Forms of Discrimination

Against Women
Article 5
Article 10
Article 16
United Nations Convention relating to the Status of Stateless

Persons
Article 1
xlix
Vienna Convention on the Law of Treaties
Article 28
2 AfCLR 9
Article 31
Vienna Convention on Consular Relations
Article 36
Article 37
Article 56
United Nations Declaration on the Rights of Indigenous People
Article 8
2 AfCLR 9
Article 26
2 AfCLR 9
European Convention on Human Rights.
Article 6
American Convention on Human Rights
Article 8
l
Cases Cited
Ababou v Algeria
Ababou v Morocco
Abubakari v Tanzania
Action Pour la Protection des Droits de l’Homme v Côte d’Ivoire
African Commission on Human and Peoples’ Rights v Kenya
li
African Commission on Human and Peoples’ Rights v Libya
Amare v Mozambique and Mozambique Airlines
Paulo v Tanzania
Anudo v Tanzania
APDF and IHRDA v Mali
Association des Juristes d’Afrique pour la Bonne Gouvernance v Côte
d’Ivoire
Chacha v Tanzania
lii
Convention Nationale des Syndicats du Secteur Education
(CONASYSED) v Gabon
Delta International Investments SA and De Lange v South Africa
William v Tanzania
Efoua Mbozo’o v Pan African Parliament
Ekollo v Cameroon and Nigeria
Evarist v Tanzania
Gombert v Côte d’Ivoire
Falana v African Union
Isiaga v Tanzania
Jonas v Tanzania
liii
Juma v Tanzania
Konaté v Burkina Faso
Mango v Tanzania
Mkandawire v Malawi
Accountability Project (SERAP) (Advisory Opinion) (2017) 2 AfCLR 572
Mtikila v Tanzania
Mtingwi v Malawi
liv
Ingabire Victoire Umuhoza v Rwanda (merits) (2017) 2 AfCLR
Nganyi v Tanzania
Nguza v Tanzania
Omary and Others v Tanzania
Onyachi and Njoka v Tanzania
Request for Advisory Opinion by Advocate Marcel Ceccaldi on behalf of
the Great Socialist Peoples Libyan Jamahiriya
Rutechura v Tanzania
lv
Thomas v Tanzania
Timan v Sudan
Uko and Others v South Africa
Umuhoza v Rwanda
Nyamwasa and Others v Rwanda (provisional measures) (2017) 2 AfCLR 1
Yogogombaye v Senegal
Zongo and Others v Burkina Faso
lvi
Zongo and Others v Burkina Faso
APDH v Côte d’Ivoire
African Commission on Human and Peoples’ Rights

Amnesty International v Zambia
Annette Pagnoulle (on behalf of Mazou) v Cameroun
Article 19 v Eritrea
Huri-Laws v Nigeria
International Pen and Others (on behalf of Saro-Wiwa) v Nigeria
Kituo Cha Sheria v Kenya
Majuru v Zimbabwe
lvii
Mansaraj and Others v Sierra Leone
Modise v Botswana
Southern African Human Rights NGOs Network and Others v Tanzania
Tembani and Freeth v Angola and 13 Others
African Committee on the Rights and Welfare of the Child

Centre for Human Rights and Rencontre Africaine pour la Défense des
Droits de l’Homme v Senegal
East African Court of Justice

Katabazi et al v Secretary General of the East African Community and
Another
ECOWAS Community Court of Justice

Société AGRILAND v Côte d’Ivoire
Permanent Court of International Justice

Chorzow Factory, Germany v Poland
lviii
International Court of Justice
Ahmadou Sadio Diallo (Guinea v Congo)
Bosnia-Herzegovina v Serbia and Montenegro
Ethiopia v South Africa
Liberia v South Africa
Liechtenstein v Guatemala
UN Human Rights Committee

Reece v Jamaica
Yasseen and Thomas v Guyana
UN Committee on the Elimination of Discrimination against

Women
AT v Hungary
European Court of Human Rights

Abdulgafur Batmaz v Turkey
Agrotexim and Others v Greece
Aliyev v Azerbaijan
Ashingdane v United Kingdom
lix
Assanidze v Georgia
Del Rio Prada v Spain
Dennis and Others v United Kingdom
Dobbertin v France
Gafgen v Germany
Gulijev v Lithuania
Handyside v United Kingdom
Ivanova and Ivashova v Russia
Kamenova v Bulgaria
Luordo v Italy
Melnyk v Ukraine
Miragall Escolano and Others v Spain
Moisejevs v Latvia
Murat Vural v Turkey
Dobbertin v France Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
Papamichalopoulos and Others v Greece
Poitrimol v France
lx
Ramzy v The Netherlands
Sejdovic v Italy
Seyersted and Wiberg v Sweden
Tsourlakis v Greece
Inter-American Court of Human Rights

Cantos v Argentina
Carvajal Carvajal et al v Colombia
Loayza-Tamayo v Peru
The “Street Children” (Villagran-Morales et al.) v Guatemala
Velásquez-Rodríguez v Honduras
ong Ho Wing v Peru
European Court of Human Rights

Handyside v United Kingdom
Agrotexim and Others v Greece
lxi
Nyamwasa and Others v Rwanda (interim measures) (2017) 2 AfCLR 1 1
Nyamwasa and Others v Rwanda (interim measures)

(2017) 2 AfCLR 1
Application 016/2015, General Kayumba Nyamwasa & Others v Republic

of Rwanda
Order, 24 March 2017. Done in English and French, the English text
being authoritative.
Judges: ORE, KIOKO, NIYUNGEKO, GUISSE, BEN ACHOUR, BOSSA,
MATUSSE and MENGUE
Recused under Article 22: MUKAMULISA
Request for interim measures not granted in a case dealing with
referendum on amendment to the Constitution of Rwanda allowing the
President of the Republic to seek a third term as the request had been
overtaken by the holding of the referendum.
Interim measures (request for interim measures overtaken by events,
35)
I. The Parties
1. The Applicants are General Kayumba Nyamwasa, Mr Kennedy

Alfred Nurudin Gihana, Mr Bamporiki Abdallah Seif, Mr Frank Ntwali, Mr
Safari Stanley, Dr Etienne Mutabazi and Mr Epimaque Ntamushobora
(hereinafter referred to as “the Applicants”) requesting certain Interim
Measures. The Applicants claim to be citizens of the Republic of
Rwanda who are currently in exile in the Republic of South Africa,
having fled from Rwanda.
2. The Respondent is the Republic of Rwanda. It ratified the African
Charter on Human and Peoples’ Rights (hereinafter referred to as “the
Charter”) on 22 July 1983 and the Protocol on 6 May 2003, and is
party to both instruments. The Respondent deposited, on 22 January
2013 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.1
II. Subject of the Application
3. The Application is based on the exercise in Rwanda to amend

the Constitution to allow the President of the Republic of Rwanda to
1 It should be noted that the Respondent withdrew its declaration on 29 February

2016. On the decision of the Court in this regard, see para 22 and 23.
2 AFRICAN COURT LAW REPORT VOLUME 2 (2017-2018)
seek election to serve for a third term as President. The Applicants

allege that Article 101 of the Constitution of the Republic of Rwanda
provides that the President shall serve for only two (2) terms.
4. The Applicants allege that the campaign for the amendment of
Article 101 of the Constitution has been conducted against a climate
of fear and that any challenges to the amendments of the Constitution
would likely not succeed as the judiciary of Rwanda is allegedly not
independent, particularly since some judicial officers are also members
of the Respondent’s Ruling Party.
5. The Applicants further allege that this has been against a backdrop
of arbitrary arrests, detentions and trials of leading political figures
such as Victoire Ingabire Umuhoza, the former President, Pasteur
Bizimungu, the former Minister, Charles Ntakiruntika and Bernard
Ntaganda. One of the Applicants, General Kayumba Nyamwasa, states
that South African Courts have found that his attempted assassination
was conducted by persons linked to the Respondent. The Applicants
also allege that another military officer, Lieutenant Colonel Seveline
Ngabo has been held incommunicado in an unknown location since 20
August 2010 and that despite the East African Court of Justice finding
that his detention was unlawful, he has neither been presented in Court
nor charged with any offence.
6. The Applicants also claim that the filing of an application by the
“Green Party” in the courts in Rwanda to challenge the amendment of
Article 101 of the Constitution, is a sham since this Party is a creation
of the President and the whole exercise is intended to lend legitimacy
to the process of the amendment of the Constitution by allowing these
constitutional challenges.
7. The Applicants have filed affidavits in support of the Application.
The affidavit by Safari Stanley states that local remedies in Rwanda
are neither practical nor effective since the President of the Republic of
Rwanda dictates how courts should decide matters before them. They
add that, since the President has a personal interest in the matter,
the outcome of any action at the local level would be to allow the
amendment.
8. The Applicants base their Application on Articles 13 (freedom
to participate in government), 19 (equality of peoples), 21 (freedom of
peoples to dispose of their wealth), 22 (the right to economic, social
and cultural development) of the Charter and Article 23 (prohibiting
amendments of constitutions to extend term limits for the presidency)
of the African Charter on Democracy, Elections and Governance
(hereinafter referred to as ‘the Charter on Democracy’). The Applicants
state that the Respondent is a party to the Charter and the Charter on
Democracy. The Applicants also allege that the planned constitutional
amendment is in contravention of Article 6(d) of the Treaty of the East
African Community which sets out the fundamental principles of the East
African Community, including “recognition, promotion and protection of
human and peoples’ rights in accordance with the provisions of the
African Charter on Human and Peoples’ Rights”.
III. Procedure
9. The Application was filed on 22 July 2015. It was served on the

Respondent and transmitted to the States Parties to the Protocol and
the Executive Council of the African Union through the Chairperson of
the African Union Commission by notices dated 4 August 2015.
10. On 27 October 2015, the Respondent applied for extension of
time, by thirty (30) days to file its Response. By a notice dated 13
November 2015, the Respondent was notified of the Court’s decision
to grant the extension of time to file the Response by 23 November
2015.
11. By a Notice dated 13 November 2015, the Parties were informed
that there would be a Public Hearing on legal arguments on the Request
for Interim Measures on 25 November 2015 in Arusha, Tanzania in the
course of the Court’s 39th Ordinary Session.
12. On 18 November 2015, the Respondent filed the Response to
the Application and it was transmitted to the Applicants by a notice of
the same date.
13. On 18 November 2015, the Applicants requested a deferral of
the hearing due to the inability of some of the Applicants to travel to
Arusha for the hearing due to lack of travel documents.
14. Following the Applicant’s request for a deferral of the hearing, by
a Notice dated 20 November 2015, the Parties were informed that the
Court had decided to defer the Public Hearing.
15. On 12 December 2015, the Applicant’s representative raised an
objection to the deferral of the Public Hearing. The Applicant stated
that this meant that their Application would be overtaken by events
since the referendum with respect to which they sought orders would
take place in a few days’ time.
16. The Registry responded to the above mentioned communication
from the Applicant’s representative by a letter dated 29 December 2015,
by chronicling the handling of the matter by the Court and emphasizing
that the deferral of the public hearing was on the Applicants’ request
despite the Court having scheduled it due to the urgency of the situation.
17. The Applicants filed the Reply to the Response on 1 February
2016. On 5 February 2016, the Registry notified the Applicants that,
since the Reply was filed out of time, they should seek the leave of
Court for an extension of time to file the Reply. The Applicants sought
this leave, by their notice received on 7 March 2016. The Court granted
the leave and the Reply was served on the Respondent by a notice
dated 14 July 2016.
18. By a letter dated 1 March 2016, received at the Registry of
the Court on 2 March 2016, the Respondent notified the Court of its
deposition of an instrument of withdrawal of its Declaration made under
Article 34(6) of the Protocol with respect of Application No. 003/2014,
Ingabire Victore Umuhoza v Republic of Rwanda wherein the letter
stated that:
“The Republic of Rwanda requests that after deposition of the same, the
Court suspends hearings involving the Republic of Rwanda, [including
Ingabire Victoire Umuhoza v Republic of Rwanda], until review is made to
the Declaration and the Court is notified in due course.”
19. By a letter dated 3 March 2016, the Office of Legal Counsel

and Directorate of Legal Affairs of the African Union Commission
notified the Court of the submission of the Respondent’s withdrawal
of its Declaration made under Article 34(6) of the Protocol, which was
received at the African Union Commission on 29 February 2016.
20. By a notice dated 10 March 2016, the Applicants were notified
of the deposit by the Respondent of a declaration withdrawing its
Declaration filed under Article 34(6) of the Protocol, and invited to file
any comments thereon within fifteen (15) days of receipt of the notice.
21. The Applicants filed observations regarding the Respondent’s
withdrawal of the Declaration on 16 May 2016. The Respondent did not
file a Response to the Applicant’s observations.
22. On 3 June 2016, the Court issued a Ruling in Application No.
003/2014, Ingabire Victoire Umuhoza v Republic of Rwanda that
the Respondent’s withdrawal of its Declaration has no effect on that
Application and it would continue with the hearing of that Application.
23. On 3 June 2016, the Court issued an Order in the current
Application that,
“the Court’s Ruling in Ingabire Victoire Umuhoza v Republic of Rwanda,
therefore is to the effect that the withdrawal of Rwanda’s Declaration does
not have the effect of suspending proceedings of cases that have been
filed against Rwanda before the Court” and “unanimously, decides to
continue examining this Application”.
24. This Order was transmitted to the Parties by a notice dated 5

July 2016.
25. The Court ordered that pleadings in the Application be closed
with effect from 16 September 2016.
IV. Prayers of the Parties
A. Applicant’s Prayers
26. In the Application, the Applicants are applying for interim

measures. They pray that the Court:
"a. Order President Kagame and the Republic of Rwanda to
strictly abide by and respect the clear wording of Article
101 of the Republic of Rwanda Constitution, read with
Article 13 of the ACHPR and Article 23 of the Democracy
Charter
b. Order the Senate of Rwanda not to entertain any motion
purportedly instigated by the people of Rwanda to repeal
Article 101 because the people exhausted this power after
they banned themselves from ever revisiting Article 101
c. Order the government of the Republic of Rwanda to
comply with Article 23(5) of the African Charter on
Democracy, Elections and Governance which forbids any
change of the constitution to give the president third or
other term
d. Order any relief(s) as the Court may deem necessary in
the circumstances.”
27. In their Reply to the Respondent’s Response, the Applicants
pray the Court to:
"a. Declare that it has jurisdiction in terms of the Protocol and the
Rules of procedure to hear the Application
b. Declare the Application duly admissible.
c. Simultaneously order the Respondent to abandon plans
to hold a referendum on 17 or 18 December 2015 to
amend Article 101 of its Constitution in light of the Article
23(5) prohibition of the Charter on Democracy.
d. Declare that even if, but without conceding that Kayumba
Nyamwasa and Safari Stanley for the reasons alleged
in the Response have no right to seek remedy, other
Applicants have this right and the Respondent by not
referring to them anywhere in the Response does admit
that the case is admissible in respect to these other
Applicants.
e. Order the Respondent to produce the Gacaca and Military
Court judgments severally referred to in the Response to
enable Kayumba Nyamwasa and Safari Stanley to study
them and make further representations with their rights.

f.
Order the Respondent to delete paragraph 31 of the
Response threatening the Court against deciding against
the Respondent and take necessary measures against
the Respondent.
g. Award costs of this Application to the Applicants.
h. Make such orders and reliefs as it deems necessary.”
28. In its Response to the Application, the Respondent prays the
Court to:
"a. eclare that the Application is frivolous, vexatious, tendentious,
D
politically motivated, an abuse of the process of the Court and
an attempt to compromise the integrity of the Honourable Court.
b. ismiss the Application without the necessity of
D
summoning the respondents to the hearing in accordance
with Rule 38 of the Rules of procedure.
c. Declare that criminal convicts still eluding justice cannot
have locus standi before the Honourable Court.
d. Declare that the Court has no jurisdiction to hear and deal
with the Application on grounds that it is defective and
bad in law.
e. Declare the Application inadmissible on grounds that it
falls short of admissibility conditions established by the
Charter and Rules.
f. Award costs to Respondents.
g. Make such an order as it deems fit.”
V. On the request for interim measures
29. In its Response to the Request for Interim measures, the

Respondent raised objections, contending that the Application does
not indicate what would remain for the Court to decide after issuing
interim measures. They allege further that there are no people’s lives in
danger or serious massive violations of human rights as required under
Article 27(2) of the Protocol, to justify a request for interim measures.
30. Citing the Court’s Ruling in Application No. 004/2013, Lohe Issa
Konate v Burkina Faso, the Respondent maintains that the purpose
of interim measures is to avoid irreparable damage to the victims
during the course of the consideration of the application on the merits.
The Respondent further states that, there is no evidence that interim
measures can be separated from the merits attributable to this request
and the Court cannot grant interim measures without prejudging the
potential merits “(if any)” of the Application.
31. In their Reply to the Respondent’s objection, the Applicants state

that the Court has the mandate to issue interim measures pursuant
to Rule 51 of the Rules and that this Application raises a matter of
extreme urgency. The Applicants further state that neither is the
application for interim measures based on the number of people that
have died nor does the Rule require that lives must have been lost for
the Court to issue interim measures. The Applicants maintain that the
measures requested are to prevent the Respondent from conducting
the referendum. The Applicants aver that, the Court should exercise its
jurisdiction since the Supreme Court of Rwanda has determined the
application filed by the Green Party, to challenge the referendum.
32. This Ruling is with respect to the Applicants’ Request for Interim
Measures for the Respondent to be ordered not to proceed with
the referendum to amend Article 101 of its Constitution, in light of a
prohibition in this regard in Article 23(5) of the Charter on Democracy.
33. The Court can indeed, pursuant to Article 27(2) of the Protocol
issue the interim measures “[i]n cases of extreme gravity and urgency,
and when necessary to avoid irreparable harm to persons.” This
provision is mirrored in Rule 51(1) of the Rules which provides that ‘[p]
ursuant to Article 27(2) of the Protocol, the Court may, at the request of
a party, the Commission or on its own accord, prescribe to the Parties
any interim measure which it deems necessary to adopt in the interest
of the Parties or of justice”.
34. However, interim measures are ordered to prevent irreparable
harm to the rights of the party requesting them, pending determination
of an application on the merits.
35. In view of the extreme urgency of the situation, whereby
the request for interim measures was to stop the Referendum on
amendment of Article 101 of the Respondent’s Constitution planned for
17 or 18 December, 2015, the Court decided to hold a Public Hearing
on this request on 25 November 2015. The Applicants requested a
deferral of the hearing due to the inability of some of the Applicants
who wished to travel to Arusha for the same. The referendum was duly
held on 17 December 2015, thus defeating the purpose of any interim
measures and the request was overtaken by events.
36. In light of the foregoing, the Court cannot order the interim
measures requested since the same has been overtaken by events.
The Application is therefore of no relevance and is consequently
dismissed.
37. For these reasons,
The Court,
Unanimously:
i. Rules that the Court cannot grant the Interim Measures
requested.
ii. Rules that the Application be and is hereby dismissed.

African Commission on Human and Peoples’ Rights v Kenya (merits) (2017) 2 AfCLR 9 9
African Commission on Human and Peoples’ Rights v

Kenya (merits) (2017) 2 AfCLR 9
Application 006/2012, African Commission on Human and Peoples’

Rights v Republic of Kenya
Judgment, 26 May 2017. Done in English and French with the English
text being authoritative.
Judges: ORE, NIYUNGEKO, RAMADHANI, TAMBALA, THOMPSON,
GUISSE, ACHOUR, BOSSA and MATUSSE
Recused under Article 22: KIOKO
The Court found a number of violations of the African Charter in a case
dealing with the eviction of an indigenous population, the Ogiek, from the
Mau Forest.
Procedure (public hearing, 28; hearing of original complainant, 29;
amicable settlement procedure unsuccessful, 31-39)
Jurisdiction (material jurisdiction – Article 58 of the African Charter does
not prevent jurisdiction of the Court, 53; personal jurisdiction - standing of
original complainant before African Commission irrelevant, 58; temporal
jurisdiction – continuing violation, 65)
Admissibility (pending case, 74; standing of original complainant,
88; exhaustion of local remedies – prolonged proceedings, 96, judicial
proceedings, 97)
Indigenous peoples (definition, 105-108; application to Ogiek people,
109-112; preservation of culture, 180)
Property (elements of right to property, 124; land rights of indigenous
peoples, 128; limitation in public interest, 129, 130)
Interpretation (international instruments, 125)
Equality, non-discrimination (any other status, 138; elements of
discrimination, 139; Ogieks not granted same recognition as other similar
communities, 142-146)
Life (physical not existential, 154)
Religion (natural environment, traditional rites, 164-169)
Cultural life (respect for and protection of cultural heritage, 179, 182-
186; definition of culture, 179
Limitations (state must show justification, 188, 189)
People (definition, 196-199)
Peoples’ right to freely dispose of wealth and natural resources
(eviction from forest, 201)
Peoples’ right to development (lack of consultation, 210)
I. The Parties
1. The Applicant is the African Commission on Human and Peoples’

Rights (hereinafter referred to as “the Applicant” or “the Commission”).
The Applicant filed this Application pursuant to Article 5(1)(a) of the
Protocol.
2. The Respondent is the Republic of Kenya (hereinafter referred
to as “the Respondent”). The Respondent became a Party to the
African Charter on Human and Peoples` Rights (hereinafter referred to
as “the Charter”) on 25 July 2000, to the Protocol on 4 February 2004,
and to both the International Covenant on Civil and Political Rights
(hereinafter referred to as “the ICCPR”) and the International Covenant
on Economic, Social and Cultural Rights (hereinafter referred to as
“the ICESCR”) on 23 March 1976.
II. Subject matter of the Application
3. On 14 November 2009, the Commission received a

Communication from the Centre for Minority Rights Development
(CEMIRIDE) joined by Minority Rights Group International (MRGI),
both acting on behalf of the Ogiek Community of the Mau Forest. The
Communication concerned the eviction notice issued by the Kenya
Forestry Service in October 2009, which required the Ogiek Community
and other settlers of the Mau Forest to leave the area within 30 days.
4. On 23 November 2009, the Commission, citing the far-reaching
implications on the political, social and economic survival of the Ogiek
Community and its potential irreparable harm if the eviction notice was
carried out, issued an Order for Provisional Measures requesting the
Respondent to suspend implementation of the eviction notice.
5. On 12 July 2012, following the lack of response from the
Respondent, the Commission seized this Court with the present
Application pursuant to Article 5(1)(a) of the Protocol.
A. Facts of the matter
6. The Application relates to the Ogiek Community of the Mau

Forest. The Applicant alleges that the Ogieks are an indigenous
minority ethnic group in Kenya comprising about 20,000 members,
about 15,000 of whom inhabit the greater Mau Forest Complex, a land
mass of about 400,000 hectares straddling about seven administrative
districts in the Respondent’s territory.
7. According to the Applicant, in October 2009, through the Kenya
Forestry Service, the Respondent issued a 30-day eviction notice to
the Ogieks and other settlers of the Mau Forest, demanding that they
leave the forest.

8. The Applicant states that the eviction notice was issued on the
grounds that the forest constitutes a reserved water catchment zone,
and was in any event part of government land under Section 4 of the
Government Land Act. The Applicant states further that the Forestry
Service’s action failed to take into account the importance of the Mau
Forest for the survival of the Ogieks, and that the latter were not involved
in the decision leading to their eviction. The Applicant contends that
the Ogieks have been subjected to several eviction measures since
the colonial period, which continued after the independence of the
Respondent. According to the Applicant, the October 2009 eviction
notice is a perpetuation of the historical injustices suffered by the
Ogieks.
9. The Applicant further avers that the Ogieks have consistently
raised objections to these evictions with local and national
administrations, task forces and commissions and have instituted
judicial proceedings, to no avail.
B. Alleged violations
10. On the basis of the foregoing, the Applicant alleges violation of

Articles 1, 2, 4, 8, 14, 17(2) and (3), 21, and 22 of the Charter.
III. Procedure
11. The Application was filed before the Court on 12 July 2012 and
served on the Respondent by a notice dated 25 September 2012.
12. On 14 December 2012, the Respondent filed its Response to
the Application in which it raised several Preliminary Objections and
this was transmitted to the Applicant by a letter dated 16 January 2013.
13. On 28 December 2012, the Applicant requested the Court to
issue an Order for Provisional Measures to forestall the implementation
of the directive issued by the Respondent`s Ministry of Lands on 9
November 2012 limiting the restrictions on transactions for land
measuring not more than five acres within the Mau Forest Complex
Area.
14. By a letter dated 23 January 2013, Ms Lucy Claridge, Head of
Law, MRGI, Mr Korir Sing’oei, Strategy and Legal Advisor, CEMIRIDE,
and Mr Daniel Kobei, Executive Director of Ogiek People’s Development
Programme (OPDP) sought leave to intervene, and be heard in the
case as original complainants before the Commission in accordance
with Rule 29(3)(c) of the Rules.
15. On 15 March 2013, the Applicant filed its Response to the
Preliminary Objections raised by the Respondent and this was
transmitted to the Respondent by a letter dated 18 March 2013.

16. On 15 March 2013, the Court issued an Order for Provisional
Measures directed at the Respondent on the basis that there was a
situation of extreme gravity and urgency as well as a risk of irreparable
harm to the Ogieks. The Order contained the following measures:
“1. The Respondent shall immediately reinstate the
restrictions it had imposed on land transactions in the
Mau Forest Complex and refrain from any act or thing that
would or might irreparably prejudice the main application
before the Court, until the final determination of the said
application;
2. The Respondent shall report to the Court within a period
of fifteen (15) days from the date of receipt hereof, on the
measures taken to implement this Order.”
17. By a letter dated 30 April 2013, the Respondent reported on
the measures it had taken to comply with the Order for Provisional
Measures.
18. By a letter dated 14 May 2013, the Registry transmitted to the
Applicant, the Respondent’s report on its compliance with the Order for
Provisional Measures.
19. At its 29th Ordinary Session held from 3 to 21 June 2013, the
Court ordered that pleadings be closed and decided to hold a Public
Hearing in March 2014.
20. By a letter received at the Registry on 31 July 2013, the
Applicant requested leave to file further arguments and evidence and
to be granted a 5-month extension of time to do so. By a notice dated
2 September 2013, the Applicant’s request was granted with an order
to file by 11 December 2013.
21. By letters dated 20 and 26 September 2013 and 3 February
2014, the Applicant notified the Court of alleged acts of non-compliance
by the Respondent with the Order for Provisional Measures issued on
15 March 2013.
22. By a letter dated 26 September 2013, the Registry transmitted the
allegations of non-compliance with the Order for Provisional Measures
to the Respondent. To date, the Respondent has not responded to the
allegations.
23. The Applicant’s Supplementary Submissions on Admissibility
and the Merits were filed on 11 December 2013 and were served on
the Respondent by a notice dated 12 December 2013, granting the
latter sixty (60) days to respond thereto.
24. By a notice dated 21 January 2014, the Parties were informed
that the Public Hearing on preliminary objections and the merits would
be held on 13 and 14 March 2014.
25. By a letter dated 17 February 2014, pursuant to Rule 50 of the

Rules, the Respondent applied for leave to file arguments and evidence
on the merits of the case, requesting to be granted a 5-month extension
of time to do so. By a letter dated 4 March 2014, the Respondent was
informed that the said leave had been granted and was directed to file
its submissions within 60 days.
26. On 12 May 2014, the Respondent filed the additional submissions
on the Merits which were served on the Applicant by a letter dated 15
May 2014, and inviting the Applicant to file any observations thereon
within 30 days of receipt of the letter. On 30 June 2014, the Applicant
filed its Reply to the Respondent’s additional submissions on the Merits.
27. On 24 September 2014, in response to the Application made on
23 January 2013, the Registry wrote a letter to Ms Lucy Claridge, Head
of Law, MRGI, informing her that the Court has granted her leave to
intervene.
28. During its 35th Ordinary Session, held from 24 November -
5 December 2014 in Addis Ababa, Ethiopia, the Court held a public
hearing on 27 and 28 November 2014. All Parties were represented,
and their witnesses appeared, as follows:
Applicant’s representatives
1. Hon Professor Pacifique MANIRAKIZA - Commissionner

2. Mr Bahame Tom NYANDUGA - Counsel
3. Mr Donald DEYA - Counsel
4. Mr Selemani KINYUNYU - Counsel
Applicant’s witnesses
1. Mrs Mary JEPKEMEI - Member of the Ogiek Community

2. Mr Patrick KURESOI - Member of the Ogeik Community
Applicant’s expert witness
1. Dr Liz Alden WILY - International Land Tenure Specialist
Respondent’s representatives
1. Ms Muthoni KIMANI - Senior Deputy Solicitor General

2. Mr Emmanuel BITTA - Principal Litigation Counsel
3. Mr Peter NGUMI - Litigation Counsel
29. Pursuant to Rule 45(1) and Rule 29(1)(c) of the Rules, during
the public hearing, the Court heard Ms Lucy Claridge, Head of Law,
MRGI, one of the original complainants in the Communication filed

before the Commission.
30. The Court put questions to the Parties to which they responded.
31. At its 36th Ordinary Session held from 9 to 27 March 2015, the
Court decided to propose to the Parties that they engage in amicable
settlement pursuant to Article 9 of the Protocol and Rule 57 of its Rules.
32. A letter dated 28 April 2015 was sent to the Parties requesting
them to respond to the proposal for an amicable settlement by 27 May
2015 and to identify the issues to be discussed, which would then be
exchanged between them.
33. By a letter dated 27 May 2015, the Applicant indicated that it was
amenable to an amicable settlement.
34. By a notice dated 27 May 2015, the Respondent set out the
issues to be discussed and these were transmitted to the Applicant by
a notice dated 28 May 2015.
35. By a notice dated 17 June 2015, the Parties were informed
that the Court had granted the Applicant a 60-day extension to file the
issues for the amicable settlement.
36. On 18 August 2015, the Registry received the Applicant’s
conditions for amicable settlement and these were transmitted to the
Respondent on 21 September 2015. The Respondent was invited to
file its response thereto no later than 31 October 2015.
37. On 10 November 2015, the Respondent submitted its response
on the conditions and issues for an amicable settlement and these
were transmitted to the Applicant by a notice dated 20 November 2015.
38. On 13 January 2016, the Applicant wrote to the Court in response
to the conditions proposed by the Respondent. The Applicant indicated
that it was not satisfied with the proposal and asked the Court to proceed
with the matter and deliver a judgment. The Applicant’s request was
transmitted to the Respondent by a notice dated 14 January 2016. The
Respondent did not react to this notification.
39. Since the attempt to settle the matter amicably did not succeed,
at its 40th Ordinary Session held from 29 February to 18 March, 2016,
the Court decided to proceed with consideration of the Application and
issue the present judgment.
40. By a letter dated 7 March 2016, the Parties were informed of the
Court’s continuance of judicial proceedings.
A. Prayers of the Applicant
41. In the Application, the Applicant prays the Court to order the
Respondent to:
“1. Halt the eviction from the East Mau Forest and refrain from
harassing, intimidating or interfering with the community’s
traditional livelihoods;
2. Recognise the Ogieks’ historic land, and issue it with legal
title that is preceded by consultative demarcation of the
land by the Government and the Ogiek Community, and
for the Respondent to revise its laws to accommodate
communal ownership of property; and
3. Pay compensation to the Ogiek Community for all the
loss they have suffered through the loss of their property,
development, natural resources and also freedom to
practice their religion and culture.”
42. In its Supplementary Submissions on Admissibility, the Applicant
made the following specific prayer:
“The Applicant submits that the Application satisfies Article
56 of the African Charter in relation to the requirements
for Admissibility, and therefore prays the Court to declare
the same Admissible.”
43. In its Submissions on the Merits, the Applicant prays the Court
to make the following Orders:
“A. To adjudge and declare that the Respondent State is in
violation of Articles 1, 2, 4, 8, 14, 17(2) and (3), 21 and 22
of the African Charter on Human and Peoples’ Rights.
B. Declare that the Mau Forest has, since time immemorial,
been the ancestral home of the Ogiek people, and that
its occupation by the Ogiek people is paramount for
their survival and the exercise of their culture, customs,
traditions, religion and for the well-being of their
community.
C. Declare that the occupation of the Mau Forest through
time immemorial by the Ogiek people and their use of
the various natural resources therein, including the flora
and fauna, such as honey, plants, trees and wild game
of the Mau Forest, for food, clothing, medicines, shelter
and other needs, was sustainable and did not lead to the
rampant destruction or deforestation of the Mau Forest
D. Find that the granting by the Respondent State, of rights
such as land titles and concessions in the Mau Forest,
at different periods to non-Ogiek persons, individuals and
corporate bodies, contributed to the destruction of the
Mau Forest, and did not benefit the Ogiek people, thus
amounting to a violation of Article 21(2) of the African

Charter.
E. That further to the Orders (A), (B), (C), and (D) hereinabove
and by way of a separate judgment of the Court pursuant
to Rule 63 of the Rules of Court, that the Honourable
Court order the Respondent State to undertake and
implement the necessary legislative, administrative and
other measures to provide reparation to the Ogieks,
through the following measures:1
i. Restitution of Ogiek ancestral land, through:
a. the adoption in its domestic law, and through well informed
consultations with the Ogieks, of the legislative, administrative
and any other measures necessary to delimit,
b. demarcate and title or otherwise clarify and protect the territory
in which the Ogieks have a communal property right, in
accordance with their customary land use practices, and without
detriment to other indigenous communities;
c. implement measures to: (i) delimit, demarcate and title or
otherwise clarify and protect the corresponding lands of the
Ogieks without detriment to other indigenous communities;
and (ii) until those measures have been carried out, abstain
from any acts that might lead the agents of the State, or third
Parties acting with its acquiescence or its tolerance, to affect the
existence, value, use or enjoyment of the property located in the
geographic area occupied and used by the Ogieks; and
d. the rescission of all such titles and concessions found to have
been illegally granted with respect to Ogiek ancestral land; such
land to be returned to the Ogieks with common title within each
location, for them to use as they deem fit;
ii. Compensation of the Ogieks for all the damage suffered as a
result of the violations, including through:
a. the appointment of an independent assessor to decide upon the
appropriate level of compensation, and to determine the manner
in which and to whom such compensation should be paid, such
appointment to be mutually agreed upon by the Parties;
b. the payment of pecuniary damages to reflect the loss of their
property, development and natural resources;
c. the payment of non-pecuniary damages, to include the loss of
their freedom to practise their religion and culture, and the threat
to their livelihood;
d. the establishment of a community development fund for the
1 The Applicant asserts that this list is non-exhaustive and the Court is respectfully
invited to supplement these methods of reparation with additional requirements.
benefit of the Ogieks, directed to health, housing, educational,

agricultural and other relevant purposes;
e. the payment of royalties from existing economic activities in the
Mau Forest; and
f. ensuring that the Ogieks benefit from any employment
opportunities within the Mau Forest;
iii. Adoption of legislative, administrative and other measures to
recognise and ensure the right of the Ogieks to be effectively
consulted, in accordance with their traditions and customs,
and/or with the right to give or withhold their free, prior and
informed consent, with regards to development, conservation
or investment projects on Ogiek ancestral land within the Mau
Forest and implement adequate safeguards to minimize the
damaging effects that such projects may have upon the social,
economic and cultural survival of the Ogieks;
iv. An apology to be issued publicly by the Respondent State to the
Ogieks for all the violations;
v. A public monument acknowledging the violation of Ogiek rights
to be erected within the Mau Forest by the Respondent State,
in a place of significant importance to the Ogieks and chosen
by them;
vi. Full recognition of the Ogieks as an indigenous people of
Kenya, including but not limited to the recognition of the Ogiek
language and Ogiek cultural and religious practices; provision
of health, social and education services for the Ogieks; and the
enacting of positive steps to ensure national and local political
representation of the Ogieks;
vii. The legislative process specified in (i) and (iii) above to be
completed within one year of the date of the judgment;
viii. The demarcation process specified in (i) above to be completed
within three years of the date of the judgment;
ix. The independent assessor on compensation to be appointed
within three months of the judgment; the amount of
compensation, royalties and the community development fund
to be agreed upon within one year of the date of the judgment,
and payment to be effected within eighteen months of the date
of the judgment;
x. The apology to be issued within three months of the date of the
judgment;
xi. The monument to be erected within six months of the date of
judgment;
F. To make any further orders as the Court deems fit to grant
in the circumstances.”
44. That further to the Orders A, B, C, D, E and F, hereinabove, that
the Court order the Respondent State to report to the Court on the
implementation of these remedies, including by submitting a quarterly

report on the process of implementation - such report to be provided to
and commented upon by the Commission - until the Orders as provided
in the judgment are fully enforced to the satisfaction of the Court, the
Commission, the Executive Council and any other organ of the African
Union which the Court and Commission shall deem appropriate.”
45. The Applicant reiterated these prayers during the Public Hearing.
B. Prayers of the Respondent
46. In its Response, the Respondent prays the Court to rule that
the Application is inadmissible and to order that it be referred back
to the Respondent for resolution, notably, through an amicable
settlement for a peaceful and lasting solution. The Respondent also
made submissions on the merits elaborating on its position thereon
and prayed the Court to put the Applicant to strict proof and find that
there has been no violations of the rights of the Ogeiks, as alleged by
the Applicant. The Respondent did not make any additional prayers.
V. Jurisdiction
47. In accordance with Rule 39(1) of the Rules, the Court shall
conduct a preliminary examination of its jurisdiction before dealing with
the merits of the Application.
A. Material jurisdiction
i. Respondent’s objection
48. The Respondent contends that rather than filing the Application
before the Court, the Commission ought to have drawn the attention of
the Assembly of Heads of State and Government of the African Union
(AU) once it was convinced that the communication before it relates to
a special case which reveals the existence of “a series of serious or
massive violations of human and peoples’ rights” as provided under
Article 58 of the Charter.
49. The Respondent further submits that the Court failed to conduct
a preliminary examination of its jurisdiction by virtue of Rule 39 of its
Rules in accordance with Article 50 of the Charter, and that it has not
complied with the above cited provision of the Charter.
ii. Applicant’s submission
50. The Applicant submits that bringing to the attention of the

Assembly of Heads of State and Government of the AU, a special case
which reveals the existence of a series of serious or massive violations
of human rights, is not a prerequisite for referring a matter to the Court
and is only one avenue provided under Article 58 of the Charter. In this
regard, the Applicant argues that with the establishment of the Court, it
now has the additional option of referring matters to the Court, as the
Court complements the Commission’s protective mandate pursuant to
Article 2 of the Protocol. On the contention by the Respondent that
the Court ought to have conducted a preliminary examination of its
jurisdiction in respect of the Application in line with Article 50 of the
Charter, the Applicant notes that the rule relating to the preliminary
examination of the jurisdiction of the Court is Rule 39, not Rule 40 of
the Rules, as cited by the Respondent.
iii. The Court’s assessment
51. The Court notes that Article 3(1) of the Protocol and Rule 26(1)
(a) of its Rules govern its material jurisdiction regardless of whether an
Application is filed by individuals, the Commission or States. Pursuant
to these provisions, the material jurisdiction of the Court extends “to all
cases and disputes submitted to it concerning the interpretation and
application of the Charter, [its] Protocol and any other relevant human
rights instrument ratified by the States concerned”. The only pertinent
consideration for the Court in ascertaining its material jurisdiction in
accordance with both Article 3(1) of the Protocol and Rule 26(1)(a) of
its Rules is thus whether an Application relates to an alleged violation
of the rights protected by the Charter or other human rights instruments
to which the Respondent is a Party. In this vein, the Court has held that
“as long as the rights allegedly violated are protected by the Charter
or any other human rights instruments ratified by the State concerned,
the Court will have jurisdiction over the matter”.2
52. In the instant Application, the Applicant alleges the violation of
several rights and freedoms guaranteed under the Charter and other
international human rights instruments ratified by the Respondent,
especially, the ICCPR and the ICESR. Accordingly, the Application
satisfies the requirements of Article 3(1) of the Protocol.
2 See Alex Thomas v United Republic of Tanzania (Judgment on Merits) 20

November 2015 (hereinafter referred to as Alex Thomas Case) paragraph 45 and
Mohamed Abubakari v United Republic of Tanzania (Judgment on Merits) 3 June
2016 (hereinafter referred to as Mohamed Abubakari Case) paragraphs 28 and 35.
53. In circumstances where the Commission files a case before

the Court pursuant to Article 5(1)(a) of the Protocol, Article 3(1) of the
same provides no additional requirements to be fulfilled before this
Court exercises its jurisdiction. Article 58 of the Charter mandates
the Commission to draw the attention of the Assembly of Heads of
State and Government where communications lodged before it reveal
cases of series of serious or massive violations of human and peoples’
rights. With the establishment of the Court, and in application of the
principle of complementarity enshrined under Article 2 of the Protocol,
the Commission now has the power to refer any matter to the Court,
including matters which reveal a series of serious or massive violations
of human rights.3 The Respondent`s preliminary objection that the
Commission did not comply with Article 58 of the Charter is thus not
relevant as far as the material jurisdiction of the Court is concerned.
54. Regarding the preliminary examination of its jurisdiction in
accordance with Rule 40 of the Rules and Article 50 of the Charter, the
Court notes that these two provisions do not deal with the jurisdiction
of the Court but concern issues of admissibility, in particular, the issue
of exhaustion of local remedies, which the Court will address at a later
stage in this judgment. In any event and in keeping with its Rules, the
final decision of the Court on the question of jurisdiction can only be
taken after receiving and analysing submissions from the Parties. The
Respondent’s objection in this regard is therefore dismissed.
55. From the foregoing, the Court finds that it has material jurisdiction
to hear the Application.
B. Personal jurisdiction
i. Respondent’s objection
56. The Respondent contends that the original complainants before

the Commission lacked standing to invoke the jurisdiction of the
Commission as they did not have authority to represent the Ogieks,
nor were they acting on their behalf.
57. The Applicant, citing its own jurisprudence, submits that it has
adopted the actio popularis doctrine which allows anyone to file a
3 See also Rule 118(3) of the Rules of Procedure of the African Commission on
Human and Peoples’ Rights.
complaint before it on behalf of victims without necessarily getting the

consent of the victims. For this reason, the Commission was seized
with the Communication in November 2009 by two of the complainants:
CEMIRIDE and OPDP, which are Non-Governmental Organizations
(NGOs) registered in Kenya. The Applicant states that the latter
works specifically to promote the rights of the Ogieks while the former
has Observer Status with the Commission, and therefore both were
competent to invoke the jurisdiction of the Commission.
58. The personal jurisdiction of the Court is governed by Article

5(1) of the Protocol which lists the entities, including the Applicant,
entitled to submit cases before it. By virtue of this provision, the
Court has personal jurisdiction with respect to this Application. The
argument adduced by the Respondent according to which the original
complainants had no standing to file the matter before the Commission
and to act on behalf of the Ogieks is not relevant in the determination of
the personal jurisdiction of the Court because the original complainants
before the Commission are not the Parties in the Application before
this Court. The Court does not have to make a determination on the
jurisdiction of the Commission.
59. With regard to its jurisdiction over the Respondent, the Court
recalls that the Respondent is a State Party to the Charter and to the
Protocol. Accordingly, the Court finds that it has personal jurisdiction
over the Respondent.
60. It is also important for this Court to restate that, because the
Application before it is filed by the Commission, pursuant to Articles
2 and 5(1)(a) of the Protocol, the question as to whether or not the
Respondent has made the declaration under Article 34(6) of the
Protocol does not arise. This is because, unlike for individuals and
NGOs, the Protocol does not require the Respondent to have made the
declaration under Article 34(6) for the Commission to file Applications
before the Court.4
61. Therefore, the Court holds that it has personal jurisdiction to
hear this Application.
4 See African Commission on Human and Peoples’ Rights v Libya (Judgment on

Merits) 3 June 2016 para 51.
C. Temporal jurisdiction
i. Respondent`s objection
62. The Respondent submits that the Charter as well as any

other treaty cannot be applied retrospectively to situations and
circumstances that occurred before its entry into force. The
Respondent cites Article 28 of the Vienna Convention on the Law
of Treaties of 1969 which provides that: “Unless a different intention
appears from the treaty or is otherwise established, its provisions do
not bind a party to any act or fact which took place or any situation
which ceased to exist before the date of entry into force of the treaty
with respect to the party”. The Respondent further submits that it
became a Party to the Charter on 10 February 1992, and that it
is from 10 February 1992 that the Respondent’s obligations under
the Charter become enforceable. The Respondent adds that some
of the Applicant’s allegations of violations relate to activities that
occurred prior to the Respondent ratifying the Charter and therefore
the Court cannot adjudicate on those issues but only on issues that
occurred after 1992.
63. The Applicant submits that it recognises the principle of non-

retroactivity of international treaties. The Applicant argues, however,
that, it also relies on the established principle of international human
rights law, that the Respondent is liable for violations which occurred
prior to the ratification of the Charter, where the effects of such violations
have continued after its ratification, or where the Respondent either
continued the perpetration of the said violations, or did not remedy
them, as is the case with the Ogieks.
64. The Court has held that the relevant dates concerning its
temporal jurisdiction are the dates when the Respondent became a
Party to the Charter and the Protocol, as well as, where applicable, the
date of deposit of the declaration accepting the jurisdiction of the Court
to receive Applications from individuals and NGOs, with respect to the
Respondent.5
65. The Court notes that the Respondent became a Party to the
Charter on 10 February 1992 and a Party to the Protocol on 4 February
2004. The Court also notes that, though the evictions by the Respondent
leading to the alleged violations began before the aforementioned
dates, these evictions are continuing. In this regard, the Court notes
in particular, the threats of eviction issued in 2005 and the notice to
vacate the South Western Mau Forest Reserve issued on 26 October
2009 by the Director of Kenya Forestry Service. It is the Court’s view
that the Respondent’s alleged violations of its international obligations
under the Charter are continuing, and as such, the matter falls within
the temporal jurisdiction of the Court.
66. In view of the foregoing, the Court finds that it has temporal
jurisdiction to hear the Application.
D. Territorial jurisdiction
67. The territorial jurisdiction of the Court has not been challenged
by the Respondent, however it should be stated that since the alleged
violations occurred within the territory of the Respondent, a Member
State of the African Union that has ratified the Protocol, the Court has
territorial jurisdiction in this regard.
68. Based on the foregoing, the Court finds that it has jurisdiction to
examine this Application.
VI. Admissibility
69. The Respondent raised two sets of objections to the admissibility

of the Application. The first set deals with objections relating to the
preliminary procedures before the African Commission and the Court,
while the second set deals with objections based on non-compliance
with the requirements of admissibility enshrined in the Charter and the
Rules.
A. Objections relating to some preliminary procedures
70. The Respondent raised two objections under this head, namely
that the Application is still pending before the Commission and that the
Court did not undertake a preliminary examination of its admissibility in
5 See The Beneficiaries of the Late Norbert Zongo, Abdoulaye Nikiema alias Ablasse,
Ernest Zongo and Blaise IIboudo and the Burkinabe Movement on Human and
Peoples’ Rights v Burkina Faso (hereinafter referred to as Norbert Zongo Case)
(Ruling on Preliminary Objections) 21 June 2013, paras 61 to 64.
accordance with Rule 39 of its Rules.
i. Objection based on the contention that the Application

is pending before the Commission
a. Respondent’s objection
71. The Respondent contends that there are pending proceedings

before the Commission between the Ogieks and the Respondent on
the same facts and issues as those in the present Application. The
Respondent maintains that the Application before the Court is seeking
substantive orders whereas the same case is before the Commission,
and therefore the jurisdiction of the Court cannot be invoked by the
Applicant.
b. Applicant`s submission
72. The Applicant argues that the Court’s jurisdiction was properly
invoked and avers that the case was referred to the Court by the
Commission pursuant to Article 5(1) (a) of the Protocol, Rule 33(1) (a)
of the Rules and Rule 118(2) and (3) of the Rules of Procedure of the
Commission. According to the Applicant, having seized the Court, it
can no longer be argued that the matter is pending before
the Commission.
c. The Court’s assessment
73. With regard to the objection by the Respondent that the matter
is pending before the Commission, the Court notes that the Applicant
in the present matter is the Commission, which seized the Court in
conformity with Article 5(1) of the Protocol.
74. Having seized the Court, the Commission decided not to examine
the matter itself. The seizure of the Court by the Commission signifies
in effect that the matter is no longer pending before the Commission,
and there is therefore no parallel procedure before the Commission on
the one hand and the Court on the other.
75. The Respondent’s objection to the admissibility on the grounds
that this matter is pending before the Commission is thus dismissed.
ii. Objection with respect to the failure to undertake

preliminary examination of its Admissibility
a. Respondent’s objection
76. The Respondent submits that the Court has failed to conduct a
preliminary examination of the admissibility of the Application by virtue
of Articles 50 and 56 of the Charter and Rule 40 of the Rules, and that
adverse orders should not have been issued against it without being
given an opportunity to be heard.
b. Applicant’s submission
77. The Applicant submits that the Application meets all the
admissibility requirements provided under Article 56 of the Charter,
as it was filed before the Court pursuant to Article 5(1)(a) of the
Protocol against a State Party both to the Protocol and the Charter,
for alleged violations that occurred within the Respondent’s territory.
The Applicant further states that Article 50 of the Charter does not
apply to this Application since it relates to admissibility procedures
for “Communications from States”, whereas the instant Application is
not such an Application. The Applicant maintains that the Respondent
has been accorded an opportunity to be heard at the Commission,
when the Commission served the original complaint before it on the
Respondent and the latter filed submissions on admissibility thereof.
78. The Court observes that even though the rules of admissibility
applied by the Commission and this Court are substantially similar,
the admissibility procedures with respect to an Application filed before
the Commission and this court are distinct and shall not be conflated.
Accordingly, the Court is of the view that admissibility and other
procedures relating to a complaint before the Commission are not
necessarily relevant in determining the admissibility of an Application
before this Court.
79. In any event, as is the case with its jurisdiction, the Court can
decide on the admissibility of an Application before it, only after having
heard from the Parties.
80. The Respondent’s objection is therefore dismissed.
B. Objections on admissibility based on the requirements

of the Charter and the Rules
81. Under this head, the Respondent raised two objections, namely,
the failure to identify the Applicant and failure to exhaust local remedies.
82. In determining the admissibility of an application, the Court is
guided by Article 6(2) of the Protocol, which provides that, the Court
shall take into account the provisions of Article 56 of the Charter. The
provisions of this Article are restated in Rule 40 of the Rules as follows:
“Pursuant to the provisions of Article 56 of the Charter to which
Article 6(2) of the Protocol refers, applications to the Court shall
comply with the following conditions:
1. Disclose the identity of the Applicant notwithstanding the latter’s
request for anonymity;
2. Comply with the Constitutive Act of the Union and the Charter;
3. Not contain any disparaging or insulting language;
4. Not be based exclusively on news disseminated through the
mass media;
5. Be filed after exhausting local remedies, if any, unless it is
obvious that this procedure is unduly prolonged;
6. Be filed within a reasonable time from the date local remedies
were exhausted or from the date set by the Court as being the
commencement of the time limit within which it shall be seized
with the matter; and
7. Not raise any matter or issues previously settled by the Parties
in accordance with the principles of the Charter of the United
Nations, the Constitutive Act of the African Union, the provisions
of the Charter or of any legal instrument of the African Union.”
83. The Respondent has raised objections with respect to the
conditions of admissibility pursuant to Rule 40(1) and Rule 40(5) of
the Rules. The Court will proceed to examine the admissibility of the
Application starting with the conditions of admissibility that are in
dispute.
i. Objection on non-compliance with Rule 40(1) of the

Rules (Identity of the Applicant)
a. Respondent`s objection
84. The Respondent argues that the original complainants before

the Commission did not submit a list of aggrieved members of the
Ogiek Community on whose behalf they filed the Communication and

did not produce documents authorizing them to represent the Ogiek
Community as required by Rule 40(1) of the Rules. The Respondent
also submits that CEMIRIDE has not provided evidence of its Observer
Status before the Commission.
85. The Respondent further submits that the original complainants
before the Commission have not demonstrated that they are victims
of an alleged violation as has been established by the Commission’s
jurisprudence.
86. The Applicant submits that the Communication filed before

it clearly indicates the authors as CEMIRIDE, MRGI and OPDP, on
behalf of the Ogiek Community, and that their contact details are
clearly provided.
87. The Applicant further submits that it filed the Application before
the Court pursuant to Article 5(1)(a) of the Protocol, which entitles it to
do so against a State which has ratified the Charter and the Protocol.
The Rules of Procedure of the Commission (2010) provide, inter alia,
that it may seize the Court “on grounds of serious and massive violations
of human rights”. The Applicant also argues that seizure of the Court
by the Commission may occur at any stage of the examination of a
Communication if the Commission deems it necessary.
88. The Court reiterates that pursuant to Article 5(1)(a) of the

Protocol, the Commission is the legal entity recognised before this
Court as an Applicant and is entitled to bring this Application. Since
the Commission, rather than the original complainants before the
Commission, is the Applicant before this Court, the latter need not
concern itself with the identity of the original complainants before
the Commission in determining the admissibility of the application.
Accordingly, the contention that the original complainants did not
disclose the identity of aggrieved members of the Ogieks lacks merit.
Therefore, the original complainants’ observer status and whether or
not they were mandated to represent the Ogiek population before the
Commission are also immaterial to the Court’s determination of the
Applicant’s standing to file this Application before this Court.
89. The Court consequently concludes that the Respondent`s
objection on this point lacks merit and is dismissed.
ii. Objection on non-compliance with Rule 40(5) of the

Rules (Exhaustion of local remedies)
a. Respondent`s objection
90. The Respondent objects to the admissibility of the Application

on the grounds that it does not comply with Rule 40(5) of the
Rules, which requires Applicants before the Court to exhaust local
remedies before invoking its jurisdiction. The Respondent states that
its national courts are competent to deal with any violations alleged
by the Ogieks as the said local remedies are available, effective and
adequate to accomplish the intended results and that they can be
pursued without impediments. The Respondent submits that judicial
procedures in Kenya are adversarial in nature and the length of the
proceedings depends on the Parties, which are responsible to move
the Courts for hearing dates and relief. The Respondent contends
that though some orders issued by the Respondent’s courts have
not been complied with, the said non-compliance was by a particular
Municipal Council and should not be attributed to the Respondent.
The Respondent asserts that neither the Applicant nor the
original complainants before the Commission filed any case in the
Respondent’s courts in this regard. The Respondent maintains that
the cases that the Applicant claims have been filed before its courts
were filed by other entities. Further, the Respondent states that, apart
from submitting their case to the national courts, the complainants
could have seized its national human rights commission to get
redress for the alleged violations before bringing this Application to
this Court.
91. The Applicant submits that, the rule of exhaustion of local

remedies is applicable only with respect to remedies which are
“available”, “effective” and “adequate” and if the local remedies do not
meet these criteria, this admissibility requirement is dispensed with.
The Applicant argues that the rule does not also apply when local
remedies are unduly prolonged or there are a large number of victims
of alleged serious human rights violations.
92. The Applicant contends that the Respondent has been aware
of the alleged violation of the rights of the Ogieks since the 1960s,
and despite the continuing resistance against their eviction from their
ancestral home, the Respondent has failed to address their grievances
and rather chose the use of force to quell their protest and adopted
actions to frustrate the attempts of the Ogieks to seek domestic

redress. In this vein, the Applicant submits that the Ogieks have been
repeatedly arrested and detained on falsified charges; and political
pressure has been exerted on them by the Office of the President to
drop the legal cases challenging the dispossession of their land. In
spite of all these, when they get decisions in their favour from domestic
courts, the Respondent failed to comply with such decisions: thus,
advancing the point that domestic remedies are in fact unavailable,
or, their procedure would probably be unduly prolonged. The Applicant
maintains that in such cases the requirement of exhaustion of local
remedies must be dispensed with.
c. The Court’s Assessment
93. Any application filed before this Court must comply with the
requirement of exhaustion of local remedies. The rule of exhaustion
of domestic remedies reinforces and maintains the primacy of the
domestic system in the protection of human rights vis-à-vis the Court.
The Court notes that Article 56(5) of the Charter and Rule 40(5) of the
Rules require that for local remedies to be exhausted, they must be
available and should not be unduly prolonged. In its earlier judgments,
the Court has decided that domestic remedies to be exhausted must be
available, effective and sufficient and must not be unduly prolonged.6
94. The Court also emphasises that the rule of exhaustion of local
remedies does not in principle require that a matter brought before
the Court must also have been brought before the domestic courts by
the same Applicant. What must rather be demonstrated is that, before
a matter is filed before an international human rights body, like this
Court, the Respondent has had an opportunity to deal with such matter
through the appropriate domestic proceedings. Once an Applicant
proves that a matter has passed through the appropriate domestic
judicial proceedings, the requirement of exhaustion of local remedies
shall be presumed to be satisfied even though the same Applicant
before this Court did not itself file the matter before the domestic courts.
95. In the instant Application, the Court notes that the Applicant has
provided evidence that members of the Ogiek community have litigated
several cases before the national courts of the Respondent, some
6 See in this regard Lohé Issa Konaté v Burkina Faso (Judgment on Merits) 5
December 2014 (hereinafter referred to as Issa Konate Case) paragraphs 96 to
115; Norbert Zongo Case (Judgment on Merits) 28 March 2014 paragraphs 56 to
106.
have been concluded against the Ogiek and some are still pending.7 In
the circumstance, the Respondent can thus reasonably be considered
to have had the opportunity to address the matter before it was brought
before this Court.
96. Furthermore, from available records, the Court notes that some
cases filed before national courts were unduly prolonged, some taking
10 to 17 years before being completed or were still pending at the
time this Application was filed.8 In this regard, the Court observes
that the nature of the judicial procedures and the role played by
the Parties therein in the domestic system could affect the pace at
which proceedings may be completed. In the instant Application, the
records before this Court show that the prolonged proceedings before
the domestic courts were largely occasioned by the actions of the
Respondent, including numerous absences during Court proceedings
and failure to timely defend its case.9 In view of this, the Court holds
that the Respondent`s contention imputing the inordinate delays in the
domestic system to the adversarial nature of its judicial procedures is
not plausible.
97. Regarding the possibility for the original complainants to have
seized the Respondent’s National Human Rights Commission with the
alleged violations, the Court notes that, the said Commission does not
have any judicial powers. The functions of its national human rights
commission are to resolve conflicts by fostering reconciliation and
issuing recommendations to appropriate state organs.10 This Court
has consistently held that for purpose of exhaustion of local remedies,
available domestic remedies shall be judicial.11 In the instant case, the
remedy the Respondent is requesting the Applicant to exhaust, that
is, procedures before the National Human Rights Commission, is not
7 See case of Francis Kemai and 9 Others v Attorney General and 3 Others, High
Court Civil Application No. 238 of 1999 ; case of Joseph Letuya and 21 Others v
Attorney General and 2 Others, Miscellaneous Application No. 635 of 1997 High
Court of Kenya at Nairobi.
8 See case of Joseph Letuya & 210 Others v Attorney General & 2 Others,
Miscellneous Application No. 635 of 1997 before the High Court at Nairobi,
(completed after 17 years of procedure); case of Joseph Letuya & 21 Others v
Minister of Environment, Miscellaneous Application No. 228 of 2001 before the
High Court at Nairobi, (instituted in 2001 and still pending at the time the Application
was filed before this Court);case of Stephen Kipruto Tigerer v Attorney General &
5 Others, No. 25 of 2006 before the High Court at Nakuru, (instituted in 2006 and
was still pending at the time the Application was filed before this Court).
9 For a detailed account, see Complaints’ Submissions on Admissibility, CEMIRIDE,
Minority Rights Group International and Ogiek Peoples Development Programme
(On behalf of the Ogiek Community), pages 15-24.
10 See Section 3 of the Kenya National Human Rights Commission Act.
11 See Mohamed Abubakari Case paras 66 to 70.
judicial.12
98. In view of the above, the Court rules that the Application meets
the requirements under Article 56(5) of the Charter and Rule 40(5) of
the Rules.
C. Compliance with Rule 40(2), 40(3), 40(4), 40(6) and

40(7) of the Rules
99. The Court notes that the issue of compliance with the above-
mentioned Rules is not in contention and nothing in the Parties’
submissions indicates that they have not been complied with. The
Court therefore holds that the requirements in those provisions have
been met.
100. In light of the foregoing, the Court finds that this Application fulfils
all admissibility requirements in terms of Article 56 of the Charter and
Rule 40 of the Rules and declares the Application admissible.
VII. On the merits
101. In its Application, the Applicant alleges violation of Articles 1, 2,

4, 8, 14, 17(2) and (3), 21 and 22 of the Charter. Given the nature of
the subject matter of the application, the Court will commence with the
alleged violation of Article 14, then examine Articles 2, 4, 8, 14, 17(2)
and (3), 21, 22 and 1.
102. However, having noted that most of the allegations made by
the Applicant hinge on the question as to whether or not the Ogieks
constitute an indigenous population. This issue is central to the
determination of the merits of the alleged violations and shall be dealt
with from the onset.
A. The Ogieks as an indigenous population
i. Applicant’s submission
103. The Applicant argues that the Ogiek are an “indigenous

people” and should enjoy the rights recognised by the Charter and
international human rights law including the recognition of their status
as an “indigenous people”. The Applicant substantiates its contention
by stating that the Ogieks have been living in the Mau Forest for
12 Mohamed Abubakari Case para 64; Alex Thomas Case, para 64 and Christopher
Mtikila Case, para 82.3.
generations since time immemorial and that their way of life and
survival as a hunter-gatherer community is inextricably linked to the
forest which is their ancestral land.
ii. Respondent’s submission
104. The Respondent’s position is that the Ogieks are not a distinct
ethnic group but rather a mixture of various ethnic communities.
During the Public Hearing however, the Respondent admitted that
the Ogieks constitute an indigenous population in Kenya but that the
Ogieks of today are different from those of the 1930s and 1990s having
transformed their way of life through time and adapted themselves to
modern life and are currently like all other Kenyans.
105. The Court notes that the concept of indigenous population is not
defined in the Charter. For that matter, there is no universally accepted
definition of “indigenous population” in other international human rights
instruments. There have, however, been efforts to define indigenous
populations.13 In this regard, the Court draws inspiration from the
work of the Commission through its Working Group on Indigenous
Populations/Communities. The Working Group has adopted the
following criteria to identify indigenous populations:
“i. Self-identification;
ii. A special attachment to and use of their traditional land whereby
their ancestral land and territory have a fundamental importance
for their collective physical and cultural survival as peoples; and
iii. A state of subjugation, marginalisation, dispossession, exclusion,
or discrimination because these peoples have different cultures,
ways of life or mode of production than the national hegemonic
and dominant model.”14
106. The Court also draws inspiration from the work of the United
Nations Special Rapporteur on Minorities, which specifies the criteria
to identify indigenous populations as follows:
“i. That indigenous people can be appropriately considered as
“Indigenous communities, peoples and nations which having a
13 See Article 1 of the International Labour Organisation Indigenous and Tribal

Peoples Convention No. 169 adopted by the 76th Session of the International
Labour Conference on 27 June 1989.
14 Advisory Opinion Of The African Commission On Human And Peoples’ Rights On
The United Nations Declaration On The Rights Of Indigenous Peoples, adopted
by The African Commission On Human And Peoples’ Rights At Its 41st Ordinary
Session Held In May 2007 In Accra, Ghana, at page 4.
historical continuity with pre-invasion and pre-colonial societies

that developed on their territories, consider themselves distinct
from other sectors of societies now prevailing in those territories,
or parts of them. They form at present non-dominant sectors of
society and are determined to preserve, develop, and transmit
to future generations, their ancestral territories, and their ethnic
identity, as the basis of their continued existence as peoples, in
accordance with their own cultural patterns, social institutions
and legal systems”;15
ii. That an indigenous individual for the same purposes is “…
one who belongs to these indigenous populations through
self-identification as indigenous (group consciousness) and is
recognised and accepted by these populations as one of its
members (acceptance by the group). This preserves for these
communities the sovereign right and power to decide who
belongs to them, without external interference”.16
107. From the foregoing, the Court deduces that for the identification
and understanding of the concept of indigenous populations, the relevant
factors to consider are the presence of priority in time with respect to
the occupation and use of a specific territory; a voluntary perpetuation
of cultural distinctiveness, which may include aspects of language,
social organisation, religion and spiritual values, modes of production,
laws and institutions; self-identification as well as recognition by other
groups, or by State authorities that they are a distinct collective; and an
experience of subjugation, marginalisation, dispossession, exclusion
or discrimination, whether or not these conditions persist.17
108. These criteria generally reflect the current normative standards
to identify indigenous populations in international law. The Court deems
it appropriate, by virtue of Article 60 and 61 of the Charter, which allows
it to draw inspiration from other human rights instruments to apply
these criteria to this Application.
109. With respect to the issue of priority in time, different reports
and submissions by the Parties filed before the Court reveal that the
Ogieks have priority in time, with respect to the occupation and use
15 Report of the Special Rapporteur of the Sub-Commission on Prevention of

Discrimination and Protection of Minorities E/CN.4/Sub.2/1986/7/Add.4, paragraph
379.
16 n15 paragraphs 381 to 382.
17 See E/CN.4/Sub.2/AC.4/1996/2, paragraph 69.
of the Mau Forest.18 These reports affirm the Applicant’s assertion

that the Mau Forest is the Ogieks’ ancestral home.19 The most salient
feature of most indigenous populations is their strong attachment with
nature, particularly, land and the natural environment. Their survival
in a particular way depends on unhindered access to and use of their
traditional land and the natural resources thereon. In this regard, the
Ogieks, as a hunter-gatherer community, have for centuries depended
on the Mau Forest for their residence and as a source of their livelihood.
110. The Ogieks also exhibit a voluntary perpetuation of cultural
distinctiveness, which includes aspects of language, social organisation,
religious, cultural and spiritual values, modes of production, laws and
institutions20 through self-identification and recognition by other groups
and by State authorities,21 as a distinct group. Despite the fact that the
Ogieks are divided into clans made up of patrilineal lineages each with
its own name and area of habitation, they have their own language,
albeit currently spoken by very few and more importantly, social
norms and forms of subsistence, which make them distinct from other
neighbouring tribes.22 They are also identified by these neighbouring
tribes, such as the Maasai, Kipsigis and Nandi, with whom they have
had regular interaction, as distinct ‘neighbours’ and as a distinct group.23
111. The records before this Court show that the Ogieks have suffered
18 Report of the African Commission’s Working Group on Indigenous Populations/

Communities Research and Information Visit to Kenya, 1-19 March 2010 pages
41 to 42; United Nations Human Rights Committee (UNHRC), ‘Cases examined
by the Special Rapporteur (June 2009 – July 2010), Human Rights Committee,
15th Session’ (15 September 2010) UN Doc A/HRC/15/37/Add.1, paragraph 268,
available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/15session/A.
HRC.15.37.Add.1.pdf; UNHRC, ‘Report of the Special Rapporteur on the situation
of human rights and fundamental freedoms of indigenous peoples’ (26 February
2007) UN Doc A/HRC/4/32/Add.3, paragraph 37, available at http://daccess-dds-
ny.un.org/doc/UNDOC/GEN/G07/110/43/PDF/G0711043.pdf?OpenElement.
19 See the Presidential Commission of Inquiry into the Illegal/Irregular Allocation
of Public Land or the Ndung’u Report June 2004 (hereinafter referred to as the
Ndung’u Report) page 154 and the Report of the Prime Minister’s Task Force on
the Conservation of the Mau Forests Complex March 2009 (hereinafter referred to
as the Mau Task Force Report) page 36.
20 CA Kratz, ‘Are the Ojiek Really Masai? Or Kipsigis? Or Kikuyu?’ (1980) 20 Cahiers
d’Etudes Africaines 357.
21 Affidavit of Samuel Kipkorir Sungura, Affidavit of Elijah Kiptanui Tuei, Affidavit of
Patrick Kuresoi filed by the Applicant; The Final Report of the Truth, Justice and
Reconciliation Commission of Kenya 3 May 2013 (hereinafter referred to as the
TJRC Report) Volume IIC paragraphs 204 and 240; and UNHRC, ‘Cases examined
by the Special Rapporteur (June 2009 – July 2010) available at http://www2.ohchr.
org/english/bodies/hrcouncil/docs/15session/A.HRC.15.37.Add.1.pdf, at para 268.
22 Kratz (n 20) 355 to 368.
23 Kratz (n 20) 357-358.
from continued subjugation, and marginalisation.24 Their suffering as a

result of evictions from their ancestral lands and forced assimilation
and the very lack of recognition of their status as a tribe or indigenous
population attest to the persistent marginalisation that the Ogieks have
experienced for decades.25
112. In view of the above, the Court recognises the Ogieks as an
indigenous population that is part of the Kenyan people having a
particular status and deserving special protection deriving from their
vulnerability.
113. The Court will now proceed to examine the articles alleged to
have been violated by the Respondent.
B. Alleged violation of Article 14 of the Charter
114. The Applicant contends that the failure of the Respondent

to recognise the Ogieks as an indigenous community denies them
the right to communal ownership of land as provided in Article 14 of
the Charter. The Applicant also argues that the Ogieks’ eviction and
dispossession of their land without their consent and without adequate
compensation, and the granting of concessions of their land to third
Parties, mean that their land has been encroached upon and they have
been denied benefits deriving therefrom.
115. The Applicant avers that the Constitution of Kenya takes away
land rights from the communities concerned and vests it in government
institutions like the Forestry Department, adding that for the laws
relating to community land rights to be effective, the Constitution and
the Land Act of 2012 must be reconciled and community land rights
in particular, must be identified and given effect. According to the
Applicant, the Forest Act 2005 does not provide for community-owned
forests and the Forest Conservation Bill unfortunately does not provide
for the procedure of identifying community-owned forests and does not
give effect to community land rights.
24 See Verbatim Record of Public Hearing 27 November 2014 page 137; the TJRC
Report (2013), paragraphs 32-47 (including other minority and indigenous people
in Kenya); UNCESCR ‘Concluding Observations of the Committee on Economic,
Social and Cultural Rights: Kenya’ (1 December 2008) UN Doc. E/C.12/KEN/CO/1
page 3 paragraph 12; UNHRC, Report of the Special Rapporteur on the situation of
human rights and fundamental freedoms of indigenous peoples’ available at http://
www2.ohchr.org/english/bodies/hrcouncil/docs/15session/A.HRC.15.37.Add.1.pdf
at paras 41 and 65 to 77.
25 See also TJ Kimaiyo, ‘Ogiek Land Cases and Historical Injustices – 1902-2004’
(2004).
116. On the Respondent’s claim that other communities such as the

Kipsigis, Tugen and the Keiyo also lay claim to the Mau Forest, the
Applicant submits that the report of the Mau Forest Task Force did not
recognise or mention any such rights of these other communities and
clearly recommended that the Ogieks who were to be settled in the
excised areas of the forest had not yet been resettled.
117. While reiterating the Ogieks’ ancestral property rights to the Mau
Forest, the Applicant submits that the Respondent did not state whether
the evictions were in the public interest as required by Article 14 of the
Charter. The Applicant maintains that excisions and allocations made
by the Respondent were illegal and done purely to pursue private
interests and therefore, are in violation of the Charter.
118. On the Respondent’s assertion that the Ogieks were not
forcefully evicted but regularly consulted before every eviction and
that they have been given alternative land, the Applicant avers that the
Ndung’u Report,26 the Truth, Justice and Reconciliation Commission
Report, the Mau Forest Task Force Report indicate the contrary.
Hence, the Applicant requests that the Respondent is put to strict proof
of this assertion.
119. According to the expert witness called by the Applicant, the Land
Act 2012, inspired by the Constitution “is not perfect but is sound”. She
submitted that this law has very clear provisions that ancestral land
and hunter-gatherer lands are community lands; yet the Constitution
stipulates that gazetted forests are public lands, which therefore makes
the Land Act 2012 contradictory.
120. The Respondent contends that the Ogieks are not the only tribe
indigenous to the Mau Forest and as such, they cannot claim exclusive
ownership of the Mau Forest. The Respondent states that the title for
all forest in Kenya (including the Mau Forest), other than private and
local authority forest is vested in the State. The Respondent avers that
since the colonial administration it was communicated to the Ogieks
that the Mau Forest was a protected conservation area on which they
were encroaching upon and that they were required to move out of the
forest. The Respondent also argues that the Ogieks were consulted
and notified before every eviction was carried out and that these were
carried out in accordance with the law.
121. The Respondent states that its land laws recognise community
26 Report of the Presidential Commission of Inquiry into the Illegal/Irregular Allocation

of Public Land.
ownership of land and provide for mechanisms by which communities

can participate in forest conservation and management. The
Respondent contends that under its laws, community forest users
are granted rights which include collection of medicinal herbs and
harvesting of honey among others. The Respondent argues that in
any event, the Court should look at the matter from the point of view of
proportionality.
122. Article 14 of the Charter provides as follows:

“The right to property shall be guaranteed. It may only be
encroached upon in the interest of public need or in the general
interest of the community and in accordance with the provisions
of appropriate laws.”
123. The Court observes that, although addressed in the part of the
Charter which enshrines the rights recognised for individuals, the right
to property as guaranteed by Article 14 may also apply to groups or
communities; in effect, the right can be individual or collective.
124. The Court is also of the view that, in its classical conception, the
right to property usually refers to three elements namely: the right to
use the thing that is the subject of the right (usus), the right to enjoy the
fruit thereof (fructus) and the right to dispose of the thing, that is, the
right to transfer it (abusus).
125. However, to determine the extent of the rights recognised for
indigenous communities in their ancestral lands as in the instant case,
the Court holds that Article 14 of the Charter must be interpreted in light
of the applicable principles especially by the United Nations.
126. In this regard, Article 26 of the United Nations General Assembly
Declaration 61/295 on the Rights of Indigenous Peoples adopted by
the General Assembly on 13 September 2007, provides as follows:
“1. Indigenous peoples have the right to the lands, territories and
resources which they have traditionally owned, occupied or
otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and
control the lands, territories and resources that they possess by
reason of traditional ownership or other traditional occupation or
use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands,
territories and resources. Such recognition shall be conducted
with due respect to the customs, traditions and land tenure
systems of the indigenous peoples concerned.”
127. It follows in particular from Article 26(2) of the Declaration that
the rights that can be recognised for indigenous peoples/communities
on their ancestral lands are variable and do not necessarily entail

the right of ownership in its classical meaning, including the right to
dispose thereof (abusus). Without excluding the right to property in the
traditional sense, this provision places greater emphasis on the rights
of possession, occupation, use/utilization of land.
128. In the instant case, the Respondent does not dispute that the
Ogiek Community has occupied lands in the Mau Forest since time
immemorial. In the circumstances, since the Court has already held
that the Ogieks constitute an indigenous community (supra paragraph
112), it holds, on the basis of Article 14 of the Charter read in light of
the above-mentioned United Nations Declaration, that they have the
right to occupy their ancestral lands, as well as use and enjoy the said
lands.
129. However, Article 14 envisages the possibility where a right to
property including land may be restricted provided that such restriction
is in the public interest and is also necessary and proportional27
130. In the instant case, the Respondent’s public interest justification
for evicting the Ogieks from the Mau Forest has been the preservation
of the natural ecosystem. Nevertheless, it has not provided any
evidence to the effect that the Ogieks’ continued presence in the area
is the main cause for the depletion of natural environment in the area.
Different reports prepared by or in collaboration with the Respondent
on the situation of the Mau Forest also reveal that the main causes of
the environmental degradation are encroachments upon the land by
other groups and government excisions for settlements and ill-advised
logging concessions.28 In its pleadings, the Respondent also concedes
that “the Mau Forest degradation cannot entirely be associated or is
not associable to the Ogiek people”.29 In this circumstance, the Court
is of the view that the continued denial of access to and eviction
from the Mau Forest of the Ogiek population cannot be necessary or
proportionate to achieve the purported justification of preserving the
natural ecosystem of the Mau Forest.
131. In view of the foregoing considerations, the Court holds that by
expelling the Ogieks from their ancestral lands against their will, without
prior consultation and without respecting the conditions of expulsion in
the interest of public need, the Respondent violated their rights to land
27 See Issa Konate Case paras 145 to154.

28 Report of Mau Complex and Marmanet Forests, Environmental and Economic
Contributions Current State and Trends, Briefing Notes Compiled by the team
that participated in the reconnaissance flight on 7 May 2008, in consultation with
relevant Government departments, 20 May 2008; See also Verbatim Record of
Public Hearing 27 November 2014 page 111, Ndung’u Report (Annexure 82) and
the Mau Task Force Report pages 6, 9, 18 and 22.
29 See also Respondent’s Submission on Merits page 23.
as defined above and as guaranteed by Article 14 of the Charter read

in light of the United Nations Declaration on the Rights of Indigenous
Peoples of 2007.
C. Alleged violation of Article 2 of the Charter
i. Applicant`s submission
132. The Applicant submits that Article 2 of the Charter provides a

non-exhaustive list of prohibited grounds of discrimination and that the
expression “or other status”, widens the list to include statuses not
expressly noted. The Applicant notes that any discrimination against
the Ogiek Community would fall within the definition of “race”, “ethnic
group”, “religion” and “social origin” referred to in Article 2. The Applicant
urges the Court to act in line with the jurisprudence of other regional
human rights bodies and maintains that discrimination on grounds of
ethnic origin is not capable of objective justification.
133. According to the Applicant, the differential treatment of the
Ogieks and other similar indigenous and minority groups within Kenya,
in relation to the lack of respect for their property rights, religious and
cultural rights, and right to life, natural resources and development
under the relevant laws, constitutes unlawful discrimination and is a
violation of Article 2 of the Charter. The Applicant stresses that the
Respondent has, since independence, been pursuing a policy of
assimilation and marginalisation, presumably in an attempt to ensure
national unity and, in the case of land and natural resource rights, in the
name of conservation of the Mau Forest. According to the Applicant,
while such aims of national unity or conservation may be legitimate
and serve the common interest, the means employed, including the
non-recognition of the tribal and ethnic identity of the Ogieks and their
corresponding rights is entirely disproportionate to such an aim and,
is ultimately counterproductive to its achievement. The Applicant is of
the view that the Respondent has failed to show that the reasons for
such difference in treatment are strictly proportionate to or absolutely
necessary for the aims being pursued, and concludes that as a result,
the laws which permit this discrimination are in violation of Article 2 of
the Charter.30
30 These include the Constitution of Kenya, 1969 (as Amended in 1997), the
Government Lands Act Chapter 280 of the Laws of Kenya, Registered Land Act
Chapter 300 of the Laws of Kenya, Trust Land Act Chapter 285 of the Laws of
Kenya and the Forest Act Chapter 385 of the Laws of Kenya.
134. The Respondent submits that there has been no discrimination

against the Ogieks and that the alleged discrimination in education,
health, access to justice and employment is baseless, and lacks
justification and documentary evidence. The Respondent submits
that the complainants have not demonstrated, as is required, how the
Respondent discriminated against the Ogieks. The Respondent calls
on the Applicant to prove the discrimination alleged and to establish
facts from which the discrimination occurred.
135. The Respondent contends that, in any event, the alleged
discrimination would be contrary to its Constitution which provides
safeguards against such discrimination. The Respondent cites Articles
10 (National values and principles of governance) and Article 24 of
its Constitution, which provide inter alia that, every person is equal
before the law and has equal protection and benefit of the law. The
Respondent also cites Article 27(4) thereof which prohibits the State
from discriminating “directly or indirectly any person on any ground,
including race, sex, pregnancy, marital status, health status, ethnic or
social origin, colour, age, disability, religion, conscience, belief, culture,
dress, language or birth”.
136. Article 2 of the Charter provides that:

“Every individual shall be entitled to the enjoyment of the rights
and freedoms recognised and guaranteed in the present Charter
without distinction of any kind such as race, ethnic group, colour,
sex, language, religion, political or any other opinion, birth or any
status.”
137. Article 2 of the Charter is imperative for the respect and enjoyment
of all other rights and freedoms protected in the Charter. The provision
strictly proscribes any distinction, exclusion or preference made on the
basis of race, colour, sex, religion, political opinion, national extraction
or social origin, which has the effect of nullifying or impairing equality
of opportunity or treatment.
138. The right not to be discriminated against is related to the right to
equality before the law and equal protection of the law as guaranteed
by Article 3 of the Charter.31 The scope of the right to non-discrimination
extends beyond the right to equal treatment by the law and also has
practical dimension in that individuals should in fact be able to enjoy the
31 Christopher Mtikila Case paragraphs 105.1 and 105.2.

rights enshrined in the Charter without distinction of any kind relating

to their race, colour, sex, religion, political opinion, national extraction
or social origin, or any other status. The expression ‘any other status’
under Article 2 encompasses those cases of discrimination, which
could not have been foreseen during the adoption of the Charter. In
determining whether a ground falls under this category, the Court shall
take into account the general spirit of the Charter.
139. In terms of Article 2 of the Charter, while distinctions or differential
treatment on grounds specified therein are generally proscribed, it
should be pointed out that not all forms of distinction can be considered
as discrimination. A distinction or differential treatment becomes
discrimination, and hence, contrary to Article 2, when it does not have
objective and reasonable justification and, in the circumstances where
it is not necessary and proportional.32
140. In the instant case, the Court notes that the Respondent’s
national laws as they were before 2010, including the Constitution of
Kenya 1969 (as Amended in 1997), the Government Lands Act Chapter
280, Registered Land Act Chapter 300, Trust Land Act Chapter 285
and the Forest Act Chapter 385, recognised only the concept of ethnic
groups or tribes. While some of these laws were enacted during the
colonial era, the Respondent maintained them with few amendments,
or their effect persisted to date even after independence in 1963.
141. In so far as the Ogieks are concerned, the Court notes from the
records available before it that their request for recognition as a tribe
goes back to the colonial period, where their request was rejected by
the then Kenya Land Commission in 1933, asserting that “they [the
Ogieks] were a savage and barbaric people who deserved no tribal
status” and consequently, the Commission proposed that “they should
become members of and be absorbed into the tribe in which they have
the most affinity”.33 The denial of their request for recognition as a
tribe also denied them access to their own land as, at the time, only
those who had tribal status were given land as “special reserves” or
“communal reserves”. This has been the case since independence and
is still continuing.34 In contrast, other ethnic groups such as the Maasai,
have been recognised as tribes and consequently, been able to enjoy
all related rights derived from such recognition, thus proving differential
32 As above.
33 See also Verbatim Record of Public Hearing 27 November 2014 pages 15 to 16 on
the Respondent’s Opening Statement.
34 See Ndung’u Report page 154, Mau Task Force Report page 36 and TJRC Report
Vol IIC paragraphs 204 and 240.
treatment.35
142. The Court accordingly finds that, if other groups which are in
the same category of communities, which lead a traditional way of
life and with cultural distinctiveness highly dependent on the natural
environment as the Ogieks, were granted recognition of their status
and the resultant rights, the refusal of the Respondent to recognise
and grant the same rights to the Ogieks, due to their way of life as a
hunter-gatherer community amounts to `distinction` based on ethnicity
and/or ‘other status’ in terms of Article 2 of the Charter.
143. With regard to the Respondent’s submission that, following
the adoption of a new Constitution in 2010, all Kenyans enjoy equal
opportunities in terms of education, health, employment, and access
to justice and there is no discrimination among different tribes in Kenya
including the Ogieks, the Court notes that indeed the 2010 Constitution
of Kenya recognises and accords special protection to indigenous
populations as part of “marginalised community” and the Ogieks could
theoretically fit into that category and benefit from the protection of
such constitutional safeguards. All the same, this does not diminish
the responsibility of the Respondent with respect to the violations of
the rights of the Ogieks not to be discriminated against between the
time the Respondent became a Party to the Charter and when the
Respondent’s new Constitution was enacted.
144. In addition, as stated above, the prohibition of discrimination
may not be fully guaranteed with the enactment of laws which condemn
discrimination; the right can be effective only when it is actually
respected and, in this vein, the persisting eviction of the Ogieks, the
failure of the authorities of the Respondent to stop such evictions and
to comply with the decisions of the national courts demonstrate that the
new Constitution and the institutions which the Respondent has set up
to remedy past or on-going injustices are not fully effective.
145. On the Respondent’s purported justification that the evictions
of the Ogieks were prompted by the need to preserve the natural
ecosystem of the Mau Forest, the Court considers that this cannot,
by any standard, serve as a reasonable and objective justification
for the lack of recognition of the Ogieks’ indigenous or tribal status
and denying them the associated rights derived from such status.
Moreover, the Court recalls its earlier finding that contrary to what the
Respondent is asserting, the Mau Forest has been allocated to other
35 For instance, Maasai Mau Trust Land Forest, which forms part of the Mau Forest
Complex is managed by the Narok County Council rather than the Kenya Forest
Service as it is the only Trust Land out of the 22 forest blocks in the complex,
thereby, recognising a special designated area for the Maasai; See in this regard,
Mau Forest Task Force Report, page 9.
people in a manner which cannot be considered as compatible with

the preservation of the natural environment and that the Respondent
itself concedes that the depletion of the natural ecosystem cannot be
entirely imputed to the Ogieks.36
146. In light of the foregoing, the Court finds that the Respondent,
by failing to recognise the Ogieks’ status as a distinct tribe like other
similar groups and thereby denying them the rights available to other
tribes, violated Article 2 of the Charter.
D. Alleged violation of Article 4 of the Charter
147. The Applicant submits that the right to life is the first human right,
the one on which the enjoyment of all other rights depend and that it
imposes both a negative duty on States to refrain from interfering with
its exercise and the positive obligation to fulfil the basic necessities for
a decent survival.37 The Applicant contends that forced evictions may
violate the right to life when they generate conditions that impede or
obstruct access to a decent existence.38 According to the Applicant,
given their special relationship with and dependence on land for their
livelihood, when indigenous populations are forcefully evicted from
their ancestral land, they become exposed to conditions affecting their
decent way of life.
148. The Applicant argues that, similar to other hunter-gatherer
communities, the Ogieks relied on their ancestral land in the Mau
Forest to support their livelihood, their specific way of life and their very
existence. The Applicant contends further that the Ogieks’ ancestral
land in the Mau Forest provided them with, a constant supply of food, in
the form of game and honey, shelter, traditional medicines and an area
for cultural rituals and religious ceremonies and social organisation.
36 See para 130 above.

37 See Forum of Conscience v Sierra Leone African Commission on Human and
Peoples’ Rights Communication No. 223/98 14th Annual Activity Report 2000 to
2001 para 20.
38 Citing the General Comment of the United Nations Committee on Economic,
Social and Cultural Rights (UNCESCR) on the Right to Adequate Housing: Forced
Eviction, UNCESCR General Comment No. 7 20 May 1997; the Commission’s
jurisprudence in the Endorois Case Communication No. 276/03 Centre for Minority
Rights Development (Kenya) and Minority Rights Group International (on behalf of
Endorois Welfare Council) v Kenya 25 November 2009 paragraph 216 27th Annual
Activity Report: June to November 2009; and the decision of the Inter-American
Court of Human Rights (IACtHR) decision in Yakye Axa Indigenous Community v
Paraguay Judgment of 17 June 2005 (Merits, Reparations and Costs) Ser C No.
125 paras 160 to 163.
The Applicant argues that, the Respondent acknowledges this intimate

relationship that the Ogieks have with their ancestral land.
149. The Applicant submits therefore that the Respondent’s removal
of the Ogieks from their ancestral and cultural home, and subsequent
limiting access to these lands, threatens to destroy the community’s
way of life and that their hunter-gatherer livelihood has been severely
affected by relegation to unsuitable lands. According to the Applicant,
their forced eviction means that the Ogieks no longer have a decent
survival and consequently, their right to life under Article 4 of the
Charter is imperilled.
150. The Respondent submits that the Mau Forest Complex is

important for all Kenyans, and the government is entitled to develop it for
the benefit of all citizens. While the government engages in economic
activity for the benefit of all Kenyans in areas where indigenous people
live, the Respondent indicates that it may affect the indigenous people
and reiterates that this should be seen in the light of the principle of
proportionality.
151. Article 4 of the Charter stipulates that:

“Human beings are inviolable. Every human being shall be
entitled to respect for his life and the integrity of his person. No
one may be arbitrarily deprived of this right”
152. The right to life is the cornerstone on which the realisation of all
other rights and freedoms depend. The deprivation of someone`s life
amounts to eliminating the very holder of these rights and freedoms.
Article 4 of the Charter strictly prohibits the arbitrary deprivation of life.
Contrary to other human rights instruments, the Charter establishes
the link between the right to life and the inviolable nature and integrity
of the human being. The Court finds that this formulation reflects the
indispensable correlation between these two rights.
153. The Court notes that the right to life under Article 4 of the Charter
is a right to be enjoyed by an individual irrespective of the group to
which he or she belongs. The Court also understands that the violation
of economic, social and cultural rights (including through forced
evictions) may generally engender conditions unfavourable to a decent
life.39 However, the Court is of the view that the sole fact of eviction and
deprivation of economic, social and cultural rights may not necessarily
result in the violation of the right to life under Article 4 of the Charter.
154. The Court considers that it is necessary to make a distinction
between the classical meaning of the right to life and the right to decent
existence of a group. Article 4 of the Charter relates to the physical
rather than the existential understanding of the right to life.
155. In the instant case, it is not in dispute between the Parties that
that the Mau Forest has, for generations, been the environment in which
the Ogiek population has always lived and that their livelihood depends
on it. As a hunter-gatherer population, the Ogieks have established
their homes, collected and produced food, medicine and ensured
other means of survival in the Mau Forest. There is no doubt that their
eviction has adversely affected their decent existence in the forest.
According to the Applicant, some members of the Ogiek population
died at different times, due to lack of basic necessities such as food,
water, shelter, medicine, exposure to the elements, and diseases,
subsequent to their forced evictions. The Court notes however that
the Applicant has not established the causal connection between the
evictions of the Ogieks by the Respondent and the deaths alleged to
have occurred as a result. The Applicant has not adduced evidence to
this effect.
156. In view of the above, the Court finds that there is no violation of
E. Alleged violation of Article 8 of the Charter
157. The Applicant contends that the Ogieks practise a monotheistic

religion closely tied to their environment and that their beliefs and
spiritual practices are protected by Article 8 of the Charter and constitute
a religion under international law. The Applicant refutes the claim that
39 In Yakye Axa Indigenous Community v Paraguay Judgment of 17 June 2005

(Merits, Reparations and Costs) Ser C No. 125 paragraph 161, the IACtHR found
a violation to the right to life by reasoning that: “ … when the right to life is not
respected, all the other rights disappear, because the person entitled to them
ceases to exist ... Essentially, this right includes not only the right of every human
being not to be arbitrarily deprived of his life, but also the right that conditions
that impede or obstruct access to a decent existence should not be generated”
and further that “the fallout from forcibly dispossessing indigenous peoples from
their ancestral land could amount to an Article 4 violation (right to life) if the living
conditions of the community are incompatible with the principles of human dignity”.
The Commission adopted a similar reasoning in the Endorois Case - see para 216.
the Ogieks’ religious practices are a threat to law and order, which has
been the Respondent’s basis for the unjustifiable interference with the
Ogieks’ right to freely practice their religion. In this regard, the Applicant
submits that the Ogieks’ traditional burial practices of putting the dead
in the forest have evolved such that now they do bury their dead.
158. Further, the Applicant asserts that the sacred places in the Mau
Forest, caves, hills, specific trees areas within the forest40 were either
destroyed during the evictions which took place during the 1980s,
or knowledge about them has not been passed on by the elders to
younger members of their community, as they can no longer access
them. The Applicant avers that it is only through unfettered access
to the Mau Forest that the Ogieks will be able to protect, maintain,
and use their sacred sites in accordance with their religious beliefs.
The Applicant adds that the Respondent has failed to demarcate and
protect the religious sites of the Ogieks.
159. The Applicant also maintains that though some of the Ogieks
have adopted Christianity, this does not extinguish the religious rites
they practise in the forest. The Applicant adds that, under the Forest Act,
the Ogieks are required to apply annually and pay for forest licences
in order to access their religious sites situated on their ancestral lands,
contrary to the provisions of the Charter.
160. During the public hearing, Dr Liz Alden Wily, the expert witness
called by the Applicant asserted that the livelihoods of hunter-gatherer
communities are dependent on a social ecology whereby their spiritual
life and whole existence depends on the forest and that there is a big
misunderstanding about the hunter-gatherer culture. She emphasised
that for such communities, culture and religion are intertwined and
therefore cannot be separated. According to her, it is usually perceived
that their culture can be easily dissolved or disbanded in situations
where the hunter -gatherers have been assimilated by modernism.
She stated that many forest dwellers like the Ogieks do the hunting and
gathering, not just for their livelihood, but rather, their whole spiritual
life and their entire existence depends on the forest and its intactness.
She stated that whether or not their livelihood is derived from the forest
(as is the case of the Ogieks), people tend to erroneously think that
because today the Ogieks have not turned up in skins or hides, then
they do not need to hunt or that they have given up their culture.
161. The Respondent contends that the Applicant has failed to adduce
40 See Applicant’s Reply to the Respondent’s Submissions on Merits pages 22 to 23.

evidence to show the exact places where the alleged ceremonies for the
religious sites of the Ogieks are located. They argue that the Ogieks have
abandoned their religion as they have converted to Christianity and that
the religious practices of the Ogieks are a threat to law and order, thereby
necessitating the Respondent’s interference, to protect and preserve law
and order. The Respondent contends that the Ogieks are free to access the
Mau Forest, except between 6 pm and 9 am and that they are prohibited
from carrying out certain activities, unless they have a licence permitting
them to do so.
162. Article 8 of the Charter provides:

“Freedom of conscience, the profession and free practice of
religion shall be guaranteed. No one may, subject to law and
order, be submitted to measures restricting the exercise of these
freedoms.”
163. The above provision requires State Parties to fully guarantee
freedom of conscience, the profession and free practice of
religion. 41 The right to freedom of worship offers protection to all
forms of beliefs regardless of denominations: theistic, non-theistic
and atheistic beliefs, as well as the right not to profess any religion
or belief. 42 The right to manifest and practice religion includes the
right to worship, engage in rituals, observe days of rest, and wear
religious garb, allow individuals or groups to worship or assemble
in connection with a religion or belief, and to establish and maintain
places for these purposes, as well as to celebrate ceremonies in
accordance with the precepts of one’s religion or belief. 43
164. The Court notes that, in the context of traditional societies,
where formal religious institutions often do not exist, the practice and
profession of religion are usually inextricably linked with land and
the environment. In indigenous societies in particular, the freedom
to worship and to engage in religious ceremonies depends on
access to land and the natural environment. Any impediment to, or
interference with accessing the natural environment, including land,
severely constrains their ability to conduct or engage in religious
41 See also A r t i c l e 1 8 , ICCPR.

42 UNHRC, CCPR General Comment No. 22: Article 18 (Freedom of Thought,
Conscience or Religion), 30 July 1993, CCPR/C/21/Rev.1/Add.4, available at:
http://www.refworld.org/docid/453883fb22.html para 2.
43 Article 6 of the United Nations Declaration on the Elimination of All Forms of
Intolerance and of Discrimination Based on Religion or Belief, (Thirty-Sixth session,
1981), UN GA Res 36/55, (1981).
rituals with considerable repercussion on the enjoyment of their

freedom of worship.
165. In the instant case, the Court notes from the records before it44
that the Ogieks’ religious sites are in the Mau Forest and they perform
their religious practices there. The Mau Forest constitutes their spiritual
home and is central to the practice of their religion. It is where they bury
the dead according to their traditional rituals45, where certain types of
trees are found for use to worship and it is where they have kept their
sacred sites for generations.
166. The records also show that the Ogiek population can no longer
undertake their religious practices due to their eviction from the Mau
Forest. In addition, they must annually apply and pay for a license for
them to have access to the Forest. In the opinion of the Court, the
eviction measures and these regulatory requirements interfere with the
freedom of worship of the Ogiek population.
167. Article 8 of the Charter however allows restrictions on the
exercise of freedom of religion in the interest of maintaining law
and order. Though the Respondent can interfere with the religious
practices of the Ogieks to protect public health and maintain law
and order, these restrictions must be examined with regard to their
necessity and reasonableness. The Court is of the view that, rather
than evicting the Ogieks from the Mau Forest, thereby restricting their
right to practice their religion, there were other less onerous measures
that the Respondent could have put in place that would have ensured
their continued enjoyment of this right while ensuring maintenance of
law and order and public health. These measures include undertaking
sensitisation campaigns to the Ogieks on the requirement to bury their
dead in accordance with the requirements of the Public Health Act and
collaborating towards maintaining the religious sites and waiving the
fees to be paid for the Ogieks to access their religious sites.
168. On the contention that the Ogieks have abandoned their religion
and converted to Christianity, the Court notes from the records before
it, specifically from the testimony of the Applicant’s witnesses that, not
all the Ogieks have converted to Christianity. Indeed, the Respondent
has not submitted any evidence to support its position that the adoption
of Christianity means a total abandonment of the Ogiek traditional
religious practices. Even though some members of the Ogieks might
have been converted to Christianity, the evidence before this Court
show that they still practice their traditional religious rites. Accordingly,
44 Applicant’s Submission on Merits page 184, paras 431 to 432 and the Affidavit of
Seli Chemeli Koech filed by Applicant.
45 For instance, placing a dead person under the Yemtit tree (Olea Africana).
the alleged transformation in the way of life of the Ogieks and their
manner of worship cannot be said to have entirely eliminated their
traditional spiritual values and rituals.
169. From the foregoing, the Court is of the view that given the link
between indigenous populations and their land for purposes of practicing
their religion, the evictions of the Ogieks from the Mau Forest rendered
it impossible for the community to continue its religious practices and is
an unjustifiable interference with the freedom of religion of the Ogieks.
The Court therefore finds that the Respondent is in violation of Article
8 of the Charter.
F. Alleged violation of Articles 17(2) and (3) of the Charter
170. The Applicant, citing its own jurisprudence in the Endorois Case
avers that “Culture could be taken to mean that complex whole which
includes a spiritual and physical association with one’s ancestral land,
knowledge, belief, art, law, morals, customs and any other capabilities
and habits acquired by humankind as a member of society – the sum
total of the material and spiritual activities and products of a given
social group that distinguish it from other similar groups and in that
it encompasses a group’s religion, language, and other defining
characteristics”. On the basis of this, the Applicant submits that the
cultural rights of the Ogieks have been violated by the Respondent,
through restrictions on access to the Mau forest which hosts their
cultural sites. According to the Applicant, their attempts to access their
historic lands for cultural purposes have been met with intimidation and
detention, and serious restrictions have been imposed by the Kenyan
authorities on their hunter-gatherer way of life, after the Respondent
forcefully evicted them from the Mau Forest.
171. The Applicant maintains that the Ogieks should be allowed to
determine what culture is good for them rather than the Respondent
doing so. The Applicant calls on the Court to be inspired by Article 61
of the Charter and urges the Court to find that the Respondent is in
violation of Article 17 of the Charter in respect of the Ogieks and prays
the Court to issue an Order for reparation.
172. While testifying about the cultural evolution of the Ogieks,
the expert witness maintains and reiterates her earlier position as
elaborated in the section on religion above in paragraph 161.
173. The Respondent argues that it recognises and affirms the

provisions of Article 17 of the Charter and has taken reasonable steps
both at the national and international levels to ensure that the cultural
rights of indigenous peoples in Kenya are promoted, protected and
fulfilled. The Respondent submits that it has ratified the ICCPR and
ICESCR with specific provisions on the protection of cultural rights
enshrined in its Constitution.46 The Respondent avers that it has also
effected numerous legal and policy measures to ensure that cultural
rights of ‘‘indigenous people’’ in Kenya are upheld and protected. In
this regard, the Respondent reiterates that the 2010 Constitution of
Kenya protects the right of all Kenyans to promote their own culture.
174. The Respondent underscores that while protecting the cultural
rights, it also has the responsibility to ensure a balance between cultural
rights vis-à-vis environmental conservation in order to undertake
its obligation to all Kenyans, particularly in view of the provisions of
the Charter47 and its Constitution.48 The Respondent further submits
that the cultural rights of indigenous people such as the Ogieks may
encompass activities related to natural resources, such as fishing or
hunting which could have a negative impact on the environment and
these must be balanced against other public interests. The Respondent
urges the Court to bear in mind the intricate balance between the right
to culture and environmental conservation for future generations.
175. Furthermore, the Respondent stresses that as far as the Ogieks
are concerned, their lifestyle has metamorphosed and the cultural and
traditional practices which made them distinct no longer exist, thus,
the group itself no longer exists and it cannot therefore claim any
cultural rights. The Respondent also states that the Ogieks no longer
live as hunters and gatherers, thus, they cannot be said to conserve
the environment. They have adopted new and modern ways of living,
including building permanent structures, livestock keeping and farming
which would have a serious negative impact on the forest if they are
allowed to reside there.
46 See Article 2(5) and (6) of the Constitution of Kenya, 2010: (5) “The general rules
of international shall form part of the law of Kenya. (6) Any treaty or convention
ratified by Kenya shall form part of the law of Kenya under this Constitution.” Article
44 of the Constitution of Kenya, 2010 provides for the right to use the language and
to participate in the cultural life of the person’s choice.
47 Articles 1 and 24 of the Charter.
48 Article 69 of the Constitution of Kenya, 2010.
176. Article 17 of the Charter provides:

“1. Every individual shall have the right to education.
2. Every individual may freely, take part in the cultural life of his
community.
3. The promotion and protection of morals and traditional values
Recognised by the community shall be the duty of the State” .
177. The right to culture as enshrined in Article 17(2) and (3) of the
Charter is to be considered in a dual dimension, in both its individual
and collective nature. It ensures protection, on the one hand, of
individuals’ participation in the cultural life of their community and, on
the other, obliges the State to promote and protect traditional values of
the community.
178. Article 17 of the Charter protects all forms of culture and places
strict obligations on State Parties to protect and promote traditional
values. In a similar fashion, the Cultural Charter for Africa obliges
States to adopt a national policy which creates conditions conducive
for the promotion and development of culture.49 The Cultural Charter
specifically stresses “the need to take account of national identities,
cultural diversity being a factor making for balance within the nation
and a source of mutual enrichment for various communities”.50
179. The protection of the right to culture goes beyond the duty, not
to destroy or deliberately weaken minority groups, but requires respect
for, and protection of, their cultural heritage essential to the group’s
identity. In this respect, culture should be construed in its widest sense
encompassing the total way of life of a particular group, including the
group’s languages, symbols such as dressing codes and the manner
the group constructs shelters; engages in certain economic activities,
produces items for survival; rituals such as the group’s particular way of
dealing with problems and practicing spiritual ceremonies; identification
and veneration of its own heroes or models and shared values of its
members which reflect its distinctive character and personality.51
180. The Court notes that in the context of indigenous populations,
the preservation of their culture is of particular importance. Indigenous
populations have often been affected by economic activities of other
dominant groups and large scale developmental programmes. Due
49 Article 6, Cultural Charter for Africa adopted by the Organisation of African Unity
in Accra, Ghana on 5 July 1976, The Respondent became a State Party to the
Cultural Charter on 19 September 1990.
50 n49 Article 3, .
51 Preamble, paragraph 9 and Articles 3, 5 and 8(a) Cultural Charter for Africa.
Organisation of African Unity on 5 July 1976
to their obvious vulnerability often stemming from their number or

traditional way of life, indigenous populations even have, at times,
been the subject and easy target of deliberate policies of exclusion,
exploitation, forced assimilation, discrimination and other forms of
persecution, whereas some have encountered extinction of their
cultural distinctiveness and continuity as a distinct group.52
181. The UN Declaration on Indigenous Peoples, states that
“indigenous peoples and individuals have the right not to be subjected
to forced assimilation or destruction of their culture” and States shall
provide effective mechanisms to prevent any action that deprives them
of “their integrity as distinct peoples, or of their cultural values or ethnic
identities”.53 The UN Committee on Economic, Social and Cultural
Rights, in its General Comment on Article 15(1)(a) also observed that
“the strong communal dimension of indigenous peoples’ cultural life is
indispensable to their existence, wellbeing and full development, and
includes the right to the lands, territories and resources which they
have traditionally owned, occupied or otherwise used or acquired.”54
182. In the instant case, the Court notes from the records available
before it that the Ogiek population has a distinct way of life centred
and dependent on the Mau Forest Complex. As a hunter-gatherer
community, they get their means of survival through hunting animals
and gathering honey and fruits, they have their own traditional clothes,
their own language, distinct way of entombing the dead, practicing
rituals and traditional medicine, and their own spiritual and traditional
values, which distinguish them from other communities living around
and outside the Mau Forest Complex, thereby demonstrating that the
Ogieks have their own distinct culture.
183. The Court notes, based on the evidence available before it and
which has not been contested by the Respondent that the Ogieks have
been peacefully carrying out their cultural practices until their territory
was encroached upon by outsiders and they were evicted from the
Mau Forest. Even in the face of this, the Ogieks still undertake their
52 The ACHPR’s work on indigenous peoples in Africa, Indigenous Peoples in Africa:

The Forgotten Peoples? (2006), page 17 available at http://www.achpr.org/files/
special-mechanisms/indigenous-populations/achpr_wgip_report_summary_
version_eng.pdf.
53 Articles 8(1) and 8(2)(a), of the United Nations Declaration on the Rights of
Indigenous People, 2007 (hereinafter referred to as UNDRIP). NDRI; See also
Article 4(2), UN General Assembly, Declaration on the Rights of Persons Belonging
to National or Ethnic, Religious and Linguistic Minorities, 3 February 1992, A/
RES/47/135, available at: http://www.refworld.org/docid/3ae6b38d0.html.
54 UNCESR, General comment No. 21, Right of everyone to take part in cultural
life (art. 15, para. 1a of the Covenant on Economic, Social and Cultural Rights),
21 December 2009, E/C.12/GC/21, available at: http://www.refworld.org/
docid/4ed35bae2.html paras 36 and 37.
traditional activities: traditional wedding ceremonies, oral traditions,

folklores, and songs. They still maintain their clan boundaries in the
Mau Forest and each clan ensures the maintenance of the environment
within the boundary it is allocated. However, in the course of time,
the restrictions on access to and evictions from the Mau Forest have
greatly affected their ability to preserve these traditions. In view of this,
the Court holds that the Respondent interfered with the enjoyment of
the right to culture of the Ogiek population.
184. Having found that there has been interference by the Respondent
with the cultural rights of the Ogieks, the next issue for the Court to
determine is whether or not such interference could be justified by the
need to attain a legitimate aim under the Charter.55 In this regard, the
Court notes the Respondent’s contention that the Ogiek population
has evolved on their own by adopting a different culture and identity
and that, in any event, the eviction measures the Respondent effected
against them were aimed to prevent adverse impacts on the Mau
Forest which was caused by the Ogiek lifestyle and culture.
185. With regard to the first contention that the Ogieks have evolved
and their way of life has changed through time to the extent that they
have lost their distinctive cultural identity, the Court reiterates that the
Respondent has not sufficiently demonstrated that this alleged shift and
transformation in the lifestyle of the Ogieks has entirely eliminated their
cultural distinctiveness. In this vein, the Court stresses that stagnation
or the existence of a static way of life is not a defining element of
culture or cultural distinctiveness. It is natural that some aspects of
indigenous populations’ culture such as a certain way of dressing or
group symbols could change over time. Yet, the values, mostly, the
invisible traditional values embedded in their self-identification and
shared mentality often remain unchanged.
186. In so far as the Ogiek population is concerned, the testimony
tendered by Mrs. Mary Jepkemei, a member of the Ogiek Community,
attests that the Ogieks still have their traditional values and cultural
ceremonies which make them distinct from other similar groups. In
addition, the Court notes that, to some extent, some of the alleged
changes in the way the Ogieks used to live in the past are caused by
the restrictions put in place by the Respondent itself on their right to
access their land and natural environment.56
187. With respect to the second contention that the eviction measures
were in the public interest of preserving the natural environment of the
55 Issa Konate Case paras 145 to 154.

56 On the same, see, case of the Sawhoyamaxa Indigenous Community v Paraguay,
IACHR (29 March 29 2006) (Merits, Reparations and Costs) paras 73(3) to 73(5).
Mau Forest Complex, the Court first notes that Article 17 of the Charter
does not provide exceptions to the right to culture. Any restrictions to
the right to culture shall accordingly be dealt with in accordance with
Article 27 of the Charter, which stipulates that:
“1. Every individual shall have duties towards his family and society,
the State and other legally recognised communities and the
international community.
2. The rights and freedoms of each individual shall be exercised
with due regard to the rights of others, collective security,
morality and common interest.”
188. In the instant case, the restriction of the cultural rights of the
Ogiek population to preserve the natural environment of the Mau
Forest Complex may in principle be justified to safeguard the “common
interest” in terms of Article 27 (2) of the Charter. However, the mere
assertion by a State Party of the existence of a common interest
warranting interference with the right to culture is not sufficient to allow
the restriction of the right or sweep away the essence of the right
in its entirety. Instead, in the circumstances of each case, the State
Party should substantiate that its interference was indeed genuinely
prompted by the need to protect such common interest. In addition,
the Court has held that any interference with the rights and freedoms
guaranteed in the Charter shall be necessary and proportional to the
legitimate interest sought to be attained by such interference.57
189. In the instant case, the Court has already found that the
Respondent has not adequately substantiated its claim that the
eviction of the Ogiek population was for the preservation of the natural
ecosystem of the Mau Forest.58 Considering that the Respondent has
interfered with the cultural rights of the Ogieks through the evictions
and given that the Respondent invokes the same justification of
preserving the natural ecosystem for its interference, the Court
reiterates its position that the interference cannot be said to have been
warranted by an objective and reasonable justification. Although the
Respondent alleges generally, that certain cultural activities of the
Ogieks are inimical to the environment, it has not specified which
particular activities and how these activities have degraded the
Mau Forest. In view of this, the purported reason of preserving the
natural environment cannot constitute a legitimate justification for the
Respondent’s interference with the Ogieks’ exercise of their cultural
rights. Consequently, the Court deems it unnecessary to examine
57 See Issa Konate Case paras 145 to 154.

58 See section on the Court’s Assessment on Alleged Violation of Article 8 of the
Charter.
further whether the interference was necessary and proportional to the

legitimate aim invoked by the Respondent.
190. The Court therefore finds that the Respondent has violated the
right to culture of the Ogiek population contrary to Article 17 (2) and
(3) of the Charter by evicting them from the Mau Forest area, thereby,
restricting them from exercising their cultural activities and practices.
G. Alleged violation of Article 21 of the Charter
191. The Applicant contends that the Respondent has violated

the rights of the Ogieks to freely dispose of their wealth and natural
resources in two ways. Firstly, by evicting them from the Mau Forest
and denying them access to the vital resources therein, and secondly,
by granting logging concessions on Ogiek ancestral land without their
prior consent and without giving them a share of the benefits in those
resources.
192. Countering the Respondent’s contention that it has incorporated
Article 21 of the Charter into the Kenyan Constitution,59 the Applicant
maintains that, there is still no implementing legislation in place in this
regard. The Applicant adds that, under the previous Constitution and
legislation, the Respondent was unable to implement the framework
for protection of the Ogieks, who, could not claim any part of Kenya as
their community land like other communities.
193. The Applicant states that the Ogieks neither got land under
the Native Land Trust Ordinance 1938, the Constitution of Kenya,
1969, the Land (Group Representatives) Act, Chapter 287 nor under
the Trust Land Act. The Applicant adds finally that, the Ogieks have
still not benefited from the new constitutional provisions recognising
community land and therefore the violations are continuing to date.
According to the Applicant, the purpose of Article 21 of the Charter is to
facilitate development, economic independence and self-determination
of the post-colonial States as well as the peoples that comprise those
states, protecting them against multi-nationals as well as against the
State itself.
194. The Respondent argues that it has not violated the rights of
59 Art 69 of the Constitution of the Republic of Kenya (2010).

the Ogieks to freely dispose of their wealth and natural resources

as alleged by the Applicant, and that Article 21 of the Charter calls
for reconciliation between the State on the one hand and individuals
or groups/communities on the other on the ownership and control of
natural resources. For the Respondent, while the right of ownership
and control of natural resources belongs to the people, States are the
entities that would ultimately exercise the enjoyment of the right in the
interest of the people, and efforts are being made to maintain a delicate
balance between conservation, a people-centred approach to utilisation
of natural resources and the ultimate control of natural resources. The
Respondent emphasises that it has adopted a harmonised balancing
of the two concepts of the ownership and control of natural resources,
through focussing on access to, rather than ownership over natural
resources.
195. Article 21 of the Charter states that:

“1. All peoples shall freely dispose of their wealth and natural
resources. This right shall be exercised in the exclusive interest
of the people. In no case shall a people be deprived of it.
2. In case of spoliation, the dispossessed people shall have the
right to the lawful recovery of its property as well as to an
adequate compensation.
3. The free disposal of wealth and natural resources shall be
exercised without prejudice to the obligation of promoting
international economic cooperation based on mutual respect,
equitable exchange and the principle of international law
4. States Parties to the present Charter shall individually and
collectively exercise the right to free disposal of their wealth and
natural resources with a view to strengthening African Unity.
5. States Parties to the present Charter shall undertake to eliminate
all forms of foreign exploitation particularly that practised
by international monopoles so as to enable their peoples to
fully benefit from the advantages derived from their national
resources.”
196. The Court notes, in general terms, that the Charter does not
define the notion of “peoples”. In this regard, the point has been made
that the drafters of the Charter deliberately omitted to define the notion
in order to “permit a certain flexibility in the application and subsequent
interpretation by future users of the legal instrument, the task of fleshing
out the Charter being left to the human rights protection bodies.”60
197. It is generally accepted that, in the context of the struggle against
foreign domination in all its forms, the Charter primarily targets the
peoples comprising the populations of the countries struggling to attain
independence and national sovereignty61.
198. In the circumstances, the question is whether the notion “people”
used by the Charter covers not only the population as the constituent
elements of the State, but also the ethnic groups or communities
identified as forming part of the said population within a constituted
State. In other words, the question that arises is whether the enjoyment
of the rights unquestionably recognised for the constituent peoples of
the population of a given State can be extended to include sub-state
ethnic groups and communities that are part of that population.
199. In the view of the Court, the answer to this question is in the
affirmative, provided such groups or communities do not call into
question the sovereignty and territorial integrity of the State without
the latter’s consent. It would in fact be difficult to understand that the
States which are the authors of the Charter intended, for example,
to automatically recognise for the ethnic groups and communities
that constitute their population, the right to self-determination and
independence guaranteed under Article 20(1) of the Charter, which
in this case would amount to a veritable right to secession62. On the
other hand, nothing prevents other peoples’ rights, such as the right to
development (Article 22), the right to peace and security (Article 23) or
the right to a healthy environment (Article 24) from being recognised,
where necessary, specifically for the ethnic groups and communities
that constitute the population of a State.
200. In the instant case, one of the rights at issue is the right of peoples
to freely dispose of their wealth and natural resources guaranteed
under Article 21 of the Charter. In essence, as indicated above, the
Applicant alleges that the Respondent violated the aforesaid right
insofar as, following the expulsion of the Ogieks from the Mau Forest,
they were deprived of their traditional food resources.
201. The Court recalls, in this regard, that it has already recognised for
the Ogieks a number of rights to their ancestral land, namely, the right
to use (usus) and the right to enjoy the produce of the land (fructus),
which presuppose the right of access to and occupation of the land. In
60 Report of the Rapporteur pages 4 to 5, paragraph 13, cited in F Ouguergouz The

African Charter of Human and Peoples’ Rights. A Comprehensive Agenda for
Human Dignity and Sustainable Democracy in Africa, (2003) 205, note 682.
61 See paras 3 and 8 of the preamble to the Charter.
62 This interpretation is buttressed by the OAU’s adoption of Resolution AHG/R.S.
16(1) of July 1964 on the Inviolability of the Frontiers Inherited from Colonization.
so far as those rights have been violated by the Respondent, the Court
holds that the latter has also violated Article 21 of the Charter since the
Ogieks have been deprived of the right to enjoy and freely dispose of
the abundance of food produced by their ancestral lands.
H. Alleged violation of Article 22 of the Charter
202. The Applicant contends that the Respondent has violated the
Ogieks’ right to development by evicting them from their ancestral
land in the Mau Forest and by failing to consult with and/or seek the
consent of the Ogiek Community in relation to the development of
their shared cultural, economic and social life within the Mau Forest.
The Applicant states that the Respondent failed to recognise the
Ogieks’ right to development and as indigenous people, with the right
to determining development priorities and strategies and exercising
their right to be actively involved in developing economic and social
programmes affecting them and, as far as possible, to administering
such programmes through their own institutions. They contend that
failure on the part of the Respondent to give effect to these facets
of the right to development, constitutes a violation of Article 22 of the
Charter.
203. With regard to Article 10(2) of the Respondent’s Constitution, its
Vision 2030 and its budget statements being proof of development for
the Ogieks, the Applicant submits that, it is not a matter of whether or
not these instruments provide for the right to development, but rather
whether the Respondent has discharged its obligation to protect the
Ogieks’ right to development. According to the Applicant, this would be
by establishing a framework which provides for the realisation of this
right in its procedural and substantive processes, including consultation
and participation.
204. Furthermore, the Applicant contends that despite the provisions
of Article 1(2) of the Respondent’s Constitution which demonstrates its
willingness to consult on issues of development, the Respondent has
failed to state how many the representatives of the Ogieks sit in any of
the three or four tier electoral structures in the Respondent, that is, the
local government, County legislative bodies, Parliament and Senate,
or in any government decision making capacity.
205. The Respondent argues that it has not violated the right to
development of the Ogieks as alleged by the Applicant. It argues

that the Applicant has to show specific instances where development
has taken place without the involvement of members of the Ogiek
Community, or where development has not taken place at all, or where
members of the Ogiek Community have been discriminated against
in enjoying the fruits of development. The Respondent submits that
the Applicant has not demonstrated how it has failed in undertaking
development initiatives for the benefit of the Ogieks or how they have
been discriminated against and excluded in the process of conducting
development initiatives.
206. The Respondent maintains that its development agenda is
guided both by the will and determination of its government and by its
laws. On the consultative process leading to development initiatives
in the Mau Forest, the Respondent argues that consultation can
be achieved in diverse ways. It argues that in the present case, as
provided under Article 1(2) of the Constitution of Kenya, consultations
were held with the Ogieks’ democratically elected area representatives
and that the State has established several participatory task forces to
review the legal framework and reports applicable to the situation while
taking into account the views of the public. Finally, the Respondent
argues that its development agenda, that is, Vision 2030, its various
budget statements and Article 10(2) of its Constitution, provide that
the fundamental criteria for governance include equity, participation,
accountability and transparency. The Respondent avers that, it is the
responsibility of the Applicant to demonstrate that all these instruments
are at variance with development, more precisely that of the Ogiek
community.

“1. Allpeoples shall have the right to their economic, social and
cultural development with due regard to their freedom and
identity and in the equal enjoyment of the common heritage of
mankind.
2. States shall have the duty, individually or collectively, to ensure
the exercise of the right to development.”
208. The Court reiterates its view above with respect to Article 21
of the Charter that the term “peoples” in the Charter comprises all
populations as a constitutive element of a State. These populations
are entitled to social, economic and cultural development being part of
the peoples of a State. Accordingly, the Ogiek population, has the right
under Article 22 of the Charter to enjoy their right to development.
209. The Court considers that, Article 22 of the Charter should be
read in light of Article 23 of the UNDRIP which provides as follows:

“Indigenous peoples have the right to determine and develop
priorities and strategies for exercising their right to development.
In particular, indigenous peoples have the right to be actively
involved in developing and determining health, housing and
other economic and social programmes affecting them and, as
far as possible, to administer such programmes through their
own institutions.”
210. In the instant case, the Court recalls that the Ogieks have been
continuously evicted from the Mau Forest by the Respondent, without
being effectively consulted. The evictions have adversely impacted on
their economic, social and cultural development. They have also not
been actively involved in developing and determining health, housing
and other economic and social programmes affecting them.
211. The Court therefore holds that the Respondent violated Article
22 of the Charter.
I. Alleged violation of Article 1 of the Charter
212. The Applicant urges the Court to apply its own approach63 and
that of the Commission64 in respect of Article 1 of the Charter, that if
there is a violation of any or all of the other Articles pleaded, then it
follows that the Respondent is also in violation of Article 1.
213. The Respondent made no submissions on the alleged violation

of Article 1 of the Charter.
63 Tanganyika Law Society and The Legal and Human Rights Centre and Reverend
Christopher R. Mtikila v United Republic of Tanzania.
64 ACHPR Communications 147/95 & 149/96 Sir Dawda K. Jawara v Gambia (2000),
11 May 2000 para 46 13th Annual Activity Report 1999-2000; Communication 211/98
Legal Resources Foundation v Zambia (2001), paragraph 62; Communications
279/03-296/05 Sudan Human Rights Organisation & Centre on Housing Rights
and Evictions (COHRE) v Sudan (2009) at para 227 where the nature of Article 1
as expressed in Dawda Jawara and Legal Resources Foundation are succinctly
combined: The Commission concludes further that Article 1 of the Charter imposes
a general obligation on all State Parties to recognise the rights enshrined therein
and requires them to adopt measures to give effect to those rights; as such any
finding of violation of those rights constitutes a violation of Article 1.
214. Article 1 of the Charter declares that

“The Member States of the Organization of African Unity Parties
to the present Charter shall recognise the rights, duties and
freedoms enshrined in this Charter and shall undertake to adopt
legislative or other measures to give effect to them”.
215. The Court observes that Article 1 of the Charter imposes on State
Parties the duty to take all legislative and other measures necessary to
give effect to the rights and freedoms guaranteed in the Charter.
216. In the instant case, the Court observes that by enacting its
Constitution in 2010, the Forest Conservation and Management Act
No. 34 of 2016 and the Community Land Act, Act No. 27 of 2016,
the Respondent has taken some legislative measures to ensure
the enjoyment of rights and freedoms protected under the Charter.
However, these laws were enacted relatively recently. This Court has
also found that the Respondent failed to recognise the Ogieks, like
other similar groups, as a distinct tribe, leading to denial of access to
their land in the Mau Forest and the consequential violation of their
rights under Article 2, 8, 14, 17(2) and (3), 21 and 22. In addition to
these legislative lacunae, the Respondent has not demonstrated that it
has taken other measures to give effect to these rights.
217. In view of the above, the Respondent has violated Article 1 of
the Charter by not taking adequate legislative and other measures to
give effect to the rights enshrined under Article 2, 8, 14, 17(2) and (3),
21 and 22 of the Charter.
VIII. Remedies and reparations
A. Applicant’s submission
218. The Applicant contends that the remedies of restitution,

compensation, satisfaction and guarantees of non-repetition would
be most suitable to remedy the violations they have suffered by the
actions and omissions of the Respondent.
219. On restitution, the Applicant argues that the Ogieks are entitled
to the recovery of their ancestral land through delimitation, demarcation
and titling process conducted by the relevant Government authorities.
With regard to compensation, the Applicant argues that the Ogieks
should be granted adequate compensation for all the loss they have
suffered. With respect to satisfaction and guarantees of non-repetition,
the Applicant urges the Court to adopt measures including full recognition
of the Ogieks as an indigenous people of Kenya; rehabilitation of the
economic and social infrastructure; acknowledgment of its responsibility

within one year of the date of the judgment; publication of the official
summary of the judgment through a broadcaster with wide coverage
in the community’s region; and establishing a National Reconciliation
Forum to address long-term sources of conflict.
B. Respondent’s submission
220. On the issue of restitution, the Respondent contends that the Mau
Forest Complex is strictly a nature reserve, and that the Respondent is
obliged to protect and conserve it for the benefit of its entire citizenry
under its national laws as well as under the African Convention on
Conservation of Nature and Natural Resources.
221. On the issue of compensation, the Respondent submits that
the Ogieks have adopted modern lifestyles, and as they now exist,
they do not depend on hunting and gathering for their livelihood and
sustainability, and therefore they cannot claim to have sustained any
economic loss through lost opportunities. The Respondent reiterates
that evicting the Ogieks from the Mau Forest was done in fulfilment
of its national and international obligations, and therefore, the issue
of compensation does not arise, otherwise, States will be plagued
with compensation claims from their citizens in the fulfilment of their
international obligations arising from international instruments they
have acceded to or ratified.
C. The Court’s assessment
222. The Court’s power on reparations is set out in Article 27(1) of

the Protocol which states that: “if the Court finds that there has been
violation of a human and peoples’ rights, it shall make appropriate orders
to remedy the violation including the payment of fair compensation or
reparation”. Further, pursuant to Rule 63 of the Rules, “The Court shall
rule on the request for reparation submitted in accordance with, Rules
34(5) of these Rules, by the same decision establishing the violation
of a human and peoples’ rights or, if the circumstance so require, by a
separate decision”.
223. The Court decides that it shall rule on any other forms of
reparations in a separate decision, taking into consideration the
additional submissions from the Parties.
IX. Costs
224. Neither the Applicant nor the Respondent made claims as to

costs
225. The Court notes that Rule 30 of its Rules states that, “Unless
otherwise decided by the Court, each party shall bear its own costs.”
226. The Court shall rule on cost when making its ruling on other
forms of reparation.
227. For these reasons, the Court unanimously:
On jurisdiction
i. Dismisses the objection to the Court’s material jurisdiction to

hear the Application;
ii. Dismisses the objection to the Court’s personal jurisdiction to
iii. Dismisses the objection to the Court’s temporal jurisdiction to
iv. Declares that it has jurisdiction to hear the Application.
On admissibility
v. Dismisses the objection to the admissibility of the Application on

the ground that the Matter is pending before the African Commission
on Human and Peoples’ Rights;
vi. Dismisses the objection to the admissibility of the Application on
the ground that the Court did not conduct a preliminary examination of
the admissibility of the Application;
vii. Dismisses the objection to the admissibility of the Application on the
ground that the author of the Application is not the aggrieved party in the
complaint;
viii. Dismisses the objection to the admissibility of the Application on
the ground of failure to exhaust local remedies;
ix. Declares the Application admissible.
On the merits
x. Declares that the Respondent has violated Articles 1, 2, 8, 14

17(2) and (3), 21 and 22 of the Charter;
xi. Declares that the Respondent has not violated Article 4 of the
Charter;
xii. Orders the Respondent to take all appropriate measures within
a reasonable time frame to remedy all the violations established and to
inform the Court of the measures taken within six (6) months from the
date of this Judgment;
xiii. Reserves its ruling on reparations;
xiv. Requests the Applicant to file submissions on Reparations within
60 days from the date of this judgment and thereafter, the Respondent
shall file its Response thereto within 60 days of receipt of the Applicant’s
submissions on Reparations and Costs.
Onyachi and Njoka v Tanzania (merits) (2017) 2 AfCLR 65 65
Application 003/2015, Kennedy Owino Onyachi and Charles John

Mwanini Njoka v United Republic of Tanzania
Judgment, 28 September 2017. Done in English and French, the English
Judges: ORE, KIOKO, NIYUNGEKO, GUISSE, BEN ACHOUR, BOSSA
and MATUSSE
Two Kenyan men were tried, convicted and sentenced in Tanzania to
30 years imprisonment for armed robbery after being handed over to
Tanzania by Kenyan authorities. The two men complained of human
rights violations committed in both Kenya and Tanzania. The Court
held that it did not have jurisdiction over possible violations committed
in Kenya. With regard to the alleged violations in Tanzania, the Court
held that procedural irregularities in relation to an identification parade,
reliance on a single witness, lack of free legal representation, unjustified
delay in delivering copies of the judgment and re-arrest on same facts
after acquittal violated the African Charter.
Jurisdiction (material jurisdiction – no need to specify articles of the
African Charter, 36; evaluation of facts, 37, 38; constitutionality, 39;
personal jurisdiction – allegations against third state, 45, 124)
Admissibility (exhaustion of local remedies, 54-57; submission within
reasonable time, receipt of judgment, lay, incarcerated, indigent, 61-69)
Fair trial (extradition, 79; identification parade, 86-88; defence – alibi,
95; legal aid, 104-112; timely delivery of copies of judgment, 118-121)
Personal liberty and security (arbitrary arrest after acquittal, 132-137)
Cruel, inhuman or degrading treatment (incommunicado detention,
burden of proof, 142-146)
I. The Parties
1. The Applicants, Mr Kennedy Owino Onyachi and Mr Charles

John Mwaniki Njoka, are citizens of the Republic of Kenya. They are
convicted prisoners who are currently serving a sentence of thirty (30)
years’ imprisonment for the crime of aggravated robbery at the Ukonga
Central Prison in Dar es Salaam, United Republic of Tanzania.
2. The Respondent is the United Republic of Tanzania. The
Respondent became a State Party to the African Charter on Human
and Peoples’ Rights (hereinafter, referred to as “the Charter”) on 18
February 1984, and the Protocol on 7 February 2006; and deposited
the declaration accepting the competence of the Court to receive
cases from individuals and Non-Governmental Organizations on 29
March 2010.
3. The Application was brought by the Applicants on 7 January

2015. The Application reveals that the Applicants were first arrested
in Kenya on 30 November 2002, on suspicion of having committed
robbery in the United Republic of Tanzania. They remained in custody
until 20 December 2002, when they were arraigned before the Resident
Magistrate at the Nairobi Law Courts on charges of armed robbery.
4. Following a request in 2002 for the Applicants’ extradition to
Tanzania, the Resident Magistrate at the Nairobi Law Courts ordered
on 21 March 2003, that the Applicants be extradited to the United
Republic of Tanzania to answer armed robbery charges against them.
The Resident Magistrate then granted the Applicants leave to appeal
the order within 14 days.
5. On 22 March 2003, before the expiry of the 14 days’ time for
appeal against the order, the Applicants were bundled by Kenyan and
Tanzanian police straight into waiting Police cars and transported to
Tanzania. However, the relatives of the Applicants appealed on their
behalf against the decision of the Resident Magistrate, to the High
Court of Kenya. According to the Applicants, the Appellate Judge later
delivered his ruling on this application on 30 July 2003. The Applicants
did not avail the ruling of the appeal to this Court despite being
requested to do so.
6. On arrival at the Namanga border post, the Applicants were
received by a contingent of Tanzanian Police and media personnel
from the Independent Television Limited (ITV) and Tanzania Television
(TVT). The Applicants also allege that they were then immediately taken
to the Dar es Salaam Central Police Station on 22 March, 2003, where
identification parades were conducted on 25 March, 2003, by which
time their images were already published in various local newspapers
and television channels. The Applicants aver that this made it easier
for witnesses to identify them, as the latter had already seen them in
the local media.
7. On 26 March 2003 the Applicants were arraigned at the Kisutu
Resident Magistrate’s Court in Dar es Salaam and charged with two
counts in Criminal Case No. 111 of 2003: conspiracy to commit an
offence contrary to Section 384 and crime of armed robbery contrary to
Sections 285 and 286 of the Penal Code. On 30 March 2004 the case
number was changed to Criminal Case No. 834 of 2002.
8. On 11 March 2005 the Applicants were tried and acquitted by the
Kisitu Magistrate’s Court, but the Tanzanian Police re-arrested them
and detained them at the Central Police Station in Dar es Salaam.
The Applicants complain that they remained in the Police cells with
no food and were denied communication with anyone until 14 March
2005, when they were arraigned before Court on what they claim are
“trumped up and fabricated charges”. The new charges against them
were of (i) stealing, contrary to Section 265 of the Penal Code in Criminal
Case No. 399/2005 and (ii) Armed Robbery, contrary to Section 287
of the Penal Code in Criminal Case No. 400/2005. According to the
Applicants, these two charges had already been heard and determined
by the Kisutu Resident Magistrate’s Court in Dar es Salaam.
9. The Respondent then lodged an appeal in Criminal Appeal No.
125/2005 in the High Court of Tanzania at Dar es Salaam against the
Magistrate’s decision in Case No. 834/2002, challenging the Applicants’
acquittal .
10. On 19 December 2005 the High Court overturned the acquittal
of the Trial Magistrate, convicted the Applicants and sentenced them to
30 years’ imprisonment. The Applicants then lodged an appeal against
the conviction and sentence in Criminal Appeal No. 48 of 2006, in
the Court of Appeal. The Court of Appeal affirmed the conviction and
dismissed the appeal on 24 December 2009.
11. The Applicants were served copies of the judgment of the Court
of Appeal on 2 November 2011, almost 2 years after the dismissal of
their appeal.
12. On 9 June 2013, the 2nd Applicant filed at the Court of Appeal for
a request for extension of time to file for a review of both the conviction
and sentence in the Court of Appeal. The Applicant alleges that his
Application for extension of time to file the Application for review was
dismissed on 9 June 2014 on the ground that the review should have
been filed within 60 days from the date of judgment. This was in spite
of the fact that the Applicants received copies of the appeal Judgment
almost 2 years after the Court of Appeal delivered the judgment.
III. Alleged violations
13. On the basis of the aforementioned, the Applicants make the

following allegations:
“i. That they were held in custody for 3 weeks by the
authorities in the Republic of Kenya, in violation of their
basic rights, before being arraigned in Court.
ii. That they were deprived of their right of Appeal as the
Kenyan and Tanzanian Police transported them to
Tanzania on 22 March 2003 before they appealed to the
Kenyan High Court.
iii. That at the time the two Applicants were being extradited
to the United Republic of Tanzania, the Republic of Kenya
and the United Republic of Tanzania did not have an
extradition treaty between them.

iv. That the Kenyan Government, violated all accepted
principles of human rights and international law.
v. That the Respondent violated all accepted principles of
human rights and international law.
vi. That the Applicants were deprived of their liberty after they
were acquitted on 11 March 2005 in Case No. 834/200 at
the Kisutu Resident Magistrate’s Court in Dar es Salaam
by the authorities of the Respondent. That they were
detained at the Central Police Station in Dar es Salaam
by the authorities of the Respondent from 11 March 2005
to 15 March 2005 without food and denied communication
with anyone.”
That the conviction and sentence of thirty (30) years’ imprisonment was
unconstitutional and is contrary to Article 7(2) of the African Charter on
Human and Peoples’ Rights.
IV Summary of the procedure before the Court
14. The Application was filed on 7 January 2015.

15. On 25 February 2015, the Registry, pursuant to Rule 35(2)
and (3) of the Rules of Court (hereinafter, referred to as “the Rules”)
transmitted the Application to the Respondent State, the Chairperson
of the African Union Commission and to the Executive Council of the
Union, as well as to all the other States Parties to the Protocol.
16. The Registry also sent a copy of the Application to the Minister
of Foreign Affairs of the Republic of Kenya, pursuant to Rule 35(4)(b)
of the Rules, and invited the latter, should it wish to intervene in the
proceedings, to do so within thirty (30) days of receipt.
17. The Respondent filed its response on 31 July 2015.
18. During its 36th Ordinary Session held from 9 to 27 March 2015,
the Court instructed the Registry to request the Pan-African Lawyers`
Union (PALU) to provide legal assistance to the Applicants. By a
letter dated 16 April 2015, the Registry requested PALU to offer legal
representation to the Applicants.
19. By a letter dated 30 June 2015, PALU notified the Registrar and
the Respondent that PALU would represent the Applicants and by a
letter dated 4 August 2015, the Registrar transmitted a copy of the
case file to PALU.
20. By letter dated 25 February 2016, PALU filed the Reply to the
Response out of time and requested the Court to deem it as properly
filed, stating that the delay was caused by various unforeseen and
inevitable circumstances.
21. During its 41st Ordinary Session, held from 16 May to 3 June
2016, the Court granted leave to PALU as requested.
22. On 29 July 2016, the Registry transmitted a copy of the Reply to
the Respondent for information and advised the Parties that pleadings
were closed.
V. Prayers of the Parties
23. In their respective submissions, the Parties made the following

prayers.
On behalf of the Applicants,
The Applicants seek the following orders from the Court:

“1. A declaration that the Respondent State has violated
the Applicants` rights guaranteed under the Charter, in
particular, Articles 1 and 7
2. A declaration that the Applicants` right to a fair trial was
violated when their images were shown on television and
in newspapers before the identification parade was held.
3. A declaration that the testimony tendered by Prosecution
Witness (PW 8) was unlawful as evidence from the
identification parade should have been dismissed in its
entirety.
4. A declaration that the Respondent State violated Article
7 of the Charter by not providing legal aid at the Court of
Appeal.
5. An order that the Respondent State takes immediate steps
to remedy the violations throughout the trial especially at
the Appeal.
6. A declaration that the extradition process violated
international standards of the right to a fair trial by not
affording the Applicants the opportunity to appeal the
primary Court`s Extradition Order.
7. An order for reparations
8. Any other orders or remedies that this Court may deem
fit.”
On behalf of the Respondent State,
The Respondent prays the Court to order as follows, in respect of

jurisdiction and admissibility of the Application:
“I. That the Court has no jurisdiction to adjudicate over

this Application.
II. That the Applicants have no locus to file the Application
before the Court and hence, should be denied access to
the Court as per Articles 5(3) and 34(6) of the Protocol.
III. That the Application be dismissed as it has not met the
admissibility requirements stipulated under Rule 40(5) of
the Rules.
IV. That the Application be dismissed as it has not met the
the Rules.”
24. With regard to the merits, the Respondent requests the Court to
rule that
“i. the Government of the United Republic of Tanzania has
not violated accepted principles of Human Rights and
International law;
ii. the Government of the United Republic of Tanzania
abided by the rule of law during the extradition process.
iii. the Government of the United Republic of Tanzania has
not violated Article 3 of the Charter.
iv. the Government of the United Republic of Tanzania has
not violated Article 6 of the Charter.
v. the Government of the United Republic of Tanzania has
not violated Article 7(1) of the Charter.
vi. the Government of the United Republic of Tanzania has
not violated Article 7(2) of the Charter.
vii. the Applicants request for Reparations be denied.
viii. this Application be dismissed in its entirety.
ix. the Applicants are denied all reliefs sought.”
VI. Jurisdiction of the Court
25. Pursuant to Rule 39(1) of the Rules, the Court “shall conduct
preliminary examination of its jurisdiction …”
26. In its submissions, the Respondent raised objections to the
material and personal jurisdiction of the Court. Accordingly, the
Court shall first address these preliminary objections to establish its
competence to examine the instant matter.
A. Objections to material jurisdiction
i. Respondent’s submissions
27. The Respondent objects to the material jurisdiction of the Court

averring that neither Article 3(1) of the Protocol nor Rule 26(1)(a) of
the Rules allows the Court to sit as a court of first instance or as an
Appellate Court. The Respondent argues that the instant Application
contains allegations that require this Court to sit both as a first instance
and an appellate court.
28. The Respondent submits that, the Applicants are raising the
following allegations for the first time before this Court and, their
determination would require the Court to sit as a court of first instance:
“i. The allegation that the Tanzanian Government through
all its official actions violated all accepted principles of
human rights and international law;
ii. The allegation that the Respondent State violated Article
3 of the Charter;
iii. The allegation that the Respondent State violated Article
6 of the Charter by re-arresting the Applicants on 11
March 2005, after their acquittal by the trial Magistrate,
of charges of armed robbery and conspiracy to commit
crimes, and by detaining them incommunicado in a police
cell at the Central Police Station in Dar es Salaam for four
days without food;
iv. The allegation that the conviction and sentencing of the
Applicants to 30 years imprisonment by the High Court
is unconstitutional and contrary to Article 7(2) of the
Charter.”
29. The Respondent also avers that the allegation of the Applicants
that the identification parade was flawed with procedural irregularities
is a matter requiring the Court to sit as a “supreme appellate court”.
The Respondent argues that the Applicants are asking the Court to
adjudicate on an issue of evidence, which was already addressed and
concluded by the Court of Appeal of Tanzania.
30. Finally, the Respondent challenges the material jurisdiction of
the Court contending that the Applicants’ allegation that it “violated all
acceptable principles of human rights” is vague and does not disclose
any particular article alleged to have been violated.
ii. Applicants’ submissions
31. On their part, the Applicants argue that the Court has material
jurisdiction to deal with this Application. In this regard, the Applicants
contend that there have been violations of their fundamental human
rights as provided in the Constitution of the Respondent and the
Charter to which the Respondent is a State Party.
32. Responding to the Respondent’s objection that the Application
requires the Court to go beyond its jurisdiction and sit as an Appellate
Court, the Applicants submit that as long as the rights allegedly violated
are protected by the Charter or any other human rights instruments
ratified by the Respondent, the Court has jurisdiction.
33. In order to ascertain its material jurisdiction, the Court will

consider three of the preliminary objections raised by the Respondent:
the allegation that the conviction and sentence of the Applicants to 30
years’ imprisonment was unconstitutional and contrary to Article 7(2)
of the Charter; the allegation that the identification parade was flawed
with procedural irregularities is a matter that requires this Court to sit as
a “Supreme Appellate Court”; and the allegation that the Respondent
violated ‘all accepted principles of human rights’ “is vague” and does
not disclose any particular article alleged to have been violated.1
34. The Court notes that Article 3(1) of the Protocol provides that
the material jurisdiction of the Court extends to “all cases and disputes
submitted to it concerning the interpretation and application of the
Charter, the Protocol and other relevant human rights instruments
ratified by the State concerned.”
35. In this regard, the jurisprudence of the Court has, in the judgment
of Peter Chacha v The United Republic of Tanzania, established that:
“As long as the rights allegedly violated fall under the aegis of the Charter
or any other human rights instrument ratified by the State concerned, the
Court can exercise its jurisdiction over the matter.”2
36. The instant Application contains allegations of violations of

human rights protected by the Charter and other international human
rights instruments ratified by the Respondent, specifically, ICCPR.
1 The Court notes that the other preliminary objections of the Respondent concerning
the jurisdiction of the Court are pertinent to the admissibility of the Application and
hence, will be addressed in the admissibility section on admissibility.
2 Peter Joseph Chacha v The United Republic of Tanzania, Application No. 003/2014
judgment of 8 March 2014 (hereinafter referred to as Peter Chacha case), para 114
As such, the substance of the Application falls within the ambit of the
material jurisdiction of the Court. Accordingly, the preliminary objection
of the Respondent that the Application contains a vague allegation
disclosing no particular article of the Charter does not oust the subject
matter jurisdiction of the Court to examine the instant Application.
37. Regarding the argument of the Respondent that the Application
raises issues involving evaluation of evidence and challenges to the
length of penalty specified in the domestic law, matters which require
the Court to sit as a “Supreme Appellate Court”, this Court, in the matter
of Abubakari v Tanzania, held that:
“As regards, in particular, the evidence relied on in convicting the Applicant,
the Court holds that, it was indeed not incumbent on it to decide on their
value for the purposes of reviewing the said conviction. It is however of
the opinion that, nothing prevents it from examining such evidence as part
of the file evidence laid before it so as to ascertain in general, whether
consideration of the said evidence by the national Judge was in conformity
with the requirements of fair trial within the meaning of Article 7 of the
Charter in particular.”3
38. Consequently, in the instant case, the Court has the power to
examine whether the evaluation of facts or evidence by the domestic
courts of the Respondent was manifestly arbitrary or resulted in
a miscarriage of justice to the Applicants. The Court also has the
jurisdiction to investigate the manner in which the particular evidence
that resulted in the alleged violation of human rights of the Applicants
was collected and whether such process was carried out with adequate
safeguards against arbitrariness.
39. With regard to the Applicants’ submission that the penalty
imposed by the domestic legislation for armed robbery violates the
Constitution of the Respondent and the rights enshrined in Article 7(1)
of the Charter, the Court observes that it does not have jurisdiction
to examine the constitutionality of domestic legislation. However, the
Court can examine the extent to which such legislation violates the
provisions of the Charter or other international human rights instrument
ratified by the Respondent. Doing so would not require this Court to sit
as a Supreme Court of Appeal because the Court is not applying “the
same law as the Tanzanian national courts, that is, Tanzanian law.”4
The Court rather applies exclusively “the provisions of the Charter
and any other relevant human rights instrument ratified by the State
3 Mohamed Abubakari v The United Republic of Tanzania, Application No. 007/2013

judgment of 20 May 2016, para. 26 (hereinafter referred to as Abubakari case)
4 Ibid, para 28.
concerned”.5
40. In view of the above, the Respondent`s preliminary objection to
the material jurisdiction of the Court on these grounds is dismissed and
therefore, the Court finds that it has material jurisdiction to examine
this Application.
B. Personal jurisdiction
i. Respondent’s submissions
41. The Respondent challenges the Court’s personal jurisdiction

stating that the Application contains allegations against a State, the
Republic of Kenya, which has not made the declaration accepting the
Court’s competence to receive complaints from individuals and NGOs
as required by Article 34(6) of the Protocol.
ii. Applicants’ submissions
42. On their part, the Applicants argue that the Application is not
filed against Kenya, and that the allegations against the Republic of
Kenya are made to provide a full narrative of events as they unfolded
in relation to the case.

43. The Court notes that the Application is brought against the
Republic of Tanzania, which is a State Party to the Charter and the
Protocol, and which deposited the declaration in terms of Article 34(6)
of the Protocol on 29 March 2010, accepting the competence of the
Court to receive cases from individuals and NGOs filed against the
Respondent.
44. Concerning those allegations that implicate the Republic of
Kenya, the Court observes that the Republic of Kenya has not made
the declaration required under Article 34(6) of the Protocol allowing
individuals to directly file an application before this Court. In this regard,
the Court notes that the Registry of the Court has, in accordance with
Rule 35(2)(b) and (4)(b) of its Rules, invited the Republic of Kenya
to intervene in the case, if it so wishes, since the Applicants are
its nationals, but the Republic of Kenya did not do so and in these
circumstances, the Court lacks personal jurisdiction to entertain
5 Ibid.
allegations against Kenya.

45. The Court observes that its lack of competence on some
allegations of the Applicants directed to the Republic of Kenya does not
prevent it from proceeding with the examination of this Application and
address those allegations raised against the Respondent. Articles 5(3)
and 34(6) of the Protocol empower the Court to examine allegations
brought before it in so far as these allegations involve the Respondent,
which has deposited the required declaration.
46. In view of the above, the Respondent`s preliminary objection to
the competence of the Court on the basis that the present Application
contains allegations which implicate the Republic of Kenya is dismissed
and the Court finds that it has personal jurisdiction to examine the
allegations against the Respondent in the instant Application.
C. Other aspects of jurisdiction
47. With regard to the other aspects of its jurisdiction, the Court
notes:
“i. that it has temporal jurisdiction since the alleged violations are
continuous in nature, the Applicants having remained convicted
on grounds which they believe are flawed by irregularities [see
the Court’s jurisprudence in the Zongo case];6
ii. that it has territorial jurisdiction in as much as the facts of the
case occurred on the territory of a State Party to the Protocol, ie
the Respondent State.”
48. In view of the foregoing observations, the Court finds that it has
jurisdiction to examine this Application.
VII. Admissibility of the Application
49. The admissibility requirements before the Court are provided in

Articles 50 and 56 of the Charter, Article 6(2) of the Protocol and Rules
39 and 40 of the Rules. These provisions mandate the Court to conduct
a preliminary examination of an Application in accordance with Article
50 and 56 of the Charter. Rule 40 of the Rules provides as follows:
“Pursuant to the provisions of Article 56 of the Charter… applications to
the Court shall comply with the following conditions:
“1. disclose the identity of the Applicant notwithstanding the latter’s

2. comply with the Constitutive Act of the African Union or the
6 See African Court especially in the Matter of Zongo and Others v Burkina Faso
(Preliminary Objections) Judgment of 21 June 2013, paras 71 to 77.
Charter;
3. do not contain any disparaging or insulting language;
4. are not based exclusively on news disseminated through the
mass media;
5. are filed after exhausting local remedies, if any, unless it is
6. are filed within a reasonable period from the time local remedies
7. do not raise any matter or issues previously settled by the
Parties in accordance with the principles of the Charter of the
United Nations, the Constitutive Act of the African Union, the
provisions of the Charter or of any other legal instrument of the
African Union”.
50. In its Response, the Respondent raises objections concerning
two of the above conditions, namely, the requirements of exhaustion of
local remedies and the time limit for seizure of the Court.
A. Objection based on non-exhaustion of local remedies
i. Repondent’s submission
51. The Respondent argues that this Application fails to meet

the requirement of Article 56(5) of the Charter. It contends that all
allegations of violation of the rights of the Applicants are being raised
and brought to its notice for the very first time in the instant Application,
although local avenues of redress existed.
52. In this regard, the Respondent asserts that the Applicants had
the possibility of lodging a petition regarding the alleged violations
of their constitutional rights before the High Court pursuant to the
Basic Rights and Duties Act No.9, Chapter 3, 2002. According to the
Respondent, the Applicants should have utilised these available local
avenues before approaching the Court. The Respondent adds that the
Court is not a Court of first instance, but a Court of last resort.
53. The Applicants, in their Reply, argue that the local remedies
indicated by the Respondent are extra-ordinary remedies, which,
pursuant to the jurisprudence of the Court, need not be exhausted.
54. The Court notes that six of the allegations made by the
Applicants relating to: the alleged violation of ‘all accepted principles
of international law’; alleged violation of the right to equality before
the law and equal protection of the law; the re-arrest of the Applicants
after their acquittal; the incommunicado detention of the Applicants
following their re-arrest; the failure of the Respondent to give copies
of judgments of national courts in due time and the non-provision of
legal assistance were not explicitly raised in the domestic proceedings.
These are matters that are being raised for the first time in this Court.
However, these allegations happened in the course of the domestic
judicial proceedings that led to the Applicants’ conviction and sentence
to thirty (30) years’ imprisonment. They all form part of the “bundle
of rights and guarantees” that were related to or were the basis of
their appeals. The domestic authorities thus had ample opportunities
to address these allegations even without the Applicants having raised
them explicitly. It would therefore be unreasonable to require the
Applicants to lodge a new application before the domestic courts to
seek redress for these claims7
55. With regard to the other two claims relating to the procedural
irregularities claimed to have existed in the identification parade and the
alleged violation of the Applicants’ presumption of innocence contrary
to Article 7 of the Charter, the records available before the Court show
that the Applicants raised these matters before the domestic courts.8
Therefore, the Applicants have exhausted local remedies with respect
to such claims.
56. Furthermore, the jurisprudence of this Court has established that
the requirement of exhaustion of local remedies is applicable only with
respect to ordinary, available and efficient judicial remedies but not
extraordinary or non-judicial remedies. In this regard, the Respondent
alleges that the Applicants could have filed a constitutional petition to
the High Court before they bring their matter to this Court. On this
issue, this Court has held that the said constitutional review is “not
common, that it is not granted as of a right and that it can be exercised
only exceptionally … and is available as extraordinary remedy” in the
Respondent State, thus, the Applicant was not required to pursue it.9
7 Alex Thomas v The United Republic of Tanzania, Application No. 005/2013,

Judgment of 20 November 2015 (hereinafter referred to as Alex Thomas case),
paras 60-65.
8 Judgment of High Court of Tanzania, p 250.
9 Abubakari Case, para 72.
In the same vein, it was not necessary for the Applicants in the instant
Application to approach the High Court to seek constitutional redress
for the violations of their rights because such remedy was extraordinary.
57. In view of the foregoing, the Court therefore decides that the
requirement of exhaustion of local remedies is satisfied in the instant
Application in terms of Article 56(5) of the Charter.
B. Objection based on the alleged failure to file the

Application within a reasonable time
i. Respondent’s submission
58. The Respondent submits that the Application should be found to

be inadmissible on the ground that it was not filed within a reasonable
time after exhaustion of local remedies. The Respondent contends
that the Applicants received the Court of Appeal’s judgment on 19
December 2005 (sic) and the Respondent deposited the declaration
in terms of Article 34(6) of the Protocol on 29 March 2010. According
to the Respondent, reckoned from the date when the Respondent
deposited its declaration, it was after four (4) years and two (2) months
that the Application was filed before the Court on 7 January 2015.
59. With regard to the second Applicant, the Respondent argues
that the decision on his Application for review of the Court of Appeal’s
judgment was delivered on 12 June 2013 and as the Respondent had
already accepted the individual complainant mechanism under Article
34(6) of the Protocol on 29 March 2010, this date, that is, 12 June
2013, should be the relevant date to calculate the time under Article
56(6) of the Charter. On this basis, the Respondent submits that three
(3) years and two (2) months lapsed when the Application was filed,
which according to the Respondent is not a reasonable time.
ii. Applicants’ submission
60. On their part, the Applicants argue that the Court of Appeals’
judgment was delivered on 24 December 2009, but the copies of the
judgment were served on them about two years later, on 2 November
2011. Relying on the Court’s jurisprudence,10 the Applicants contend
that the assessment of reasonableness of the time under Article 56(6)
of the Charter depends on the circumstances of each case, and in
the present case, given that the Applicants are both lay, indigent,
10 Zongo and others case (Preliminary Objections), para 121.

and incarcerated persons without the benefit of legal education or

assistance, their particular circumstances provide sufficient grounds
for this Application to be admissible.
61. The Court notes that Article 56(6) of the Charter does not indicate
a precise timeline in which an Application shall be brought to this Court.
Its mirror provision in the Rules, that is, Rule 40(6) simply provides for
“reasonable time from the date local remedies were exhausted or from
the date set by the Court as being the commencement of the time limit
within which it shall be seized of the matter.” It is therefore within the
discretion of the Court to determine the reasonableness of the time in
which an Application is filed.
62. On several occasions, this Court has emphasized that “whether
an Application has been filed within reasonable time after exhaustion
of local remedies is decided on a case by case basis depending on
the circumstances of each case.”11 The Court has also held that when
domestic remedies were exhausted before a State made its declaration
under Article 34(6) of the Protocol, reasonable time under Article
56(6) of the Charter shall be reckoned from the date the Respondent
deposited the instrument of its declaration.12
63. In the instant case, the Court notes that the judgment of the
Court of Appeal in Criminal Appeal No. 48 of 2006 was delivered on 24
December 2009 and that the Applicants received the decision of the
Court of Appeal only on 2 November 2011. The Court also notes that
the second Applicant’s application for review of the Court of Appeal
decision was dismissed by the Court of Appeal on 9 June 2014. There
is no evidence on record showing that the first Applicant also pursued
a similar Application for review.
64. Although the judgment of the Court of Appeal was rendered
on 24 November 2009 both Applicants received the copies of the
judgment only on 2 November 2011. With respect to the first Applicant,
the relevant time should thus run from this date when he received
copies of the judgment. From this date until the date the Court was
seized of the matter, that is, 7 January 2015, about three (3) years and
two (2) months had lapsed for the first Applicant.
65. On the other hand, as the second Applicant opted to pursue the
application for review proceeding in the Court of Appeal, the date on
which his Application for review was dismissed, that is, 9 June 2014,
11 Ibid, see also Peter Chacha case, para 141, Abubakari case, para 91.
12 Alex Thomas case, para 73.
should be the relevant date to assess reasonableness under Article

56(6). Accordingly, from this date, about seven months had lapsed until
the date when the Application was filed before the Court.
66. The key issue for the Court to determine is whether the three
years and two months period for the first Applicant and the seven
months’ time for the second Applicant are, in view of the circumstances
of the case, to be considered as reasonable in terms of Rule 40(6) of
the Rules.
67. With respect to the second Applicant, given that he is lay,
incarcerated and indigent person with no legal assistance, the Court
holds that seven months period is not unreasonable.
68. Regarding the first Applicant, the Court observes that three years
and two months’ time is relatively long to bring an Application to the
Court. However, like the second Applicant, he is also lay, incarcerated
and indigent person without the benefit of legal education and legal
assistance until this Court assigned PALU to provide him with pro bono
legal representation services. In view of this, with respect to the first
Applicant, too, the Court finds that the time in which the Application
was filed is reasonable.
69. The Court thus, finds that the filing of the Application was done
within a reasonable time in terms of Article 56(6) of the Charter as
restated in Rule 40(6) and therefore, that the Application meets this
criterion.
C. Admissibility requirements that are not in contention

between the Parties
70. The requirements regarding the identity of Applicants, the

language used in the Application, compliance with the Constitutive Act
of the African Union, the nature of the evidence and the non bis in idem
principle (Rule 40(1), 40(2), 40(3), 40(4), 40(7) of the Rules) are not in
contention between the Parties.
71. The Court also notes, for its part, that nothing in the records
submitted to it by the Parties suggests that any of the above
requirements has not been met in the instant case.
72. Consequently, the Court holds that the requirements under
consideration in this regard have been fully met and concludes that the
Application is admissible.
VIII. On the merits
73. The Applicants` allegations relate to violations of Articles 1, 3, 5,

6 and 7 of the Charter. The Court now makes an assessment of each
of these alleged violations, the Respondent’s responses thereto and
the merits of the Parties’ claims. In line with the sequence of events
which gave rise to the various alleged violations, the Court deems it
appropriate to examine first those allegations relating to Article 7 of the
Charter.
A. Allegations of violations of the right to a fair trial under

Article 7 of the Charter
74. In relation to Article 7, of the Charter, the allegations of the

Applicants have several prongs, which are treated separately below.
i. Allegation regarding illegal extradition
a. Applicants’ submissions
75. The Applicants submit that they were extradited from Kenya
unlawfully as there was no extradition treaty between Kenya and
Tanzania. They also allege that they were prevented from exercising
their rights of appeal following the order of extradition issued by the
Nairobi Law Court on 22 March 2003 as they were immediately taken
to the United Republic of Tanzania by a contingent of both Kenyan and
Tanzanian police.
b. Respondent’s submissions
76. On its part, the Respondent avers that the extradition of the
Applicants was not illegal as it was carried out in accordance with
the Extradition Acts of both countries on a reciprocal basis. The
Respondent annexed a document titled the “Extradition Act, 1965”
showing an extradition agreement between the Respondent and the
Republic of Kenya. On this basis, the Respondent contends that this
allegation lacks merit and that it should be dismissed.
77. The Court notes that the Applicants` complaint in respect of their
extradition has two related facets: first, the claim that the Applicants
were extradited without a pre-existing extradition agreement between
the Respondent and the Republic of Kenya. Second, the allegation
that the Applicants were denied their right to appeal against the
extradition order because of the swift implementation of the order by a
joint Kenyan and Tanzanian Police force.
78. However, the Court recalls its earlier finding that its jurisdiction
is only limited to allegations involving the responsibility of the

Respondent, as the Republic of Kenya has not made a declaration
allowing individuals and NGOs to access this Court and is not party to
these proceedings.
79. The Court observes that it is the Republic of Kenya which
extradited the Applicants and the Respondent may not be held
responsible for the conduct of the Republic of Kenya in the course
of the extradition. Therefore, the allegation of the Applicants that they
were extradited unlawfully and that their extradition violated their right
to appeal under Article 7(1)(a) of the Charter is hereby dismissed.
ii. Alleged violations relating to the identification parade
80. The Applicants allege that the identification parade exercise of 25

March 2003, was carried out after their pictures and descriptions taken
by ITV and TVT media, the day before at the Namanga border, were
in most of the local newspapers and had been aired by different TV
channels in Tanzania. The Applicants contend that this made it easier
for some witnesses to identify them, and therefore, the identification
parade was null, as it was not carried out following standard procedures.
81. On its part, the Respondent argues that the identification evidence
was highly scrutinized by the Court of Appeal in Criminal Appeal No.
48 of 2006, that the Court of Appeal discarded any evidence that was
not watertight, and only admitted the identification evidence that met
the standard of “proof beyond reasonable doubt”. The Respondent
submits that this allegation lacks merit and should be dismissed.
82. Article 7(1) of the Charter provides as follows:

“Every individual shall have the right to have his cause heard. This
comprises:
a. The right to an appeal to competent national organs against acts

of violating his fundamental rights as recognized and guaranteed
by conventions, laws, regulations and customs in force;
b. The right to be presumed innocent until proved guilty by a
competent court or tribunal;
c. The right to defence, including the right to be defended by
counsel of his choice;

d. The right to be tried within a reasonable time by an impartial
court or tribunal.”
83. From the submissions of both Parties, the main issue for
determination is whether the identification parade that led to the
conviction of the Applicants was conducted in manner contrary to the
Charter or other international human rights standards.
84. From the records available before it, the Court notes that the only
evidence on which the Court of Appeal relied to sustain the conviction
of the Applicants by the High Court is the testimony given by an eye
witness (PW 8) who claimed to have identified the Applicants during
the identification parade.13
85. The Court also notes that the witnesses who participated in the
identification parade have, while providing their testimony, indicated
that they did not see the Applicants on TV before the date of the said
parade. However, the Applicants further allege that their images were
disseminated not only on TV but also through newspapers before the
parade, which the Respondent has not directly refuted.
86. It is a matter of common sense that in criminal proceedings,
identification parade is not necessary and cannot be carried out if
witnesses previously knew or saw a suspect before the identification
parade. The Court notes that this is also the practice in the jurisdiction
of the Respondent State.14
87. In the instant case, the records of both the High Court and the
Court of Appeal do not show that this requirement was fulfilled. Although
some of the witnesses provided affidavits stating that they had not
watched TV before the identification parade, neither of them (including
PW 8 whose only testimony was used to sustain conviction) clearly
stated that he/she did not see the images of the Applicants before the
said parade in local newspapers. This implies that the identification
parade was conducted despite the fact that the witnesses may have
had a chance to see the Applicants in local newspapers.
88. In this regard, the Respondent has not supplied evidence
showing that the domestic courts took measures to verify whether or
not the witnesses read newspapers.15 In light of the probability that
witnesses may have seen the Applicants on local TV channels and
13 Appeal judgment, Court of Appeals, p. 20

14 Republic v Mwango Manaa (1936) 3 East African Court of Appeals 29. See also
the Police General Order (PGO) No. 232 of Tanzania. One of the conditions to be
satisfied for a proper identification parade is that the witnesses shall not see the
accused before the parade.
15 Rejoinder, p.9.
newspapers, the safeguards which applied in the assessment of the

evidence were inadequate.16 Given that the conviction of the Applicants
depended only on evidence from a single witness testimony obtained
during this identification parade, there is an additional reason to doubt
the context in which they were convicted. In these circumstances, the
Court concludes that the procedural irregularities in the identification
parade affected the fairness of the Applicants’ trial and conviction.
89. The Court, therefore, holds that there was a violation of the right
to a fair trial of the Applicants under Article 7(1) of the Charter.
iii. The allegation concerning the defence of alibi
a. Applicants’ submission
90. The Applicants argue that their right to respect for the
presumption of innocence under Article 7(1)(b) of the Charter (sic)
was violated because both the Court of Appeal and the High Court
arbitrarily rejected their defence of alibi.17
91. The Applicants complain that they submitted evidence attesting
that they had never been to Tanzania before their extradition and they
were in Kenya on the day and at the time the crime allegedly was
committed. The Applicants assert that both the High Court and the
Court of Appeal also acknowledged, in their respective judgments,
that the passports of the Applicants show nothing suggesting their
travel to Tanzania on the day of the crime. The Applicants allege that,
this notwithstanding and even though no corroborating evidence was
adduced, both Courts disregarded their defence of alibi on a wrong
assumption that the Applicants could have used illegal routes (“panya
routes”) (to enter Tanzania and this would not have been reflected on
their passports.
b. Respondent’s submission
92. The Respondent has not made any submissions on this

allegation.
93. The Court notes that an alibi is an important instrument of
16 In the same sense, Abubakari case, paras 181- 184.

17 Rejoinder p. 9
evidence for one’s defense. The defence of alibi is implicit in the right
of a fair trial and should be thoroughly examined and possibly set
aside, prior to a guilty verdict.18 In its judgment in Mohamed Abubakari
v Tanzania, this Court observed that:
“Where an alibi is established with certitude, it can be decisive on the
determination of the guilt of the accused. This issue was all the more
crucial especially as, in the instant case, the indictment of the Applicant
relied on the statements of a single witness, and that no identification
parade was conducted.”19
94. In the present case, the records of the domestic judicial

proceedings clearly evince that the Applicants had invoked an alibi
during their trial, and the domestic Courts of the Respondent indeed
considered the issue. The Court of Appeal specifically addressed
the matter and rejected the defence after weighing it up vis-à-vis the
testimony given by the witness PW 8 and found that this witness’s
testimony was strong enough to dispel the defence of alibi raised by
the Applicants.20
95. The Court however recalls its finding above that the testimony
of the single Prosecution Witness (PW8) was obtained following an
identification parade which was marred by procedural irregularity.
Therefore, the conviction of the Applicants relying solely on this single
witness (PW8)’s testimony and on the basis of an uncorroborated
assumption that the Applicants might have used other illegal
(“panaya”) routes to enter Tanzania did not amount to due and serious
consideration of the Applicants’ alibi defence and thus, violated their
right to defence under Article 7(1)(c) of the Charter.
iv. The allegation relating to the Applicants’ conviction

and sentencing to 30 years’ imprisonment
96. The Applicants allege that their conviction and sentencing to

a 30-years imprisonment term was unconstitutional and contrary to
Article 7(2) of the Charter.
18 Abubakari judgment, para 192.

19 Ibid, para 191.
20 See Court of Appeals Judgment, pp 20-22.
97. The Respondent denies the Applicants’ allegations and submits

that the conviction and sentencing of the Applicants was based on
Sections 285 and 286 of the Respondent’s Penal Code Cap 16 (which
define the offences of robbery and armed robbery), and the Minimum
Sentences Act of 1972 as amended by Act No 10 of 1989 and later
by Act No. 6 of 1994 (which provides the punishment of the offences
of robbery and armed robbery). It submits that the conviction and
sentencing of the Applicants were done according to the Respondent’s
applicable laws and therefore not contrary to the Constitution and
Article 7(2) of the Charter. The Respondent also adds that, if the
Applicants are complaining of the length of penalty for armed robbery,
the Court does not have the authority to examine the constitutionality
of the length of a punishment stipulated for a crime in its domestic
legislation.
98. The Court observes from the particulars of the case, that
with regard to the length of the imprisonment imposed on them, the
Applicants simply assert that their sentence to 30 years imprisonment
violates the Constitution of the Respondent and Article 7(2) of the
Charter. Article 7(2) of the Charter provides that:
“No one may be condemned for an act of omission, which did not constitute
a legally punishable offence at the time it was committed. No penalty may
be inflicted for an offence for which no provision was made at the time it
was committed. Punishment is personal and can be imposed only on the
offender.”
99. It emerges from the file that the relevant question at stake is
whether the penalty to which the Applicants were sentenced on 19
December 2005 and upheld on 24 December 2009 was not provided
for in the law.
100. The records before this Court indicate that the armed robbery for
which the Applicants were convicted was committed on 5 November
2002. Following their extradition to the Respondent on 24 March 2003,
the Applicants were charged at the Resident Magistrate`s Court of Dar
es Salaam at Kisutu for crimes of armed robbery and conspiracy to
commit crimes contrary to Sections 285 and 286 of the Penal Code as
amended by Act No. 10 of 1989. Both crimes were defined in the Penal
Code and the amending Act. According to Section 286 of this Penal
Code a person convicted of armed robbery is liable to a penalty of
life imprisonment with or without corporal punishment. Section 5(b) of
the Minimum Sentences Act of 1972 as amended by the 1994 Written
Laws Amendment, also prescribes that the minimum sentence for the
said offence is thirty (30) years. The two provisions read together show
that the applicable penalty for armed robbery is a minimum of thirty
(30) years imprisonment.
101. It follows that the Applicants were convicted and punished on the
basis of legislation that existed before the date of commission of the
crime, that is, 5 November 2002 and the punishment imposed on them
was also prescribed in the same legislation. The Applicants’ allegation
that their conviction and penalty violates the Charter thus lacks merit
and the Court therefore finds that there was no violation of Article 7(2)
of the Charter.
v. The alleged violation relating to free legal aid
102. In their submissions, the Applicants aver that their rights

protected under Article 7(1)(c) of the Charter were violated because
they were not given legal assistance in the Court of Appeal, although
they were lay, indigent and incarcerated persons facing offences
carrying heavy sentences. They further claim that the non-provision of
legal aid violated the rule specified in many international instruments,
including soft laws, which impose obligations on the Respondent to
afford legal assistance.
b. Respondents’ submissions
103. The Respondent has not responded to this allegation.
104. The Court notes that the Charter does not explicitly provide
for the right to legal assistance. However, in its previous judgment in
the matter of Alex Thomas v The United Republic of Tanzania, this
Court stated that free legal aid is a right implicit in the right to defence
enshrined under Article 7(1)(c) of the Charter. In the same case, the
Court identified two cumulative conditions required for an accused
person to be eligible for the right of legal assistance: indigence and the
interests of justice.
105. In assessing these conditions, the Court considers several
factors, including (i) the seriousness of the crime, (ii) the severity of
the potential sentence; (iii) the complexity of the case; (iv) the social
and personal situation of the defendant and , in cases of appeal,
the substance of the appeal (whether it contains a contention that

requires legal knowledge or skill), and the nature of the “entirety
of the proceedings”, for example, whether there are considerable
disagreements on points of law or fact in the judgments of lower
courts.21
106. The Court observes that, as long as the conditions which would
warrant legal assistance exist, free legal assistance should be made
available in all trial and appellate proceedings
107. In the instant case, the Court notes that the Applicants were
represented by lawyers both at the trial Magistrate`s Court and the
High Court, although from the records of the case file it is not clear
if the lawyers were contracted by the Applicants themselves or by
the Respondent.22 Thus, it was only in the Court of Appeal that the
Applicants were not represented. The issue that shall therefore be
addressed is whether the conditions that justify the provision of legal
assistance were available during the appellate proceedings at the
Court of Appeal.
108. With regard to the first condition of indigence, the Respondent
has not disputed the claim of the Applicants that they are indigent. The
Court thus considers this requirement as having been met.
109. With respect to the second requirement that the interest of justice
must warrant the provision of legal assistance, the Court considers
that the crime of armed robbery that the Applicants were convicted of
was serious and the 30 years’ imprisonment that they were sentenced
to was severe with grave repercussions on the right to liberty of the
Applicants.
110. The case further contains numerous complex legal and factual
questions (involving 22 prosecution and 10 defense witnesses) that
require considerable legal knowledge and technical pleading skills,
which ordinary and lay individuals, as the Applicants are, do not often
have. In this regard, the Court notes that, in the course of the domestic
proceedings, the trial Magistrate Court and the High Court made
divergent findings both in law and fact. Whereas the trial magistrate
acquitted the Applicants, the High Court reversed the acquittal and
convicted the Applicants. Furthermore, although the Court of Appeal
confirmed the decision and sentence of the High Court, it differed in its
reasoning. All these confirm the complexity of the case.
21 Alex Thomas v The United Republic of Tanzania judgement, para. 118. Abubakari
case, paras. 138-139. See also Case of Granger v The United Kingdom Application
no. 11932/86, European Court of Human Rights, judgment of 28 March 1990, para
44.
22 Judgment of Resident Magistrate`s Court at Kisutu, Dar es Salaam, p 2, Judgment
of the High Court of Tanzania, Dar es Salaam, p 2.
111. In these circumstances, the Court is of the view that the interest
of justice made the provision of free legal representation particularly
indispensable in the appellate proceedings of the Court of Appeal.
112. The Court thus concludes that the failure of the Respondent to
provide the Applicants with free legal aid in the Court of Appeal was a
violation of their right to defense under Article 7(1)(c) of the Charter.
vi. Allegation concerning the delay in the delivery of

copies of the judgment
a. Applicants’ submission
113. The Applicants submit that their right to a fair trial was violated by
the Respondent’s failure to provide them with copies of the judgment
of the Court of Appeal in Criminal Appeal No. 48 of 2006 until about
two years later. They contend that the delay led to their inability to
file a petition for a review of the Appeal Court’s judgment, and the
subsequent dismissal of their Application for extension of time to file a
petition for review.
114. The Respondent admits that the judgment in Criminal Appeal No.
48 of 2006 was delivered on 24 December 2009 and that the Applicants
received the decision of the Court of Appeal only on 2 November 2011.
The Respondent also concedes that the time in which the Applicants
could have lodged a request for review of the judgment had already
expired when the Applicants received the copies of the said judgment.
115. Nevertheless, the Respondent argues that the reason for the
dismissal of the 2nd Applicant’s application for extension of time to file
a review was not based on the lapse of time, but on the merits of the
application, which according to the Judge of the Court of Appeal, did
not warrant the granting of the extension of time.
116. From the submissions of the Parties, the Court deduces that the
matter in dispute here is whether the delay in the delivery of copies of
judgment of the Court of Appeal affected the right of the Applicants’
right to request for review of the judgment and whether this constitutes
a violation of their right to have one’s cause heard, which is a fair trial
right stipulated under Article 7(1) of the Charter.
117. The Court observes that the right of an individual to have his
cause heard includes a set of other rights listed under Article 7(1) of
the Charter and other international human rights treaties ratified by
the Respondent. The term “comprises” in Article 7(1) of the Charter
predicates that the list is not exhaustive and the right to be heard
may also include other entitlements available for individuals both in
international law and the domestic law of the concerned State. In
the instant case, the Applicants have had appeals heard by the High
Court and Court of Appeal of the Respondent. The national law further
provides for the possibility of a review of the decision of the Court of
Appeal in the event that a decision is tainted by procedural irregularities,
which have caused injustice to a party.23
118. A party would not be in a position to lodge a meaningful application
for a review of a particular judgment unless it is in possession of
copies of the judgment that it seeks to get reviewed. In this regard, the
timely delivery of copies of a judgment is an important consideration
especially in circumstances where a considerable delay affects the
right of individuals to pursue possible redress available in the domestic
system. In Alex Thomas v. the United Republic of Tanzania, this Court
held that:
“It was the responsibility of the Courts of the Respondent to provide the
Applicant with the Court record he required to pursue his appeal. Failure
to do so and then maintain that the delay in the hearing of the Applicant’s
appeal was the Applicant’s fault is unacceptable. …, the Applicant made
several attempts to obtain the relevant records of proceedings but the
judicial authorities unduly delayed in providing him with these records.”24
119. The Court notes that in Alex Thomas v Tanzania, the delay was
related to the provision of court records to pursue an appeal. In contrast,
in this instant case, the delay relates to the provision of copies of
judgments to enable the Applicants to pursue an application for review.
The Court considers that the principle laid down in Alex Thomas v
Tanzania equally applies in this case in that the right of Applicants to
pursue possible redress available in the domestic system was affected
by the delay in providing them with copies of the judgment.
120. The Court accordingly considers that the failure of the Respondent
to provide the Applicants with copies of the judgment of the Court of
Appeal for almost two years, without adducing any justification, is an
inordinate delay. The Court also holds that the delay certainly affected
the right of the Applicants to request for review within the time specified
23 See Section 66(1) of the Court of Appeal Rules of the Court of Appeal of Tanzania.
24 Alex Thomas case, para 109. It is within this general spirit that the African
Commission on Human and Peoples` Rights also stated that “All decisions of
judicial bodies must be published and available to everyone”, a fortiori, to the
Parties of a case who have a much stake in the judgment.
under the domestic law.

121. In view of the above, the Court finds that the unjustified delay
of two years to deliver the copies of the judgment to the Applicants
violated their right to be heard under Article 7(1) of the Charter.
B. Allegations relating to arbitrary arrest contrary to

122. Under Article 6 of the Charter, the Applicants invoke the

responsibility of the Respondent for the violation of their right to liberty
as a result of their alleged arbitrary arrest in the Republic of Kenya
before their extradition and their re-arrest by Tanzanian authorities
after they were acquitted of criminal charges by the Magistrate’s Court.
i. Allegation relating to the Applicants being held in

custody for three weeks
123. The Applicants submit that they were held in custody for 3 weeks
by the authorities of the Republic of Kenya before being arraigned in
court, and that this was in violation of their basic rights. The Respondent
contends that it is directed to the Republic of Kenya, which is not a
party to the instant Application.
124. The Court reiterates its position that it lacks personal jurisdiction
to entertain allegations against the Republic of Kenya and therefore,
dismisses this allegation.
ii. Allegation relating to the re-arrest after acquittal
125. The Applicants allege that their rights under Article 6 of the
Charter were violated when they were re-arrested by the Police after
the trial Magistrate at Kisutu acquitted them. The Applicants argue that
after they were acquitted of charges of armed robbery and conspiracy
to commit crimes, they were immediately re-arrested and charged
before the Resident Magistrate Court of Dar es Salaam at Kisutu
with the crime of stealing contrary to section 265 and armed robbery
contrary to Section 287 of the Penal Code of the Respondent. They
claim that the re-arrest and subsequent charges of stealing and armed
robbery violated their right to presumption of innocence.
126. The Respondent argues that the Applicants were lawfully re-
arrested and that the second charges were subsequently withdrawn in
the interest of justice and the rights of the Applicants.
127. From the records available before it, the Court notes that on
26 March 2003, the Applicants were arraigned at the Kisutu Resident
Magistrate Court in Dar es Salaam and charged with two counts under
the Penal Code, Cap 16. The first count was conspiracy to commit
an offence contrary to Section 384 and the second count was armed
robbery contrary to Sections 285 and 286 of the Penal Code. The
particulars of the case, undisputed by the Respondent, also show that
after the Kisutu Resident Magistrate’s acquitted them of these counts,
they were, on 14 March 2005, again arraigned before the same Court
on two new charges:(i) stealing, contrary to Section 265 of the Penal
Code in Criminal Case No. 399/2005 and (ii) armed robbery, contrary
to Section 287 of the Penal Code in Criminal Case No. 400/2005.
128. These charges were later dropped when the appeal made on
the original charge of armed robbery succeeded at the High Court,
where their acquittal was set aside and substituted with conviction and
a sentence of 30 years’ imprisonment. It appears from this series of
facts that the authorities of the Respondent issued a new charge on
different sections of the Penal Code against the Applicants on the basis
of the same facts as those relied upon in the original armed robbery
charge and to the same trial Magistrate.
129. In view of the above, the question this Court should address is
whether the re-arrest of the Applicants was contrary to Article 6 of the
Charter, which provides that:
“Everyone shall have the right to liberty and security of his person and that
no one shall be deprived of his freedom except for reasons and conditions
laid down by law. In particular, no one may be arbitrarily arrested or
detained.”25
130. Under Article 6 of the Charter, the right to liberty prohibits arbitrary
arrest and this generally involves the deprivation of liberty of individuals
contrary to the law or against the reasons and conditions specified by
25 See also Articles 3 and 9, Universal Declaration of Human Rights (1948) Article
5, European Convention on Human Rights (1950), Article 7, Inter-American
Convention on Human Rights (1969), Article XXV, American Declaration of the
Rights and Duties of Man (1948), Article 14, Arab Charter on Human Rights (2004).
the law.26 The notion of arbitrariness also covers deprivation of liberty

contrary to the standard of reasonableness, that is, whether it is “just,
necessary, proportionate and equitable in opposition to unjust, absurd
and arbitrary.27
131. The established international human rights jurisprudence sets
three criteria to determine whether or not a particular deprivation of
liberty is arbitrary, namely, the lawfulness of the deprivation, the
existence of clear and reasonable grounds and the availability of
procedural safeguards against arbitrariness.28 These are cumulative
conditions and non-compliance with one makes the deprivation of
liberty arbitrary.
d. The lawfulness of the detention
132. The Court notes that arrest or detention that lacks any legal
basis is arbitrary.29 Any deprivation of liberty shall have a legal basis or
shall be carried out in “accordance with the law”.30
133. In the case at hand, the Respondent generally argues that the
re-arrest of the Applicants was lawful without indicating the specific
law on the basis of which the re-arrest was made. Nonetheless, the
Court infers from the undisputed submission of the Applicants that they
were re-arrested on the basis of section 265 of the Penal Code of the
Respondent. The Court thus, holds that there was an adequate legal
basis for the re-arrest and that it was conducted “in accordance with
the law”.
e. The existence of clear and reasonable grounds
134. The Court notes that a deprivation of liberty shall also have clear
and reasonable grounds. Although Article 6 of the Charter does not
26 Ibid.
27 See Mukong v Cameroon, Comm. No. 458/1991, UN Human Rights Committee
adopted on 21 July 1994, para. 9.8, Hugo van Alphen v The Netherlands,
Communication No. 305/1988, UN Doc. CCPR/C/39/D/305/1988 (1990), para. 5.8,
A v Australia, Communication No. 560/1993, UN Doc. CCPR/C/59/D/560/1993 (30
April 1997), para 9.2.
28 See Principle 1(b),African Commission, Principles and Guidelines on the Right to
a Fair Trial and Legal Assistance in Africa, DOC/OS(XXX)247 (2001).
29 General Comment 35, Article 9 (Liberty and security of person), UN HRC, CCPR
/C/GC/35 (2014), para. 11 Essono Mika Miha v Equatorial Guinea, Communication
No. 414/1990, UN Doc. CCPR/C/51/D/414/1990 (1994), para. 6.5.
30 Ibid. See also Communication 368/09 Abdel Hadi, Ali Radi & Others v Republic
of Sudan, African Commission, (2014), paras 79-80; Principle 2, UN Body
of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment General Assembly A/RES/43/173, 9 December 1988.
explicitly require that the grounds should be clear or reasonable, the

expression “reasons and conditions” in the same implies that any arrest
or detention should not be conducted without adequate or reasonable
grounds.31
135. In the present case, the Applicants were arrested on the basis
of a criminal charge. It is a trite law that the arrest or detention of
individuals for purpose of criminal charge is a common and valid
ground for detention recognized by both the domestic legislation of
the Respondent and international human rights law.32 However, the
Court considers that the validity of a particular ground for deprivation
of liberty shall also be examined in accordance with the circumstances
of each case and in the light of the requirement of reasonableness.
In the context of criminal proceedings, once an accused is acquitted
of a particular crime by a court of law, the fundamental right to liberty
and also the standard of reasonableness require that s/he shall be
released forthwith and be allowed to enjoy his liberty unhindered.
136. In the instant Application, the Applicants were released in
accordance with the decision of the trial Magistrate’s Court acquitting
them of charges of armed robbery and conspiracy to commit crimes,
but re-arrested immediately and kept in detention. They were
subsequently charged with another crime of stealing and armed
robbery based on the same facts under different sections of the Penal
code. The Respondent has not proffered any reason as to why it was
necessary to charge the Applicants with a new crime of stealing and
armed robbery on the basis of the same facts after a court of law had
already acquitted the Applicants of similar charges.
137. The Court is of the view that it is inappropriate, unjust, and
thus, arbitrary to re-arrest an individual and file new charges based on
the same facts without justification after s/he has been acquitted of a
particular crime by a court of law. The right to liberty becomes illusory
and due process of law ends up being unpredictable if individuals can
anytime be re-arrested and charged with new crimes after a court of
law has declared their innocence. The Court thus finds that there was
no reasonable ground for the re-arrest of the Applicants in the time
between their acquittal by the Resident Magistrate`s Court and their
conviction by High Court for the initial charges.
138. In view of this finding, the Court deems it unnecessary to examine
the issue whether the third requirement relating to the availability of
31 Communication No. 379/09 Monim Elgak, Osman Hummeida and Amir Suliman
(represented by FIDH and OMCT) v Sudan, 10 March 2015, para 105,
32 Article 9 of ICCPR expressly envisages a situation where individuals may be
deprived of their liberty on the basis of criminal charge. (See para 3).
procedural safeguards against arbitrariness was met.

139. The Court therefore holds that the Respondent has violated
the right to liberty of the Applicants under Article 6 of the Charter by
arbitrarily re-arresting and charging them with fresh crimes based on
the same facts after they were acquitted of the same by a court of law.
C. The alleged incommunicado detention of the

Applicants in contravention of Article 5 of the Charter
i. Applicants’ submissions
140. The Applicants submit that, following their re-arrest by the

Respondent’s authorities, they were detained for four days in a police
cell without food and access to the outside world. They allege that their
detention was unlawful and violated their rights as guaranteed under
ii. Respondents’ submissions
141. The Respondent on its part denies the allegation that the
Applicants were detained incommunicado without food, and requests
that the Applicants be put to the strictest proof thereof.
142. The Court notes that it is a fundamental rule of law that anyone
who alleges a fact shall provide evidence to prove it. However, when it
comes to violations of human rights, this rule cannot be rigidly applied.
By their nature, some human rights violations relating to cases of
incommunicado detention and enforced disappearances are shrouded
with secrecy and are usually committed outside the shadow of law and
public sight. The victims of human rights may thus be practically unable
to prove their allegations as the means to verify their allegation are
likely to be controlled by the State.33
143. In such circumstances, “neither party is alone in bearing the
burden of proof”34 and the determination of the burden of proof depends
on “the type of facts which it is necessary to establish for the purposes
33 Inter-American Court of Human Rights case of Velásquez-Rodríguez v Honduras,

Judgment of July 29, 1988, paras 127-136.
34 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo),
ICJ (30 November 2010), para 56.
of the decision of the case”35 It is therefore for this Court to evaluate

all the circumstances of the case with a view to establishing the facts.
144. In the instant case, the Applicants simply assert that they were
detained for four days in a police cell without food and access to the
external environment. Given the particular condition of their detention,
the Court understands that it may be difficult for them to prove their
contention.
145. Nevertheless, the Applicants have not submitted any prima facie
evidence to support their allegation which could enable the Court to
shift the burden of proof to the Respondent. The Court recalls that the
Applicants had lawyers both at the Magistrate’s Court and the High
Court and there is nothing on record to show that they raised the matter
before the courts of the Respondent or communicated the condition of
their detention to their lawyers, or their government.
146. In view of the foregoing, the Court finds that the allegation lacks
merit and is hereby dismissed.
D. Allegation of violation of Article 3 of the Charter
147. The Applicants generally allege without providing specifics, that

the Respondent has violated their right under Article 3 of the Charter.
ii. Respondent’s submissions
148. The Respondent maintains that Articles 12 and 13 of the

Constitution of the United Republic of Tanzania firmly guarantee these
rights and that the Applicants have failed to demonstrate how these
guarantees of equality were not applied to them therefore resulting
in the alleged violations. The Respondent also reiterates that Section
9(1) of the Basic Rights and Duties Enforcement Act [Cap 3 RE 2002]
also provides adequate safeguards against the alleged violation.
149. Article 3 of the African Charter provides that:

“Every individual shall be equal before the law. Every individual shall be
entitled to equal protection of the law”
35 Ibid, paras 54-55.

150. This provision has two limbs, namely, the right to equality before
the law and the right to equal protection of the law.
151. With regard to the right to equal protection of the law, the Court
notes that this is recognized and guaranteed in the Constitution of
the Respondent. The relevant provisions (Articles 12 and 13) of the
Constitution enshrine the right in its sacred form and content on equal
par with the Charter, including by prohibiting discrimination.
152. Concerning the right to equality before the law, in their
submissions, the Applicants have alleged that their right under Article 3
of the Charter has been violated by the Respondent without specifying
how and under what contexts that they have been discriminated
against. The Court has, in the case of Abubakari v Tanzania, held
that “it is incumbent on the Party purporting to have been a victim of
discriminatory treatment to provide proof thereof”.36 The Applicants
have not indicated circumstances where they were subjected to
unjustified differential treatment in comparison to other persons in
a similar situation.37 As this Court has stated in its case law of Alex
Thomas v Tanzania, “General statements to the effect that [a] right has
been violated are not enough. More substantiation is required”.38
153. The Court therefore dismisses the Applicants’ allegation that
their rights under Article 3 of the Charter were violated.
E. The allegation concerning the violation of all accepted

principles of human rights and international law
154. The Applicants also make a general submission that both the
Kenyan and the Tanzanian Governments have violated all accepted
principles of human rights and international law through their actions.
ii. Respondent’s submissions
155. With regard to part of the allegation directed against it, the
Respondent State submits that this allegation is not clear and specific.
It argues that the Applicants have not specified with precision which
principles and what areas of international law have been violated. In
36 Abubakari Case, para 153.

37 Ibid, para154.
the opinion of the Respondent, the phrase “all accepted principles of

human rights and international law” is vague and general.
156. The Court has already dismissed the claim of the Applicants
against the Government of Kenya for lack of personal jurisdiction as
specified above (para. 44).
157. As far as the Respondent is concerned, the Court has previously
decided that it can only examine a specific allegation of human rights
violation only when either the facts indicating such violation or the
nature of the right which was allegedly violated is adequately stated in
the Application.39 The instant allegation lacks precision in both respects.
The Applicants have not clearly stated the specific right or principle of
human rights or international law, which is said to be violated nor have
they sufficiently indicated the factual basis of such alleged violation. As
a result, the Court is unable to make a determination on the merits of
the substance of the Applicants` allegation because of its generalised
nature and finds no violation of a right protected in the Charter or other
international human rights instruments ratified by the Respondent.
F. Allegation that the Respondent State has violated

158. The Applicants allege that the Respondent has breached its
obligation under Article 1 of the Charter by failing to give effect to the
rights enshrined in it.40 The Respondent has not made any submission
on this allegation.
159. The Court reiterates its position in the matter of Alex Thomas v
Tanzania that Article 1 of the Charter imposes on States Parties the duty
to recognize the rights guaranteed therein and to adopt legislative and
other measures to give effect to these rights, duties and freedoms.41
Accordingly, in assessing whether or not a State has violated Article 1
of the Charter, the Court examines not only the availability of domestic
legislative measures taken by the State but also whether the application
of those legislative or other measures is in line with the realization of
the rights, duties and freedoms enshrined in the Charter, that is, the
39 See Tanganyika Law Society and The Legal and Human Rights Centre and
Reverend Christopher Mtikila v The United Republic of Tanzania, Application No
009&011/2011, para 12, Peter Chacha case, paras 121. 122. 131, 134.
40 Rejoinder, p 7.
attainment of the objects and purposes of the Charter.42 If the “Court

finds that any of the rights, duties and freedoms set out in the Charter
are curtailed, violated or not being achieved, this necessarily means
that the obligation set out under Article 1 of the Charter has not been
complied with and has been violated.”43
160. In the instant case, the Court has found that the Respondent
State has violated Article 6 and Article 7 of the Charter. On this
basis, the Court thus concludes that the violation of these rights
also simultaneously violates Article 1 of the Charter requiring the
Respondent to respect and ensure respect for the rights guaranteed
thereof.
IX. Reparations
161. In their Application, the Applicants requested, among other

things, the Court to grant reparations and order such other measures
or remedies as it may deem fit.
162. On the other hand, the Respondent prayed the Court to deny the
request for reparations and all other reliefs sought by the Applicants.
163. Article 27(1) of the Protocol provides that “if the Court finds that
there has been violation of a human or peoples’ rights, it shall make
appropriate orders to remedy the violation including the payment of fair
compensation or reparation.”
164. In this regard, Rule 63 of the Rules of Court provides that “the
Court shall rule on the request for reparation… by the same decision
establishing the violation of a human and peoples’ right or, if the
circumstances so require, by a separate decision.”
165. In the instant case, the Court will decide on certain forms of
reparation in this Judgment, and rule on other forms of reparation at a
later stage of the proceedings.
X. Costs
166. In their submissions, the Applicants and the Respondent did not
make any statements concerning costs.
167. The Court notes that Rule 30 of the Rules provides that “unless
otherwise decided by the Court, each party shall bear its own costs”.
168. The Court shall decide on the issue of costs when making a
ruling on other forms of reparation.
169. For these reasons:
42 Ibid.
43 Ibid.
The Court
Unanimously,
i. Dismisses the Respondent’s preliminary objection on the lack of
personal and material jurisdiction of the Court.
ii. Declares that the Court has jurisdiction
iii. Dismisses the Respondent’s preliminary objections on the
admissibility of the Application for non-exhaustion of local remedies
and for not having been filed within a reasonable period of time after
exhaustion of local remedies.
iv. Declares the Application admissible.
v. Declares that the Respondent has not violated Articles 3, 5, 7 (1)
(a), 7(1) (b) and 7(2) of the Charter.
vi. Finds that the Respondent violated Articles 1, 6 and 7(1), and
7(1) (c) of the Charter.
vii. Orders the Respondent State to take all necessary measures
that would help erase the consequences of the violations established,
restore the pre-existing situation and re-establish the rights of the
Applicants. Such measures could include the release of the Applicants.
The Respondent should inform the Court within six (6) months, from
the date of this judgment of the measures taken.
viii. Grants, in accordance with Rule 63 of the Rules of Court, the
Applicants to file submissions on the request for reparations within
thirty (30) days hereof, and the Respondent to reply thereto within
thirty (30) days of the receipt of the Applicant’s submissions.
ix. Reserves its ruling on the prayers for other forms of reparation
and on costs.
Jonas v Tanzania (merits) (2017) 2 AfCLR 101 101
Application 011/2015, Christopher Jonas v United Republic of Tanzania

MATUSSE, MENGUE, MUKAMULISA, CHIZUMILA and BENSAOULA
The Applicant had been convicted and sentenced to thirty years
imprisonment for robbery. He brought this Application claiming a violation
of his rights as a result of his detention and trial. The Court found that the
evidence in the national proceedings had been evaluated in conformity
with the requirements of fair trial but that the fact that the Applicant had
not been granted free legal representation constituted a violation of the
African Charter.
Admissibility (exhaustion of local remedies, extraordinary remedies,
44; submission within reasonable time, 50-54)
Fair trial (role of African Court in evaluation of evidence, 68; legal aid,
78)
I. The Parties
1. The Applicant, Mr Christopher Jonas, is a national of the United

Republic of Tanzania, currently serving a thirty year custodial sentence
at the Ukonga Prison in Dar-es-Salaam, United Republic of Tanzania.
2. The Application is filed against the United Republic of Tanzania
(hereinafter referred to as the “Respondent”), which became party
to the African Charter on Human and Peoples’ Rights (hereinafter
referred to as the “Charter”) on 9 March, 1984, and 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”) on 10 February, 2006. It also deposited
the declaration under Article 34(6) of the Protocol, accepting the
jurisdiction of the Court to receive cases from individuals and Non-
Governmental Organizations on 29 March, 2010. The Respondent has
also ratified and acceded to other regional and international human
rights instruments, including the International Covenant on Civil and
Political Rights (hereinafter referred to as the “Covenant”) on 11 July
1976.
3. The instant Application concerns Criminal Case No. 429 of

2002 before the District Court of Morogoro; before the High Court of
Tanzania under reference Criminal Case No. 6 of 2005; and before the
Court of Appeal of Tanzania sitting at Dar-es-Salaam, under reference
Criminal Case No. 38 of 2006, in which the Applicant was found guilty
and sentenced to thirty (30) years imprisonment for armed robbery, an
offence punishable under Sections 285 and 286 of the Criminal Code,
Chapter 16 of the Laws of Tanzania.
A. The facts
4. The Applicant and one Erasto Samson were jointly charged with
stealing money and various items of value from one Habibu Saidi on
1 October 2002, using violence and injuring the victim in the face with
a machete.
5. On 13 February 2004, the Morogoro District Court rendered
its Judgment finding the Applicant and Erasto Samson guilty of the
offence as charged. They were both sentenced to thirty (30) years
imprisonment and twelve (12) strokes of the cane, Erasto Samson
having been tried in absentia.
6. On 26 February 2004, the Applicant filed an Appeal before the High
Court of Tanzania in Dar-es-Salaam but that Appeal was dismissed on 12
September 2005.
7. On 21 September 2005, the Applicant filed an Appeal before the
Court of Appeal of Tanzania in Dar-es-Salaam. On 27 March 2009, the
Appeal was similarly dismissed as regards the 30-year prison sentence.
However, the Court of Appeal amended the sentence, setting aside
the corporal punishment of twelve (12) strokes of the cane.
8. The Applicant alleges:

"i. That he had been charged and wrongly convicted for
armed robbery with thirty (30) year custodial sentence;
that the Trial Magistrate and the Appeal Court judges
grossly erred in law and fact for having taken into account
the key testimony of Prosecution Witness PW1, Habibu
Saidi Shomari, which evidence does not corroborate the
particulars on the charge sheet, especially the list of the
items allegedly stolen, their respective values and the
estimated total amount;
ii. That the thirty (30) year sentence pronounced against
him by the Trial Magistrate was not in force at the time the
robbery was committed (1 October 2002); that Sections
285 and 286 of the Penal Code provide a maximum
punishment of fifteen(15) years imprisonment; that the

thirty (30) year prison sentence came into force only in
2004 sequel to decree No. 269 of 2004, as amended and
which became Section 287 A of the Penal Code;
iii. That he was denied the right to information;
iv. That he did not have the benefit of Counsel or legal
assistance throughout his trial; and
v. That for all these reasons, the Respondent State violated
Section 13(b)(c) of the 1977 Constitution of the United
Republic of Tanzania as well as Articles 1, 2, 3, 4, 5, 6,
7(1)(c) and 7(2) of the African Charter on Human and
Peoples’ Rights.”
III. Procedure before the Court
9. The Application was received at the Registry on 11 May 2015.

10. By a letter dated 9 June 2015, the Registry, pursuant to Rule 35(2)
and (3) of the Rules of Court (hereinafter referred to as “the Rules”),
transmitted the Application to the Respondent, the Chairperson of the
African Union Commission and, through her, to other States Parties to
the Protocol.
11. On 15 July 2015, the Respondent transmitted to the Registry the
names and addresses of its representatives; and on 11 August 2015,
submitted its Response to the Application.
12. On 17 August 2015, the Registry transmitted the Respondent’s
Response to the Applicant.
13. On the Court’s directive to seek legal assistance for the Applicant,
the Registry, on 6 January 2016, wrote to the Pan African Lawyers’
Union (PALU), to enquire whether the latter would consider providing
legal assistance to the Applicant.
14. By a letter dated 20 January 2016, PALU agreed to provide
assistance to the Applicant; and on 30 March 2016, requested an
extension of the time for submission of its Reply to the Respondent’s
Response.
15. On 29 April 2016, the Court granted PALU the extension
requested, and the Parties were accordingly notified by a notice of the
same date.
16. On 14 June 2016, PALU filed the Reply to the Respondent’s
Response which was transmitted to the Respondent for information on
the same date.
17. At its 42nd Ordinary Session held from 5 to 16 September 2016,
the Court, pursuant to Rule 59(1) of the Rules decided to close the
written proceedings and to proceed with deliberations.
18. In the Application, the Court is requested to:

"i. uphold all the rights flouted and violated by the Respondent
State;
ii. rehabilitate the Applicant with respect to all his rights;
iii. order reparations for all the damages he suffered”.
19. In his Reply to the Respondent’s Response, the Applicant prays
the Court to:
"i. find that the Respondent has violated his right to full
equality before the law and his right to equal protection of
the law as enshrined in Article 3 of the Charter;
ii. find that the Respondent has violated his right to a fair trial
as enshrined in Article 7 of the Charter;
iii. set aside the guilty verdict and the punishment imposed
on him and, consequently order his release from prison;
iv. issue an order for reparation;
v. order such other measures or remedies as this Honourable
Court may deem appropriate”.
20. In its Response to the Application, the Respondent prays
the Court, with respect to its jurisdiction and the admissibility of the
Application, to:
"i. Rule that the Application has not evoked (sic) the
jurisdiction of the Court and should consequently be
dismissed;
ii. Rule that the Application has not met the admissibility
requirements stipulated under Rule 40(5) and (6) of the
Rules of Court and consequently dismiss it;
iii. Rule that the Court has no jurisdiction to issue an order
compelling the Respondent State to release the Applicant
from detention”.
21. On the merits of the case, the Respondent prays the Court to:
"i. Rule that the Government of the United Republic of
Tanzania has not violated Articles 1, 2, 3, 4, 5, 6, 7(1)(c)
and 7(2) of the Charter;
ii. Rule that the Government of the United Republic of
Tanzania did not breach Article 13(6)(b) and (c) of the
Constitution of the United Republic of Tanzania;
iii. Rule that the conviction and sentence imposed on the
Applicant by the Trial Court, the High Court and the Court
of Appeal of Tanzania were proper and not excessive;
iv. Rule that the thirty (30) year prison sentence for the
offence of armed robbery is lawful;
v. Rule that the Government of the United Republic of
Tanzania did not discriminate against the Applicant;
vi. Declare that the Government of the United Republic of
Tanzania should not pay reparations to the Applicant;
vii. Dismiss the Application in its entirety for lack of merit”.
V . Preliminary objections raised by the Respondent
22. In its Response to the Application, the Respondent raised

preliminary objections on both the jurisdiction of the Court and the
admissibility of the Application.
A. On the jurisdiction of the Court
23. In accordance with Rule 39(1) of the Rules, “the Court shall
conduct preliminary examination of its jurisdiction …”
i. Objection with respect to the material jurisdiction of

the Court
24. The Respondent argues that the Applicant prays the Court to
sit as an appellate court or a supreme court whereas it is not within its
power.
25. According to the Respondent, Article 3 of the Protocol does not
provide this Court with the jurisdiction to adjudicate over matters raised
by the Applicant before the national courts, revise the Judgments of
these courts, evaluate the evidence and come to a conclusion
26. The Respondent maintains that the Court of Appeal of Tanzania,
in its Judgment in Criminal Appeal Case No. 38/2006, examined all the
allegations raised by the Applicant and that this Court (African Court)
should respect the judgment of the Court of Appeal of Tanzania.
27. The Applicant for his part refutes this assertion. Citing this
Court’s jurisprudence in Alex Thomas and Joseph Peter Chacha v
United Republic of Tanzania, the Applicant contends that this Court
has jurisdiction as long as there are allegations of violation of human
rights.
28. The Court reiterates its position that it is not an appeal court with
respect to the decisions rendered by the national courts.1 However, as

it underscored in its Judgment in Alex Thomas v United Republic of
Tanzania, and Mohamed Abubakari v United Republic of Tanzania, this
does not preclude it from ascertaining whether the procedures before
national courts are in accordance with the international standards set
out in the Charter or other applicable human rights instruments.2
29. Be that as it may, the Applicant alleges violation of the rights
guaranteed by the Charter.
30. The Court therefore dismisses the objection raised by the
Respondent in this regard, and holds that it has material jurisdiction.
ii. Other aspects of jurisdiction
31. The Court notes that its personal, temporal and territorial
jurisdiction has not been contested by the Respondent, and nothing in
the file indicates that the Court does not have jurisdiction. The Court
therefore, holds that:
"i. it has jurisdiction ratione personae given that the Respondent
is a party to the Protocol and has deposited the declaration
required under Article 34(6) thereof, which enables individuals
to institute cases directly before it, in terms of Article 5(3) of the
Protocol.
ii. it has jurisdiction ratione temporis in terms of the fact that the
alleged violations are continuous in nature since the Applicant
remains convicted on the basis of what he considers as
irregularities;3
iii. it has jurisdiction rationae loci given that the facts of the matter
occurred on the territory of a State Party to the Protocol, that is,
the Respondent.
32. From the foregoing, the Court concludes that it has jurisdiction
and is therefore competent to hear the instant case.
B. On the admissibility of the Application
33. In terms of Article 6(2) of the Protocol, “the Court shall rule on
the admissibility of cases taking into account the provisions of Article
1 See Ernest Francis Mtingwi v Republic of Malawi (Application No. 001/2013),

Judgment of 15 March 2013, para 14.
2 Alex Thomas v United Republic of Tanzania (Application No. 005 of 2013),
Judgment of 20 November 2015, para 130 and Mohamed Abubakari v United
Republic of Tanzania (Application No. 003 of 2012), Judgment of 3 June 2016,
para 29.
3 Zongo and Others v Burkina Faso, preliminary objections, Judgment of 21 June
2013, paras 71 to 77.
56 of the Charter”.
34. Pursuant to Rule 39 of the Rules, the Court shall conduct
preliminary examination of the admissibility of the Application in
accordance with Articles 50 and 56 of the Charter and Rule 40 of the
Rules.
35. Rule 40 of the Rules which essentially reproduces the content of
Article 56 of the Charter, provides that:
“Pursuant to the provisions of Article 56 of the Charter to which
Article 6(2) of the Protocol refers, applications to the Court shall
comply with the following conditions:
3. Not based exclusively on news disseminated through the mass
media;
with the Matter;
6. Not raise any Matter or issues previously settled by the Parties
of the Charter or of any legal instrument of the African Union”.
37. Whereas some of the aforementioned conditions are not in
contention between the Parties, the Respondent raised objections with
respect to the exhaustion of local remedies and the time frame for
seizure of the Court.
i. Conditions that are in contention between the Parties
a. Objection to admissibility on grounds of failure to

exhaust local remedies
38. The Respondent, relying on the jurisprudence of the

Commission,4 contends that it is premature for the Applicant to bring

the instant case before an international body given that he still has
internal remedies at his disposal.
39. According to the Respondent, the Applicant first of all has the
possibility of filing a constitutional petition before the High Court
of Tanzania to obtain relief for the alleged violation of his rights,
under the Basic Rights and Duties Enforcement Act Chapter 3
as amended in 2002 (Basic Rights and Duties Enforcement Act
[Chapter 3 Revised Edition 2002]).
40. The Respondent maintains that after the Court of Appeal
decision, the Applicant also had the possibility of requesting that same
court to review its Judgment under Rule 66 of its Rules.
41. The Respondent, in conclusion, submits that since the Applicant
has not exercised the aforesaid remedies available at national level,
the Application does not meet the requirements set out in Rule 40(5) of
the Rules and must therefore be dismissed.
42. The Applicant maintains that he has exhausted all the local
remedies in filing an appeal against the Judgment of the High Court of
Tanzania before the Court of Appeal of Tanzania which is the highest
court in the country. He adds that since the Court of Appeal has made
a ruling on his appeal, it would not be reasonable to require him to file
a new application in respect of his right to a fair trial before the High
Court which is a court lower than the Court of Appeal.
43. He further contends that the constitutional petition and the
review remedy mentioned by the Respondent are extraordinary
remedies which he was under no obligation to exhaust before filing the
Application before this Court.
44. The Court notes that the Applicant appealed against his
conviction before the Court of Appeal of Tanzania which is the highest
judicial body in the country, and that Court upheld the Judgments of the
Morogoro District Court and the High Court of Tanzania.
45. Concerning the constitutional petition and review, the Court has
concluded from other matters filed against the Respondent that these
are, in the Tanzanian legal system, extraordinary remedies which
Applicants are not obliged to exhaust before filing their Applications in
4 Communication No. 333/06: Southern African Human Rights NGOs Network

and Others v Tanzania; Communication No. 263/2002: Kenyan Section of the
International Commission of Jurists, Law Society of Kenya, Kituo Cha Sheria v
Kenya ; Communication No. 275/03 Article 19 v Eritrea.
this Court.5
46. The Court therefore rejects the Respondent’s objection to the
admissibility of the Application for failure to exhaust local remedies.
b. Objection to admissibility based on non-compliance

with a reasonable time in filing the Application before the
Court
47. The Respondent argues that the Applicant has not filed his
Application within reasonable time. While recognising that Rule 40(6)
of the Rules of Court does not prescribe a specific time frame for
the submission of cases, the Respondent argues that going by the
decisions of regional bodies similar to this Court, a period of six (6)
months would be a reasonable time limit within which the Applicant
should have filed the Application. It maintains that such was the
position of the African Commission on Human and Peoples’ Rights in
Michael Majuru v Zimbabwe, and therefore avers that the period of four
(4) years and 10 months in which the Applicant filed the Application is
much more than the six (6) months regarded as reasonable time6.
48. The Applicant refutes the Respondent’s assertion, indicating
firstly that the Application was filed on 11 May 2015, and not on 28
January 2015. He argues further that the Court’s jurisprudence shows
that the assessment of the reasonable time for the filing of applications
is made on a case-by-case basis; that such was the Court’s position in
Alex Thomas v United Republic of Tanzania, in which the Court took
into account the special situation in which the Applicant found himself,
namely, that he was illiterate, indigent, incarcerated and without legal
assistance, and decided that the timeframe within which the Applicant
filed the Application was reasonable.
49. The Court notes that Article 56(6) of the Charter does not set a
deadline within which applications should be filed.
50. Rule 40(6) of the Rules which reproduces the substance of
Article 56(6) of the Charter, only speaks of a “reasonable time from the
date local remedies are exhausted or from the date set by the Court
as being the commencement of the time limit within which it shall be
seized with the Matter”.
5 Alex Thomas v United Republic of Tanzania (Application No. 005/2013), Judgment

of 20 November 2015, paras 60-65 ; Mohamed Abubakari v United Republic of
Tanzania (Application No. 007/2013), Judgment of 3 June 2016, paras 65-72 ;
Wilfred Onyango v United Republic of Tanzania (Application No. 006/2013),
Judgment of 18 May 2016, para 95.
6 Majuru v Zimbabwe (Communication No. 308/2005) [2008] ACHPR 95 (24
November 2008).
51. The Court noes that the local remedies were exhausted on 27
March 2009, being the date on which the Court of Appeal delivered its
judgment. It however also notes that as at that date, the Respondent
had not deposited the declaration accepting the jurisdiction of the Court
to receive cases from individuals as per Article 34(6) of the Protocol.
The Court therefore holds that it would not be reasonable to regard the
time frame for seizure of the Court as running from the date prior to the
deposit of the said declaration, that is, 29 March 2010.
52. Since the Application was filed on 11 May 2015, the Applicant
thus seized the Court in five (5) years, one (1) month and twelve (12)
days. The question here is whether this time frame can be regarded as
reasonable within the meaning of Article 56(6) of the Charter.
53. The Court has established in its previous Judgments that the
reasonableness of the period for seizure of the Court depends on the
particular circumstances of each case and must be determined on a
case-by-case basis.7
54. In Mohammed Abubakari v United Republic of Tanzania, this
Court held that the fact that the Applicant was incarcerated, is indigent,
did not have the benefit of free assistance of a lawyer throughout
the proceedings at national level, his being an illiterate and his being
unaware of the existence of the Court due to its relatively recent
establishment - are all circumstances that can work in favour of some
measure of flexibility in determining the reasonableness of the time
frame for seizure of the Court.8
55. Given that the Applicant in the instant case is in a situation
similar to that described above, the Court finds that the period of five
(5) years, one (1) month and twelve (12) days, in which it was seized is
a reasonable period within the meaning of Article 56(6) of the Charter. It
therefore dismisses the objection to the admissibility of the Application
on the grounds of non-compliance with a reasonable period for filing
the Application before the Court.
i. Conditions that are not in contention between the

Parties
56. The Court notes that the issue of compliance with sub rules
7 Norbert Zongo and Others v Burkina Faso(Application No. 013/2011) , Ruling on

Preliminary Objections, 21 June, 2013, para 121; Alex Thomas v United Republic
of Tanzania, (Application No. 005/2013), Judgment of 20 November 2015, para 73;
Mohamed Abubakari v United Republic of Tanzania (Application No. 007/2013),
Judgment of 3 June 2016, para 91.
8 Mohamed Abubakari v United Republic of Tanzania,(Application No. 007/2013),
Judgment of 3 June 2016 para 92.
40(1), (2), (3), (4), and (7) of the Rules is not in contention between
the Parties, and nothing in the file indicates that they have not
been complied with. The Court therefore holds that the admissibility
requirements under those provisions have been met.
57. In light of the foregoing, the Court finds that the instant
Application fulfils all the admissibility requirements under Article 56 of
the Charter and Rule 40 of the Rules, and accordingly declares the
same admissible.
VI. The merits
58. The Applicant alleges that the Respondent violated Articles 1,

2, 3, 4, 5, 6, 7(1)(c) and 7(2) of the Charter. The Court however notes
that the Applicant made submissions only in regard to the violation of
the right to fair trial.
59. In the circumstances, only the allegations substantiated by the
Applicant, namely, the allegations regarding violation of Article 7 of the
Charter, will be examined by the Court.
A. The allegation that the Applicant was charged and

convicted on the basis of a deposition which does not
corroborate the particulars on the charge sheet
60. In the Application, it is contended that the trial magistrate and

the Appellate Judges grossly erred in law and in fact for having taken
into account the core statement of Prosecution Witness 1 (PW1),
which statement does not corroborate the particulars on the charge
sheet, especially the list of the items alleged to have been stolen, their
respective value and the total estimated amount.
61. The Respondent refutes this allegation, contending that following
an evaluation of the evidence presented, the trial magistrate found that
the theft actually took place; that probative testimonies had established
that the Applicant was indeed the person who participated in the theft,
and that it was on the strength of this evidence that the Applicant was
convicted.
62. It further states that the Court of Appeal clearly indicated that the
guilty verdict against the Applicant was not grounded on the doctrine of
recent possession, but that “he was convicted because he was found,
red-handed, along with other people, robbing the complainant”; that
in the circumstances, it does not matter whether or not the testimony
of the Prosecution Witness 1 (PW1) corroborated the content of the
charge sheet as there was direct credible evidence which the Judge
duly took into account.
63. The Respondent, in conclusion, submits that this allegation is
baseless and must consequently be dismissed.

64. The relevant section of Article 7(1)(c) of the Charter provides
that: “Every individual shall have the right to have his cause heard...”
65. This Article may be interpreted in light of the provisions of Article
14(1) of the Covenant which provides that: “All persons shall be equal
before the courts and tribunals. In the determination of any criminal
charge against him, or of his rights and obligations in a suit at law,
everyone shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law….” (italics added)
66. It is evident from the above two provisions, read together, that
everyone has the right to a fair trial.
67. The records of proceedings at national level show that the
Applicant was caught red-handed committing armed robbery. The
Court also notes that the national courts heard the Applicant as well
as three eye witnesses, in addition to the victim; and that all declared
having seen the Applicant in the act of committing the offence.
68. It is also evident from the judgement of the Court of Appeal that
it examined all the pleadings by the Applicant before upholding the
decision rendered by the lower courts.
69. The Court recalls that its role in regard to evaluation of the
evidence on which the conviction by the national judge was grounded
is limited to determining whether, generally, the manner in which
the latter evaluated such evidence is in conformity with the relevant
provisions of applicable international human rights instruments.9
70. In view of the foregoing, the Court finds that the evidence of the
national courts has been evaluated in conformity with the requirements
of fair trial within the meaning of Article 7 of the Charter.
71. The Court thus dismisses the Applicant’s allegation that he had
been charged and convicted on the basis of a single deposition which
does not corroborate the particulars on the charge sheet, and holds
that there was no violation of Article 7(1)(c) of the Charter in this regard.
B. The allegation that during the proceedings the

Applicant was not afforded legal assistance
72. In the Application, it is alleged that the Respondent violated the

Applicant’s right to be represented by Counsel.
73. The Respondent argues that the Applicant has not raised this
issue before the national courts. It submits that it has gone through the
records of the court procedure as well as the two appeal procedures,
9 Mohamed Abubakari v United Republic of Tanzania (Application No. 007/2013),

and no where did the Applicant solicit legal assistance and was denied
such assistance by the certification authority.
74. The Respondent further maintains that the Applicant nonetheless
has legal means to solicit legal assistance in accordance with Article
3 of the law on legal assistance (Criminal Procedure), [Chapter 21
Revised Edition 2002]; that he could have also sought such assistance
during the procedure before the Court of Appeal under Rule 31(1), Part
II of the 2009 Tanzania Court of Appeal Rules, but he had not availed
himself of the said remedies.
75. The Applicant explains that at no time during the procedure
was he informed of the possibility of obtaining free legal assistance
as prescribed by law; that the Respondent had the positive
obligation to notify the Applicant, suo motu, of the existence
of such right ; that this obligation is even primordial where the
individual concerned is a lay person and an indigent detainee
facing a serious charge; that this is also the position of this Court
in Alex Thomas and Mohamed Abubakari v United Republic of
Tanzania, and that these precedents should equally apply in the
instant case.
76. According to Article 7(1)(c) of the Charter,
right comprises:
a. …
b. …
c. the right to defence, including the right to be defended by
counsel of his choice...”.
77. Article 14(3)(d) of the Covenant on its part provides that
“In the determination of any criminal charge against him,
everyone shall be entitled to the following minimum guarantees,
in full equality:
a. …
b. …
c. …
d. To be tried in his presence, and to defend himself in person or
through legal assistance of his own choosing; to be informed, if
he does not have legal assistance, of this right; and to have legal
assistance assigned to him, in any case where the interests of
justice so require, and without payment by him in any such case
if he does not have sufficient means to pay for it.”
78. In its Judgment in Mohamed Abubakari v United Republic of
Tanzania, this Court held that “an indigent individual under prosecution
for a criminal offence has the special right to free legal assistance where
the offence is serious and punishment prescribed by law severe”.10

79. In the instant case, the Applicant being in the same situation
as described above, the Court holds that the Respondent should
have offered him, proprio motu and free of charge, the services of a
lawyer throughout the judicial procedure. Having failed to do so, the
Respondent violated Article 7(1)(c) of the Charter.
C. The allegation that the thirty (30) year prison sentence

was not in force at the time the robbery occurred
80. In the Application, it is argued that the thirty (30) year custodial
sentence imposed on the Applicant by the national courts was not in
force at the time the alleged robbery with violence was committed;
that Sections 285 and 286 of the Penal Code prescribed a maximum
sentence of fifteen (15) years; that the thirty (30) year prison sentence
came into force only in 2004, following decree No. 269 of 2004, as
amended, which became Section 287 A of the Penal Code.
81. The Applicant therefore submits, from the foregoing, that the
national courts violated Articles 13(b)(c) of the 1997 Constitution of the
United Republic of Tanzania as well as Articles 1, 2, 3, 4, 5, 6, 7(1) (c)
and 7(2) of the Charter.
82. The Respondent refutes the Applicant’s allegations in their
entirety. It contends that in Criminal Case No. 424/2002, the Applicant
had been accused of armed robbery which is contrary to Sections
285 and 286 of the Penal Code, Chapter 16 of the Laws of Tanzania;
that at the time of conviction and determination of the punishment,
the Minimum Sentence Act of 1972 was in force; that, that Act was
amended in 1994 by the Miscellaneous Amendment Act No. 6/1994;
that the new law abrogated the 20 year imprisonment and introduced
an obligatory minimum punishment of thirty (30) years.
83. The Respondent further indicates that it is not the first time the question
of armed robbery offence, contrary to Sections 285 and 286 of the Penal
Code Chapter 16, has emerged, as well as the punishment commensurate
with this offence before 2004; that the Court of Appeal of Tanzania has made
a ruling on this issue in the Matter of William R Gerison v The Republic, in
Appeal Case No. 69/2004.
84. The Respondent submits in conclusion that the Applicant’s
allegations are without relevance and are baseless given that he was
accused of armed robbery in 2002, whereas the minimum punishment
had been amended eight (8) years earlier.
10 Judgment of 3 June 2016, para 139. See also Alex Thomas v United Republic of
Tanzania, Judgment of 20 November 2015, para 124.
85. In his Reply, the Applicant states that he no longer intends to

adduce arguments on the legality of the punishment imposed on him
and that the Court may therefore consider this issue as no longer in
contention between the Parties.
86. The Court notes that the Applicant abandoned this
allegation. For its part, the Court has already found that thirty
(30) years has been, in the United Republic of Tanzania, the
minimum punishment applicable to the offense of armed robbery
since 1994.11 Consequently, it holds that the Respondent has not
violated any provision of the Charter in sentencing the Applicant
to this term of imprisonment.
D. The allegation that the Respondent violated Article 1

of the Charter
87. In the Application, it is alleged in general terms that the

Respondent violated Article 1 of the Charter. The Respondent did not
make any submission on this allegation.
88. Article 1 of the Charter provides that: “The Member States of
the Organisation of African Unity, Parties to the present Charter shall
recognize the rights, duties and freedoms enshrined in the Charter and
shall undertake to adopt legislative or other measures to give effect to
them”.
89. The Court has found that the Respondent violated Article 7(1)(c)
of the Charter for failing to avail the Applicant with free legal assistance.
It therefore reiterates its decision in Alex Thomas v the United Republic
of Tanzania. In that Matter, the Court noted that “…when the Court
finds that any of the rights, duties and freedoms set out in the Charter
are curtailed, violated or not being achieved, this necessarily means
that the obligation set out under Article 1 of the Charter has not been
complied with and has been violated.”12
90. Having established that the Applicant was denied his right to
free legal assistance, in violation of Article 7(1)(c) of the Charter, the
Court finds that the Respondent consequently violated its obligation
under Article 1 of the Charter.
11 Mohamed Abubakari v United Republic of Tanzania (Application No. 007/ 2013),

12 Alex Thomas v United Republic of Tanzania (Application No. 005/2013), Judgement
of 20 November, 2015, para 135.
VII. Reparations
91. In the Application, the Court is requested to: (i) restore the

Applicant’s rights, (ii) annul the guilty verdict and the punishment
imposed on him, (iii) order his release from detention, and (iv) order
that reparations be made for all the human rights violations established.
92. In its Response, the Respondent prays the Court to dismiss the
Application in its entirety for being groundless, and therefore rule that
the Applicant is not entitled to reparations.
there has been violation of a human or peoples’ rights it shall make
appropriate orders to remedy the violation, including the payment of
fair compensation or reparation.”
94. In this respect, Rule 63 of the Rules provides that “the Court shall
rule on the request for the reparation by the same decision establishing
the violation of a human and people’s rights, or if the circumstances so
require, by a separate decision”.
95. As regards the Applicant’s prayer to be set free, the Court has
established that such a measure could be directly ordered by the Court
only in exceptional and compelling circumstances13. In the instant
case, the Applicant has not provided proof of such circumstances.
Consequently, the Court dismisses the prayer.
96. The Court however notes that such finding does not preclude
the Respondent from considering such measure on its own.
97. On the request to annul the conviction and sentence against
the Applicant, the Court notes that it does not have the power to annul
Decisions rendered by national courts. It therefore dismisses that
request.
98. The Court finally notes that none of the Parties made submissions
on the other forms of reparations. It will therefore make a ruling on
this question at a later stage of the procedure after having heard the
Parties.
VIII. Costs
99. In terms of Rule 30 of the Rules “unless otherwise decided by

the Court, each party shall bear its own costs.”
100. Having considered the circumstances of this matter, the Court
decides that each party should bear its own costs
13 Alex Thomas v United Republic of Tanzania (Application No. 005/2013), Judgment

of 20 November 2015, para 157; Mohamed Abubakari v United Republic of
Tanzania (Application No. 007/2013), Judgment of 3 June 2016, para 234.

The Court
Unanimously:
i. Dismisses the objection to the jurisdiction of the Court raised by
the Respondent;
ii. Declares that it has jurisdiction to hear the instant Application;
iii. Dismisses the objection on the admissibility of the Application
raised by the Respondent;
iv. Declares the Application admissible
v. Holds that the Respondent has not violated Article 7(1) of the
Charter in terms of the Applicant’s allegations that he was charged and
convicted on the basis of a deposition which does not corroborate the
particulars on the charge sheet and that the 30 year prison sentence
was not in force at the time the offence was committed;
vi. Holds that the Respondent violated Article 7(1)(c) of the Charter
in terms of the Applicant’s allegation that he did not have the benefit
of free legal assistance, and that, consequently, the Respondent also
violated Article 1 of the Charter;
vii. Dismisses the Applicant’s prayer for the Court to directly order
his release from prison without prejudice to the Respondent applying
such measure proprio motu;
viii. Dismisses the Applicant’s prayer for the Court to set aside his
conviction and sentence without prejudice to the Respondent applying
such measure proprio motu.
ix. Reserves its ruling on the Applicant’s prayer on other forms of
reparation measures;
x. Requests the Applicant to submit to the Court his Brief on other
forms of Reparations within thirty days of receipt of this Judgment;
also requests the Respondent to submit to the Court its Response on
Reparations within thirty days of receipt of the Applicant’s Brief;
xi. Rules that each Party shall bear its own costs.
Diakité v Mali (jurisdiction and admissibility) (2017) 2 AfCLR

118
Application 009/2016, Diakité Couple v Republic of Mali

Judgment, 28 September 2017. Done in English and French, the French
The Court found the Application inadmissible for non-exhaustion of local
remedies in a case where the Applicants, who were victims of robbery,
alleged that the crime was not sufficiently investigated by the police.
Admissibility (exhaustion of local remedies, filing civil suit, 46, 51-55)
I. The Parties
1. The Applicants, Mr and Mrs Diakité are citizens of Mali residing

in Bamako, Cité du CHU Point-G.
2. The Respondent is the Republic of Mali, which became a Party
to the African Charter on Human and Peoples’ Rights (hereinafter
referred to as “the Charter”) on 22 January 1982 and to the Protocol to
the African Charter on the Establishment of an African Court on Human
and Peoples’ Rights (hereinafter referred to as “the Protocol”) on 20
June 2000. The Republic of Mali also deposited, on 19 February 2010,
the Declaration recognizing the jurisdiction of the Court to hear cases
filed by individuals and non-governmental organizations. She further,
on 16 July 1974, acceded to the International Covenant on Civil and
Political Rights of 16 December 1966 (hereinafter referred to as “the
Covenant”).
3. The Court was seized of this matter by an Application dated

19 February 2015 together with written observations. Also annexed
thereto was the correspondence addressed by the Applicants to the
Malian judicial authorities in respect of the instant case.
A. The facts
4. The Applicants submit that, on 14 November 2012, their home

was robbed and vandalized by unknown persons. The items stolen
included an HP laptop computer, medical appliances, USB flash disks,
books, land allocation letter and copies of educational certificates.
Diakité v Mali (jurisdiction and admissibility) (2017) 2 AfCLR 118 119
5. According to the Applicants, a complaint against an unknown

person (complaint against X) was filed on the same day at the Office of
the State Prosecutor for Bamako District.
6. Fifteen (15) days after the robbery, a certain Oumar Maré
was found in possession of a knife from the home of the Applicants’
immediate neighbour, stolen on the same night their home was robbed
and vandalized.
7. Mr Oumar Maré was then brought to the Bamako 12th District
Police Station which took the statements of the complainants and the
witnesses. The suspect was however released after only five days in
custody.
8. The Applicants indicate that they seized, one after the other, the
Superintendent of the Police Unit concerned, the State Attorney and
the Prosecutor General of Bamako, and that no reply was received to
their complaint.
9. The Applicants submit that this attitude of the Bamako 12th

District Police headquarters constitutes a serious violation of their
rights as enshrined in Article 7 of the Charter which stipulates that
everyone shall have the right to have his cause heard; in particular, the
right to an appeal to competent national organs against acts violating
his fundamental rights as recognized and guaranteed by conventions,
laws, regulations and customs in force.
10. They also submit that by leaving unpunished the aggression of
which they have been victim, whereas they did all they could to get
one of the criminals arrested, the judicial authorities of Mali violated
their right to equality before the law and equal protection of the law as
set forth in Article 3 of the Charter; their right to peace as enshrined
by Article 23 of the Charter; their right to property as guaranteed by
Article 14 of the same Charter as well as Article 2(3)(a) and (b) of the
Covenant.
III. Summary of the procedure before the Court
11. The Application was filed on 19 February 2016.

12. On 4 April 2016, the Applicants filed their observations on the
question of exhaustion of local remedies. The said observations were
subsequently served on the Respondent on 6 April 2016.
13. On 22 April 2016, the Application was transmitted to all States
Parties to the Protocol and to the other entities mentioned in Rule 35(3)
of the Rules of Court (herein-after referred to as the “Rules”).
14. On 13 May 2016, the Respondent submitted its Response which
was transmitted to the Applicants on the same day. On 9 August 2016,

the Applicants filed their Reply.
15. On 17 August 2016, the Respondent sought leave of Court to file
a Rejoinder to the Applicants’ Reply.
16. The Court granted the request, and on 9 September 2016, the
Respondent filed its Rejoinder.
17. On 26 September 2016, the Registry notified the Parties that the
written procedure was closed. The Court decided not to hold a public
hearing on the matter.
IV. The Parties’ Prayers
18. The Applicants pray the Court to:

“i. declare their Application admissible and founded in fact
and in law;
ii. order the Respondent to enact special legislation
restricting the preliminary investigation to a set time limit;
iii. rule that failure to observe the set time limit will negatively
affect the preliminary investigation report;
iv. order the State of Mali to enact legislation recognizing the
responsibility of the State for the procedural misconduct
of its agents;
v. order the Respondent to pay them the following sums of
money:
1. 10,867,000 CFA F being the value of the items stolen;
2. 7,000,000 CFA F, being the hard-to-assess value of the
items and the works stolen;
3. 5,000,000 CFA F being the moral prejudices suffered by
the entire members of their family;
4. 9,000,000 CFA F being lawyer’s fees for the procedure at
local level and for the current procedure;
5. 1,000,000 CFA F being the procedural costs”.
19. The Respondent prays the Court :
“i. with respect to form: to declare the Application inadmissible
for failure to exhaust the local remedies;
ii. on the merits: should this issue arise, to dismiss the Application
as unfounded.”
V. Jurisdiction of the Court
20. In terms of Rule 39(1) of its Rules, the Court “…shall conduct
preliminary examination of its jurisdiction ...”

21. The Court notes that the Respondent does not contest its
jurisdiction. However, it notes that even if the Respondent has not
raised objection regarding its jurisdiction, it must, of its own motion,
satisfy itself that it has material, personal, temporal and territorial
jurisdiction to hear the Application.
22. As regards material jurisdiction, 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”.
23. The Court notes that the violations alleged by the Applicants
all relate to the Charter and the Covenant, instruments to which
the Respondent is a Party. It therefore holds that it has the material
jurisdiction to examine the instant case.
24. As regards the other aspects of its jurisdiction, the Court holds
that:
i. it has personal jurisdiction given that the Republic of Mali is a
Party to the Protocol, and has also deposited the declaration
prescribed under Article 34(6) cited above (supra paragraph 2);
ii. it has temporal jurisdiction given that the alleged violations
occurred after the entry into force of the afore-mentioned
instruments in respect of the Respondent (supra paragraph 2);
iii. it has territorial jurisdiction in so far as the facts occurred on the
Respondent’s territory.
25. It thus follows from all the foregoing considerations that the
Court has jurisdiction to hear the instant case.
VI. Admissibility of the Application
26. In terms of Article 6(2) of the Protocol: “the Court shall rule on
27. Rule 40 of the Rules which essentially reproduces the contents
of Article 56 of the Charter, provides that:
“Pursuant to the provisions of Article 56 of the Charter to which Article
6(2) of the Protocol refers, applications to the Court shall comply with the
following conditions:
“(1) disclose the identity of the Applicant notwithstanding the latter’s

2. comply with the Constitutive Act of the Union and the Charter;
3. not contain any disparaging or insulting language;
4. not be based exclusively on news disseminated through the

mass media;
5. be filed after exhausting local remedies, if any, unless it is
6. be filed within a reasonable time from the date local remedies
with the matter;
7. not raise any matter or issues previously settled by the Parties
28. Of the seven (7) conditions mentioned above, the Respondent
raised only one objection in relation to exhaustion of local remedies.
A. Conditions that are not in contention
29. The Court notes that the conditions mentioned in sub-paragraphs

1, 2, 3, 4, 6 and 7 of Rule 40 of the Rules are not in contention between
the Parties.
30. The Court further notes that nothing in the records submitted to
it by the Parties suggests that any of the said conditions would not be
fulfilled in the instant case.
31. Consequently, it finds that the afore-mentioned conditions have
been met in the instant case.
B. The objection to admissibility on the ground of failure

to exhaust the local remedies
32. The Respondent submits that it was premature on the part of

the Applicants to have brought the instant case before this Court given
that there were still local remedies available to them.
33. According to the Respondent, the Applicants, by virtue of
Article 62 of Law No. 01-080 of 20 August 2001 on the Code of
Criminal Procedure of Mali, could have instituted civil action before
the investigating judge. It maintains that this procedure does not even
require, as a precondition, discontinuation of a case by the State
Attorney.
34. The Respondent maintains that, contrary to the Applicants’
allegations, there has been no inaction on the part of the Public
Prosecutor’s Office or an attempt by the Police to stifle the complaint;
that the Applicants had it in their imagination that Mr Oumar Maré
apprehended two weeks after the burglary and interrogated on another
robbery committed in the home of their neighbour, was the author of the
robbery of which they are victims, whereas the two cases are distinct
and have no proven link between them.
35. It contends that in the context of Mr Oumar Maré’s arrest,
a search was conducted at his home and none of the items stolen
from the Applicants’ home was found there; that despite all that, the
Applicants are intent on getting justice to prosecute and convict Mr
Oumar Maré as the author of the robbery, whereas no evidence of guilt
has been found against him.
36. It further contends that if the Applicants were so convinced that
Mr. Oumar Maré was the perpetrator of the robbery, and given the
alleged inaction of the Police and the Office of the State Attorney, they
could have brought a civil action before the competent investigating
judge; that, in reality, the Applicants were apprehensive of the uncertain
outcome of such a procedure and would want this Court to substitute
itself for the domestic Courts in order for them to obtain redress.
37. The Respondent, in conclusion, submits that it has not violated
any rights of the Applicants in terms of the domestic proceedings.
38. In their Reply, the Applicants maintain that filing a civil suit is
not a remedy within the meaning of Article 56(5) of the Charter; that
in the Republic of Mali, a victim has the option of referring a case to
the State Attorney or to an Investigating Judge; that the use of either
option closes the other for the purposes of proper administration of
justice; that, besides, the two procedures have the same finality, that
is, investigation by an investigating judge.
39. They maintain that the attitude on the part of the judicial
authorities of Mali of abandoning the procedure at the initial stage for
over three (3) years constitutes an undue prolongation of the procedure
within the meaning of Article 56(5) of the Charter.
40. Relying on the Decision of the African Commission on Human
and Peoples’ Rights in Communication Dawda K Jawara v The
Republic of The Gambia (Communication No. 147/95-149/96), the
Applicants submit that the remedy proposed by the Respondent is
neither effective nor sufficient and that, the undue prolongation of
local procedures provides justification for the Court to declare their
Application admissible.
41. As the Court underscored in its previous judgments, the rule
regarding the exhaustion of local remedies prior to referral to an
international human rights Court is one that is recognized and accepted
internationally.1
42. It is clear from the records that the Applicants do not contest
1 Application 004/2013, Lohé Issa Konaté v Burkina Faso (Preliminary Objections),

Judgment of 5 December 2014, para 78.
that they have not used the totality of the judicial remedies existing
in the Respondent State’s system. What is in contention between the
Parties is, on the one hand, the question as to whether the duration of
the procedure at national level has been unduly prolonged within the
meaning of Article 56(5) of the Charter and Rule 40(5) of the Rules;
and, on the other, the question as to whether referral to the investigating
judge is, in the judicial system of the Respondent State, a remedy that
is available, effective and sufficient.
43. Whereas the Respondent contends that the procedure was
stalled because the Police was unable to apprehend the perpetrator(s)
of the robbery, the Applicants, for their part, maintain that the author of
the robbery was identified, but that the Police and Office of the State
Attorney did not take steps to close the case at their level.
44. The question that arises at this juncture is whether there exists
in the Respondent’s judicial system a remedy that the Applicants
could have exercised to by-pass what they have described as “lack of
diligence on the part of the Police and the Office of the State Attorney”.
45. In this regard, Article 62 of the Code of Criminal Procedure of
Mali states that: “Any person claiming to be aggrieved by a crime or a
misdemeanor may lodge a complaint in a civil suit before a competent
investigating judge”.
46. It is clear from the foregoing provision that the Applicants had, at
least, the possibility of bringing the case directly before an investigating
judge by filing a civil suit.
47. As regards the effectiveness and sufficiency of this remedy,
Article 90 of the Code of Criminal Procedure of Mali provides that:
“The investigating judge shall, in accordance with the law, undertake
all such acts of information as he deems useful to ensure manifestation
of the truth.”
48. Article 112 of the same Code stipulates that: “Counsel for the
accused and the civil party, both during the investigation and after
communication of the proceedings to the registry, may in writing close
the hearing of new witnesses, adversarial sessions, expert opinions
and all such acts of investigation as they consider relevant for the
defense of the accused and the interests of the civil party. The judge
shall give reasons for the order by which he refuses to carry out any
additional investigative measures requested of him. The accused and
the civil party may appeal the order, either by themselves or through
their counsel.”
49. It is apparent from the foregoing provisions that the investigating
judge can undertake all acts of investigation requested of him by the
accused or the injured party, and that the latter even has the right to
appeal an order that refuses to undertake the investigative measures
requested.
50. It is noteworthy at this juncture that a complaint filed together

with a civil suit enables the victim to get associated with the conduct of
the procedure and that, in his capacity as a Party to the penal process
has the right to directly request the investigating judge to commence
an investigation.
51. In view of the foregoing, the Court holds in conclusion that referral
to the investigating judge is, in the Respondent’s judicial system, an
effective and sufficient remedy which the Applicants could exercise to
obtain, or at least seek to obtain consideration of their complaint.
52. Having failed to exercise this remedy, the Applicants are not
founded in submitting that the proceedings have been unduly prolonged
or that this remedy has supposedly not resolved their problem.
53. In its previous judgments, the Court established that exhausting
local remedies is an exigency of international law and not a matter
of choice; that it lies with the Applicant to take all such steps as are
necessary to exhaust or at least endeavor to exhaust local remedies;
and that it is not enough for the Applicant to question the effectiveness
of the State’s local remedies on account of isolated incidents2.
54. In view of the foregoing, the Court finds that the Applicants have
not complied with the requirement of exhaustion of local remedies
set forth in Article 56 (5) of the Charter, and that, consequently, their
Application is inadmissible.
55. Having found that the Application is inadmissible for failure to
exhaust local remedies, the Court decides that the matter shall not be
examined on the merits.
VII. Costs
56. In accordance with Rule 30 of its Rules: “Unless otherwise

decided by the Court, each party shall bear its own costs”.
57. Having taken the circumstances of the instant case into account,
the Court decides that each Party shall bear its own costs.
The Court
Unanimously
i. Declares that it has jurisdiction to hear this matter;
ii. Upholds the Respondent’s objection regarding the inadmissibility
of the Application for failure to exhaust the local remedies;
iii. Declares the Application inadmissible;
iv. Rules that each Party shall bear its own costs.
2 Peter Joseph Chacha v United Republic of Tanzania (Application No 003/2012),

Judgment of 28 March 2014, paras 142,143 and 144.
Thomas v Tanzania (interpretation) (2017) 2 AfCLR 126
Application 001/2017, Alex Thomas v United Republic of Tanzania

MENGUE, MUKAMULISA, CHIZUMILA and BENSAOULA
Rule 66(4) applied in respect of Judges THOMPSON and TAMBALA
Interpretation of judgment delivered by the Court in 2015 requested by
Tanzania on the meaning of “all necessary measures” and “precluding
reopening and retrial” in reparation of fair trial rights violations. The Court
ruled that Tanzania should take measures to eliminate the effects of
the violation which could include release of the imprisoned person, but
should not include retrial.
Reparations (fair trial, re-opening of domestic proceedings, 34, 42;
eliminate effects of violation, 35, 39, 40)
I. Procedure
1. The United Republic of Tanzania filed, pursuant to Article 28(4)

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 66(1) of the Rules an
Application dated 24 January 2017 and received at the Registry of the
Court on 30 January 2017, for interpretation of the Judgment rendered
on 20 November 2015 in the above-mentioned matter. The United
Republic of Tanzania also filed, pursuant to Practice Direction No. 38
of the Practice Directions of the Court, an application for extension of
time to file the Application for interpretation of the Judgment.
2. By a notice dated 3 February 2017, the Registry transmitted a
copy of the Application for extension of time to file the Application for
Interpretation of Judgment to Mr Alex Thomas, who was invited to file
observations within fifteen (15) days of receipt. He filed the observations
on 17 February 2017 and these were transmitted to the United Republic
of Tanzania, for information, by a letter dated 21 February 2017. In the
said observations, Mr Thomas opposed the granting of the extension
of time to file the application, maintaining that, the time limit for doing
so had expired by 10 months and that there are measures that the
United Republic of Tanzania can take to implement the judgment.
3. On 14 March 2017, during the Court’s 44th Ordinary Session
held from 6 to 24 March 2017, the Court decided to grant, in the
interest of justice, the United Republic of Tanzania’s request to file the
Application for Interpretation of Judgment out of time.
Thomas v Tanzania (interpretation) (2017) 2 AfCLR 126 127
4. The Application for interpretation of Judgment was served on

Mr. Thomas by a notice dated 14 March 2017. By the same notice,
and pursuant to the provisions of Rule 66(3) of the Rules, Mr. Thomas
was invited to submit written observations within 30 days from receipt
thereof, which he filed on 18 April 2017.
5. At its 45th Ordinary Session held from 8 to 26 May 2017,
proceedings in the matter. In accordance with Rule 66(3) of the Rules,
the Court decided not to hold a public hearing in the matter.
II. The request for interpretation
6. As indicated above, the instant Application concerns the

Judgment rendered by the Court on 20 November 2015 (the Matter
of Alex Thomas v The United Republic of Tanzania (Application
005/2013), the relevant paragraphs of which are worded as follows in
the operative provisions:
“For these reasons,
161. The Court,
holds,
vii. Unanimously, that there has been a violation of Articles 1 and

7(1) (a), (c) and (d) of the Charter and Article 14(3)(d) of the
ICCPR.
viii. By a vote of six (6) to two (2), Judge Elsie N. THOMPSON, Vice-
President and Judge Rafâa BEN ACHOUR dissenting, that the
Applicant’s prayer for release from prison is denied.
ix. Unanimously, that the Respondent is directed to take all
necessary measures within a reasonable time to remedy
the violations found, specifically precluding the reopening
of the defence case and the retrial of the Applicant, and to
inform the Court, within six (6) months, from the date of this
judgment of the measures taken.”
7. Referring to Rule 66(1) of the Rules, the United Republic of
Tanzania, avers that it is encountering difficulties in the implementation
of the judgment due to varied interpretations by the actors involved
in the administration of criminal justice at the national level, who are
required to implement the judgment.
8. Consequently, the United Republic of Tanzania prays the Court
to clarify the meaning of the expression “all necessary measures” used
in point ix of the operative provisions of the Judgment. More specifically,
the United Republic of Tanzania requests clarification on the measures
it is required to implement and what the benchmarks for “all” and for
“necessary” are, to enable it take tangible and definitive action.
9. The United Republic of Tanzania asserts that the “violations
found” have not been highlighted in the operative provisions of the
Judgment therefore they are seeking guidance on whether they relate
to what is stated in the text of the judgment or whether the violation to
be remedied should be on the aspect of “specifically precluding the
reopening of the defence case and the retrial of the Applicant”. The
United Republic of Tanzania also seeks to understand how to remedy
the violation.
10. The United Republic of Tanzania is seeking an interpretation of
the word “precluding”, stating that it had initially interpreted the word
“precluding” to mean excluding but that discussions with stakeholders
have brought to light another interpretation to mean “to perform or to
include”. In this regard, the United Republic of Tanzania wishes to have
clarification on whether the order of the Court is “to re-open” the trial
and if so, the Court should clarify at what stage the trial should be
reopened, whether from the beginning or for the defence’s case only.
III. Observations of Mr Alex Thomas
11. Mr Thomas notes that the Application for interpretation of

Judgment has been filed out of time without any explanation and also
that it has failed to meet the provisions of Rule 66 of the Rules. He
maintains that the United Republic of Tanzania has continuously failed
to implement the Court’s Orders by not reporting on the measures
taken to remedy his situation within six (6) months of the Judgment
and by failing to respond to his submissions on reparations.
12. Mr Thomas emphasises that the Application for interpretation
of Judgment should have preceded the filing of the report on
implementation of the Judgment, which he notes has been filed almost
eight (8) months out of time. He urges the Court, when considering the
admissibility of the Application, to take into consideration the prejudice
occasioned to him by the United Republic of Tanzania’s failure to adhere
to the Court’s Orders and the filing of the Application for interpretation.
13. Mr Thomas states that the United Republic of Tanzania has
misinterpreted the meaning of the word “precluding” to mean that the
Court ordered a re-opening of the defence case and a retrial at the
same time.
14. He also contends that there are various options, either taken
alone or in combination, which the United Republic of Tanzania can
effect in compliance with the Court’s Order to “take all appropriate
measures within a reasonable time frame, to remedy all the violations
established”; that the United Republic of Tanzania’s legislation
provides for many possible remedies for wrongfully convicted persons

such as himself; that these remedies include, but are not limited to, the
following:
“a. Remission of sentence, provided for under the Penal
Code Chapter 16, which at Section 27 (2) provides for
the remission of a prison sentence in respect of which
the United Republic of Tanzania could have filed an
application at the Court of Appeal for the remission of the
Applicant’s thirty (30) years prison sentence.
b. Outright or conditional discharge provided for under
Section 38 of the Penal Code which confers powers on the
Court which convicted an offender to order his absolute or
conditional discharge, provided that the offender does not
commit another offence during the period of conditional
discharge, and such period must not exceed 12 months.
In this regard, since the Applicant has served twenty (20)
years of his thirty (30) years’ sentence and considering
the favourable Judgment of this Court and his conduct
during his imprisonment, the United Republic of Tanzania
could have taken this measure.
c. Presidential pardon, provided for under Section 45 of the
Constitution of the United Republic of Tanzania, pursuant
to which the President of the United Republic of Tanzania
may grant pardon, with or without condition, to any person
convicted of an offence by a court.”
15. Mr Thomas submits that the delay in implementing the Court’s
Orders and in submitting the relevant report on compliance thereof has
aggravated and unduly prolonged the violation of his rights and in light
of this, the Court should set him free to ensure there are no further
infringements of his rights.
16. Mr Thomas prays for:
“1. A Declaration that the Respondent is in default of this
Honourable Court’s Orders by failing to file a Report
within six months of delivery of Judgment.
2. A Declaration that the Respondent is in further default
of Orders by failing to file a Response to the Applicant’s
Submissions on Reparations on time or at all.
3. A Declaration that the instant Application is, in any case,
frivolous, vexatious and an abuse of the process of this
Honourable Court.
4. An Order to set the Applicant free pending the Judgment
on reparations.”
IV. Jurisdiction of the Court
17. The instant Application for interpretation concerns the Judgment

rendered by the Court on 20 November 2015.
18. In terms of Article 28(4) of the Protocol “… the Court may
interpret its own decision.’’
19. The Court consequently finds that it has jurisdiction to interpret
the said Judgment.
V. Admissibility of the Application
20. Rule 66(1) and (2) of the Rules provide as follows:

“1. Pursuant to Article 28(4) of the Protocol, any party may,
for the purpose of executing a judgment, apply to the
Court for interpretation of the judgment within twelve
months from the date the judgment was delivered unless
the Court, in the interest of justice, decides otherwise”.
2. The application shall be filed in the Registry. It shall state
clearly the point or points in the operative provisions of
the judgment on which interpretation is required.”
21. It is clear from these provisions that an Application for
interpretation of a Judgment can be declared admissible only when it
fulfills three conditions:
“a. its objective must be to facilitate the execution of the
Judgment;
b. it must be filed within twelve (12) months following the
date of the delivery of the Judgment unless the Court, “in
the interest of justice’ decides otherwise”; and
c. it must clearly state the point or points of the operative
provision of the Judgment on which interpretation is
required.”
22. As regards the purpose of the instant Application, the Court
wishes to clarify an aspect of the operative part of the judgment in
order to facilitate the execution of the Judgment rendered by the Court
on 20 November 2015.
23. The Court notes that the instant Application actually aims to
clarify a point in the operative provisions of the Judgment rendered by
the Court on 20 November 2015 and thus facilitate its execution.
24. Consequently, it finds that the Application fulfills the first condition
provided under Rule 66(1) of the Rules.
25. With regard to the time limit within which such an Application
should be filed, the Court notes that the Judgment in respect of which
interpretation is requested was rendered on 20 November 2015 and that
the United Republic of Tanzania filed its Application for interpretation

on 30 January 2017, just over two (2) months after the twelve (12)
month period provided under Rule 66(1) of the Rules. However, Rule
66(1) allows the Court to accept such applications even after the twelve
(12) month period specified, if this is in the interest of justice. The Court
considered the circumstances of the matter and decided to allow the
application on this basis.
26. Lastly, the Court notes that the United Republic of Tanzania
clearly stated the points in the operative provisions of the Judgment
on which interpretation is required, namely, the terms and expressions
used in point (ix) of the operative provisions of the Judgment.
27. In view of the aforesaid, the Court finds that the instant Application
for interpretation fulfills all the conditions of admissibility.
VI. Interpretation of the judgment
28. In its judgment of 20 November 2015, the Court ordered the

United Republic of Tanzania to take all necessary measures to remedy
the violations found.
29. On the first question, the United Republic of Tanzania prays the
Court to interpret the expression “all necessary measures” used in
point ix of the operative provisions of the Judgment.
30. The Court notes that in examining an Application for interpretation,
it does not complete or modify the decision it rendered it being a final
decision with the effect of res judicata – but clarifies the meaning and
scope thereof.
31. Court wishes to recall the principle generally applied by
international jurisdictions that reparation should, as far as possible,
erase the consequences of an unlawful act and restore the state which
would have presumably existed if the act had not been committed.
32. In this regard, Article 27(1) of the Protocol provides that: “if the
Court finds that there has been violation of a human or peoples’ rights,
it shall make appropriate orders to remedy the violation, including the
payment of fair compensation for reparation”.
33. As has been stated above the most appropriate form of remedy
for violation of the right to a fair trial is to act in such a way that the victim
finds himself or herself in the situation that he or she would have been
had the violation found not been committed. To attain this objective,
the United Republic of Tanzania has two alternatives: it should either
reopen the case in compliance with the rules of a fair trial or take all
appropriate measures to ensure that the Applicant finds himself in the
situation preceding the violations.
34. As regards the first option, the Court is of the view that reopening
the case would not be a just measure, in as much as the Applicant has
already spent twenty one (21) years in prison, more than half of the
prison sentence, and given that a fresh judicial procedure could be
long.1 Accordingly, the Court has excluded such a measure.
35. Concerning second option, the Court intended to offer the United
Republic of Tanzania State room for evaluation to enable it to identify
and activate all the measures that would enable it eliminate the effects
of the violations established by the Court.
36. The Court specifies at this juncture that in its Judgment of
20 November 2015, it did not state that the Applicant’s request was
unfounded. It merely indicated that it could order such a measure
directly, only in specific and compelling circumstances which have not
been established in the instant case.
37. The second question for which the United Republic of Tanzania
is seeking clarification is, on whether the violations found are what is
stated in the text of the judgment or whether the violation to be remedied
should be on the aspect of “specifically precluding the reopening of the
defence case and the retrial of the Applicant”. The United Republic of
Tanzania also seeks to understand how to remedy the violation.
38. The Court notes that point vii of the operative provisions of the
Judgment specified the provisions that the United Republic of Tanzania
was found to have violated, that is, Articles 1 and 7(1)(a), (c) and (d)
of the African Charter on Human and Peoples’ Rights and Article 14(3)
(d) of the International Covenant on Civil and Political Rights and
consequently it should take all necessary measures to remedy these
violations.
39. The Court clarifies that the expression “all necessary measures”
includes the release of the Applicant and any other measure that would
help erase the consequences of the violations established and restore
the pre-existing situation and re-establish the rights of the Applicant.
40. The Court further clarifies that the expression “remedy all
violations found” should therefore mean to “erase the effects of the
violations established” through adoption of the measures indicated in
the preceding paragraph.
41. The third question for which the United Republic of Tanzania is
seeking an interpretation is on the word “precluding”.
42. The word precluding means “preventing, banning or forbidding”.
It is therefore clear that the Court is prohibiting certain action, specifically
that the United Republic of Tanzania should not retry the Applicant or
re-open the defence case. As mentioned before, this is because doing
so would result in prejudice to the Applicant who has already served
1 Application No. 005/2013 Alex Thomas v United Republic of Tanzania, Judgment

of 20 November 2015 para 158.
twenty one (21) years of his thirty (30) years prison sentence.
VII. Costs
43. In terms of Rule 30 of the Rules, “unless otherwise decided by

the Court, each party shall bear its own costs”.
44. Taking into account the circumstances of this matter the Court
decides that each party should bear its own costs.
The Court,
Unanimously:
i. Declares that it has jurisdiction to hear the instant Application;
ii. Declares that the Application is admissible;
iii. Rules that by the expression “all necessary measures”, the Court
was referring to the release of the Applicant or any other measure that
would help erase the consequences of the violations established,
Applicant;
iv. Rules that the expression “remedy the violations found” means
“erase the effects of the violations found” through the adoption of the
measures indicated in point iii above;
v. Rules that the term “precluding” means, “rule out or prohibit”,
which, when read togeSther with the expression “reopening of the
defence case and the retrial of the Applicant” means that the reopening
of the defence case and the retrial of the Applicant is ruled out;
vi. Rules that each Party shall bear its own costs.
Application 002/2017, Mohamed Abubakari v United Republic of

Tanzania
Rule 66(4) applied in respect of THOMPSON, OUGUERGOUZ and
TAMBALA
Interpretation of judgment delivered by the Court in 2015 requested by
Tanzania on the meaning of “all appropriate measures” and “remedy
all violations established” in reparation of fair trial rights violations. The
Court ruled that Tanzania should take measures to eliminate the effects
of the violation which could include release of the imprisoned person, but
should not include retrial.
Reparations (fair trial, re-opening of domestic proceedings, 34; eliminate
effects of violation, 35, 38)
I. Procedure
1. The United Republic of Tanzania, pursuant to Article 28(4) of

the Protocol to the African Charter on Human and Peoples’ Rights on
(herein-after referred to as “the Protocol”) and Rule 66(1) of the Rules,
filed before the Court an Application for interpretation of the Judgment
of 3 June 2016 on the above-mentioned matter.
2. Dated 24 January 2017, the Application was received at the
Registry of the Court on 30 January 2017.
3. On 2 February 2017, the Registry served a copy of the Application
on Mr Mohamed Abubakari and invited the latter to submit his written
observations, if any, within thirty (30) days from receipt thereof, in
accordance with the provisions of Rule 66(3) of the Rules.
4. On 28 March 2017, Mr Mohamed Abubakari filed his observations,
after the expiry of the 30 days deadline, and prayed the Court to accept
the said observations.
5. On 2 April 2017, the Court examined the Applicant’s request and
decided to grant the same in the interest of justice.
6. By notice dated 11 April 2017, the Parties were notified of the
Court’s decision to close the written procedure. The Court did not
deem it necessary to hold a public hearing.
Abubakari v Tanzania (interpretation) (2017) 2 AfCLR 134 135
II. The request for interpretation
7. As indicated above, the instant Application for interpretation

concerns the Judgment rendered by the Court on 3 June 2016 in the
Matter of Mohamed Abubakari v The United Republic of Tanzania
(Application 007/2013), the relevant paragraphs of which are worded
as follows in the operative provisions:

“For these reasons, the Court,
Unanimously,
…
ix. Rules that the Respondent State has violated Article 7 of the
Charter and Article 14 of the Covenant as regards the Applicant’s
rights to defend himself and have the benefit of a Counsel at
the time of his arrest; to obtain free legal assistance during the
judicial proceedings; to be promptly given the documents in the
records to enable him defend himself; his defense based on the
fact that the Prosecutor before the District Court had a conflict of
interest with the victim of the armed robbery, to be considered
by the Judge; not to be convicted solely on the basis of the
inconsistent testimony of a single witness in the absence of any
identification parade; and to have his alibi defense given serious
consideration by the Respondent State’s Police and Judicial
Authorities;
…
xii. Orders the Respondent State to take all appropriate measures
within a reasonable time frame to remedy all violations
established, excluding a reopening of the trial, and to inform the
Court of the measure so taken within six (6) months from the
date of this Judgment
…”
8. Referring to Rule 66(1) of the Rules, the United Republic of
Tanzania avers that it is encountering difficulties in the implementation
of the Judgment due to varied interpretations by the actors involved
in the administration of criminal justice at the national level, who are
required to implement the Judgment.
9. Consequently, it prays the Court to provide it with clarifications
on the meaning of the expression ‘’all appropriate measures” used
in point xii of the operative provisions of the Judgment, adding that
the interpretation of the said terms will enable it to take tangible and
definitive action.
10. The United Republic of Tanzania also seeks to understand what
the Court means by the expression “remedy all violations established”
given, it emphasizes, that the acts concerned have already been
carried out.
III. Observations of Mr Mohamed Abubakari
11. Mohamed Abubakari first indicates that the Application for

interpretation seems to have been filed within the time frame prescribed
under Rule 66 of the Rules; that, however, the time frame under the
said Rule 66 cannot be interpreted in isolation; and that the other
measures in the operative provisions of the Court’s Judgment of 3 June
2016 must be taken, in consideration of the clause which enjoins the
United Republic of Tanzania to notify the Court of the measures taken
to remedy the violations established within six (6) months following the
date of the Judgment.
12. He argues that the United Republic of Tanzania filed a report on
the measures it has taken outside the specified time of six (6) months
set by the Court, and that the said report represents only partial
implementation of the measures ordered by the latter.
13. Abubakari further maintains that had the United Republic of
Tanzania sought to have all or part of the Judgment interpreted, it
could have so requested as soon as possible and in any case, prior
to the expiry of the time frame ordered by the Court to receive the
Respondent’s report; and that the Application for interpretation should
therefore have preceded the report on implementation.
14. He further contends that there are various options, either taken
alone or in combination, which the United Republic of Tanzania effects in
compliance with Court’s Order to “take all appropriate measures within
a reasonable time frame to remedy all the violations established”; that
the United Republic of Tanzania legislation provides for many possible
remedies for wrongfully convicted persons such as himself; that these
remedies include, but not limited to, the following:
“a. Remission of sentence, provided for under the Tanzanian
Penal Code CAP 16 which at section 27(2) provides
for the remission of prison sentence in respect of which
the United Republic of Tanzania could have filed an
Application at the Court of Appeal for the remission of
Applicant’s thirty (30) years prison sentence.
b. Outright release or conditional release, provided under
section 38 of the Tanzanian Penal Code which confers
on the Court which convicted an offender the power to
order his absolute or conditional discharge, provided that
the offender does not commit another offence during the
period of conditional discharge, and such period must not
exceed 12 months. In this regard, since the Applicant has
already served twenty (20) years of his thirty (30) years’
sentence, and considering the favourable Judgment

of this Court and his conduct during his imprisonment,
the United Republic of Tanzania could have taken this
measure.
c. Presidential pardon, provided under section 45 of the
Constitution of the United Republic of Tanzania, pursuant
to which the President of the United Republic of Tanzania
may grant pardon, with or without condition, to any person
convicted of an offence by a national Court.”
15. Lastly, Mr Abubakari submits that the delay in implementing the
Court’s Orders and in submitting the relevant report on compliance
thereof, has aggravated and unduly prolonged the violation of his
rights; and for these reasons, he prays the Court to:
“i. rule that the United Republic of Tanzania has not complied
with the Order of this Court enjoining it to file a report on
the implementation of its Orders within six (6) months of
delivery of the Judgment”;
ii. declare the Application frivolous, vexatious and an abuse
of the process of this Honourable Court;
iii. order his release pending the Judgment on reparations.”

concerns the Judgment rendered by the Court on 3 June 2016.
17. In terms of Article 28(4) of the Protocol to the African Charter
on Human and Peoples’ Rights on the Establishment of an African
Court on Human and Peoples’ Rights (herein-after referred to as “the
Protocol’’) “… the Court may interpret its own decision’’.
18. The Court consequently finds that it has jurisdiction to interpret
the said Judgment.
V. Admissibility of the Application
19. Rule 66(1) and (2) of the Rules provide as follows:

“1. Pursuant to Article 28(4) of the Protocol, any party may, for
the purpose of executing a judgment, apply to the Court for
interpretation of the judgment within twelve months from the
date the judgment was delivered unless the Court, in the interest
of justice, decides otherwise.”
2. The Application shall be filed in the Registry. It shall state clearly
the point or points in the operative provisions of the judgment on
which interpretation is required.”
20. It emerges from these provisions that an Application for

interpretation of a Judgment can be declared admissible only when it
fulfills the following three conditions:
“a. its objective must be to facilitate the execution of the Judgment;
b. it must be filed within twelve (12) months following the date of
the delivery of the Judgment unless the Court, “in the interest of
justice decides otherwise; and
c. it must clearly state the point or points of the operative provisions
of the Judgment on which interpretation is required.
21. As regards the purpose of the instant Application, the United
Republic of Tanzania requests interpretation of the expression
“all appropriate measures” used in the operative provisions of the
Judgment.
22. The Court notes that this request actually aims to clarify a point
in the operative provisions of the Judgment rendered by the Court on 3
June 2016, and thus facilitate its execution.
23. Consequently, it finds that the Application fulfills the first condition
provided under Rule 66(1) of the Rules.
24. With regard to the time limit within which an Application should
be filed, the Court notes that the applicable time limit is that which is
prescribed under Rule 66(1) of the Rules, and not the time frame of six
(6) months allowed by the Court for the Respondent to notify it of the
measures taken.
25. The United Republic of Tanzania, having filed its Request for
interpretation on 30 January 2017, that is, within the time frame of
eight (8) months and twenty-seven (27) days, the Court finds that the
United Republic of Tanzania seized the Court of its Application for
interpretation within the statutory time frame of twelve (12) months
provided under Rule 66 (1) of the Rules.
26. Lastly, the United Republic of Tanzania clearly stated the points
in the operative provisions of the Judgment on which interpretation is
required, namely, the terms and expressions used in point xii of the
operative provisions of the Judgment.
27. In view of the aforesaid, the Court finds that the instant Application
for interpretation fulfills all the conditions of admissibility.
VI. Interpretation of the Judgment
28. In its Judgment of 3 June 2016, the Court ordered the United
Republic of Tanzania to take all appropriate measures to remedy the
violations found.
29. On the first question, the United Republic of Tanzania prays the
Court to interpret the expression “all appropriate measures” used in
point xii of the operative provisions of the Judgment.
30. The Court notes that, in examining an Application for

interpretation, it does not complete or modify the decision it rendered -
it being a final decision with the effect of res judicata - but clarifies the
meaning and scope thereof.
31. In the context of the instant request for interpretation, the
Court wishes to recall the principle generally applied by international
jurisdictions that reparation should, as far as possible, erase the
consequences of an unlawful act and restore the state which would
have presumably existed if the act had not been committed.
32. In this regard, Article 27(1) of the Protocol provides that: “if the
Court finds that there has been violation of a human or peoples’ rights,
it shall make appropriate orders to remedy the violation, including the
payment of fair compensation or reparation.”
33. As has been stated above, the most appropriate form of remedy
for violation of the right to a fair trial is to act in such a way that the
victim finds him/herself in the situation that he/she would have been
had the violation found not been committed. To attain this objective,
the United Republic of Tanzania has two options: it should either
reopen the case in compliance with the rules of a fair trial or take all
appropriate measures to ensure that the Applicant finds himself in the
situation preceding the violations.
34. As regard the first option, the Court is of the view that reopening
the case would not be a just measure, in as much as the Applicant
has already spent nineteen (19) years in prison, more than a half of
the prison sentence, and given that a fresh judicial procedure could be
long. Accordingly, the Court has excluded such a measure.
35. Concerning the second option, the Court intended to offer the
United Republic of Tanzania room for evaluation to enable it to identify
and activate all the measures that would enable it to eliminate the
effects of the violations established by the Court.
36. The Court specifies in this respect that in its Judgment of 3
June 2016, it did not state that the Applicant’s request to be set free
was unfounded. It merely indicated that it could order such a measure
directly, only in special and compelling circumstances which have not
been established in the instant case.
37. The second question posed reads as follows “ … given that these
acts have already been carried out, the United Republic of Tanzania
would like to understand how to remedy the violation and interpret the
term “remedy”.
38. The Court clarifies that the expression “all appropriate measures”
includes the release of the Applicant and any other measure that would
help erase the consequences of the violations established, restore the
pre-existing situation and re-establish the rights of the Applicant.
39. The Court further clarifies that the expression “remedy all
violations established” should mean to “erase the effects of the

violations established” through adoption of the measures indicated in
the preceding paragraph.
VII. Costs

41. Taking into account the circumstances of this matter, the Court
decides that each Party should bear its own costs.
The Court,
Unanimously:
i. Declares that it has jurisdiction to hear the instant Application
ii. Declares that the Application is admissible
iii. Rules that by the expression “all appropriate measures”, the
Court was referring to the release of the Applicant or any other measure
that would help erase the consequences of the violations established,
Applicant
iv. Rules that the expression “remedy the violations established”
means “erase the effects of the violations established” through the
adoption of the measures indicated in point iii above
v. Rules that each Party shall bear its own costs.
APDH v Côte d’Ivoire (interpretation) (2017) 2 AfCLR 141 141
Actions pour la Protection des Droits de l’Homme (APDH) v

Côte d’Ivoire (interpretation) (2017) 2 AfCLR 141
Application, 003/2017, Actions pour la Protection des Droits de l’Homme

(APDH) v Republic of Côte d’Ivoire
Judgment, 28 September 2017. Done in English and French, the French
Judges: KIOKO, NIYUNGEKO, GUISSE, BEN ACHOUR, BOSSA,
Recused under Article 22: ORE
Request for interpretation of judgment of the Court on the merits of a
case involving independence and impartiality regarding the composition
of the Independent Electoral Commission. The Court declared the
request inadmissible as it did not intend to clarify the operative provisions
of the judgment.
Admissibility (need to specify the sections of operative part, 15; request
for interpretation 18, 19)
I. Procedure
1. The Republic of Côte d’Ivoire filed before this Court by virtue of

Article 28(4) of the Protocol and Rule 66(1) of the Rules, an Application
for Interpretation of the Judgment delivered by the Court on 18
November 2016 in the afore-mentioned Matter.
2. The Application dated 4 May 2017 was received at the Court’s
Registry on the same date and on 8 May 2017 was transmitted to
APDH for possible observations.
3. On 19 June 2017, APDH filed its observations which were
transmitted to the Republic of Côte d’Ivoire by a notice of the same
date.
4. At its 46th Ordinary Session held from 4 to 22 September 2017,
written procedure.
5. The Court did not deem it necessary to hold a public hearing.
II. Application for interpretation
6. As stated above, the instant Application for Interpretation

concerns the Court’s Judgment of 18 November 2016 in the Matter of
APDH v Republic of Côte d’Ivoire (Application 001/2014), the operative
provisions of which read as follows:
“The Court,
(5) Rules that the Respondent State has violated its obligation
to establish an independent and impartial electoral body as
provided under Article 17 of the African Charter on Democracy
and Article 3 of the ECOWAS Democracy Protocol, and
consequently, also violated its obligation to protect the right of
the citizens to participate freely in the management of the public
affairs of their country guaranteed by Article 13(1) and (2) of the
African Charter on Human and Peoples’ Rights;
(6) Rules that the Respondent State has violated its obligation to
protect the right to equal protection of the law guaranteed by
Article 10(3) of the African Charter on Democracy, Article 3(2) of
the African Charter on Human and Peoples’ Rights and Article
26 of the International Covenant on Civil and Political Rights;
(7) Orders the Respondent State to amend Law No. 2014-335 of 18
June 2014 on the Independent Electoral Commission to make
it compliant with the aforementioned instruments to which it is a
Party;
(8) Orders the Respondent State to submit to it a report on the
implementation of this decision within a reasonable time which,
in any case, should not exceed one year from the date of
publication of this Judgment”
7. In its Application for interpretation, the Republic of Côte d’Ivoire
prayed the Court to provide answers to the following three questions:
“(i) For the purposes of implementing the Judgment, the State
of Côte d’Ivoire prays the Court to avail it of more specific
indications on the nomenclature of the new IEC especially with
regard to its organization, background, mode of appointment of
its members and distribution of the seats.
(ii) The State would also like to know whether or not the possibility
of submitting the Electoral Law for control by a constitutional
Judge can help guarantee the independence and impartiality of
its members.
(iii) If yes, the Court may wish to accept to further enlighten the Ivorian
authorities on the notion “laws relating to public freedoms.”
8. The APDH submits that none of the three issues raised by
the Republic of Côte d’Ivoire calls for the interpretation of the afore-
said Judgment. It therefore prays the Court to declare the Application
inadmissible.
III. Jurisdiction of the court

concerns the Judgment rendered by the Court on 18 November 2016
10. Article 28(4) of the Protocol provides that: “… the Court may
interpret its own decision’’.
APDH v Côte d’Ivoire (interpretation) (2017) 2 AfCLR 141 143
11. The Court consequently holds that it has the jurisdiction to

interpret this judgment
IV. Admissibility of the Application
12. As regards admissibility of the Application, Rules 66(1) and (2)

of the Rules stipulates as follows:
“1. Pursuant to [a]rticle 28(4) of the Protocol, any party
may, for the purpose of executing a judgment, apply to
the Court for interpretation of the judgment within twelve
months from the date the judgment was delivered, unless
the Court, in the interest of justice, decides otherwise.
2. The application shall be filed in the Registry. It shall state
clearly the point or points in the operative provisions of
the judgment on which interpretation is required “.
13. It is apparent from the content of the foregoing provision that a
request for interpretation of a Judgment may be declared admissible
only where the three following conditions have been met:
“a. the request has been filed within twelve (12) months from
the date the Judgment was delivered
b. the request states clearly the point or points in the
operative provisions on which interpretation is required,
and
c. the objective is to facilitate implementation of the
Judgment.”
14. Given that the judgment was delivered on 18 November 2016,
the Court notes that the Republic of Côte d’Ivoire has complied with the
statutory 12 months’ timeframe prescribed for submission of a request
for interpretation.
15. As regards the second condition, the Republic of Côte d’Ivoire
merely states that it seeks to interpret the Judgment without specifying
the point(s) of the operative provisions of the Judgment of which
interpretation is requested.
16. The Court also notes, with regard to the finality of the instant
Application, that although the first question seems to relate to the
aforementioned paragraph 7 of the operative provisions of the
Judgment, it is not intended to clarify the meaning of this point. Rather,
it seeks the Court’s opinion as to how to implement this point, which,
in the Court’s view, is the responsibility of the State of Côte d’Ivoire.
17. As regards the other two questions posed by the Republic of Côte
d›Ivoire, the Court notes that they do not relate to any of the operative
provisions of the Judgment of which interpretation is requested.
18. In view of the foregoing, the Court holds in conclusion that
none of the three questions posed by the Republic of Côte d’Ivoire is

intended to clarify the meaning or scope of any point in the operative
provisions of the afore-mentioned Judgment delivered by the Court on
18 November 2016.
19. The Court accordingly finds that, although the instant Application
for interpretation was filed within the 12-month time limit prescribed in
the Rules, it does not meet the other admissibility conditions set forth
in Rules 66(1) and (2) of the Rules and must therefore be declared
inadmissible.
V. Costs

21. Taking into account the circumstances of this matter the Court
decides that each party should bear its own costs
The Court,
Unanimously:
i. Declares that it has jurisdiction to hear the present Application.
ii. Declares that the Application is inadmissible.
iii. Rules that each Party shall bear its own Costs.
Mulindahabi v Rwanda (jurisdiction and admissibility) (2017) 2 AfCLR 145 145
Mulindahabi v Rwanda (jurisdiction and admissibility)

(2017) 2 AfCLR 145
Application 008/2017, Fidèle Mulindahabi v Republic of Rwanda

Order, 28 September 2017. Done in English and French, the French text
Judges: ORE, KIOKO, NIYUNGEKO, GUISSE, ACHOUR, BOSSA,
MATUSSE, MENGUE, CHIZUMILA and BENSAOULA
In an Application involving property rights, the Court decided to strike
out the Application due to the Applicant’s failure to provide evidence of
exhaustion of domestic remedies.
Admissibility (exhaustion of local remedies, 21, 22)
I. The Parties
1. The Applicant, Fidèle Mulindahabi (hereinafter referred to as

“the Applicant”) is a citizen of the Republic of Rwanda.
2. The Application is filed against the Republic of Rwanda
(hereinafter referred to as “the Respondent”) which became a Party to
the African Charter on Human and Peoples’ Rights (hereinafter referred
to as “the Charter”) on 22 July 1983 and to the Protocol establishing
the Court on 6 June 2003, and made the declaration on 22 June 2013
accepting the jurisdiction of the Court to receive cases from individuals
and non-governmental organizations.
3. The Applicant alleges that on 18 May 2008, the Minibus Taxi

Drivers Union (ATRACO) impounded the Toyota Hiace Vehicle with
registration No. RAA 798J belonging to a certain Isaac Twumvibarura
for non-payment of contributions; the yellow card of the vehicle was
also seized for overload.
4. He further alleges that he recommended to Mr Twumvibarura to
refer the matter to the local courts, which he did by bringing the case
before the Nyarugenge Regional Court on 4 August 2008.
5. The Applicant affirms that he handed over to “Kigali Safari”
Transport Agency, of which Mr Twumvibarura was the manager,
his vehicle with registration No. RAB 762A to be used for lucrative
purposes; that he did not receive any proceeds in exchange for the use
of the vehicle handed to Mr Twumvibarura who ended up selling the
said vehicle in Burundi. He added that all attempts vis-à-vis the police
with a view to resolving the issue proved unsuccessful.

6. He submits that, as a result, he and his family, became victims
of intrigues and fraud without protection from the State of Rwanda,
blaming the latter for failure to exercise due diligence and for the
absence of appropriate measures to protect his right to property.
7. The Application is founded on the alleged violation of Articles
1 and 14 of the Charter, and Article 17 of the Universal Declaration of
Human Rights.
8. The Applicant prays the Court to:
“1. Declare that the State of Rwanda has violated the relevant
human rights instruments that it has itself ratified;
2. Rule that the State of Rwanda was in the wrong for having
impounded the vehicle RAA 798J;
3. Order criminal proceedings allowing the Applicant to
pursue the case concerning vehicle No. RAA 798J for and
on behalf of Twumvibarura;
4. Order the State of Rwanda to deliver another vehicle to
him in replacement of the vehicle with registration No.
RAA 798J;
5. Order provisional measures especially the payment of the
school fees of his children;
6. Order the payment of damages for the seizure of the
vehicle with registration No. RAA798J;
7. Order the State of Rwanda to pay damages for failure to
protect him from the violations arising from the actions of
Mr. Twumvibarura”.
III. Procedure
9. The Application was received at the Registry on 27 February

2017.
10. By a letter dated 3 April 2017, on instructions by the Court at
its 44th Ordinary Session held from 6 to 24 March 2017, the Registry
asked the Applicant to produce within thirty (30) days the from date
of receipt, the Judgments rendered by the local Courts in Rwanda in
respect of his allegations.
11. By a letter dated 4 May 2017, the Applicant while acknowledging
receipt, sought the Registry’s clarifications regarding the request to
transmit to the latter, copies of the Judgments rendered by the local
Courts, given that he had filed eight (8) such Judgments before the
Court.
12. By a letter dated 12 May 2017, the Registry notified the
Mulindahabi v Rwanda (jurisdiction and admissibility) (2017) 2 AfCLR 145 147
Applicant that the clarification sought by the latter was in connection

with Application 008/2017.
13. By e-mail of 5 and 6 June 2017 the Applicant successively
forwarded to the Registry copies of: Judgment RC035/08/TGI/NYGE
rendered on 27 January 2011 by the HUYE Commercial Court; and
Judgment RC 0039/08/HC/KIG rendered on 6 January 2012 by the
Kigali High Court in a civil suit.
IV. The Court’s assessment
14. After review of the Judgments tendered as part of the pleadings,

the Court notes that the said Judgments have nothing to do with the
Application No. 008 pending before it.
15. Judgment RC0357/08/TGI/NYGE in effect lists as Parties to the
case La Banque Populaire du Rwanda (Applicant) and Twumvibara
Isaac (Respondent), and the subject of the dispute as being a loan
granted to Twumvibara Isaac by La Banque Populaire du Rwanda.
16. In Judgment RC 0039/08/HC/KIG, Twumvibara is the Appellant
and ATRACO Company the Respondent; it mentions the State of
Rwanda, La Banque Populaire du Rwanda as well as a Bailiff of La
Banque Populaire as persons seeking to be joined in the proceedings.
The said Judgment is in respect of an appeal lodged against Judgment
0357/08/TGI/NYGE delivered by the Nyarugenge Regional Court.
17. Rule 34(4) of the Rules of Court on Commencement of
Proceedings provides that “…the Application shall specify the alleged
violation, evidence of exhaustion of local remedies or of the inordinate
delay of such local remedies as well as the orders or the injunctions
sought…”
18. The Court notes that, although the Applicant has produced
copies of the Judgments in respect of exhaustion of local remedies
at the Registry’s request, the said Judgments do not show that the
Applicant is a Party to the cases concerned.
19. The Court notes that at this stage of the proceedings, the
Applicant has not produced evidence as to the exhaustion of local
remedies within the meaning of Rule 34(4) of the Rules.
20. It further notes that an Application must, inter alia, indicate proof
of exhaustion of local remedies as set out in Rule 34 of the Rules.
21. In the instant case, the Application indicates that local remedies
have been exhausted; yet the evidence produced shows that there has
been no such compliance in terms of the requirements set out in Rule
34(6) of the Rules.
22. In view of the foregoing, the Court finds that the Application is
not compliant with the provisions of Rule 34 of the Rules in regard to

The Court,
Unanimously,
i. Dismisses the Application for failure to comply with the
requirements set forth in Rule 34(4) of the Rules;
ii. Accordingly, orders that the Application be struck off the cause
list.
Mugesera v Rwanda (provisional measures) (2017) 2 AfCLR 149 149
Mugesera v Rwanda (provisional measures) (2017) 2

AfCLR 149
Application 021/2017, Léon Mugesera v Republic of Rwanda

Order, 28 September 2017. Done in English and French, French being
the authoritative text.
An Application for provisional measures by a detainee was granted by
the Court which ordered that he be allowed to access his lawyers, to be
visited and communicate with family members, and to have access to
medical care.
Provisional measures (only need for prima facie jurisdiction, 17-20;
extreme urgency, irreparable harm, 28)
I. Subject of the Application
1. The Court received, on 28 February 2017, an Application by

Léon Mugesera (hereinafter referred to as “the Applicant”), instituting
proceedings against the Republic of Rwanda (hereinafter referred to
as “the Respondent”), for alleged violations of human rights.
2. The Applicant, is a Rwandan national, currently held in custody
at Nyanza Prison (Mpanga), Nyanza, Republic of Rwanda.
3. The Respondent became a Party to the African Charter on
Human and Peoples’ Rights (hereinafter referred to as “the Charter”) on
21 October 1986 and the Protocol on 25 January 2004. On 6 February
2013, the Respondent made the Declaration under Article 34(6) of the
Protocol, accepting the jurisdiction of the Court to receive applications
filed by individuals and Non-Governmental organisations.1
4. The Application is based on the alleged injustice the Applicant
claims to have suffered during the entire procedure before the High
Court Chamber for International Crimes2 and before the Supreme
Court of Rwanda between 2012 and 2016. He alleged that he has
been detained under deplorable conditions, undergone all forms of
torture and had only limited access to his family, without medical or

2016. For the decision of the Court in this regard, see paragraph 20 of this Order.
2 A Chamber within the High Court of the Republic of Rwanda, specialised in
“international crimes”, which will judge in particular genocide suspects extradited
from third countries or by the International Criminal Tribunal for Rwanda (ICTR).
appropriate treatment and without access to counsel.

5. The Applicant alleges further that his right to a fair trial provided
for under Article 7 of the African Charter on Human and Peoples’
Rights (hereinafter referred to as “the Charter”) and the Principles and
Guidelines on the Right to a Fair Trial and Legal Assistance in Africa
has been violated, through in particular:
“a. the refusal by the High Court Chamber for International
Crimes to provide a remedy for the violations that occurred
during the proceedings in violation of Article 7(1)(a) of the
Charter;
b. the impossibility to reply to the pleadings and allegations
made against him by the Public Prosecutor’s Office
during proceedings before the High Court Chamber for
International Crimes and the Supreme Court of Rwanda,
in violation of Article 7(1)(c) of the Charter;
c. lack of access to legal aid on grounds that he was not
considered as indigent, notwithstanding his social and
personal condition, the complexity of the case, the
seriousness of the charges and the potential sentence
he faces if convicted, and the wrongful conviction of his
Rwandan lawyer leading to a fine of 400,000 CFA (Euros
610€), in violation of Article 7(1)(c) of the Charter;
d. refusal to allow the Applicant to call his witnesses and
other expert witnesses to testify, and refusal to allow him
to make submissions in his own defence, in violation of
Article 7(1)(c) of the Charter;
e. refusal to translate into French, one of the official
languages of the country, when the proceedings were
being conducted only in Kinyarwanda, a language that his
lawyers do not understand, in violation of Article 7(1)(c) of
the Charter;
f. lack of access to the case file, which was later provided
in the form of a flash disk, but, as it turned out, was
unreadable, in violation of Article 7(1) (c) of the Charter;
and
g. lack of fairness and independence of the Court, following
the replacement of a Judge who had led the proceedings
for more than two years and heard a number of witnesses,
in violation of Articles 7(1)(d) and 26 of the Charter.”
6. The Applicant claims to have been a victim of cruel, inhuman
and degrading treatment, in violation of Article 5 of the Charter, due, in
particular, to:
“a. an “… atmosphere of fear and intimidation …” that was

created by the systematic iteration in the media of his
1992 speech;
b. his inclusion on the list of people to be executed;
c. constant death threats by security agents, police and
prison wardens, a conduct that is in violation of Article 5
of the Charter; and
d. refusal to provide him with sufficient food.”
7. The Applicant submits that there has been an attack against his
physical and mental integrity, in violation of Article 4 of the Charter
notably by:
“a. being deprived of contact with his family and lawyer;
b. cancellation of medical consultations and at times being
treated by a warder reconverted as a nurse and without
certification;
c. refusal to provide adequate lighting in his cell and lack of
provision of an orthopaedic pillow;
d. failure to respect the ophthalmological prescription
regarding the lighting in his cell and thus exposing him to
the risk of becoming blind as a result of cataracts that he
has on both eyes;
e. deprivation of access to a psychiatrist to assess the
mental effects of the lack of sleep and trauma from the
progressive loss of vision;
f. failure to properly maintain his prescriptions which
disappeared from his medical file, or being administered
poor treatment;
g. failure to respect his dietary needs composed of fruits,
as well as refusal to provide him with anti-cholesterol diet
such as brown bread, whereas other detainees of the
same prison are given special bread to meet their dietary
needs;
h. exposure to difficult detention conditions which led to an
increase in his blood pressure to 10/5, a level which is
very dangerous for his health; and
i. failure to respect the diplomatic assurances given to
Canada according to which he would be given a diet
and medical treatment consistent with international
standards.”
8. The Applicant alleges that his right to communicate with his
family has been violated, as has his right of access to information,
provided for under Articles 18(1) and 9(1) of the Charter, respectively,
given that, despite having obtained authorisation to that effect, practical
obstacles have been put in his way, such as the lack of access to, or
delayed provision of a telephone and in instances where he has been
able to communicate, he became aware that the telephone line had
been tapped.
9. The Applicant claims further that he was transferred to another
prison, his family did not know his whereabouts for several days and
that the lack of information regarding his fate and the several obstacles
he faced were a violation of Articles 6 and 7 of the Charter.
II. Procedure before the Court
10. The Application was received at the Registry on 28 February

2017.
11. By a letter dated 3 April 2017, the Registry served the Application
on the Respondent, and requested her to submit, the names and
addresses of her representatives within thirty (30) days, the comments
on the request for Provisional Measures within twenty one (21) days
and the Response to the Application within sixty (60) days.
12. The deadline for submission of comments on the request for
Provisional Measures elapsed on 27 May 2017.
13. On 12 May 2017, the Registry received a letter from the
Respondent reminding the Court of her withdrawal of the Declaration
made under Article 34(6) of the Protocol and informing the Court
that she will not take part in any proceedings before the Court and
consequently, requesting the Court to desist from transmitting any
information on cases concerning Rwanda until she reviews the
Declaration and communicates its position to the Court.
14. The Court notes that in the abovementioned letter, the
Respondent State has not made observations on the Application for
provisional measures.
15. By a letter dated 22 June 2017, the Court responded to the letter
of Respondent referred above, noting that “by virtue of the Court being
a judicial institution and pursuant to the Protocol and Rules of Court,
the Court is required to exchange all procedural documents with the
Parties concerned. Consequently, and in line with these requirements,
all pleadings on matters to which Rwanda is a party before this Court
shall be transmitted to you until the formal conclusion of the same”.
III. Jurisdiction
16. In dealing with an Application, the Court has to ascertain that it

has jurisdiction on the merits of the case.
17. 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.3
18. Article 3(1) of the Protocol provides that “the Court has jurisdiction
to examine all cases submitted to it concerning the interpretation
and application of the Charter, this Protocol and any other relevant
instrument on Human Rights ratified by the State concerned”.
19. As indicated the paragraph 3 of this Order, the Respondent
became a Party to the Charter and to the Protocol and made the
Declaration accepting the jurisdiction of the Court to receive applications
filed by individuals and non-governmental organisations.4
20. The Court recalls that, in its decision in Ingabire Victoire Umuhoza
v Republic of Rwanda, the withdrawal of the Declaration filed by the
Respondent in terms of Article 34(6) of the Protocol only took effect
from 1 March, 2017.5 However, given that the Application was filed on
28 February, 2017, the Court’s temporal jurisdiction is established.
21. The rights alleged by the Applicant to have been violated are
guaranteed under the provisions of Articles 4, 5,6,7,9 and 18 of the
Charter.
22. In light of the foregoing, the Court has satisfied itself that it has
prima facie jurisdiction to deal with the Application.
IV. On the provisional measures requested
23. The Applicant, considering the extreme urgency which, failing,

may lead to irreparable harm,
“… submits that the Court must order the Respondent to take interim
measures in order to prevent or stop the perpetration of serious and
irreparable damage that he suffers. Such serious irreparable damage has
arisen from the many violations by the Respondent of the rights guaranteed
by the African Charter on Human and Peoples’ Rights. The said violations
have been described in this Application. Four of them call for an urgent
situation that must be changed as soon as possible. First, the violation
of his Counsel’s right of access. Secondly, the inhuman and degrading
treatment perpetrated against the Applicant. Thirdly, the violation of the
right of access to adequate medical treatment. Fourthly, the violation of his
3 See Application 002/2013 African Commission on Human and Peoples’ Rights v

Libya (Order for Provisional Measures) (15 March 2013) and Application 006/2012
African Commission on Human and Peoples’ Rights v Kenya (Order for Provisional
Measures) (15 March 2013); Application 004/2011 African Commission on Human
and Peoples’ Rights v Libya (Order for Provisional Measures) (25 March 2011).
2016. For the decision of the Court in this regard, see paragraph 19 of this Order.
5 Ingabire Victoire Umuhoza v Republic of Rwanda Application No. 003/2014 (Ruling
on Jurisdiction of 3 June 2016) Paragraph 69, iii..
right of access to his relatives.”
24. Pursuant to Article 27(2) of the Protocol, “In cases of extreme

gravity and urgency, and when necessary to avoid irreparable harm to
persons, the Court shall adopt such provisional measures as it deems
necessary.” This provision is reiterated in Rule 51(1) of the Rules
which provides that “Pursuant to Article 27(2) of the Protocol, the Court
may, at the request of a party, the Commission or on its own accord,
prescribe to the Parties any interim measure which it deems necessary
to adopt in the interest of the Parties or of justice.”
25. The Court notes that the letters from the Applicant’s Lawyer of 4
May 2016 to the Procureur General of Rwanda, and of 28 December
2016 to the President of the National Council for Nurses and Midwives
of Rwanda, demonstrate that the Applicant has been facing serious
difficulties in accessing medical care.
26. The Court notes further from the Application that the requested
Provisional Measures relating to the allegation of inhuman and
degrading treatment against the Applicant is mainly linked to the
alleged lack of access to medical care.
27. The Court also notes that from his letter of 21 February 2017
to the Director of the Nyanza Prison, the Applicant was requesting for
authorisation to communicate with the lawyers representing him before
this Court.
28. The Court finds that the situation described above is of extreme
urgency and requires Provisional Measures to be issued to avoid
irreparable harm being inflicted on the Applicant.
29. 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 merits of the Application.
The Court,
Unanimously,
Orders the Respondent State:
i. To allow the Applicant access to his lawyers;
ii. To allow the Applicant to be visited by his family members and to
communicate with them, without any impediment;
iii. To allow the Applicant access to all medical care required, and to
refrain from any action that may affect his physical and mental integrity
as well as his health;
iv. To report to the Court within fifteen (15) days from the date of
receipt of this Order, on the measures taken to implement this Order.
Johnson v Ghana (provisional measures) (2017) 2 AfCLR 155 155
Johnson v Ghana (provisional measures) (2017) 2 AfCLR

155
Application 016/2017, Dexter Eddie Johnson v Republic of Ghana

Order, 28 September 2017. Done in English and French, the English text
The Applicant had been convicted of murder and sentenced to death in
2008. He argued that the mandatory death penalty violated the African
Charter. At his request, the Court issued provisional measures to the
Respondent State to refrain from executing the death penalty until the
Application was heard and determined.
Provisional measures (death penalty, 16, 18)
Separate Opinion (1): NIYUNGEKO and BEN ACHOUR
Procedure (time for state to report on implementation, 2, 11, 12)
Separate Opinion (2): MUKAMULISA and BENSAOULA
Procedure (time for state to report on implementation, 7)
I. The Parties
1. The Application is filed by Mr Dexter Eddie Johnson, (hereinafter

referred to as “the Applicant), a dual Ghanaian and British national,
against the Republic of Ghana (hereinafter referred to as “the
Respondent”).
2. The Respondent became a Party to the African Charter on
Human and Peoples’ Rights (hereinafter referred to as “the Charter”)
on 1 March 1989, and to 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”),
on 16 August 2005. It deposited, on 10 March 2011, a declaration under
Article 34(6) of the Protocol, accepting the jurisdiction of the Court to
receive cases from individuals and Non-Governmental Organisations.
Furthermore, the Respondent became a party to the International
Covenant on Civil and Political Rights (hereinafter referred to as “the
Covenant”), on 7 September 2000.
3. The Applicant states that he was convicted of murder and

sentenced to death on 18 June 2008.1 The Court of Appeal and the

Supreme Court of Ghana confirmed the conviction and sentence on 16
July 2009 and 16 March 2011, respectively. The Applicant remains on
death row awaiting execution.
4. The Applicant alleges, inter alia, that the imposition of the
mandatory sentence of death, without consideration of the individual
circumstances of the offence or the offender, violates:
“a. The right to life under Article 4 of the Charter;
b. The prohibition of cruel, inhuman or degrading treatment
or punishment under Article 5 of the Charter;
c. The right to a fair trial under Article 7 of the Charter;
d. Article 1 of the Charter, by failing to give effect to the
aforementioned rights;
e. The right to life under Article 6(1), the right to protection
from inhuman punishment under Article 7, the right to a
fair trial under Article 14(1) and the right to a review of
sentence under Article 14(5) of the Covenant; and
f. The right to life under Article 3, and the prohibition of cruel,
inhuman or degrading treatment or punishment under
Article 5 of the Universal Declaration of Human Rights
(hereinafter referred to as “the Universal Declaration”).”
III. Procedure
5. The Application was filed at the Registry of the Court on 26 May

2017.
6. Pursuant to Rule 36 of the Rules of Court, (hereinafter referred
to as “the Rules”), by a notice dated 22 June 2017, the Registry served
the Application to the Respondent drawing attention to the request
for provisional measures and indicating that the Respondent could
respond to the same within fifteen (15) days should they so wish.
The Respondent was also requested to communicate the names and
addresses of its representatives within thirty (30) days and respond
to the Application within sixty (60) days of receipt of the notice. The
Respondent is yet to comply with these instructions.
IV. Jurisdiction

1 By the Fast Track High Court in Accra.

8. However, in ordering provisional measures, the Court need not

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 Court notes that the rights alleged to have been violated are
guaranteed under Articles 1, 4, 5 and 7 of the Charter, Articles 6(1), 7,
14(1) and 14(5) of the Covenant and Articles 3 and 5 of the Universal
Declaration.
11. As indicated in paragraph 2 of this Order, the Respondent
became a Party to the Charter on 1 March 1989, to the Protocol on 16
August 2005 and deposited on 10 March 2011, a Declaration accepting
the competence of the Court to receive cases from individuals and
Non- Governmental Organisations. Furthermore, the Respondent
became a party to the Covenant on 7 September 2000.
12. In light of the foregoing, the Court concludes that it has prima
facie jurisdiction to hear the Application.
V. On the provisional measures requested
13. The Applicant has requested the Court for:

“i. An order that the Respondent shall not carry out the
execution of the Applicant while his application remains
pending before the Court; and
ii. An order that the Respondent shall report to the Court
within 30 days of the interim order on the measures taken
for its implementation.”
14. Under Article 27(2) of the Protocol and Rule 51(1) of the Rules,
the Court is empowered to order provisional measures “in cases of
extreme gravity and urgency, 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 whether to issue provisional measures
depending on the circumstances of each case.
16. The Applicant is on death row and it appears from this Application
2 See Application 002/2013 African Commission on Human and Peoples’ Rights v

Libya (Order for Provisional Measures)(15 March 2013) and Application 006/2012
African Commission on Human and Peoples’ Rights v Kenya (Order for Provisional
Measures) (15 March 2013); Application 004/2011 African Commission on Human
and Peoples’ Rights v Libya (Order for Provisional Measures) (25 March 2011).
that there exists a situation of extreme gravity and urgency, as well as

a risk of irreparable harm to the Applicant.
17. Given the circumstances of this case, where the risk of
execution of the death penalty will jeopardise the enjoyment of the
rights guaranteed under Articles 4, 5 and 7 of the Charter, Articles 6(1),
7, 14(1) and 14(5) of the Covenant and Articles 3 and 5 of the Universal
Declaration, the Court has decided to exercise its powers under Article
27(2) of the Protocol.
18. The Court consequently, finds that the situation raised in the
present Application is of extreme gravity and represents a risk of
irreparable harm and that the circumstances require that an order for
provisional measures be issued, in accordance with Article 27(2) of the
Protocol and Rule 51 of the Rules, to preserve the status quo, pending
the determination of the main Application.
19. The Court recalls that the measures it will order will necessarily
be provisional in nature and will not in any way prejudge the findings it
might make on its jurisdiction, the admissibility of the application and
the merits of the case.
20. For the avoidance of doubt, this order shall not in any way
The Court,
Orders the Respondent to:
Unanimously,
i. refrain from executing the death penalty against the Applicant
until the Application is heard and determined.
By a vote of seven (7) for and four (4) against, Justices Gérard
NIYUNGEKO, Rafậa BEN ACHOUR, Marie-Thérèse MUKAMULISA
and Chafika BENSAOULA dissenting,
ii. report to the Court within sixty (60) days from the date of receipt
of this Order, on the measures taken to implement this Order.
_____________________________
(Partly) Dissenting Opinion: NIYUNGEKO and BEN ACHOUR
1. We voted for the provisional measure to “refrain from executing

the death penalty against the Applicant until the Application is heard
and determined”.1 This is because we are convinced about the

absolute necessity and urgency of such an order. The Court did well,
and on this, we are in perfect agreement that the “situation raised in
the present Application is of extreme gravity and represents a risk of
irreparable2 harm” if no action is taken to preserve the status quo.
2. That said, we do not share the decision to grant the Respondent
State sixty (60) days to report to the Court on the measures taken to
implement its decision.3 In our understanding, this is too long a time
limit, and it is not more reasonably defensible than its inconsistency is
unwarranted.
3. We note straight away, that the Application was received at the
Court Registry on 26 May 2017, and that, unlike other Applications by
persons on the death row, it was the Applicant himself who requested
an order for provisional measures. In actual fact, unlike other cases,
the Court did not take the initiative to pronounce provisional measures
on its own accord as authorized by Article 27(2) of the Protocol and
Rule 51(1) of its Rules. Upon receipt of the Application, the Court gave
the Respondent State sixty (60) days within which to respond to the
Application. The latter did not react.
4. Our opinion is presented from two perspectives: firstly, we shall
explain why the sixty (60) days’ time limit is illogical and unreasonable (I);
and secondly, we shall point to the Court’s unwarranted inconsistency
with regard to time limits when it comes to implementing Rule 51(5) of
our Rules (II).
I. Unreasonable time limit
5. To start with, it should be made clear that any such time limit
is always counted from the date of receipt of the Court’s Order by the
Respondent State, rather than from the date of delivery of the said
Order by the Court, a provision which protects the Respondent State
from any surprises.
6. It should also be emphasized that, by definition, the provisional
measures concerned are emergency measures which must be taken
quite speedily. Thisplaces the Respondent State in a situation whereby
it has to give priority to implementation of the measures in question;
measures which must be taken as quickly as possible.
7. Having said that, the question as to how much time a Respondent
State should be allowed to report on the measures taken to comply
1 Para (a) of the operative provisions.

2 Para 8.
3 Para (b) of the operative provisions.
with an Order of Court is always a topical one.

8. In deciding to issue an Order for Provisional Measures either in
the interest of the Parties or in the interest of justice, the Court must do
so with firmness to avoid criticism regarding the immediate and urgent
applicability of such measures. Firmness is all the more necessary
when it comes to measures aimed at protecting the fundamental
right to life,4 as in this case, to prevent the Applicant subject to capital
punishment, from being executed even when the proceedings are
pending before the Court.
9. In general, however, it may be said that in granting such a time
limit to the Respondent State, the Court’s main objective is to give the
latter time to put the appropriate measures in place.
10. With regard to this objective, the extent of the time limit will
certainly depend on the nature of the measures expected. If, for
example, the time is intended for the Respondent State to initiate
a legislative process or other similar process, it is obvious that the
Respondent State will need a relatively long time to complete the
process. If, on the other hand, it is simply a matter of refraining from
doing something or of doing something easy, such as allowing the
Applicant access to medical care or a lawyer or to receive visits from
members of his family, then the Respondent State does not need much
time to comply with the Court Order.
11. In the instant case, the Court did not order the Respondent State
to urgently enact a law for retroactive abolition of the death penalty
or to retry the Applicant, which would have required much time. All
that the Court orders is for the Respondent State to temporarily
suspend execution of the death sentence imposed on the Applicant
by the domestic court, pending the Court’s decision on its jurisdiction,
admissibility of the Application and on the merits of the case.
12. To ensure that the sixty (60) days’ time limit granted meets
the logic inherent in the urgency of the provisional measures, it was
necessary to take into account the means which the Respondent State
must deploy to stay execution of a person under death sentence who,
besides, is “on the death row awaiting execution”.
4 A right protected by Article 4 of the Charter: “Human beings are inviolable. Every
human being shall be entitled to respect for his life and the integrity of his person.
No one may be arbitrarily deprived of this right”, and by Article 6 of the International
Covenant on Civil and Political Rights: 1. Every human being has the inherent right
to life. This right shall be protected by law. No one shall be arbitrarily deprived of his
life. 2. In countries which have not abolished the death penalty, sentence of death
may be imposed only for the most serious crimes in accordance with the law in
force at the time of the commission of the crime and not contrary to the provisions
of the present Covenant and to the Convention on the Prevention and Punishment
of the Crime of Genocide. This penalty can only be carried out pursuant to a final
judgement rendered by a competent court.”
13. In this respect, it seems judicious to recall that, in this matter, the
principle is that of immediate stay of execution and to the minute, and
that no derogation is effective. By way of illustration, the European Court
of Human Rights, in a Judgment issuing provisional measures, strongly
reaffirmed that when life and health are at stake, even “diplomatic
assurances” are ineffective and application of the provisional measure
is immediate, urgent and to the minute.5
14. Admittedly, under the procedure before this Court and by virtue
of Rule 37 of its Rules, the Respondent State has sixty (60) days to
respond to an Application filed against it; but to give the same quantum
when it is comes to informing the Court of the execution of measures to
prevent occurrence of unforeseeable, extremely serious violations with
irreparable consequences, does not seem logical to us.
15. If in the first case (production of defense brief) the Respondent
State must have sixty (60) days to investigate the case, search for,
collect and establish the evidence for its claims, this is not the case
with regard to this Order.
16. For these reasons, it is our view that the decision to grant the
party performing the provisional measure sixty (60) days is neither
logical nor reasonable.
II. Time limits of unwarranted inconsistency
17. A global overview of the provisional measures so far issued by

the Court reveals that, while the legitimacy of the said measures does
not call for comment on our part, justification of the quantum of the
time limits allowed for the State to submit its report suffers from an
unwarranted variation.
18. It is noteworthy that the said time limits oscillate between fifteen
(15),6 thirty (30)7 and sixty (60) days as in the instant case. Admittedly,
the Judge has in this domain a broad power of evaluation in as much
as Rule 51 of the Rules in paragraphs 1 and 5 does not spell out cases
of necessity, nor does it prescribe a particular time limit. The Rule in
question confines itself to stating that: “the Court may … prescribe to
5 Othman v United Kingdom ECHR, Fourth Section, 17 January 2012, No. 8139/09,
paras 148, 151, 170 and 180). See also Marcellus S Williams, Petitioner v Cindy
Griffith, Warden Supreme Court of the United States, decision suspending
execution of the death penalty was followed with immediate effect even though
execution of the convict was already scheduled for the very evening of the day of
the delivery of stay of execution decision and a report thereon followed.
6 See Order of 25 March 2011, African Commission on Human and Peoples’ Rights
v Great Libyan Arab Jamahiriya; Order of 15 March 2013, African Commission on
Human and Peoples’ Rights v Republic of Kenya.
7 See Order of 18 March 2016, Armand Guehi v United Republic of Tanzania.
the Parties any interim measures which it deems necessary to adopt

in the interest of the Parties or of justice” and that it may, in addition,
“invite the Parties to provide it with information on any issue relating to
implementation of the interim measures adopted by it.”
19. In light of the foregoing provisions, we believe that in determining
the time limit contemplated in paragraph 5 of Rule 51, the Court should
take into account certain parameters, including inter alia, the very nature
of the measure, the degree of implementation or the imminence of the
irreparable harm, the attitude of the party performing the provisional
measure and the degree of the latter’s cooperation in moving forward
the procedure.8
20. Also to be taken into account is whether or not implementation
of the provisional measure requires involvement of other third Parties
or whether the implementation involves outside elements, etc.
21. All in all, do the fluctuations of time limits really take into
account all the endogenous and exogenous elements inherent in the
implementation of the measure dictated by the Court? If not, how does
one understand the sixty (60) days’ time limit decided in the instant
Order?
22. In this case, it must also be said that the Order does not take
into account the interest of justice and the need for the performing
party to maintain the status quo until the conclusion of the proceedings
pending before the Court. This is so because the Court’s interest in
monitoring execution of its decision is emptied of all its substance.
The time limit lacks proportionality because it diminishes the State’s
obligation to report back to the Court. Moreover, it deprives the Court
of the opportunity to keep a watchful eye on the rights of which it has
the mandate to protect.
23. It is the foregoing reasons that led us to vote against paragraph
(b) of the operative part of the Order. We hope the Court will adopt a
consistent course of action in this area and be extremely demanding,
upon the right to life coming under threat.
_____________________________
8 When it is established that the performing party is not inclined to full cooperation,
the Court should give extremely short time limit, followed by repeated reminders if
need be.
Joint Separate Opinion of CHAFIKA and MUKAMULISA
1. We by and large subscribe to the Order rendered by the majority

but would like to express our disagreement on point (b) of the operative
provisions. In the paragraph (b) of the operative provisions of the Order
for Provisional Measures, the Court directs the Respondent to “report
to the Court within sixty (60) days from the date of receipt of this Order,
on the measures taken to implement this Order.”
2. In terms of Article 27 paragraph 2 of the Protocol and Rule 51
of the Rules, the Court shall, in cases of extreme gravity and urgency
… adopt such provisional measures as it deems necessary. The
Court held in paragraphs 14 et seq. of the Order that “the situation
raised in the present Application is of extreme urgency and gravity
and represents a risk of irreparable harm, and that the circumstances
require that an Order for provisional measures be issued”. In the case
of death sentence, the stay of execution of this sentence was self-
evident.
3. However, by granting the Respondent a period of two (2)
months to “report on the measures taken”, the Court ran counter to
the very nature of the Order, which is executable forthwith, and to its
characterization of the facts which it considers as being of extreme
gravity.
4. Besides, it is apparent from the Court’s jurisprudence that
much shorter time-limits have been granted and in far less serious
circumstances. That the death penalty is the most serious sanction
imposable on any convicted person, should have provided the
explanation for reducing the time limit accorded to the Respondent
State to make the report.
5. In his Application, the Applicant prayed the Court to issue an
Order for Provisional Measures and to allow the Respondent State one
month to make its report. As this deadline is tied to the execution of
the provisional measures sought, the Court, by granting a longer time
limit without the Respondent requesting the same in its reply to the
Applicant’s request on this point, has ruled ultra petita because, even if
the provisional measure lies within the Court’s discretionary power, the
time limit non-the-less remains a right of the Parties, especially where
any of them has raised the same in its Application or Reply.
6. Although the Court did not grant the time-limit requested by
the Applicant in favour of the Respondent, it all the same did not give
reasons to back the time-limit prescribed in the operative provision of
its Order; which runs counter to the terms of Rule 61 of the Rules.
7. Moreover, it is apparent from the Court’s jurisprudence that
for similar cases (death penalty),1 the time limit accorded to the
Respondent was less than two months (60 days): as a matter of fact,
in its previous Orders, the Court allowed a time limit of thirty (30) days.
This instability in jurisprudence is not such as would enhance the
reliability of the Court’s decisions.
1 See the Orders in: Evodius Rutechura v United Republic of Tanzania (Application
004/2016); Ally Rajabu and Others v United Republic of Tanzania (Application
007/2017); Armand Guehi v United Republic of Tanzania (Application 001/2017).
Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165 165
Application 003/2014, Ingabire Victoire Umuhoza v Republic of Rwanda

Judgment, 24 November 2017. Done in English and French, the French
Judges: ORE, KIOKO, NIYUNGEKO, RAMADHANI, TAMBALA,
GUISSE, ACHOUR and BOSSA
The Applicant, a politician, was convicted for speeches alleged to have
minimised the Rwandan genocide. She prayed the Court to repeal
certain legislation, order the review of the case, annul decisions taken in
relation to the case, order her release and order the Respondent State
to pay reparations and costs. The Court held that there were conflicting
versions of one of her speeches and one version clearly did not violate
the law. Another speech, the Court held, just amounted to political
criticism. Her conviction was therefore not necessary and proportional
and violated the right to freedom of expression. The Court held that it did
not have the power to repeal legislation and that there were exceptional
and compelling circumstances to order her release.
Admissibility (exhaustion of local remedies, extraordinary remedy, 70-
72)
Fair trial (presumption of innocence, 83, 84; defence, 94-98; non-
retroactivity, 116)
Expression (importance, 131; limitations, 132, 139; in line with
international human rights standards, 135; legitimate interest, 140, 146;
necessary and proportional, 141-143, 147, 161; conflicting versions of
speech, 156; speech clearly not violating the law, 158; political criticism
should be allowed, 160)
Reparations (repeal national legislation, 166; release, 167)
I. The Parties
1. The Application is filed by Ingabire Victoire Umuhoza (hereinafter

referred to as “the Applicant”), pursuant to Articles 5(3) and 34(6) of
the Protocol to the African Charter on Human and Peoples’ Rights on
(hereinafter referred to as “the Protocol”).
2. The Application is filed against the Republic of Rwanda
(hereinafter referred to as “the Respondent State”). The latter became a
Party to the African Charter on Human and Peoples` Rights (hereinafter
referred to as “the Charter”) on 21 October 1986, to the Protocol on
25 May 2004, and to the International Covenant on Civil and Political
Rights (hereinafter referred to as “the ICCPR”) on 23 March 1976. It
deposited the Declaration prescribed under Article 34(6) of the Protocol
on 22 January 2013, and on 29 February 2016, notified the African
Union Commission of its intention to withdraw the said Declaration1.
3. The instant Application emanates from the Judgment of the

High Court of Kigali in Criminal Case No. RP 0081-0110/10/HC/KIG
delivered on 30 October 2012, and the Judgment of the Supreme
Court of Rwanda in Criminal Appeal No. RPA 0255/12, delivered on 13
December 2013. The Application relates to the arrest, detention and
trial of the Applicant, on the basis of which she alleges violation of her
human rights and fundamental freedoms.
A. The facts of the matter
4. On 3 October 2014, the Applicant seized the Court with the

Application stating that when the genocide in Rwanda started in April
1994, she was in The Netherlands in furtherance of her university
education in Economics and Business Administration.
5. The Applicant submits that in 2000, she became the leader
of a political party known as the Rassemblement Républicain pour
la Démocratie au Rwanda (RDR) (the Republican Movement for
Democracy in Rwanda). She states that a merger of this party and two
other opposition Parties (the ADR and the FRD) led to the creation of
a new political party known as Forces Démocratiques Unifiées (FDU
Inkingi), which she leads to date.
6. The Applicant avers that in 2010, after spending nearly seventeen
(17) years abroad, she decided to return to Rwanda, according to her,
to contribute in nation building. Her priorities included the registration
of the political party - FDU Inkingi, in compliance with Rwandan law
on political Parties, which would have enabled her to popularise the
political party at the national level with a view to future elections.
7. The Applicant contends that she did not attain this objective
because from 10 February 2010, charges were brought against her by
the judicial police, the prosecutor and the tribunals of the Respondent
State.
8. The Applicant further maintains that on 21 April 2010, she was
remanded in custody by the police, charged with having committed the
following:
“a. The crime of [propagation of] ideology of genocide, an
offence punishable under Law No. 18/2008 of 23 July
1 See Ruling of the Court of 3/6/ 2016 of the Respondent’s withdrawal of its
Declaration made pursuant to Article 34(6) of the Protocol.
2008, on the punishment of the ideology of genocide;

b. Aiding and abetting terrorism, an offence punishable
under Law No. 45/2008 of 9 September 2008, on the
punishment of the offence of terrorism;
c. Sectarianism and divisionism, an offence punishable under
Law No. 47/2001 of 18 December 2001; sectarianism and
divisionism;
d. Undermining the internal security of the State, spreading
of rumours likely to incite the population against political
authorities and mount citizens against one another,
punishable under Law No. 21/77 of 18 August 1997,
instituting the Penal Code;
e. Establishing an armed branch of a rebel movement, an
offence punishable under Article 163 of Law No. 21/77 of
18 August 1997, instituting the Penal Code; and
f. Attempted recourse to terrorism, force of arms and
such other forms of violence to destabilize established
authority and violate constitutional principles, all offences
punishable under Articles 21, 22, 24 and 164 of Law No.
21/77 of 18 August 1997, instituting the Penal Code”.
9. On the basis of the foregoing, the Applicant alleges violation of

some provisions of the following instruments:
“a. Articles 1, 7, 10, 11, 18 and 19 of the Universal Declaration
of Human Rights;
b. Articles 3, 7 and 9 of the Charter; and
c. Articles 7, 14, 15, 18 and 19 of the ICCPR”.
III. Procedure at national level as presented by the

Applicant
A. Pre-trial investigations
10. The Applicant avers that on 10 February 2010, she received

a summons requiring her to forthwith appear before a judicial police
officer at the Criminal Investigation Department (CID). According
to her, she was accused of committing the offence of aiding and
abetting terrorism, punishable under Article 12 of Law No. 45/2008 of
9 September 2008, on the punishment of the offence of terrorism. She
states that the allegations were “exclusively based on contacts she is

said to have had with some defectors of the Forces Démocratiques de
Libération du Rwanda (FDLR), with a view to establishing an armed
branch of the political party called Forces Démocratiques Unifiées,
of which she is President”. She further submits that she was also
charged with “spreading the ideology of genocide, sectarianism and
divisionism”.
11. According to the Applicant, she was arrested on 21 April 2010,
and remanded in custody, and then brought before a Judge at the
Gasabo High Court
“to adduce the means of her defence following a complaint filed by the
legal body attached to that Court, in which the said legal department
demanded her remand in custody, on the grounds of alleged serious, grave
and consistent indications of guilt, which could mean that the Applicant
committed the offence of aiding and abetting terrorism and the ideology of
genocide as outlined above”.
12. The Applicant further indicates that on 22 April 2010, the

Gasabo High Court issued a judicial interim release order with certain
conditions, such as withholding of her passport, prohibition from
leaving the city of Kigali without authorisation, reporting two times a
month to the Organe Nationale des Poursuites Judiciares - National
Prosecution Department (ONPJ). However, on 14 October 2010,
she was re-arrested, taken to the CID Headquarters and was again
charged with terrorist acts, an offence punishable under Article 12 of
Law No. 45/2008 of 9 September 2008.
13. The Respondent did not contest the facts presented by the
Applicant.
B. Proceedings before the High Court
14. According to the Applicant, she was arraigned before the High
Court on the charges enumerated in paragraph 8 above, adding that
“by an order of the President of the High Court the matter was set
down to be heard on 16 May 2011. On the day of the hearing, the
matter was joined with the case ‘the State of Rwanda v Nditurende
Tharcisse, Karuta JM Vinney and Habiyaremye Noel, and the new
matter adjourned for 20 June 2011”.
15. The Applicant submits that on 20 June 2011, the matter was
again adjourned to 5 September 2011, and on the same day, she
deplored the “various acts of violation perpetrated against her, such
as systematic body search, by the security services”. According to her,
“this situation was vehemently protested before the High Court which,
through a pre-trial order, deemed that the said security services had
the latitude to carry out body search operations on anyone found in the
courtroom, including the Counsel for the defence.”
16. The Applicant claims that this decision of the High Court was
appealed against, however, “in accordance with relevant Rwandese
law, the appeal could be considered only after a final ruling on the
merits of the main matter”.
17. The Applicant avers that on 26 September 2011, in limine litis,
she raised “many objections to admitting that decision based on the fact
that the indictment order was issued in violation of certain principles,
such as the legality of crimes and penalties, non-retroactivity, lack of
jurisdiction, etc.” The Applicant claims that on 27 September 2011,
she sent a letter to the President of the High Court, with copies to
the President of the Supreme Court, the Attorney General and the
President of the Bar Association, to inform “all these institutions on
how serious the situation was”.
18. According to the Applicant, “by a pre-trial order issued on 13
October 2011, the High Court systematically threw out all the objections
and petitions”. She avers that
“from that moment, the bench went ahead to examine the merits of the
matter, taking into account only the submissions of the prosecution and
those of the accused persons who had opted to plead guilty. Each time
the defence attempted to question the accused persons to prove that their
statements were contrary to the truth and condemn their collusion with
the Office of the State Prosecutor and security services, the defence was
called to order by the presiding judge, who in actual fact was acting not as
a judge but rather as a prosecution body. It is in this climate of mistrust and
suspicion that Habimana Michel, a prosecution witness, was heard”.
19. Still according to the Applicant, “through a direct summons to a

witness introduced at the behest of the Registrar-in-Chief of the High
Court a certain Habimana Michel was requested to appear before
the Court sitting to examine a criminal matter at the public hearing
of 11 April 2012, as prosecution witness”. Counsel for the Applicant
were able to put questions to the witness to obtain clarification, and
according to the Applicant,
“to all these questions, the witness provided clear, concise and precise
answers, thus putting into question the very basis of the charges, showing
in broad daylight all the farce and scenario that had been orchestrated
based on false statements by the accused, Uwumuremyi Vital, working in
connivance with the Office of the State Prosecutor and various services”.
20. The Applicant claims that realising that its strategy hitherto based
on statements made by the accused persons, Uwumuremyi Vital,
Nditurende Tharcisse and Karuta J M Vianney, had been undermined
by the witness, the prosecutor seized by panic, “started intimidating
the witness by using subterfuges and intimidation manoeuvres”. She
alleges that,
“without the knowledge of the bench and the defence, the State prosecutor
ordered prison services to carry out a search on all the personal effects
of the witness in his absence. In the evening of 11 April 2012, he was
interrogated on the testimony he made in Court”.
21. According to the Applicant, during the public hearing of 12 April

2012,
“the prosecution used such clearly illegal investigation to claim to have
discovered reportedly compromising documents against the defence…
Upon analysing the content of the report, it was found that (i) the
interrogation was held outside applicable legal hours, (ii) the witness was
not assisted by a counsel of his choice; (iii) the interrogation dwelt on
statements made by the witness in the morning before the Court”.
22. Still according to the Applicant,

“the defence tried in vain to protest before the High Court against such
practices but was each time insulted and rudely interrupted by the presiding
judge. Such acts have considerably undermined the fair trial nature of the
trial and contributed to the Applicant’s decision to quit the trial”.
23. The Applicant stated that on 30 October 2012, the High Court
delivered a judgment on the matter in which it
“(i) admits the case submitted by the Organe Nationale des Poursuites
Judiciares and rules it partially founded …(ii) rules in law that Ingabire
Victoire Umuhoza is guilty of the offences of conspiracy to undermine
established authority and violate constitutional principles by resorting to
terrorism and armed force which are punishable under Law No. 21/1977
instituting the Penal Code. It further rules that Ms. Ingabire Victoire
Umuhoza is guilty of the offence of minimization of the genocide, an offence
punishable under Article 4 of Law No. 6/09/2003 on the punishment of
genocide, crime against humanity and war crimes; (iii) sentences her on
this count to 8 years of imprisonment with hard labour”.
24. The Applicant asserts that in its judgment, the High Court
indicated that the appeal “must be done in a period of 30 days following
the sentencing”.
25. The Court notes that the Respondent State did not contest the
facts presented by the Applicant.
C. Petition before the Supreme Court
26. While the matter was still pending before the High Court, the
Applicant on 16 May 2012, filed an application before the Supreme
Court sitting in Constitutional Matters, seeking annulment of Articles
2 to 9 of Law No. 18/2008 of 23 July 2008, repressing the crime of
genocide ideology and Article 4 of Law No. 33 bis/2003 of 6 September
2003, punishing the crime of genocide, crimes against humanity and
war crimes, on grounds of incompatibility with Articles 20, 33 and 34

of the Constitution of the Republic of Rwanda of 4 June 2003, as
amended and updated.
27. According to the Applicant,
“the aforementioned legal provisions have been formulated in unintelligible
and ambiguous terms likely to generate confusion and arbitrary decision,
to the point of immensely infringing the fundamental human rights of
individuals as enshrined in the Constitution, especially with regard to
freedom of expression in relation to the genocide which took place in
Rwanda. Furthermore, the said legal provisions lend themselves to several
interpretations”.
28. In its Judgment of 18 October 2012, the Supreme Court

“(i) declares inadmissible the application filed by Ingabire Victoire seeking
annulment of Article 4 of Law No. 33 bis/2003 of 6 September, 2003,
punishing the crime of genocide ideology, crimes against humanity and
war crimes, as unfounded; (ii) declares inadmissible the request filed by
Ingabire Victoire seeking annulment of Articles 4 to 9 of Law No. 18/2008
of 23 July, 2008, repressing the crime of genocide ideology, as groundless;
and (iii) however, declares admissible the application filed by Ingabire
Victoire seeking annulment of Articles 2 and 3 of Law No. 18/2008 of
July, 2008, supressing the crime of genocide ideology, but declares the
application groundless”.
i. Appeal before the Supreme Court
29. Following the High Court judgment of 30 October 2012, both the
Prosecution and the Applicant appealed before the Supreme Court of
Rwanda.
30. The Prosecution argued on appeal, inter alia, that (i) it was not
satisfied with the fact that the Applicant was not convicted of the crime
of creating an armed group with the intent to carry out an armed attack,
(ii) that the Applicant was acquitted of the offence of intentionally
spreading rumours with the intent to incite the population against the
existing authorities by disregarding the legislation in force at the time;
and (iii) that the sentence the Applicant received on the crimes of which
she was convicted was extremely reduced given the gravity of the
crimes at issue.
31. For her part, the Applicant submitted on appeal that the High
Court had disregarded the preliminary issues raised by her counsel,
that the trial proceedings had not respected the basic principles of fair
trial and that she was even convicted for crimes she had not committed.
32. According to Applicant, in its judgment of 13 December 2013,
the Supreme Court ruled that she “has been found guilty of conspiracy
to undermine the Government and the Constitution, through acts of
terrorism, war or other violent means, of downplaying genocide, and of

spreading rumours with the intent to incite the population against the
existing authorities”. She was sentenced to 15 years imprisonment by
the Supreme Court.
33. The Court notes that the Respondent State did not contest the
facts presented by the Applicant.
ii. Procedure before the Court
34. By a letter dated 3 October 2014, the Applicant seized the Court
with the present Application through her Counsel, and the Application
was served on the Respondent State by letter dated 19 November
2014, given 60 days within which to file its Response.
35. By a letter dated 6 February 2015, the Registry, pursuant to
Rule 35(2) and (3) of the Rules of Court transmitted the Application to
the Chairperson of the African Union Commission and, through her, to
the Executive Council of the Union, as well as to all the other States
Parties to the Protocol.
36. By a letter dated 23 January 2015, the Respondent State
forwarded to the Court its Response to the Application.
37. By a letter dated 9 June 2015, the National Commission for the
Fight against Genocide of Rwanda applied to the Court for leave to
appear as amicus curiae in the Application, and on 10 July 2015, the
Court granted the request.
38. By a letter dated 6 April 2015, the Applicant filed her Reply to the
Respondent’s Response.
39. On 7 October 2015, during its 38th Ordinary Session, the Court
ordered the Respondent State to furnish additional documentation.
The Respondent did not do so.
40. By a letter dated 4 January 2016, the Registry notified the Parties
of the Public Hearing set down for 4 March 2016.
41. By a letter dated 1 March 2016, the Respondent State notified
the Court of its deposit of an instrument of withdrawal of its Declaration
made pursuant to Article 34(6) of the Protocol. The Respondent State in
its letter contended that after deposition of the same, the Court should
suspend hearings involving the Republic of Rwanda until review is
made to the Declaration and the Court is notified in due course.
42. By a letter dated 3 March 2016, the Legal Counsel of the
African Union Commission notified the Court of the submission of the
Respondent State’s instrument of withdrawal of its Declaration made
under Article 34(6) of the Protocol, which was received at the African
Union Commission on 29 February 2016.
43. At the Public Hearing of 4 March 2016, the Applicant was
represented by Advocate Gatera Gashabana and Dr Caroline
Buisman. The Respondent State did not appear. The Court heard the
representatives of the Applicant on procedural matters in which they
requested the Court to:
“a. Reject the amicus curiae brief submitted by the National
Commission for the Fight against Genocide;
b. Order the Respondent State to facilitate access to the Applicant
by her representatives;
c. Order the Respondent State to facilitate access to video
conferencing technology for the Applicant to follow the
proceedings of the Court; and
d. Order the Respondent State to comply with the Court’s order of
7 October 2015, to file pertinent documents”.
44. In an order issued on 18 March 2016, the Court decided as
follows:
“a. That Parties file written submissions on the effect of the
Respondent’s withdrawal of its Declaration made under Article
34(6) of the Court Protocol, within fifteen (15) days of receipt of
this Order.
b. That its ruling on the effect of the Respondent’s withdrawal of
its Declaration under Article 34(6) of the Court Protocol shall be
handed down at a date to be duly notified to the Parties.
c. That the Applicant file written submissions on the procedural
matters stated in paragraph 14 above, within fifteen (15) days of
receipt of this Order.”
45. On 3 June 2016, the Court delivered a Ruling on the Respondent
State’s withdrawal of its Declaration made pursuant to Article 34(6) of
the Protocol. In that Ruling, the Court decided, among other things,
that “the withdrawal of its declaration by the Respondent State has no
effect on the instant Application and that the Court has jurisdiction to
continue hearing the Application”.
46. On 22 March 2017, a Public Hearing was held to receive
arguments on jurisdiction, admissibility and the merits. The Applicant
was represented by Advocate Gatera Gashabana and Dr Caroline
Buisman. The Respondent State did not appear.
47. During the public hearing, the Judges posed questions to the
Applicant’s representatives to which the latter provided answers.
A. Prayers of the Applicant

“a. Repeal, with retroactive effect, sections 116 and 463
of Organic Law N° 01/2012 of 2 May 2012, relating to

the Penal Code as well as that of Law N° 84/2013 of 28
October, 2013, relating to the punishment of the crime of
ideology of the Genocide;
b. Order the review of the Case;
c. Annulment of all the decisions that had been taken since
the preliminary investigation up till the pronouncement of
the last judgment;
d. Order the Applicant’s release on parole; and
e. Payment of costs and reparations”.
The Applicant reiterated these prayers during the Public Hearing of 22
March 2017.
B. Prayers of the Respondent State
49. In its Response, the Respondent State prays the Court to:
“a. Declare the Application vexatious, frivolous and without
merit; and
b. Dismiss the Application with cost”.
V. Jurisdiction
50. In accordance with Rule 39(1) of its Rules, the Court shall
conduct a preliminary examination of its jurisdiction, before dealing
with the merits of the Application.
A. Objection to the material jurisdiction of the Court
51. The Respondent State contends that the Applicant has seized
this Court as an appellate Court by requesting the latter to reverse or
quash the decisions of the Respondent State’s courts, and to replace
the Respondent State’s legislative and judicial institutions. According
to the Respondent, “…the African Court is neither a Court of Appeal
nor a legislative body which can nullify or reform court decisions and
make national legislation in lieu of national legislative Assemblies”. The
Respondent State submits in this regard that an “application requesting
the Court to take such action should be dismissed”.
52. In her Reply to the Respondent State’s Response, the Applicant
submits that the Respondent State’s argument is at variance with all
evidence and cannot resist the slightest bit of serious analysis. She
substantiates by indicating that the Application mentions “the legal
instruments of human rights duly ratified by the State of Rwanda which
have suffered various violations in the course of proceedings or simply

ignored”. She reiterates that
“it is clear that this Court was not seized as an appellate jurisdiction as
wrongly claimed by the Respondent, but rather as a court responsible for
adjudicating disputes resulting from multiple human rights violations that
considerably undermine the case between the Applicant and the National
Public Prosecution Authority before the High Court and Supreme Court,
respectively”.
53. This Court reiterates its position as affirmed in Ernest Francis

Mtingwi v Republic of Malawi,1 that it is not an appeal court with respect
to decisions rendered by national courts. However, as it underscored
in its Judgment of 20 November 2015, in Alex Thomas v United
Republic of Tanzania, and confirmed in its Judgment of 3 June 2016,
in Mohamed Abubakari v United Republic of Tanzania, this situation
does not preclude it from examining whether the procedures before
national courts are in accordance with international standards set out
in the Charter or other applicable human rights instruments to which
the Respondent State is a Party.2
54. Consequently, the Court rejects the Respondent State’s objection
that the Court is acting in the instant matter as an appellate Court.
55. Furthermore, regarding its material jurisdiction, the Court notes
that since the Applicant alleges violations of provisions of some of the
international instruments to which the Respondent State is a party, it
has material jurisdiction in accordance with Article 3(1) of the Protocol,
which provides that the jurisdiction of the Court “shall extend to all
application of the Charter, this Protocol and any other relevant Human
Rights instrument ratified by the States concerned”.
B. Other aspects of jurisdiction
jurisdiction has not been contested by the Respondent State,
and nothing in the pleadings indicate that the Court does not have
jurisdiction. The Court thus holds that:
“(i) it has jurisdiction ratione personae given that the Respondent
State is a party to the Protocol and deposited the declaration
1 Application No. 001/2013. Decision on Jurisdiction 15/3/2013, Ernest Francis

Mtingwi v Republic of Malawi, para 14.
2 Application No. 005/2013. Judgment on Merits 20/11/2015, Alex Thomas v United
Republic of Tanzania (hereinafter referred to as “the Alex Thomas Judgment”),
para 130, Application No. 007/2013. Judgment on Merits of 3/6/2016, Mohamed
Abubakari v United Republic of Tanzania (hereinafter referred to as “the Mohamed
Abubakari Judgment”), para 29.
required under Article 34(6) thereof, which enabled the Applicant

to access the Court in terms of Article 5(3) of the Protocol;
ii. it has jurisdiction ratione temporis in terms of the fact that the
alleged violations are continuous in nature since the Applicant
remains convicted on the basis of what she considers as unfair
process;
iii. it has jurisdiction ratione loci given that the facts of the matter
occurred in the territory of a State Party to the Protocol, that is,
the Respondent State.
57. From the foregoing, the Court finds that it has jurisdiction to
hear the instant case.
VI. Admissibility
58. Pursuant to Rule 39(1) of the Rules, “the Court shall conduct
a preliminary examination of … admissibility of the Application in
accordance with Articles 50 and 56 of the Charter and Rule 40 of these
Rules”.
59. Rule 40 of the Rules, which in substance restates the provisions
of Article 56 of the Charter, provides as follows:
6(2) of the Protocol refers, Applications to the Court shall comply with the
“1. Disclose the identity of the Applicant notwithstanding the latter’s

mass media;
obvious that the procedure is unduly prolonged;
60. While some of the above conditions are not in dispute between
the Parties, the Respondent State raises an objection relating to the
alleged failure by the Applicant to exhaust local remedies, pursuant to
Article 56(5) of the Charter and Rule 40(5) of the Rules.
A. Objection relating to non-compliance with Article 56(5)

of the Charter and Rule 40(5) of the Rules
61. The Respondent State contends that the Applicant failed to seize
the Supreme Court sitting in constitutional matters to challenge the
provisions of Rwandan laws that she alleges to be inconsistent with the
Charter and other relevant international instruments. The Respondent
State contends that the Applicant is challenging the conformity of Law
No. 33 bis of 6 September 2003, on the punishment of genocide,
crimes against humanity and war crimes and that the Constitution of
the Respondent State empowers the Supreme Court to hear petitions
aimed at reviewing laws that are inconsistent with the Constitution.
62. The Respondent State further contends that in terms of Article
145(3) of the Constitution of Rwanda of 3 June, 2003, “the Supreme
Court has jurisdiction and the responsibility to hear petitions aimed at
reviewing adopted laws that are inconsistent with the Constitution”, and
Article 53 of Organic Law N° 03/2012/OL of 13 June 2012, determining
the organization, functioning and jurisdiction of the Supreme Court,
gives the Court, upon petition by any Applicant, jurisdiction to “partially
or completely repeal any Organic Law or Decree-Law for reasons of
non-conformity with the Constitution”.
63. The Respondent State submits that as the Applicant is alleging
that Law No. 33 bis of 6 September 2003, is not in conformity with the
Constitution, “she must exhaust the local remedies available for the
purpose: this being an application made before the Supreme Court
sitting in Constitutional Matters…”. The Respondent State adds that
“having failed to do so, makes the application inadmissible due to non-
compliance with Article 56(5) [of the Charter] and Rule 40 of the Rules
of Court”.
64. The Respondent State avers further that the Applicant failed to
seize competent courts to apply for judicial review of the decisions
against her. According to the Respondent State, Article 78 of the
Organic Law No. 03/2012/OL of 13/06/2012, provides that the
Supreme Court shall have exclusive jurisdiction over applications for
review of final decisions due to injustice, and Article 81(2) provides
that the grounds for an application for review due to injustice, which
include, inter alia, the review of a Court decision in disfavour of anyone
for injustice, especially when there are provisions in this regard and
irrefutable evidence that the judge ignored in rendering the judgment.
The Respondent State submits that “by failure to make an application
for the Supreme Court to review the decision that she considers unjust,
the Applicant has failed to satisfy the requirement set forth in Article
56 of the Charter and Rule 40 of the Rules”, and invites the Court to
declare the application inadmissible.
65. The Applicant submits that the Respondent State’s courts are not
empowered to hear disputes concerning interpretation and application
of the Charter, the Protocol and other human rights instruments.
According to the Applicant, “Rwandan positive law has never put in
place special courts or tribunals competent to adjudicate human rights
issues”. The Applicant concludes in this regard that “in the absence of
Rwandan courts and tribunals competent to hear cases and disputes
concerning the interpretation and implementation of the Charter, the
Protocol and any other human rights instrument”, the submission
regarding the Applicant’s breach of Article 56(5) of the Charter and
Rule 40(5) of the Rules are devoid of any legal basis, and the objection
must therefore be found “groundless”.
66. On the Respondent State’s submission that the Applicant failed
to challenge the constitutionality of Law No. 33 bis of 6 September
2003, before the Supreme Court, the Applicant’s Counsel contends
that “she filed before the Supreme Court a Motion to challenge the
constitutionality of Law No. 33 bis of 6 September 2003, punishing
the crime of genocide, crime against humanity and war crimes”. To
corroborate her argument, she adds that “the case was entered on
the cause list as No. RINST/PEN/002/12/CS, examined and pleaded
before the Supreme Court for a ruling on the merits of the said Motion
in open court on 19 July 2012”. The Applicant concludes that “in its
open court hearing of 10 October 2012, the Supreme Court dismissed
the Motion, having found it groundless”, and according to the Supreme
Court, “Law No. 33 bis of 6 September 2003…is clearly consistent with
the Constitution”.
67. On the submission that the Applicant failed to avail herself of
the of judicial review remedy, the Applicant contents that “the action
instituted for review of a final judicial decision on grounds of injustice
does not respect the criteria of effectiveness, accessibility, efficiency
and other criteria as required by international jurisprudence”. According
to the Applicant, pursuant to Article 79 of the Organic Law 03/2012 of
June 2012, only the Office of the Ombudsman can petition the Supreme
Court over applications for review, adding that the remedy of judicial
review is subject to the discretion of the Office of the Ombudsman,
the General Inspectorate of Courts and the President of the Supreme
Court, and that the remedy may be subject to undue prolongation.
68. Regarding the appeal on unconstitutionality, this Court notes
from the records before it that the Applicant did approach the Supreme
Court of Rwanda, which is the highest court in the Respondent State,
to challenge the constitutionality of Law No. 33 bis of 6 September
2003, on the punishment of genocide, crimes against humanity and
war crimes, and the Supreme Court handed down its decision on 18
October 2012, finding the motion groundless.
69. In relation to the application for review, this Court notes that under
Article 81 of Organic Law 03/2012 of June 2012, on the Organization,
Functioning and Jurisdiction of the Supreme Court, applications for
review may be heard only on the following grounds:
“1. when there is an unquestionable evidence of corruption,
favouritism or nepotism that were relied upon in the judgment
and that were unknown to the losing party during the course of
the proceedings;
2. when there are provisions and irrefutable evidence that the
judge ignored in rendering the judgment;
3. when the judgment cannot be executed due to the drafting of
its content.”
70. An examination of these grounds shows that the review remedy
would not have been sufficient to redress the Applicant’s complaints
which concerned alleged substantive violation of the Applicant’s human
rights and not only allegations of bias or technical and procedural
errors. Moreover, under Article 79 of Organic Law 03/2012 of June
2012, which governs the Procedure for petitioning the Supreme Court
over applications for review of a final decision due to injustice:
“The Office of the Ombudsman shall be the competent organ to petition
the Supreme Court over application for review of a final decision due to
injustice. When, the final decision is made and there is evidence of injustice
referred to under Article 81 of this Organic Law, Parties to the case shall
inform the Office of the Ombudsman of the matter. When the Office of the
Ombudsman finds that there is no injustice in handing down the decision,
it shall inform the Applicant. When the Office of the Ombudsman finds
that the decision handed down is unjust, it shall send to the President
of the Supreme Court a letter accompanied by a report on the issue and
evidence of such injustice and request to re-adjudicate the case”.
71. The above provision demonstrates that the capacity to exercise

the review remedy lies exclusively with the Ombudsman which, in this
regard, uses its discretionary power. The assessment on whether there
has or has not been injustice rest with the Ombudsman.
72. In the view of the Court and in the circumstances of this case,
therefore, an application for review under the Rwandan legal system
is an extraordinary remedy which would not constitute an effective and
efficient remedy, and which the Applicant did not have to exhaust.3
73. In light of the foregoing, the Court dismisses the Respondent
State’s objection and finds that this Application fulfils the admissibility
requirement under Article 56(5) of the Charter and Rule 40(5) of the
Rules.
3 See Alex Thomas Judgment, para 63.

B. Compliance with Rule 40(1), (2), (3), (4), (6) and (7) of
the Rules
74. The Court notes that the issue of compliance with sub-rules
40(1), (2), (3), (4), (6) and (7) is not in contention, and nothing in the
Parties’ submissions indicates that they have not been complied with.
The Court therefore holds that the requirements under those provisions
have been met.
Application fulfils all admissibility requirements in terms of Article 56
of the Charter and Rule 40 of the Rules, and accordingly declares the
same admissible.
VII. On the merits
76. The Applicant alleges violation of Articles 3, 7, 9 and 15 of the

Charter, Articles 7, 14, 15, 18 and 19 of the ICCPR and Articles 1,
7, 10, 11, 18 and 19 of the Universal Declaration on Human Rights
(hereinafter referred to as “the Universal Declaration ). It emerges from
the case file that the Applicant’s allegation focuses on the rights to a
fair trial and freedom of opinion and expression.
77. It should be stated here that although in her Application, the
Applicant alleges violation of Articles 3 of the Charter, and Articles 7
and 18 of the ICCPR, she did not pursue these allegations in the course
of the proceedings, and the Court will accordingly not pronounce itself
on them.
A. Right to a fair trial
78. The elements of the right to a fair trial as raised in the instant
case are as follows:
“a. the right to presumption of innocence;
(b) the right to defence;
(c) the right to be tried by a neutral and impartial court;
(d) the principle of legality of crimes and penalties and non-
retroactivity of criminal law.
i. The right to presumption of innocence
79. The Applicant submits that the Respondent State’s allegations

linked to the terrorist attacks that occurred in the city of Kigali were a
pretext orchestrated by the prosecution to impute to the Applicant the
offence of complicity in the terrorism on the basis of the confessions
unlawfully obtained from her co-defendants. According to the Applicant,

the co-defendants were allegedly forced to testify against themselves
and to plead guilty; and it is on the basis of these irregularities that the
prosecution justified remanding her in custody. The Applicant submits
in conclusion that this act constitutes a violation of the principle of
presumption of innocence.
80. According to the Respondent State, the Applicant’s accusations
are unfounded because her trial was conducted with all the guarantees
provided by law and in accordance with international standards. It
avers that the Applicant was given the opportunity to appear in court,
to be assisted by Counsel and in the end was lawfully convicted. The
Respondent State concludes that the Applicant’s right to presumption
of innocence and therefore, her right to a fair trial, has not been violated.
81. The Court notes that presumption of innocence is a fundamental
human right enshrined in Article 7(1)(b) of the Charter, which provides
that:
comprises b) the right to be presumed innocent until proved guilty by a
competent court or tribunal”.
82. Article 14(2) of the ICCPR also provides for the same right in the
following terms:
“Everyone charged with a criminal offence shall have the right to be
presumed innocent until proved guilty according to law”.
83. The essence of the right to presumption of innocence lies in its

prescription that any suspect in a criminal trial is considered innocent
throughout all the phases of the proceedings, from preliminary
investigation to the delivery of judgment, and until his guilt is legally
established.
84. The Court finds, on the basis of the pleadings, that the Applicant
has not adduced evidence to the effect that her right to presumption
of innocence has been violated. It therefore dismisses this allegation.
ii. The right to defence
85. The Applicant submits that the prosecuting authorities harassed

the defence witness, Mr Habimana Michel, employing subterfuge and
intimidation manoeuvres. She alleges that, unknown to the Judge
and the defence, the Public Prosecutor ordered the prison services
to search all the personal effects of the witness in his absence in the
evening of 11 April 2012. She alleges further that the witness was
questioned over his testimony in court earlier that day.
86. According to the Applicant, at the public hearing on 12 April
2012, the prosecuting authorities used material obtained from the
search to allege the discovery of compromising documents against

her. She avers that the documents seized included a letter referenced
165/PR/2012 dated 11 April 2012, sent by the Remera Prison
Superintendent, together with a report on the hearing of the witness.
87. The Applicant further contends that analysis of the report
indicated that the questioning took place outside the applicable legal
hours; that the witness was not assisted by Counsel of her choice and
that the interrogation focused on the statements made in court by the
witness in the morning of that day. According to the Applicant, this was
an attempt to intimidate the witness; and that through her counsel,
she sought to protest such a practice during the trial but to no avail;
on the contrary, they were each time thoroughly insulted and rudely
interrupted by the President of the Court.
88. The Applicant also avers that there were “various abuses”
characterised by systematic searches of the Defence team by the
security services. According to her, this security measure was not
applied to the prosecution team, thus creating an unequal treatment.
She contends that the judges of the High Court “systematically”
prevented her team of counsel from speaking. She claims that the
written and oral protests of the Defence at both the High Court and the
Supreme Court were not heeded.
89. According to the Applicant, the acts of intimidation and the
threats to which the Defence witness was subjected undermines the
right to defence. She avers that one of the Judges instead stated that
the Counsel should not have intervened in favour of a person who was
not his client. She added that, following that incident, the President of
the Supreme Court terminated the examination of the defence witness
followed by the withdrawal of Ingabire’s trial. For the Applicant, this
is a flagrant violation of her right to a fair trial, contrary to Article 7 of
the Charter; Article 14(1) of the ICCPR and Article 10 of the Universal
Declaration.
90. The Respondent State submits that the search of the Defence
witness was conducted after the witness gave his oral and written
testimony in Court. It avers that it is a common practice for prison
guards to search prisoners from time to time; and that the search
of members of the Defence team was conducted as part of security
measures, as there had been grenade attacks in Kigali before the trial.
91. The Respondent State also submits that the Applicant was
assisted by a team of two lawyers of her choice, one of whom was an
international lawyer, throughout the proceedings, and that they had full
latitude to organise her defence without hindrance. It further submits
that the trial lasted two years and, therefore, all the Parties had the time
needed for them to defend their cause. According to the Respondent
State, the allegations of violation of the right to defence are unfounded.
92. The Court notes that Article 7(1)(c) of the Charter provides that:
comprises:
a)……
b)……
c) the right to defence, including the right to be defended by Counsel
of his choice”.
93. An essential aspect of the right to defence includes the right to
call witnesses in one’s defence. Witnesses in turn deserve protection
from intimidation and reprisals to ensure that they can assist the
accused persons and the authorities to reach a just decision.
94. In the instant case, the Court notes that the Applicant submits two
main allegations relating to her right to defence: searches conducted
on her Defence Counsel at the High Court and secondly, the search of
the Defence witness at the prison. Based on the records, at the High
Court after the Defence Counsel complained, the High Court ordered
that the searches have to be done on all Parties, including the public
for security reasons.
95. Regarding the search of prisoners and detainees, the Court
notes that, this is a normal practice in prisons. Similarly, searches of
the Defence Counsel and the public at the Court may be carried out as
part of security measures, given that grenade attacks had happened
in Kigali before the Applicant’s trial. Thus, as far as the searches in the
prison and of the Defence Counsel at the High Court are concerned,
the Court is of the view that the Applicant’s right to defence was not
contravened.
96. The Court however notes from the pleadings that the search
conducted in prison resulted in the seizure of certain documents,
without the knowledge of the Defence, documents which were allegedly
later used against the Applicant before the High Court. Furthermore,
the Applicant complained about the Judges’ refusal to allow her
Counsel to put questions to the co-accused; the questioning and the
threats to which the Defence witness was subjected to on account
of his deposition upon return to prison; the difficulties faced by the
Counsel in visiting their client; the use of the co-accused’s statements
obtained in suspicious conditions after the latter’s stay in a military
camp. The Respondent did not refute each of these allegations but
made a general denial that the allegations of violation of the right to
defence are unfounded.
97. As regards the questioning of a witness by prison authorities
over the testimony he/she has given in court, the Court notes that
this is not a conduct consistent with standards that aim to promote a
fair trial. Such actions may have an intimidating effect on witnesses’
willingness and disposition to cooperate and adduce evidence against

the Respondent State. This is especially so for witnesses in detention
or already serving prison sentences. However, as the questioning
happened after the witness had given testimony in Court, the Court
concludes that in the circumstances of the case, this did not violate the
right to defence of the Applicant.
98. The Court further observes that the right to defence is not
limited to the choice of Counsel. This right also includes principles
such as access to witnesses, and opportunity for Counsel to express
themselves, consult with their clients and to examine and cross-
examine witnesses. The right to defence further includes the right to
know and examine documents used against one’s trial. In the instant
case, the difficulty encountered by the Applicant’s Defence Counsel in
putting questions to the co-accused, the threats and environment of
intimidation faced by the defence witness and the use of documents
seized during what the Applicant considers an illegal search, that was
later used against her, without giving her the chance to examine it,
are incompatible with international standards pertaining to the right to
defence. The Court therefore holds that the Applicant’s right to defence
in this regard was violated, contrary to Article 7(1)(c) of the Charter.
iii. The right to be tried by a neutral and impartial tribunal
99. The Applicant contends that the fact that the Judges of the
Supreme Court and the High Court did not react to the national
prosecution authorities’ intimidation of a Defence witness, in the
person of one Habimana Michel, and also that the Court considers
the said acts of intimidation as having had no impact on the content
of the witness’s testimony, is proof of their partiality. The Applicant
further argues that, at the Supreme Court, her counsel mounted a
strong protest denouncing the abuses and excesses of the prosecution
authorities vis-à-vis a defence witness.
100. The Respondent submits that this allegation is unfounded, since
according to the latter, all the guarantees provided by law have been
observed.
101. The Court notes that the Charter in its Article 7(1)(d) provides
that: “Every individual shall have the right to have his cause heard. This
comprises “(d) the right to be tried … by an impartial court or tribunal”.
Article 14(1) of ICCPR4 and Article 10 of the Universal Declaration also

protect the right to trial by an independent and impartial tribunal.5
102. According to the African Commission’s Principles and Guidelines
on the Right to a Fair Trial and Legal Assistance in Africa,
“the impartiality of a judicial body could be determined on the basis of [the
following] three relevant facts:
“1. that the position of the judicial officer allows him or her to play a
crucial role in the proceedings;
i. the judicial officer may have expressed an opinion which would
influence the decision-making;
ii. the judicial official would have to rule on an action taken in a
prior capacity”.6
103. The aforementioned Guidelines provide that the impartiality of a
judicial body would be compromised when:
“1. a former public prosecutor or legal representative sits as a
judicial officer in a case in which he or she prosecuted or
represented a party;
2. a judicial official secretly participated in the investigation of a
case;
3. a judicial official has some connection with the case or a party
to the case; or
4. a judicial official sits as member of an appeal tribunal in a case
which he or she decided or participated in a lower judicial body”.7
104. In the instant case, the evidence adduced by the Applicant does
not sufficiently demonstrate that any of the above factors existed in
the course of her trial. In the circumstances, the Court dismisses this
allegation.
iv. The principle of legality and non-retroactivity of the

law
105. The Applicant submits that she was first charged and convicted
4 Article 14(1) of the ICCPR provides that: “…All persons shall be equal before the
courts and tribunals. In the determination of any criminal charge against him, or of
his rights and obligations in a suit at law, everyone shall be entitled to a fair and
public hearing by a competent, independent and impartial tribunal established by
law…”.
5 Article 10 of the Universal Declaration: “Everyone is entitled in full equality to a fair
and public hearing by an independent and impartial tribunal, in the determination
of his rights and obligations and of any criminal charge against him”.
6 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in
Africa, 2003, Principle 5.
7 Ibid.
for the crime of propagating the ideology of genocide under Law No.
18/2008 of 23 July 2008. Subsequently, the Supreme Court found her
guilty of minimising genocide, re-qualifying the acts under a new law,
that is, Law No. 84/2013 on the repression of the ideology of the crime
of genocide, which entered into force on 28 October 2013. According
to her, the reference to this new law by the Supreme Court violates
the principle of non-retroactivity of the law and the non-retroactive
application of the criminal punishment.
106. The Respondent contends that the principle of legality of crimes
and penalties as provided under Article 7(2) of the Charter was fully
respected during the trial. For the Respondent, any Judge both at the
High Court and the Supreme Court has the last word in terms of re-
characterising an offence and applying the appropriate law, and this
does not amount to a violation of the principle of legality and non-
retroactivity of the law.
107. The Court notes that the relevant provision for the issue at hand
is Article 7(2) of the Charter, which states that:
“No one may be condemned for an act or omission which did not constitute
a legally punishable offence at the time it was committed. No penalty may
be inflicted for an offence for which no provision was made at the time it
was committed...”
108. The non-retroactivity of criminal law is an important rule

intrinsic to the principle of legality, which stipulates, among others, that
criminal responsibility and punishment must be based only on the prior
promulgation of laws which prohibit a particular conduct. The principle
of legality requires that society is informed of prohibited behaviour
before the law prohibiting or criminalising such behaviour comes
into force. In other words, the prohibited conduct must be clear and
verifiable and the punishment that an infringement entails should be
specified before individuals are held accountable for the same.
109. The rule of non-retroactivity forbids the retrospective application
of a criminal law to acts committed before the enactment of the law
when such law makes previous lawful acts reprehensible or attaches
new punishment to the existing criminal acts. The only exception where
a criminal law may apply retroactively is when its application favours
an individual by decriminalising a previous criminal conduct which he/
she is accused of or provides lighter penalty than the law which was in
force during the commission of the conduct.8
110. In the instant case, the Court observes that crimes for which the
Applicant was convicted were said to have been committed between
2003 and 2010. During this time, there were four criminal laws in the
8 See Article 15(1) of the ICCPR.

Respondent State governing the offences she was charged with: the
1977 law instituting the Penal Code, Law No. 33/2003 of 6 September
2003, on the Repression of Crimes of Genocide and Crimes against
Humanity of 2003, Law No. 18/2008 of the 23 July 2008, on the
Repression of the Crime of Ideology of Genocide and Law No.45/2008
on Counter-terrorism of 2008. Law No. 18/ 2008 repealed the Law No.
33/2003 to the extent the latter contradicts the provisions of the former.
111. The Court notes that Article 4 of Law No. 33/2003 of 2003
contains a provision criminalising minimisation of genocide while Law
No. 18/ 2008 of 2008 on the Crime of the Ideology of Genocide does
not have a similar provision. In other words, as far as the crime of
minimisation of genocide is concerned; Law No. 33/2003 of 2003
continued to apply. However, in 2013, both Law No. 33/2003 of 2003
and Law No. 18/2008 of 2008 were repealed by Law No. 84/2013 of
2013 on the Crime of Genocide and Other related offences. Similarly,
the 1977 Law Instituting the Penal Code was replaced by the 2012 Law
Instituting the Penal Code.
112. Under its Article 6, Law No. 84/2013 of 2013 provides for
provisions on minimisation of genocide. In comparison to Law No.
33/2003 of 2003, which provides for 10-20 years imprisonment for the
crime of minimisation of genocide, Law No. 84/2013 provides for 5-10
years imprisonment for the same crime.9 On the other hand, for crimes
of conspiracy and threatening State security and the Constitution, and
crimes of spreading rumours with intent to incite the population against
the existing authorities, the 1977 Penal Code provides a criminal
punishment extending up to life imprisonment while the 2012 Penal
Code provides a maximum penalty ranging from 20- 25 years for the
same crimes.
113. The Court takes note that the Applicant was initially charged
with propagating the ideology of genocide before the High Court on
the basis of Law No 18/2008 of 2008. However, the High Court re-
qualified the charge and convicted her for the crime of revisionism of
genocide on the basis of Article 4 of Law No. 33/2003 of 2003 and
crime of treason to threaten state security and the Constitution under
the 1977 Penal Code, and sentenced her to 8 years imprisonment.
On appeal, the Supreme Court sustained the conviction but rejected
the mitigating circumstances invoked by Applicant and crimes of which
she was acquitted at the High Court. The Supreme Court, citing the
existence of concurrence of crimes, imposed a punishment of 15
years imprisonment on the basis of Law No. 84/2013 of 2013 and the
9 Article 12(3) Law No. 84/2013 “cum” Article 116 of the 2012 Organic Law
Instituting the Penal Code.
2012 Penal Code for the crime of minimising genocide and crimes of
conspiracy and threatening State security.
114. The Court is of the view that the rule of non-retroactivity of the
law does not preclude the requalification of a criminal charge in the
course of a criminal trial resulting from the same facts. What is rather
prohibited is the application of new criminal laws, in the instant case,
Law No. 84/2013 of 2013 and the 2012 Penal Code, to crimes alleged
to have been committed before the coming into force of such law.
115. However, as indicated above, the punishments for the crime of
threatening State security and the Constitution in the 1977 Penal Code
may extend to life imprisonment and for the crime of minimisation of
genocide in the Law No. 33/2003 of 2003 ranges from 10-20 years as
opposed to 15 years’ imprisonment in the 2012 Penal Code and 5-10
years imprisonment prescribed in the Law No. 84/2013, respectively.
116. It is therefore evident that the application of the 2012 Penal
Code and Law No. 84/2013 for the Applicant was in general favourable
and is congruent with the exception to the rule of non-retroactivity,
that new criminal laws may be applied to acts committed before their
commission when these laws provide lighter punishment. The fact that
the punishment imposed on the Applicant by the Supreme Court was
higher than the penalty that was initially imposed by the High Court
was not because of the retroactive application of the new laws. As the
records before this Court reveal, this was rather because the Supreme
Court had rejected the mitigating circumstances considered by the
High Court and convicted the Applicant for an offense (spreading of
rumours) for which she had been acquitted by the High Court.
117. The Court, therefore, finds that there was no violation of Article
7(2) of the Charter.
118. For the avoidance of doubt, the Court wishes to state that this
finding of the Court relates to the allegation of violation of the principle
of non-retroactivity only and is without prejudice to its position with
respect to the right to freedom of expression and opinion below.
B. Freedom of opinion and expression
119. The Applicant contends that she was convicted for minimisation
of genocide whereas the opinion she expressed in the course of her
speech at the Kigali Genocide Memorial concerned the management
of power, the sharing of resources, the administration of justice, the
history of the country and the attack that led to the demise of the former
President of the Republic. The Applicant submits that she had no
intention to minimise and trivialise genocide or to practice the ideology
of genocide and that the right to express her opinion was protected by
the Constitution of Rwanda and other international instruments.
120. The Applicant maintains that the laws of Rwanda which criminalise
the negation of genocide are vague and unclear, and do not comply
with the requirement that restrictions on the rights of individuals must
be necessary. She added that the Respondent State had admitted that
there were defects in the laws penalising the minimisation of genocide.
121. The Applicant further contends that she was found guilty of
spreading rumours likely or seeking to cause a revolt among the
population against established authority. She also contends that in
convicting her for propagating rumours, the local courts failed to prove
or to substantiate their arguments through specific and corroborative
evidence showing that her positions were likely to establish her criminal
liability.
122. During the Public Hearing, Counsel for the Applicant, in reference
to a letter from the Applicant, said:
“We are not against a law to punish those who minimize the genocide
committed against Tutsis in Rwanda, as is the case for other genocides
committed elsewhere. But we demand solid benchmarks to avoid any
amalgamation and the use of such a law for political purposes. Thus, we
demand that such a law clearly show the border between the legitimate
freedom of opinion and the actual crime of minimisation of genocide.”
123. For the Applicant, the theory of margin of appreciation invoked

by the Respondent State refers to the latitude that the international
monitoring bodies are willing to grant national authorities in fulfilling
their obligations under the international human rights instruments
they have ratified. The theory can also be described as the latitude
a government enjoys in evaluating factual situations and in applying
the provisions set out in international human rights instruments. This
theory is premised on the fact that the process of realising a “uniform
standard” of human rights protection must be gradual because the
entire legal framework rests on the fragile foundations of the consent of
Member States. According to the Applicant, the margin of appreciation
provides the flexibility needed to avoid damaging confrontations
between human rights tribunals and Member States and enables the
Court to strike a balance between the sovereignty of States and their
international obligations.
124. The Respondent State argues that the right to express one’s
opinion is subject to limitations and that considering the social context,
the history of and the environment in Rwanda, there was reason to
enact laws to penalise the minimisation of genocide. It also notes
that the Judgment of the Supreme Court had alluded to the fact that
other countries had imposed similar restrictions so as to prevent the
minimisation of genocide.
125. The Respondent State affirms that this Court should apply the
principles of subsidiarity and adopt a margin of appreciation in its
assessment of the internal situation of Rwanda.

126. The Respondent State submits that in examining the Application,
the Court should consider the margin of appreciation in complying with
Article 1 of the Charter. In this regard, it argues that “the content given
to the right cannot be enforced in a vacuum and as such the ambit of its
enforcement will be heavily influenced by the domestic context in which
that right operates”. To this end, the Respondent State avers that “it is
critical that the African Court gives serious contextual consideration
to the domestic situation when evaluating a particular State’s level of
compliance”. On the principle of subsidiarity, the Respondent State
submits that:
“… since the initial responsibility rests with the Respondent [State] to give
effect to the rights guaranteed by the Charter, she also has to be given an
opportunity through her institutions to decide how to discharge this duty”.
127. The National Commission for the Fight against Genocide

(CNLG), intervening as Amicus Curiae, argues that the theory of double
genocide to which the Applicant referred is nothing but another way of
denying the genocide perpetrated in 1994 against Tutsis in Rwanda.
According to CNLG, revisionism is structured around a number
of affirmations which help to conceal the criminal intent that is an
integral part of the crime of genocide, without denying the reality of the
massacres and to sustain the idea of double genocide. CNLG submits
further that the theory of double genocide is intended to transform the
1994 genocide against Tutsis in Rwanda into an inter-ethnic massacre,
and at the same time, exonerate the perpetrators, their accomplices
and their sympathisers.
128. CNLG further alleges that the statements made by the Applicant
at the Kigali Genocide Memorial constitute a form of expression of
the theory of double genocide in Rwanda, a manipulation skilfully
executed and sowing the seeds of confusion around the genocide
committed against the Tutsis in Rwanda in 1994. According to CNLG,
this statement signifies that there were two genocides in Rwanda, and
that the Tutsis are therefore as guilty as their executioners. It submits
that the Applicant’s statements are a revisionist manoeuvre with the
peculiar feature of using partial and dishonest methodology to select,
disguise, divert or destroy information that corroborates the existence
of genocide against the Tutsis.
129. The Court notes that the Charter in its Article 9(2) enshrines the
right to freedom of expression in the following terms:
“Every individual shall have the right to express and disseminate his
opinions within the law”.
130. Article 19 of the ICCPR also provides that:

“1. Everyone shall have the right to hold opinions without
interference.
2. Everyone shall have the right to freedom of expression; this right
shall include freedom to seek, receive and impart information
and ideas of all kinds, regardless of frontiers, either orally, in
writing or in print, in the form of art, or through any other media
of his choice.
3. The exercise of the rights provided for in paragraph 2 of this
article carries with it special duties and responsibilities. It may
therefore be subject to certain restrictions, but these shall only
be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre
public), or of public health or morals.”
131. The right to freedom of expression is one of the fundamental
rights protected by international human rights law, the respect of which
is crucial and indispensable for the free development of the human
person and to create a democratic society. It comprises inter alia, the
freedom to express and communicate or disseminate information, ideas
or opinions of any nature in any form and using any means, whether at
national or international level. The right to free expression requires that
States protect this right from interferences regardless of whether the
interferences originate from private individuals or government agents.
132. While freedom of expression is as important as all other rights
for the self-development of individuals within a democratic society, it is
not a right to be enjoyed without limits. In its Judgment in the Matter
of Lohé Issa Konate v Burkina Faso of 5 December 2014, this Court
emphasised that freedom of expression is not an absolute right and
under some circumstances, it may be subject to some restrictions. In
that judgment, relying on Article 19(3) of ICCPR and the jurisprudence
of the African Commission on Human Rights, and other international
and regional human rights bodies, the Court held that the terms “within
the law” in Article 9(2) envisage the possibility where restrictions may
be put in place on the exercise of freedom of expression provided that
such restrictions are prescribed by law, serve a legitimate purpose and
are necessary and proportional as may be expected in a democratic
society.10
133. In the instant case, the Court infers from the undisputed
submissions of both Parties that the Applicant was convicted and
sentenced both at the High Court and the Supreme Court of the
Respondent State for the remarks that she made at the Kigali Genocide
10 Application No. 004/2013. Judgement on Merits of 5/12/2014, Lohé Issa Konate v

Burkina Faso (hereinafter referred to as “the Issa Konate Judgment”), paras 145-
166.
Memorial, and her interviews and other statements she expressed

on different occasions. It is no question that the said conviction and
sentence of the Applicant constitute a restriction on her freedom of
expression for the purpose of Article 9(2) and in terms of Article 19(3)
of ICCPR. The key issue that the Court should thus address is whether
such restriction was reasonable, in that, it was provided by law, served
a legitimate purpose, and was necessary and proportional in the
circumstances of the case.
i. Whether the interference was provided by law
134. There is no dispute between the Parties that the Applicant’s

conviction and sentence for the crimes of minimisation (revisionism)
of genocide, spreading rumours to undermine the authority of the
government, propagating the ideology of genocide and threatening
State security and the Constitution were based on the national law of
the Respondent State. The records of the case reveal that both the
High Court and Supreme Court in their verdicts relied upon Law No.
33/2003, Law No. 84/2013 and the 2012 Penal Code. However, the
Applicant challenges the nature of these laws, asserting that they are
‘vague and unclear’.
135. The Court recalls its established jurisprudence that the reference
to the ‘law’ in Article 9(2) of the Charter and in other provisions of the
Charter must be interpreted in the light of international human rights
standards,11 which require that domestic laws on which restrictions to
rights and freedoms are grounded must be sufficiently clear, foreseeable
and compatible with the purpose of the Charter and international
human rights conventions and has to be of general application.12
136. In the instant case, regarding the Applicant’s assertion that the
laws relating to the minimisation of genocide is vague and unclear, the
Court notes that some provisions of the aforementioned laws of the
Respondent State are couched in broad and general terms and may
11 Issa Konate Judgment, para 129.

12 A v Australia, Communication No. 560/1993, UN Doc. CCPR/C/59/D/560/1993
(1997), para 9.5, Coard et al. v United States, IAComHR, case 10.951, Report Nº
109/99, 29/91999, paras 42-59, see also Medvedyev and others v France, ECtHR,
Judgment, 29/32010, paras 92-100.
be subject to various interpretations.13

137. Nonetheless, the nature of the offences, that these laws seek to
criminalise, are admittedly difficult to specify with precision. In addition,
considering the margin of appreciation that the Respondent State
enjoys in defining and prohibiting some criminal acts in its domestic
legislation, the Court is of the view that the impugned laws provide
adequate notice for individuals to foresee and adapt their behaviour
to the rules.14 The Court therefore holds that the said laws satisfy the
requirement of “the law” as stipulated under Article 9(2) of the Charter.
ii. Whether the restriction served a legitimate purpose
138. In its submissions, the Respondent alludes that, given its past
history of genocide, the kind of restrictions imposed by the domestic
law (which were applied on the Applicant) are meant to protect State
security and public order. The nature of the crimes for which the
Applicant was charged and convicted also relate to the protection
of national security, from expressions creating divisions among the
people and internal strife against the government.
139. Unlike Article 19(3) of the ICCPR, the Court observes that Article
9(2) of the Charter does not list those legitimate purposes for which
the right to freedom of expression may be restricted. Nonetheless, the
general limitation clause under Article 27(2) of the Charter requires that
all rights and freedoms must be exercised “with due regard to the rights
of others, collective security, morality and common interest”. In its case
law, the Court has also acknowledged that restrictions on freedom of
expression may be made to safeguard the rights of others, national
security, public order, public morals and public health.15
140. In the instant case, the Court considers that the crimes for which
the Applicant was convicted were serious in nature with potential grave
repercussions on State security and public order and the aims of the
abovementioned laws were to protect the same. The Court therefore
13 See for example, Article 8 of Law No. 84/2013 of 28 October 2013 on the crime
of the ideology of genocide, which stipulates that: “The minimization of genocide
is any intentional act manifested in public aimed at: 1. Minimising the seriousness
of the consequences of the genocide; 2. minimising the methods by which the
genocide was committed. Whoever commits an act provided for in the preceding
paragraph, shall be guilty of an offense of minimization of the genocide”. Article
116 of the Code of Criminal Procedure on negation and minimization of
the genocide also stipulates that: “Anyone who, publicly, in his words, writings,
images or in any other way, denies the genocide perpetrated against the Tutsi,
grossly trivializes it, seeks to justify it or to approve its basis or conceals or destroys
the evidence, is liable to imprisonment for more than (5) to (9) years”.
15 Issa Konate Judgment, para. 134-135.
holds that the restriction made on the Applicant’s freedom of expression

served the legitimate interests of protecting national security and public
order.
iii. Whether the restriction was necessary and proportional
141. The Court notes that restrictions made on the exercise of

freedom of expression must be strictly necessary in a democratic
society and proportional to the legitimate purposes pursued by imposing
such restrictions.16 In this regard, the Court wishes to point out that,
the determination of necessity and proportionality in the contexts of
freedom of expression should consider that some forms of expression
such as political speech, in particular, when they are directed towards
the government and government officials, or are spoken by persons
of special status, such as public figures, deserve a higher degree of
tolerance than others.17
142. It should also be noted that freedom of expression protects not
only” information” or “opinions that are favourably received or regarded
as inoffensive, but also those that offend, shock or disturb” a State
or any section of the population.18 As the European Court of Human
Rights has stated in its decision in Handyside v United Kingdom,
these are “the demands of pluralism, tolerance and broadmindedness
without which there is no ‘democratic society.’”19
143. The Court is also of the opinion that the assessment of necessity
and proportionality under Article 9(2) of the Charter and Article 19(3) of
ICCPR cannot be done in a vacuum and due consideration should be
given to particular contexts in which the impugned expressions were
made.
144. In the instant Application, the Respondent State and CNLG in their
submissions aver that the various statements made by the Applicant
on different occasions, including those made at the Kigali Genocide
Memorial were intended to minimise the genocide committed against
Tutsis, by propagating the idea of ‘double genocide’, and sought to
16 Issa Konate Judgment para 145.

17 In17, para 155. Kenneth Good v Republic of Botswana, AfComHPR (2010),
paragraph 198; case of Ivcher-Bronstein v Peru, Judgment of 6/2/2001, para
155, case of Ivcher-Bronstein v Peru (IACtHR, Preliminary Objections, Merits,
Reparations and Costs), Judgment of 2/7/2004, para 127, case of Ricardo Canese
v Paraguay, IACtHR, (Merits, Reparations and Costs), judgment of 31/8/2004,
para 98.
18 Handyside v The United Kingdom, (1976), para 49, see also Gunduz v Turkey,
Judgment of 4/12/2003, para 37, Human Rights Committee, General Comment 34
(2011), para 11.
19 Handyside v United Kingdom (1976), para 49.
undermine the authority of the government by inciting citizens to turn

against the government by spreading rumours that create divisions
and internal strife among the people of Rwanda. In this regard, the
Respondent State prays the Court, in determining the matter, to
consider its particular past history and apply the principles of margin of
appreciation and subsidiarity.
145. On its part, the Applicant insists that the laws of Rwanda which
criminalises the negation and minimisation of genocide do not comply
with the requirement that restrictions on the rights of individuals
must be necessary. The Applicant also contends that her conviction
for spreading rumours likely or seeking to cause a revolt among the
population against established authority was not substantiated in the
domestic courts through specific and corroborative evidence showing
that her positions were likely to establish her criminal liability.
146. The Court wishes to underscore that it is fully aware and
cognisant of the fact that Rwanda suffered from the most atrocious
genocide in the recent history of mankind and this is recognised as
such internationally. This grim fact of its past evidently warrants that
the government should adopt all measures to promote social cohesion
and concordance among the people and prevent similar incidents from
happening in the future. The State has the responsibility to ensure that
the laws in this respect are respected and that every offender answers
before the law. It goes without saying that it is entirely legitimate for the
State to have introduced laws on the “minimisation”, “propagation” or
“negation” of the genocide.
147. Nevertheless, the laws in question should not be applied at any
cost to the rights and freedoms of individuals or in a manner which
disregards international human rights standards. The legitimate
exercise of rights and freedoms by individuals is as important as the
existence and proper application of such laws and is of paramount
significance to achieve the purposes of maintaining national security
and public order. In all circumstances, it is important that restrictions
made on the fundamental rights and freedoms of citizens are warranted
by the particular contexts of each case and the nature of the acts that
are alleged to have necessitated such restrictions.
148. It is thus incumbent upon this Court to examine the nature of the
opinion alleged to have been expressed by the Applicant and determine
whether such expression warranted her conviction and imprisonment,
and whether such measure was proportional under the circumstances.
149. In this regard, the Court notes from the records of the file that
the Applicant’s statements that were alleged to have been made
on different occasions were of two natures: those remarks made in
relation to the Genocide, particularly, at the Kigali Genocide Memorial
and those directed against the government, including the President of
the Republic, and the Judiciary (comprising the Gacaca Courts).

150. At the Kigali Genocide Memorial, the Applicant claims to have
made the following statement in Kinyarwanda:
“…if we look at this memorial, it only refers to the people who died during
the genocide against the Tutsis. There is another untold story with regard
to the crimes against humanity committed against the Hutus. The Hutus
who lost their loved ones are also suffering; they think about the loved
ones who perished and are wondering “When will our dead ones also be
remembered?””20
151. In its submissions, the Respondent has not made any comments
on the authenticity of this statement.
152. However, the Court observes from the records that the Applicant’s
statement at the Memorial, as indicated in the High Court’s judgment of
30 October 2012, reads as follows:
“ … For example, we are honouring at this Memorial the Tutsi victims
of Genocide, there are also Hutus who were victims of crimes against
humanity and war crimes, not remembered or honoured here. Hutus are
also suffering. They are wondering when their time will come to remember
their people (…)”21
153. On the other hand, the Court further notes from the files that
the statements of the Applicant at the Memorial, as recounted by the
Supreme Court reads as:
“… For instance, this memory has been dedicated to people who
were killed during the genocide against the Tutsi, however there is
another side of genocide: the one committed against the Hutu. They
have also suffered: they lost their relatives and they are also asking,
“When is our time?” (…)”22
154. The key issue at stake is whether in that speech which the
Applicant made at the Genocide Memorial she propagated the ‘theory
of double genocide’. According to Article 5 of Law No. 84/2013 of the
2013 “supporting a double genocide theory for Rwanda” is part of the
offence of “negation of genocide”. Pursuant to Article 6 of the said law,
“Minimization of genocide shall be any deliberate act, committed in public,
aiming at:
a. downplaying the gravity or consequences of genocide

b. downplaying the methods through which genocide was
committed.”
20 See submission of the Applicant (Annex 3).

21 See Paragraph 404 of the Judgment of the High Court of Kigali of 30 October 2012.
22 See paragraph 371 of the Judgment of the Supreme Court of 13 December 2013.
155. From the above, the Court takes note that the versions of the
Applicant’s speech made at the Memorial, as recited by the High Court
and the Supreme Court, are at variance with each other and with the
Applicant’s version. While the version of the speech as indicated by
the Supreme Court talks about “another side of genocide: the one
committed against the Hutu”, the version of the speech, as recounted
by the High Court talks about Hutus being “…. victims of crimes against
humanity and war crimes”.
156. In the face of these conflicting versions of the speech as quoted
by the domestic courts of the Respondent State, the Court is of the
view that the doubt should benefit the Applicant. In its assessment, the
Court therefore will rely on the speech of the Applicant at the Memorial,
as recounted by the High Court. In fact, the High Court’s version is
similar to what the Applicant herself claims to have said and which was
tendered before this Court as evidence, which was not challenged by
157. The Court acknowledges that, as in any country where there
is a history of genocide, the issue is very sensitive, and opinions or
comments made in relation to the genocide may not be treated in a
similar manner as opinions expressed on other matters. Statements
that deny or minimize the magnitude or effects of the genocide or
that unequivocally insinuate the same fall outside the domain of the
legitimate exercise of the right to freedom of expression and should be
prohibited by the law. In the present Application, the Court is however
of the opinion that there is nothing in the statements made by the
Applicant, which denies or belittles, the genocide committed against
the Tutsi or implies the same.
158. Concerning the allegation that the same remarks at the
Genocide Memorial propagated the theory of ‘double genocide’, the
Court is also of the opinion that nothing in her remarks suggests that
she advanced this view. The relevant paragraph which the High Court
used as evidence for the same (quoted above under paragraph 152)
are clear that the Applicant admits “the genocide against the Tutsis”
but has never claimed that a genocide was committed against the
Hutus. The judgment of the High Court of Kigali itself acknowledges
that her statements do not refer to genocide against the Hutu but
rather reached a different conclusion relying on the context in which
they were made. In this connection, the Court understands that the
contexts in which statements are expressed may imply a different
meaning than the ordinary message that they convey. Nevertheless, in
circumstances where statements are unequivocally clear, as is in the
present case, putting severe restrictions such as criminal punishments,
on the rights of individuals merely on the basis of contexts would create
an atmosphere where citizens cannot freely enjoy basic rights and
freedoms, including the right to freedom of expression.

159. The second group of statements made by the Applicant contain
severe criticisms against the government and public officials, that
includes statements which allege that political power is “dominated
by a small clique” that has “a secret parallel power structure around
President Kagame, DMI [Directorate of Military Intelligence], the
local defence force, … the judiciary and the executive branches of
the government”23; and stating that she is ready to fight against “the
yoke [of fear], poverty, hunger, tyranny, servitudes, corruption, unfair
Gacaca court system, repression, prison term for works of general
interests (TIG), reasons that lead people to flee the country, inequality,
expropriation, homelessness, lack of self-esteem and killing through
torture”.24
160. The Court notes that some of these remarks may be offensive
and could have the potential to discredit the integrity of public officials
and institutions of the State in the eyes of citizens. However, these
statements are of the kind that is expected in a democratic society and
should thus be tolerated, especially when they originate from a public
figure as the Applicant is.25 By virtue of their nature and positions,
government institutions and public officials cannot be immune from
criticisms, however offensive they are; and a high degree of tolerance
is expected when such criticisms are made against them by opposition
political figures. An examination of these statements cannot reasonably
be considered as capable of ‘inciting strife’; creating ‘divisions among
people’ or ‘threatening the security of the State’. In fact, even though
these statements were made at different times before the Applicant
was jailed for the same, there is no evidence showing that the
statements caused strife, public outrage or any other particular threat
to the security of the State or public order.
161. In light of the foregoing, the Court is of the view that the
Applicant’s conviction and sentence for making the above statements
both at the Kigali Genocide Memorial and on other occasions, was not
necessary in a democratic society. Even if this Court were to accept
that there was a need to put restrictions on such statements, the
Applicant’s punishment was not proportional to the legitimate purposes
which the conviction and sentence seek to achieve. In this regard, the
Court notes that the Respondent State could have adopted other less
restrictive measures to attain the same objectives.
23 See Ingabire Victiore and others v the Prosecution, Judgment of the High Court of
Kigali, para 288
24 Ibid, para 306
162. The Court therefore finds that there was a violation of Article 9(2)
of the Charter and Article 19 of the ICCPR.
IX. Measures requested
163. In the Application, the Court is requested to: (a). Repeal, with

retroactive effect, sections 116 and 463 of Organic Law N° 01/2012
of 2 May 2012, relating to the Penal Code as well as that of Law N°
84/2013 of 28 October 2013, relating to the punishment of the crime
of the ideology of the Genocide, (b) Order the review of the Case (c)
Annulment of all the decisions that had been taken since the preliminary
investigation up till the pronouncement of the last judgment, (d) Order
the Applicant’s release on parole; and (e) Payment of costs and
reparations.
165. In this respect, Rule 63 of the R.ules provides that “the Court shall
rule on the request for reparation by the same decision establishing the
violation of a human and people’s rights, or if the circumstances so
166. As regards the Applicant’s prayers (a), (b) and (c), the Court
reiterates its decision in Ernest Francis Mtingwi v Republic of Malawi,
that it is not an appeal court with respect to the decisions and does
not have the power to repeal national legislation. It therefore does not
grant the requests.
167. Regarding the Applicant’s prayer to be set free, the Court has
only in exceptional and compelling circumstances.26 In the instant
Consequently, the Court does not grant this prayer.
168. The Court however notes that such finding does not preclude
the Respondent State from considering such measure on its own.
169. The Court finally notes that none of the Parties submitted
opinion on other forms of reparations. It will therefore make a ruling on
this question at a later stage of the procedure after having heard the
Parties.
26 Alex Thomas Judgment para 157; Mohamed Abubakari Judgment para 234.
X. Costs

decides that the question of cost will be addressed when considering
reparations.
The Court,
Unanimously
On jurisdiction
i. dismisses the objection to the Court’s jurisdiction raised by the
Respondent State;
ii. holds that it has jurisdiction to hear the instant Application;
On admissibility
iii. dismisses the objection to admissibility of the Application raised
by the Respondent State;
iv. holds that the Application is admissible;
On the Merits
v. declares that the Respondent State has not violated Article 7 (1)
b and d of the Charter as regards the right to presumption of innocence
and the right to be tried by a neutral and impartial tribunal;
vi. finds that the Respondent State has not violated Article 7(1) (c)
of the Charter as regards the searches conducted on the Counsel and
on the defense witness;
vii. finds that the Respondent State has violated Article 7(1)(c) of
the African Charter on Human and Peoples’ Rights as regards the
procedural irregularities which affected the rights of the defense listed
in paragraph 96 of this Judgment;
viii. rules that the Respondent State has violated Article 9(2) of the
African Charter on Human and Peoples’ Rights and Article 19 of the
International Covenant on Civil and Political Rights on freedom of
expression and opinion;
ix. orders the Respondent State to take all the necessary measures
to restore the rights of the Applicant and to submit to the Court a report
on the measures taken within six (6) months;
x. dismisses the Applicant’s prayer for the Court to order her direct
release without prejudice to the Respondent State’s power to take this
measure itself;
xi. defers its decision on other forms of reparation;
xii. grants the Applicant, pursuant to Rule 63 of its Rules, a period of
thirty (30) days from the date of this Judgment to file her observations
on the Application for reparation and the Respondent State to file

its Response within thirty (30) days from the date of receipt of the
Applicant’s observations.
Application 003/2014, Ingabire Victoire Umuhoza v Republic of Rwanda

Judgment, 7 December 2018. Done in English and French, the French
Judges: ORÉ, KIOKO, BEN ACHOUR, MATUSSE, MENGUE,
CHIZUMILA, BENSAOULA, TCHIKAYA, ANUKAM and ABOUD
Recused under Article 22 : MUKAMULISA
The Court ordered reparation, having found that the imprisonment of the
Applicant, an opposition leader, had violated her freedom of expression.
Reparations (reparation of material prejudice, 39, 40, currency, 45,
lawyers’ fees, 46; evidence, 48, 49, 51, 52; moral prejudice, 59-62; impact
on family members, 68, 69; release does not preclude compensation, 71)
I. Brief background of the matter
1. By the Application filed before this Court on 3 October 2014, the

Applicant indicates that; since 10 February 2010, she has been the
object of accusations and judicial proceedings for allegedly propagating
the ideology of genocide, complicity in terrorism, sectarianism, divisive
tendencies and attempts to sabotage the internal security of the State,
creating an armed wing of a rebel movement; the use of terrorism, force
of arms and other forms of violence with the intent to destabilise the
constitutionally established government. After trial by the High Court
of Kigali on 30 October 2012, the Applicant was sentenced to eight (8)
years imprisonment. On 13 December 2013, the Applicant lodged an
appeal before the Supreme Court which subsequently increased her
sentence to fifteen (15) years in prison.
2. Aggrieved at her arrest, trial and imprisonment which she felt
violated her rights, the Applicant on 3 October 2014 seized the African
Court on Human and Peoples’ Rights (hereinafter referred to as “the
Court”).
3. In the Judgment of the matter delivered on 24 November 2017,
the Court decided as follows:
“viii. Holds that the Respondent State has violated Article 7(1)
(c) of the African Charter on Human and Peoples’ Rights
as regards the procedural irregularities which affected the
rights of the defence;
ix. Holds that the Respondent State has violated Article 9(2)
of the African Charter on Human and Peoples’ Rights
and Article 19 of the International Covenant on Civil and
Political Rights on freedom of expression and opinion;
Umuhoza v Rwanda (reparations) (2018) 2 AfCLR 202 203
x. Orders the Respondent State to take all necessary

measures to restore the rights of the Applicant and to
submit to the Court a report on the measures taken within
six (6) months;
xii. Defers its decision on other forms of reparations;
xiii. Grants the Applicant, pursuant to Rule 63 of its Rules, a
period of thirty (30) days from the date of this judgment to
file her observations on the Application for Reparation…”
4. This Application is in respect of the request for reparations filed
by the Applicant.
5. The Applicant prayed the Court to annul the sentence of

imprisonment and its consequences and award her full compensation
for the prejudices suffered by herself, her husband and her three
children as a result of the violations of her rights as set out in the
Judgment of 24 November 2017.
6. She states that the Court should order the Respondent State to
take all the necessary measures to:
“- annul the fifteen (15) years imprisonment sentence;
- release her forthwith;
- expunge her conviction from the judicial records;
- reimburse her the amount of US$ 200,000 for the material
prejudice suffered,
- pay her the amount of US$ 100,000 for the moral prejudice
suffered.”
7. The Respondent State did not file any observation on this claim
for reparation.
III. Summary of procedure before the Court
8. In its Judgment of 24 November 2017, the Court granted the

Applicant thirty (30) days to file her Application for reparations.
9. On 21 December 2017, Counsel for the Applicant applied for
an extension of time up to 4 January 2018 to submit her Application
for reparation, justifying this request by the fact that the Applicant was
personally notified of the 24 November 2017 judgment of the Court only
on 4 December 2017. The request for extension of time was served on
the Respondent State on 22 December 2017.
10. On 3 January 2018, the Applicant filed her Application for
reparation, with evidence in support thereof.
11. On 4 January 2018, the Applicant transmitted to the Court

an explanatory note on the evidence and reiterated her prayer for a
public hearing to enable her to more effectively explain the reparations
requested. On 15 May 2018, the Registry notified the Applicant that
the Court has not deemed it necessary to hold a public hearing on
reparations.
12. On 15 January 2018, the Applicant filed a document rectifying
her prayer for reparation. In that document, the Applicant corrected the
amount of the legal fees which she estimated at 68,376 Euros instead
of 65,460 Euros as indicated in the Application. The corrigendum
also indicates that, as regards compensation of moral damage, the
Applicant claims for herself, her husband and her children the amount
of one hundred thousand (100,000) US dollars instead of one million
(1,000,000) US dollars.
13. The Applicant’s submissions on reparations were served on the
Respondent State on 19 March 2018, in accordance with Rule 36(1) of
the Rules of Court.
14. On 3 October 2018, the Registry informed the Respondent State
that at its 50th Ordinary Session, the Court decided to grant the latter a
final 30 days extension and that, after that deadline, it would be in the
interest of justice to decide on the application in default in accordance
with Rule 55 of its Rules.
15. Although the Respondent State received all the notifications, it
did not respond to any of them.
16. On 23 November 2018, the Applicant informed the Court that
she had been set free and has left prison.
17. Consequently, in the interest of justice, the Court will examine
the instant brief for reparation in the absence of any response from the
Respondent State.
IV. On the reparations
18. Pursuant to Rule 63 of its Rules, “The Court shall rule on the
request for the reparation, submitted in accordance with Rule 34(5)
of these Rules, by the same decision establishing the violation of a
human and peoples’ right or, if the circumstances so require, by a
separate decision.”
19. The Court recalls its earlier judgments,1 and reiterates that to
1 Application No. 013/2011. Judgment of 5/6/2015 (reparations), Beneficiaries of the

Late Norbert Zongo and Others v Burkina Faso (hereinafter referred to as “Norbert
Zongo v Burkina Faso Judgment”) para 20; Application No. 004/2013. Judgment of
3 June 2016 (reparations), Lohé Issa Konaté v Burkina Faso (hereinafter referred
to as “Konate v Burkina Faso Judgment”) para 15.
examine and assess applications for reparation of prejudices resulting

from human rights violations, it takes into account the principle
according to which the State found guilty of an internationally wrongful
act is required to make full reparation for the damage caused to the
victim.
20. The Court notes that, “reparation must, as far as possible, erase
all the consequences of the wrongful act and restore the state which
would presumably have existed if that act had not been committed”.1
Thus, reparation must, in particular, include restitution, compensation
and rehabilitation of the victim, as well as measures to ensure non-
recurrence of the violations, taking into account the circumstances of
each case.
21. The Court also retains, as a principle, the existence of a causal
link between the alleged violation and the prejudice caused, and places
the burden of proof on the Applicant who has to provide evidence to
justify her prayers.2
22. The Court observes that whenever it is called upon to adjudicate
on reparation for damages resulting from violations established by
it, it takes into account not only a fair balance between the form of
reparation and the nature of the violation, but also the expressed
wishes of the victim.
23. In the instant case, the violation of the Applicant’s rights, which
generated the Respondent State’s liability, is the breach by the latter,
of Articles 7(1)(c) and 9(2) of the Charter and Article 19 of the ICCPR
which affected the Applicant’s right to defence and the right to freedom
of opinion and expression.
A. Prayer for annulment of the prison sentence and its

consequences
24. The Applicant prays the Court to order the Respondent State
to annul the criminal conviction and sentence against her, more
particularly the fifteen (15) years prison sentence pronounced by the
Supreme Court of Kigali.
25. She avers also that the most appropriate form of reparation of
the violations of the right to a fair trial is to be set free.
26. The Applicant further prays the Court to order the Respondent
State to expunge the conviction from her judicial records, adding that
1 PCIJ, Chorzow Factory, Germany v Poland, Jurisdiction, Determination of

Indemnities and Merits 26/7/1927, 16/12/1927 and 13/9/1928, Rec. 1927, p 47.
2 Application No. 011/2011. Judgment of 13 June 2014 (reparations), Reverend
Christopher Mtikila v United Republic of Tanzania (hereinafter referred to as
“Christopher Mtikila v Tanzania Judgment”) para 40.
the measures to be taken in this regard should be such as would

re-establish the situation in which she would have been, had the
Respondent State not violated her rights as established by this Court.
27. The Court notes that the Applicant’s request is for the Court
to order the Respondent State to annul her fifteen (15) years prison
sentence and to set her free without re-opening the proceedings.
28. The Court recalls that with respect to the prayer to annul the
fifteen (15) year sentence, it has already examined the same in
paragraphs 48, 168, 169 and 173 xi of its judgment of 24 November
2017 and will thus not re-examine it.
29. The Court also recalls that it has already made a ruling in the
aforesaid Judgment of 24 November 2017 on the question of releasing
the Applicant.
30. Moreover, the Court notes that on 23 November 2018, it was
informed by the Applicant that she had been set free and had left prison.
31. As regards the Applicant’s prayer for an order to the Respondent
State to expunge the sentence from her judicial record, the Court notes
that expunging the sentence presupposes that the conviction has been
quashed and the sentence set aside.
32. Consequently, the Court dismisses the prayer that the conviction
be expunged from the Applicant’s judicial record.
B. Prayer for reparation of material prejudice
33. The Applicant submits that since her return to Rwanda, she has
suffered “multiple arrests, the brunt of which she continues to bear
in the hands of the security services and various other governmental
institutions.”
34. She also claims that she had to incur several costs not only
to defend herself before Rwandese and international courts, but
also to meet certain expenses required for her survival in the prison
environment.
35. For all the foregoing expenses, the Applicant claims the amount
of two hundred thousand (US$ 200,000) United States Dollars to
be paid to her in reparation of the material damages suffered. She
specifically enumerates the following damages:
“i. Cost of obtaining the release of certain documents from the case
file, which amounts to 230,000 Rwandese Francs, equivalent to
US$ 269.10 at the 2010 rate;
ii. Cost of representation before the High Court of Kigali, the
Supreme Court of Rwanda and the African Court, in terms of
the fees paid to her lawyers, which amount to 68,376 Euros, or
US$ 83,364;
iii. Expenditure incurred while in prison which amounts to 1,000
Euros per month accounting for a total of US$ 109,728 for the 7
years spent in prison.
iv. The Applicant further states that the amounts presented herein-
above do not cover the losses she incurred as a result of her
detention. She prays the Court to bring the overall material
prejudice suffered to a total of US$ 200,000.”
36. The Court notes that the request for reparation of material
prejudice arising from the violation of a human right must be
substantiated by evidence, and where several prayers have been
made, each of these must be accompanied by probative supporting
documents and buttressed by explanations establishing the link
between the expenditure or material loss and the violation.3
37. In the instant case, the Applicant is claiming reimbursement of
four (4) different expenditures, three (3) of which relate to procedural
costs. These, as the Court has already stated, are part of the concept
of reparation such that once established, it could order the Respondent
State to pay compensation to the victim.
i. Cost of administrative processing of the judicial

record
38. Regarding the cost of obtaining the release of certain documents

from the case file, the Court notes that the Applicant attached to her
Application, copies of two payment receipts; the first in the amount of
one hundred and fifty thousand (150,000) Rwandese Francs, and the
second for administrative charges in the amount of eighty thousand
(80,000) Rwandese Francs issued, on 22 March and 18 May 2011
respectively, by the Rwanda Revenue Authority.
39. As the judicial proceedings instituted against the Applicant
started in 2010 and continued right up to 13 December 2013, the
date of her last sentence, the Court concludes that the said payment
receipts dated between March and May 2011, were in respect of the
judicial proceedings against the Applicant.
40. Consequently, the Court grants the Applicant a refund of the
costs incurred on administrative processing of her judicial record in the
amount of two hundred and thirty thousand (FRw 230,000) Rwandese
Francs.
ii. Lawyers’ fees
41. The Applicant is claiming reimbursement of the expenditure she
3 Christopher Mtikila v Tanzania Judgment, op cit para 40.

incurred to cover the fees and travel expenses of the five (5) lawyers
who defended her both before Rwandan courts and before this Court.
She attached to her application a synoptic list of the fees paid in the
amount of fifty-five thousand three hundred (55,300) Euros, receipts
of bank transfers to the lawyers, and receipts in respect of the travel
tickets of two lawyers in the amount of five thousand six hundred and
twenty-nine Euros, ninety-six cents (5,629.96); and five thousand and
seventy-two Euros, six cents (5,072.6) respectively.
42. Regarding the fees paid to the lawyers, the Court notes that the
file records show that between 2011 and May 2017, four (4) lawyers,
namely: Iain Edwards, J. Hofdijk, Gatera Gashabana and Caroline
Buisman, received transfers from the Applicant’s bank account to
their bank accounts in the sum of nine thousand (9000) Euros, three
thousand, seven hundred and forty-five Euros, sixty cents (3,745.60),
twenty-four thousand seven hundred and fifty-nine (24,759) Euros
and fourteen thousand, one hundred and twenty-nine (14,129) Euros,
respectively. The total amount thus established as lawyers’ fees
stands at fifty-one thousand six hundred and thirty-three Euros, and
sixty cents (51,633.60) or sixty thousand one hundred and fourty-two
United States dollars and seventy-nine cents (US$60,142.79). The fee
agreement signed between Advocate Caroline Buisman, the reasons
for the transfer and the acknowledgement of receipt of payment signed
by the lawyers attest to the link between the said expenditure and the
Applicant’s case before the courts.
43. The Court also notes that the Applicant’s lawyers’ travel costs
are buttressed by two air tickets purchase receipts by Barrister Caroline
Buisman and Barrister Gatera Gashabana, amounting to five thousand
six hundred and twenty-nine Euros, ninety-six cents (5,629.96) and
five thousand and seventy-two Euros, six cents (5,072.6) respectively,
thus representing a total of ten thousand seven hundred and two
Euros, fifty-six cents (10,702.56). However, the Court notes that the
cost of purchase of these tickets had already been accounted for in
the different bank transfers made by the Applicant to the two lawyers.
44. The Court further notes that the fees paid to lawyers Iain Edwars,
van J Hofdijk and Gatera Gashabana were not substantiated in a fees
agreement. The Court however holds that the Applicant must have
incurred these expenses for the purposes of her defence.
45. The Court holds that given that the Applicant is residing in the
territory of the Respondent State, the amount of reparation shall be
calculated in the currency in use in the said State.
46. Since the Applicant has been awarded reparation for part of the
damages, the Court holds that it is more appropriate to consider the
matter in terms of equity and award the Applicant a lump sum of ten
million Rwandese Francs (FRw 10,000,000), as reimbursement for
lawyers’ fees.
iii. Expenses incurred while in prison
47. The Applicant also contends that from the time she was
incarcerated up to now, her monthly expenses in prison amounts to
one thousand (1,000) Euros over the period of 7 years spent in prison;
hence the claim for reimbursement of one hundred and nine thousand,
seven hundred and twenty-eight (US$109,728) United States dollars.
She justifies this claim with a copy of two (2) receipts of transfer of
funds amounting to one thousand (1,000) Euros each dated 9 and 13
October 2017, respectively.
48. The Court notes that the Applicant has not substantiated her
claim with supporting documents.
49. Consequently, the Court dismisses the claim for reimbursement
of the expenses incurred in prison.
iv. Reimbursement of the cost of equipment confiscated
50. The Applicant submits that since the case began, she has been
the subject of threats from security services and “various other public
institutions”. The Applicant further alleges that her homes have been
visited in both Rwanda and The Netherlands and subjected to “illegal
searches” which have “resulted in the confiscation of her property
(computers and telephones, amongst others).” For all these costs,
she prays the Court to put the total reparation compensation at two
hundred thousand (US$ 200,000) United States dollars.
51. The Court has already underscored in its judgment in Lohé
Issa Konaté v Burkina Faso,4 that it does not suffice to show that the
Respondent State committed a wrongful act to claim compensation; it
is equally necessary to produce evidence of the alleged damages and
the prejudice suffered.
52. Since the Applicant has failed to meet the requirement, the Court
rules that her claims regarding the nature of the equipment seized or
the monetary value of the equipment confiscated are unfounded and
therefore dismisses this claim.
C. Prayer for reparation of moral prejudice
53. The Applicant alleges that since her imprisonment, her dreams
4 Konate v Burkina Faso Judgment, op cit paras 46 and 47; Christopher Mtikila v.
Tanzania Judgment, op cit para 31.
and ambitions as well as her political and family life have been totally
shattered; that she had been arrested on several occasions, ridiculed
and insulted and her honour dragged in the mud. Her reputation and
morale have been seriously undermined as well as those of members
of her family, that is, her husband and her three children.
54. According to the Applicant, all these physical and psychological
suffering are as a result of her arrest, imprisonment and trial in violation
of the guarantees of a fair trial.
55. Therefore, the Applicant prays the Court to rule ex aequo et bono
(based on equity and conscience) and order the Respondent State
to take the necessary measures to pay her the sum of one hundred
thousand (US$ 100,000) United States dollars as damages, or the
equivalent in Rwandese Francs.
56. The Applicant’s prayer for reparation of moral prejudice concerns
not only the Applicant herself but also her spouse and three children.
i. Moral prejudice suffered by the Applicant
57. The Applicant contends that immediately after her speech at the
Genocide Memorial, a denigration campaign was orchestrated against
her by the media and the political class which branded her a proponent
of the genocide ideology, sectarianism and negativism, and thus was
monitored and her movements followed until her arrest.
58. She also asserts that her detention condition prior to and after
her sentence was highly restrictive, at times characterized by isolation,
deprivation of food and prohibition from receiving visitors including her
lawyers, two of whom were remanded in custody for more than one
day before being expelled from Rwanda.
59. The Court recalls that, in general, when persons are detained
under such conditions as have been described by the Applicant, the
moral prejudice they invoke is presumed, such that it is no longer
necessary to show proof to the contrary.5
60. The Court also notes that the campaign of denigration against
the Applicant, the number of press articles and the interviews granted
by political and administrative figures on the accusations levelled
against the Applicant, cast a dark shadow over her personality and her
political ambitions.
61. As the International Court of Justice has pointed out in its
Advisory Opinion on Application for Review of Judgment No. 158 of the
5 Norbert Zongo v Burkina Faso Judgment, para 61. See also Inter-American
Court of Human Rights; Lori Berenson v Peru, Seriea C, No. 119/2004, para 237;
European Court of Human Rights, Application No. 9540/07 (2014), Murat Vural v
Turkey, para 86.
United Nations Administrative Tribunal, Falsa Case, Advisory Opinion

of 12 July 1973: “The injury to the Applicant’s professional reputation
and employment opportunities must be repaired”.6
62. The Court finds in conclusion that the Applicant suffered moral
prejudice in terms of her reputation and political future, and accedes to
her prayer for reparation.
ii. Moral prejudice suffered by the Applicant’s spouse

and children
63. Regarding members of her family, the Applicant invokes the

stress, anxiety and trauma suffered by her husband and three children
since her arrest and imprisonment.
64. The Applicant further asserts that her husband was profoundly
affected and traumatized by her arrest, the media coverage of her trial
and her attendant imprisonment, such that as of today he has been
paralyzed and confined to a wheel chair.
65. She further contends that her youngest son suffered serious
harassment in school from his school mates who branded him a son
of a criminal.
66. The Court recalls that it has already given the interpretation
that direct or close members of the family who suffered physically
or psychologically from the situation of the victim also fall within the
definition of “victim”, and may also claim reparation of the moral
prejudice caused by the said suffering.7
67. In the instant case, the accusations levelled against the Applicant,
her imprisonment and the restrictions to her communication with her
husband and children are indeed acts which could hugely impact the
morale of the family.
68. The Court notes that the consequences of stress and generalized
anxiety on members of the Applicant’s family are corroborated by the
medical reports presented by the doctor at the Neurology Polyclinic
in Gouda, The Netherlands, on 27 September 2016 and 25 July
2017, respectively. The said reports mentioned in particular that the
Applicant’s husband is a non-smoker, does not take alcohol but is
steeped in anxiety and is highly stressed as a result of the challenges
facing his family.
69. In the circumstances, the Court holds that the violation of the
Applicant’s rights by the Respondent State also impacted on members
6 United Nations Administrative Tribunal, Falsa Case, Opinion No. 12/7/1973, Rec.,

1973, para 46, p 25.
7 Norbert Zongo v Burkina Faso Judgment, op cit para 49.
of her family.
70. The Applicant prays the Court to order the Respondent State
to pay her the amount of one hundred thousand (US$ 100,000) US
dollars in reparation of the moral prejudice.
71. The Court notes that presidential pardon which led to the
Applicant’s release on 15 September 2018 constitutes a form of
reparation of the moral damage, but does not preclude the payment
of monetary compensation for the violation of the right to freedom of
expression.
72. In that regard, the Court adjudicates in equity and grants the
Applicant, the amount of fifty-five million Rwandese Francs (FRw
55,000,000) in reparation of the moral damage suffered by herself, her
spouse and children.
73. On costs, the Court notes that these have already been
addressed in the context of refund of lawyers’ fees.
V. Operative part

The Court,
unanimously,
i. dismisses the prayer for the conviction to be expunged from the
Applicant’s judicial records;
ii. orders the Respondent State to reimburse the Applicant the
amount of ten million, two hundred and thirty thousand Rwandese
Francs (FRw 10,230,000) for the entire material prejudice suffered;
iii. orders the Respondent State to pay the Applicant the amount of
fifty-five million Rwandese Francs (FRw 55,000,000) as compensation
for the moral prejudice she, her husband and her three children
suffered;
iv. orders the Respondent State to pay all the amounts indicated in
sub-paragraph (ii) and (iii) of this operative part within six (6) months,
effective from the date of notification of this Judgment, failing which it
will also be required to pay interest on arrears calculated on the basis
of the applicable rate set by the Central Bank of Rwanda throughout
the period of delayed payment and until the amount is fully paid;
v. orders the Respondent State to submit to it within six (6) months
from the date of publication of this Judgment, a report on the status of
implementation of all the decisions set forth in this Judgment.
Woyome v Ghana (provisional measures) (2017) 2 AfCLR 213 213
Woyome v Ghana (provisional measures) (2017) 2 AfCLR

213
Application 001/2017, Alfred Agbesi Woyome v Republic of Ghana

Order, 24 November 2017. Done in English and French, the English text
Order for provisional measures where the Applicant’s property was at
risk of being sold in execution of a domestic court judgment.
Provisional measures (prima facie jurisdiction, 18; irreparable harm,
26)
I. The Parties
1. The Application is filed by Mr Alfred Agbesi Woyome, (hereinafter

referred to as “the Applicant), a national of Ghana, against the Republic
of Ghana (hereinafter referred to as “the Respondent State”).
2. The Respondent State became a Party to the African Charter on
on 1 March 1989 and to 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”)
on 16 August, 2005. It deposited on 10 March 2011 a Declaration under
Article 34(6) of the Protocol, accepting the jurisdiction of the Court to
receive cases from individuals and Non-Governmental Organisations.
3. On 30 June 2017 the Applicant filed a matter which was

subsequently registered as Application No. 001/2017. The Application
arose arising from engineering financial services the Applicant alleges
to have provided to the Respondent State pursuant to an agreement
for securing funds for the rehabilitation of the Accra and Kumasi Sports
Stadia for the Confederation of the African Cup of Nations Tournament
of 2008.
4. The Applicant alleges that, by not respecting the terms of the
agreement regarding the afore-mentioned services, the Respondent
State violated the following rights provided under the Charter:
a. Enjoyment of rights and freedoms recognised in the
Charter without distinction (Article 2 of the Charter);
b. Equality before the law and equal protection of the law
(Article 3 of the Charter); and

c. Right to fair trial (Article 7 of the Charter).
5. In the course of the proceedings before this Court on 4 July
2017, the Applicant applied for Provisional Measures to order the
Respondent State to stay the execution of a judgment of 8 June 2017 by
the Supreme Court requiring him to refund Ghana Cedi 51,283,480.59
to the Respondent State, following a finding that the procurement
process relating to which the payments were made for the services
was unconstitutional.
6. The Respondent State argues that the question to be determined
is whether it is entitled to recover debts owed by the Applicant
as provided for under the laws of Ghana. It avers that the issue is
not whether alleged irreparable breaches of human rights can be
legitimately raised following its efforts to recover the sums in question,
and not whether this action would amount to a breach of Ghana’s
obligation under the Charter, Articles 5(3) and 34(6) of the Protocol the
Rules and Article 40 of the 1992 Constitution of the Republic of Ghana.
III. Procedure
7. The Application dated 5 January 2017 was received at the

Registry on 16 January 2017.
8. The Application was served on the Respondent State by notices
dated 28 April 2017 and 8 June 2017 notifying the Respondent State
to file the list of representatives and the Response to the Application
within thirty (30) and sixty (60) days of receipt respectively. The second
notice was necessitated by the Respondent State’s Attorney General’s
letter received on 31 May 2017 informing the Registry of the Court
that they had received only the notice without the Application and
attachments thereto.
9. By an application dated 30 June 2017 and received at the
Registry on 4 July 2017 the Applicant applied for interim measures.
10. On 16 August 2017 the Respondent State filed a request for
extension of time up to 31 August 2017 to file its Response to the
Application, stating that the Applicant had filed international arbitration
proceedings against the Respondent State in another forum on the
same subject matter.
11. On 4 September 2017 the Respondent State filed its Response
to the Application, and this was transmitted to the Applicant by a notice
dated 12 September 2017 giving him thirty (30) days from date of
receipt, within which to file the Reply. The Applicant filed the Reply to
the Response on 12 October 2017. The Reply was transmitted to the
Respondent State for information, by a notice dated 18 October 2017.
12. On 4 September 2017 the Applicant filed a Supplementary

Affidavit in support of an Application for Interim Measures and this was
transmitted to the Respondent State by the above-mentioned notice
dated 12 September 2017.
13. On 28 September 2017 the Applicant filed another “Urgent
Request for Interim Measures” alleging that, in spite of the service of the
Application for interim measures, the Respondent State has persisted
in pursuing the retrieval of the amount of Ghana Cedi 51,283,480.59
from him with the full and active support of the Supreme Court and its
Registry in clear violation of the letter and spirit of the Protocol and
Rules of Court (herein after referred to as “the Rules”).
14. The Applicant states that the Registry of the Supreme Court
of the Respondent State has initiated proceedings for execution of
judgment against him and is in the process of seizing immovable
properties from various locations in Accra, Ghana, some of which
belong to his relatives.
15. This second request was transmitted to the Respondent State
by a notice dated 2 October 2017 giving the Respondent State until 11
October 2017 to respond thereto.
16. The Respondent State filed the Response to this request on 13
October 2017 and the Court decided, in the interest of justice, to deem
it as properly filed. The Response was transmitted to the Applicant
by a notice dated 18 October 2017 and granting him seven (7) days
from the date of receipt within which to respond. On 31 October 2017
the Applicant filed his Reply to the “Respondent State’s Affidavit in
Opposition to the Application for Interim Measures”.
IV. Jurisdiction

18. However, in ordering provisional measures, the Court need not
19. Article 3(1) of the Protocol provides that: “the jurisdiction of the
any other relevant Human Rights instrument ratified by the States
1 See Application No. 002/2013. Order for Provisional Measures 15/3/2003, African
Commission on Human and Peoples’ Rights v Libya and Application No. 006/2012.
Order for Provisional Measures 15/3/ 2013, African Commission on Human and
Peoples’ Rights v Kenya; Application No. 004/2011. Order for Provisional Measures
25/3/2011, African Commission on Human and Peoples’ Rights v Libya.
concerned”.
20. The Court notes that the rights alleged to have been violated are
guaranteed under Articles 2, 3 and 7 of the Charter.
21. As indicated in paragraph 2 of this Order, the Respondent State,
became a Party to the Charter on 1 March 1989 and to the Protocol
on 16 August 2005 and deposited on 10 March 2011 a Declaration
accepting the competence of the Court to receive cases from individuals
and Non-Governmental Organisations.
23. Under Article 27(2) of the Protocol, “In cases of extreme gravity
and urgency, and when necessary to avoid irreparable harm to
persons, the Court shall adopt such provisional measures as it deems
necessary.” In accordance with Rule 51(1) of the Rules, “Pursuant to
Article 27(2) of the Protocol, the Court may, at the request of a party,
the Commission or on its own accord, prescribe to the Parties, any
interim measure which it deems necessary to adopt in the interest of
the Parties or of justice”.
24. It is for the Court to decide whether to issue provisional measures
depending on the circumstances of each case.
25. The Court notes from the record before it that, the Respondent
State is in the process of execution of a court judgment against the
Applicant by seizing his property.
26. The Court finds that the situation raised in the present
Application is of extreme gravity and urgency on the basis that, should
the Applicant’s property be attached and sold to recover the amount
of Ghana Cedi 51, 283, 480.59, the Applicant would suffer irreparable
harm if the Application on the merits is subsequently decided in his
favour. The Court finds that the circumstances require that an order for
provisional measures be issued, in accordance with Article 27(2) of the
Protocol and Rule 51 of the Rules, to preserve the status quo, pending
the determination of the main Application.
27. For the avoidance of doubt, this order shall not in any way
The Court,
Unanimously,
Orders the Respondent State to:
i. stay the attachment of the Applicant’s property and to take all
appropriate measures to maintain the status quo and to avoid the
property being sold until this Application is heard and determined.

ii. report to the Court within fifteen (15) days from the date of
receipt of this Order on the measures taken to implement this Order.
Application 032/2015, Kijiji Isiaga v United Republic of Tanzania

Judgment, 21 March 2018. Done in English and French, the English text
Judges: ORE, KIOKO, NIYUNGEKO, GUISSE, BEN ACHOUR,
The Applicant had been convicted and sentenced for inflicting bodily
harm and aggravated robbery. He brought this Application claiming a
violation of his rights as a result of his detention and trial. The Court held
that the manner in which the domestic courts evaluated the evidence did
not disclose any manifest error in violation of the African Charter. The
Court also held that the failure to provide the Applicant with free legal
representation violated the African Charter but that the Applicant had not
shown compelling circumstances for the Court to grant his request for
release.
Jurisdiction (alleged violations of the Charter, 33-35)
Admissibility (exhaustion of local remedies, extraordinary remedy, 47;
submission within reasonable time, 54-56)
Fair trial (evidence, margin of appreciation, 65, 73; defence, free legal
assistance, 79, 80)
Reparations (release, 96)
I. The Parties
1. The Applicant, Mr Kijiji Isaiga, is a national of the United

Republic of Tanzania. He is currently serving a term of thirty (30) years’
imprisonment at the Ukonga Central Prison in Dar es Salaam, United
Republic of Tanzania, following his conviction for the crimes of inflicting
bodily harm and aggravated robbery.
2. The Respondent State, the United Republic of Tanzania,
became a Party to the African Charter on Human and Peoples’ Rights
(hereinafter referred to as “the Charter”) on 21 October 1986, and to
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”) on 10 February
2006. Furthermore, the Respondent State deposited the declaration
required under Article 34(6) of the Protocol, accepting the jurisdiction
of the Court to receive cases from individuals and Non-Governmental
Organizations on 29 March 2010. The Respondent State also became
a Party to the International Covenant on Civil and Political Rights
(hereinafter referred to as “ICCPR”) on 11 June 1976.
Isiaga v Tanzania (merits) (2018) 2 AfCLR 218 219
3. The Application relates to violations allegedly arising from a

domestic procedure at the end of which the Applicant was sentenced
to thirty (30) years’ imprisonment with twelve strokes of the cane for
inflicting bodily harm and aggravated robbery.
4. According to the file and the judgments of domestic Courts, on

4 April 2004, at around 8.00 pm in the village of Kihongera, District of
Tarime, in the Mara Region, three individuals armed with a gun and
machete burst into the residence of Ms Rhobi Wambura, who was with
her two children, Rhobi Chacha and Chacha Boniface.
5. The individuals ordered Ms Rhobi and the children to lie face
down, stating that they had come to claim the pension benefits paid
to them from the estate of her late husband and the father of the two
children. When the family refused to comply, two of the attackers
injured the children using a machete, while the third assailant who was
keeping guard fired a warning shot.
6. Ms Rhobi took the two assailants who had attacked the children
into her bedroom and handed to them one million Tanzanian Shillings
(about 450 United States Dollars). After counting the money under the
glare of a lantern, the assailants took two bags full of clothes and fled.
7. Following Ms Rhobi’s and her children’s distress calls, many
people, including one, Mr Yusuf Bwiru, came to their rescue. Mr Bwiru
subsequently stated in his testimony that he found Ms Rhobi and her
children crying and calling the names of their neighbour Mr Bihari
Nyankongo, his nephew (the Applicant) and another individual not
identified, as the attackers. The victims maintained their accusation
before Mr Anthony Michack, the Commander of the local civil defence
group and later at the Police Station, where they had been taken.
8. The Police investigation, which opened on 6 April 2004, led to the
recovery of an unused bullet and a cartridge from the scene of the attack
and subsequently to the arrest of Mr Nyankongo. The latter allegedly
admitted to having been involved in the attack, returned the stolen
clothing to Ms Rhobi and her children, denounced his accomplices and
provided information on their whereabouts. Consequently, on 7 April
2004, the Applicant was arrested in his village.
9. Charged with crimes of inflicting bodily harm and armed robbery
contrary to Sections 228 (i), 285 and 286 of the Tanzanian Penal Code
in Criminal Case No. 213 of 2004 in the District Court of Tarime, the
Applicant was convicted and sentenced to thirty (30) years in prison
and twelve (12) strokes of the cane.
10. Following the Applicant’s appeal, the conviction and sentence

were subsequently confirmed by the High Court of Tanzania sitting in
Mwanza on 5 August 2005, in Criminal Case No. 445 of 2005, and by
the Court of Appeal of Tanzania on 19 September 2012, in Criminal
Appeal No. 192 of 2010.
11. In his Application, the Applicant alleges that the local Courts
based their decisions on contestable evidence, in particular, the
testimonies and exhibits that were improperly obtained and used. In
this regard, the Applicant alleges that the visual identification relied
upon by the domestic courts was flawed for the following reasons:
“i. The witnesses did not say where the lamp was located
and the direction of its lighting between them and the
robbers.
ii. The witnesses had not mentioned the distance between
them and the robbers during the crime scene.
iii. The witnesses did not define their condition after the
sudden attack and how they were controlled and ability
to follow the robbers’ orders and instructions. If the
witnesses had known well their robbers and named them
immediately after the incident, why the Applicant was
arrested at his home after two days without escaping the
same area.
iv. If the Applicant and his co-accused were very famous to
the witnesses, how they were decided to take more time
for counting the money at the scene.
v. That, the Court of Appeal was required to caution itself
about contradiction of facts of the prosecution evidence.
When PW3 had claimed that PW1 did not announce to
any one of them the bringing of the stolen money at their
home, but firstly was narrated that PW1 had been with
money for a month. Furthermore, while PW2 claimed that
they raised an alarm which brought in their neighbour to
be at the scene, he said about which made him to go
there is only burst of the gun.”
12. The Applicant submits that he was never in possession of the
properties which were alleged to have been stolen and tendered in
the Trial Court as exhibits. He maintains that the Court of Appeal “…
grossly misdirected itself to apply the doctrine of recent possession
against the Applicant while the exhibits alleged in the trial were said to
be possessed by the co-accused”. The Applicant asserts that the Court
exclusively relied on the absence of a rival claim over the exhibits to

dismiss his appeal.
13. The Application was filed on 8 December 2015.

14. By a notice dated 25 January 2016, and pursuant to Rule 35(2)
(a) of the Rules of the Court (hereinafter referred to as “the Rules”), the
Registry served the Application on the Respondent State, requesting
the latter to submit within thirty (30) days of receipt, the names and
addresses of its representatives, pursuant to Rule 35(4)(a) of the
Rules and respond to the Application within six (60) days of receipt of
the notice pursuant to Rule 37 of the Rules.
15. By a notice dated 11 February 2016, in accordance with Rule
35(3) of the Rules of the Court, the Application was transmitted to the
Executive Council of the African Union, State Parties to the Protocol
and other entities through, the Chairperson of the African Union
Commission.
16. By a letter dated 24 March 2016, the Respondent State requested
for an extension of time to file the Response to the Application.
17. By a letter dated 8 June 2016, the Registry informed the
Respondent State that the Court had granted the request and
requested it to file its Response within thirty (30) days from the receipt
of the letter.
18. Having failed to file the Response to the Application, within this
additional extension of time, by a letter dated 19 October 2016, the
Court suo motu, decided to grant the Respondent State an additional
thirty (30) days from receipt thereof, for the filing of the Response.
By the same letter, the Parties’ attention was drawn to Rule 55 of the
Rules, concerning judgment in default.
19. On 11 January 2017, the Applicant requested the Court to issue
a judgment in default.
20. At its 44th Ordinary Session held from 6 to 24 March 2017, the
Court decided that it would, in the interest of justice, render a judgment
in default if the Respondent State does not file its Response within
forty-five (45) days of receipt of the letter. By a letter dated 20 March
2017, the Registry notified the Respondent State of the decision of the
Court.
21. The Respondent State filed the Response to the Application on
12 April 2017.
22. This was transmitted to the Applicant by a notice dated 18 April
2017, granting thirty (30) days from the date of receipt, for the filing of
the Reply to the Response.
23. The Applicant filed the Reply on 23 May 2017.
24. By a letter dated 16 June 2017, the Registry notified the Parties
that the written procedure was closed with effect from 14 June 2017.
25. In his Application, the Applicant prays the Court to:

“i. restore justice where it is overlooked, and quash both the
conviction and sentence imposed upon him, and set him
at liberty;
ii. ii) grant reparation pursuant to Article 27(1) of the Protocol;
iii. iii) grant any other order(s) sought that may deem fit in the
circumstances of the complaints.”
26. In its Response, the Respondent State prays the Court to declare
that the Application is not within the purview of its jurisdiction, and that
the Application does not fulfil the admissibility requirements specified
under Rule 40(5) of the Rules on exhaustion of local remedies and
Rule 50(6) on filing an application within a reasonable time.
27. On the merits, the Respondent State further prays the Court to
find that:
“i. the government of the United Republic of Tanzania has
not violated Articles 3 (1) and (2), Article 7(1) (c) of the
Charter;
ii. the Court of Appeal considered all grounds of appeal and
properly evaluated the evidence before it and rightfully
upheld the conviction of the Applicant;
iii. the Court of Appeal properly ruled that the doctrine of
recent possession and visual identification of the Applicant
was proper and sufficient to land conviction;
iv. the Application be dismissed for lack of merit; and
v. no reparations be awarded in favour of the Applicant”
V. Jurisdiction
28. In accordance with Rule 39(1) of the Rules, the Court “shall
conduct a preliminary examination of its jurisdiction …”.
29. In the instant Application, the Court notes from the Respondent
State’s submission that the latter disputes only the Court’s material
jurisdiction. However, the Court shall satisfy itself that it also has
personal, temporal and territorial jurisdiction to examine the Application.
30. The Respondent State argues that the Court does not have
jurisdiction to examine the Application as it requires the Court to
adjudicate on issues involving the evaluation of evidence and quashing
convictions and setting aside sentences imposed by domestic courts.
According to the Respondent State, these are matters duly decided
by the highest court of Tanzania and entertaining these issues would
require this Court to sit as an appellate court to the Court of Appeal of
Tanzania.
31. The Applicant submits that the Court has jurisdiction to consider
his Application because it concerns issues of application of the
provisions of the Charter, the Protocol and the Rules.
32. Pursuant to Article 3(1) of the Protocol and Rule 26(1)(a) of the
Rules, the material jurisdiction of the Court extends to “all cases and
disputes submitted to it concerning the interpretation and application of
the Charter, the Protocol and other relevant human rights instruments
ratified by the State concerned.”
33. Going by these provisions, the Court exercises its jurisdiction
over an Application as long as the subject matter of the Application
involves alleged violations of rights protected by the Charter or any
other international human rights instruments ratified by a Respondent
State.1
34. The Court is obviously not an appellate court to uphold or reverse
the judgments of domestic courts based merely on the way they
examined evidence to arrive at a particular conclusion.2 It is also well-
established in the jurisprudence of the Court that where allegations of
violations of human rights relate to the manner in which domestic courts
examine evidence, the Court has jurisdiction to assess whether such
examination is consistent with international human rights standards.3
35. In the instant Application, the Court notes that the Applicant
raises issues relating to alleged violations of human rights protected
by the Charter. The Court further notes that the Applicant’s allegations
essentially relate to the way in which the domestic courts of the
Respondent State evaluated the evidence. However, this does not
1 Application No. 003/2014. Ruling on Admissibility 28/3/2014, Peter Joseph Chacha

v United Republic of Tanzania, para 114.
2 Application No. 001/201. Judgment on Merits, 15/03/2015, Ernest Francis Mtingwi
v The Republic of Malawi, para 14.
3 Application No. 005/2013. Judgment on Merits 20/11/2015, Alex Thomas v United
Republic of Tanzania, (hereinafter referred to as “the Alex Thomas Judgment”),
para 130, Application No. 007/2013. Judgment on Merits, 20/05/2016, Mohamed
Abubakari v United Republic of Tanzania. (hereinafter referred to as, “Mohamed
Abubakari judgment”), para 26.
preclude the Court from making a determination on the allegations. The

Respondent State’s objection that the instant Application would require
this Court to sit as an appeal court and re-examine the evidence on
the basis of which the Applicant was convicted by the national courts
is thus dismissed.
36. The Court therefore finds that it has material jurisdiction to
examine the Application.
37. The Court notes that other aspects of its jurisdiction have not
been contested by the Respondent State and nothing on the record
indicates that the Court does not have jurisdiction. The Court thus
holds:
“i. that it has personal jurisdiction given that the Respondent State
is a Party to the Protocol and deposited the Declaration required
under Article 34(6) thereof which enabled the Applicant to
access the Court in terms of Article 5(3) of the Protocol;
ii. that it has temporal jurisdiction on the basis that the alleged
violations are continuous in nature, in that the Applicant
remains convicted and is serving a sentence of thirty (30) years’
imprisonment on grounds which he believes are marred by
irregularities4; and
iii. that it has territorial jurisdiction given that the facts of the matter
occurred on the territory of a State Party to the Protocol, that is,
consider this Application.
a preliminary examination of … the admissibility of the Application in
accordance with Article … 56 of the Charter, and Rule 40 of these
Rules”.
40. Rule 40 of the Rules which in substance restates the provisions
4 See Application No. 013/2011. Ruling on Preliminary Objections, 21/06/2013,

Zongo and Others v Burkina Faso, (hereinafter referred to as, “Zongo and Others
judgment”), paras 71 to 77.
1. disclose the identity of the Applicant notwithstanding the latter’s

2. comply with the Constitutive Act of the Union and the Charter ;
mass media;
A. Conditions of admissibility that are in contention

between the Parties
41. The Respondent State has raised two objections to the

admissibility of the Application relating to the requirements of
exhaustion of local remedies and the filing of the Application within a
reasonable time after the exhaustion of local remedies.
i. Objection relating to non-exhaustion of local remedies
42. The Respondent State contends that rather than filing this
Application before this Court, the Applicant had two options that he
could have used to get redress for his grievances at domestic level.
According to the Respondent State, the Applicant could have either
sought a review of the Court of Appeal’s judgment on his appeal, or he
could have filed a constitutional petition pursuant to the Basic Rights
and Duties Enforcement Act [Cap. 3 RE 2002], relating to the alleged
violations of his rights.
43. In his Reply, the Applicant asserts that his Application has been
filed after exhaustion of local remedies, that is, after the dismissal of
his appeal by the Court of Appeal of Tanzania, the highest court in the
Respondent State.
44. The Court notes that an application filed before it shall always
comply with the requirement of exhaustion of available local remedies,
unless it is demonstrated that the remedies are ineffective, insufficient,
or the domestic procedures to pursue them are unduly prolonged.5

In the Matter of African Commission on Human and Peoples’ Rights
v Republic of Kenya, the Court observed that the rule of exhaustion
of domestic remedies “maintains and reinforces the primacy of the
domestic system in the protection of human rights vis-à-vis the Court”.6
It follows that in principle, the Court does not have a first instance
jurisdiction over a matter which was not raised at the domestic level.
45. In its established jurisprudence, the Court has also consistently
held that an Applicant is only required to exhaust ordinary judicial
remedies.7
46. Concerning the filing of the constitutional petition on the alleged
violation of the Applicant’s rights, in the Matter of Alex Thomas v
United Republic of Tanzania, this Court has held that this remedy in
the Tanzanian judicial system is an extraordinary remedy which the
Applicant was not required to exhaust prior to filing his Application
before it.8
47. With regard to the application for review of the Court of Appeal’s
judgment, this Court similarly held in the above-mentioned case that,
in the Tanzanian judicial system, this is an extraordinary remedy that
the Applicant was not required to exhaust before he seized the Court. 9
48. In the instant case, the Court notes from the records that the
Applicant went through the required criminal trial process up to the
Court of Appeal, which is the highest Court in the Respondent State,
before bringing his Application to this Court. The Court therefore finds
that the Applicant has exhausted the local remedies available in the
Respondent State’s judicial system.
49. Accordingly, the Court dismisses the objection that the Applicant
did not exhaust local remedies.
5 Application. No 004/2013. Judgment on Merits, 5/12/2014, Lohé Issa Konaté v

Burkina Faso, para 77 (hereinafter referred to as, Lohé Issa Konaté v Burkina Faso
Judgment), see also Peter Chacha judgment, para 40.
6 Application No. 006/2012. Judgment on Merits, 26/05/2017, African Commission
on Human and Peoples’ Rights v Republic of Kenya, para 93 (hereinafter referred
to as, “African Commission on Human and Peoples’ Rights v Republic of Kenya”).
7 Alex Thomas Judgment, para 64. See also Application No. 006/2013, Judgment
on merits 18/03/2016, Wilfred Onyango Nganyi and 9 Others v United Republic of
Tanzania, para 95.
8 Alex Thomas Judgment, para 65.
9 Ibid. See also Mohamed Abubakari judgment, paras 66-68.
ii. Objection relating to not filing of the Application within

a reasonable time
50. The Respondent State contends that, should the Court find
that the Applicant has exhausted local remedies, it should reject the
Application since the Applicant did not file his Application within a
reasonable time after exhausting local remedies, in accordance with the
Rules. In this regard, the Respondent State asserts that even though
Rule 40(6) of the Rules is not specific on the question of reasonable
time, international human rights jurisprudence has established six
months period as a reasonable time.
51. In his Reply, the Applicant argues that he first learnt of the
Court’s existence in 2015 and considering that he is a layman and is
not represented by a lawyer, his Application should be considered as
having been filed within a reasonable time.
52. The Court notes that Article 56(6) of the Charter does not
indicate a precise timeline in which an Application shall be filed before
the Court. Rule 40(6) of the Rules refers to a “reasonable time from the
date local remedies were exhausted or from the date set by the Court
as being the commencement of the time limit within which it shall be
seized of the matter.”
53. In the Matter of Norbert Zongo and Others v Burkina Faso, the
Court stated that “the reasonableness of a time limit of seizure will
depend on the particular circumstances of each case and should be
determined on a case-by-case basis.”10 Accordingly, the Court, taking
the circumstances of each case into account, specifies the date from
which the time should be computed and then determines whether an
application has been filed within a reasonable time from such date.
54. In the instant case, the Court notes that the judgment of the
Court of Appeal in Criminal Appeal No. 182 of 2010 was delivered on
19 December 2012. The Application was filed before this Court on 8
December 2015, that is, two (2) years and eleven (11) months) after
the judgment of the Court of Appeal. The key issue here is whether
this time can be considered as reasonable in light of the particular
circumstances of the Applicant.
55. The Respondent State does not dispute that the Applicant is
a lay, indigent and incarcerated person without the benefit of legal
education or assistance.11 These circumstances make it plausible that
the Applicant may not have been aware of the Court’s existence and
how to access it.
10 Zongo and Others judgment, para 92.

11 See Alex Thomas judgment, para 74.
56. In view of these circumstances, the Court is of the opinion that

the filing of this Application two (2) years and eleven (11) months after
the exhaustion of local remedies is a reasonable time and therefore,
dismisses the Respondent State’s objection in this regard.
B. Conditions of admissibility that are not in contention

between the Parties
57. The conditions of admissibility regarding the identity of the

Applicant, the Application’s compatibility with the Constitutive Act of
the African Union, the language used in the Application, the nature
of the evidence, and the principle that an Application must not raise
any matter already determined in accordance with the principles of
the United Nations Charter, the Constitutive Act of the African Union,
the provisions of the Charter or of any other legal instruments of the
African Union (Sub-Rules 1, 2, 3, 4 and 7 of Rule 40 of the Rules) are
not in contention between the Parties.
58. The Court also notes that nothing in the record before it indicates
that these requirements have not been fulfilled. Consequently, the
Court holds that these admissibility requirements have been fully met
in the instant case.
59. In view of the foregoing, the Court finds that the instant
Application fulfils all the admissibility requirements specified in Article
56 of the Charter and Rule 40 of the Rules, and accordingly declares
the same admissible.
VII. The merits
A. Allegations relating to violation of the right to a fair

trial
i. Allegation relating to evidence relied on to identify the

Applicant
60. The Applicant submits that the visual identification relied upon
by the domestic courts to convict him was erroneous. He avers that
the victims who testified as witnesses did not indicate the distance
between them and the attackers at the time of the commission of the
crime; that they did not mention the location and direction of light of the
lamp and that they failed to explain their condition and how they were
able to comply with the assailants’ order after the sudden attack.
61. The Applicant further adds that even though the victims claimed
to have known the attackers, he was arrested after two days of the
commission of the crime despite his presence in the area. He submits
that the victims’ testimony that the attackers took time to count the
money in front of them does not pass the test of common sense, as the
robbers would not do that in front of victims while being aware that the
victims know them. Finally, the Applicant argues that Mr Yusuf Bwiru,
the prosecution witness who arrived at the scene of the crime did not
claim to have seen the robbers but just heard their names from the
victims.
62. On its part, the Respondent State reiterates that the Court is
not empowered to evaluate the evidence of the Trial Court but rather
consider if duly established procedures laid down by the laws of the land
were adhered to, otherwise, the Court would vest itself with appellate
powers which are not granted to it by the Charter, the Protocol and the
Rules.
63. The Respondent State argues that, the Applicant’s allegations
require the Court to assess the manner in which its domestic courts
evaluated evidence. In this regard, the Respondent State submits that
during the course of the Applicant’s trial, five prosecution witnesses
testified and five exhibits were tendered and the Applicant entered his
defence after he was given adequate time to prepare it. According to
the Respondent State, it is after carefully examining all the evidence,
including that of visual identification, that the Trial Court convicted the
Applicant and the High Court and the Court of Appeal sustained the
conviction.
64. According to the Respondent State, the domestic courts
convicted the Applicant after a thorough and appropriate examination
of all evidence. The Respondent State maintains that, the Court should
defer to the finding of the domestic courts in circumstances where duly
established procedures laid down by the laws of the land were adhered
to.
65. The Court underscores that domestic courts enjoy a wide
margin of appreciation in evaluating the probative value of a particular
evidence. As an international human rights court, the Court cannot
take up this role from the domestic courts and investigate the details
and particularities of evidence used in domestic proceedings.
66. However, the fact that an allegation raises questions relating
to the manner in which evidence was examined by domestic courts
does not preclude the Court from determining whether the domestic
procedures fulfilled international human rights standards. In its
judgment in the matter of Mohamed Abubakari v Tanzania, the Court
held that:
“As regards, in particular, the evidence relied on in convicting the Applicant,
the Court holds that, it was indeed not incumbent on it to decide on their
value for the purposes of reviewing the said conviction. It is however of
the opinion that, nothing prevents it from examining such evidence as
part of the evidence laid before it so as to ascertain in general, whether
consideration of the said evidence by the national Judge was in conformity
with the requirements of fair trial within the meaning of Article 7 of the
Charter in particular.”12
67. In this regard, the Court observes that “a fair trial requires that
the imposition of a sentence in a criminal offence, and in particular,
a heavy prison sentence, should be based on strong and credible
evidence”.13
68. The Court also notes that when visual identification is used as
evidence to convict a person, all circumstances of possible mistakes
should be ruled out and the identity of the suspect should be established
with certitude. This is also the accepted principle in the Tanzanian
jurisprudence.14 This demands that visual identification should be
corroborated by other circumstantial evidence and must be part of a
coherent and consistent account of the scene of the crime.
69. In the instant case, the record before this Court shows that the
domestic courts convicted the Applicant on the basis of evidence of
visual identification tendered by three Prosecution Witnesses, who
were victims of the crimes. These witnesses knew the Applicant
before the commission of the crimes, since he used to come to his
uncle’s house, who was the Applicant’s co-accused. The national
courts thoroughly assessed the circumstances in which the crime
was committed to eliminate possible mistaken identity and found that
the Applicant and his co-accused were positively identified as having
committed the alleged crimes.
70. The Court also observes that in addition to the victims’ testimony
on the Applicant’s and his co-accused’s identity, the national courts
also considered the testimony of other Prosecution Witnesses, namely,
that of Mr Yusuf Bwiru and Commander Anthony Michack. The national
courts also relied on exhibits collected from the scene of the crime and
recovered from the co-accused. Mr Yusuf Bwiru arrived at the scene
of the crime immediately after the attackers left and found the victims
terrified and crying for help and all of them named the Applicant and his
co-accused as attackers.
12 Mohamed Abubakari judgment, paras 26 and 173.

13 Ibid, para 174.
14 In the Matter of Waziri Amani v United Republic of Tanzania, the Court of Appeal
declared that “no court should act on evidence of visual identification unless all
possibilities of mistaken identity are eliminated and the court is fully satisfied that
the evidence before it is absolutely watertight”, ibid, par 175.
71. The Court further notes from the record that during the trial,
the Applicant did not contest the use of the exhibits as evidence. In
their statement to the Regional Commander, Mr Anthony Michack, the
victims also gave a consistent account of the crime and the identity
of the robbers. The Applicant did not invoke any apparent reason
as to why the victims could lie nor did he offer a counter evidence to
refute the testimony proffered by prosecution witnesses. The evidence
secured from the victims’ visual identification forms part of a consistent
account of the scene of the crime and the identity of the Applicant.
72. The Applicant’s allegations that the victims did not state the
distance between the intruders and them, that he was arrested only
after two days, that the intruders would not count the money in front
of the victims knowing that the latter knew them and that the victims
did not state the direction and location of the lamp are all details that
concern particularities, the assessment of which should be left to the
domestic courts.
73. In view of the above, the Court is of the opinion that the manner
in which the domestic courts evaluated the facts or evidence does not
disclose any manifest error or resulted in a miscarriage of justice to
the Applicant and hence, requires the Court’s deference. The Court
therefore dismisses the allegation of the Applicant that the evidence of
visual identification relied upon by the Court of Appeal was erroneous.
ii. The allegation on failure to provide legal assistance
74. The Applicant contends that the Respondent State has violated
Article 7(1)(c) of the Charter. The Applicant further submits that with
“the inequality of arms in the Respondent State’s prosecution system,
whereby there is, on the one hand, the State Prosecution backed by
professional lawyers; and on the other, the Applicant who was, an
indigent, layman, not represented by a lawyer, it can hardly be said
that the Applicant has been afforded equal protection of the law and
the right to a fair trial”.
75. The Respondent State denies this and argues that the Applicant
was afforded the right to be heard and defend himself in the presence
of his co-accused and witnesses, he was given the opportunity to
cross examine all witnesses who testified against him and that he had
the right to appeal. The Respondent State admits that the Applicant
was not represented by a lawyer during the trial, but argues that the
Applicant did not ask for legal assistance as per its Legal Aid Act No.
21 of 1969.
76. In terms of Article 7(1)(c):
comprises:
[…] (c) The right to defence, including the right to be defended by

counsel of his choice.”
77. Even though Article 7(1)(c) of the Charter guarantees the right to
defence, including the right to be assisted by counsel of one’s choice,
the Court notes that the Charter does not expressly prescribe the right
to free legal assistance.
78. In its judgment in the Matter of Alex Thomas v The United
Republic of Tanzania, this Court however stated that free legal aid
is a right intrinsic to the right to a fair trial, particularly, the right to
defence guaranteed in Article 7(1)(c) of the Charter.15 In its previous
jurisprudence, the Court also held that an individual charged with a
criminal offence is automatically entitled to the right of free legal aid,
even without the individual having requested for it, where the interests
of justice so require, in particular, if he is indigent, the offence is serious
and the penalty provided by the law is severe.16
79. In the instant case, it is not in dispute that the Applicant was not
afforded free legal aid throughout his trial. Given that the Applicant
was convicted of serious crimes, that is, armed robbery and unlawful
wounding, carrying a severe punishment of 30 years and 12 months
imprisonment, respectively, there is no doubt that the interest of justice
would warrant free legal aid provided that the Applicant did not have
the required means to recruit his own legal counsel. In this regard,
the Respondent State does not contest the indigence of the Applicant
nor does it argue that he was financially capable of getting a legal
counsel. In these circumstances, it is evident that the Applicant should
have been given free legal aid. The fact that he did not request for it is
irrelevant and does not shun the responsibility of the Respondent State
to offer free legal aid.
80. The Court therefore finds that the Respondent State has violated
Article 7(1)(c) of the Charter.
B. Alleged violation of the right to equality before the law

and equal protection of the law
81. The Applicant asserts that the Court of Appeal, while examining
his appeal, did not consider all the relevant facts and arguments that he
submitted relating to the evidence used to convict him. By doing so, the
Applicant argues that the Respondent State violated his fundamental
right under Articles 3(1) and (2) of the Charter, which requires every
individual to be entitled to equal protection of the law.
15 Alex Thomas judgment, para 114.

16 Ibid, para. 123, see also Mohamed Abubakari judgment, paras 138-139.
82. The Respondent State on the other hand contends that Article
13(6) of its Constitution provides a similar provision as Article 3 of the
Charter, which guarantees the right to equal protection of the law.
According to the Respondent State, the Applicant was not discriminated
against during his trial and was treated fairly in accordance with the law,
he was given the right to be heard and defend himself in the presence
of his accusers and the opportunity to cross examine all witnesses;
and he had also the right to appeal.
83. The Court notes that Article 3 of the Charter guarantees the right
to equality and equal protection of the law in the following terms:
1. Every individual shall be equal before the law.
2. Every individual shall be entitled to equal protection of the law”
84. The Court notes that the right to equal protection of the law
requires that ‘the law shall prohibit any discrimination and guarantee
to all persons equal and effective protection against discrimination on
any ground such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status”.17
The Court notes that this right is recognised and guaranteed in the
Constitution of the Respondent State. The relevant provisions (Articles
12 and 13) of the Constitution enshrine the right in similar form and
content as the Charter, including by prohibiting discrimination.
85. The right to equality before the law requires that “all persons shall
be equal before the courts and tribunals”18 In the instant Application,
the Court observes that the Court of Appeal examined all grounds
of the Applicant’s appeal and found that it did not have merit. In the
interest of justice, the Applicant was even allowed to file his notice
of appeal out of the deadline specified by the domestic law and his
appeal was duly considered.19 In this regard, this Court has not found
that the Applicant was treated unfairly or subjected to discriminatory
treatment in the course of the domestic proceedings.
86. The Applicant has therefore not adequately substantiated that
his right to equality before the law or his right to equal protection of the
law was contravened and, thus, the Court dismisses his allegation that
the Respondent State violated Articles 3 (1) and (2) of the Charter.
C. Alleged violation of the right to non-discrimination
87. The Applicant submits that the Court of Appeal, by failing to
17 Article 26, ICCPR.

18 Article 14(1), ibid. See also UN Human Rights Committee, CCPR General
Comment No. 18: Non-discrimination, 10 November 1989, para 3.
19 Miscellaneous Criminal Cause No. 49 of 2009.
properly evaluate the evidence obtained during his trial, has violated
his right under Article 2 of the Charter. On its part, the Respondent State
insists that the Court of Appeal did properly address the Applicant’s
appeal and convicted him only after assessing a set of facts and
corroborating evidence.
88. It emerges from Article 2 of the Charter that:
“Every individual shall be entitled to the enjoyment of the rights and
freedoms recognised and guaranteed in the present Charter without
distinction of any kind such as race, ethnic group, colour, sex, language,
religion, political or any other opinion, national and social origin, fortune,
birth or any status.”
89. The principle of non-discrimination strictly forbids any differential

treatment among persons existing in similar contexts on the basis of
one or more of the prohibited grounds listed under Article 2 above. 20
90. In the instant case, the Applicant simply asserts that the Court
of Appeal violated his right to freedom from discrimination. The
Applicant does not indicate the kind of discriminatory treatment that
he was subjected to in comparison to persons who were in the same
situation as he was, nor does he specify the ground(s) prohibited under
Article 2 of the Charter on which basis he was discriminated. The
mere allegation that the Court of Appeal did not properly examine the
evidence supporting his conviction is not sufficient to find a violation of
his right not to be discriminated. The Applicant should have furnished
evidence substantiating his contention.
91. In view of the foregoing, the Court finds that the Applicant is not
a victim of any discriminatory practice that contravenes the right to
freedom from discrimination guaranteed under Article 2 of the Charter.
VIII. Remedies sought
92. In his Application, the Applicant prayed the Court to, among other
things, quash his conviction and set him free, grant other reparations
and order such other measures or remedies as it may deem fit.
93. On the other hand, the Respondent State prayed the Court to
deny the request for reparations and all other reliefs sought by the
Applicant.
20 See African Commission on Human and Peoples’ Rights v Republic of Kenya

judgment, para 138
95. As regards the Applicant’s request that the Court quash the
decision of the national courts, the Court reiterates its decision in the
matter of Ernest Francis Mtingwi v Republic of Malawi,21 that it is not
an appeal court to quash or reverse the decision of domestic courts,
therefore, it does not grant the request.
96. Concerning the Applicant’s request for an order of his release, the
Court recalls its decision in Alex Thomas v Tanzania22 where it stated
that “an order for the Applicant’s release from prison can be made only
under very specific and/or, compelling circumstances”. In the instant
Consequently, the Court does not grant the prayer, without prejudice to
the Respondent applying such measure proprio motu.
97. With respect to other forms of reparation, Rule 63 of the Rules of
Court provides that “the Court shall rule on the request for reparation…
by the same decision establishing the violation of a human and peoples’
right or, if the circumstances so require, by a separate decision.”
98. In the instant case, the Court notes that none of the Parties
made detailed submissions concerning the other forms of reparation.
It will therefore make a ruling on this question at a later stage in the
procedure after having heard the Parties.
IX. Costs
99. In their submissions, the Applicant and the Respondent State

did not make any statements concerning costs.
ruling on other forms of reparation.
X. Operative part

The Court
Unanimously,
On Jurisdiction:
i. Dismisses the objection to the material jurisdiction of the Court.
ii. Declares that it has jurisdiction.
On Admissibility:
21 See above note 2.

22 Alex Thomas judgment, para 157.
iii. Dismisses the objections to the admissibility of the Application.

On Merits:
v. Holds that the Respondent State has not violated Articles 2 and
3(1) and (2) of the Charter relating to freedom from discrimination and
the right to equality and equal protection of the law, respectively.
vi. Holds that the Respondent State has not violated the right to
defence of the Applicant in examining the evidence in accordance with
Article 7(1) of the Charter;
vii. Holds that the Respondent State has violated the Applicant’s
right to a fair trial by failing to provide free legal aid, contrary to Article
7(1)(c) of the Charter
viii. Does not grant the Applicant’s prayer for the Court to order his
release from prison, without prejudice to the Respondent applying
such measure proprio motu.
ix. Orders the Respondent State to take all necessary measures to
remedy the violations, and inform the Court, within six (6) months from
the date of this judgment, of the measures taken.
x. Reserves its ruling on the prayers for other forms of reparation
and on costs.
xi. Grants, in accordance with Rule 63 of the Rules, the Applicant to
file written submissions on the request for reparations within thirty (30)
days hereof, and the Respondent State to reply thereto within thirty
(30) days.
Kouma and Diabaté v Mali (admissibility) (2018) 2 AfCLR 237 237
Kouma and Diabaté v Mali (admissibility) (2018) 2 AfCLR

237
Application 040/2016, Mariam Kouma and Ousmane Diabaté v Republic

of Mali
Judgment, 21 March 2018. Done in English and French, the French text
The Applicants, a mother and her son, were attacked by a man with a
machete in 2014. They submitted the case to the Court as the national
courts, in their view, had failed to take the necessary measures against
their attacker. The Court declared the case inadmissible as the Applicants
had contributed to the prolongation of the national proceedings and had
not shown that local remedies were insufficient.
Admissibility (exhaustion of local remedies, unduly prolonged, 37, 47,
48; sufficiency of remedy, 53)
I. The Parties
1. The Applicants, Mrs Mariam Kouma and her son Ousmane

Diabaté, are citizens of Mali.
2. The Respondent State is the Republic of Mali which became a
Party to the African Charter on Human and Peoples’ Rights (hereinafter
referred to as “the Charter”) on 21 October 1986, and to 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”) on 25 January 2004. The Respondent State also,
on 19 January 2010, deposited the declaration prescribed under Article
34(6) of the Protocol recognizing the Court’s jurisdiction to receive
cases directly from individuals and Non-Governmental Organizations.
It is also a Party to the Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Women in Africa (hereinafter referred
to as the “Maputo Protocol”) since 25 November 2005, and to the
African Charter on the Rights and Welfare of the Child (hereinafter
referred to as “the Charter on the Rights and Welfare of the Child “)
since 29 November 1999.
3. The Application was filed by APDF and IHRDA on behalf of

Mariam Kouma, a merchant in Bamako, and her son Ousmane
Diabaté, and invokes the violation of the Applicants’ right to a fair trial
by the Respondent State.
A. The facts
4. In January 2014, Mariam Kouma sold a monkey to Boussourou

COULIBALY for the sum of nine thousand (9,000) CFA Francs. The next
day, Boussourou came to ask Mariam to take back her monkey and
return his money, stating that his mother did not want the domestication
of the monkey. Faced with Mariam’s refusal to take the animal back,
Boussourou left the monkey in the latter’s compound and went away.
However determined at all cost to have his money, he returned almost
every day to the residence of his contracting partner to demand the
return of his money.
5. On the night of 13 February 2014, when he returned to Mariam’s
house, she ordered him never to set foot in her house again. Furious,
Boussourou rushed to the home of a neighbouring family, fetched a
machete, rushed back into Mariam’s living room and repeatedly struck
her on the head and feet until she fell unconscious.
6. Ousmane Diabaté, Mariam’s son, who came to the rescue of his
mother, was also wounded by Boussourou during the scuffle. It was
then that the neighbors, alerted by the cries of Ousmane, apprehended
Boussourou and handed him over to the Police.
7. Following an investigation ordered by the Public Prosecutor’s
Office, Bousourou was charged with the offense of inflicting simple
bodily harm. The case was forthwith brought before the Court of First
Instance of Bamako District V.
8. At the public hearing of 20 February 2014, the Public Prosecutor
asked for the accused to be released on grounds of dementia.
9. On 27 February 2014, the trial court dismissed the plea of the
Public Prosecutor and sentenced Boussourou to one year imprisonment
for the offence of inflicting simple bodily harm. The Court however
reserved ruling on damages on the ground that the complainant had
not yet produced evidence of the alleged incapacity to work.
10. Counsel for Boussourou appealed against that decision on the
same day.
11. In its judgment of 24 March 2014, the Court of Appeal,
considering that the Trial Judge left the case inconclusive for having
not taken a decision on civil damages, decided to refer the matter back
to the Court of First Instance of Bamako District V.
12. As at the time of referral to this Court by the Applicants on 1 July
2016, proceedings were pending before the Court of First Instance of
Bamako District V.
13. The Applicants allege that the Mali national courts, seized of the
dispute between them and Boussourou, did an incorrect classification
of the facts of the case. They assert that the fact of classifying the
acts of their aggressor as assault rather than attempted murder with
premeditation resulted in the violation of their dignity and rights under
international human rights instruments, in particular:
“i. The right to dignity and the right to protection from all
forms of violence and torture as provided under Article 3
of the Maputo Protocol, Article 5 of the Charter, Article 7
of the ICCPR and Article 5 of the Universal Declaration of
Human Rights (UDHR);
ii. Ousmane’s right to education as provided under Article
17 of the Charter and Article 11 of the African Charter on
the Rights and Welfare of the Child;
iii. Mariam’s right to work as provided under Article 15 of the
Charter;
iv. The right to health as provided under Article 16 of the
Charter, Article 14(1) of the Maputo Protocol and Article
14 of the African Charter on the Rights and Welfare of the
Child;
v. The right of access to justice and the right to reparation
as provided under Article 7 of the Charter and Article 6 of
the Maputo Protocol.”
14. The Applicants contend, lastly, that the Respondent State
is liable for all the afore-mentioned violations for having failed in its
obligation to conduct an in-depth and impartial investigation leading to
a fair classification of the offence committed by their aggressor, adding
that this constitutes a violation of Article 3(4) of the Maputo Protocol.
15. The Application was received at the Court Registry on 1 July

2016 and served on the Respondent State on 26 July 2016. The
Respondent State was requested to forward its Response to the
Application within sixty (60) days, pursuant to Rules 35(4) and 37 of
the Rules of Court (hereinafter referred to as “the Rules”).
16. On 18 October 2016, the Registry transmitted the Application to
the other States Parties and entities as mentioned in Rule 35(3) of the
Rules.
17. On 28 November 2016, the Respondent State filed its Response
to the Application, which was transmitted to the Applicants on 13

December 2016.
18. On 1 February 2017, the Applicants filed their Reply to the
Respondent State’s Response which was forwarded to the Respondent
State on 2 February 2017.
19. On 21 February 2017, the Registry notified the Parties that the
Court would close the written procedure and set down the case for
deliberation.
20. On 28 February 2017, the Respondent State transmitted to the
Court an application for leave to file additional pleadings in accordance
with Rule 50 of the Rules of Court. At its 44th Ordinary Session held
from 6 to 24 March 2017, the Court accepted the application; and on
20 March 2017, the Registry notified the Respondent State that it has
been allowed thirty (30) days to file its submissions.
21. On 5 April 2017, the Respondent State filed its Rejoinder and
this was served on the Applicants on 10 April 2017.
22. At its 47th Ordinary Session held from 13 to 24 November 2017,
the Court decided to close the written procedure and to set the case
down for deliberation. The Parties were notified of this decision on 22
February 2018.

“i. hold the Respondent State liable for failing in its obligation
to carry out a thorough and impartial investigation in
pursuance of Article 3(4) of the Maputo Protocol, Article 1
of the Charter and Article 16 of the African Charter on the
Rights and Welfare of the Child;
ii. declare that the Respondent State has violated their rights
guaranteed and protected by Articles 5, 7, 15, 16, et 17 of
the Charter; 3, 6 and 14 of the Maputo Protocol; 11 and
14 of the African Charter on the Rights and Welfare of the
Child; 7 of the ICCPR and 5 of the UDHR;
iii. Order the Respondent State to pay Mariam Kouma and
Ousmane Diabaté, the sums of 110,628,205 Francs
and 70,026,000 Francs respectively in reparation for the
prejudices suffered”.
24. In its defence, the Respondent State prayed the Court to:
“i. With respect to the form, declare the Application inadmissible on
grounds of failure to exhaust the local remedies,
ii. On the merits, dismiss the Application as groundless”.
V. On the Court’s jurisdiction
25. In terms of Rule 39(1) of its Rules: “The Court shall conduct
preliminary examination of its jurisdiction...”
26. The Court notes that its material, personal, temporal and
territorial jurisdiction is not in contention between the Parties.
27. The Court also notes that, in the instant case, there is no doubt
as to its material, personal, temporal and territorial jurisdiction given
that:
“i. the Applicants are raising the issue of violation of the rights
guaranteed by international human rights instruments
ratified by the Respondent State1;
ii. the Respondent State is a Party to the Protocol and
has deposited the declaration prescribed by Rule 34(6)
enabling individuals and NGOs to directly bring cases
before the Court by virtue of Article 5(3) of the Protocol;2
iii. the alleged violations occurred subsequent to the entry
into force of the international instruments, as concerns
the Respondent State;3 and
iv. the facts of the case took place on the territory of the
Respondent State.”
28. In view of the foregoing considerations, the Court holds that it
has jurisdiction to hear the case.
VI. On admissibility
29. According to Article 6(2) of the Protocol: “The Court shall rule on
the admissibility of a case taking into account the provisions of Article
56 of the Charter.”
30. The Respondent State invokes only one inadmissibility objection
based on Rule 40(5) of the Rules of Court which stipulates that, “to be
admissible, Applications shall be filed after exhausting local remedies,
if any, unless it is obvious that this procedure is unduly prolonged”.
31. In its Response, the Respondent State, citing Rule 34(4) of the
Rules, contends that the Applicants did not exhaust local remedies
1 See para 2 of this judgment.

3 Idem.
prior to bringing the case before the Court, and prayed this Court to
declare the Application inadmissible.
32. On this point, the Applicants themselves admit that they have not
exhausted the local remedies before seizing this Court. They however
refer to the provisions of Rule 40(5) of the Rules of Court, and indicate
that:
“i. the case pending before the Bamako Court of Appeal has
been unduly prolonged;
ii. the Appeal is not efficient, and
iii. the civil claim, for its part, is already void of its substance
because the acts committed by Boussourou, their
aggressor, have been underestimated.”
33. The Court will now examine the three arguments advanced by
the Applicants in support of the objections to the rule of prior exhaustion
of local remedies.
A. On the allegation that the domestic procedure has

been unduly prolonged
34. The Applicants point out that the case has been pending before
the Bamako Court of Appeal for two years and two months; and that
a case that was adjudicated in less than a week at the criminal court
cannot reasonably take more than two years before the Appeal Court.
They therefore prayed the Court to find that the procedure has been
unduly prolonged and to accept the exception to the rule of exhaustion
of local remedies as provided under Article 56(5) of the Charter and
reiterated in Rule 40(5) of the Rules of Court.
35. The Respondent State, in response, contends that at the time
this Court was seized, the case had not yet been definitively closed
at domestic level; adding that the prolongation was due to procedural
difficulties. It further argues that if Mali did not dispose of the case, it
was because the judge was still awaiting the Counsel for the Parties in
the civil case, who requested that the rights of his clients be reserved
until production of a final medical report; that on three occasions, that
is, on 12 and 27 October 2016, and 30 November 2016, the Applicants
failed to show up at the court hearing on the issue of reparation. The
Respondent State infers that it is in no way involved in procedural
intricacies.
36. In their Reply to the Respondent State’s Response, the
Applicants point out that the public hearings of 12 and 27 October 2016
and that of 30 November 2016 at which they did not appear, were
subsequent to the referral to this Court. They further stated that the
abnormality of the duration of the procedure should be assessed from
the time the case was referred to this Court.

37. The Court reaffirms that, to determine whether or not the
duration of a procedure is reasonable, it must take into account the
circumstances of the case and of the procedure; and as such the,
“determination as to whether the duration of the procedure in respect of
local remedies has been normal or abnormal should be carried out on
a case-by-case basis depending on the circumstances of each case.4”
38. On this point, the Court’s analysis takes into account, in particular,
the complexity of the case or the related procedure, the behaviour of
the Parties themselves and that of the judicial authorities to determine
if the latter “has been passive or clearly negligent.”5
39. In the instant case, the questions at issue are whether the
domestic procedure in respect of the Applicants’ case is complicated
or whether the Parties helped to speed up the said procedure; and
more still, whether the judicial authorities showed proof of negligence
or inadmissible delays.
40. The evidence on file shows that when the offence was committed,
the Police alerted by the neighbours arrested Mr Boussourou, kept him
in custody and prepared an investigation report; that this report was
later transmitted to the State Counsel at the Court of First Instance of
Bamako District V; that the latter, for his part, then seized the Criminal
Court for immediate court hearing after placing the culprit under
detention.
41. The Court notes that the facts described above do not contain
any element of fact or of law which could render the case and, still less,
the procedure, so complicated as to justify a relatively lengthy hearing.
42. The Court further notes that the Court of First Instance of
Bamako District V which was seized on 20 February 2014, rendered
its judgment on 27 February 2014, that is, eight (08) days later. As for
the Appeal Court which examined the case on 27 February 2014, the
latter gave its decision on 24 March 2014, that is, within twenty-five
(25) days. The Court finds that such a time frame is not lengthy enough
for it to declare the procedure unduly prolonged.
43. The two (2) years and two (2) months delay that the Applicants
are complaining about is the duration of the proceedings before the
Court of First Instance of Bamako District sitting as a referral court
which is expected to dispose of its case by making a ruling on the
Applicants’ claim for civil damages.
4 See Application No. 013/2011, Judgment of 28/3/2014. Beneficiaries of The Late

Norbert Zongo and Others v Burkina Faso, para 92 http://www.african-court.org.
5 See matter of Dobbertin v France, Judgment of 25 February 1993, Série A, No.
256-D para 44. http://hudoc.echr.coe.int.
44. On this point, as it could be seen from the evidence on file, the
defence brief in particular, that the Applicants themselves contributed
in delaying the procedure because at the hearing of 20 February 2014,
their Counsel prayed the Court to reserve the rights of the civil Parties;
and besides, the Applicants had not produced the final medical report
concerning Mariam Kouma. The Applicants did not contest this fact.
45. The Court holds that the expeditiousness of a procedure requires
the necessary cooperation of the Parties in the trial to avoid undue
delay as happened in the case between the Applicants and the Public
Prosecutor’s Office in the national courts, particularly the Court of First
Instance of Bamako District V, since the case was referred to the latter
so that it could be disposed of, as regards civil damages.
46. In the instant case, the Court notes that the time that elapsed
between 24 March 2014, and 1 July 2016,6 the date on which the
case was brought to it, corresponds to the period when the Court was
awaiting the Applicants’ medical evidence so as to assess the harm
and quantify the reparation.
47. Considering the above elements, the Court holds that the
Applicants have contributed to the delay in the proceedings they allege
are unduly prolonged.7 They should have helped to speed up the
proceedings by producing early enough, the evidence for reparation of
the damages they are claiming.
48. The Court therefore dismisses the Applicants’ contention that
local proceedings have been unduly prolonged.
B. On the alleged inefficiency of the remedies before the

Court of Appeal
49. The Applicants also contend that the remedy before the Court of
Appeal is insufficient given that it offers no prospect of re-classification
of the offence as a case of attempted murder with premeditation rather
than assault and battery; that the State Prosecutor’s Office should first
have sought medical evaluation to determine the level of incapacitation
to work suffered by the victims before proceeding with classification of
the facts.
50. The Respondent State contests the Applicants’ claims, arguing
that this case had been properly managed in local courts contrary
to the claims in the Applicants’ submissions. It maintains that the
6 Date on which the Court of Appeal referred the case back to the Court of First
Instance Bamako District V.
7 See Application No. 001/2012, Judgment of 28/03/2014: Frank David Omary and
Others v United Republic of Tanzania, paras 133 to 135. http://www.african-court.
org.
sentencing of Boussourou to one year imprisonment term by the Court

of First Instance of Bamako District V is proof of the fact that the case,
at criminal level, has been expeditiously managed with maximum
strictness.
51. The Court notes that the Applicants limit themselves to arguing
that they did not exercise the remedy of re-classification of the offence
based on the facts because there is no prospect of obtaining any such
re-classification.
52. As the Court already stated in previous cases, “It is not enough
for the Complainants to cast aspersion on the ability of the domestic
remedies of the State due to isolated incidences”8 as a way to discharge
themselves of the obligation to exhaust the local remedies. In the final
analysis, “it is incumbent on the Complainant to take all necessary
steps to exhaust or, at least, attempt the exhaustion of local remedies”.9
53. In the instant case, the Court notes that the Applicants have no
proof to show that the remedy of re-classification could not lead to
another ruling, different from that of the examining magistrate; they
contented themselves with casting doubt on the sufficiency of a remedy
available to them and which they have deliberately refused to use.
54. Therefore, in the absence of proof on the part of the Applicants
that the indictment chamber would not produce the expected results,
the Court dismisses the Applicants’ argument in this respect.
C. On the allegation regarding the inefficiency of the civil

remedy
55. The Applicants contend that the Respondent State’s justice

system, by classifying the offense as simple assault and battery without
awaiting the opinion of the physician in charge, “shut the door” to the
claims to compensation for 60% incapacitation suffered by Mariam
Kouma, as well as the loss of opportunities due to the incapacitation;
that Mariam was thus rendered incapable of claiming the cost of her
surgery and medicines, and of the physiotherapy she underwent for
treating the injuries inflicted on her by Boussourou.
8 See Application No 003/2012, Ruling of 28/03/2012, Peter Joseph Chacha v

United Republic of Tanzania, para 143; Application No. 001/2012, Judgment of
28/03/2014: Frank David Omary v United Republic of Tanzania para 127. http://
www.african-court.org. See also ACHPR Communication No. 263/02: Kenyan
Section of the International Commission of Jurists, Law Society of Kenya and
Kituo Cha Sheria v Kenya, in 18th Activity Report July-December 2004, para 41;
ACHPR, Communication No.299/05 Anuak Justice Council v Ethiopia, in 20th
Activity Report January – June 2006, para 54.
9 See Application No. 003/2012, Ruling of 28/03/2012, Peter Joseph Chacha. v
United Republic of Tanzania, para 144 op cit.
56. The Applicants also argue that the fact that the State Prosecution
had avoided conducting the appropriate criminal proceedings but
rather undertook correctional proceedings, while ignoring young
Ousmane Diabaté’s status of victim – all represents proof that the
local courts failed in their obligation to conduct thorough and impartial
investigations.
57. The Applicants conclude that the local procedures hold no
interest for the victims who are seeking a proper classification of
the offence, punishment of the culprit commensurate with the crime
committed and compensation that takes into account the sufferings
endured by the Applicants.
58. The Respondent State refutes all the Applicants’ allegations and
states that it is because the Appeal Court took into account the civil
claims of the Applicants that it referred the case to the trial Judge.
59. The Court notes that it is in considering the civil interest of the
Applicants that the Bamako Court of Appeal on 27 February 2014 held
that the Trial Court Judge failed to dispose of the case by not deciding
on the civil aspects, and accordingly decided to refer the matter to the
latter.
60. Moreover, the Court notes that, at the present stage of the
domestic procedure, the Applicants can lodge an appeal only after
the trial judge’s decision on civil damages. It is therefore premature
to prejudge the inefficiency of the remedy before the Court of Appeal.
61. Consequently, the Court dismisses the Applicants’ contention
that the local remedy is inefficient, ineffective and insufficient.
62. The Court finds that the Applicants have not exhausted the local
remedies as required under Article 56 of the Charter and Rule 40(5) of
the Rules.
63. The Court notes that, according to Article 56 of the Charter, the
conditions of admissibility are cumulative and, as such, when one of
them is not fulfilled, the Application cannot be admissible. This is the
case in the instant matter. The Application therefore must be declared
inadmissible.
VII. Costs
64. The Court notes that in the instant case, the Parties have not
made any claim as to costs.
65. In terms of Rule 30 of the Rules, which provides that “unless
otherwise decided by the Court, each party shall bear its own costs”,
the Court decides that each party shall bear its own costs.
VIII. Operative part

66. For these reasons

The Court,
unanimously:
i. Declares that it has jurisdiction;
ii. Upholds the objection based on non-exhaustion of local
remedies;
iii. Declares that the Application is inadmissible; and
iv. Declares that each Party shall bear its own costs.
Application 012/2015, Anudo Ochieng Anudo v United Republic of

Tanzania
The Applicant’s Tanzanian nationality was withdrawn and he was deported
to Kenya which, in turn, expelled him back to Tanzania where he was
stranded in the no man’s land at the border. The Applicant alleged that
his right to nationality as guaranteed under the Tanzanian Constitution
and the Universal Declaration of Human Rights had been violated. The
Court held that neither the African Charter, nor the ICCPR explicitly deals
with the right to nationality but that withdrawal of nationality by making
a person stateless violates the Universal Declaration of Human Rights
which reflects customary international law. The Court further held that
the manner in which the Applicant was expelled violated the ICCPR.
Jurisdiction (international instruments ratified by the Respondent State,
35; no need to specify Charter obligations, 36)
Admissibility (exhaustion of local remedies, judicial review, expelled,
52, 53; submission within reasonable time, 57-59)
Interpretation (Universal Declaration forms part of customary
international law, 76)
Nationality (withdrawal, statelessness, 78, 79, 87, 88, 102; contested,
burden of proof, 80-85; procedure, hearing, 112)
Expulsion (arbitrary, 100-102, 105)
Reparations (annul expulsion decision, 127)
I. The Parties
1. The Applicant is Anudo Ochieng Anudo, who states that he was

born in 1979 in Masinono, Butiama, United Republic of Tanzania.
(hereinafter referred to as “the Respondent State”) which became
a Party to the African Charter on Human and Peoples’ Rights
(hereinafter referred to as “the Charter”) on 21 December 1986 and
to the Protocol to the African Charter on Human and Peoples’ Rights
2006. It deposited the declaration prescribed under Article 34(6) of
the Protocol recognizing the jurisdiction of the Court to receive cases
from individuals and Non-Governmental organizations on 29 March
2010. The Respondent State also became a Party to the International
Anudo v Tanzania (merits) (2018) 2 AfCLR 248 249
Covenant on Civil and Political Rights (hereinafter referred to as

“the ICCPR”) on 11 July 1976, and to the International Covenant on
Economic, Social and Cultural Rights (hereinafter referred to as “the
ICESCR”) on 11 June 1976.
3. The Application relates to the withdrawal of nationality and

expulsion from the United Republic of Tanzania of the Applicant by the
Respondent State.
A. Facts as stated by the Applicant
4. The Applicant states that in 2012, he approached the Tanzanian

authorities of the Babati District Police Station to process formalities for
his marriage. The Police decided to retain his passport on the grounds
that there were suspicions regarding his Tanzanian citizenship. His
Tanzanian nationality was withdrawn and he was then deported to
the Republic of Kenya which, in turn, expelled him back to the United
Republic of Tanzania; but because he could not enter the country, he
remained in the “no man’s land” between the Tanzania-Kenya border
in Sirari.
5. On 2 September 2013, the Applicant sent a letter to the Minister
of Home Affairs and Immigration requesting to know why his travel
document was confiscated by the Police.
6. Between April and May 2014, the immigration service opened
an investigation and questioned certain residents of the village of
Masinono, notably those the Applicant indicated to be his biological
parents. Many of them attested that the Applicant was the biological
son of Anudo Achok and Dorcas Rombo Jacop, with the exception of
his uncle Alal Achock (his father’s brother) who stated that the Applicant
was born in Kenya to one Damaris Jacobo, and subsequently migrated
to Tanzania.
7. The Applicant indicated having written to the Prevention and
Combatting of Corruption Bureau informing this Bureau that immigration
officers had asked him to give them a bribe, which he refused to do.
8. By a letter dated 21 August 2014, the Minister of Home Affairs
and Immigration informed the Applicant that, after careful verification of
all the relevant documents, officials of the Immigration Department had
come to the conclusion that he was not a citizen of Tanzania, and that
his Tanzanian passport No. AB125581 had been issued on the basis of
fake documents. The Minister’s letter further stated that the Applicant’s
passport had been cancelled and an order issued for him to report to
the Immigration Office for information as to what steps to take to obtain
Tanzanian nationality.
9. In response to that invitation, the Applicant, on 26 August
2014, unaware of the Minister’s letter dated 21 August 2014 went to
the Immigration Office at Manyara with a view to having his passport
returned. He alleges that, upon arrival, he was arrested, detained
and beaten. Seven days later, that is, on 1 September 2014, he was
expelled, with immigration officers escorting him to the Kenyan border
after he was compelled to sign a notice of deportation and a document
attesting that he is a Kenyan citizen.
10. On 5 October 2014, the Applicant’s father brought the matter to
the attention of the Prime Minister of the Respondent State, seeking
annulment of the decision to strip his son of his citizenship and for
his deportation. The Applicant’s father’s letter was transmitted to
the Minister of Home Affairs and Immigration for consideration and
appropriate action. On 3 December 2014, the Minister of Home Affairs
and Immigration confirmed the Applicant’s expulsion.
11. In Kenya, the Applicant was on 3 November 2014, found in
a comatose condition with bruises and injuries, and was taken to
hospital. On 6 November 2014, he was arraigned before the Homa
Bay Resident Magistrate’s Court in Kenya which declared him as being
in an “irregular status” in the territory and sentenced him to pay a fine
for illegal stay. The Applicant was again expelled to Tanzania following
that decision.
12. The Applicant alleges that he has since been living in secret in
the “no man’s land” between the territory of the Respondent State and
the Republic of Kenya, in very difficult conditions, without basic social
or health services.
13. The Applicant alleges that the confiscation of his passport, the
“illegal immigrant” status issued against him and his expulsion from
the United Republic of Tanzania deprived him of his right to Tanzanian
nationality, guaranteed and protected under Articles 15(1) and 17 of the
Tanzanian Constitution and Article 15(2) of the Universal Declaration of
Human Rights.
14. In his Reply to the Respondent State’s Response, the
Applicant, through his Counsel, further states that by depriving him
of his Tanzanian nationality and expelling him to Kenya, which in turn
declared him as being in “an irregular situation”, the Respondent State
violated a number of his fundamental rights:
“i. the right to freedom of movement and residence in his
own country as guaranteed by Article 12 of the Charter,
including;
ii. the right to liberty and security of his person and freedom
from arbitrary arrest and detention as provided in Article
9(1) of the ICESCR and Article 6 of the Charter;
iii. the right to equality before the law; the right to be
presumed innocent until proven guilty; the right to a fair
and public hearing guaranteed under Article 15 of the
ICCPR and Article 7(b) of the Charter; the right to an
appeal to competent national organs against acts violating
his fundamental rights as recognized and guaranteed
by conventions, laws, regulations and customs in force,
under Article 7(a) of the Charter;
iv. the right to participate freely in the government of
his country, either directly or through freely chosen
representatives, as provided under Article 13(1) of the
Charter and Article 25(1) of the ICCPR;
v. the right of access to public office and the use of public
services in his country, as provided under Article 13(2) of
the Charter and Article 25(2) of the ICCPR;
vi. the right to work as provided under Article 15 of the
Charter and Article 6 of the ICESCR;
vii. the right to enjoy the best attainable state of physical and
mental health as guaranteed by Article 16 of the Charter;
viii. the right to protection of his family by the Respondent
State as provided under Article 18 of the Charter, and the
right to an adequate standard of living for himself and his
family as provided under Article 11 of the ICESCR;
ix. the right to marry and found a family guaranteed by Article
23 of the ICCPR;
x. the right to take part in the cultural life of his community as
provided under Article 17(2) of the Charter”.
15. The Application dated 24 May 2015, was lodged at the Registry
of the Court by an email sent on 25 May 2015.
16. The issue of the validity of the email and its registration was
considered by the Court at its 38th Ordinary Session which decided
that the Application be registered.
17. On 15 September 2015, the Application was served on the
Respondent State. On the same date, it was transmitted to all the
States Parties to the Protocol; and on 28 October 2015, was notified
to the other entities listed under Rule 35(3) of the Rules of Court
(hereinafter referred to as “the Rules”).

18. On 30 December 2015, the Respondent State filed its Response.
On 5 January 2016, the Registry transmitted the Response to the
Applicant.
19. At its 39th Ordinary Session, the Court decided to provide the
Applicant with legal assistance and instructed the Registry to contact
the Non-Governmental Organization (NGO) Asylum Access Tanzania
in this regard. On 4 February 2016, Asylum Access Tanzania accepted
to represent the Applicant.
20. On 25 March 2016, the Court, pursuant to the provisions of
Rule 45(2) of its Rules, sought the opinion of the African Commission
on Human and Peoples’ Rights (hereinafter referred to as “the
Commission”) on issues of nationality as regards the matter of Anudo
Ochieng Anudo v United Republic of Tanzania, in view of its expertise
in this area. The Commission did not respond to the request.
21. By an Application dated 18 November 2016, received at the
Registry on 28 November 2016, the Applicant prayed the Court to issue
an order for Provisional Measures to: (i) dissuade the Respondent
State from barring him from entering Tanzania; and (ii) allow him to
return to his family in Tanzania pending the final decision of the Court.
This prayer was transmitted to the Parties on 2 December 2016.
22. On 6 December 2016, the Registry notified the Parties that the
matter was set down for public hearing for 17 March 2017. Following
a request from the Applicant, the said hearing was held on 21 March
2017. During the hearing, the Parties presented their pleadings, made
oral submissions and responded to questions put to them by Members
of the Court.
23. At the request of the Respondent State during the public hearing,
the Parties were granted leave to file additional evidence.
24. Pursuant to Rule 45(2) of the Rules, the Court, on 4 January
2017, requested the NGO, Open Society Justice Initiative, as an
organization with recognized expertise on the regime of nationality and
statelessness in international law, for an opinion on the issue.
25. On 7 March 2017, the Open Society Justice Initiative transmitted
its comments, and these were forwarded to the Parties for their
observations.
A. The Applicant’s prayers
26. The Applicant prays the Court to order that the immigration
authorities’ decision to expel him from his own country, be declared
null and void.

27. Further, in his Reply to the Respondent State’s Response, the
Applicant prays the Court to order the following measures:
“i. cancel the prohibited immigrant notice issued against him
and reinstate his nationality by declaring him a citizen of
the United Republic of Tanzania;
ii. (ii) allow him to enter and stay in the Respondent State
like all its other citizens;
iii. (iii) ensure his protection by the Respondent State as it
does for other citizens and protect him from victimization
on account of this case; and
iv. (iv) reform its immigration law to guarantee the right to
a fair trial before taking any decision that may deprive a
person of his fundamental right, like the right to nationality.”
B. The Respondent State’s prayers
28. In its Response to the Application, the Respondent State prays

the Court to:
“i. declare that it has no jurisdiction to adjudicate the
Application;
ii. declare the Application inadmissible on the grounds that
it has not met the admissibility conditions stipulated under
Rule 40(5) and (6) of the Rules;
iii. declare that the Respondent has not violated the
Applicant’s right to personal freedom and the right to life;
iv. declare that the allegations of corruption are false;
v. dismiss the Application for lack of merit, and
vi. grant it leave to file additional evidence pursuant to Rule
50 of the Rules of Court.”
V. Jurisdiction
29. In terms of Rule 39(1) of its Rules, “the Court shall conduct
preliminary examination of its jurisdiction …”
30. In this respect, the Respondent State raises objection to the
material jurisdiction of the Court on which the Court shall make a ruling
before considering other aspects of jurisdiction.
A. Objection to the Court’s material jurisdiction
31. The Respondent State raises objection to the material jurisdiction

of the Court by invoking Article 3(1) of the Protocol and Rule 26(1) and
(2) of the Rules which provide that “the Court shall have jurisdiction
to deal with all the cases and all disputes submitted to it concerning
interpretation and application of the Charter, the Protocol and any other
relevant instrument on human rights ratified by the States concerned”.
32. The Respondent State argues that, contrary to the above
provisions, the Applicant does not request the Court to interpret or
apply an Article of the Charter or the Rules, nor invoke any human
rights instrument ratified by the United Republic of Tanzania.
33. The Applicant refutes the Respondent State’s objection to the
Court’s material jurisdiction, contending that even in the absence of any
express reference to the Charter or the Protocol, the alleged violations
fall within the ambit of the international instruments in respect of which
the Court has jurisdiction.
34. The Court notes that, in actual fact, the Application does not
indicate the articles or human rights instruments guaranteeing the
rights alleged to be violated.
35. However, in his Reply to the Respondent State’s Response,
the Applicant specifies the rights allegedly violated as well as the
international instruments which guarantee the said rights. It follows
that the Application raises allegations of violations of human rights
guaranteed by international legal instruments applicable before this
Court and ratified by the Respondent State, particularly the Charter,
the ICCPR and the ICESCR.
36. The Court notes its established case law on this issue and
reiterates that the rights allegedly breached need not be specified in
the Application; it is sufficient that the subject of the Application relates
to the rights guaranteed by the Charter or by any other relevant human
rights instrument ratified by the State concerned.1
37. Accordingly, the Court dismisses the Respondent State’s
objection and rules that it has material jurisdiction to hear the case.
jurisdiction is not contested by the Respondent State. Besides, nothing
on record indicates that the Court does not have personal, temporal
and territorial jurisdiction. The Court accordingly holds that:
1 See Application 005/2013: Alex Thomas v United Republic of Tanzania, Judgment

of 20 November 2015 para 45; Frank David Omary and Others v United Republic
of Tanzania, Application 001/2012 Judgment of 28 March 2014, para 115; Peter
Chacha v United Republic of Tanzania, Application 003/2012, Judgment of 28
March 2014, para 115.
i. it has personal jurisdiction given that the Respondent State

is a Party to the Protocol and has made the declaration
prescribed under Article 34(6) of the Protocol, which
enabled the Applicant to bring this Application directly
before this Court, pursuant to Article 5(3) of the Protocol;
ii. it has temporal jurisdiction since the alleged violations
occurred subsequent to the Respondent State’s ratification
of the Protocol establishing the Court;
iii. it has territorial jurisdiction given that the facts of the case
occurred in the Respondent State’s territory.
39. In light of the foregoing, the Court holds that it has jurisdiction to
VI. Admissibility
40. Pursuant to Rule 39(1) of its Rules, “the Court shall conduct
preliminary examination of … the admissibility of the application in
Rules”. The Respondent State raises objection to the admissibility of
the Application on the basis of Article 6 of the Protocol and Rule 40(5)
of the Rules of Court. It contends not only that the Applicant has not
exhausted the available local remedies, but also that the Application
has not been filed within a reasonable timeframe.
41. In terms of Rule 40 of the Rules, which in substance restates
the content of Article 56 of the Charter, Applications shall be admissible
if they fulfil the following conditions:
“1. Indicate their authors even if the latter request anonymity,
2. 2. Are compatible with the Charter of the Organization of African
Unity or with the present Charter,
3. 3. Are not written in disparaging or insulting language,
4. 4. Are not based exclusively on news discriminated through the
mass media,
5. 5. Are sent after exhausting local remedies, if any, unless it is
obvious that this procedure is unduly prolonged,
6. 6. Are submitted within a reasonable period from the time local
remedies are exhausted or from the date the Commission is
seized of the matter, and
7. 7. Do not deal with cases which have been settled by these
States involved in accordance with the principle of the Charter of
the United Nations, or the Charter of the Organization of African
Unity or the provision of the present Charter.”
A. Objection based on the non-exhaustion of local

remedies
42. The Respondent State avers that the Applicant could have
challenged the decision of the Minister of Home Affairs and Immigration
by filing before him a petition for waiver or cancellation of the “prohibited
immigrant” notice and also introduce an application for authorization to
return to the United Republic of Tanzania, stating the reasons for the
return. It contends that under The Immigration Act, 1995, the Minister
of Home Affairs and Immigration has the discretionary power to grant
exemptions in cases of illegal residence; but that the Applicant never
attempted to exercise this remedy.
43. According to the Respondent State, the Applicant had the
opportunity to challenge the Minister’s decision to publish the
“prohibited immigrant” notice as provided under the Law Reform Act,
(Cap. 310 of the Laws) which offers the right to remedies to people who
feel aggrieved by a measure taken through an organ of Government or
an administrative authority.
44. The Respondent State further states that the Applicant could
have introduced before the High Court of Tanzania, an Application for
review as a way to remedy the alleged violation of his rights.
45. The Respondent State argues that the afore-mentioned
remedies exist because they are provided under Tanzanian laws; are
available and can be exercised without impediment.
46. The Respondent State concludes that since the Applicant did
not exercise the aforesaid remedies available locally, the Application
does not meet the conditions set forth under Rule 40(5) of the Rules
and must therefore be dismissed.
47. The Applicant submits that he has exhausted the local remedies
available in the Respondent State in conformity with section 10(f) of the
Tanzanian Immigration Act which provides that “…every declaration of
the Director…shall be subject to confirmation by the Minister, whose
decision shall be final.”
48. The Applicant also submits that he appealed the “prohibited
immigrant” decision before the Minister through his father, but that the
Minister confirmed the decision.
49. The Applicant further submits that after his expulsion from
the Respondent State, he wrote to the Prime Minister (through his
father), appealing his expulsion, but that the Minister, requested by
the Prime Minister to examine his request responded, confirming the
said expulsion. He avers that, consequently, the Respondent State
was aware of his desire to return to its territory, and that the available
domestic remedies have been exhausted.
50. The Applicant also points out that the Tanzanian Immigration Act
does not provide judicial remedy for the decisions of the immigration
authorities. According to him, the only other remedy was therefore that
of review which is inefficient, unavailable and illogical.
51. The Court notes that the Applicant did in actual fact exercise the
remedies provided by the Tanzanian Immigration Act by first seizing the
Minister of Home Affairs and Immigration2 of the matter. He also sent
a letter to the Prime Minister.3 The Court also notes that beyond these
remedies exercised by the Applicant, the Tanzanian Immigration Act is
silent on whether or how the Minister’s decision can be challenged in
a court of law.
52. With regard to the Respondent State’s contention that the
Applicant could have challenged the Minister’s decision in the High
Court by way of judicial review, this Court notes that at the time the
Applicant was in a position to exercise the said remedy, he had already
been expelled from Tanzania and was no longer in the territory of the
Respondent State. In the circumstances, it would have been very
difficult for him to exercise the review remedy.
53. Consequently, the Court dismisses the Respondent State’s
objection to the admissibility of the Application on grounds of failure to
exhaust local remedies.
B. Objection on the ground that the Application was not

filed within a reasonable time
54. The Respondent State alleges that the Application was not filed
within a reasonable time in conformity with Rule 40(6) of the Rules
of Court, arguing that the Applicant seized the Court nine (9) months
after the publication of the “prohibited immigrant” notice, a period it
considers unreasonable.
55. In his Reply, the Applicant notes that the Minister’s letter in
response to his appeal was signed in December 2014, and that he
filed his Application before this Court in May 2015; meaning that only
five (5) months had elapsed between the Minister’s final decision and
the filing of the matter in this Court.
56. The Court notes that Rule 40(6) of the Rules which in substance
reproduces Article 56(6) of the Charter speaks simply of “a reasonable
time from the date local remedies were exhausted or from the date set
by the Court as being the commencement of the time limit within which
it shall be seized with the matter.”
57. The Court has established in its previous Judgments that the
2 See above para 5 of the Judgment.

3 See above para 10 of the Judgment.
reasonableness of the period for seizure of the Court depends on the

particular circumstances of each case and must be determined on a
case-by-case basis.4
58. In the instant case, the Court notes that the Applicant did, as
a matter of fact, file the instant Application on 24 May 2015, whereas
the Minister’s letter in response to his appeal was dated 3 December
2014, thus representing a period of five (5) months and twenty-one (21)
days between the two dates. For the Court, this period is reasonable,
considering in particular the fact that the Applicant was outside the
country.
59. The Court therefore dismisses the objection to the admissibility
of the Application for non-submission of the same within a reasonable
time.
C. Admissibility conditions not in contention between

the Parties
60. The Court notes that compliance with sub-rules 1, 2, 3, 4 and 7

of Rule 40 of the Rules (see paragraph 39 above) is not in contention
and that nothing on record indicates that the requirements of the said
sub-rules have not been complied with. In view of the aforesaid, the
Court finds that the admissibility conditions have been met; and thus,
that the instant Application is admissible.
VII. The merits
61. The Court notes that the instant Application invokes the violation
of three fundamental rights: (i) the Applicant’s right to nationality and
the right not to be arbitrarily deprived of his nationality, (ii) the right not
to be arbitrarily expelled and (iii) the right to have his cause heard by
a court.
62. The Court notes that the rights of which the Application alleges
violation concern not only the rights above cited, but also other
incidental rights.
4 Application 005/2013, Judgment of 20 November 2015, Alex Thomas v United

Republic of Tanzania, para 73; Abubakari v United Republic of Tanzania, Application
007/2013), Judgment of 3 June 2016, para 91; and in Christopher Jonas v United
Republic of Tanzania, Application 011/2015, Judgment 28 September 2017, para
52.
A. On violations arising from the withdrawal of nationality

and related rights
i. The Applicant’s right to nationality and the right not to

be arbitrarily deprived of his nationality
63. The Applicant submits that he is a Tanzanian by birth, just like

his two parents, namely, his father Achok Anudo and his mother Dorka
Owuondo. He further states that he holds a valid Tanzanian birth
certificate and a Tanzanian voter’s card which were confiscated by the
Respondent State’s authorities.
64. The Applicant further submits that the Manyara Immigration
Office invited him to collect his passport on 26 August 2014 and that
when he went to that Office, he was detained for six days, beaten and
forced to admit that he is a Kenyan. He states that two documents
were handed to him on the sixth day of his detention, that is, on 1
September 2014, one of which was a letter indicating that:
“a. He is not a citizen of the United Republic of Tanzania;
b. His passport AB125581 was invalidated because he obtained it
with fake documents;
c. He will have to go to the Manyara Immigration Office to obtain
information as to how to legalize his stay or arrange to leave the
country.
65. On the seventh day of his detention, the Applicant was deported
under police escort to Kenya.
66. The Applicant also alleges that the decision declaring him
“prohibited immigrant” was ill-motivated given that his arrest and
detention were based on unfounded and fabricated evidence; that
he was arrested, detained and then deported to Kenya without any
possibility for him to challenge, in Court, the “prohibited immigrant”
notice issued by the Minister of Home Affairs.
67. The Applicant alleges that the proceedings leading to the
decision to invalidate his passport did not follow the legal procedure as
required by Article 15(2)(a) of the Constitution of the United Republic
of Tanzania.
68. The Applicant contended that his father, who is Tanzanian by
birth and with whom the Respondent State’s authorities claimed to
have spoken, had requested a DNA test to ascertain their parental
connection but the Respondent State’s authorities did not accede to
the request.
69. The Respondent State contends that the Applicant’s passport was
obtained on the basis of false documents, adding that the information
on the copy of his father’s birth certificate attached to the Applicant’s
passport application in 2006 turned out to be contradictory to the

statements concerning his parents, obtained during the investigation
conducted on 29 November 2012.
70. The Respondent State further contends that the birth certificate
issued on 6 September 2015 mentioned by the Applicant and attached
to the Application submitted to this Court was obtained on the basis of
the false documents that were presented.
71. The Respondent State also submits that the Applicant was
declared a non-Tanzanian after the investigation in Masinono
village where the Applicant claimed he was born; that in light of the
discrepancies between the questionnaire completed by the Applicant
at the Immigration Office and the statements obtained during the
investigation conducted on 28 November 2015, the immigration
authorities concluded that the Applicant is not a citizen of the United
Republic of Tanzania.
72. According to the Respondent State, the Applicant had the
opportunity to change his status to one that is legal given that he was
asked, in a letter dated 21 August 2014, to provide further clarification
and to legalize his stay, failing which he would be expelled, but he
failed to subject himself to the said formalities.
73. The Court notes that before the Applicant’s nationality was
withdrawn by the Respondent State, he was considered a Tanzanian
national, with all the rights and duties associated with his nationality
(See infra 80-81).
74. It is important to state here that the conferring of nationality to
any person is the sovereign act of States.
75. The question here is for the Court to determine whether the
withdrawal of the Applicant’s nationality was arbitrary or whether it
conformed with international human rights standards.
76. The Court notes that neither the Charter nor the ICCPR contains
an Article that deals specifically with the right to nationality. However,
the Universal Declaration of Human Rights which is recognized as
forming part of Customary International Law5 provides under Article 15
thereof that: “1. Everyone has the right to a nationality. (2) No one shall
be arbitrarily deprived of his nationality…”
77. In international law, it is recognized that the granting of nationality
5 See Case Concerning United States Diplomatic and Consular Staff in Tehran
(United States v Iran) [1980] ICJ page 3, Collection 1980. See also Matter of
South-West Africa (Ethiopia v South Africa; Liberia v South Africa) (Preliminary
Objections) (Bustamente, Judge, separate opinion), ICJ, Collection 1962 page
319, as well as Section 9(f)of the Constitution of the United Republic of Tanzania,
1977.
falls within the ambit of the sovereignty of States6 and, consequently,

each State determines the conditions for attribution of nationality.
78. However, the power to deprive a person of his or her nationality
has to be exercised in accordance with international standards, to
avoid the risk of statelessness.
79. International Law does not allow, save under very exceptional
situations, the loss of nationality. The said conditions are: i) they must
be founded on clear legal basis; ii) must serve a legitimate purpose
that conforms with International Law; iii) must be proportionate to the
interest protected; iv) must install procedural guaranties which must
be respected, allowing the concerned to defend himself before an
independent body.7
80. In the instant case, the Applicant maintains that he is of Tanzanian
nationality, which is being contested by the Respondent State. In the
circumstance, it is necessary to establish on whom lies the burden of
proof. It is the opinion of the Court that, since the Respondent State is
contesting the Applicant’s nationality held since his birth on the basis
of legal documents established by the Respondent State itself, the
burden is on the Respondent State to prove the contrary.
81. The Court notes that, in this case, the Applicant has always held
Tanzanian nationality with all the related rights and duties, up to the
time of his arrest, he had a birth certificate and passport like every
other Tanzanian citizen.
82. The Court further notes that, in the instant case:
“1. the passport in question, AB125581 delivered by Tanzanian
authorities,
2. The Applicant’s birth certificate attached to his Application before
this Court indicates that his name is Anudo Ochieng Anudo and
that his father is Achok Anudo,
3. the Respondent State claims that the Applicant’s father’s birth
affidavit attached to the Applicant’s passport application in 2016
bears the name of Anudo Ochieng, but that according to a
testimony, his father was rather called Andrew Anudo,
4. Mr Achok Anudo testified, on oath, that he was indeed the
Applicant’s father and, in addition, requested a DNA test to
corroborate his assertions.
5. Mrs Dorcas Rombo Jacop also testified, on oath, that she was
the Applicant’s mother.
6. Other residents of the village, including old people and community
6 ICJ, Nottebohm Case, (Liechtenstein v Guatemala) Judgment 6 April 1955, page

20.
7 Report of the Secretary General, Human Rights Council, Twenty-Fifth Session, 19
December 2013.
leaders, affirmed in writing that the Applicant is Tanzanian, born

in Tanzania. Among the residents was one Patrisia O Sondo
who asserted having been present and assisted the Applicant’s
mother at the time of his birth, and clearly describing the place
of birth.”
83. The Court notes that the Respondent State’s argument
reposes on the statement of the Applicant’s uncle who asserted that
the Applicant’s mother is a citizen of Kenya, and on the contradiction
observed between the information provided by the Applicant and the
statements of his supposed relations.
84. The Court notes, also, that the Applicant’s citizenship was
being challenged 33 years after his birth; that he has used the same
citizenship for all those years leading an ordinary life, pursuing his
studies in the schools of the Respondent State and in other countries;
and that he has always lived and worked, like every other citizen, in the
Respondent State’s territory where he had been exercising a known
profession.
85. The Court further notes that the Respondent State does not
contest the Applicant’s parents’ Tanzanian nationality just as it did
not prosecute the Applicant for forgery and making use of forged
documents with the intent to defraud.
86. The Court also holds that in view of the contradictions in the
witnesses’ statements about the Applicant’s paternity, the proof would
have been a DNA test. A scientific DNA test was what was required
and was requested by Achok Anudo, who, until then, claimed to be the
Applicant’s father.
87. By refusing to carry out the DNA test requested by Achok
Anudo, the Respondent State missed an opportunity to obtain proof
of its claims. It follows that the decision to deprive the Applicant of his
Tanzanian nationality is unjustified.
88. The Court is of the opinion that the evidence provided by the
Respondent State concerning the justification for the withdrawal
of the Applicant’s nationality is not convincing, and therefore holds
in conclusion that the deprivation of the Applicant’s nationality was
arbitrary, contrary to Article 15(2) of the Universal Declaration of
Human Rights.
ii. The Applicant’s right not to be expelled arbitrarily
89. The Applicant submits that his arrest and expulsion is the result
of his refusal to give a bribe to the immigration officers. Subsequently,
he wrote to the Prevention and Combating of Corruption Bureau to
complain.
90. The Applicant maintains that officials of the Respondent State
unlawfully seized his passport which was still valid, cancelled it, deleted
it from the Register, and then deported him to Kenya.
91. He submits that it is unlawful to declare him a “prohibited
immigrant” and expel him from his country. He denounces the
Tanzanian authorities’ application of Section 11(1) of the Tanzanian
Immigration Act, which states that “the entry and presence in Tanzania
of any prohibited immigrant shall be unlawful”.
92. The Respondent State, for its part, contends that the Applicant’s
passport was cancelled following an investigation conducted by the
Immigration Department which provided proof that the information
used in obtaining the said passport was false. The decision to expel
the Applicant was taken by the Minister of Home Affairs, the only one
competent to do so.
93. It submits that the Applicant’s stay in its territory was unlawful;
that the “prohibited immigrant” notice was issued in accordance with
the law and that the Applicant’s expulsion was legal.
94. The Respondent State further submits that after the cancellation
of his passport, the Applicant had the opportunity to regularize his
situation in Tanzania but refused to do so.
95. The Court notes that the Applicant alleged the violation of Article
12 of the Charter which stipulates that: (1) “Every individual shall have
the right to freedom of movement and residence ... (2) “Every individual
shall have the right to leave any country, including his own, and to
return to his country ...”
96. In the opinion of the Court, the relevant portion of this provision
which relates to the instant matter is Article 12(2), in particular, the right
“to return to his country”. In the instant case, the Court will consider this
aspect, notwithstanding the fact that the Applicant left the Respondent
State’s territory involuntarily.
97. Having found that the deprivation of the Applicant’s nationality
was arbitrary, the question that arises at this juncture is whether
a citizen can be expelled from his own country or prevented from
returning to his country.
98. In this regard, the United Nations Human Rights Committee has
found “... that there are few circumstances in which a ban on entry
into one’s own country may be reasonable. A State Party may not
… by deporting a person to a third country, prevent that person from
returning to his own country.”8
99. The Court notes that the Applicant’s expulsion resulted from the
arbitrary withdrawal of his nationality by the Respondent State. This
8 United Nations Human Rights Committee, General Observations, No. 27 on

Freedom of Movement.
procedure is contrary to the requirements of international law which

stipulates that “a State cannot turn its citizen into a foreigner, after
depriving him of his nationality for the sole purpose of expelling him”.9
100. However, the Court notes that even if the Respondent State
regarded the Applicant as an alien, it is clear that the conditions of
his expulsion did not comply with the rule prescribed in Article 13 of
the ICCPR which stipulates that: “An alien lawfully in the territory of
a State Party to the present Covenant may be expelled therefrom
only in pursuance of a decision reached in accordance with law and
shall, except where compelling reasons of national security otherwise
require, be allowed to submit the reasons against his expulsion and to
have his case reviewed by, and be represented for the purpose before,
the competent authority or a person or persons especially designated
by the competent authority.”10
101. The Court notes that the objective of the afore-cited ICCPR
Article is to protect a foreigner from any form of arbitrary expulsion
by providing him with legal guaranties. He should be able to present
his cause before a competent authority and cannot in any case be
expelled arbitrarily.
102. The Court also notes that, in this case, the Applicant was
deported to Kenya, which, in turn, declared him as being in an irregular
situation. This proves that, prior to his expulsion, the Respondent State
failed to take the necessary measures to prevent the Applicant from
being in a situation of statelessness. As a matter of fact, prior to his
expulsion to Kenya, the Respondent State could have satisfied itself
that, if the Applicant is not Tanzanian, he is Kenyan.
103. The Court also notes that the Applicant’s present situation
whereby he is rejected by both Tanzania and Kenya as a national,
makes him a stateless person as defined by Article 1 of the Convention
relating to the Status of Stateless Persons.11
104. Consequently, the Court holds that given the fact that he had
been considered by the Respondent State as a national prior to the
withdrawal of his nationality, he could not be arbitrarily expelled.
105. In any event, even if it were to be assumed that he was an alien,
the Respondent State could still not expel him in the arbitrary manner
9 Draft Articles on Expulsion of Aliens, International Law Commission, Sixty-Sixth

Ordinary Session, United Nations General Assembly, A/CN.4/L.797, 24 May 2012.
10 See Article 12.4 of ICCPR.
11 United Nations Convention relating to the Status of Stateless Persons, Article 1(1).
Although Tanzania has not ratified the 1954 Convention, the International Law
Commission (ILC) has stated that the definition of Article 1(1) “can without doubt
be considered to have acquired a customary character”, See CDI, Draft Articles on
Diplomatic Protection with Commentaries, ILC Yearbook Vol. 2(2)(2006) pp 48-49.
it did, as this would constitute a violation of Article 13 of the ICCPR.

106. The Court therefore holds in conclusion that the manner in
which the Applicant was expelled by the Respondent State constitutes
a violation of Article 13 of ICCPR.
iii. The Applicant’s right to be heard by a Judge
107. According to the Applicant, by depriving him of his nationality and

deporting him from his country, the Respondent State violated several
of his rights guaranteed by the ICCPR and the Charter, including the
right to seize the competent national courts. He further maintained that
after his passport was annulled, he was not arraigned before a court in
accordance with section 30 of the Immigration Act.
108. The Applicants indicated that, by so doing, the Respondent
State’s agents condemned him without giving him the opportunity
to be heard and defend himself. He concludes that the Respondent
State thus failed in its protection duty, condoning arbitrary arrest and
expulsion.
109. The Respondent State maintains that the Minister of Home Affairs
is the competent authority in this respect, and that the Applicant could
have brought the matter to his attention and requested a lifting of the
ban and the authorization to return to the country. It further submits that
the Applicant had the possibility of challenging the Minister’s decision
before the High Court, but chose not to do so. The Respondent State
also submits that even while outside the country, the Applicant had
the opportunity to be heard by the national courts by having himself
represented by the one he claims to be his father, as he did by writing
to the Prime Minister.
110. Article 7 of the Charter stipulates that:
“1. Every individual shall have the right to have his cause heard.
This comprises:
violating his fundamental rights as recognized and guaranteed
b. The right to be presumed innocent until proved guilty by a
counsel of his choice….”
111. Article 14 of ICCPR provides that: “All persons shall be equal
before the courts and tribunals. In the determination of any criminal
charge against him, or of his rights and obligations in a suit at law,
everyone shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law…”
112. The Court notes that the African Commission on Human and
Peoples’ Rights has held that in matters of deprivation of nationality,

the State has “the obligation to offer the individual the opportunity to
challenge the decision” and is of the opinion that the State should
conduct a judicial enquiry in the proper form in accordance with national
legislation.12.
113. In the instant case, the Court notes that in matters of immigration,
the Tanzanian Immigration Law of 1995 defining “illegal immigrant”
provides that the decision of the Minister of Home Affairs declaring a
person an “illegal immigrant” shall be final [Article 10(f)]. It follows that,
in this case, the Applicant was à priori unable to appeal against the
Minister’s administrative decision before a national court.
114. The Court in any case holds that even if, in the silence of the
aforementioned immigration law, the Applicant had, under a general
principle of law, the right to seize a national court, The fact that he
had been arrested and then expelled immediately to Kenya, did not
afford him the possibility of exercising such a remedy. Besides, when
he later found refuge in the no-man’s land, it was very difficult for him
to exercise this remedy.
115. The Court finds in conclusion that, by declaring the Applicant an
“illegal immigrant” thereby denying him Tanzanian nationality, which
he has, until then enjoyed, without the possibility of an appeal before
a national court, the Respondent State violated his right to have his
cause heard by a judge within the meaning of Article 7(1)(a), (b) and
(c) of the ICCPR.
116. The Court notes further that the Tanzanian Citizenship Act
contains gaps in as much as it does not allow citizens by birth to exercise
judicial remedy where their nationality is challenged as required by
international law. It is the opinion of the Court that the Respondent
State has the obligation to fill the said gaps.
B. Other alleged violations
117. The Applicant submits that the Respondent State since 1

September 2014, abandoned him in the “lawless no man’s land” in
inhuman, humiliating and degrading conditions, characterized by lack
of drinking water, food and security, thus subjecting him to numerous
physical and psychological ordeals.
118. He also alleges that the Respondent State violated a number of
his rights guaranteed under various human rights instruments among
which are the African Charter on Human and Peoples’ Rights, the
12 Matter of Amnesty International v Zambia, Communication No. 21298(1999) paras

36-38. Also see the Study by the African Commission on Human and Peoples’
Rights on the Right to Nationality in Africa, 36 (2004).
Universal Declaration of Human Rights, the International Covenant on

Civil and Political Rights and the International Covenant on Economic,
Social and Cultural Rights. He refers specifically to: the right to
wellbeing, the right to the enjoyment of the highest attainable standard
of physical and mental health (Article 16 of the Charter); the right to
free movement and to choose one’s residence in one’s country (Article
12 of the Charter); the right to liberty and security of one’s person
and protection against arbitrary arrest or detention (Article 9(1) of the
ICESCR and Article 6 of the Charter); the right to participate freely in
the conduct of public affairs of one’s country, either directly or through
freely chosen representatives (Article 13(1) of the Charter and Article
25(1) of the ICCPR); the right to access public offices and to use the
public services in one’s country (Article 13(2) of the Charter and 25(2)
of the ICESCR); the right to work (Article 15 of the Charter and Article
6 of the ICESCR); and the right to marry and to found a family (Article
23 of the ICCPR).
119. The Applicant further submits that the said violations resulted
from the unlawful deprivation of his nationality and his expulsion
from Tanzanian territory, especially the fact that he found himself in a
situation of statelessness in a “no man’s land” between the Republic of
Kenya and the United Republic of Tanzania.
120. The Court notes that some of the alleged violations relate to the
Applicant’s living conditions in the said “no man’s land” while others
concern the rights which the Applicant would enjoy had he not lost his
nationality and had he not been expelled from the United Republic of
Tanzania.
121. In the opinion of the Court, therefore, the violation of the
aforesaid related rights is a consequence of the major violations. The
Court, having established the violation of the right not to be arbitrarily
deprived of his nationality, the right not to be arbitrarily expelled from a
State and violation of the right to judicial remedy, defers consideration
of the related violations to the stage of consideration of the request for
reparation.
122. In his Application, the Applicant prayed the Court to: (i) order the
annulment of the decision of the immigration authorities to expel him
from his own country, including the notice of “prohibited immigrant”,
and restoration of his nationality by declaring him a citizen of the
United Republic of Tanzania; (ii) allow him to return to and remain in the
Respondent State like all its other citizens; (iii) order the Respondent
State to protect him against victimization as a consequence of the
present application; and (iv) order the Respondent State to amend
its immigration legislation in order to guarantee a fair trial for persons

likely to be deprived of their right to nationality.
123. During the oral pleadings, the Applicant reiterated his requests
for reparation as well as “payment of compensation for prejudices
suffered”.
124. The Respondent State argues that the decision to annul his
passport, declare him an illegal immigrant and expel him, was taken
following investigations by the immigration authorities and implemented
in accordance with the law. Therefore, for the Respondent State, the
Application must be dismissed.
125. Article 27(1) of the Protocol stipulates that “If the Court finds that
there has been a violation of a human or peoples’ right, it shall make
fair compensation or reparation”.
126. Rule 63 of the Rules stipulates that: “The Court shall rule on
the request for the reparation, submitted in accordance with Rule
34(5) of these Rules, by the same decision establishing the violation
of a human and peoples’ right or, if the circumstances so require, by a
127. The Court holds that it does not have the power to rule on the
requests made by the Applicant in paragraph 122 to annul the decision
of the Respondent State to expel him.
128. The Court notes that the Parties did not make submissions on
other forms of reparation. It will therefore determine this issue at a later
stage of the proceedings.
IX. Costs
129. The Court notes that in their pleadings, neither of the Parties
made submissions concerning costs.
130. According to Rule 30 of the Rules “Unless otherwise decided by
ruling on other forms of reparations.
X. Operative part

The Court,
unanimously
on jurisdiction:
i. dismisses the objection on lack of jurisdiction;
ii. declares that it has jurisdiction;
on admissibility:
iii. dismisses the objection on inadmissibility;
iv. declares the Application admissible;
on the merits
v. declares that the Respondent State arbitrarily deprived the
Applicant of his Tanzanian nationality in violation of Article 15(2) of the
Universal Declaration of Human Rights;
vi. declares that the Respondent State has violated the Applicant’s
right not to be expelled arbitrarily;
vii. declares that the Respondent State has violated Articles 7 of
the Charter and 14 of the ICCPR relating to the Applicant’s right to be
heard;
viii. orders the Respondent State to amend its legislation to provide
individuals with judicial remedies in the event of dispute over their
citizenship;
ix. orders the Respondent State to take all the necessary steps to
restore the Applicant’s rights, by allowing him to return to the national
territory, ensure his protection and submit a report to the Court within
forty-five (45) days.
x. Reserves its Ruling on the prayers for other forms of reparation
and on costs.
xi. Allows the Applicant to file his written submissions on other
forms of reparation within thirty (30) days from the date of notification of
this Judgment; and the Respondent State to file its submissions within
thirty (30) days from the date of receipt of the Applicant’s submissions.
Gombert v Côte d’Ivoire (jurisdiction and admissibility)

(2018) 2 AfCLR 270
Application 038/2016, Jean-Claude Roger Gombert v Republic of Côte

d’Ivoire
Judgment, 22 March 2018. Done in English and French, the French text
Judges: KIOKO, NIYUNGEKO, GUISSE, BEN ACHOUR, MATUSSE,
Case declared inadmissible in accordance with Article 56(7) of the African
Charter as same claim already decided by the ECOWAS Community
Court of Justice.
Admissibility (exhaustion of local remedies, domestic courts’ violation
of Charter rights, 29; submission within reasonable time, 35-38; previous
settlement, 45-49, 52-59)
Separate Opinion: KIOKO and MATUSSE
Admissibility (identity, corporate veil, 3, 5, 9-13, 19)
I. The Parties
1. The Applicant, Mr Jean-Claude Roger Gombert, is Company

Director of French nationality, domiciled in Abidjan.
2. The Application is brought against the State of Côte d’Ivoire
(herein-after referred to as “Respondent State”) which became a Party
to the African Charter on Human and Peoples’ Rights (herein-after
referred to as “the Charter”) on 31 March 1992 and to the Protocol
on 25 January 2004. The Respondent State on 23 July 2013 made
the declaration prescribed in Article 34(6) of the Protocol allowing
individuals and Non-Governmental Organizations to lodge applications
directly with the Court. It also became a Party to the International
Covenant on Civil and Political Rights (herein-after referred to as “the
ICCPR) on 26 March 1992.
3. The Application has its origin in a contractual dispute between

private Parties which was brought before the Respondent State’s
courts. The Applicant mainly alleges the violation by the said courts, of
his rights to a fair trial as guaranteed by the Charter.
Gombert v Côte d’Ivoire (jurisdiction and admissibility) (2018) 2 AfCLR 270 271
A. The facts of the matter
4. The Applicant alleges that within the framework of the activities

of AFRECO and AGRILAND companies, of which he is founder and
majority shareholder, he entered into an agreement with Mr Koné
DOSSONGUI, owner of the industrial citrus plantation ANDRE located
in Guitry, in the region of Divo in Côte d’ Ivoire, for the sale of the said
property.
5. The agreement was concluded on 9 June 1999, and the price of
Two Hundred Million (200,000,000) CFA Francs was agreed. The vendor
received the sum of One Hundred and Sixty Million (160,000,000)
CFA Francs but refused to sign the deed of sale prepared by his own
Solicitor. The Applicant, who was already occupying the plantation with
the approval of the mortgagees, filed a complaint with the competent
courts to compel the vendor to honour his commitment.
6. As a result of the numerous proceedings undertaken between
February 2000 and June 2014 by both the Applicant and the vendor,
several decisions were rendered by the Ivorian courts, including, inter
alia the Divo Court, the Daloa Court of Appeal and the Supreme Court
of Côte d’Ivoire. Whereas some of the said decisions were in favour of
the Applicant, others were not.
7. Believing that some of those decisions violated his rights, the
Applicant referred the matter to ECOWAS Court of Justice which
delivered two Judgments. By the first judgement referenced ECW/
CCJ/JUD of 25 April 2015 on the merits of the case, the Court declared
that the Application was baseless. By the second Judgment referenced
ECW/CCJ/RUL/08/16 of 17 May 2016, the Court also declared
baseless the Application filed by the Applicant in respect of the failure
to adjudicate on the case. Dissatisfied, the Applicant decided to bring
the matter before this Court by an Application registered at the Registry
on 11 July 2016.
8. The Applicant alleges:

“a. that his right to be tried by an impartial court as protected
by Article 7(1)(d) of the Charter has been violated owing
to:
i. the fact that the Daloa Court of Appeal discarded the
agricultural appraisal it had ordered and sought to
terminate the pre-hearing at the behest of the opposing
party;
ii. the nullification of the receivers’ decisions and the
rejection of his request for reinstatement by the special

jurisdiction of the Section of the Divo Court;
iii. the appointment of a new counsellor for the pre-hearing;
the interruption of the previously ordered appraisal and
the closure of the pre-hearing by the Abidjan Court of
Appeal;
iv. the fact, on the one hand, that the Supreme Court rejected
the Applicant’s claims in their entirety while granting all
the claims brought by his opponent and, on the other,
the fact that the President of the Judicial Chamber
moved the case from the 2nd Civil Chamber B to the 1st
Civil Chamber whose President has become the new
Counsellor-Rapporteur;
b. that his right to equality before the law protected by Article
7 of the Universal Declaration of Human Rights, Article 3
of the Charter and Article 2(2) of the Constitution has been
violated due to the rejection of his supplementary pleadings
by the Supreme Court on the grounds of inadmissibility
whereas the said pleadings have been filed within the
statutory time limit;
c. that his right to effective remedy protected by Article 8 of
the Universal Declaration of Human Rights, Article 3(4)
of the ICCPR and Article 7(1) of the Charter has been
violated due to the absence of remedies under Ivorian law
against Supreme Court decisions dismissing a case.”
9. The Application was filed with the Registry of the Court on 11

July 2016. By a letter dated 19 July 2016, the Registry acknowledged
receipt thereof and notified the Applicant of its registration.
10. By a letter dated 29 September 2016, the Registry served the
Application on the Respondent State and invited the latter to forward
the names of its representatives, as well as its Response, within the
time limit prescribed by the Rules of Court.
11. By correspondence dated 18 October 2016, the Registry
transmitted the Application to the other entities mentioned in Rule
35(3) of the Rules.
12. On 3 January 2017, the Registry received the Response of the
Respondent State which raised objection to the admissibility of the
Application and prayed the Court, in the alternative, to declare the
Application baseless. By a letter dated 17 January 2017, the Registry
transmitted this Response to the Applicant.
13. On 16 February 2017, the Registry received the Applicant’s

Reply, receipt of which it acknowledged and transmitted a copy thereof
to the Respondent State on 17 February 2017 for information.
14. At its 44th Ordinary Session held in March 2017, the Court
decided to close the pleadings. By correspondence dated 3 April 2017,
the Registry notified the Parties of the closure of pleadings effective
from that same date.

“i. declare that it has jurisdiction to hear the case;
ii. declare that his Application is admissible;
iii. rule that he is the owner of AGRILAND, of which he holds
ninety-five percent (95%) of the share capital;
iv. rule that the human rights violations against AGRILAND
affect him directly;
v. find that he and his company are victims of human rights
violations committed by Ivorian justice;
vi. find the State of Côte d’Ivoire responsible for the said
violations;
vii. order the Respondent State to pay him the amount of ten
billion (10,000,000,000) CFA Francs as damages;
viii. order the Respondent State to pay the entire cost of the
proceedings to Counsel Sonté Emile, Barrister at the
Court, as of right.”
“i. declare the Application inadmissible;
ii. declare the Applicant unfounded;
iii. declare and rule that there has not been any human rights
violation by the Respondent State;
iv. dismiss the Applicant’s claim for damages
v. order the Applicant to pay the entire cost of the
proceedings”.
V. On jurisdiction
17. Pursuant to Rule 39(1) of the Rules, the Court “shall conduct
preliminary examination of its jurisdiction”. The Court must, in that
regard, satisfy itself that it has personal, material, temporal and
territorial jurisdiction to hear the instant Application.
18. The Court notes that the Parties do not contest its jurisdiction,
and that in light of the evidence on file, the jurisdiction is established as
indicated hereunder:
“i. Personal jurisdiction: the Application was filed on 11 July
2016, that is, subsequent to the dates mentioned herein-
above. The Respondent State ratified the Protocol and
deposited the Declaration prescribed under Article 34(6);
ii. Material jurisdiction: the Applicant alleges mainly the
violation of the provisions of the Charter and of the ICCPR,
instruments to which the Respondent State is a Party.
iii. Temporal jurisdiction: the alleged violations started prior
of the deposit of the declaration, but continued thereafter,
that is, up to 5 June 2014, the date on which the Supreme
Court delivered the Judgment being challenged by the
Applicant.1
iv. Territorial jurisdiction: the facts occurred on the territory of
the Respondent State which does not contest the same.”
19. In view of the aforesaid, the Court holds that it has jurisdiction to
examine this Application.
56 of the Charter”. Pursuant to Rule 39 of its Rules, “the Court shall
conduct preliminary examination…of the admissibility of the Application
in accordance with Articles 50 and 56 of the Charter and Rule 40 of
these Rules”.
21. Rule 40 of the Rules which in essence reproduces the contents
of Article 56 of the Charter stipulates that:
“In terms of Rule 40 of the Rules of Court, which in substance reproduces
the content of Article 56 of the Charter, Applications shall be admissible if
they fulfil the following conditions:
1. Indicate their authors even if the latter request anonymity,

2. Are compatible with the Charter of the Organization of African
Unity or with the present Charter,
3. Are not written in disparaging or insulting language,
4. Are not based exclusively on news discriminated through the
1 Application 013/2011, Judgment of 21 June 2013 on preliminary objection, Norbert

Zongo et al v Burkina Faso, para 62; Application 001/2014, Judgment of 18
November 2016 on the Merits, APDH v Côte d’Ivoire, para 66
mass media,
5. Are sent after exhausting local remedies, if any, unless it is
obvious that this procedure is unduly prolonged,
6. Are submitted within a reasonable period from the time local
remedies are exhausted or from the date the Commission is
seized of the matter, and
7. Do not deal with cases which have been settled by the States
involved in accordance with the principle of the Charter of the
United Nations, or the Charter of the Organization of African
Unity or the provision of the present Charter.”
22. The Court notes that, with regard to the admissibility of the
Application, the Respondent State raises three preliminary objections
concerning exhaustion of local remedies, belated referral of the case
to the Court and the previous settlement of the dispute in accordance
with the principles of the United Nations Charter, the Constitutive Act
of the African Union and the African Charter on Human and Peoples’
Rights.
A. Objection on the grounds of non-exhaustion of local

remedies
23. The Respondent State contends that, by instituting actions before

domestic courts against La Compagnie de Gestion et de Participation -
“CGP”, a private law body corporate, the Applicant did not act appropriately
and hence has not exhausted the local remedies. It argued that the local
remedies should instead have been sought against the Ivoirian State,
within the meaning of Article 56 of the Charter and Rule 40 of the Rules
of Court.
24. In response, the Applicant argues that, whereas remedies should
be available and sufficient, there is no remedy in the legal corpus of
the Respondent State in respect of the legal situations submitted for
consideration before this Court.
25. The Applicant further avers that he has exhausted the local
remedies with respect to the case between Société AGRILAND and
Société CGP. He cites the decisions rendered by various domestic
courts, including the Divo Court of First Instance, the Supreme Court
and the Courts of Appeal of Daloa and of Abidjan. The Applicant
refers, in particular, to Judgement No. 405/14 of 5 June 2014 whereby
the 1st Civil Chamber B of the Judicial Chamber of the Supreme
Court, dismissed his appeal for annulment, after having excluded his
supplementary pleadings from the hearing.
26. The Court notes that the evidence on file shows that the highest
competent court, that is the Supreme Court of Côte d’Ivoire, dismissed
the cassation application filed by the Applicant, thus bringing an end to
the procedures before the national courts.

27. However, the Respondent State alleges failure to exhaust
the local remedies on the grounds that the relevant procedures
were directed against a private entity. On this point, the Court notes
that exhaustion of local remedies proceeds from the use of all the
procedural steps provided under the legal system of the Respondent
State for the settlement of issues brought before the competent
national authorities.2 Viewed from this perspective, the local remedies
are supposed to be directed against the entity which the Applicant
considers to be responsible for the alleged violation, be it an individual,
a private law entity or a public entity, such as the State.
28. In the instant case, the Court notes that the initial dispute was
between AGRILAND of which the Applicant alleges to be the founder
and majority shareholder, and CGP Company. Since the two Parties
are private law bodies corporate, domestic proceedings could not have
been instituted against the State of Côte d’Ivoire, except to prove the
latter’s liability. It is therefore proper that the proceedings before the
domestic courts were instituted against CGP and not the State.
29. On the other hand, in the proceedings before this Court, the
Applicant alleges the Respondent State’s liability for the domestic
courts’ violation of his rights guaranteed under the Charter. On this
point, the Respondent State does not contest that the Applicant
has exercised all the available remedies, since the Supreme Court
Judgment is not subject to appeal.
30. In view of the aforesaid, the Court holds that the local remedies
have been exhausted, and dismisses the admissibility objection raised in
this regard.
B. Objection on the grounds of failure to file the

Application at a reasonable time
31. In its Response, the Respondent State recognises that the Court
“has the discretionary power to determine the time limit within which
Applications should be brought”.
32. The Respondent State alleges, however, that the instant
Application was not filed within reasonable timeframe. It contends in this
regard that whereas the Supreme Court Judgment to which Application
refers, was rendered on 5 June 2014, this Court was seized of the
matter only on 11 July 2016, that is, two years and one month later.
33. In reply, the Applicant recalls that the provisions of Rule 40(6)
2 Zongo, Judgment on preliminary objections, supra, paras 68-70; APDH Judgment

supra, para 68-70. Judgment APDH, supra, para 93-106.
of the Rules do not confine actions brought before this Court to a

specific time limit beyond which the Application may be found to be
belated and inadmissible. According to the Applicant, Article 56(7) of
the Charter offers him the option of referring the matter first to the
Community Court of Justice, ECOWAS “before going continental” [sic].
Accordingly, the Applicant alleges that the timeframe being challenged
by the Respondent State is perfectly reasonable, especially as it
concerns the duration of the proceedings before ECOWAS Court of
Justice.
34. According to Article 56(6) of the Charter, Applications shall
“be filed within a reasonable time from the date local remedies were
exhausted or from the date set by the Court as being the commencement
of the time limit within which it shall be seized with the matter”.
35. The Court notes that, as it held earlier, the internal remedies have
been exhausted in the instant case. The starting point for computing
the reasonable time provided under Article 56(6) is therefore the date
the Judgement was rendered by the Supreme Court, which is 5 June
2014.
36. The Court recalls that the Application was brought before it
on 11 July 2016. While noting that the period that elapsed between
the above date and the date the Court was seized is two (2) years
and one (1) month, it lies with this Court to determine whether this
period is reasonable within the meaning of Article 56(6) of the Charter.
According to its jurisprudence on reasonableness of the time, the Court
has adopted a case-by-case approach.3
37. The Court notes that the remedy exercised before ECOWAS
Court of Justice is not a remedy to be exhausted within the meaning
of Articles 56(5) and 56(6) of the Charter. However, since Article 56(7)
has offered him an option, the fact that the Applicant brought the case
before ECOWAS Court of Justice, before seizing this Court is a factor
that may be taken into consideration in assessing the reasonableness
of the period mentioned in Article 56(6).4
38. In view of the aforesaid, the Court holds in conclusion that the
timeframe of two years and one month used by the Applicant to file
the case before it, is reasonable within the meaning of Article 56(6).
It accordingly dismisses the Respondent State’s objection based on
3 Zongo, Judgment supra, para 121; Application No.005/2013 Judgment of

20/11/2015 on the Merits, Alex Thomas v United Republic of Tanzania, paras 73-
74.
4 See Application 003/2015, Judgment of 28/09/17 on the Merits in Kennedy Owino
Onyachi and Charles John Mwanini Njoka v Tanzania, para 65. It is the opinion
of this Court that when the Applicant opts to exercise another remedy such as the
review remedy, the period of seizure should begin to count from the date the said
remedy was exhausted, that is, the date of dismissal of the application for review.
belated referral.
C. Objection regarding previous settlement of the dispute

by the ECOWAS Court of Justice
39. The Respondent State submits that the instant Application

is inadmissible given that the Applicant has earlier, using the same
wording, brought the matter before the Community Court of Justice,
ECOWAS, which, on two occasions, dismissed his prayer relying on
the legal instruments mentioned in Article 56(7).
40. The Respondent State alleges further that the same objection
relates to the referral of this case to the Centre international pour le
règlement des différends relatifs aux investissements (CIRDI) which
refused to register the Application on the ground that the matter clearly
exceeded its jurisdiction.
41. In reply, the Applicant argues that ECOWAS Court of Justice did
not, in any of its two judgements, apply the instruments mentioned in
Article 56(7) of the Charter. In this regard, the Applicant submits that,
in its first decision, ECOWAS Court of Justice held that evidence of
the alleged violations has not been provided, whereas for the second
decision, that Court simply reiterated the findings contained in the first
decision.
42. The Applicant further contends that the instant Application “is not
entirely the same as the one filed with ECOWAS Court of Justice”; that
in the latter, he “did not plead the fact that the Daloa Court of Appeal’s
refusal to exercise jurisdiction amounted to a violation of human rights”.
The Applicant submits in conclusion that “the instant Application which
is brought for the first time does not fall within the provisions of Article
40(7) referred to above”.
43. In terms of Article 56(7) of the Charter which is reiterated by
Rule 40(7) of the Rules of Court, Applications shall be considered if
they “do not deal with cases which have been settled… in accordance
with the principles of the Charter of the United Nations, or the Charter
of the Organization of African Unity, or the provisions of the present
Charter”.
44. In light of the aforesaid provisions, the Court is of the opinion that
examining compliance with this condition amounts to making sure both
that the case has not been “settled” and that it has not been settled “in
accordance with the principles” under reference.
45. The Court notes that the notion of “settlement” implies the
convergence of three major conditions: 1) the identity of the Parties; 2)
identity of the applications or their supplementary or alternative nature
or whether the case flows from a request made in the initial case; and
3) the existence of a first decision on the merits.5

46. As regards the first condition, it is necessary to establish only
the identity of the Applicants, as there is no doubt that the State of
Côte d’Ivoire is the Respondent in both cases. The Applicant before
this Court, à priori, is Mr. Jean-Claude Roger GOMBERT whereas
AGRILAND Company had acted before the Community Court of
Justice, ECOWAS. However, a closer scrutiny of the evidence on
file reveals that before the ECOWAS Court of Justice, the Company
AGRILAND acted as the Applicant “in the actions and proceedings of
its Chairman and Chief Executive Officer, Mr. Jean-Claude GOMBERT
having elected domicile in the Chambers of his Counsel Advocate Emile
SONTE, lawyer at the Court of Appeal of Abidjan “. The Application
before this Court was, for its part, filed by “Mr GOMBERT Jean-Claude
Roger for whom domicile is elected in the Chambers of his Counsel,
Advocate SONTE Emile, lawyer at the Court of Appeal of Abidjan”.
47. The Court affirms that, as a human and peoples’ rights court,
it can make a determination only on violations of the rights of natural
persons and groups to the exclusion of private- or public law entities.
48. In this case, the Court notes that, despite the fact that AGRILAND
was the Applicant before ECOWAS Court of Justice, the rights claimed
by that company directly affect the Applicant’s individual rights before
the Court given the fact that he is the President, Chief Executive Officer,
founder and majority shareholder of this Company.
49. In view of the foregoing, the Court finds that the Parties are
identical and that, as such, the first condition has been met.
50. With regard to the second condition, namely, identity of the
claims, this Court notes that in the case examined by ECOWAS Court
of Justice, the Applicant prayed the Court to “find and rule that the
decisions rendered by the Ivorian courts … constitute serious violations
of his rights” guaranteed, inter alia, by the Charter and “to order the
State of Côte d’Ivoire to pay him the sum of two billion (2,000,000,000)
CFA Francs as damages” as well as pay the costs of the proceedings.
These claims are identical with those made before this Court with the
exception of the claim regarding the partiality of the Daloa Court of
Appeal.
51. In its Reply, the Applicant argues that the present Application “is
5 See Communication 409/12 Luke Munyandu Tembani and Benjamin John Freeth
(represented by Norman Tjombe) v Angola and thirteen Others (AfCHPR 2013)
para 112; Reference No 1/2007 James Katabazi et al v Secretary General of
the East African Community and Another (2007) AHRLR 119 (EAC 2007) paras
30-32; Application 7920, Judgment of 29 July 1988, Velásquez-Rodríguez v
Honduras CIADH para 24(4); Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia-Herzegovina v Serbia-and-
Montenegro) Judgment of 26 February 2007, ICJ., Collection 2007, p 43.
not entirely identical to that submitted to ECOWAS Court of Justice”

given that the Court did not “refer to the situation whereby the Court
divested the Daloa Court of Appeal, as a case of human rights violation”.
Noting that this claim was not expressly invoked before the ECOWAS
Court of Justice, this Court observes that the claim is not detachable
from those claims examined by ECOWAS; and as such, the issue
in reality is one of a bloc of claims. Going by the accepted notion of
“settlement” adopted above, the identity of claims also extends to their
additional and alternative nature or whether they derive from a claim
examined in a previous case.
52. In the instant case, the Court notes that, by his own contention,
the Applicant “convinced of the flagrant partiality of the First Civil
Chamber of the Daloa Court of Appeal” brought before the Supreme
Court of Justice an application for divestiture on the grounds of
legitimate suspicion. According to the Applicant, the Supreme Court
ruled in that direction, divesting the Daloa Court of Appeal and moving
the case to Abidjan Court of Appeal.
53. In the circumstances, the Court is of the opinion that in
adjudicating the allegation of violation arising from the proceedings
before the Abidjan Court of Appeal, ECOWAS Court of Justice covered
the settlement of the allegation of violation founded on the partiality of
the Daloa Court of Appeal, the two allegations forming a set of claims.
The Court therefore finds that the claims are identical and that the
second condition has been met.
54. Lastly, as regards the third condition, this has also been met
since the Parties agree that ECOWAS Court of Justice rendered two
decisions on the merits of the same case. The decisions include, in
particular, Judgment No. ECW/CCJ/JUD of 24 April 2015 on the merits
of the case and Judgment No. ECW/CCJ/RUL/ 08/16 of 17 May 2016
on the Application in respect of failure to adjudicate on the aforesaid
Judgment.
55. In view of the aforesaid, it follows that the instant Application has
been settled by ECOWAS Court of Justice within the meaning of Article
56(7) of the Charter regarding the first condition set by this Article.
56. What remains to be determined is whether the settlement was “in
accordance with the principles” invoked in Article 56(7). In this respect,
this Court is of the opinion that, of the three instruments mentioned in
that Article, the Charter is applicable in this case.
57. In light of the evidence on file, this Court notes that ECOWAS
Court of Justice examined the case on the basis of the following
provisions of the Charter:
i. Equality of justice, fair trial and impartiality of justice (Article
7 of the African Charter): the Court defined the rights
concerned, pronounced itself on their violation in light of
the facts related by the Applicant and the conduct of the

national courts, and then declared the claim unfounded
by finding either that the right in question had not been
infringed or that the evidence thereof was produced.6
ii. Equality before the law (Article 3 of the African Charter):
after defining the rights concerned, the Court, recalling
its jurisprudence, examined the allegations of violation in
light of the facts and the conduct of the national courts.
Like the previous point, it declared the claim unfounded
for lack of evidence.7
iii. Effective remedy before national courts (Article 7(1) of
the African Charter): by the same reasoning as in the
previous claims, the Court ruled in a similar direction.8
58. This Court, after comparison, notes that ECOWAS Court of
Justice examined the case on the basis of the same provisions of the
Charter as those relied upon by the Applicant in this Application. The
case has, consequently, been settled in accordance with the principles
of one of the instruments invoked in Article 56(7) of the Charter, as
regards the second condition set by this Article.
59. From the foregoing, the Court holds in conclusion that the
instant Application has not fulfilled the condition set by Article 56(7)
of the Charter. It therefore upholds the inadmissibility objection on the
grounds of an earlier settlement of the dispute by ECOWAS Court of
Justice.
60. Having ruled in this direction, the Court holds that there is no
need to make a determination on the other condition of admissibility
and on the objection raised on the grounds of settlement of the matter
by the International Center for the Settlement of Investment Disputes
(CIRDI).
61. The Court notes that, according to Article 56 of the Charter, the
conditions of admissibility are cumulative and, as such, when one of
them is not fulfilled, it is the entire Application that cannot be received.
In the instant case, the Application does not meet the conditions set
forth in Article 56 (7) because the matter has previously been settled
by ECOWAS Court of Justice.
62. Consequently, the Court declares the Application inadmissible.
6 Société AGRILAND v The State of Côte d’Ivoire, Judgment No. ECW/CCJ/JUD of

24 April 2015, paras 36-39.
7 Idem, paras 40-47.
8 Idem, paras 48-52.
VII. Costs
63. According to Rule 30 of the Rules of Court, “Unless otherwise

decided by the Court, each party shall bear its own costs”.
64. The Court notes that in the present procedure, each Party
has prayed the Court to order the other to pay the costs. In the
circumstances, the Court holds that each party shall bear its own costs.
65. For these reasons

The Court,
unanimously
on jurisdiction:
i. declares that it has jurisdiction;
on admissibility
ii. dismisses the inadmissibility objection for non-exhaustion of the
local remedies;
iii. dismisses the inadmissibility objection for failure to submit the
Application within a reasonable time;
iv. upholds the inadmissibility objection on the grounds that the
dispute has been settled within the meaning of Article 56(7) of the
Charter;
v. consequently rules that the Application is inadmissible;
on costs
vi. rules that each party shall bear its own cost.
_____________________________
Joint Separate Opinion: KIOKO and MATUSSE
1. We agree with the Majority Judgment, of which we are both part,

in all respects that the Application, as filed by Mr Jean-Claude Roger
Gombert against the Republic of Côte d’Ivoire, is inadmissible on the
grounds that the dispute has been “settled” within the meaning of
Article 56(7) of the African Charter on Human and Peoples’ Rights. The
provision prescribes that an Application filed before the Court should
“not deal with cases which have been settled …in accordance with the
principles of the Charter of the United Nations, or the Charter of the

Organization of African Unity or the provisions of the present Charter.”
2. We have, however, felt the need to make our position known
with regard to the issue of the identity of the Applicant and his company
AGRILAND which pursuant to Article 56(1) or Rule 40(1) of the Rules is
an important admissibility criterion. This is an issue that arose several
times in the Judgment.
3. We are of the opinion that the Court should have addressed the
issue at the onset and given an elaborate explanation as to why the
Applicant and AGRILAND are deemed to be the same person for the
purposes of the Application. Though the Applicant and the company
are two separate persons, the Court opted to lift the corporate veil of
AGRILAND and take the two as one without adequately expatiating
on how it arrived at this conclusion. In our considered view, the
justifications the Court gave to support its positions are insufficient for
the following reasons.
4. First, the Court only mentioned the fact that the Applicant and
his company, AGRILAND,1 are two different personalities at a later
stage in the judgment. Given the importance of clearly identifying the
identity of the Parties for the Court’s assessment of the Application,
this exercise should have been made and clearly spelt out at earlier, at
least, at admissibility stage (paragraphs. 21-22).
5. Secondly, there are instances where the Court assumed that the
Applicant was the one who filed the case before the ECOWAS Court
of Justice although it is patently clear from the record that he did not
and that it was rather filed by his company, AGRILAND. Had the Court
clarified this matter earlier, there would not have been such confusion
as to the true identity of the Applicant.
6. Lastly, the issue of identity of Parties is something, which has
been dealt with by other international courts in similar cases. The
Court’s reticence to do the same and reach conclusions without having
clearly identified the true identity of the Applicant for no cogent reasons
is thus at odds with international jurisprudence. We are of the opinion
that the Court should have drawn inspiration from similar jurisdictions
that have relevant jurisprudence in this regard.
7. In this regard, we refer to two particular cases, namely Cantos
v Argentina and Agrotexim and Others v Greece.2 Both these cases
dealt with the issue of the identity of individual shareholders and the
1 Application No. 038/2016. Judgment of 22/03/2018, Jean-Claude Roger Gombert

v Republic of Côte d’Ivoire, para 46.
2 Inter-American Court of Human Rights, case of Cantos v Argentina Judgment of
September 7 2001 (Preliminary Objections) and Agrotexim and Others v Greece
14807/89, (1996) EHRR 250, [1995] ECHR 42.
company as well as the issue of the corporate veil. In both cases

the Inter-American Court of Human Rights and the European Court
of Human Rights, respectively, were faced with the conundrum of
whether or not individual shareholder(s) can be regarded as being the
same person as the company.
8. Although the approaches of both Courts in the cases mentioned
above were not the same, they both gave detailed reasons for how
they reached their conclusions. 3
9. The Majority Judgment’s failure to elaborate on why the Court
reached the decision it did in determining that the Applicant and
AGRILAND are deemed to be the same person potentially leaves a
wide room for various interpretations.
10. This concern becomes more troublesome when we look into the
issue of admissibility in terms of Article 56(6) of the Charter, where
the Court held that, local remedies had been exhausted although the
Party which exhausted remedies at the local level was AGRILAND, as
opposed to the Applicant before the Court.
11. We take cognisance of the fact that at the national level the
company or corporate veil is lifted under very strict conditions and
therefore the shareholders generally do not bear individual responsibility
at that level for any violations by their companies but such shareholders
can come before this Court to assert violations of their individual rights
if they can demonstrate that the Respondent State had an opportunity
to rectify such violation through its domestic judicial procedures.4 In
our considered view, such an approach would ensure that the Court
adopts a cautious approach when applying Article 56(6) of the Charter
and Rule 40(1)in such circumstances.
12. Furthermore, the fact that the shareholders can come before
the African Court to assert violations of their individual rights is an
illustration of how the corporate veil can be lifted and based on this
the identity of the shareholders and the company in question will be
deemed to be the same.
13. It is based on the above-mentioned consideration that the Court
held that local remedies had been exhausted because the Applicant
and his company AGRILAND are one person. Furthermore, since the
Applicant and AGRILAND were found to be one person it would have
not been necessary for the Applicant to institute a case in local courts
based on the same facts and arising from the same matters as the
3 Cantos v Argentina (Preliminary Objections), paras 27- 31 and Agrotexim and

Others v Greece paras 62 and 66.
4 Application No 006/2012. Judgment of 28/05/2017, African Commission on Human
and Peoples’ Rights v Republic of Kenya, para 94.
case that was instituted by his company AGRILAND.

14. Now moving on to the issues of the identity of the Parties as
one of the conditions to be fulfilled for res judicata to apply under
Article 56(7), it is important to note the positions of the aforementioned
jurisprudence of the Inter-American Court of Human Rights and
European Court of Human Rights.
15. In the case of Cantos v Argentina, the Inter-American Court of
Human Rights stated the following:
“Argentina asserts that legal entities are not included in the American
Convention and, therefore, its provisions are not applicable to them, since
they do not have human rights. However, the Court observes that, in
general, the rights and obligations attributed to companies become rights
and obligations for the individuals who comprise them or who act in their
name or representation.”5
16. In the case of Agrotexim and Others v Greece the European

Court of Human Rights noted the following:
“The Applicants complaint was based exclusively on the proposition that
the alleged violation of the Brewery’s right to the peaceful enjoyment of its
possessions had adversely affected their own financial interests because
of the resulting fall in the value of their shares. The Applicants considered
that the financial losses sustained by the company and the latter’s rights
were to be regarded as their own, and that they were therefore victims,
albeit indirectly, of the alleged violation. In sum, they sought to have the
company’s corporate veil pierced in their favour.”6
17. The European Court of Human Rights further noted that “the
piercing of the “corporate veil” or the disregarding of a company’s legal
personality will be justified only in exceptional circumstances.”7
18. Based on the above cited passages we are of the opinion that
one of the reasons why the Applicant’s identity was said to be the same
as that of his company in this case is because the corporate veil had
been lifted and as a result of this, the rights and obligations which
were attributed to the company became the rights and obligations
for the Applicant, which in turn meant that the two have the same
identity. These are the same observations that were made by the
Inter-American Court on Human Rights and the European Court on
Human Rights in the above-mentioned passages. It is therefore our
opinion that the above-mentioned views should have been adopted
5 Cantos v Argentina Judgment of September 7 2001 (Preliminary Objections), para

27.
6 Agrotexim and Others v Greece 14807/89, (1996) EHRR 250, [1995] ECHR 42,
para 63.
7 Agrotexim and Others v Greece 14807/89, (1996) EHRR 250, [1995] ECHR 42,
para 66.
and explicitly stated in the judgment of the majority.

19. One last thing we would like to make emphasis on regarding
Article 56(7) of the Charter is the fact that the reason why the corporate
veil was lifted and the identity of the Applicant and his company was
considered the same in the national level is because it was noted in the
judgment (in the Applicants prayers) that the Applicant holds ninety five
percent (95%) of the company and is the President, Chief Executive
Officer, founder and majority shareholder of AGRILAND.8 This is to say
that the company’s losses are his losses and the company’s gains are
also his gains. We feel that the judgment should have emphasised this
point and clarified it.

v Republic of Côte d’Ivoire, para 15(iii) and para 48.
Nguza v Tanzania (merits) (2018) 2 AfCLR 287 287
Application 006/2015, Nguza Viking (Babu Seya) and Johnson Nguza

(Papi Kocha) v United Republic of Tanzania
MATUSSE, MUKAMULISA, MENGUE, CHIZUMILA and BENSAOULA
The Applicants had been convicted and sentenced for rape and unnatural
offences. They brought this Application claiming violations of their rights
as a result of their detention and trial. The Court held that the Applicants
did not provide evidence of alleged procedural irregularities except for
the denial of access to witness’ statements and the opportunity to cross-
examine witnesses which constituted violations of the African Charter.
The Court further held that the failure to test the First Applicant for his
alleged impotence violated his rights under the African Charter.
Jurisdiction (conformity of domestic proceedings with Charter, 35, 36)
Admissibility (exhaustion of local remedies, extraordinary remedy,
52; issues not raised in domestic proceedings, 53; submission within
reasonable time, 61)
Evidence (burden of proof, 71, 81, 124; court record, 90)
Cruel, inhuman or degrading treatment (incommunicado detention,
evidence, 73)
Fair trial (prompt information about charges, 80; defence, access to
witness statements, 99, 100; medical tests, 116, 117)
Reparations (release, moot, 141)
I. The Parties
1. The Applicants, Nguza Viking (Babu Seya), hereinafter referred
to as the First Applicant and Johnson Nguza (Papi Kocha) hereinafter
referred to as the Second Applicant, allege that they are citizens of the
Democratic Republic of Congo who lived and worked as musicians in
Dar es Salaam, Tanzania. The Second Applicant is the biological son
of the First Applicant.
(hereinafter referred to as the “Charter”) on 21 October 1986 and also
became a Party to the Protocol to the African Charter on Human and
Peoples’ Rights on the Establishment of an African Court on Human
February 2006. Furthermore, the Respondent State deposited the
declaration prescribed under Article 34(6) of the Protocol on 29 March
2010. The Respondent State became a Party to the International

Covenant on Civil and Political Rights (hereinafter referred to as “the
Covenant”) on 11 June 1976.
A. Facts of the Matter
3. The Applicants allege that they were arrested by police officers

on 12 October 2003 and taken to the Magomeni Police Station in the
United Republic of Tanzania. The Applicants, Nguza Mbangu and
Francis Nguza, who are also the First Applicant’s sons and another
person (later identified as a teacher), were arraigned before the Resident
Magistrate’s Court of Kisutu, Dar es Salaam, on 16 October 2003 on a
10-count charge of rape and an 11-count charge of unnatural offence
in Criminal Case Number 555 of 2003. Nguza Viking (Babu Seya)
was the First accused, Johnson Nguza (Papi Kocha) was the Second
accused, Nguza Mbangu was the Third accused, Francis Nguza was
the Fourth accused and the teacher was the fifth (5th) accused, in that
case. They pleaded not guilty to all the charges. The ten (10) alleged
victims were children aged between six (6) and ten (10) years old, all
school pupils in the same class at Mashujaa Primary School, Sinza in
Kinondoni District. It was alleged that the ten (10) victims were gang-
raped and sodomised in turn by five (5) adults, including the Applicants.
4. On 25 June 2004, save for the Fifth accused, the Applicants and
the Third and Fourth accused were found guilty of all charges against
them and sentenced to life imprisonment and to pay a fine of Tanzania
Shillings two (2) million to each of the victims. The Applicants and the
Third and Fourth accused then filed an appeal before the High Court
of Tanzania, in Criminal Appeal No. 84 of 2004. In its judgment of 27
January 2005, the High Court held that the evidence adduced fits the
definition of gang rape and substituted the offence of unnatural offence
with that of gang rape and dismissed the appeal.
5. The Applicants and the Third and Fourth accused filed an appeal
before the Court of Appeal of Tanzania in Criminal Appeal No. 56 of
2005. The Court of Appeal’s judgment delivered on 11 February 2010,
quashed the conviction and sentence of the Third and Fourth accused
and convicted the First Applicant of two (2) counts of rape and both
Applicants of two (2) counts of gang rape and acquitted them on the
rest of the charges. The Court of Appeal substituted their life sentences
with sentences of thirty (30) years imprisonment.
6. On 9 April 2010, the Applicants filed a Notice of Motion for Review
of the decision of the Court of Appeal. This Application for Review,
Criminal Application No. 5 of 2010, was dismissed on 13 November

2013.
B. Alleged Violations
7. The Applicants allege that:

“i. They were not promptly informed of the charges brought
against them; they were held incommunicado for four (4)
days, deprived of the opportunity to contact a Counsel or
anyone else; they were maltreated by police officers who
insulted them; and it was only after they had spent some
time in custody that a police officer informed them of the
rape charges;
ii. The trial was not fair for various reasons. First, the
Court repeatedly dismissed their requests to adduce
evidence; the results of their blood and urine tests were
not presented in evidence before the Trial Court, even
though the alleged victims claimed to have been infected
with HIV/AIDS and gonorrhoea; and the First Applicant’s
prayer to the Court for a test to be conducted to establish
his impotence was rejected;
iii. The Court relied on the alleged victims’ statements as
evidence, whereas the said statements were memory
recollections of the room where the rape allegedly took
place and the Court did not take into account the fact that
the children and their parents had visited the house of the
accused persons before the hearing and had studied the
premises several times;
iv. The charges brought against them were fabricated in
vengeance and that the judgment rendered was not
based on credible evidence;
v. Their right to a fair trial was also flouted;
vi. The Respondent State violated all established human
rights and international law principles;
vii. Their trial was inequitable and marred by procedural
irregularities attributable to the national courts and other
State agencies and institutions; and
viii. The trial was unfair at all levels and that they were harassed
and their defence was not given due consideration, all
resulting in the violation of Articles 1, 2, 3, 5, 7(1)(b), 13
and 18(1) of the Charter.”
8. The Application was filed on 6 March 2015 and served on

the Respondent State by a notice dated 8 April 2015, directing the
Respondent State to file the list of representatives within thirty (30)
days and to file the Response to the Application within sixty (60) days
of receipt of the notice, in accordance with Rules 35(2) (a) and 35(4)(a)
of the Rules of Court (hereinafter referred to as “the Rules”).
9. By a notice dated 8 April 2015, the Application was transmitted
to the Executive Council of the African Union and to State Parties to the
Protocol through, the Chairperson of the African Union Commission in
accordance with Rule 35(3) of the Rules.
10. Following the Applicants’ request for legal aid, the Court directed
the Registrar to seek the assistance of the Pan African Lawyers’ Union
(PALU) in this regard; PALU accepted to represent the Applicants and
the Parties were duly notified by a notice dated 30 June 2015.
11. The Respondent State submitted the list of representatives
on 26 May 2015. It submitted its Response to the Application on 10
August 2015, out of time. The Court decided, in the interests of justice,
to accept the Response and it was served on the Applicants by a notice
dated 30 November 2015.
12. By a letter of 5 January 2016, the Applicants requested the Court
to grant them an extension of time to file their Reply to the Respondent
State’s Response; by a letter dated 11 March 2016, the Registry
notified the Applicants of the Court’s decision to grant them thirty (30)
days extension of time in that regard.
13. By an email dated 15 April 2016, PALU filed the Applicants’
Reply to the Response and this was served on the Respondent State
by a notice dated 19 April 2016.
14. By a notice dated 14 June 2016, the Registry informed the Parties
that the written procedure was closed with effect from 4 June 2016
and notified the Parties of the possibility of filing additional evidence
in accordance with Rule 50 of the Rules. Neither of the Parties sought
leave to file additional evidence on the basis of this Rule.
15. On 11 July 2016, the Respondent State sought leave to file a
Rejoinder to the Applicants’ Reply and since pleadings were already
closed, the Court did not deem it necessary to grant this request.
16. By a letter dated 16 March 2018 and received at the Registry
on the same date, the Applicants’ Counsel informed the Court
that the Applicants have been released from prison by way of a
Presidential pardon, on the occasion of the celebration marking the
56th Anniversary of the Respondent State’s Independence Day. This
letter was transmitted to the Respondent State on 19 March 2018, for
observations, if any.
17. By a letter dated 20 March 2018, the Respondent State informed

the Court that the Applicants had been released by way of Presidential
Pardon as evidenced in Constitutional (Special Remission of Whole
Punishment) Order, 2017 containing the instrument of remission of
punishment of sixty three (63) prisoners, including the Applicants.
The Respondent argued that the Parties should have been informed
that there was not going to be a public hearing on the matter, before
they were notified of the delivery of judgment. The Respondent State
also prayed that in view of the Applicants’ release from prison, the
Application should either be withdrawn before the delivery of the
Judgment or the delivery of Judgment be postponed. The Respondent
State makes this prayer on the basis that the Application has been
overtaken by events, the Applicants are satisfied with their release and
are appreciative of the Government’s decision in this regard and they
ought to be personally heard on their status and wishes regarding the
Application. This letter was transmitted to the Applicant on 21 March
2018 for their observations, if any.
18. By a letter dated 21 March 2018, the Registrar informed the
Respondent State that the Court draws their attention to the provisions
of Rule 27(1) of the Rules regarding the written and oral proceedings,
the provisions of Rule 58 regarding discontinuance of Applications and
that the Applicants’ prayers raised matters beyond their release on
which the Court has to pronounce itself.
19. By a letter dated 22 March 2018, the Applicants’ Counsel sent
their observations on the Respondent’s letter of 20 March 2018 where
they stated that the Rules envisage that it is not a requirement that
the Court hold public hearings for all cases. They also stated that they
have not received instructions from the Applicants to discontinue the
case and called for an expeditious delivery of the judgment.
20. By correspondence dated 22 March 2018, the Registrar informed
both Parties that the Court has confirmed the delivery of judgment for
23 March 2018.
21. The prayers of the Applicant, as submitted in the Application, are

as follows:
“44. We request the Court to facilitate us with free legal
representation or legal assistance under rule 31 and
Article 10(2) of the Protocol;
45. We the Applicants pray the Court under rule 45(1) and (2)
of the rules of Court on (Measures for taking evidence)
with a purpose of obtaining from an expert which in our
opinion may provide clarification of the fact of the case
and likely to assist the Court in carrying out its task.

a. Request of the persons, witness or expert likely to assist:
i. Parent of child/children of tender age (6 – 8 years)
ii. Teacher of school children of tender age (6 – 8 years)
iii. Paediatric expert
46. That, the Applicants are hereby reiterating the reliefs that
they seek from the honourable court.
i. A declaration that the respondent state violated their
rights as guaranteed under Article 1, Article 2, Article 3,
Article 5, Article 7(1)(b), Article 13 and Article 18(1) of the
ii. Consequently, an order compelling the respondent state
to release the Applicants from custody;
iii. That, the Applicants also seek an order for reparations
pursuant to Article 27(1) of the protocol and rule 34(5) of
the rules of court;
iv. Any other order or remedy that this honourable court may
deem fit to grant.”
22. In the Reply to the Respondent State’s Response, the Applicants
reiterate their prayers seeking the following orders from the Court:
“46.a. A Declaration that the Respondent State has violated
the Applicants rights under Articles 2, 3, 5, 7(1)(b), 13
and18(1) of the African Charter
b. To facilitate the production of the following witnesses
under this Honourable Court’s Rules 45(1) and (2):
i. Parents of child/children of tender age of 6-8 years.
ii. Teacher of school children of tender age 6-8 years
iii. Paediatric expert
c. An order compelling the Respondent State to release the
Applicants from custody.
d. An order for reparations
e. Any other orders or remedies that this Honourable Court
may deem fit.”
23. In the Response, with regard to the Court’s jurisdiction and
admissibility of the Application, the Respondent State prays the Court
to rule as follows:
“1. That the Application has not evoked the jurisdiction of the
Honourable Court.
2. That the Application has not met the admissibility
requirements provided under Rule 40(5) of the Rules of

the Rules of Court.
3. That the Application has not met the admissibility
requirements provided under Rule 40(6) of the Rules of
the Rules of Court.
4. That the Application be declared inadmissible and duly
dismissed.”
24. With regard to the merits of the Application, the Respondent
State prays that the Court grants the following orders:
“1. That the Court rejects the Applicants’ request to facilitate
the production of … witnesses
2. That the redress sought in the Application is rejected.”
25. The Respondent State also seeks orders that it has not violated
Articles 1, 2, 3, 5, 7(1)(b), 13 and 18(1) of the Charter.
26. The Respondent further seeks orders:
“10. That the Applicants continue to serve their sentences
accordingly.
11. That the Applicants be denied reparations
12. That this Application be dismissed in its entirety for lack of
merit.”
V. Applicants’ request for calling of witnesses by this

Court
27. The Applicants requested that the Court facilitates the production
of children of tender age and their parents and teacher as well as a
paediatric expert, as witnesses.
28. The Respondent State maintains that this request should be
rejected.
29. In view of the fact that the Court considered that the written
pleadings were sufficient to consider the matter, it did not deem it
necessary to grant the Applicants’ request.
VI. Jurisdiction
30. In accordance with Rule 39(1) of the Rules, “The Court shall
conduct preliminary examination of its jurisdiction…”.
A. Objection on material jurisdiction
31. In the Response to the Application, the Respondent State

submits that the Applicants are asking the Court to sit as a court of first
instance for some of their allegations, and to adjudicate as a supreme

court of appeal on matters of law and evidence that have been duly
determined by the Court of Appeal of Tanzania, the highest Court in
32. The Respondent State also submits that the Court is being
asked to reverse a decision of the Court of Appeal of Tanzania, which
is, effectively, an appeal against the decisions of the Court of Appeal in
Criminal Appeal No. 56 of 2005, and Review Application No. 5 of 2010.
33. The Respondent State makes reference to the Court’s Decision
in Ernest Francis Mtingwi v Republic of Malawi, in which it held that:
“It does not have any appellate jurisdiction to receive and consider appeals
in respect of cases already decided upon by domestic and/or regional or
similar Courts”.1
34. The Applicants rebut this allegation and rely on the Court’s
decisions in Alex Thomas v United Republic of Tanzania2 and Peter
Joseph Chacha v United Republic of Tanzania,3 in both of which the
Court held that as long as the rights allegedly violated are protected by
the Charter or any human rights instrument ratified by the Respondent
State, the Court shall have jurisdiction.
35. This Court reiterates its position as affirmed in Ernest Mtingwi
v Republic of Malawi4 that it is not an appeal court with respect to
decisions rendered by national courts. However, as it underscored
in its Judgment of 20 November 2015 in Alex Thomas v United
Republic of Tanzania, and reaffirmed in its Judgment of 3 June 2016
the Respondent State is a Party.5 In the instant case, this Court has
jurisdiction to examine whether the domestic courts’ proceedings
relating to the Applicant’s criminal charges that form the basis of their
Application before this Court were conducted in accordance with
1 Application No. 001/2013.Decision of 15/3/2013, Ernest Francis Mtingwi v Republic

of Malawi. para 14.
2 Application No.005/2013.Judgment of 20/11/2015, Alex Thomas v United Republic
of Tanzania. para 130.
3 Application No. 003/2012.Ruling of 28/3/2014, Peter Joseph Chacha v United
Republic of Tanzania. para 114.
4 Application No. 001/2013. Decision of 15/3/2013, Ernest Francis Mtingwi v
Republic of Malawi. para 14.
5 Application No. 005/2013. Judgment of 20/11/2015, Alex Thomas v United
Republic of Tanzania, para 130 and Application No. 007/2013. Judgment of
3/6/2016, Mohamed Abubakari v United Republic of Tanzania. para 29.
the international standards set out in the Charter and the Covenant.
Consequently, the Court rejects the Respondent State’s objection that
the Court is acting in the instant matter as a court of first instance and
as an appellate court and finds that it has material jurisdiction to hear
the matter.
36. Furthermore, regarding the allegation that the Application calls
for the Court to sit as a court of first instance, the Court notes that
since the Application alleges violations of provisions of some of the
international instruments to which the Respondent State is a Party, it
has material jurisdiction. This is in accordance with Article 3(1) of the
Protocol, which 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”.
37. Consequently, the Court rejects the Respondent State’s
objection that the Court is acting in the instant matter as a court of
first instance and as an appellate court and finds that it has material
jurisdiction to hear the matter.
jurisdiction has not been contested by the Respondent State,
i. it has jurisdiction ratione personae given that the
Respondent State is a Party to the Protocol and has
deposited the Declaration required under Article 34 (6)
thereof, which enabled the Applicants to access the Court
in terms of Article 5(3) of the Protocol;
ii. it has jurisdiction ratione temporis on the basis that the
alleged violations are continuous in nature since the
Applicants remain convicted on the basis of what they
consider an unfair process;
iii. it has jurisdiction ratione loci given that the facts of the
matter occurred in the territory of a State Party to the
Protocol, that is, the Respondent State.
VII. Admissibility of the Application

56 of the Charter.”
41. Pursuant to Rule 39(1) of the Rules, “The Court shall conduct
a preliminary examination of … the admissibility of the Application
in accordance with Article ... 56 of the Charter and Rule 40 of these
Rules.”

2. Comply with the Constitutive Act of the Union and the Charter:
mass media;
obvious that the procedure in unduly prolonged;
43. While some of the above conditions are not in contention
between the Parties, the Respondent State has raised two objections
regarding exhaustion of local remedies and the timeframe for seizure
of the Court.
A. Conditions of admissibility in contention between the

Parties
i. Objection based on the alleged failure to exhaust local

remedies
44. The Respondent State contends that the Application does not
meet the admissibility conditions stipulated under Articles 56(5) of the
Charter, Article 6 of the Protocol and Rules 40(5) of the Rules.
45. The Respondent State maintains that local remedies were not
exhausted because the following allegations are being raised by the

Applicants before this Court for the first time:
“i. That, after being taken to Urafiki Police Station, the 2nd
Appellant, together with his two brothers, were harassed
and later transferred to Magomeni Police Station where
they found their father who is the 1st Applicant, locked up
in a cell which had poor sanitary conditions for a human
being.
ii. That when the Applicants were arrested, they were not
informed of what charges they were being arrested
for and they were put under restraint for four days
incommunicado and denied a right to call a lawyer or to
be visited by anybody.
iii. That whilst still in police custody, they were mistreated by
police officers and that at one time they were called by
a group of police officers who insulted them and read to
them a charge of rape and later taken back to the police
cell.”
46. The Respondent State further submits that the Applicants, who
were assisted by Counsel, could have raised these allegations before
the Magistrate’s Court pursuant, to Section 9(1) of the Basic Rights and
Duties Enforcement Act (Cap.3) and they could also have instituted a
constitutional petition before the High Court of Tanzania for reparation
of the alleged violations.
47. Lastly, the Respondent State reiterates that the principle of
exhaustion of local remedies is crucial in preventing Applicants from
inundating the Court with petitions which could have been resolved at
the national level.
Applicants aver that local remedies were exhausted and that any other
conceivable measure can only be an “extraordinary measure”. They
contend that the Court of Appeal being the highest Court of the land,
they were under no obligation to resort to extraordinary measures.
49. The Applicants submit that the Court has jurisdiction to hear the
instant Application because all local remedies have been exhausted.
50. The Applicants further submit that it would have been
unreasonable to require them to resort to extraordinary measures by
filing a new Application on their right to a fair trial before the High Court,
which is a lower Court in relation to the Court of Appeal.
51. The Court notes that the Applicants filed an Appeal and had
access to the highest court of the Respondent State, namely the Court
of Appeal, to adjudicate on the various allegations, especially those
relating to violations of the right to a fair trial.
52. Concerning the filing of a constitutional petition regarding the

violation of the Applicants’ rights, the Court has already stated that this
remedy in the Tanzanian judicial system is an extraordinary remedy
that the Applicants are not required to exhaust prior to seizing this
Court.6
53. With regard to the issues that the Applicants did not raise during
domestic procedures but chose to bring before the Court for the first
time, the Court, in accordance with the Judgment rendered in Alex
Thomas v Tanzania, affirms that these allegations happened in the
course of the domestic judicial proceedings that led to the Applicants’
conviction and sentence to thirty (30) years’ imprisonment. They all
form part of the “bundle of rights and guarantees” in relation to the right
to a fair trial that were related to or were the basis of their appeals. The
domestic judicial authorities thus had ample opportunity to address
these allegations even without the Applicants having raised them
explicitly. It would therefore be unreasonable to require the Applicants
to file a new application before the domestic courts to seek redress for
these claims.7
54. Accordingly, the Court finds that, the Applicants exhausted
local remedies as envisaged under Article 56(5) of the Charter and
Rule 40(5) of the Rules. The Court therefore overrules this preliminary
objection to the admissibility of the Application.
ii. Objection based on the ground that the Application

was not filed within a reasonable time
meet the admissibility conditions stipulated under Articles 56(6) of the
Charter and Rules 40(6) of the Rules because it was not filed within a
reasonable time after all local remedies were exhausted.
56. The Respondent State contends that though the Court of Appeal
rendered its decision on the Applicants’ appeal on 11 February 2010,
the relevant period in this regard is between 29 March 2010 when the
Respondent State deposited the Declaration required under Article
34(6) of the Protocol as read together with Article 5(3) thereof and
6 March, 2015 when the Applicants filed their Application before the
6 Application No.005/2013. Judgment of 20/11/2015, Alex Thomas v United Republic

of Tanzania, paras 60 to 62; Application No.007/2013. Judgment of 3/6/2016,
Mohamed Abubakari v United Republic of Tanzania. paras 66 to 70; Application
No.011/2015. Judgment of 28/9/2017, Christopher Jonas v United Republic of
Tanzania. para 44.
of Tanzania. paras 60 to 65.
Court, that is, four (4) years and eleven (11) months after Tanzania
deposited the afore-mentioned Declaration.
57. The Applicants in their Reply to the Respondent State’s
Response contest the Respondent State’s interpretation of what
constitutes reasonable time under Rule 40(6) of the Rules. They
argue that, given their circumstances, their Application was filed within
a reasonable period after the exhaustion of local remedies, adding
in this regard that, at all material times they were both lay, indigent,
incarcerated persons without the benefit of legal advice. They do
not dispute that the Respondent State’s Court of Appeal rendered a
Judgment on 11 February 2010 and that their Application before this
Court is dated 11 February 2015. However, the Applicants submit that
their circumstances warrant the Court to admit their Application as
there are sufficient reasons to explain why they filed their Application
at the time they did.
58. In determining whether the Application was filed within a
reasonable time, the Court is of the view that although the process
of exhaustion of ordinary remedies stops with the appeal at the Court
of Appeal whose decision was rendered on 11 February 2010, the
Applicants should not be penalised for choosing to pursue a review
of this decision. The Applicants’ Application for Review having
been dismissed by the Court of Appeal on 13 November 2013, the
assessment of reasonableness will be based on the time between this
date and 6 March 2015 when they filed their Application.8
59. The Court notes that the Applicants filed the Application one (1)
year, three (3) months and twenty-one (21) days after the Court of
Appeal dismissed their Application for Review.
60. In the Matter of Beneficiaries of late Norbert Zongo, and
Others v. Burkina Faso, the Court established the principle that “the
reasonableness of a time limit of seizure will depend on the particular
circumstances of each case and should be determined on a case-by-
case basis.”9
61. Considering the Applicants’ situation, that they are lay, indigent
and incarcerated persons, without counsel or legal aid, and as the
records show, the time expended in providing them access to Court
records, their attempt to use extraordinary remedies through the
8 Application No. 003/2015. Judgment of 28/9/2017, Kennedy Owino Onyachi and

Another v United Republic of Tanzania. para 65.
9 Application No. 013/2011. Judgment of 28/3/2014, Beneficiaries of late Norbert
Zongo and Others v Burkina Faso. para 92. See also: Application No.005/2013.
Judgment of 20/11/2015, Alex Thomas v United Republic of Tanzania. para 73;
Application No. 007/2013. Judgment of 3/6/2016, Mohamed Abubakari v United
Republic of Tanzania. para 91; Application No.011/2015. Judgment of 28/9/2017,
Christopher Jonas v United Republic of Tanzania. para 52.
Application for Review of the Court of Appeal’s Decision, the Court finds
that these constitute sufficient justification as to why the Applicants
filed the Application one (1) year, three (3) months and twenty-one (21)
days after the Court of Appeal’s decision on the request for review.
62. For these reasons, the Court finds that the Application has been
filed within a reasonable time as envisaged under Article 56(6) of the
Charter and Rule 40(6) of the Rules. The Court therefore overrules this
preliminary objection on admissibility.

between the Parties
63. The conditions regarding the identity of the Applicant, the

Application’s compatibility with the Constitutive Act of the African Union,
the language used in the Application, the nature of the evidence, and
the principle that an Application must not raise any matter already
determined in accordance with the principles of the United Nations
Charter, the Constitutive Act of the African Union, the provisions of the
Charter or of any other legal instruments of the African Union (Sub-
Rules 1, 2, 3, 4 and 7 of Rule 40 of the Rules) are not in contention
between the Parties.
64. For its part, the Court also notes that nothing on the record
which the Parties have submitted suggests that these conditions have
not been met in the instant case. The Court therefore holds that the
requirements under those provisions are fulfilled.
application fulfils all admissibility requirements in terms of Article 56
same admissible.
VIII. Merits
A. Alleged violations of the rights to the respect of the

dignity and integrity of the person under Article 5 of the
Charter
66. The Applicants contend that they were ill-treated by police

officers who, at one time, called them and insulted them and then took
them back to the police. They also allege that they were held there
incommunicado for four (4) days.
67. As indicated above, the Applicants further contend that, after
being taken to Urafiki Police Station, the Second Applicant, together
with his two brothers, the Third and Fourth accused in Criminal
Case No. 555 of 2003, were molested and subsequently transferred

to Magomeni Police Station where they found their father, the First
Applicant, locked up in a cell which had unbearable sanitary conditions.
The Applicants maintain that this conduct by the Respondent State is a
violation of Article 5 of the Charter.
68. The Respondent State avers that all Police Stations in its
territory have basic facilities and where sanitation is lacking, the matter
is addressed under Order 353(14) of the Police General Orders. The
Respondent State maintains that the other allegations were never
raised before the domestic courts.
“Every individual shall have the right to the respect of the dignity inherent
in a human being and to the recognition of his legal status. All forms of
exploitation and degradation of man, particularly slavery, slave trade,
torture, cruel, inhuman or degrading punishment and treatment shall be
prohibited.”
70. In the circumstances of this case, before the Court determines

whether the Respondent State’s conduct is a violation of Article 5 of the
Charter as alleged by the Applicants, it must first establish who should
discharge the burden of proof in this regard.
71. In its previous judgment in the Matter of Kennedy Owino Onyachi
and Another v United Republic of Tanzania, the Court has held as follows
that: “it is a fundamental rule of law that anyone who alleges a fact shall
provide evidence to prove it. However, when it comes to violations of
human rights, this rule cannot be rigidly applied. By their nature, some
human rights violations relating to cases of incommunicado detention
… are shrouded with secrecy and are usually committed outside the
shadow of law and public sight. The victims of human rights may thus
be practically unable to prove their allegations as the means to verify
their allegation are likely to be controlled by the State”.
72. In the same above-mentioned case, the Court, relying on the
jurisprudence of the International Court of Justice10 also held that “In
such circumstances, ‘neither party is alone in bearing the burden of
proof and the determination of the burden of proof depends on the
type of facts which it is necessary to establish for the purposes of the
decision of the case’. It is therefore for this Court to evaluate all the
circumstances of the case with a view to establishing the facts”.
73. In the instant case, the Applicants simply assert that they were
ill-treated and held in a police cell incommunicado for four (4) days.
In addition, they state that the First Applicant was held in a cell with
10 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of Congo),

International Court of Justice, Judgment of 30 November 2010, para 56.
unsanitary conditions. The Applicants have not submitted any prima

facie evidence to support their allegations which could enable the
Court to shift the burden of proof to the Respondent State.
74. In view of the foregoing, the Court finds that these allegations
lack merit and the Court therefore dismisses them.
B. Alleged violations of the right to a fair trial under

Article 7(1) of the Charter
75. The Applicants have raised several allegations that fall under
the aegis of Article 7(1) of the Charter which reads as follows:
comprises:
1. The right to an appeal to competent national organs against acts

2. The right to be presumed innocent until proved guilty by a
3. The right to defence, including the right to be defended by
4. The right to be tried within a reasonable time by an impartial
i. Allegations that the Applicants were not promptly

informed of the charges against them and they were denied
the right to call a Counsel
76. In their Reply to the Respondent State’s Response to the

Application, the Applicants contend that they were not informed of the
charges brought against them, at the time of their arrest and they were
denied their right to call a Counsel or to be visited by anybody.
77. The Respondent State for its part contends that the foregoing
allegations were never raised before the local courts,and are therefore
an afterthought and that they are baseless and should consequently
be dismissed.
78. The requirements for an accused person to be informed of the
charges they are facing and to be allowed to call a Counsel is to enable
them to prepare an effective defence. In accordance with Article 14(3)
(a) of the Covenant, this is to be done promptly. Article 14(3)(a) of the
Covenant provides:
“3. In the determination of any criminal charge against him, everyone shall
be entitled to the following minimum guarantees, in full equality: (a) To be
informed promptly and in detail in a language which he understands of the
nature and cause of the charge against him.”
79. The Court notes that strictly speaking, the Respondent State
has not challenged the veracity of the Applicants’ allegations in this
regard.
80. The record before this Court shows that the Applicants were
informed of the charges against them on 16 October 2003 when they
were taken before the Resident’s Magistrate’s Court of Kisutu, that is,
four (4) days after they were arrested. In the view of this Court, in the
specific circumstances of this case where there were allegations of
the rape of children of tender age and the possible need for further
investigations, the Applicants were informed promptly of the charges
against them and therefore there was no violation of Article 7(1)(c) of
the Charter in this regard.
81. With regard to the Applicants’ denial of the right to call a Counsel,
the judgment of the Court of Appeal shows that the Applicants were
represented by Advocate Mabere Marando during their appeal at the
Court of Appeal and the Ruling on their application for review shows
that this same Counsel represented them in those proceedings. There
is no record of proceedings at the Resident’s Magistrate’s Court to
enable the Court verify whether the Applicants had access to Counsel
when the charges were read to them and in the course of the trial. In
these circumstances, the Court finds that this allegation has therefore
not been proven.
82. From the foregoing, the Court concludes that the allegations
under consideration are dismissed.
ii. Allegation that the identification of the Applicants was

not done properly

Application, the Applicants elaborated on the claim regarding the
methods used in identifying them.
84. The Applicants contend that during the hearing of Criminal Case
No. 555 of 2003, the Trial Magistrate simply asked the witnesses to
point to the accused persons in the dock after changing their sitting
positions.
85. The Applicants allege that the informal manner in which they
were identified violated their rights under Article 7(1) of the Charter and
that given the gravity of the offences and punishment that they were
facing, a formal identification parade ought to have been conducted
following the appropriate procedures, with proper checks as required to
satisfy the requirements of a fair trial. The Applicants aver that a formal
identification parade was crucial to ascertain whether the victims, who
were all under the age of eight (8) at the time, knew the perpetrators of
the alleged offences.
86. The Applicants maintain that, at the time of their arrest, the
police officers even went with some of the alleged victims to the scene
of the crime, and that it is on this basis that the alleged victims saw the
Applicants while they were being arrested and also while in remand.
They contend further that, although the alleged victims could not identify
Papi Kocha, the Second Applicant and instead, they had identified
both Nguza Mbangu and Francis Nguza as being Papi Kocha, the Trial
Magistrate decided that an identification parade was not necessary.
87. The Respondent State did not respond to these allegations
that the Applicants raised in their Reply to the Respondent State’s
Response.
88. The issue that this Court needs to determine is whether the
manner in which the Applicants were identified is in accordance with
89. The Court is of the view that the decision on evidence to be
adduced regarding the form of identification of accused persons is to be
left to national courts since they determine the probative value of such
evidence and they enjoy a wide discretion in this regard. This Court
generally would therefore defer to the national Court’s determination
in this regard, so long as doing so, will not result in a miscarriage of
justice.
90. In the instant case, this Court notes from the record that in the
course of domestic proceedings, the Magistrate’s Court considered the
testimony of witnesses regarding the identification of the Applicants
and being satisfied on this, proceeded with the trial. The Court finds
that, on the whole, there is nothing on the record to indicate that this
specific aspect of proceedings occasioned a miscarriage of justice.
The Court consequently holds that there is no violation of Article 7(1)
(c) of the Charter.
iii. Allegation that the Applicants were not given copies of

Prosecution Witness statements and the material witnesses
were not called for cross-examination.
91. The Applicants allege that their request for copies of witness
statements during the trial was denied by the Trial Court and this, in
their view, violated their right to a fair trial. They further allege that
this violated their right to a fair trial because the Prosecution failed to
disclose relevant evidence which could have buttressed their defence.
92. The Applicants contend that there was a deliberate failure on
the part of the Trial Magistrate to discharge her duty to ensure that
material witnesses are called. They state that the persons who ought to
have been called as material witnesses are Selina John, who claimed
to have first informed Candy David Mwaivaji (Prosecution Witness 1)
about Gift Kapapwa (Prosecution Witness 2) allegedly taking money
from the First Applicant; Cheupe Dawa, who was accused of abducting
the children and taking them to the First Applicant; Zizel, the First
Applicant’s grandson and Mangi, who was the owner of the container
shop located near the First Applicant’s house.
93. According to the Applicants, the effect of this omission was the
abuse of the principle of equality of arms. The Applicants maintain that
the failure to call the afore-mentioned four (4) persons as witnesses
meant that though the Prosecution relied on the information they
provided, the defence was unable to cross-examine them because
they were never called to testify.
94. The Applicants submit that “equality of arms” is a principle of
common law which provides that there must be a fair balance between
the Parties. They argue that it is a cardinal tenet of the right to a fair
trial and an intrinsic aspect of the right to adversarial procedures. They
maintain that each Party must be afforded a reasonable opportunity to
present its case especially its evidence, under conditions that do not
place it at a substantial disadvantage vis-à-vis its opponent.
95. The Applicants further contend that this principle imposes an
obligation on the Prosecution to disclose any material in its possession
which may assist the accused in defending himself.
96. The Respondent State submits that, the Applicants must
substantiate the allegation that the afore mentioned four (4) persons
were not called as witnesses to enable the Applicants cross-examine
them. The Respondent State avers that only the victims, and no other
persons were better placed to testify to the facts, particularly because
the Prosecution has the onus to establish that the victims were familiar
with the crime scene.
97. The Court notes that the Respondent State has not challenged
the allegation that the Applicants were not provided with the witness
statements and that the four witnesses above were not called and
were therefore not cross-examined by the Applicants.
98. The Court recalls that in accordance with Article 7(1)(c) of the
Charter everyone has a right to defence, and that according to Article
14(3)(b) of the Covenant, in the determination of any criminal charge
against him, “everyone shall be entitled … (b) to have adequate time
and facilities for the preparation of his defence and to communicate with
counsel of his own choosing”. The Court also notes that Article 14(3)
(e) of the Covenant provides that “in the determination of any criminal
charge against him, everyone shall be entitled… to examine, or have
examined, the witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as
witnesses against him”.

99. The Court is of the view that in the instant case, the Applicants
should have been provided copies of the Prosecution Witness’
statements in order to facilitate them to prepare their defence. By this
not having been done, the Applicants were placed at a disadvantage
vis-à-vis the Prosecution, contrary to the principle of equality of arms.
Similarly, by not calling the four (4) afore-mentioned persons to testify,
the Applicants were denied the opportunity to cross-examine them and
this also placed them at a disadvantage.
100. Consequently, the Court holds that the Applicants’ denial of
access to the Prosecution’s witness’s statements and denial of an
opportunity for the Applicants to cross-examine persons who would
have been material witnesses, was a violation Article 7(1)(c) of the
Charter by the Respondent State.
iv. Allegation that the Applicants’ alibi defence was

unduly rejected
101. In their Reply to the Respondent State’s Response to Application,

the Applicants contend that the Trial Court rejected their alibi defence
and that, by so doing, it violated their rights under Article 7(1)(b) of
the Charter. They further submit that the house in which the alleged
crimes they were charged with took place was always occupied by
members of the Achigo Band who did music rehearsals there, making
it impossible for the alleged crimes to be committed.
102. The Second Applicant further contends that he was out of Dar-
es-Salaam promoting his album at the time the crimes were alleged
to have been committed and he could not therefore have been at the
alleged crime scene.
103. For its part, the Respondent State submits that in examining
the Applicants’ guilty verdict, the Court of Appeal reassessed all the
evidence, the defence arguments and the alibi on each count and
made its own findings thereon.
104. In its previous Judgment in the Matter of Mohamed Abubakari v
Tanzania, this Court held that:
“Where an alibi is established with certitude, it can be decisive on the
determination of the guilt of the accused.”11
105. In the instant case however, the records of the domestic judicial
proceedings show that the Applicants’ evidence of an alibi was
considered and rejected by the Respondent State’s Trial and Appellate
11 Application No. 007/2013. Judgment of 3/6/2016, Mohamed Abubakari v United

Republic of Tanzania. para. 191.
Courts. The record of proceedings reveals that the High Court and the
Court of Appeal specifically addressed the alibi defence and rejected it
after weighing it against the testimony of the witnesses, finding that the
witnesses’ testimony was sufficiently reliable to set aside the Applicants’
alibi defence. The Court finds that, on the whole, there is nothing on the
record to indicate that the setting aside of the Applicants’ alibi defence
occasioned a miscarriage of justice.
106. Consequently, the Court holds that the Respondent State has
not violated the Applicants’ right to defence as enshrined in Article 7(1)
(c) of the Charter and thus dismisses the allegation.
v. Allegation that the Applicants’ urine and blood tests

were not tendered and the First Applicant’s request for an
impotence test was unduly rejected.
107. In the Reply to the Respondent State’s Response to the

Application, the Applicants contend that they were taken to hospital
on 14 October 2003 where their urine and blood samples were taken
for testing. They further contend that the results of the tests were
not tendered in evidence, despite the fact that the Second Applicant
raised the issue during the trial of Criminal Case No. 555 of 2003.They
maintain that they were convicted by the Trial Magistrate, who did not
consider or attach due weight to all the available evidence.
108. The Applicants also state that on 14 October 2003, the First
Applicant requested to be taken to a doctor for a test to prove his
impotence, but his request was rejected whereas the Court ought
to have facilitated this test. They maintain that the First Applicant
repeated this request in the course of the trial but it was also rejected
by the Court. They argue that the Judgment of the Trial Court shifted
the burden of proof to them contrary to the well-established principle
that the prosecution bears the burden of proof. The Applicants contend
that the Respondent State’s interpretation of Section 114(1) of the Law
of Evidence Act (Cap 6 RE 2002) is inconsistent with the provisions of
Section 3(2)(a) of the same Act.12
109. The Respondent State, for its part, argues that the foregoing
defence was not raised by the Applicants when they filed an Appeal
before the High Court in Criminal Appeal No. 84 of 2004; and less
12 Section 3(2)(a) of the Law of Evidence Act provides that in criminal matters, the
prosecution must prove the case beyond reasonable doubt; Section 114(1) thereof
provides that the accused bears the burden of proof where he or she claims that
there are circumstances bringing the case under an exception to the operation
of the law creating the offence and this burden can be discharged when there is
evidence from the prosecution in this regard.
so, in their Appeal at the Court of Appeal in Criminal Appeal No. 56 of

2005. It notes that the Trial Court found that none of the victims tested
positive for HIV, VDRL or HVS, according to the deposition of the
doctor (Prosecution Witness 20) who examined the victims, therefore
the blood and urine tests results became irrelevant.
110. The Respondent State contends further that, neither the Trial
Court, the High Court, nor to a lesser extent, the Court of Appeal of
Tanzania, based their guilty verdicts against the Applicants on the
results of the blood and urine tests.
111. The Respondent State also affirms that the issue as to whose
responsibility it was to establish the First Applicant’s sexual impotence
was definitively settled by the Court of Appeal which held that it was up
to the Applicant to adduce evidence to prove his lack of virility.
112. The Respondent State contends that the First Applicant raised
the issue of his impotence and inability to have an erection only when he
was being cross-examined by the Prosecution and that the allegations
were therefore an afterthought on the Applicants’ part.
113. The Respondent State further states that the Court of Appeal
determined the matter taking into account the available evidence,
namely, that the victims testified that they were raped and their medical
reports corroborated their testimony.
114. The Applicants allege here the violation of Articles 2 and 3 of
the Charter which protects the right not to be discriminated against
and equality before and equal protection of the law, respectively. The
Court will however consider this allegation under Article 7(1)(c) of the
Charter, as it actually relates to the right to defence.
115. The Court notes that all material evidence impacting on an
accused person’s defence should be considered and reasons for its
exclusion provided. This is because their liberty is at stake.
116. The Court notes that the Applicants’ blood and urine test results,
which in the Applicants’ view, would have bolstered their defence, were
not tendered in evidence at the Trial Court therefore denying them the
opportunity to tender material evidence in their defence. The Court
also however notes that in the circumstances of the case, neither the
High Court nor the Court of Appeal based their guilty verdicts on the
results of the blood and urine tests. Therefore, the Applicants’ right to
defence was not violated in this respect.
117. On the other hand, as regards the impotence test, the Court is of
the view that, once the First Applicant raised the issue, the Respondent
State should have facilitated the test to be done, since the outcome
thereof would determine whether the First Applicant could have
committed the crime. Consequently, the Court holds that, to the extent
that the Trial Court rejected the First Applicant’s prayer to be tested on
his impotence, the Respondent State has violated his right provided in
vi. Allegation that the trial judge was biased and that
some of the Applicants’ submissions and evidence were
not duly considered and taken into account
118. In the Reply to the Respondent State’s Response, the Applicants

contend that the Trial Magistrate was biased and did not accord their
evidence the weight it deserved. They maintain that although some
of the issues were treated by the Court of Appeal, other grounds of
appeal were not addressed.
119. The Applicants further contend that the right to a fair trial
encompasses the obligation for a court of law to render reasoned
judgments and that, in the instant case, the Trial Court’s judgment
revealed prejudice and contained unjustified remarks about the
defence witnesses, suggesting that the Trial Magistrate was biased
and had formed her own opinion about the case.
120. For its part, the Respondent State reiterates that the Court of
Appeal remedied the alleged infringements when it assessed each of
the twenty-one (21) counts on which the Applicants were found guilty of
by the Trial Court and as affirmed by the High Court. The Respondent
State maintains that after the examination of each count, the Court
of Appeal found the Applicants guilty of only the four (4) counts in
respect of which they were sentenced. These are, two (2) counts of
the rape of two (2) different victims against the First Applicant and two
(2) counts each of gang-rape of two (2) victims against both Applicants
and that the examination of the arguments and evidence adduced by
the defence was an integral part of this assessment.
121. The Court recalls again that at the Trial Court, there were five
accused persons, including the Applicants, facing twenty-one (21)
counts, ten (10) of rape and eleven (11) of unnatural offence. The
Fifth accused, the teacher, was acquitted by the Trial Court while the
rest of the accused persons were convicted and sentenced to life
imprisonment. The High Court affirmed the Trial Court’s conviction
of the First, Second, Third and Fourth accused on the ten (10)-count
charge of rape but substituted the convictions on eleven (11) counts of
unnatural offence with that of gang-rape.
122. The record before this Court shows that the Court of Appeal
examined each count and in the end acquitted the Third and Fourth
accused, reducing the number of counts that were proven against the
Applicants to four (4) as against the original twenty-one (21).
123. In a previous case, this Court has stated as follows:
“General statements to the effect that this right has been violated are not
enough. More substantiation is required”.13
124. The Court notes however that, in the instant case, the Applicants
have not provided sufficient evidence as to the alleged bias and to
the possible implications of the alleged violations on the Trial Court’s
judgment.
125. Accordingly, the Court finds that the alleged violation has not
been proven and therefore dismisses it.
C. Allegations of violation of the right to participate in the

government of one’s country under Article 13 of the Charter
and the right to protection of the family under Article 18(1)
of the Charter

Applicants submit in general terms that the Respondent State violated
their rights under Articles 13 and 18(1) of the Charter.
127. The Respondent State did not respond to this allegation.
“1. Every citizen shall have the right to participate freely in the
government of his country, either directly or through freely
chosen representatives in accordance with the provisions of the
law.
2. Every citizen shall have the right of equal access to the public
service of his country.
3. Every individual shall have the right of access to public property
and services in strict equality of all persons before the law.”
129. Article 18(1) of the Charter provides as follows:
“The family shall be the natural unit and basis of society. It shall be
protected by the State which shall take care of its physical health and
moral.”
130. On those points, the Court notes that the Applicants limited
themselves to stating that their rights under Articles 13 and 18(1) have
been violated by the Respondent State. They have not specified how
and in what circumstances the alleged violations occurred.
131. As indicated above, this Court has stated in its previous judgments
that, “General statements to the effect that the right has been violated
are not enough” and that “More substantiation is required”.14
132. In view of the aforesaid, the Court finds that the allegations
13 Application No.005/2013. Judgment of 20/11/2015, Alex Thomas v. United

Republic of Tanzania. para. 140.
14 As above.
of violation of Articles 13 and 18(1) of the Charter have not been

established and, accordingly, dismisses those allegations.
D. Allegation that the Respondent State violated Article 1

of the Charter
133. In their Reply, the Applicants lastly state that the Respondent
State has fallen short in its obligations by failing to give effect to the
provisions of Article 1 of the Charter.
134. The Respondent State has not responded to this allegation.
135. The Court notes that in instances where an allegation of violation
of Article 1 of the Charter has been raised, the Court has held that
“when the Court finds that any of the rights, duties and freedoms set
out in the Charter are curtailed, violated or not being achieved, this
necessarily means that the obligation set out under Article 1 of the
Charter has not been complied with and has been violated”.15
136. In the instant case, the Court has held that the Respondent State
has violated Article 7(1)(c) of the Charter with respect to some of the
Applicants’ allegations (supra paragraphs 100 and 117). On the basis
of the foregoing observations, the Court thus finds in conclusion that,
violation of the said rights entails violation of Article 1 of the Charter.
IX. Remedies sought
137. As indicated above (paragraphs 21 and 22), the Applicants

have requested the Court to, inter alia, issue an order compelling
the Respondent State to release them from prison and grant them
reparations pursuant to Article 27(1) of the Protocol and Rule 34(5) of
the Rules.
138. As indicated above (paragraphs 23 to 26), the Respondent State
has prayed the Court to order that the Applicants continue serving their
sentences and deny the Applicant’s request for reparations.
139. Article 27(1) of the Protocol provides that “If the Court finds that
140. In this respect, Rule 63 of the Rules provides that “The Court
shall rule on the request for reparation submitted in accordance with
15 Application No.005/2013. Judgment of 20/11/2015, Alex Thomas v United

Republic of Tanzania. para 135; Application No. 013/2011. Judgment of 28/3/2014,
Beneficiaries of late Norbert Zongo and Others v Burkina Faso. para 199;
Application No. 003/2015. Judgment of 28/9/2017, Kennedy Owino Onyachi and
Another v United Republic of Tanzania. para 159.
Rule 34(5) of these Rules, by the same decision establishing the

141. With respect to the Applicants’ request to be released from
prison, the Court notes that this prayer is moot, considering that,
according to both Parties, the Applicants have been released by way
of a Presidential Pardon.16
142. Concerning the other forms of reparation, the Court notes that
none of the Parties made detailed submissions. It will therefore make
a ruling on this question in another Judgment after having heard the
Parties.
X. Costs
143. The Applicants prayed the Court to order the Respondent State
to pay costs.
144. The Respondent State has not made any prayer as to costs.
145. The Court notes in this regard that Rule 30 of its Rules provides
that “Unless otherwise decided by the Court, each party shall bear its
own costs”.
decides to deal with the question of costs when considering the other
forms of reparation.
XI. Operative part

The Court,
Unanimously,
On jurisdiction:
i. Dismisses the objection to the jurisdiction of the Court;
On admissibility:
iii. Dismisses the objections on the admissibility of the Application;
On the merits:
v. Finds that the Respondent State has not violated Article 5 of the
Charter;
16 Supra paras 16 and 17.

vi. Finds that the Respondent State has not violated Article 7(1)(c)
of the Charter as regards: the failure to promptly inform the Applicants
of the charges against them and denying them an opportunity to call
their Counsel; the manner of the Applicants’ identification; the rejection
of the Applicant’s alibi defence; the failure to admit the reports of the
Applicants’ urine and blood tests as evidence and the alleged partiality
of national courts;
vii. Finds that the Respondent State has violated Article 7(1)(c) of
the Charter as regards: the failure to provide the Applicants copies of
witness statements and to call material witnesses; the failure to facilitate
the First Applicant to conduct a test as to his impotence; consequently
finds that the Respondent State has violated Article 1 of the Charter;
viii. Finds that the allegations of violation of Articles 13 and 18 (1) of
the Charter have not been established;
ix. Holds that the Applicants’ prayer to be released from prison has
become moot;
x. Orders the Respondent State to take all necessary measures
to restore the Applicants’ rights and inform the Court, within six (6)
months from the date of this Judgment of the measures taken.
xi. Defers its ruling on the Applicants’ prayer on the other forms of
reparation, as well as its ruling on Costs; and
xii. Allows the Applicants, in accordance with Rule 63 of its Rules,
to file their written submissions on the other forms of reparation within
thirty (30) days from the date of notification of this judgment; and the
Respondent State to file its Response within thirty (30) days from the
date of receipt of the Applicants’ written submissions.
Application 005/2015, Thomas Mang’ara Mango and Shukurani

Masegenya Mango v United Republic of Tanzania
Judgment, 11 May 2018. Done in English and French, the English text
Judges: ORE; KIOKO, NIYUNGEKO, GUISSE, ACHOUR, MATUSSE,
The Applicants had been convicted and sentenced for armed robbery.
They brought this Application claiming violations of their rights as a result
of their detention and trial. The Court held that the failure and delay in
providing the Applicants with witness’ statements violated the African
Charter. The Court further held that the failure to provide the Applicants
with free legal representation violated the African Charter.
Jurisdiction (conformity of domestic proceedings with Charter, 31)
Interpretation (Universal Declaration forms part of customary
international law, 33; Court cannot find violations of national law and
treaties to which the Respondent State cannot be a party, 35)
Admissibility (exhaustion of local remedies, fair trial, 45, 46; submission
within reasonable time, 53-56)
Fair trial (evaluation of evidence, 70, 94, 95, 116, 118; defence, witness
statements, 78, 79, free legal representation, 86, 87; reasoning, 111, 112)
Reparations (release, 155)
I. The Parties
1. Messrs Thobias Mang’ara Mango and Mr Shukurani Masegenya

Mango (hereinafter referred to as “First Applicant” and “Second
Applicant”, respectively) are both citizens of the United Republic of
Tanzania.
2. The Respondent State, namely, the United Republic of Tanzania,
(hereinafter referred to as the “Charter”) on 21 October 1986 and also
Declaration prescribed under Article 34(6) of the Protocol on 29 March
2010.
Mango v Tanzania (merits) (2018) 2 AfCLR 314 315
3. The Court was seized of the Application on 11 February 2015. In

the Application, they allege violation of their rights following their arrest,
detention and the manner in which their various cases were treated
before the domestic courts of the Respondent State.
4. According to the Application, on 3 July 1999 at about 8.30 am two
individuals struck at gunpoint, the Zeid Bureau de Change located at
Mwanza Hotel and stole large sums of money and travellers cheques.
The only witness to the robbery was Ms Fatuma Said who worked as a
cashier at this Bureau de Change.
5. A police investigation was mounted at the end of which four (4)
persons were arrested among whom were the Second Applicant who
was arrested on 3 July 1999 and the First Applicant who was arrested
on 4 July 1999. They were charged on 5 July 1999 with the offence
of armed robbery contrary to Sections 285 and 286 of the Tanzanian
Penal Code.
6. Following the trial before the District Court of Mwanza in Criminal
Case No. 672 of 1999, the Applicants were convicted and sentenced
on 7 May 2004 to a term of thirty (30) years imprisonment each in
Criminal Case No. 672 of 1999.
7. The Applicants appealed the conviction and sentences to the
High Court of Tanzania in Criminal Appeal No. 201 of 2004. The
appeal was dismissed in its entirety by the High Court of Tanzania on
31 October 2005 on the basis that the sentence of thirty (30) years
imprisonment was lawful.
8. The Applicants further appealed to the Court of Appeal of
Tanzania sitting at Mwanza in Criminal Appeal No. 27 of 2006 and this
Appeal was also dismissed in its entirety on 12 May 2010. The Court of
Appeal found that there was no error in the findings of the District Court
and High Court on the substantive matters under appeal and that the
appeal lacked merit.
9. The Applicants then filed an Application for Review at the Court
of Appeal in Criminal Application No. 8 of 2010 but this was dismissed
on 18 February 2013 on the basis that it showed no ground that raised
the need for a review of the Court of Appeal’s judgment in Criminal
Appeal No. 27 of 2006.
10. The Applicants claim that they subsequently filed on 17 June
2013 a Constitutional Petition at the High Court at Mwanza alleging
violation of their human rights under the Basic Rights and Duties
Enforcement Act. They claim that the Constitutional Petition was
endorsed with the stamp of the District Registrar of the High Court
on 17 June 2013. The Applicants allege that following a considerable
period of enquiry about the Constitutional Petition, it was returned to
them by the Registrar of the High Court without an official letter. They
allege that they were verbally instructed to direct their petition to the
Court of Appeal.
11. The Applicants outlined several complaints in relation to the

manner in which they were detained by the Respondent State’s police
authorities and tried and convicted by the Respondent State’s judicial
authorities. They claim that:
“i. The principles of law and practice governing the matter of
visual identification were neither met nor considered by
the Trial Court;
ii. They were not represented by a Counsel, were denied
medical treatment and overstayed in Police custody;
iii. They were denied a chance to be heard when the
presiding Magistrate was changed;
iv. No actual weapon was discovered or tendered in Court to
support the charge of armed robbery and the owner of the
Bureau de Change mentioned on the Charge Sheet was
never called before the Court to testify;
v. The trial proceeded despite them being denied some
witness statements and some being provided to them
after undue delays;
vi. The judgments of the Trial Court, first and second
Appellate Courts were defective due to the contradiction
between the evidence of Prosecution Witness 2 and
Prosecution Witness 3;
vii. The Trial Court tried the case to its finality without
considering or according weight to the written submissions;
viii. The High Court concluded the appeal by relying on
misapprehension or misdirected evidence;
ix. The Court of Appeal relied on misconceived findings to
convict them;
x. Their Constitutional Petition was irregularly rejected and
returned to them unprocedurally, with no official letter;
xi. Their Application for Review at the Court of Appeal was
dismissed on grounds that it should have been raised in
an Appeal;
xii. The sentence meted against them following their

conviction is contrary to Sections 285 and 286 of the
Penal Code of Tanzania as this sentence did not exist at
the time the offence was committed and it was harsh;
xiii. They have suffered irreparable damage and inhuman
treatment due to the violation of their human rights.”
12. In their Application, the Applicants allege violations of their
human rights under:
“i. Articles 1, 2, 3, 5, 6, 7, 8 and 10 of the Universal Declaration of
Human Rights;
ii. Articles 3, 7, 7(2), 19, and 28 of the Charter;
iii. Articles 107A (2)(e) and 107B; 12(1) and (2); 13(1), (3), (4) and
(6)(c); 26(1) and (2); 29(1), (2) and (5); 30(1), (3) and (5) of the
Constitution of the United Republic of Tanzania;
iv. Article 6 of the European Convention on Human Rights.
v. Article 8 of the American Convention on Human Rights; and
vi. Sections 285 and 286 of the Penal Code of the United Republic
of Tanzania regarding their illegal sentencing to thirty years’
imprisonment.”
13. The Application was filed on 11 February 2015. By two separate

notices both dated 20 March 2015 pursuant to Rules 35(2) and (3) of
the Rules (hereinafter referred to as “the Rules”),the Registry, served
the Application on the Respondent State and transmitted it to the
Executive Council of the African Union and the State Parties to the
Protocol through the Chairperson of the African Union Commission.
14. By a letter dated 31 March 2015 the Registry notified Pan African
Lawyers’ Union (PALU) of the Court’s decision to request its assistance
to provide the Applicants with legal assistance and by an email dated
2 April 2015 PALU confirmed that it would represent the Applicants.
15. The Respondent State filed the List of its Representatives on 5
May 2015.
16. On 27 May 2015 the Respondent State requested the Court to
grant her an extension of time to file the Response to the Application and
by a notice dated 24 June 2015 the Registry notified the Respondent
State of the Court’s decision to grant her thirty (30) days’ extension of
time to file the Response.
17. On 20 August 2015 the Respondent State filed the Response to
the Application. This was transmitted to the Applicant by a notice dated
26 August 2015.
18. By a letter dated 18 November 2015 the Applicants requested
the Court to grant them an extension of time to file their Reply to the
Respondent State’s Response; by a notice dated 14 March 2016, the
Registry notified the Applicants of the Court’s decision to grant them
thirty (30) days extension of time to file the said Reply. The Applicants’
filed Reply to the Respondent State’s Response on 23 March 2016.
19. By a notice dated 10 June 2016 the Registry informed the Parties
that the written procedure was closed with effect from 3 June 2016.
20. In their Reply, the Applicants reiterated their prayers in the

Application as follows :
“i. A Declaration that the Respondent State has violated the
Applicants’ rights guaranteed under the African Charter, in
particular: Articles 1 and 7.
ii. A Declaration that the Respondent State violated Articles 2, 3,
5, 7 and 19 of the Charter and Articles 1, 2, 5, 6, 7, 8 and 10 of
the Universal Declaration of Human Rights at various stages of
the trial process.
iii. A Declaration that s142 of the Evidence Act (Cap 6 R.E 2002)
is incompatible with international standards of the right to a fair
trial.
iv. An Order that the Respondent State takes immediate steps to
remedy the violations.
v. An order for reparations.
vi. Any other orders or remedies that this Honourable Court shall
deem fit.”
21. In the Response to the Application, with regard to the Court’s
jurisdiction and admissibility of the Application, the Respondent State
prays the Court to rule as follows:
“1. That the Application has not evoked the jurisdiction of the
Honourable Court.
2. That the Application be dismissed as it has not met the
the Rules of Court.
3. That the Application be dismissed as it has not met the
the Rules of Court.
4. That the Application be dismissed in accordance to Rule
38 of the Rules of Court.”
22. With regard to the merits of the Application, the Respondent
State prays the Court for an order that it has not violated Articles 1, 2, 6
and 7 of the United Nations Declaration of Human Rights and Articles
3, 7, 10, 19 and 28 of the Charter.

23. The Respondent State further prays that reparations be denied
to the Applicants, they continue serving their sentence and the
Application be dismissed in its entirety.
V. Jurisdiction
conduct preliminary examination of its jurisdiction …”
25. The Respondent State raised only one objection, on the material
jurisdiction of the Court.
26. In the Response to the Application, the Respondent State

contends that the Court would sit as a Court of first instance in respect
of some allegations and as a “Supreme Appellate Court” in respect of
matters of law and evidence that have already been determined yet
the Protocol does not give it such jurisdiction. The Respondent State
refers to the Court’s decision in Ernest Francis Mtingwi v Republic of
Malawi in this regard.1
27. The Respondent State outlines the following allegations as
requiring the Court to sit as a Court of first instance:
“i. That they were not given an opportunity to be represented
by counsel, before and after they were charged in Courts
of law, they were denied medical treatment and they
overstayed in police custody.
ii. That they filed an application in the High Court of
Tanzania under the Basic Rights and Duties Enforcement
Act, which was endorsed with the stamp of the District
Registrar of the High Court on 17 June 2013 and after
a considerable period it was irregularly rejected with no
official communication to that effect.
iii. That they were sentenced to thirty (30) years imprisonment
contrary to Sections 285 and 286 of the Penal Code, that
the charge against them was not a legally punishable
offence at the time it was committed, in that, the sentence
against them was harsh and excessive contrary to their
1 Application No. 001/2013.Decision of 15/03/2013 (Jurisdiction), Ernest Francis

Mtingwi v Republic of Malawi. (Ernest Mtingwi v Malawi Decision) para 14 where
the Court held that: “It does not have any appellate jurisdiction to receive and
consider appeals in respect of cases already decided upon by domestic and or
regional Courts”.
rights under Article 7(2) of the Charter and Article 13(6)

(c) of the Constitution of the Respondent State of 1977.”
28. The Respondent State further argues that the allegations which
require the Court to sit as a ‘Supreme Appellate Court’ are those
relating to the Applicants’ identification, the non-tendering of evidence
of the weapon alleged to have been used to commit the robbery, not
calling the owner of the Bureau de Change to testify in Court, the
changes of the venue of the hearing of the trial, their conviction on the
basis of misconceived findings, the determination of their appeals on
misdirected evidence and the dismissal of their Application for Review
on the ground that the matters raised could have properly been raised
in an appeal.
29. In their Reply to the Respondent State, the Applicants maintain
that the Court has jurisdiction to deal with the matter pursuant to the
provisions of the Charter and the Protocol because, the Application
relates to violations of their human rights which are protected by
the Charter and other human rights instruments ratified by the State
concerned. They refer to the decision in Alex Thomas v United Republic
of Tanzania in this regard.2
30. Pursuant to Article 3(1) of the Protocol and Rule 26(1)(a) of the
Rules of the Court, the material jurisdiction of the court extends to “all
application of the Charter, the Protocol and other relevant human rights
instruments ratified by the State concerned”.
v Republic of Malawi3 that it is not an appellate court with respect to
decisions rendered by national courts. However, as it underscored
in its Judgment of 20 November 2015 in Alex Thomas v United
Republic of Tanzania and reaffirmed in its Judgment of 3 June 2016
2 Application No.005/2013.Judgment of 20/11/2015, Alex Thomas v United Republic

of Tanzania. (Alex Thomas v Tanzania Judgment) para 130 where the Court
stated: “Though this Court is not an Appellate body with respect to decision of
national courts, this does not preclude it from examining relevant proceedings in
the national courts in order to determine whether they are in accordance with the
standards set out in the Charter or any other human rights instruments ratified
by the State concerned. […] The Court will examine whether the national courts
applied appropriate principles and international standards in resolving the errors”.
3 Ernest Mtingwi v Malawi Decision op cit para 14.
the Respondent State is a Party.4 Consequently, the Court rejects the

Respondent State’s objection that the Court is acting in the instant
matter as an appellate Court.
32. Furthermore, regarding its material jurisdiction, the Court notes
that since the Applicant alleges violations of provisions of some of the
has material jurisdiction in accordance with Article 3(1) of the Protocol.
33. The Court notes that while the Universal Declaration of Human
Rights is not an international human rights instrument that is subject
to ratification by States, it has previously held in the Matter of Anudo
Ochieng Anudo v Tanzania that the Declaration has been “recognised
as forming part of Customary International Law”.5 As such, the Court is
enjoined to interpret and apply it.
34. The Applicants have also invoked the American Convention on
Human Rights, the Convention for the Protection of Human Rights
and Fundamental Freedoms, the Respondent State’s Constitution and
Penal Code.
35. In accordance with Article 3(1) of the Protocol, the Court finds
that it cannot establish violations based on the Constitution and
Penal Code of the Respondent State which are national laws. The
same applies to the American Convention on Human Rights and the
European Convention on Fundamental Rights and Freedoms to which
the Respondent State is not and cannot be a Party.
36. The Court consequently finds that it has material jurisdiction
over the Application.
jurisdiction has not been contested by the Respondent State, and
nothing on the record indicates that the Court does not have jurisdiction.
The Court thus holds:
i. it has personal jurisdiction given that the Respondent State
is a Party to the Protocol and deposited the Declaration
required under Article 34(6) thereof, which enabled the
Applicant to access the Court in terms of Article 5(3) of
4 Alex Thomas v Tanzania Judgment op cit para 130 and Application No. 007/2013.
Judgment of 03/06/2016, Mohamed Abubakari v United Republic of Tanzania
(Mohamed Abubakari v Tanzania Judgment). para 29.
5 Application No. 012/2015. Judgment of 23/03/2018. Anudo Ochieng Anudo v
United Republic of Tanzania, (Anudo Anudo v Tanzania Judgment) para 76; Case
Concerning United States Diplomatic and Consular Staff in Tehran (United States
v Iran) [1980] ICJ Rep 3 p 42, Collection 1980; Article 9(f) of the Constitution of the
United Republic of Tanzania, 1977.
the Protocol;
ii. it has temporal jurisdiction on the basis that the alleged
violations are continuous in nature since the Applicants
remain convicted and are serving a thirty (30) year
imprisonment sentence on the basis of what they consider
an unfair process;6
iii. it has territorial jurisdiction given that the facts of the
Protocol, that is, the Respondent State.
Rules.”

2. Comply with the Constitutive Act of the Union and the Charter:
mass media;
6 Application No. 003/2015. Judgment of 28/09/2017, Kennedy Owino Onyachi and

Another v United Republic of Tanzania (Kennedy Onyachi v Tanzania Judgment)
para 40.

Parties

between the Parties, the Respondent State raised two objections
regarding exhaustion of local remedies and the timeframe for seizure
of the Court.
i. Objection based on the ground of non-exhaustion of

local remedies
42. The Respondent State contends that the Applicants should have
raised their complaints within the domestic courts as required by Article
56(5) of the Charter, before filing their application before this Court.
The Respondent State also alleges that it first became aware of the
allegations enumerated in paragraph 11 above, after the filing of this
Application. The Respondent State maintains that the Applicants can
still pursue a Constitutional Petition within the domestic courts in this
regard.
43. The Applicants contend that they exhausted all the local remedies
available because they were heard up to the Court of Appeal which is
the highest court in the Respondent State. The Applicants state that
any other remedies available are to be considered as “extraordinary
remedies” which they were under no obligation to pursue.
44. The Applicants have raised thirteen (13) claims before this Court
as indicated in paragraph 11 above. The record indicates that eight (8)
of the claims indicated at paragraph 11(i), (iii), (iv), (v), (vi), (vii), (viii)
and (ix) were raised at various stages during their trial and appeals
before the courts of the Respondent State. The record also indicates
that, five (5) claims are being raised for the first time before this
Court. They are denial of their right to legal representation, prolonged
detention in police custody; the dismissal of the Application for Review
before the Court of Appeal; the irregular rejection of their constitutional
petition and the illegality and harshness of the sentence imposed on
the Applicants following their conviction.
45. Any application before the Court must comply with the
requirement of exhaustion of local remedies.7 However, in Alex Thomas
v United Republic of Tanzania, the Court also held that the Applicant
was not required to exhaust domestic remedies in respect of alleged
violations of fair trial rights which were occasioned in the course of his
7 Application No. 003/2012. Ruling of 28/03/2014 (Admissibility), Peter Joseph

Chacha v United Republic of Tanzania (Peter Chacha v Tanzania Ruling), para 40.
trial and appeals in the domestic courts.8

46. In the instant case, the Court notes that allegation relating to the
denial of legal assistance, prolonged detention in police custody and
illegality and harshness of the sentence imposed on the Applicants
constitute part of the “bundle of rights and guarantees” related to a
fair trial which were not required to have been specifically raised at
the domestic level. The Court consequently holds that the Applicants
are deemed to have exhausted local remedies with respect to these
claims.
47. Concerning the filing of a Constitutional Petition regarding the
violation of the Applicants’ rights, the Court has already stated that this
that the Applicants are not required to exhaust prior to seizing this
Court.9
48. In sum, the Court therefore finds that the Applicants have
exhausted local remedies with respect to all their claims.
49. Accordingly, the Court dismisses the Respondent State’s
objection to admissibility of the Application for non-exhaustion of local
remedies.
ii. Objection based on the ground of not filing the

Application within a reasonable time
50. The Respondent State contends that the Application was

not filed within a reasonable time as required by Rule 40(6) of the
Rules. The Respondent State avers that at the time of the filing of
this Application, four (4) years and two (2) months had elapsed from
the time of delivery of the Court of Appeal’s judgment in the Appeal
and two (2) years had elapsed from the time of delivery of the Ruling
on the Applicants’ Application for Review of the Court of Appeal’s
judgment. The Respondent State therefore argues that this Application
is inadmissible and that it should be dismissed with costs.
51. The Applicants contend that they are both lay, indigent
incarcerated persons without legal education. They also contend
that they have not had the benefit of legal aid or legal representation
until the Court appointed pro bono Counsel for them and that the
circumstances of their particular case warrants the Court to admit the
Application as there are sufficient grounds to justify why they filed it at
8 Alex Thomas v Tanzania Judgment op cit para 60.

9 Ibid paras 60-62; Mohamed Abubakari v Tanzania Judgment op cit paras 66-70;
Application No.011/2015. Judgment of 28/09/2017, Christopher Jonas v United
Republic of Tanzania. (Christopher Jonas v Tanzania Judgment) para 44.
the time they did.

52. The Court notes that Rule 40(6) of the Rules and Article 56(6)
of the Charter do not specify any period within which Applicants
should seize the Court, rather, these provisions speak of filing of the
Application within a reasonable time from the date when local remedies
were exhausted or any other date as determined by the Court.
53. The Court notes that local remedies were exhausted when the
Court of Appeal dismissed the Applicants’ appeal on 12 May 2010,
therefore this is the date from which time should be reckoned regarding
the assessment of reasonableness of time as envisaged in Rule 40(6)
of the Rules.10
54. The Court notes that the Application was filed four (4) years, eight
(8) months and thirty (30) days after local remedies were exhausted.
As the Court has previously held, the computation of reasonableness
of time “…depends on the circumstances of each case and must be
assessed on a case-by-case basis.”11
55. The Court considers in this regard that the Applicants being
incarcerated they may not have been aware of the existence of the
Court or how to approach it, particularly since the Respondent State
had filed the Declaration under Article 34(6) less than two (2) months
prior to when local remedies were exhausted. They should also not be
penalised for attempting to use an extraordinary remedy, that is, the
Application for Review of the Court of Appeal’s Judgment, which was
dismissed on 18 February 2013. The Court finds that these factors
constitute sufficient justification as to why the Applicants filed the
Application four (4) years, eight (8) months and thirty (30) days after
local remedies were exhausted.
56. For these reasons, the Court finds that the Application has been
filed within a reasonable time as envisaged under Article Rule 40(6) of
the Rules. The Court therefore overrules this preliminary objection on
admissibility.
B. Conditions of admissibility not in contention between

the Parties

v Cote d’Ivoire. paras 35-37.
11 Application No. 013/2011. Judgment of 28/03/2014, Beneficiaries of Late Norbert
Zongo and Others v Burkina Faso. (Norbert Zongo v Burkina Faso Judgment)
para 92; See also: Alex Thomas v Tanzania Judgment op cit para 73; Mohamed
Abubakari v Tanzania Judgment op cit para 91; Christopher Jonas v Tanzania
Judgment op cit par. 52.

Rules 1, 2, 3, 4 and 7 of Rule 40 of the Rules) are not in contention
58. The Court also notes that nothing on the record suggests that
these conditions have not been met in the instant case. The Court
therefore holds that the requirements under those provisions are
fulfilled.
application fulfils all admissibility requirements in terms of Article 56
same admissible.
VII. The merits
A. Alleged violation of the right to a fair trial
60. The Applicants have raised several claims that stem from the
alleged violation of the right to a fair trial under Article 7 of the Charter
which reads as follows:
“1. Every individual shall have the right to have his cause heard. This
comprises:
a. the right to an appeal to competent national organs against acts

b. the right to be presumed innocent until proved guilty by a
c. the right to defense, including the right to be defended by
d. the right to be tried within a reasonable time by an impartial court
or tribunal.
2. No one may be condemned for an act or omission which did not
constitute a legally punishable offence at the time it was committed. No
penalty may be inflicted for an offence for which no provision was made
at the time it was committed. Punishment is personal and can be imposed
only on the offender.”
61. The Applicants also allege violations of Articles 8 and 10 of the

Universal Declaration of Human Rights which provide as follows:
“8. Everyone has the right to an effective remedy by the competent

national tribunals for acts violating the fundamental rights granted him by
the constitution or by law”.
“10. Everyone is entitled in full equality to a fair and public hearing by an

independent and impartial tribunal, in the determination of his rights and
obligations and of any criminal charge against him”.
i. Allegation relating to the Applicants’ identification
62. The Applicants allege that considering the gravity of the offence
and the sentence they were facing, their identification through an
informal identification process was insufficient and did not meet national
and international standards. They allege that proper identification
processes ought to have been undertaken. The Applicants maintain
that no identification parade took place and no documentary evidence
relating to their identification was tendered in Court. They claim that
Prosecution Witness 3, Inspector Peter Mvulla stated that police
investigators took the suspects to the complainant to be identified. The
Applicants also argue that the whole evidence adduced in the Trial
Court was not in compliance with the principles of law and practice
governing visual identification The Applicants maintain that their
conviction should be quashed, because they were based on their
identification that did not follow the procedure set out in the law.
63. The Respondent State submits that this allegation was a ground
of the Applicants’ appeal before the Court of Appeal in Criminal Case No.
27 of 2006 and that the Court of Appeal considered the allegation and
upheld the findings of the Trial Court and High Court. The Respondent
State submits that the allegation lacks merit and should be dismissed.
64. The contention is whether the Applicants were properly
identified and whether the Respondent State’s Courts applied the
appropriate principles and law in evaluating the evidence of witnesses
on identification.
65. The record indicates that both the High Court and Court of Appeal
considered the issue of visual identification and satisfied themselves
that the criterion under the law was met and that the identification
parade was carried out properly.12
66. The High Court examined the evidence of Fatuma Said, the
Bureau de Change staff who was manning it when the robbery took
place and who testified that she saw both Applicants on the material day
and that the Second Applicant pointed a pistol at her. The High Court
12 Referring to Ezekiel Peter v Republic [1972] Crim. App. 20-DSM-72.

further noted that Fatuma Said was able to identify both Applicants at
the identification parade which was carried out two (2) days later on 5
July 1999.
67. The Court of Appeal also considered both issues relating to
identification and observed that there was no dispute in the description
that Fatuma Said gave of the robbers. The Court of Appeal also
observed that the clothing found in the Second Applicant’s possession
at the time of his arrest matched the description of the robbers.
68. On the issue of visual identification, this Court notes that the
Court of Appeal observed that the identification by a single witness
must be absolutely watertight to justify a conviction. The Court notes
that the Court of Appeal also considered the principles guiding
visual identification as set out in the Respondent State’s relevant
jurisprudence.13 The Court of Appeal examined these principles and
the findings of the Trial Court and High Court and it was satisfied there
was no mistaken identity.
69. Moreover, the record before this Court shows that the Police
Form (PF) 186 recording the conduct of the identification parade
was tendered in evidence and the Police Officer who conducted
the identification parade, Deputy Sergeant Nuhu also testified as
Prosecution Witness 5 during the trial.
70. In the view of this Court, nothing on the record shows that the
domestic courts did not apply the law appropriately and in light of
applicable standards. Both the High Court and the Court of Appeal
examined the applicable principles governing the issue of identification
and applied them to the evidence tendered in a manner that was fair
and just.
71. The Court finds that the Respondent State did not violate the
right to a fair trial with regard to the identification of the Applicants.
ii. Allegation relating to the failure and delay in providing

the Applicants with some witness statements
72. The Applicants state that they repeatedly requested witnesses’

statements and that the trial proceeded despite them not having
received them. They state that the trial in Criminal Case No. 672 of 1999
commenced on 8 July 1999 without them having received the witness
statements. They allege that they repeatedly requested for them on 9
August 2000, 22 September 2000, 4 July 2001, 10 September 2001, 15
October 2001, 21 January 2002, 29 October 2002 and 12 December
2002. On its part, the Trial Court reminded the Prosecution on several
13 See Waziri Amani v Republic (1980) Tanzania Law Reports 250.

occasions between 9 August 2000 and 4 July 2001, to supply the

Applicants with witness statements, in accordance with their statutory
right and the Court’s orders in this regard.
73. The Applicants state that, it was not until 22 February 2002 that
the Prosecution informed the Court that they had supplied the accused
with witness statements, over two (2) and a half years since the trial
proceedings started. The Applicants allege that on 16 November
2001, they were subjected to interrogation for requesting the witness
statements.
74. The Applicants maintain that the delay in supplying them with the
statements violated their right to a fair trial and in particular the right to
defence. The Applicants state that ‘equality of arms’ is a common law
principle which imposes on the prosecution an obligation to disclose
any material in their possession, which may assist the accused in
exonerating himself.
75. The Court notes that the Respondent State has neither
responded to this allegation nor challenged the veracity of the
Applicants’ contention in this regard.
76. The Court recalls that in accordance with Article 7(1)(c) of the
Charter everyone has a right to defence. In criminal matters, this
right requires that accused persons such as the Applicants should be
promptly informed of the evidence that will be tendered to support the
charges against them, whether testimonial or in other forms to enable
them to prepare their defence in this regard.
77. The Applicants should have been promptly provided with all
copies of the Prosecution Witness’ statements to facilitate them
to prepare their defence. The Court notes that, by the time the
prosecution’s case started on 28 August 2002, the Respondent State
had not provided the Applicants some witness statements and this
continued up to two and a half years later despite the orders of the
Trial Court in this regard.
78. The Court is of the view that this undue delay in providing the
Applicants with the witness statements, affected the Applicants’ right to
prepare their defence which constitutes a violation of Article 7(1)(c) of
the Charter.
79. Consequently, the Court holds that the denial of access to some
of the Prosecution’s witness’s statements and the delay in providing
them with some witness statements was a violation of Article 7(1)(c) of
the Charter by the Respondent State.
iii. Allegation relating to the Applicants not being given

an opportunity to be represented by Counsel
80. The Applicants submit that they were not given any opportunity
to be represented by Counsel at the trial and appellate stages of the

proceedings.
81. The Applicants submit that in spite of them being lay, indigent
and incarcerated persons facing serious offences carrying heavy
sentences they were not assigned legal representation for most of
the trial process. They state that they were only briefly represented
by Advocate Muna on 9 August 1999 while their bail applications were
being heard.
82. The Applicants further argue that the Legal Aid (Criminal
Proceedings) Act places a positive obligation on the presiding authority
to grant legal aid where it is desirable and necessary, in the interest of
justice and where the accused does not have the means to retain legal
assistance.
83. The Respondent State avers that the above-mentioned Act
entitles accused persons to legal assistance subject to their request.
The Respondent State argues that the Applicants never requested for
legal aid and that the First Applicant, Thobias Mango was represented
by Advocate Feren Kweka during the hearing of the appeal before the
Court of Appeal.
84. Article 7(1)(c) of the Charter provides that. “1. Every individual
shall have the right to have his cause heard. This comprises: …(c) the
right to defense, including the right to be defended by counsel of his
choice”.
85. It emerges from the file that Advocate Muna represented the
Applicants on 9 August 1999 during their bail applications and Advocate
Feren Kweka represented the First Applicant during the oral phase of
their appeal before the Court of Appeal. The Applicants on the other
hand, were not represented during their trial at the District Court of
Mwanza and their appeal in the High Court and the Second Applicant
was unrepresented during the oral phase of the proceedings in the
Court of Appeal.
86. The Court has previously held that the right to a fair trial under
Article 7 of the Charter includes the right to free legal representation
especially in cases where accused persons are charged with serious
criminal offences that attract heavy sentences.14 The Court has also
previously held that for serious offences such as armed robbery that
carry heavy custodial sentences, the Respondent State is under an
obligation to provide the accused persons, such as the Applicants,
proprio motu and free of charge, the services of a lawyer throughout
14 Mohamed Abubakari v Tanzania Judgment op cit paras 138 - 142.

the judicial proceedings in the local courts.15 In the instant case, the
Applicants were charged with armed robbery, an offence that attracts a
minimum sentence of thirty (30) years imprisonment.
87. The Court therefore finds that by failing to provide the Applicants
with a lawyer to represent them in the proceedings, the Respondent
State violated the Applicants’ right to defence.
iv. Allegation that the Courts did not apply the required
standard of proof
88. The Applicants have raised allegations relating to the standard

of proof applied for their cases. The Applicants submit that the charges
against them were not proved to the standard required in a criminal trial
since no weapon was discovered or tendered to support the charge of
armed robbery. The Applicants further submit that the owner of the
Bureau de Change mentioned in the charge sheet never testified in
Court on the ownership of the money allegedly stolen therefrom. The
Applicants submit that it is not possible to prove the offence of robbery
without first proving theft and in turn, theft can be proven only if the
ownership of the item stolen is established.
89. The Respondent State avers that the Applicants raised the issue
of non-production of a weapon in their appeal in the High Court but
later abandoned this ground of appeal before the Court of Appeal.
90. The Respondent State further submits that the Second Applicant
raised the issue of the prosecution not proving the offence against
them beyond reasonable doubt on the basis of the lack of testimony in
Court by the owner of the Bureau de Change that the alleged stolen
money was his property. The Respondent State submits that the Court
of Appeal found that the evidence tendered by the prosecution met the
standard of proof beyond reasonable doubt even without production of
weapons or the testimony of the owner of the Bureau de Change.
91. The issue for determination by this Court is whether in the
absence of testimony of the owner of the Bureau de Change and the
lack of production of the crime weapon, the national courts failed to
apply the required standard of proof.
92. This Court notes that the record before it indicates that the
High Court examined the evidence of the victim of the armed robbery,
Fatuma Said, the evidence of the police investigators and the
Applicants’ accomplice’s evidence. Fatuma Said acted as a witness
15 Alex Thomas v Tanzania Judgment op cit para 124; Mohamed Abubakari v

Tanzania Judgment op cit para 139; Christopher Jonas v Tanzania Judgment op
cit paras 77 - 78.
throughout the trial. The High Court examined the record which shows
that Fatuma Said who testified as Prosecution Witness 4 stated that
she was attacked by two suspects who pointed a gun at her. The High
Court also found that the third Accused in the trial, Mr. Wilfred Wilbert
(now deceased) also confessed that he and the Second Applicant
robbed Fatuma Said. The record shows that the Third Accused’s
testimony was corroborated by Detective Constable Shaban and
Moses who interrogated and witnessed the Third Accused’s confession
and testified as Prosecution Witnesses 1 and 2, respectively.
93. This Court also notes that the Court of Appeal examined the
record and the findings of the Trial Court and the High Court and
found no fault therein. The Court of Appeal found that the absence
of the weapon used to commit the crime and of the testimony of the
owner of the Bureau de Change on their own did not prevent the
Applicants from defending themselves and the Courts from finding that
the Prosecution had proven the case beyond reasonable doubt since
there were other sources of evidence that corroborated the testimony
of the victim, Fatuma Said. The Court notes that the Applicants have
also not demonstrated how the absence of the weapon and the lack
of testimony by the owner of the Bureau de Change could lead to the
domestic courts to conclude that the required standard of proof was
not met.
94. In line with its jurisprudence, in the Matter of Mohamed
Abubakari v United Republic of Tanzania, this Court is of the view that
a fair trial requires that where a person faces a heavy prison sentence,
the finding that he or she is guilty and the conviction must be based
on strong and credible evidence.16 In the instant case, the Court notes
that the Trial Court, the High Court and the Court of Appeal determined
that there was evidence to prove beyond reasonable doubt that the
Applicants committed the crime they were charged with despite the
fact that the weapon alleged to have been used to commit the crime
was not tendered in evidence and the owner of the Bureau de Change
did not testify.
95. In the view of this Court, there is nothing on the record to show
that the domestic courts did not apply the required standard of proof
in convicting the Applicants. In any event, the Applicants have not
provided sufficient evidence to show that the procedures followed by
the domestic courts in addressing the issue of the weapon used to
commit the crime and the testimony of owner of the Bureau de Change
violated their right to a fair trial with respect to the standard of proof.
96. Accordingly, the Court finds that the Respondent State did not
16 Mohamed Abubakari v Tanzania Judgment op cit para 174.

violate the Applicants’ right to a fair trial in this regard.
v. Allegation relating to the changing of the Magistrate

hearing the case
97. The Applicants allege that the changing of the Magistrate denied
them a chance to be heard and that therefore they did not have a fair
trial.
98. The Respondent State submits that the Court of Appeal
considered this matter in Criminal Appeal No. 27 of 2006 and found
that the change of magistrates did not occasion an injustice. The
Respondent State avers that Section 214 of the Criminal Procedure
Act provides for conviction or committal where proceedings are heard
partly by one magistrate and partly by another.17
99. The issue for determination is whether the change of the
Magistrate hearing the case affected the Applicants’ right to be heard.
100. The Court notes that the record indicates that the case was heard
by three different Magistrates successively, in three different instances.
The first Magistrate heard the matter until he was transferred to another
duty station. The second Magistrate continued hearing the matter until,
following the Applicants’ complaints of loss of confidence in her, she
recused herself from hearing the case. Thereafter, the third Magistrate
completed the hearing of the case and delivered the judgment.
101. The record also indicates that the High Court considered
whether the second Magistrate had proper grounds to recuse herself
and whether the Applicants were prejudiced when the second and
third Magistrates did not address the Applicant’s concerns in terms of
Section 214 of the Criminal Procedure Act. The High Court examined
the circumstances under which a judicial officer may be recused namely,
that there should be evidence of a conflict between the litigant and
the Magistrate or the latter has a close relationship with the adversary
party or one of them, and that the Magistrate or a family member has
an interest in the outcome of the litigation other than the administration
of justice. After examining these circumstances in light of the facts of
the case, the High Court found that there was no justification for the
second Magistrate to have disqualified herself.
102. Nonetheless, the High Court found that the failure of the second
and third Magistrates to address the accused in terms of Section 214
of the Criminal Procedure Act did not amount to an omission that would
17 Section 214 of the Criminal Procedure Act [Cap. 20 Revised Edition 2002] provides
that if a magistrate is unable to continue hearing a case, it is at the discretion of
the magistrate who takes it over whether to proceed with the matter based on the
evidence recorded so far or start taking the evidence afresh.
occasion an injustice.
103. The Court of Appeal also examined the issue and found that the
Trial Court’s failure to accord the Applicants an opportunity to address
it on whether the trial should have proceeded or started afresh did not
constitute a fatal omission as, pursuant to Section 214 of the Criminal
Procedure Act, the Trial Court had the discretion to proceed with the
hearing without according the Applicants this opportunity. The Court
of Appeal found that the second and third Magistrates who heard the
case applied the discretion given to them under the law judiciously.
104. The Court notes further that, the Applicants did not prove whether
the Magistrates were biased, whether the evidence admitted by the
Second Magistrate was prejudicial to their case or how the Magistrates
failed to properly apply their discretion by proceeding with the matter
rather than hearing it afresh.
105. In light of the foregoing, the Court finds that the replacement of
the Magistrate in charge of the case does not violate the Applicants’
right to be tried by an impartial court.
vi. Allegation relating to the lack of due consideration of

written submissions by the Court of first instance
106. The Applicants submit that during the trial, the Court did not
consider or accord any weight to their written submissions tendered
in Court as their defense, and that the High Court and Court of Appeal
did not draw any adverse inference on this omission by the Trial Court.
107. The Respondent State submits that the Second Applicant raised
this allegation as his eleventh ground of appeal before the Court of
Appeal, but that the Court of Appeal did not consider it because it
could not consider matters of evidence not adduced at the High Court,
without good reason.
108. The question for the Court to determine is whether the Applicants’
right to be heard would be violated if their written submissions are not
referenced in the judgment.
109. The Court is of the view that the right to be tried heard as
provided under Article 7(1) of the Charter extends to the right to be
given reasons for the decision.18
110. In the instant case, the record shows that the Magistrate recorded
the Applicants’ oral evidence and after the close of the defence case,
only the Second Applicant chose to file written submissions. The record
18 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in
Africa adopted by the African Commission on Human and Peoples’ Rights in 2003
para 2(i).
also shows that the Magistrate acknowledged receipt of the Second

Applicant’s written submissions and that the Prosecution chose to
abandon their right of reply to the same.
111. This Court notes that the Magistrate examined the evidence on
record and provided a reasoned ruling on that basis without having to
make reference to the written submissions. This Court further notes that
record indicates that the lack of reference to the written submissions
did not form a ground of appeal before the High Court, but it was raised
as a ground of appeal before the Court of Appeal.
112. The Court finds that it has not been proven that the lack of
consideration of the Second Applicant’s written submissions violated
the Applicants’ right to be heard.
113. Accordingly, the Court holds that the Respondent State did not
violate Article 7(1) of the Charter.
vii. Allegation relating to the judgments being defective

and erroneous due to contradictory evidence and therefore
being based on the wrong record
114. The Applicants submit that the evidence of Prosecution Witness

2, Detective Constable Moses was prejudiced and contradicted itself
with the evidence of Prosecution Witness 3, Assistant Inspector Mvulla
who was the officer who arrested, searched and interrogated them.
The Applicants further submit that as a result, the findings of the
Respondent State’s Courts were based on the wrong record which had
patent errors.
115. The Respondent State avers that the issue of contradictions
in the evidence of Prosecution Witnesses 2 and 3 were never raised
as a ground of appeal before the High Court or the Court of Appeal.
The Respondent State avers that the Court of Appeal evaluated all the
evidence and ruled that the Prosecution Witnesses 1, 2 and 3 were
credible. The Respondent State maintains that the Court of Appeal
duly evaluated the points of law and evidence adduced and confined
its assessment to the substantial issues of evidence.
116. The Court recalls that though it has no power to re-evaluate
the evidence on which the domestic courts relied to convict the
Applicants, it has jurisdiction to determine whether, the manner in
which the domestic courts have evaluated the evidence is compliant
with standards set out in applicable international human rights
instruments. The issue for determination in this regard is whether the
domestic courts’ determination on the alleged contradictions between
Prosecution Witnesses 1 and 2 was in line with the standards set out
in Article 7(1)(c) of the Charter.
117. The record indicates both the High Court and Court of Appeal
examined and evaluated the evidence of Prosecution Witnesses 2 and

3 and found that there were no contradictions and consequently, the
record was not erroneous.
118. The Court finds that there is nothing on the record before it
indicating that the domestic courts did not comply with the provisions
of Article 7(1)(c) of the Charter in assessing the evidence of these
prosecution witnesses. Accordingly, the Court holds that the
Respondent State did not violate Article 7(1)(c) of the Charter.
viii. Allegation relating to misconstrued and misapplied

evidence by the Courts
119. The Applicants submit that the Court of Appeal determined their
appeal contrary to principles of law.
120. The Respondent State avers that the Court of Appeal considered
the argument and did not find fault with the findings of the Trial Court
or the High Court.
121. The Court notes that the Applicants have not elaborated on this
claim.
122. In a previous case, this Court has stated that
“General statements to the effect that this right has been violated
are not enough. More substantiation is required”.19
123. The Court notes that, in the instant case, the Applicants are
making general claims regarding the violations of their rights without
substantiation.
124. Accordingly, the Court finds that the alleged violations have not
been proven, and therefore dismisses the same.
ix. Allegation that the thirty-year Sentence was not in

force at the time the robbery was committed
125. In the Application, the Applicants submit that they were

condemned to serve a sentence of thirty (30) years imprisonment
contrary to Sections 285 and 286 of the Penal Code, and that this was
not the sentence for the offence at the time it was committed. They
state that the sentences against them were harsh and excessive and
therefore in violation of their rights under Article 7(2) of the Charter and
Article 13(6)(c) of the Respondent State’s Constitution. In the Reply to
the Response, the Applicants abandoned this claim.
126. The Respondent refutes this allegation, stating that the Applicant
19 Alex Thomas v Tanzania Judgment, op cit para 140.

has raised it for the first time before this Court. The Respondent State
maintains further that, the applicable law required that conviction for
armed robbery attracted a minimum sentence of thirty (30) years’
imprisonment.20
127. In view of the fact that the Applicants abandoned this claim, the
Court finds that this allegation has become moot.
x. Allegations relating to violation of Articles 8 and 10 of

the Universal Declaration of Human Rights
128. The Applicants allege that the Respondent State has violated
their rights provided under Articles 8 (right to an effective remedy by
competent national tribunals for acts violating fundamental rights)
and 10 (entitlement in full equality to a fair hearing by an independent
and impartial tribunal in determination of rights and obligations and of
criminal charges) of the Universal Declaration of Human Rights.
129. The Respondent State did not specifically respond to these
allegations.
130. The provisions of Articles 8 and 10 of the Declaration are
reflected in Article 7 of the Charter under the aegis of which the
Court has already made determinations regarding some allegations
of violation of the Applicants’ rights by the Respondent State. In this
regard therefore, the Court finds that it is not necessary to determine
whether the Respondent has violated Articles 8 and 10 of the Universal
Declaration of Human Rights.
xi. Allegation that Section 142 of the Respondent State’s

Evidence Act is incompatible with international standards
on the right to a fair trial
131. The Applicants claim that Section 142 of the Respondent State’s
Evidence Act is incompatible with international standards on the right
to a fair trial on the basis that it denies accused persons the opportunity
to cross-examine accomplices who testify for the prosecution.
132. The Respondent State did not make submissions regarding this
prayer.
133. Section 142 of the Law of Evidence Act [Cap. 6 Revised Edition,
2002] provides that:
“An accomplice shall be a competent witness against an accused
20 Section 285 and 286 of the Penal Code [Cap 6. As amended by Act No. 10 of
1989], the Minimum Sentences Act [Cap. 90 of 1972] as amended by Act No. 6 of
1994 Written Laws (Miscellaneous Amendments) and Court of Appeal of Tanzania
(Criminal Appeal No. 69 of 2004), William R Gerison v The Republic.
person; and conviction is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice.”
134. The Court notes that national laws are considered as fact before
international courts and can form the basis of allegations of violations
of international law.21 The Court observes however that it does not
appear from the above-mentioned provision that there is a restriction
on cross-examination of accomplices. In any event, the Applicants
have not elaborated how the aforementioned provision of the Evidence
Act does not conform to the international standards on the right to a
fair trial. The Court therefore finds that this allegation lacks merit and
consequently dismisses it.
B. Allegations of violations of other rights
i. Allegation relating to the dismissal of the Applicants’

review and constitutional petition
135. The Applicants submit that their Application for Review of the
Court of Appeal’s decision of 12 May 2010 was dismissed on the basis
that their grounds for review may have been raised in an Appeal. They
also submit that their first ground of appeal regarding their identification
qualified as a ground for review.
136. The Respondent State maintains that the Applicants’ ground for
review that the decision was based on a manifest error on the face of
the record resulting in a miscarriage of justice did not fall within the
criteria set by the Court of Appeal Rules.
137. This Court notes that the Applicants have not provided proof to
support this allegation and nothing on record to indicate that the Court
of Appeal rejected the Application for Review arbitrarily. This Court
accordingly dismisses this allegation for lack of merit.
ii. Allegation relating to the rejection of the Constitutional

Petition
138. The Applicants state that they filed an Application in the High
Court of Tanzania pursuant to the Basic Rights and Duties Enforcement
Act. They claim that their Application was acknowledged as received
21 See Application No. 009/2011 and Application No. 011/2011 (Consolidated).

Judgment of 14/06/2013, Tanganyika Law Society and the Legal and Human
Rights Centre and Reverend Christopher R Mtikila v United Republic of Tanzania.
paras 91-119; Application No.001/2014. Judgment of 18/11/2016 Action Pour la
Protection des Droits de L’Homme v Republic of Cote d’Ivoire paras 107-151.
by the stamp of the District Registrar of the High Court at Mwanza

dated 17 June 2013. They maintain that after some time they enquired
about their Application but that it was irregularly rejected and returned
to them without any official correspondence. They allege that they
were verbally informed that their complaints should be directed to the
Court of Appeal.
139. The Respondent State denies the allegations and puts the
Applicants to strict proof. The Respondent State further states that
in the event that the Applicants’ Application to the High Court was
rejected, the Applicants could have pursued the matter administratively
or by filling another petition before the Court.
140. The Court notes from the record before it that only copies of
correspondence to the Chief Justice, the Judicial Service Commission
and the Ministry of Constitutional and Legal Affairs relating to the
consideration of their Application for review of the Court of Appeal’s
decision of 12 May 2010 on their appeal and their constitutional
petition filed under the Basic Rights and Duties Enforcement Act
are herein attached. Though the correspondence indicates that the
Applicants filed a constitutional petition under the Basic Rights and
Duties Enforcement Act, it is not enough proof to support their claim
that their petition was irregularly rejected.
141. The Court therefore finds that this allegation lacks merits and
consequently dismisses it.
C. Allegations relating to violations of Articles 2, 3, 5, 19

and 28 of the Charter and Articles 1, 2, 5, 6 and 7 of the
Universal Declaration of Human Rights
142. The Applicants allege that the Respondent State has violated
Articles 2 (right to enjoyment of the rights and freedoms recognised in
the Charter without distinction of any kind such as race, ethnic group,
colour, sex, language, religion, political or other opinion, national and
social origin, fortune, birth or other status), 3 (right to equality before
the law and equal protection of the law), 5 (right to respect of one’s
dignity and to recognition of legal status and prohibition of all forms of
exploitation and degradation of man, particularly slavery, slave trade,
torture, cruel, inhuman or degrading punishment and treatment),
19 (equality of all peoples) and 28 (duty to consider others without
discrimination) of the Charter. The Applicants also claim that the
Respondent State has violated Articles 1 (recognition of freedom and
equality in dignity and rights), 2 ( entitlement to the rights and freedoms,
without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status), 5 (right not to be subjected to torture or to cruel,
inhuman or degrading treatment or punishment), 6 (right to recognition

everywhere as a person before the law) and 7 (right to equality before
the law and to equal protection of the law) of the Universal Declaration
of Human Rights.
143. In the Response, the Respondent State specifically denies
violating Articles 3 and 19 of the Charter and Articles 1, 2, and 6 of the
Universal Declaration of Human Rights and they do not respond to the
other allegations.
144. Other than claiming that they were denied medical treatment
and they overstayed in police custody, the Applicants make general
statements in this regard.
145. The Court has reiterated that, “General statements to the effect
that this right has been violated are not enough. More substantiation is
required”.22 The Court notes that, in the instant case, the Applicants are
making general claims regarding the violations of these rights without
substantiation.
146. Accordingly, the Court finds that the alleged violations have not
been substantiated and they are therefore dismissed.
D. Allegation of violation of Article 1 of the Charter

Application, the Applicants have alleged that the Respondent State
has violated Article 1 of the Charter.
148. The Respondent State has not responded regarding the alleged
violation of Article 1 of the Charter.
149. The Court recalls its previous decisions23 in which it held that
“when the Court finds that any of the rights, duties and freedoms set
out in the Charter are curtailed, violated or not being achieved, this
necessarily means that the obligation set out under Article 1 of the
Charter has not been complied with and has been violated.”
150. In the instant case, the Court has held that the Respondent State
has violated Article 7(1)(c) of the Charter. On the basis of the foregoing
observations, the Court thus finds in conclusion that the violation of the
said rights entails violation of Article 1 of the Charter.
151. The Applicants claim to have suffered irreparable damage due

23 Ibid para 135; See also Norbert Zongo v Burkina Faso Judgment op cit para 199;
Kennedy Onyachi v Tanzania Judgment op cit para 159.
to the violation of their human rights. As indicated above in paragraphs

11 and 20 of this judgment, the Applicants have requested the Court to,
inter alia, order their release from custody and grant them reparations.
They have not specified the additional reparations they seek.
152. For its part, as indicated in paragraph 23 above of this Judgment,
the Respondent State has, among others, prayed the Court to order
that the Applicants continue serving their sentences and deny their
request for reparations
153. Article 27(1) of the Protocol provides that “If the Court finds that
shall rule on the request for reparation submitted in accordance with
Rule 34(5) of these Rules, by the same decision establishing the
155.
case, the Applicants have not indicated and provided proof of such
circumstances. Consequently, the Court dismisses this prayer.
157. The Court however notes that the aforesaid finding does not
preclude the Respondent State from considering such a measure on
its own.
158. The Court notes that neither Party made detailed submissions
concerning the other forms of reparation. It will therefore make a ruling
on this question at a later stage in the procedure after having heard
the Parties.
IX. Costs
own costs”.
160. None of the Parties have made a prayer as to costs.
161. Having considered the circumstances of this case, the Court
decides that each Party shall bear its own costs.
24 Alex Thomas v Tanzania Judgment op cit para 157; Mohamed Abubakari v

Tanzania Judgment op cit para 234.
X. Operative part

The Court,
Unanimously,
On jurisdiction:
ii. Declares that it has jurisdiction;
On admissibility:
iv. Declares the Application admissible;
On the merits:
v. Finds that the Applicants have not established the alleged
violation of Articles 2, 3, 5 ,19 and 28 of the Charter and Articles 1, 2,
5, 6 and 7 of the Universal Declaration of Human Rights
vi. Finds that the Respondent State has not violated Article 7 of
the Charter as regards: the Applicants’ identification; the changing of
the Magistrate hearing the case; the alleged failure by the national
courts to apply the required standard of proof; the alleged lack of
consideration of the Second Applicant’s written submissions by the
Trial Court and the allegation that the judgments against the Applicants
were defective and erroneous; Consequently finds that the prayer that
the Respondent State has violated Articles 8 and 10 of the Universal
Declaration of Human Rights has become moot;
vii. Finds that the incompatibility of Section 142 of the Evidence Act
with the international standards on the right to a fair trial has not been
established;
viii. Finds that the allegations relating to the dismissal of the Applicants’
Application for Review and the rejection of their Constitutional Petition
have not been established;
ix. Finds that the Respondent State has violated Article 7(1)(c) of
the Charter as regards: the failure to provide the Applicants with free
legal assistance; and the failure to provide the Applicants with copies
of some witness statements and the delay in providing them some
witness statements; Consequently finds that the Respondent State
has violated Article 1 of the Charter;
On remedies
x. Does not grant the Applicants’ prayer for the Court to directly
order their release from prison, without prejudice to the Respondent
State applying such a measure proprio motu; and
xi. Allows the Applicants, in accordance with Rule 63 of its Rules,

to file their written submissions on the other forms of reparation within
thirty (30) days from the date of notification of this Judgment; and the
On costs
xii. Decides that each Party shall bear their own costs.
Application 10/2015, Amiri Ramadhani v United Republic of Tanzania

The Applicant had been convicted and sentenced for robbery of a motor
vehicle, attempted suicide and for inflicting grievious bodily harm on his
person. He brought this Application claiming a violation of his rights as a
result of his detention and trial. The Court found that the Applicant’s fair
trial guarantees had been violated.
Jurisdiction (conformity of domestic proceedings with Charter, 24)
submission within reasonable time, 50)
Fair trial (free legal representation, 68, 69)
Reparations (not appellate court, 84; release an exceptional remedy,
85)
I. The Parties
1. The Applicant, Mr Amiri Ramadhani (herein-after referred to

as the “Applicant”) is a national of the United Republic of Tanzania
who is serving a thirty (30) year sentence in Ukonga Central Prison in
Dar es Salaam for armed robbery, attempted suicide and for inflicting
grievious bodily harm on his person.
(herein-after referred to as the “Respondent State”) which became a
Party to the African Charter on Human and Peoples’ Rights (herein-
after referred to as the “Charter”) on 21 October 1986, and to the
Protocol to the African Charter on Human and Peoples’ Rights (herein-
after referred to as the “Protocol”) on 10 February 2006. Furthermore,
the Respondent State on 29 March 2010, deposited the Declaration
prescribed in Article 34(6) of the Protocol accepting the jurisdiction of
the Court.
3. The Applicant alleges that he was charged on 2 March 1998

Ramadhani v Tanzania (merits) (2018) 2 AfCLR 344 345
with the offence of robbery of a vehicle, attempted suicide and inflicting

serious bodily harm on his person in Criminal Case No. 199/98 before
the Arusha District Court; On 25 August 1999, the Applicant was
convicted and sentenced to thirty (30) years’ imprisonment for armed
robbery, an offense punishable under Sections 285 and 286 of the
Penal Code, Chapter 16 of the Laws of Tanzania; 7 years for attempted
suicide under Section 217 of the same Code; and 2 years for causing
grievous bodily harm under Section 225 of this Code.
4. On 28 August 1999, the Applicant appealed the Judgment
rendered by the Arusha District Court before the High Court of
Tanzania in Criminal Case No. 64/2000 and on 22 September 2005,
the High Court upheld the 30 years imprisonment sentence set aside
the 7 years imprisonment sentence for attempted suicide by reducing
the same to 2 years, and dismissed all the other counts.
5. On 25 September 2005, the Applicant filed Criminal Appleal No.
228/2005 before the Court of Appeal of Tanzania sitting in Arusha. By
a Judgment of 29 October 2007, the Court of Appeal dismissed this
appeal and upheld the sentence of thirty (30) years imprisonment.
6. The Applicant made several complaints in relation to the manner

of his detention, trial and sentencing by the Respondent State’s judicial
authorities. He specifically complains about the following:
“i. Having been accused on the basis of the biased acts
of a Police Officer who, acting for and on behalf of the
Criminal Investigation Department (CID), obtained and
registered the Applicant’s statement in a manner contrary
to the established procedure;
ii. Having been detained in contravention of the provisions
of Sections 50 and 51 of the Criminal Procedure Act;
iii. Having been sentenced on the basis of an error in law
and in fact for having taken into account the so-called
testimony of a prosecution witness;
iv. The excessive nature of the 30 years prison sentence
pronounced by the Court of First Instance contrary to the
maximum sentence of 15 years set forth in Sections 285
and 286 of the Penal Code;
v. Having been sentenced in violation of Section 13 (b)
(c) of the 1977 Constitution of the United Republic of
Tanzania and contrary to the African Charter on Human
and Peoples’ Rights;
vi. That the Appellate Courts failed to take note that the
30 years prison sentence was excessive and was not

applicable at the time the facts occurred;
vii. Having not received the assistance of a lawyer as well as
legal aid;
viii. Having thus been discriminated against.”
7. That in light of the foregoing, the Applicant submits that the
Respondent State has violated Article 13(b)(c) of the Constitution of
the United Republic of Tanzania, as well as Articles 1, 2, 3, 4, 6 and
7(c) and (2) of the African Charter on Human and Peoples’ Rights.
8. The Registry received the Application on 11 May 2015 and

acknowledged receipt thereof on 5 June 2015.
9. By a notice dated 9 June 2015 the Registry, pursuant to
Rules 35(2) and 35(3) of the Rules of Court (herein-after referred
to as the “Rules”), served the Application on the Respondent State,
and transmitted the same to the Chairperson of the African Union
Commission and, through her, to all the other States Parties to the
Protocol.
10. By a letter dated 14 August 2015 received at the Registry on 18
August 2015 the Respondent State filed its Response.
11. Following the directive of the Court, the Registry requested the
Pan African Lawyers Union (PALU) to provide legal assistance to the
Applicant. On 20 January 2016 PALU accepted to assist the Applicant
and the Parties were notified accordingly. On 29 January 2016 the
Registry forwarded to PALU all the relevant documents on the Matter
to enable the latter file a Reply to the Response. On 30 May 2016 the
Registry informed PALU that the Court had, proprio motu, granted it an
extension of thirty (30) days within which to file the Reply.
12. On 27 June 2016 PALU filed its Reply which was transmitted to
the Respondent State by a notice dated 28 June 2016.
13. On 14 September 2016, the Court decided that the written
procedure is closed, and the Parties were notified accordingly.
14. The Applicant’s prayers as contained in the Application are as

follows:
“i. Facilitate him with free legal representation or legal aid
under Rule 31 of the Rules of Court and Article 10(2) of
the Protocol;
ii. Declare the Application admissible and give effect thereto
by invoking the admissibility conditions prescribed in

Article 56 of the Charter, Article 6(2) of the Protocol and
Rule 40 of the Rules of Court;
iii. Declare that the Respondent State has violated the
Applicant’s rights guaranteed by Articles 1, 2, 3, 4, 5, 6,
and 7(c) and (2) of the Charter;
iv. Consequently, issue an order compelling the Respondent
State to set free the Applicant;
v. Issue an order for reparations by virtue of Article 27(1) of
the Protocol and Rule 34(5) of the Rules, and such other
order or measure as the Court may deem appropriate.
should this Honourable Court find merit in the Application
and in the prayers sought;
vi. Quash the conviction for armed robbery, the punishment
inflicted and release the Applicant from prison.”
15. In the Reply to the Respondent State’s Response, the Applicant
reiterated his prayers, and sought the following orders from the Court:
“A declaration that the Application is admissible and that the Court
has jurisdiction to hear the case on the merits as per Articles 3(2)
of the Protocol and Rules 26(2) and 40(6) of its Rules;
A declaration that the Respondent State has violated the Applicant’s

right to a fair trial as protected by the Charter under Article 7 on at
least two grounds:
(i) failure to provide the Applicant with legal assistance;

(ii) convicting the Applicant on the sole basis of a statement
under caution that was uncorroborated and which the
Applicant had in any case withdrawn.”
16. In its Response, with respect to the jurisdiction and admissibility
of the Application, the Respondent State prays the Court to:
“i. Hold that the Application has not invoked the jurisdiction
of this Honourable Court;
ii. Dismiss the Application for non-compliance with the
admissibility conditions stipulated under Rule 40(5) of the
Rules.”
17. With respect to the merits of the Application, the Respondent
State prays the Court to rule that it has not violated Articles 1, 2, 3, 4,
5, 6, 7 (1)(c) and 7(2) of the Charter.
18. The Respondent State therefore prays the Court to dismiss
the Application for lack of merit, as well as the Applicant’s request for
reparations and rule that the Applicant should continue to serve his
prison sentence.
V. Jurisdiction
19. Pursuant to Rule 39(1) of its Rules, the Court “shall conduct
preliminary examination of its jurisdiction….”
20. The Respondent State submits that the Applicant requires this
Court to act as an Appeal Court or Supreme Court, whereas it does not
have the power to do so.
21. According to the Respondent State, Article 3 of the Protocol
does not give the Court the latitude to adjudicate on issues that have
not been raised by the Applicant before the national courts, review
judgments rendered by the said courts, reassess the evidence and
make a finding.
22. The Respondent State asserts that in its judgment in Criminal
Case No. 228/2005, the Court of Appeal of Tanzania examined all
the allegations made by the Applicantand that this Court is bound to
respect the Judgment rendered by that Court.
23. The Applicant refutes this assertion. Citing the Court’s
jurisprudence, particularly in Alex Thomas v United Republic of
Tanzania and Peter Joseph Chacha v United Republic of Tanzania, he
submits that the Court has jurisdiction as long as the allegations made
are in respect of human rights violations.
24. The Court reiterates its position, that it is not an appellate body
with respect to the decisions of national courts.1 As the Court had
emphasised in its 20 November 2015 Judgment in Alex Thomas v
United Republic of Tanzania, it held that: “though this Court is not an
appellate body with respect to decisions of national courts this does
not preclude it from examining relevant proceedings in the national
courts in order to determine whether they are in accordance with the
standards set out in the Charter or any other human rights instruments
ratified by the State concerned”.2 In the instant case, the Court’s
1 Application No.005/2013, Judgment of 20/11/2015, Alex Thomas v United

Republic of Tanzania (Alex Thomas v Tanzania Judgment), para 130; Application
No. 010/2015, Judgment of 28/09/2017, Christopher Jonas v United Republic
of Tanzania (Christopher Jonas v Tanzania Judgment), para 28; Application
No. 003/2014, Judgment of 24/11/2017, Ingabire Victoire Umuhoza v Republic
of Rwanda (Ingabire Victoire v Rwanda Judgment), para 52; Application No.
007/2013, Judgment of 03/06/2013, Mohamed Abubakari v United Republic of
Tanzania (Mohamed Abubakari v Tanzania Judgment), para 29.
jurisdiction cannot be contested as long as “the rights allegedly violated

are protected by the Charter or any other human rights instruments
ratified by the Respondent State.”3
25. In any case, the Applicant has alleged violations of the rights
guaranteed by the Charter. Accordingly, the Court dismisses the
Respondent State’s objection in this regard and holds that it has
material jurisdiction.
jurisdiction is not contested by the Respondent State, and that nothing
on record indicates that the Court lacks jurisdiction. It therefore holds:
i. that it has personal jurisdiction, given that the Respondent
State is a Party to the Protocol and has deposited the
Declaration prescribed under Article 34(6) allowing
individuals to bring applications directly to the Court,
pursuant to Article 5(3) of the Protocol (supra, paragraph
2);
ii. that it has temporal jurisdiction insofar as the alleged
violations are of a continuing nature, since the Applicant
is still convicted for what he considers to be defects;4
iii. that it has territorial jurisdiction insofar as the facts
occurred in the territory of the Respondent State, a State
Party to the Protocol.
27. In light of the foregoing considerations, the Court holds in
conclusion that it has jurisdiction to hear the case.
28. In terms of Article 6(2) of the Protocol, “The Court shall rule on

preliminary examination of … the admisibility of the Application in
accordance with Article… 56 of the Charter and Rule 40 of these
Rules”.
3 Ibid para 45.

4 Application No. 011/2013, Ruling of 21/06/2013, (Preliminary Objections),
Beneficiaries of the late Norbert Zongo and Others v Burkina Faso (Norbert Zongo
v Burkina Faso Ruling), paras 71 to 77.


mass media;
with the matter;

Parties
31. The Respondent State raises two objections regarding the

exhaustion of local remedies and the timeframe for seizure of the Court.
i. Objection based on alleged non-exhaustion of local

remedies
32. In its Response, the Respondent State argues that the Application
has not complied with the admissibility conditions prescribed under
Article 56(5) of the Charter and Rule 40(5) of the Rules and that it
has not been filed within a reasonable time after local remedies were
exhausted.
33. The Respondent State further argues that with regard to the
alleged violation of the rights enshrined in the Bill of Rights, Part III,
Articles 12 to 29 of the Constitution of the United Republic of Tanzania,
as in this case, the Applicant has the possibility to file a Constitutional
Petition before the High Court of Tanzania orrequest a review of the
decision of the Court of Appeal in accordance with Rule 65 of that
Court’s Rules.
34. The Respondent State argues in conclusion that the Applicant’s
refusal to exercise the available and effective remedies, especially the

Constitutional Petition, the review remedy and the request for legal
assistance, all constitute tangible proof that the Applicant has not
exhausted local remedies and that the Application should therefore be
dismissed for non-compliance with the provisions of Rule 40(5) of the
Rules.
35. The Applicant, in his Reply, does not contest the existence of
the remedies invoked by the Respondent State but rather whether he
was required to exhaust them. He argues that the remedies have been
exhausted in as far as the Court of Appeal, the highest Court in the
United Republic of Tanzania, delivered a Judgment in Criminal Case
No. 228/2005, following his appeal.
36. With regard to the constitutional petition remedy and the review
remedy, the Applicant alleges that these are “extraordinary remedies”
which are not required to be pursued for the purposes of seeking
redress before this Court.
37. Consequently, the Applicant argues that he has exhausted
all the available local remedies and that the Application meets the
admissibility condition set out in Rule 40(5) of the Rules of Court.
38. With regard to local remedies, the Court notes that it has been
established that the Applicant filed an appeal against his conviction
before the Court of Appeal of Tanzania, the highest judicial organ of
the country, and that this Court upheld the judgments of the High Court
and the District Court.
39. The key question is whether the two other remedies mentioned
by the Respondent State, namely, the Constitutional Petition before the
High Court and the Review before the Court of Appeal are remedies
that must be exhausted by the Applicant within the meaning of Rule
40(5) of the Rules which in essence restates the provisions of Article
56(5) of the Charter. Regarding the filing of a Constitutional Petition
on the violation of the Applicant’s rights, the Court has already stated
that this remedy in the Tanzanian judicial system is an extraordinary
remedy that the Applicant is not required to exhaust prior to seizing this
Court.5 Similarly for the Application for Review.6
40. It is therefore clear that the Applicant has exhausted all the
available ordinary remedies that he was required to exhaust. For this
reason, the Court dismisses the objection based on the non-exhaustion
of all local remedies proposed by the Respondent State.
5 Alex Thomas v Tanzania Judgment paras 65; Mohamed Abubakari v Tanzania

Judgment op cit paras 66-70; Application No.011/2015. Judgment of 28/09/2017,
Christopher Jonas v United Republic of Tanzania. (Christopher Jonas v Tanzania
Judgment) para 44.
6 Alex Thomas v Tanzania Judgment para 63.
ii. Objection based on alleged non-compliance with a

reasonable time
41. The Respondent State submits that the Applicant filed this
Application five (5) years and two (2) months, after the Respondent
State deposited the Declaration prescribed under Article 34(6) of the
Protocol.
42. The Respondent State maintains that the Application is
inadmissible on the grounds that it has not complied with the conditions
of admissibility envisaged in Rule 40(6) of the Rules.
43. The Respondent State relying on the jurisprudence of the African
Commission on Human and Peoples’ Rights in Majuru v Zimbabwe,7
maintains that six (6) months is a reasonable period within which the
Application should have been filed.
44. In his Reply, the Applicant refutes the Respondent State’s
allegations on reasonable time and argues that the Declaration filed
under Article 34(6) of the Protocol was deposited thirty (30) months
after the Court of Appeal’s Judgment in Criminal Case No. 228/2005.
The Applicant adds that, at that time, he was already incarcerated
following his conviction and moreover, he had no access to information.
45. The Applicant asserts that, in the circumstances, the Application
was filed within a reasonable time as envisaged by Article 56(6) of the
Charter and Rule 40(6) of the Rules and he prays that the Court should
refer to its own jurisprudence which requires that compliance with this
requirement should be determined on a case-by-case basis.
46. The Applicant further contends that, in the circumstances, it was
difficult for him being a lay person with regard to judicial matters to be
aware that new remedies which were hitherto unavailable were now
possible.
47. Lastly, the Applicant submits that, if the Court dismisses his
Application on the ground that it should have been filed earlier than
was the case, this would amount to a flagrant injustice and a continuing
violation of the rights set forth in Articles 6 and 7 of the Charter, given
that he is still in prison.
48. The Court notes that Article 56(6) of the Charter does not specify
any time frame within which a case must be filed before this Court.
Rule 40(6) of the Rules, which, in substance, restates Article 56(6) of
the Charter, simply mentions “a reasonable time from the date local
remedies were exhausted orfrom the date set by the Court as being
the commencement of the time limit within which it shall be seized with
the matter.”
7 Michael Majuru v Zimbabwe (2008) AHRLR 146 (ACHPR 2008).

49. Local remedies were exhausted on 20 October 2007 when the

Court of Appeal delivered the judgment. However, it was only on 29
March 2010 that the Respondent State filed the Declaration under
Article 34(6) of the Protocol allowing individuals such as the Applicant to
file applications before this Court. Therefore, this is the date from which
time should be reckoned regarding the assessment of reasonableness
as envisaged in Rule 40(6) of the Rules. The Application was filed
five (5) years, one (1) month, one (1) week and six (6) days after
the Respondent State filed the aforementioned Declaration. On
this issue, the Court recalls its jurisprudence in Norbert Zongo and
Others v. Burkina Faso in which it held that: “the Court finds that the
reasonableness of the timeframe for seizure depends on the specific
circumstances of the case and should be determined on a case-by-
case basis”.8
50. In the instant case, the fact that the Applicant is in prison, restricted
in his movements and with limited access to information; the fact that
he is indigent and unable to pay a lawyer; the fact that he did not have
free assistance of a lawyer since March 1998; and may not have been
aware of the existence of this Court before filing the Application- all
justify some flexibility in determining the reasonableness of the time for
filing this Application. In view of the foregoing, the Court finds that the
Applicaiton has complied with the requirement of filing the Application
within a reasonable time.
51. Accordingly, the Court dismisses the objection relating to the
non-compliance with the requirement of filing the Application within a
reasonable time and consequently finds Application admissible.

the Parties
52. The conditions in respect of the identity of the Applicant,

incompatibility with the Constitutive Act of the African Union and the
Charter, the language used in the Application, the nature of the evidence
and the principle that an application must not raise any matter already
Rules 1, 2, 3, 4 and 7 of Rule 40 of the Rules), are not in contention
between the Parties. The Court notes that nothing on record indicates
that any of these conditions has not been fulfilled in this case.
8 Alex Thomas v Tanzania Judgment op cit, para 73; Zongo and Others v Burkina
Faso Judgment op cit para 121.
53. In light of the foregoing, the Court finds that this Application
meets all the admissibility conditions set out in Article 56 of the Charter
and Rule 40 of the Rules and declares the Application admissible.
VII. The merits
54. The Applicant alleges that the Respondent State has violated
Articles 1, 2, 3, 4, 5, 6, 7(1)(c) and 7(2) of the Charter. The Court
however notes that the Applicant dwelt only on violations of Articles 1
and 7 of the Charter which relate to rights, duties and freedoms, and
the right to a fair trial, which this Court will now examine.
A. Alleged violations of the right to a fair trial
55. The Applicant raises several claims that relate to the alleged
violation of the right to a fair trial which reads as follows:
comprises:
a. the right to an appeal to competent national organs against acts

b. the right to be presumed innocent until proved guilty by a
c. the right to defense, including the right to be defended by
d. the right to be tried within a reasonable time by an impartial court
or tribunal.
2. No one may be condemned for an act or omission which did not
constitute a legally punishable offence at the time it was committed. No
penalty may be inflicted for an offence for which no provision was made
at the time it was committed. Punishment is personal and can be imposed
only on the offender.”
i. Allegation relating to the defective charge sheet
56. The Applicant complains of procedural defects relating to the

Charge Sheet arguing that the courts relied on the statement contained
in the “statement under caution,” tendered as Exhibit P1. which he
contests, alleging that it was obtained contrary to Sections 50 and 51
of the Criminal Procedure Act and, consequently, that the charge sheet
was defective.
57. The Applicant further argues that where an accused contradicts
his statements ab initio, the Court must determine the voluntary nature
of the said statements prior to admitting them in evidence. He avers

that reliance on the statements contested by the Applicant to justify
a conviction constitutes a violation of the principle of presumption of
innocence set out in Article 7(1)(b) of the Charter.
58. The Respondent State disputes the Applicant’s allegations,
pointing out that the Applicant should provide proof to support his
claim. According to the Respondent State, the statements made by the
Applicant while in detention were compliant with the Criminal Procedure
Act Chapter 20 of the Laws of Tanzania and their evidentiary value has
been legally admitted and corroborated in accordance with the law of
evidence.
59. The Court notes that the record before it shows that the Applicant
contested his indictment at the High Court.
60. The Court finds, however, that the Applicant claims that
there were procedural defects during his interrogation but does not
satisfactorily explain how and whether these irregularities vitiated the
decicion against him.
61. For the above reasons, the Court relying on the record, holds
that the allegation in respect of irregularities in the charge sheet is not
established.
ii. The allegation relating to an error in law with regard to

the testimony of Prosecution Witness 1
62. The Applicant alleges that the Trial Judge and the Appelate
Judges relied on the statements of Prosecution Witness 1 (PW1)
obtained by a police officer acting in lieu of a Criminal Investigation
Police Officer who showed up at the crime scene for the purpose of
investigation, in breach of the procedure in this respect.
63. The Respondent disputes these allegations and submits that the
Applicant has not provided irrefutable proof.
64. It is apparent from the record on file and, more specifically, from
a reading of the three judgments delivered by the national courts that
the Applicant’s guilt was based not only on the statement of witness
PW1, but also on witnesses PW2, PW3 and PW4, and at no point
in the proceedings was the allegation regarding the annulment of the
proceedings in relation to prosecution evidence PW1 raised. The Court
further notes that the Applicant has not provided proof of this allegation.
65. The Court holds in conclusion that the allegation regarding
procedural error relating to the statement of the prosecution witness
PW1 is unfounded.
iii. The allegation relating to the lack of legal assistance
66. The Applicant alleges that he is indigent and that he received

no legal assistance throughout the procedure which culminated in
his conviction, whereas such assistance was imperative in view of
the seriousness of the offence with which he was charged. He infers
therefrom that the lack of free legal assistance has led to violation of
his right to a fair trial guaranteed under Article 7 of the Charter.
67. The Respondent State claims that The Legal Aid (Criminal
Proceedings) Act, of 1 July 1969 as amended in 2002, provides
for free legal aid in criminal proceedings involving indigent persons
under certain conditions, including a request for that purpose. The
Respondent State claims that the records indicate that the Applicant
never made such a request to the national courts, and therefore that
his claim in this regard is unfounded and must be dismissed.
68. The Court has previously held in the Matter of Mohamed
Abubakari v United Republic of Tanzania that “an indigent person
under prosecution for a criminal offence is particularly entitled to free
legal assistance where the offence is serious, and the penalty provided
by law is severe”.9
69. The Applicant, in the instant case, being in the same situation
as described above, the Court finds that the Respondent State was
under an obligation to provide him, automatically and free of charge,
the services of a lawyer throughout the judicial proceedings in the
domestic courts. Having failed to do so, the Respondent State violated
iv. The allegation that the thirty years prison sentence

was not in force at the time the facts occured
70. The Applicant submits that the thirty (30) years prison sentence
pronounced by the Trial Court against him was excessive in terms of
Sections 285 and 286 of the Penal Code which prescribes a maximum
sentence of fifteen (15) years; and therefore that his conviction
contravened the Constitution of the United Republic of Tanzania. He
further submits that the 30 years prison sentence introduced and
published by the Official Gazette No. 269 of 2004 in its Section 287 A,
was not applicable at the time the facts occurred.
71. The Respondent State contests the above allegations,
submitting that it lies with the Applicant to prove it. According to the
Respondent State, the punishment applicable to the offence of armed
9 Mohamed Abubakari v Tanzania Judgment op cit paras 138-142.

robbery under the Minimum Sentences Act as amended, is a custodial

sentence of at least 30 (thirty) years. It states in conclusion that the
punishment for armed robbery handed down by the Trial Court in
Criminal Case No. 199/1998 was consistent with the Penal Code, the
Minimum Sentences Act and Article 13(6)(a) of the Constitution of the
United Republic of Tanzania (1977).
72. The Court notes that the issue for determination is whether or
not the sentence meted out on the Applicant in 1999 and upheld by the
Court of Appeal in 2006 and 2007, is in breach of the law.
73. The Court has already noted that thirty (30) years prison sentence
has been, since 1994 the minimum punishment applicable to armed
robbery in the United Republic of Tanzania.10 In this case, the records
show that in March 1998, the law applicable at the time the offence
in question (armed robbery) was committed is the Tanzanian Penal
Code of 1981 and the Minimum Sentences Act of 1972 as amended
in 1989 and in 1994; and, consequently, the Applicant’s allegation is
unfounded.
74. The Court therefore holds that the allegation of a violation with
regard to the punishment imposed on the Applicant following his
conviction for armed robbery is unfounded and, as such, dismisses the
allegation.
B. The allegation regarding the violation of Article 1 of

the Charter
75. In the Application, it is alleged that the Respondent State has

violated Article 1 of the Charter. The Respondent State, for its part,
contends that all the rights of the Applicant have been respected.
“The Member States of the Organisation of African Unity, Parties to the
present Charter shall recognise the rights, duties and freedoms enshrined
in the Charter and shall undertake to adopt legislative or other measures
to give effect to them”.
77. The Court has already found that the Respondent State has
violated Article 7(1) (c) of the Charter for having failed to provide the
Applicant with legal assistance. Consequently, the Court reiterates its
finding in Alex Thomas v United Republic of Tanzania, that: “… when
the Court finds that any of the rights, duties and freedoms set out in the
Charter are curtailed, violated or not being achieved, this necessarily
means that the obligation set out under Article 1 of the Charter has not
10 Mohamed Abubakari v Tanzania Judgment op cit para 210.

been complied with and has been violated.”11

78. After having found that the Applicant was deprived of his right
to free legal assistance in violation of Article 7(1)(c) of the Charter, the
Court holds that the Respondent State had simultaneously violated its
obligation under Article 1 of the Charter.
79. As indicated in paragraph 16 of this Judgment, the Applicant

prays, inter alia, that the Court set aside his conviction, release him
from prison and order that reparation measures be taken.
80. As indicated in paragraph 19 above the Respondent State
requests that the Application be dismissed in its entirety for lack of merit
and that accordingly, the Applicant should not be granted reparation.
there has been a violation of a human or peoples’ rights, it shall make
82. In this respect, Rule 63 of the Rules stipulates that “the Court
shall rule on the request for the reparation … by the same decision
83. The Court recalls its position on State responsibility in Reverend
Christopher R. Mtikila v United Republic of Tanzania, that “any
violation of an international obligation that has caused harm entails the
obligation to provide adequate reparation.”12
84. As regards the prayer to quash the Applicant’s conviction and
sentencing, the Court reiterates its decision that it is not an appellate
Courts with powers to overturn the decisions of national courts,
therefore it declines to grant this prayer.13
case, the Applicant has not set out such circumstances. Accordingly,
the Court dismisses this prayer.
86. The Court notes, however, that its decision does not prevent the
11 Alex Thomas v Tanzania Judgment, op cit para 135.

12 Application No. 011/2011 Ruling of 13/06/2014, Reverend Christopher R Mtikila v
United Republic of Tanzania, para 27.
13 Application No.032/2015 Judgment of 23/03/2018, Kijiji Isiaga v United Republic of
Tanzania para 95.
14 Alex Thomas v Tanzania Judgment op.cit, para 157; Mohamed Abubakari v
Tanzania Judgment op cit, para 234.
Respondent State from taking such a measure, itself.

87. The Court, lastly, notes that the Parties did not file submissions
regarding other forms of reparation. Hence, the Court shall rule on this
issue at a later stage of the proceedings, after hearing the Parties.
IX. Costs
88. Pursuant to Rule 30 of the Rules “unless otherwise decided by

89. The Court notes that none of the Parties made prayers as to
Costs.
90. Considering the circumstances of this matter, the Court decides
that each Party shall bear its own costs.
X. Operative part

The Court,
unanimously
On jurisdiction:
On admissibility:
iii. Dismisses the objections on admissibility of the Application;
On the merits:
v. Finds that the alleged violation of Article 7relating to irregularities
in the Charge Sheet has not been established;
vi. Finds that the Respondent State has not violated Article 7(1)(b)
of the Charter as regards the Applicant’s allegation on procedural error
in respect of the statement of PW 1;
vii. Finds that the Respondent State has not violated Article 7(2) of
the Charter as regards the applicability of the sentence at the time the
robbery was committed;
viii. Finds however, that the Respondent State has violated Article
7(1)(c) of the Charter as regards the failure to provide the Applicant
with free legal assistance during the judicial proceedings; and
consequently, finds that the Respondent State has also violated Article
1 of the Charter;
ix. Does not grant the Applicant’s prayer for the Court to quash his
conviction and sentence.
x. Does not grant the Applicant’s prayer for the Court to directly
order his release from prison, without prejudice to the Respondent
State applying such a measure proprio motu;
xi. Reserves its decision on the Applicant’s prayer on other forms
of reparation:
xii. Decides that each Party bear its own Costs;
xiii. Allows the Applicant, in accordance with Rule 63 of its Rules,
to file his written submissions on the other forms of reparation within
thirty (30) days from the date of notification of this Judgment; and the
Chrysanthe v Rwanda (jurisdiction and admissibility) (2018) 2 AfCLR 361 361
Chrysanthe v Rwanda (jurisdiction and admissibility) (2018)

2 AfCLR 361
Application 022/2015, Rutabingwa Chrysanthe v Republic of Rwanda

Judgment, 11 May 2018. Done in English and French, the French text
The Applicant commenced this Application challenging the manner of
his dismissal by the Respondent State. The Court declared the case
inadmissible as the Applicant had failed take the case to the Supreme
Court without any explanation.
Admissibility (exhaustion of local remedies, 45, 46; conditions are
cumulative, 47)
I. The Parties
1. The Applicant, Rutabingwa Chrysanthe, is a citizen of the

Republic of Rwanda.
2. The Respondent State, the Republic of Rwanda, became
a Party to the African Charter on Human and Peoples’ Rights
(hereinafter referred to as “Charter”) on 21 October 1986 and to the
Protocol on 25 May 2004. The Respondent State also deposited the
Declaration prescribed in Article 34(6) of the Protocol, accepting the
jurisdiction of the Court to receive applications from individuals and
non-governmental organizations on 22 January 2013. On 29 February
2016, the Respondent State notified the African Union Commission
of its withdrawal of the aforesaid Declaration, and the African Union
notified the Court on 3 March 2016 of the same. The Court issued
an Order on 3 June 2016 indicating that the Respondent State’s
withdrawal will take effect on 1 March 2017.1
3. The Applicant was recruited by Decision of the Council of
1 See the Court’s Order on this matter dated, 3 June 2016 on the Respondent State’s
withdrawal of the declaration made by virtue of Article 34(6) of the Protocol.
Ministers dated 17 September 1999, to serve as an Audit and

Evaluations Expert at the Privatisation Secretariat under the auspices
of the Ministry of Finance, and was on 27 February 2001, dismissed
by Decision No. 116/PRIV/BR/RU of the Executive Secretary, for
disclosure of confidential documents. The Applicant believes that the
decision to dismiss him was unfair and unconstitutional.
4. By an Application dated 19 April 2013, registered as No.
003/2013, the Applicant initially seized the Court for alleged violation of
Articles 10 and 11 of the Constitution of Rwanda.
5. Following a promise of amicable settlement from the Respondent
State, the Applicant, by a letter dated 21 April 2014, received at the
Registry on 22 April 2014, informed the Court that he had met with a
representative of the Republic of Rwanda on the matter; and that at
the end of the discussion, he decided to abandon the procedure, and
consequently requested the Court to strike the case off its Cause List.
6. By an Order dated 14 May 2014, the Court acceded to the
Applicant’s request and ordered that the Case be struck off its Cause
List. The Parties were notified of the Order on 15 May 2014.
7. By a new Application dated 10 November 2014, the Applicant
seized the Court with an application alleging violation of Articles 10 and
11 of the Constitution of Rwanda.
8. The Applicant alleges that his dismissal is illegal and

unconstitutional, and that having failed to solve his problem up to now,
the Respondent State has violated the following rights guaranteed
under the Charter:
“i. enjoyment of the rights and freedoms recognized and
guaranteed under Article 2 of the Charter;
ii. right to equality and equal protection before the law under
Article 3 of the Charter;
iii. right to respect for his life under Article 4 of the Charter;
iv. right to have his cause heard under Article 7 of the Charter;
v. right of access to the public service of his country, the
right to work in equitable and satisfactory conditions and
to receive equal pay for equal work under Article 15 of the
Charter;
vi. right to equal protection of the law and to non-discrimination
under Articles 14(1) and 26 of the International Covenant
on Civil and Political Rights (ICCPR);
vii. right of every individual to enjoy just and favourable
conditions of work under Article 7 (a) of the International
Covenant on Economic, Social and Cultural Rights

(ICESCR).”
9. The Application which was received at the Registry on 10

November 2014, was served on the Respondent State on 6 October
2015. The latter was requested to transmit its Response to the
Application within 60 days, pursuant to Rules 35(2) and 37 of the Rules.
10. On 13 January 2015, the Registry transmitted the Application to
the Chairperson of the African Union Commission and, through the latter, to
all the other States Parties to the Protocol, pursuant to Rule 35(3) of the
Rules.
11. On 7 December 2015, the Respondent State submitted its
Response which was transmitted to the Applicant on 15 January 2016.
12. On 4 March 2016, the Applicant filed his Reply which was
transmitted to the Respondent State.
13. On 15 March 2016, the Registry notified the Applicant of the
Respondent’s filing of the instrument of withdrawal of the Declaration
it made under Article 34(6) of the Protocol, and requested his
observations.
14. On 29 March 2016, the Applicant submitted its Reply to the
issue of Rwanda’s withdrawal of its Declaration, a reply transmitted to
the Respondent State on 21 April 2016.2
15. On 31 May 2016, the Registry notified the Parties of the closure
of written pleadings.

“i. nullify Decision No. 116/PRIV/BR/RU on the dismissal
on the grounds that the said decision did not follow the
established procedure, and is unjust and unconstitutional;
ii. ii. reimburse the salaries unpaid since 8 February 2014
on the basis of the gross salary of 300,000 Rwanda Franc
(RWF) with effect from the date of dismissal (27 February
2001) up to the day of reinstatement;
iii. iii. order the State to provide him with residential
accommodation in lieu of the one he had to sell to meet
his needs;
2 Supra para 2.
iv. iv. reinstate him in the public service pending his

attainment of the retirement age of 65 or place him on
early retirement; [and]
v. v. grant the additional prayer for an Order to pay him
the sum of US$ 1,000,000 (one million US dollars)
in reparation for all the damages and humiliation he
suffered”.
“i. declare the Application inadmissible;
ii. dismiss the Application as manifestly baseless;
iii. order the Applicant to pay the costs;
iv. make all such Order(s) as it deems fit”.
V. Jurisdiction
18. In terms of Rule 39(1) of the Rules of Court, “the Court shall
conduct preliminary examination of its jurisdiction…”.
19. The Court notes that its material, personal, temporal and
territorial jurisdiction has not been contested by the Respondent State
and nothing on the record indicates that the Court does not have
“i. it has material jurisdiction because the Application alleges
violations of the rights guaranteed by international human
rights instruments ratified by the Respondent State3;
ii. it has personal jurisdiction given that the Respondent State
is a Party to the Protocol and deposited the Declaration
contemplated in Article 34(6) which enables individuals
and NGOs to directly access the Court under Article 5(3)
of the Protocol;4;
iii. it has temporal jurisdiction insofar as the alleged violations
are of a continuing nature;
iv. it has territorial jurisdiction given that the facts of the
Matter occurred in the territory of a State Party to the
Protocol, that is, the Respondent State.”
20. From the foregoing considerations, the Court finds that it has
jurisdiction to hear the instant case.

4 See para 2 of this Judgment.
VI. Admissibility
21. The Respondent State raises a preliminary objection based on

Rule 67 of the Rules, and two preliminary objections on the admissibility
of the Application based on Article 56(5) and 6 of the Charter.
A. Preliminary objection based on Rule 67 of the Rules
22. In its Response, the Respondent State, raises preliminary

objection based on Rule 67 of the Rules, arguing that the Court has
already made a ruling on the initial application under Application No.
003/2013 which must not be re-opened, unless reintroduced under the
conditions set out in Article 28(2) and (3) of the Protocol.
23. The Respondent State alleges that the Application dated 10
November 2014 is inadmissible as per Rule 67 of the Rules on the
grounds that the Court’s Order of 14 May 2014 was final, and could not
be reviewed save under the conditions set out in Rule 67 of the Rules.
24. The Respondent State also argues that in Application 003/2013
brought against it, the Order of 14 May 2014, striking the case off the
Cause List was issued at the request of the Applicant. It adds that the
Court having already made a ruling thereon, cannot re-open the matter.
25. The Respondent State maintains in conclusion that the Applicant
has not adduced any evidence to demonstrate that the Application of
10 November 2014 fulfils the conditions set down in Rule 61 and 67 of
the Rules on the review of a judgment.
26. The Applicant did not make any submission on these assertions
by the Respondent State.
27. Article 28(3) of the Protocol stipulates that: “without prejudice to
Sub-Article 2 above, the Court may review its decision in the light of
new evidence under conditions to be set out in the Rules”.
28. Rule 67 of the Rules provides that: “pursuant to Article 28(3) of
the Protocol, a Party may apply to the Court to review its judgment in
the event of discovery of evidence, which was not within the knowledge
of the Party at the time judgement was delivered. Such Application
must be filed within six (6) months after that Party acquired knowledge
of the evidence so discovered”.
29. The Court notes that by Order of 14 May 2014, it struck out
Application No. 003/ 2013, filed by the same Applicant.
30. The Court further notes that that the same Applicant filed a new
Application on 10 November 2014, which was registered in the Court’s
Register as Application No. 022/ 2015 versus Rwanda.
31. The Court therefore holds that what is before it is the Application
No. 022/2015 versus Rwanda and that in this case, Article 28 of the
Protocol and Rule 67 of the Rules do not apply.
32. The Court therefore dismisses the objection to the admissibility

of the Application based on Rule 67 of the Rules.
B. Objections based on the conditions outlined under

Article 56 of the Charter and Rule 40 of the Rules
33. In accordance with Article 6(2) of the Protocol, “the Court shall
rule on the admissibility of cases taking into account the provisions of
Article 56 of the Charter”.
34. Pursuant to Rule 39 of the Rules, the Court shall conduct
preliminary examination of its jurisdiction and the admissibility of the
Application in accordance with Articles 50 and 56 of the Charter, and
rule 40 of the Rules.
35. Rule 40 of the Rules, which substantially reproduces the content
of Rule 56 of the Charter, provides as follows:

mass media;
7. not raise any mater or issues previously settled by the Parties
36. The Respondent State raises two objections to the admissibility
of the Application based on the conditions under Article 56 of the
Charter, namely, the non-exhaustion of local remedies under Article
56(5), and that the Application was not filed within a reasonable time
as required under Article 56(6) of the Charter.
C. Objection based on the alleged non-exhaustion of

local remedies
37. The Respondent State submits that, according to the Declaration

made by Rwanda to entitle individuals to directly bring cases before the
African Court, the individuals must first exhaust all the local remedies
before the competent bodies and courts of the Republic of Rwanda.
38. According to the Respondent State, the requirement of exhausting
local remedies is a general principle founded on the conviction that
a State must be given the possibility to repair the violations of its
obligations in matters of human rights through internal mechanisms
prior to such violations being brought before an international body.
39. The Applicant does not make any submissions to challenge the
Respondent State’s objection to the admissibility of the Application on
the ground that he did not exhaust local remedies.
40. The Court notes from the records that the Applicant brought two
different cases before the domestic Courts.
41. On 22 May 2002, the Applicant filed an action before the Kigali
Court of First Instance for compensation in case No. RC 37604/02,
in the amount of 3,383,600 RWF for improper dismissal. On 30 July
2003, the Kigali Court of First Instance issued its Judgment in the civil
suit action brought by Rutabingwa Chrysanthe and declared that the
same was admissible and well founded, and consequently awarded
him compensation in the amount of 2,474,727 RWF.
42. On 23 January 2006, Rutabingwa Chrysanthe seized the Kigali
High Court of Justice with another civil suit referenced R. Ad /0011/06/
HC/KIG for annulment of Decision 361/PRIV/SV/AM of 27 February
2001, in respect of his dismissal.
43. On 21 July 2006, the Kigali High Court of Justice found that the
Application for annulment of Decision 361/PRIV/SV/AM of 27 February
2001, filed by Rutabingwa Chrysanthe was not in conformity with the
law and therefore declared the Application inadmissible.
44. The Court notes that Organic Law No. 03/2012 of 13 June 2012
on the organization, functioning and jurisdiction of the Supreme Court,
which is Rwanda’s highest court, in its Article 28, confers jurisdiction
on the Supreme Court to hear “appeals against judgments rendered in
first instance by the High Court ...”.
45. The Court notes that, in the instant case, the Applicant did not
bring this Application before the Supreme Court. The Court notes also
that the Applicant did not give any reason for not doing so.
46. Consequently, the Court declares that the Application of 10
November 2014 is inadmissible on the ground that the Applicant has
not exhausted local remedies.
47. The Court notes that, pursuant to the provisions of Article 56
of the Charter, admissibility conditions are cumulative, and as such,

where any one of them has not been met, it is the entire Application that
cannot stand. This is the case with the present matter. The Application
is consequently inadmissible.
48. Having declared the Application inadmissible on the ground of
failure to exhaust local remedies, the Court need not pronounce itself
on the Respondent State’s objection relating to the failure to file the
Application within a reasonable time.
VII. Costs
49. The Court notes that, in the instant case, the Respondent State
has prayed the Court to order the Applicant to pay costs, and the
Applicant did not submit on this issue.
50. According to Rule 30 of the Rules “unless otherwise decided by
the Court each Party shall bear its own costs”. The Court decides that
each Party shall bear its own costs.

The COURT,
unanimously:
i. Declares that it has jurisdiction;
ii. Dismisses the Respondent State’s objection based on Rule 67
of the Rules;
iii. Rules that the objection on non-exhaustion of local remedies is
founded;
iv. Declares the Application inadmissible;
v. Rules that each Party shall bear its own costs.
Kemboge v Tanzania (merits) (2018) 2 AfCLR 369 369
Application 002/2016, George Maili Kemboge v United Republic Tanzania

The Applicant was convicted and sentenced to 30 year imprisonment for
the rape of a minor. He brought this action alleging a violation of his right
to equal protection before the law as well as the right to enjoy the best
attainable state of health. The Court held that there was no violation of
the African Charter.
Jurisdiction (not an appellate court, 19)
Admissibility (exhaustion of local remedies, extraordinary remedy, 33)
Equal protection of the law (allegations require substantiation, 51, 52)
I. The Parties
1. The Application is filed by Mr George Maili Kemboge (hereinafter

referred to as “the Applicant”), a citizen of the United Republic of
Tanzania, who is currently serving a thirty (30) years prison sentence
at the Butimba Central Prison in Mwanza, for the crime of rape of a
minor.
(hereinafter referred to as “the Charter”) on 21 October 1986 and to
prescribed under Article 34(6) of the Protocol on 29 March 2010.
3. The records indicate that on 14 August 2006, in Criminal Case No.

110/2006 before the District Court of Tarime, the Applicant was convicted
and sentenced to thirty (30) years’ imprisonment, twelve strokes of the
cane and payment of a fine of Tanzania Shillings Five Hundred Thousand
(TZS 500,000) for having committed the crime of rape of a girl of 15
years of age, an offence punishable under Section 130(1) and (2)(e) and
Section 131(1) of the Tanzania Penal Code Cap. 16, as revised in 2002
(hereinafter referred to as the “Penal Code”).
4. The Applicant filed Criminal Appeal No. 85/2012 before the High
Court of Tanzania sitting at Mwanza (hereinafter referred to as the
“High Court”); and Criminal Appeal No. 327/2013 before the Court of
Appeal of Tanzania sitting at Mwanza (hereinafter referred to as the
“Court of Appeal”). The High Court upheld the Applicant’s sentence on
13 September 2013 and this was affirmed by the Court of Appeal on
30 October 2014.
5. The Applicant alleges that the following rights have been violated:
“i. the right to equal protection of the law, provided under
ii. the right to enjoy the best attainable state of physical and
mental health, provided under Article 16 of the Charter.”
III. Summary of procedure before the court
6. The Application was filed at the Registry on 4 January 2016

and served on the Respondent State by a notice dated 25 January
2016, inviting the latter to file the list of its representatives within thirty
(30) days, and its Response to the Application within sixty (60) days of
receipt of the notice, in accordance with Rules 35(2)(a) and 35(4)(a) of
7. By a letter dated 11 March 2016 and received at the Registry
on 22 March 2016, the Applicant filed an additional written submission
and this was served on the Respondent State by a notice dated 29
March 2016.
8. By a notice dated 12 April 2016, the Application was transmitted
to the Executive Council of the African Union and, through the
Chairperson of the Commission, to all the other State Parties to the
Protocol, in accordance with Rule 35(3) of the Rules.
9. By a letter dated 20 January 2017, received at the Registry on
6 February 2017, the Respondent State submitted its Response to the
Application justifying that the delay was caused by the need to gather
information from all the entities concerned. The Court considered and
accepted the Response in the interests of justice.
10. By a letter dated 9 February 2017, the Registry transmitted the
Respondent State’s Response to the Applicant.
11. By a letter dated 29 March 2017, received at the Registry on 5
April 2017, the Applicant filed his Reply to the Response and this was
served on the Respondent State by a notice dated 11 April 2017.
12. The Court decided to close written pleadings with effect from 14
June 2017, pursuant to Rule 59(1) of the Rules.
13. By a letter dated 6 April 2018, the Parties were informed that
the Court will make a determination on the matter on the basis of the
written pleadings and materials on file without holding a public hearing.

“i. restore justice by quashing the conviction and sentence
imposed on him, and order his release;
ii. grant him reparations for the violation of his rights; and
iii. order such other measures or remedies as the Court may
deem fit.”
15. The Respondent State prays the Court to:
“i. declare that it has no jurisdiction to hear the matter and that
the Application has not met the admissibility conditions;
ii. find that “it has not violated Articles 3 and 7(1)(c) of the
Charter”;
iii. rule that the Applicant is not entitled to reparations;
iv. dismiss the Application for being unfounded;
v. Order that the Applicant pays the costs. “
V. Jurisdiction
16. In accordance with Rule 39(1) of its Rules “[t]he Court shall
conduct preliminary examination of its jurisdiction...”
17. The Respondent State raises objection to the jurisdiction of the

Court, claiming that by asking this Court to re-examine the evidence
adduced and examined by its courts, the Applicant is requesting the
Court to sit as an appellate court, for which this Court has no jurisdiction.
In this regard, the Respondent State cites the Court’s decision in
Application No. 001/2013 Ernest Francis Mtingwi v Republic of Malawi.
18. The Applicant, challenging the Respondent State’s claim,
asserts that the Court has jurisdiction whenever there is a violation
of the provisions of the Charter and other relevant human rights
instruments, to review the judgment passed by the domestic courts, re-
examine the evidence, quash the sentence and acquit him. To this end,
the Applicant cites the Court’s Judgment in Application No. 005/2013
- Alex Thomas v United Republic of Tanzania.
v Republic of Malawi1 that it is not an appeal court with respect to
decisions rendered by national courts. However, as it underscored in
its Judgment of 20 November 2015 in Alex Thomas v United Republic
of Tanzania, this situation does not preclude it from examining
whether the procedures before national courts are in accordance with
international standards set out in the Charter or other applicable human
rights instruments to which the Respondent State is a Party.2
20. In the instant case, the Applicant alleges violations of his rights
protected by the Charter. This Court, accordingly, has jurisdiction to
determine whether the domestic courts’ proceedings that form the basis
of his Application before this Court had been conducted in accordance
with international standards set out in the Charter.
21. In view of the forgoing, the Court dismisses the Respondent
State’s objection that the Court is acting as an appellate court and finds
that it has material jurisdiction to hear the matter.
jurisdiction has not been contested by the Respondent State; and
nothing in the pleadings indicates that the Court does not have
“i. it has personal jurisdiction given that the Respondent
required declaration under Article 34(6) thereof, which
enables the Applicant to directly access the Court in terms
of Article 5(3) of the Protocol;
ii. it has temporal jurisdiction on the basis that the
alleged violations are continuous in nature since the
Applicant remains convicted on the basis of what he
considers an unfair process;

Republic of Malawi, para 14.
2 Application No.005/2013, Judgment of 20/11/2015, Alex Thomas v United Republic
of Tanzania (Alex Thomas v Tanzania Judgment), para 130 and Application No.
007/2013. Judgment of 3/6/2016, Mohamed Abubakari v United Republic of
Tanzania (Mohamed Abubakari v Tanzania Judgment), para 29.

25. Pursuant to Rule 39(1) of its Rules, the “Court shall conduct
Rules.”
(1) disclose the identity of the Applicant notwithstanding the latter’s

(2) comply with the Constitutive Act of the Union and the Charter:
(3) not contain any disparaging or insulting language;
(4) not be based exclusively on news disseminated through the
mass media;
(5) be filed after exhausting local remedies, if any, unless it is
(6) be filed within a reasonable time from the date local remedies
(7) not raise any matter or issues previously settled by the Parties
27. The Court notes that the Respondent State raises only one
objection to the admissibility of the Application, that is, objection in
relation to the requirement of exhaustion of local remedies.
A. Condition of admissibility in contention between the

Parties: the objection based on the non-exhaustion of local
remedies
28. The Respondent State contends that the Applicant has not
exhausted local remedies with regard to the alleged violation of the right
to equal protection of the law and the right to legal assistance. According
to the Respondent State, these alleged violations are being raised before
this Court for the first time.
29. The Respondent further contends that the right to equal
protection of the law is provided under Article 13(1) of the Tanzanian
Constitution of 1977, and as such, the alleged violation could have
been challenged through a Constitutional Petition in accordance with
the Basic Rights and Duties Enforcement Act.
30. In support of its claim, the Respondent State relies on the
Commission’s jurisprudence in Communication Article 19 v Eritrea and
the Court’s own jurisprudence in Applications No. 003/2012 - Peter
Joseph Chacha v United Republic of Tanzania and No. 003/2011 –
Urban Mkandawire v Republic of Malawi.
31. In his Reply, the Applicant reiterates that he has exhausted
all local remedies. He claims that, with respect to the constitutional
petition, the Judge of the High Court could never make a ruling which
would be at variance with the judgment rendered by a bench of judges
of the Court of Appeal. With regard to the Respondent State’s allegation
on legal aid, the Applicant submits that the legal aid sought is that
provided for in Rule 31 of the Rules.
32. The Court notes that the Applicant filed an Appeal and had
access to the highest court of the Respondent State, namely, the Court
of Appeal, with the prayer to adjudicate on the various allegations,
especially those regarding violations of the right to a fair trial.
33. Concerning the possibility of filing a constitutional petition, the
Court has previously stated that this remedy in the Tanzanian judicial
system is an extraordinary remedy that the Applicant is not required to
exhaust.3
34. Regarding the objection of the Respondent State that the issue
of legal aid was being raised in this Court for the first time, the Court
holds that the said objection is no longer an issue because, according
to the Applicant, the legal assistance he referred to in his Application
was not in relation to the domestic proceedings, but rather a request
to this Court to grant him legal aid in accordance with Rule 31 of the
Rules.
35. Accordingly, the Court finds that the Applicant exhausted local
remedies as envisaged under Rule 40(5) of the Rules. The Court,
therefore, dismisses this preliminary objection to the admissibility of
the Application.
3 Alex Thomas v Tanzania Judgment, op cit, paras 60 – 62; Mohamed Abubakari v

Tanzania Judgment, op cit, paras 66 – 70; Application No. 011/2015, Judgment of
28/9/20l7, Christopher Jonas v United Republic of Tanzania, para 44.

between the Parties

Application’s compatibility with the Constitutive Act of the African
Union, the language used in the Application, the nature of the evidence,
the filing of the Application within a reasonable time and the principle
that an Application must not raise any matter already determined in
accordance with the principles of the Charter of the United Nations, the
Constitutive Act of the African Union, the provisions of the Charter or
of any other legal instruments of the African Union (sub-Rules 1, 2, 3,
4, 6 and 7 of Rule 40 of the Rules) are not in contention between the
Parties.
37. For its part, the Court notes that nothing on the record suggests
that these conditions have not been met in the instant case. The Court
therefore holds that the requirements are fulfilled.
38. In light of the foregoing, the Court finds that the instant Application
fulfills all admissibility conditions set out in Rule 40 of the Rules, and
accordingly, declares the same admissible.
VII. The merits
A. Alleged violation of the right to equal protection of the

law
39. The Applicant states that the judgment of the Court of Appeal
was obtained “by overlooking the court records and prejudiced [his]
defence.” The Applicant alleges further that two of his three grounds
of appeal were not considered by the Court of Appeal because that
court found that the Applicant did not raise them in his appeal before
the High Court.
40. The Applicant claims that by overlooking the grounds in question,
the Court of Appeal has confined itself only to procedural matters, rather
than considering the interests of justice. Accordingly, the Applicant alleges
that his right to equal protection of the law provided under Article 3(2) of
the Charter has been violated.
41. In his Reply, the Applicant refutes the contention of the Respondent
State that he confessed to having committed the crime, and insists that he
has always pleaded not guilty. He also claims that, before the domestic
courts, the issue should have been about the marriage between him and
the victim rather than the crime of rape since he was living with the victim
in a marital relationship.
42. In this regard, the Applicant states that there is a contradiction
regarding the age of the victim: on the one hand, the public prosecutor
claims that the victim was fifteen (15) years old, whereas the mother, on
the other hand, says she was sixteen (16) years old; on her part, before
living together with the Applicant, the victim had told the Applicant that
she was 18 years old.
43. The Applicant avers that in the community to which they belong,
it is common practice for a man and woman to live together under the
same roof before formalizing the traditional marriage. He claims that
he had offered the victim’s mother a dowry that was higher than the
one offered by another individual who wanted to marry the victim.
44. The Applicant also claims that even if the victim was under 18,
the mother had given her consent for them to live together; otherwise,
she would never have kept silent for two weeks without saying anything
to her neighbours, only to show up at the Applicant’s home after all that
time demanding to have her daughter and reporting the case to the
police.
45. The Respondent State refutes the Applicant’s arguments that
the Court of Appeal did not examine his contention regarding the
victim’s age and the mother’s consent. It submits that the Court of
Appeal did not take the contentions into consideration because it never
considered them relevant for the reason that the Applicant had himself
admitted having had sexual intercourse with a minor and that the said
arguments have not been raised before the High Court.
46. The Respondent State also submits that the issue requiring
determination is the age of the victim. Having been proven that the
victim was 16 years old, it remained to be ascertained whether during
the time she lived with the Applicant they had intercourse. According to
the Respondent State, however, the Applicant himself confessed and
confirmed the victim’s statement that they had sexual intercourse at
least once during the time they lived together in the Applicant’s home.
47. The Respondent State alleges that, not only did the Applicant
confess to sexual intercourse with the victim, but also that, during
cross-examination, the Applicant did not interrogate the victim on the
issue of her age and the alleged sexual intercourse. According to the
Respondent State, this silence amounts to tacit acceptance of the
veracity of the victim’s testimony.
48. The Applicant alleges violation of Article 3(2) of the Charter
which guarantees the right to equal protection of the law. However,
it appears from the record and the content of the allegations that the
relevant provision is rather Article 3(1) of the Charter, which states that
“Every individual shall be equal before the law.”
49. In a previous case, this Court has stated that the right to equality
before the law requires that “all persons shall be equal before the courts
and tribunals”.4 In the instant case, the Court notes that, in his appeal
before the Court of Appeal, the Applicant presented three arguments,
namely: (i) the absence of documentary proof that the victim is a minor
(birth certificate); (ii) the fact that the absence of parental consent has
not been established; and (iii) the fact that the court did not determine
the case on the merits after evaluation of all the evidence on record.
50. The Court notes that, according to the records, the Court of
Appeal declared itself as lacking the jurisdiction to hear allegations
which had not been raised before, nor settled by, the first appellate
court.5 It held, however, that the victim was sixteen (16) years old at the
time of the crime and upheld the Applicant’s conviction.
51. The Court notes that the Applicant has not demonstrated how
the Court of Appeal’s refusal to consider two of his three allegations
violated his right to equal protection before the law. This Court has, in
the past, held that “General statements to the effect that [a] right has
been violated are not enough. More substantiation is required.”6
52. Moreover, the documents in file demonstrate that the Court
of Appeal justified the dismissal of the Applicant’s two arguments on
the grounds that they relate to issues that were not previously raised
before the lower courts. In this regard, this Court has not found that the
Applicant was treated unfairly or subjected to discriminatory treatment
in the course of the domestic proceedings7.
53. In view of the forgoing, the Court dismisses the Applicant’s
allegation that his rights under Article 3(1) of the Charter have been
violated.
B. The alleged violation of the right to enjoy the best

attainable state of physical and mental health
54. In his Reply, the Applicant alleges the violation of his right
to enjoy the best attainable state of physical and mental health
guaranteed under Article 16 of the Charter, on the grounds that he was
not recognized as married to the victim.
55. The respondent State has not made submissions on this
4 Kijiji Isiaga v Tanzania Judgment, op cit, para 85.

5 “In the event and on the basis of the settled legal position demonstrated by the
Court, grounds 2 and 3 having been raised for the first time in a second appeal are
not legally before us for determination and there lack merit.”
6 Alex Thomas v Tanzania Judgment, op cit, para 140. See also: Kennedy Owino
Onyachi and Charles John Mwanini Njoka v Tanzania Judgment, op cit, paras 150
– 153.
7 Application No. 032/2015. Judgment 21/03/2018 2018, Kijiji Isiaga v United
Republic of Tanzania, para 85.
allegation.
“1. Every individual shall have the right to enjoy the best attainable
state of physical and mental health.
2. States Parties to the present Charter shall take the necessary
measures to protect the health of their people and to ensure that
they receive medical attention when they are sick.”
57. The Court notes that the Applicant alleges the violation of his
right to enjoy the best attainable state of physical and mental health on
the grounds that he was not recognized as married to the victim.
58. The Court is of the view that the Applicant has not demonstrated
how the Respondent State’s refusal to recognize his alleged marriage
with the victim has violated his right to enjoy the best attainable state
of physical and mental health.
59. In view of the forgoing, the Applicant’s allegation lacks merit
and, therefore, the Court dismisses this allegation.
60. In the Application, the Court is requested to order the restitution

of the Applicant’s rights; the quashing of the conviction and setting
aside of the sentence; order his release and reparations to remedy all
violations of his fundamental rights.
61. In its Response, the Respondent State prays the Court to dismiss
the Application in its entirety as unfounded and, thereby declare that
the Applicant is not entitled to any reparation.
62. Article 27(1) of the Protocol stipulates that “If the Court finds that
there has been violation of a human or peoples’ right, it shall make
63. In this respect, Rule 63 of the Rules provides that: “The Court
64. The Court notes in the instant case that as no violation has
been established, the issue of remedies sought does not arise, and
therefore dismisses the Applicant’s prayer for reparation.
IX. Costs
65. The Respondent prays the Court to rule that the cost of the
proceedings be borne by the Applicant.
66. The Applicant has made no specific submission on this matter.
67. The Court notes that Rule 30 of its Rules provides that: “Unless
otherwise decided by the Court, each party shall bear its own costs.”
68. The Court holds that in the circumstances of this case, there is
no reason for it to decide otherwise and, consequently, rules that each
Party shall bear its own costs.
X. Operative part

The Court,
Unanimously,
On jurisdiction
i. Dismisses the objection to its material jurisdiction;
On admissibility
iii. Dismisses the objection on the admissibility of the Application;
On the merits
v. Declares that the Respondent State has not violated the Applicant’s right
to equality before the law, provided for under Article 3(1) of the Charter;
vi. Declares that the Respondent State has not violated the Applicant’s right
to enjoy the best attainable state of physical and mental health, provided for
under Article 16 of the Charter;
vii. Holds that the issue of reparations does not arise and dismisses
the claim for remedies;
viii. Rules that each Party shall bear its own costs.
Association pour le Progrès et la Défense des Droits des

Femmes Maliennes and the Institute for Human Rights and
Development in Africa v Mali (merits) (2018) 2 AfCLR 380
Application 046/2016, Association pour le Progrès et la Défense des

Droits des Femmes Maliennes (APDF) and the Institute for Human
Rights and Development in Africa (IHRDA) v Republic of Mali
Judgment, 11 May 2018. Done in English and French, the French text
The Court held that a number of provisions in the Family Law of Mali
dealing with marriage and inheritance violated the African Charter.
Admissibility (exhaustion of local remedies, constitutional petition, 39-
45; submission within reasonable time, start of period, 51, exceptional
crisis, 52-54)
Harmful practices (child marriage, 74-75, 78)
Equality, non-discrimination (different age of marriage for men and
women, 77, 78)
Marriage (free consent, 91-94)
Inheritance (women and children, 108-115)
Reparations (amendment of legislation, 130)
I. The Parties
1. L’Association pour le progrès et la défense des droits des

femmes maliennes (The Association for the Advancement and Defence
of Women’s Rights) – APDF, presents itself as a Malian organisation
with Observer Status before the African Commission on Human and
Peoples’ Rights (herein-after referred to as “the Commission”), with
the mission to encourage women’s groups to defend their rights and
interests against all forms of violence and discrimination.
2. The Institute for Human Rights and Development in Africa
(IHRDA) for its part, presents itself as a pan-African Non-Governmental
Organisation based in Banjul, The Gambia, with the mission to assist
victims of human rights violations in their quest for justice using
national, African and international instruments. It declares that it also
has Observer Status before the Commission.
3. The two afore-mentioned entities are herein-after referred to as
“the Applicants”.
4. The Respondent State, the Republic of Mali, became a Party
to the African Charter on Human and Peoples’ Rights (herein-after
APDF and IHRDA v Mali (merits) (2018) 2 AfCLR 380 381
referred to as “the Charter”) on 21 October 1986; the Protocol to the

African Charter on Human and Peoples’ Rights on the Establishment
of an African Court on Human and Peoples’ Rights (herein-after
referred to as “the Protocol”) on 25 January 2004; the Protocol to
the African Charter on Human and Peoples’ Rights on the Rights
of Women (herein-after referred to as “the Maputo Protocol”) on 25
November 2005; and to the African Charter on the Rights and Welfare
of the Child (herein-after referred to as “the Children’s Charter””) on 29
November 1999. The Respondent State also deposited the Declaration
prescribed under Article 34(6) of the Protocol, allowing individuals and
Non-Governmental Organisations (NGOs) to directly seize the Court,
on 19 February 2010. The Respondent State became a Party to the
Convention on the Elimination of All Forms of Discrimination against
Women (herein-after referred to as “CEDAW”) on 10 September 1985.
A. Context and facts as related by the Applicants
5. In a bid to modernise its legislation by bringing it in line with

the evolving international human rights law, the Government of Mali
launched, in 1998, a vast operation to codify the rights of individuals
and the family. This project, which was subject to broad popular
consultation, received expert input prior to the drafting of Law No. 2011-
087 establishing the Persons and Family Code (herein-after referred to
as the “Family Code”) which was adopted by the National Assembly of
Mali on 3 August 2009.
6. This Law which was well received by a broad section of
the population as well as human rights organisations, could not be
promulgated because of widespread protest movement by Islamic
organisations.
7. Submitted for a second reading, the impugned law in the end
culminated in the drafting of a new Family Code which was adopted
on 2 December 2011 by the National Assembly and promulgated on 30
December 2011 by the Head of State.
8. The Applicants submit that the law as promulgated violates
several provisions of international human rights instruments ratified by
the Respondent State as referred to in paragraph 4 above.
9. The Applicants allege the following violations:

“i. Violation of the minimum age of marriage for girls (Article
6(b) of the Maputo Protocol and Articles 1(3), 2 and 21 of

the African Charter on the Rights and Welfare of the Child
(ACRWC);
ii. Violation of the right of consent to marriage (Article
6(a) of the Maputo Protocol and Article 16(a) and (b)
of the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW);
iii. Violation of the right to inheritance Article 21(2) of the
Maputo Protocol and Articles 3 and 4 of ACRWC;
iv. Violation of the obligation to eliminate traditional practices
and conduct harmful to the rights of women and children
(Articles 2(2) of the Maputo Protocol, 5(a) of the CEDAW
and 1(3) of the ACRWC”.
10. The Registry received the Application on 26 July 2016.

11. By a letter dated 26 September 2016, the Registry served the
Application on the Respondent State. The latter was requested to
communicate the name (s) and address(es) of its representative(s)
within thirty (30) days as well as its Response to the Application within
sixty (60) days pursuant to Rules 35(4) and 37 of the Rules of Court
(hereinafter referred to as “the Rules”).
12. By notice dated 18 October 2016, the Registry communicated
the Application to the State Parties and the other entities in accordance
with the Court’s directives.
13. On 28 November 2016, the Respondent State filed its Response
to the Application, which was transmitted to the Applicants on 13
December 2016.
14. On 1 February 2017, the Applicants filed their Reply which the
Registry transmitted to the Respondent State on 2 February 2017, for
information.
15. By notice dated 25 April 2017, the Parties were informed that the
Court would hold a public hearing on 16 May 2017.
16. The Applicants pray the Court to order the Respondent State to:
“i. Amend its Persons and Family Code by bringing back the
minimum age of marriage for girls to 18;
ii. Eliminate the provisions of the Family Code which allow
for age exemptions;
iii. Introduce a sensitisation programme for the population on
the dangers of early marriage;

iv. Amend Articles 283 to 287 of the Family Code to establish
similar conditions of consent for marriages contracted
before a religious minister;
v. Amend Article 287 to impose the same sanctions on a
religious minister who contracts a marriage without having
ascertained the consent of the Parties;
vi. Add to Section II titled: “Celebration before a religious
minister” a provision requiring the latter to ascertain the
consent of the Parties;
vii. Insert in the Family Code a provision requiring an officially
recorded Power of Attorney from the man and the woman
where they are not present for the religious marriage;
viii. Translate and disseminate the Family Code in the
languages accessible to religious ministers;
ix. Introduce a training programme for religious ministers on
the procedure for contracting a marriage;
x. Introduce a sensitisation and educational programme for
the population on the use of the provisions of the Family
Code to ensure equal share of inheritance between the
man and the woman;
xi. Develop a strategy to eradicate unequal share of
inheritance between the man and the woman;
xii. Develop a programme that ensures that people in the
rural areas have access to a notary;
xiii. Develop a sensitisation programme for the population on
the use of the provisions of the Family Code which ensure
equal share of inheritance between legitimate children
and children born out of wedlock.”
17. In the Response to the Application, the Respondent State raises
two preliminary objections; one, on the Court’s jurisdiction and, the
other, on the admissibility of the Application on the ground that it was
not filed within a reasonable timeframe, in accordance with Article 6 of
the Protocol. The Respondent State prays the Court to:
“i. Examine the objections raised;
ii. Declare that it does not have jurisdiction given that
the Applicants’ claims relate more to the sensitisation,
popularisation and harmonisation of national laws with
the African Charter on Human and Peoples’ Rights
rather than to the issue of application and interpretation
of the Charter and other conventions which exist neither
technically nor in reality, and have never been proven in

the judicial practice of Mali;
iii. Declare the Application inadmissible for having not been
submitted within a reasonable timeframe.”
18. As regards the merits of the case, the Respondent State prays
the Court to dismiss outright the Application as being baseless.
V. Jurisdiction
19. In terms of Rule 39(1) of its Rules, “the Court shall conduct
preliminary examination of its jurisdiction….”
20. The Respondent State contends that the subject of the Application
does not relate to any of the five areas of the Court’s jurisdiction set out
in Rule 26(1) of the Rules.
21. The Respondent State maintains that it is evident that the areas
in question enumerated in Rule 26(1)(a)1 do not correspond to the
subject of the Application which invokes cases of violations of human
rights conventions. For the Respondent State, the Application does not
pose a problem of interpretation of the Charter or other international
human rights instruments.
22. The Respondent State further contends that the said instruments
have no application difficulties in the legal and judiciary system of Mali,
proof thereof being the fact that Article 116 of the Malian Constitution
provides that treaties duly ratified or approved by the State have, upon
publication, superior authority over that of laws; that the Family Code
cannot therefore pose an obstacle to the interpretation and application
of the provisions of duly ratified international conventions.
23. The Respondent State also argues that, in the instant case, only
simple technical issues of harmonisation of the Family Code with the
said international instruments may be taken into account to make the
application of national laws more consistent.
24. The Respondent State maintains, lastly, that the Application is
more concerned with issues of sensitisation and popularisation rather
than those of interpretation and application of the Charter and other
international instruments ratified by Mali, and consequently prays the
Court to declare that it does not have jurisdiction.
1 “The Court shall have jurisdiction to deal with all cases and all disputes submitted
to it concerning interpretation and application of the Charter, the Protocol and
any other relevant human rights instrument ratified by the States concerned.”
25. In their Reply, the Applicants contend that the jurisdiction of

the Court is defined by Article 3(1) of the Protocol which 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; that in promulgating the Family Code,
some provisions of which are inconsistent with the ratified treaties, the
Respondent State violates the said treaties; that, in other words, the
Court is prayed to elucidate the implications for domestic laws, of the
ratification of treaties by a State; that the Court is further prayed to
make a determination on the application of the said treaties in Mali.
26. The Applicants maintain, in conclusion, that, by virtue of Article
3(1) of the Protocol, the Court is vested with the jurisdiction to interpret
and apply the treaties ratified; and therefore pray the Court to dismiss
the objection to its material jurisdiction raised by the Respondent State.
27. The Court notes that its material jurisdiction is based on Article
3(1) of the Protocol and that, in the instant case, the alleged violation of
rights relates to the human rights guaranteed by the Charter and other
instruments ratified by the Republic of Mali.
28. Consequently, the Court holds that its material jurisdiction is
established, and dismisses the objection in this respect.
jurisdiction is not contested by the Respondent State, and that nothing
on file indicates that it does not have jurisdiction. Consequently, it holds
that:
“i. it has personal jurisdiction given that the Respondent State
is a Party to the Protocol and has filed the Declaration
prescribed under Article 34(6) of the Protocol; and that the
Applicants have Observer Status before the Commission;
ii. It has temporal jurisdiction given the fact that the alleged
facts occurred subsequent to the entry into force, for the
Respondent State, of the aforementioned international
instruments;
iii. It has territorial jurisdiction given the fact that the alleged
violations occurred in the territory of the Respondent
State.”
30. In view of the foregoing considerations, the Court holds in
conclusion that it has jurisdiction to hear this case.
32. Pursuant to Rule 39 of its Rules, the Court “shall conduct
accordance with Articles 50 and 56 of the Charter, and Rule 40 of these
Rules”.
33. Rule 40 of the Rules, which substantially reproduces the content
of Rule 56 of the Charter, provides as follows:

mass media;
34. Whereas some of these conditions are not in contention between
the Parties, the Respondent State raised two objections: the first,
concerning the exhaustion of local remedies and, the other, the period
within which the Court is to be seized of the Application.
A. Conditions in contention between the Parties
i. Objection to admissibility of the Application on

grounds of failure to exhaust local remedies
35. The Respondent State maintains that the Applicants did not
exhaust local remedies before seizing the Court with the matter. It
argues that the Applicants had all the opportunities to bring the matter
before the national judicial authorities; that the Malian Judiciary is
totally independent because it is separate from the Executive and the
Legislative arms; that the Applicants however, did not make any effort
to submit their alleged violations to the national courts.
36. At the public hearing of 16 May 2017, the Respondent State
responding to questions put by the Court, contended, inter alia, that the
Applicants acted too hastily given that they did not adduce any specific
evidence to justify the alleged violations; and that they should have
gone to court on the basis of Articles 115 and 116 of the Respondent
State’s Constitution prior to bringing the case before this Court.
37. The Respondent State in conclusion prays the Court to rule that
the Applicants have not exhausted local remedies and consequently,
dismiss the Application outright.
38. In their Reply, the Applicants submit that no remedy exists at
the national level; that the Respondent State only argues that the
Applicants have the opportunity to seize the Malian justice system with
the matter without specifying the jurisdiction competent to determine
such an action.
39. The Court notes that the only remedy which the Applicants
could have utilised is that of filing a Constitutional Petition against the
impugned law.
40. In that regard, Article 85 of the Constitution of Mali provides
that “The Constitutional Court is the judge of the constitutionality of the
laws and it shall guarantee the fundamental rights of the individual and
public liberties…”
41. Article 88 of the same Constitution provides that “Organizational
laws shall be submitted by the Prime Minister to the Constitutional
Court before their promulgation. Other categories of laws, before their
promulgation, may be referred to the Constitutional Court either by
the President of the Republic, the Prime Minister, the President of the
National Assembly, one tenth of the deputies of the National Assembly,
the President of the High Council of Collectives or one tenth of the
National Counsellors, or by the President of the Supreme Court”.
42. The above provision is reproduced in extenso by Article 45 of
Law No. 97-010 of 11 February 1997 establishing an organic law that
defines the organisational and operational rules of the Constitutional
Court of Mali as well as the procedure to be followed before it.
43. The above provisions show that human rights NGOs are not
entitled to seize the Constitutional Court with applications concerning
the unconstitutionality of laws.
44. In view of the aforesaid, the Court finds that no remedy was
available to the Applicants.
45. Consequently, the Court dismisses the objection to the
admissibility of the Application for non-exhaustion of local remedies

raised by the Respondent State.
ii. Objection to admissibility of the Application for failure

to file the Application within a reasonable time
46. The Respondent State, in its Response, affirms that the

impugned law was enacted on 30 December 2011 and that it is only on
26 July 2016 that the Applicants brought the matter before this Court,
that is, about five (5) years after the promulgation of the impugned law;
that the Applicants in their Reply did not adduce any argument to justify
this particularly long timeframe in filing the case before the Court.
47. The Applicants, in their Reply, submit that the alleged violations
are “continuing” and that, in the circumstances, the period can start to
count only after the cessation of the said violations.
48. The Court notes that Article 56(6) of the Charter and Rule 40(6)
of the Rules specify that Applications shall be filed within a reasonable
time counting from the date local remedies were exhausted or from the
date set by the Court as being the commencement of the time within
which it shall be seized with the matter.
49. As has been indicated (paragraphs 46 and 47), whereas for the
Respondent State the period for seizure of the Court must be reckoned
from the date of promulgation of the impugned law; for the Applicants,
this period will start to count only after the cessation of the alleged
violations, that is, after the abrogation or review of the impugned law.
50. The Court is however of the opinion that, in the instant case,
in which no remedy was available to the Applicants at domestic level,
the date from which the reasonableness of filing the Application before
this Court should be assessed is that on which the Applicants acquired
knowledge of the impugned law.
51. The European Court of Human Rights adopted this same position
in Dennis and Others v United Kingdom. It held that, where it is clear
from the outset that no effective remedy is available to the Applicant,
the period runs from the date of the act at issue, or from the date of
knowledge of that act or its effect on or prejudice to the Applicant”.2
52. The question here is therefore whether the period of four (4)
years, six (6) months and twenty-four (24) days in which the Applicants
seized the Court, that is, between 30 December 2011 (date of
promulgation of the impugned law) and 26 July 2016 (date of seizure
of the Court), is reasonable within the meaning of Article 56(6) of the
2 The European Court of Human Rights in the matter of Dennis and Others v United
Kingdom (No. 76573/01) Judgment of 2 /7/2002, page 6.
Charter.
53. The Court in its previous judgments established that the
reasonableness of the time within which the Application was filed at
this Court depends on the particular circumstances of each matter and
must be examined on a case-by-case basis.3
54. In the instant case, in order for this Court to determine the
reasonableness of the period of seizure, it is necessary to take into
account two important elements: first, that the Applicants needed time
to properly study the compatibility of the law with the many relevant
international human rights instruments to which the Respondent State
is a Party; and secondly, given the climate of fear, intimidation and
threats that characterised the period following the adoption of the law
on 3 August 2009, it is reasonable to expect the Applicants to have
been affected by that situation as well. The country found itself in a
situation of exceptional crisis with a vast protest movement of the
religious forces which, according to the Respondent State, could even
be “fatal for peace, harmonious living and social cohesion.”
55. The Court accordingly dismisses the objection to the admissibility
of the Application for failure to abide by a reasonable time limit in
submitting the Application to the Court.
B. Conditions not in contention between the Parties
56. The Court notes that the compliance with Sub-rules 1, 2, 3, 4,

and 7 of Rule 40 of its Rules is not contested and that nothing on
record shows that these sub-rules have not been respected. The Court
therefore holds that the said conditions have been met.
57. In light of the foregoing, the Court holds that this Application
fulfils all the admissibility requirements listed in Article 56 of the Charter
and Rule 40 of its Rules and, consequently, declares the Application
admissible.
VII. Merits
58. In the Application, it is alleged that the Respondent State violated

Articles 2(2), 6(a) and (b) and 21(2) of the Maputo Protocol; Articles 3
and 4 of the Children’s Charter and Articles 1(3) and 5(a) of CEDAW
3 Application No. 013/2011, Beneficiaries of late Norbert Zongo, Abdoulaye Nikiema

alias Ablassé, Ernest Zongo and Blaise Ilboudo & Burkinabè Movement on Human
Rights v Burkina Faso, Ruling of 21/06/2013 (Preliminary Objections) (Norbert
Zongo v Burkina Faso Ruling), para 121; Application No. 005/2013, Judgment of
20/11/2015, Alex Thomas v United Republic of Tanzania, para 73; and Application
No. 007/2013, Judgment of 03/06/2016 Mohamed Abubakari v United Republic of
Tanzania, para 91, www.african-court.org.
A. Alleged violation relating to the minimum age of

marriage
59. The Applicants aver that Article 281 of the impugned law
establishing the Family Code sets the minimum age for contracting
marriage at eighteen (18) for boys and sixteen (16) for girls, whereas
Article 6(b) of the Maputo Protocol sets that age at 18 for girls.
60. The Applicants further indicate that the impugned law allows
for special exemption for marriage as from fifteen (15) years, with the
father’s or mother’s consent for the boy, and only the father’s consent,
for the girl.
61. The Applicants also aver that according to the World Bank
survey conducted in Mali between 2012 and 2013, 59.9% of women
aged 18 and 22 were married before the age of 18, 13.6% at 15 years
and 3.4% before the age of 12; that despite these alarming statistics on
child marriage, Mali has not taken appropriate measures to eradicate
this phenomenon.
62. The Applicants recall the relevant provisions of the Children’s
Charter, namely, Article 1(3) thereof, which provides that “Any custom,
tradition, cultural or religious practice that is inconsistent with the
rights, duties and obligations contained in the present Charter shall
to the extent of such inconsistency, be discouraged”; Article 2 thereof,
defines a child as “every human being below the age of 18 years” and
Article 21, which provides that “State Parties to the present Charter
shall take all appropriate measures to eliminate harmful social and
cultural practices affecting the welfare, dignity, normal growth and
development of the child and in particular those customs and practices
prejudicial to the health or life of the child; and those customs and
practices discriminatory to the child on the grounds of sex or other
status”.
63. The Respondent State, in its Response, submits that the National
Assembly of Mali, on 3 August 2009, enacted the Family Code which
contains provisions compliant with the international commitments of
Mali, but that this Code could not be promulgated following a “force
majeure” which affected the process.
64. The Respondent State argues that, prior to the promulgation of
the text by the President of the Republic, a mass protest movement
against the Family Code halted the process; that the State was faced
with a huge threat of social disruption, disintegration of the nation
and upsurge of violence, the consequence of which could have been
detrimental to peace, harmonious living and social cohesion; that the
mobilisation of religious forces attained such a level that no amount of
resistance action could contain it.
65. The Respondent State further argues that, in the circumstances,
the Government was obliged to submit the text for a second reading,
always involving Islamic organisations, which culminated in the Family
Code of 2011, enacted by the National Assembly on 2 December 2011
and promulgated by the President of the Republic on 30 December
2011; that it was therefore unjustified to accuse the State of violating
rights whereas the State was only revising the initial text in order to
garner consensus and avoid unnecessary disruptions; and that the said
revision comprises flexibilities which do not in any way detract from the
rights protected by the Charter and other human rights instruments to
which the State is a Party.
66. With regard to the allegation of violation of the minimum age
of marriage, the Respondent State maintains that the established
rules must not eclipse social, cultural and religious realities; that the
distinction contained in Article 281 of the Family Code should not be
seen as a lowering of the marriage age or a discrimination against girls,
but should rather be regarded as a provision that is more in line with
the realities in Mali; that it would serve no purpose to enact a legislation
which would never be implemented or would be difficult to implement
to say the least; that the law should be in harmony with socio-cultural
realities; that it would serve no useful purpose creating a gap between
the two realities, especially as, according to the Respondent State, at
the age of fifteen (15), the biological and psychological conditions of
marriage are in place, and this, in all objectivity, without taking sides in
terms of the stance adopted by certain Islamist circles.
67. The Respondent State in conclusion asserts that the question
is not that of violation of international obligations or maintenance of
practices that should be discouraged but rather that of adapting the
said obligations to social realities and that for these reasons, the
Applicants’ argument should be dismissed as unfounded.
68. In their Reply, the Applicants argued that by ratifying the Charter,
the Maputo Protocol and the Children’s Charter, the Respondent
State committed itself fully to the relevant instruments; that the
threats generated by the protests cannot justify derogation from the
commitments imposed on it as a State Party to the said instruments.
69. Concerning the minimum age for marriage, the Applicants
submit that the limitations on which the Respondent State relies to
exempt itself from its international obligations are not permitted under
Article 6(b) of the Maputo Protocol which, without exemption, sets the
minimum age of marriage for girls at eighteen (18) years.
70. With regard to the Respondent State’s allegation that the
biological and psychological conditions of marriage are in place at
age 15 for the girl, the Applicants submit that these assertions are
contrary to the jurisprudence of the African Committee of Experts on
the Rights and Welfare of the Child4, the Committee on the Elimination
of Discrimination against Women5 and the research conducted into the
disadvantages of early marriage.
71. Article 2 of the Children’s Charter defines a child as “every
human being below the age of 18 years”.
72. Article 4(1) stipulates that “In all actions concerning the child
undertaken by any person or authority the best interests of the child
shall be the primary consideration”.
73. Article 21 of the same Charter stipulates that: “State Parties …
shall take all appropriate measures to eliminate harmful social and
cultural practices … and those customs and practices discriminatory to
the child on the grounds of sex or other status”.
74. Article 6(b) of the Maputo Protocol provides that: “States Parties
shall ensure that women and men enjoy equal rights and are regarded
as equal partners in marriage. They shall enact appropriate national
legislative measures to guarantee that: b) the minimum age of marriage
for women shall be 18 years…”
75. The Court notes that the afore-mentioned provisions focus on
the obligation for States to take all appropriate measures to abolish
negative practices and customs as well as practices discriminatory to
children born out of wedlock for reasons of their gender, especially
measures to guarantee the minimum age for marriage at 18 years.
76. The Court further notes that, as indicated in paragraphs 67, 68
and 69 above, the Respondent State implicitly admits that the present
Family Code, adopted in a situation of “force majeure” is not consistent
with the requirements of international law.
77. The Court also notes that Article 281 of the impugned Family
Code effectively sets the marriage age at 18 for men and 16 for
women. Furthermore, the Article also includes the possibility for the
administrative authorities to grant special exemption for girls to be
married at 15 years for “compelling reasons”.
78. The Court holds in conclusion that it lies with the Respondent
State to guarantee compliance with the minimum age of marriage,
which is 18 years, and the right to non-discrimination; that having failed
to do so, the Respondent State has violated Article 6(b) of the Maputo
Protocol and Articles 2, 4 (1) and 21 of the Children’s Charter.
4 Centre for Human Rights and Rencontre Africain pour la Défense des Droits de
l’Homme v Senegal (2014), ACRWC 003/12, para 71.
5 General Recommendations No. 21,1994 (Committee 21), para 36.
B. Alleged violation of the right to consent to marriage
79. The Applicants allege that the impugned law, in its Article 300,
entitles religious ministers, alongside civil registry officials to perform
marriages but that no provision of this law provides for verification of
the Parties’ consent by the religious ministers.
80. The Applicants further aver that Article 287 of the impugned law
prescribes sanctions against any civil registry official who performs
marriage without verifying the consent of the Parties, but no sanctions
are prescribed against defaulting religious ministers who fail to perform
the verification.
81. The Applicants also submit that Article 283 of the same law
specifies that consent must be given orally and in person before the civil
registry official by each party but that, that provision was not prescribed
for religious ministers; the conditions that must be fulfilled by the civil
registry official to be able to celebrate a marriage without the presence
of the Parties are similarly not required of religious ministers.
82. The Applicants contend that the way religious marriages are
performed in Mali poses considerable risk, given that the marriages
are forced, in as much as they are generally celebrated without the
presence of the Parties; that the marriages consist in the two families
exchanging kola nuts in the presence of a specialist of the Muslim
religion; that even if these marriages are performed in the mosque, the
presence of women is not required; that this practice, combined with
traditional attitudes which encourage the marriage of the girl at puberty,
is fraught with considerable risk as the marriages are performed without
the consent of the girl.
83. The Applicants conclude from the foregoing that by enacting a
law that permits the maintenance of the marriage customs and traditions
that do not allow for the consent of the Parties, the Respondent State
has violated its commitment under Article 6(a) of the Maputo Protocol
and Article 16(a) and (b) of CEDAW.
84. In its Response, the Respondent State refutes this allegation. It
argues that paragraph 1 of section 283 of the Family Code makes it clear
that there is no marriage when there is no consent; that furthermore,
section 300 of the same Family Code makes it clear that marriage is
publicly celebrated by the religious minister subject to compliance with
the substantive conditions of marriage and the prohibitions enshrined
by the Family Code; that these constitute guarantees of compliance
with the obligation to ensure the consent of prospective spouses before
any marriage celebration.
85. With regard to the practical organisation of marriage celebration,
the Respondent State indicates that, at any place and at any time, it is
left to the discretion of the prospective Parties who may celebrate their
marriage inside a mosque, in their families or at a civil centre with the

sole condition to respect public order and the law.
86. The Respondent State further contends that another guarantee
of compliance with the conditions is laid down in Sections 303(3)
and (304) which regulate the validity of the marriage celebrated by a
religious minister, the transmission of the marriage certificate to the
civil registrar and its registration in the Civil Register.
87. In their Reply, the Applicants recall that the criticisms against
the extant 2011 Family Code are that: (1) it does not prescribe that
consent be given orally and in person before the religious minister,
(2) it does not provide for sanctions against a religious minister who
performs marriage without verifying the Parties’ consent, (3) it is silent
on the verification of consent by the religious minister in the event of the
inability of either of the Parties to do so and, (4) it does not lay down,
for the religious minister, the procedures for verifying the consent of
the Parties.
88. The Applicants contend that the Respondent State confines
itself to stating that the practical organisation of marriage celebration is
left at any place and at any time to the discretion of the Parties without
adducing any argument to counter the above criticisms.
89. Article 6(a) of the Maputo Protocol stipulates that: “States Parties
shall ensure that women and men enjoy equal rights and are regarded
as equal partners in marriage. They shall enact appropriate national
legislative measures to guarantee that: a) no marriage shall take place
without the free and full consent of both Parties.”
90. The Court notes that the Maputo Protocol in its Articles 2(1)(a)
and 6 and CEDAW in its Article 10 and 16 set down the principles of
free consent in marriage.
91. The Court also notes that despite the fact that the said
instruments are ratified by Mali, the extant Family Code envisages the
application of Islamic law (Article 751) and entitles religious ministers
to celebrate marriages but does not require them to verify the free
consent of the Parties.
92. Furthermore, while sanctions are prescribed against the civil
status officer for non-verification of the consent of the Parties, no
sanction is provided against a religious minister who does not comply
with this obligation. Verification of consent given orally and in person
is required before the civil status officer in accordance with Article 287
of the Family Code, whereas this obligation to verify is not required of
a religious minister.
93. The Court also notes that one condition that must be fulfilled by
a civil status officer to celebrate a marriage without the presence of the
Parties, is the deposition by the absent party, of an act drawn up by the
civil status officer of his area of abode, a condition not required in the
marriage celebrated by a religious minister.

94. The Court further notes that the way in which a religious
marriage takes place in Mali poses serious risks that may lead to
forced marriages and perpetuate traditional practices that violate
international standards which define the precise conditions regarding
age of marriage and consent of the Parties, for a marriage to be valid.
95. The Court notes that, in the procedure for celebration of
marriage, the impugned law allows for the application of religious and
customary laws on the consent to marriage. It also allows for different
marriage regimes depending on whether it is celebrated by a civil
officer or a religious minister - practices not consistent with international
instruments, namely: the Maputo Protocol and CEDAW.
C. Alleged violation of the right to inheritance for women

and natural children
96. In the Application, it is argued that the impugned law enshrines

religious and customary law as the applicable regime, by default, in
matters of inheritance, in as much as the provisions of the new Family
Code apply only “where religion or custom has not been established in
writing, by testimony, experience or by common knowledge or where
the deceased, in his life time, has not manifested in writing or before
witnesses his wish that his inheritance should be distributed otherwise”
(Article 751 of the Family Code).
97. As regards women, the Applicants maintain that in Mali, Islamic
law gives a woman half of what a man receives. They also point out
that the majority of the population lacks the capacity to use the services
of a notary to authenticate a will; that, besides, notaries estimated at
40 in number in the whole country cannot serve the population of over
15 million Malians.
98. The Applicants submit from the aforesaid that, in adopting the
impugned law, the Respondent State violated Article 21 of the Maputo
Protocol which provides that: “A widow shall have the right to an
equitable share in the inheritance of the property of her husband…
Women and men shall have the right to inherit, in equitable shares,
their parents’ properties”.
99. The Applicants state that the Committee on the Elimination of
Discrimination against Women has also declared that practices which
do not give women the same share of inheritance as men constitute a
violation of CEDAW.6
100. As regards the child, the Applicants submit that, according to the
6 See Matter of AT v Hungary (2005) CEDAW 2/2005, para 9.3.

new Family Code, children born out of wedlock do not have the right
to inheritance and that they may be accorded inheritance only if their
parents so wish and the conditions set out in Article 751 of the Family
Code have been met (see supra paragraph 97).
101. The Applicants further submit that the Respondent State also
violated Article 4(1) of the Children’s Charter, and Article 3 thereof
which prohibits all forms of discrimination.
102. The Applicants contend that although the new Code provides for
equal share of inheritance between the legitimate child and the child
born out of wedlock where inheritance is governed by the provisions of
the Family Code, this right is rendered illusory by the application of the
customary or religious regime as the law applicable in the absence of
a will to the contrary; that the regime applicable to most children born
out of wedlock in Mali remains the customary or religious law, and that
in the circumstances, the right to inheritance is no longer a right but a
favour for children born out of wedlock in Muslim families.
103. In its Response, the Respondent State indicates that, until
recently, Mali did not have an inheritance legislation that was entirely
customary; that by a commitment entered into, the State of Mali
regulated inheritance in the Family Code of 2009 by enshrining equal
share for men and women with the participation of the children born
out of wedlock in the devolution of estate on the same footing as the
legitimate child; but that, under the pressure and for fear of social
unrest, the State had to consent to a re-drafting of this text.
104. The Respondent State further submits that the Family Code
promulgated in 2011 has the advantage of being flexible in the sense
that it allows for reconciliation of entrenched positions, offering each
citizen the possibility of determining his mode of inheritance; that
anyone who does not wish his succession to be arranged according
to customary or religious rules simply expresses his will to have his
inheritance devolved according to Family Code rules or his will; that
the legislator has simplified the mode of expression of this choice
which can be made even by testimony.
105. Based on the above considerations, the Respondent State
concludes that it must be recognised that Mali’s Family Code offers
immense possibilities to every citizen and, therefore, does not violate
the right to inheritance.
106. In their Reply, the Applicants maintain the arguments developed
in their Application that under Islamic law, granting equal inheritance
shares to men and women is a favour and not a right; and also, that
equal share between children born in wedlock and children born out of
wedlock is similarly a favour.
107. The Applicants therefore pray the Court to rule that, by legalising
discrimination against women and children born out of wedlock, the
Respondent State violated Article 21 of the Maputo Protocol, Article 4

of the Children’s Charter and Article 16(h) of the CEDAW.
108. With regard to women, Article 21 of Maputo Protocol stipulates
that:
“A widow shall have the right to an equitable share in the inheritance of the
property of her husband…. Women and men shall have the right to inherit,
in equitable shares, their parents’ properties”.
109. Regarding the child, Article 3 of the Children’s Charter (paragraph

105) recognises for the child, all rights and freedoms and proscribes all
forms of discrimination regardless of the basis. The Children’s Charter
therefore does not make any distinction between children and they all
have the right to inheritance.
110. The Court notes from the foregoing provisions (paragraph 105)
that in matters of inheritance a predominant place is accorded to
the rights of the woman and the child, given that the widow and the
children born out of wedlock have the same rights as the others. These
guarantee equality of treatment for women and for children without any
distinction.
111. The Court notes that in the instant case, the Family Code
applicable in Mali enshrines religious and customary law as the
applicable regime in the absence of any other legal regime or a
document authenticated by a notary. Article 751 of the Family Code
stipulates that: “Inheritance shall be devolved according to the rules of
religious law or the provisions of this Code ...”.
112. The documents on record also show that in matters of inheritance,
Islamic law gives to the woman half of the inheritance a man receives,
and that children born out of wedlock are entitled to inheritance only if
their parents so desire.
113. The Court notes that the superior interest of the child required in
matters of inheritance as stipulated under Article 4(1) of the Children’s
Charter in any procedure, were not taken into account by the Mali
legislator at the time of elaboration of the Family Code.
114. The Court finds that the Islamic law currently applicable in
Mali in matters of inheritance and the customary practices are not in
conformity with the instruments ratified by the Respondent State.
115. The Court therefore holds that the Respondent State has
violated Article 21(2) of the Maputo Protocol and Articles 3 and 4 of the
Children’s Charter.
D. Alleged violation of the obligation to eliminate

practices or traditions harmful towards women and children
116. The Applicants submit that by adopting the impugned law, the
Respondent State has demonstrated a lack of willingness to eliminate
the traditional practices that undermine the rights of women and girls,
and children born out of wedlock, especially early marriage, the lack of
consent to marriage, the unequal inheritance - all in contravention of
Article 1(3) of the Children’s Charter.
117. The Applicants assert that the impugned law makes early
marriage of girls easier compared to the 1962 Family Code which
permits the marriage of girls aged between 15 and 17 only with the
consent of their parents, whereas the 2011 law permits the marriage of
girls aged between 16 and 17 without parental consent. They further
submit that the 1962 Code sets the special exemption for marriage at
15 years for girls with the consent of their father and mother, whereas
the impugned law allows for the marriage of 15-year-old girls even
where the mother is opposed to it since only the father’s consent
suffices.
118. In conclusion, the Applicants maintain their arguments and
reiterate their prayers in this regard (see supra paragraph 16).
119. In the Response, the Respondent State contends that it is
excessive to assert that Mali does not deploy efforts to eliminate the
said practices; and that the Family Code of 2009 provides an adequate
illustration of this contention. The Respondent State recalls the efforts
deployed on this issue, particularly the launch of programmes for
sensitisation and promotion of the rights of women and children, and
the various laws enacted to guarantee the protection of these rights.
120. Article 2(2) of the Maputo Protocol provides that: “States Parties
shall commit themselves to modify the social and cultural patterns of
conduct of women and men through public education, information,
education and communication strategies, with a view to achieving the
elimination of harmful cultural and traditional practices and all other
practices which are based on the idea of the inferiority or the superiority
of either of the sexes, or on stereotyped roles for women and men.”
121. Article 5(a) of CEDAW stipulates that:
“States Parties shall take all appropriate measures:
a. To modify the social and cultural patterns of conduct of men and

women, with a view to achieving the elimination of prejudices
and customary and all other practices which are based on the
idea of the inferiority or the superiority of either of the sexes or
on stereotyped roles for men and women.”
122. Article 16(1)(a) and (b) of CEDAW stipulates that:
“State Parties shall take all appropriate measures to eliminate discrimination
against women in all matters relating to marriage and family relations and
in particular shall ensure, on a basis of equality of men and women:
a. The same right to enter into marriage;

b. The same right freely to choose a spouse and to enter into
marriage only with their free and full consent.”
123. Article 21(1) of the Children’s Charter provides that:
“State Parties to the present Charter shall take all appropriate measures
to eliminate harmful social and cultural practices affecting the welfare,
dignity, normal growth and development of the child and in particular:
a. those customs and practices prejudicial to the health or life of

the child; and
b. those customs and practices discriminatory to the child on the
grounds of sex or other status.”
124. Having established the violation of the rules provisions governing
the minimum age for marriage, the right to consent to marriage and
the right to inheritance for women and children born out of wedlock,
the Court holds in conclusion that, by adopting the Family Code and
maintaining therein discriminatory practices which undermine the
rights of women and children, the Respondent State has violated its
international commitments.
125. In view of the foregoing, the Court holds that the Respondent
State has violated Article 2(2) of the Maputo Protocol, Articles 1(3) and
21 of the Children’s Charter and Article 5(a) of CEDAW.
VIII. Reparations
126. In the Application, the Applicant prays the Court to order the
measures listed in paragraph 16, aimed at amending the law, on the
one hand, and the adoption of measures to enlighten, sensitise and
educate the population, on the other.
127. In its Response, the Respondent State sought the outright
dismissal of the Application as being unfounded.
128. Article 27(1) of the Protocol provides that
“If the Court finds that there has been a violation of a human or peoples’
rights, it shall make appropriate orders to remedy the violation, including
the payment of fair compensation or reparation.”
129. In this respect, Rule 63 of the Rules stipulates that

“The Court shall rule on the request for the reparation … by the same
decision establishing the violation of a human and peoples’ right or, if the
130. With respect to the measures requested by the Applicants in

paragraph 16 (i), (ii), (iv), (v), (vi) and (vii), relating to the amendment
of the national law, the Court holds that the Respondent State has to
amend its legislation to bring it in line with the relevant provisions of the
applicable international instruments.
131. As regards the measures requested in paragraph 16 (iii), (viii),
(ix), (x), (xii) and (xiii), the Court notes that Article 25 of the Charter
stipulates that State Parties have the duty “to promote and ensure
through teaching, education and publication, the respect of the rights
and freedoms contained in the present Charter and to see to it that
these freedoms and rights as well as the corresponding obligations
and duties are understood”. The Respondent State has the obligation
to comply with the commitments under Article 25 of the Charter.
132. In the instant case, neither the Applicants nor the Respondent
State has raised the issue of costs.
133. The Court notes, in this respect, that Rule 30 of the Rules
stipulates that: “Unless otherwise decided by the Court, each Party
shall bear its own costs.”
134. Considering the circumstances of this case, the Court decides
that each Party shall bear its own costs.
X. Operative part

The Court,
Unanimously:
i. Dismisses the objection to the Court’s jurisdiction;
iii. Dismisses the objection to the admissibility of the Application;
iv. Declares that the Application is admissible;
v. Holds that the Respondent State has violated Article 6(b) of the
Maputo Protocol, and Articles 2 and 21 of the African Charter on the
Rights and Welfare of the Child, on the minimum age for marriage;
vi. Holds that the Respondent State has violated Article 6(a) of
the Maputo Protocol and Article 16(1)(b) of the Convention on the
Elimination of All Forms of Discrimination against Women on the right
to consent to marriage;
vii. Holds that the Respondent State has violated Article 21(1) and
(2) of the Maputo Protocol, and Article 3 of the African Charter on the
Rights and Welfare of the Child, on the right to inheritance for women
and children born out of wedlock;
viii. Holds that the Respondent State has violated Article 2(2) of the
Maputo Protocol, Articles 1(3) and 21 of the African Charter on the
Rights and Welfare of the Child, and Article 5(a) of the Convention on
the Elimination of All Forms of Discrimination against Women on the
elimination of traditional and cultural practices harmful to the rights of
women and children;

ix. Holds consequently that the Respondent State has violated
Article 2 of the Maputo Protocol, Articles 3 and 4 of the African Charter
on the Rights and Welfare of the Child, and Article 16 (1) of the
Convention on the Elimination of All Forms of Discrimination against
Women on the right to non-discrimination for women and children;
x. Orders the Respondent State to amend the impugned law,
harmonise its laws with the international instruments, and take
appropriate measures to bring an end to the violations established;
xi. Declares that the finding of the violations above-mentioned
constitutes in itself a form of reparation for the Applicants;
xii. Requests the Respondent State to comply with its obligations
under Article 25 of the Charter with respect to information, teaching,
education and sensitisation of the populations.
xiii. Orders the Respondent State to submit to it a report on the
measures taken in respect of paragraphs x and xii within a reasonable
period which, in any case, should not be more than two (2) years from
the date of this Judgment;
xiv. Decides that each Party shall bear its own costs.
Application 027/2015, Minani Evarist v United Republic of Tanzania

Judges: ORE, KIOKO, BEN ACHOUR, MATUSSE, MENGUE,
MUKAMULISA, CHIZUMILA, BENSAOULA, TCHIKAYA and ANUKAM
Recused under Article 22: ABOUD
The Court held, in case where free legal representation had not been
provided in relation to a serious crime, that the State had violated the
right to a fair trial and ordered compensation.
Jurisdiction (national process, 20, 35)
Fair trial (defence, free legal representation, 69, 70)
Equal protection (allegation needs to be substantiated, 75)
Reparations (release, 81; compensation, 84, 85)
Separate Opinion: BEN ACHOUR
Reparations (proportionality, release, 14-18)
Joint Dissenting Opinion: KIOKO, MATUSSE, CHIZUMILA and ANUKAM
Costs (each party to bear its own costs, 6, 11)
I. The Parties
1. The Applicant, Mr Minani Evarist, is a national of the United

Republic of Tanzania, currently serving a thirty (30) years’ prison term
for the crime of rape at Butimba Central Prison in Mwanza.
(hereinafter referred to as “the Charter”) on 21 October 1986 and also
declaration prescribed under Article 34(6) of the Protocol on 29 March
2010.
Evarist v Tanzania (merits) (2018) 2 AfCLR 402 403
A. Facts of the Matter
3. According to the records, in Criminal Case No. 155/2005 before

the District Court of Ngara, the Applicant was convicted and sentenced
on 30 March 2006, to 30 years imprisonment for having committed the
crime of rape of a fifteen (15) year old girl, an offence punishable under
Sections 130(1) and (2)(e) and Section 131(1) of the Tanzanian Penal
Code, as Revised in 2002.
4. The Applicant filed Criminal Appeal No. 43/2006 before the
High Court of Tanzania at Bukoba (hereinafter referred to as ‘the High
Court”); and Criminal Appeal No. 124/2009 before the Court of Appeal
of Tanzania at Mwanza (hereinafter referred to as ‘the Court of Appeal”).
5. The High Court and the Court of Appeal upheld the sentence on
29 March 2007 and 16 February 2012, respectively; and the Applicant
filed an Application for review before the Court of Appeal on 19 August
2014. The Applicant alleges that this Application is still pending at the
time of filing of the Application.
6. The Applicant alleges that:

i. The Court of Appeal of Tanzania “...handed down
erroneously its judgment against the Applicant on
16/02/2012; and then caused him severe harm when it did
not schedule for a hearing his review request, whereas
other applications lodged after his had been registered
and scheduled for hearing.”
ii. The Court of Appeal “…had not considered all the grounds
of his defence and clustered them into three grounds.
This legal proceeding was detrimental to the Applicant
insofar as it violated his fundamental right to have his
cause heard by a court of law as provided for in Article
3(2) of the Charter.”
iii. As the Respondent State did not afford him legal
representation during his trial, he “...was deprived of his
right to have his cause heard, which had a prejudicial
effect on him. He alleges that this procedure constitutes a
violation of the Applicant’s fundamental rights as set out
in Article 7(1)(c) and (d), of the Charter, and of Sections
1 and 107(2)(b) of the Tanzanian Constitution of 1997”
(hereinafter referred to as “the Tanzanian Constitution”).

7. In summary, the Applicant alleges the violation of Articles 3(2)
and 7(1)(c) and (d) of the Charter.
III. Summary of the procedure before the court
8. The Application was filed on 10 October 2015 and served on the

Respondent State by a notice dated 23 December 2015, directing the
Respondent State to file the list of its representatives within thirty (30)
days and to file its Response to the Application within sixty (60) days of
receipt of the notice, in accordance with Rules 35(2)(a) and 35(4)(a) of
9. The Respondent State filed the names and addresses of its
representatives on 22 February 2016.
10. On 31 March 2016, the Application was transmitted to the
Chairperson of the African Union Commission and through him to the
Executive Council of the African Union and to the State Parties to the
Protocol, in accordance with Rule 35(3) of the Rules.
11. The Respondent State submitted its Response on 22 May 2017,
which was served on the Applicant by a notice dated 30 May 2017.
12. On 28 June 2017, the Applicant filed the Reply to the Response
and this was served on the Respondent State by a notice dated 17
July 2017.
13. The Court decided to close the written pleadings with effect from
9 October 2017, pursuant to Rule 59(1) of the Rules and the Registry
duly informed the Parties by a notice dated 9 October 2017.
14. On 6 April 2018, the Parties were informed that the Court would
not hold a public hearing indicating that written submissions and the
evidence on file were sufficient to determine the matter.

“i. Render justice by annulling the guilty verdict and the
sentence meted out to him and order his release;
ii. Grant him reparations for the violation of his rights; and
iii. Order such other measures or remedies that the Court
may deem fit to grant.”
16. The Respondent State prays the Court to rule that:
“i. the Court has no jurisdiction to hear the matter and that
the Application is inadmissible;
ii. the Respondent State “has not violated Articles 3(2), 7(1),
7(1)(c) and 7(1)(d) of the Charter”;
iii. the Respondent State “should not pay reparations to the

Applicant”;
iv. the Application should be dismissed as being baseless;
and
v. the costs be borne by the Applicant.”
V. Jurisdiction
17. In accordance with Rule 39(1) of its Rules, “The Court shall
conduct preliminary examination of its jurisdiction...”.
18. The Respondent State objects to the Court’s jurisdiction to

adjudicate on the matters raised by the Applicant arguing that, in
praying the Court to re-examine the matters of fact and law examined
by its judicial bodies, set aside their rulings and order the release of
the convicted individual, the Applicant is in effect asking the Court to
sit as an appellate body, whereas this is not within its powers as set
out in Article 3(1) of the Protocol and Rule 26 of the Rules. To this
end, the Respondent State makes reference to the Court’s Decision in
Application No. 001/2013: Ernest Francis Mtingwi v Republic of Malawi.
19. The Applicant rebuts the Respondent State’s allegation and
asserts that the Court shall have jurisdiction as long as there is a
violation of the provisions of the Charter or of any other relevant human
rights instruments, which bestows on the Court the power to review
decisions rendered by domestic courts, review evidence and set aside
the sentence and acquit the victim of human rights violations.
20. In response to the objection to its material jurisdiction, this
Court reiterates its position as affirmed in Ernest Mtingwi v Republic of
Malawi1 that it is not an appeal court with respect to decisions rendered
by national courts. However, as the Court underscored in its Judgment
of 20 November 2015 in Alex Thomas v United Republic of Tanzania,
and reaffirmed in its Judgment of 3 June, 2016 in Mohamed Abubakari
v United Republic of Tanzania, that this situation does not preclude it
from examining whether the procedures before national courts are in
accordance with international standards set out in the Charter or other
applicable human rights instruments to which the Respondent State is

Republic of Malawi (hereinafter referred to as “Ernest Francis Mtingwi v Malawi
Decision”), para 14.
a Party.2 Indeed, this falls within the very scope of the powers of the
Court as provided for under Article 3(1) of the Protocol.
21. Accordingly, the Court dismisses this objection and holds that it
has material jurisdiction.
jurisdiction has not been contested by the Respondent State, and
nothing in the pleadings indicates that the Court lacks jurisdiction. The
Court thus holds that:
“i. it has personal jurisdiction given that the Respondent
Declaration required under Article 34(6) thereof, which
enabled the Applicants to access the Court in terms of
ii. it has temporal jurisdiction on the basis that the alleged
violations are continuous in nature since the Applicant
remains convicted on the basis of what he considers an
unfair process;
to hear the instant case.
24. In terms of Article 6(2) of the Protocol “The Court shall rule on
25. Pursuant to Article 39(1) of the Rules, “the Court shall conduct
preliminary examination of (…) the admissibility of the application in
Rules.”

of Tanzania (hereinafter referred to as “Alex Thomas v Tanzania Judgment”), para
130 and Application No.007/2013. Judgment of 3/6/2016, Mohamed Abubakari v
United Republic of Tanzania (hereinafter referred to as “Mohamed Abubakari v
Tanzania Judgment”), para 29.
“1. Disclose the identity of the Applicant notwithstanding the latter’s

mass media;

Parties

between the Parties, the Court notes that the Respondent State raised
two objections: one relating to the exhaustion of local remedies and
the other, regarding the timeframe for filing the Application before the
Court.

remedies
28. The Respondent State argues that “[t]he exhaustion of domestic

remedies is a fundamental principle of international law and that the
Applicant should have used all domestic remedies before submitting
the case to an international body such as the African Court on Human
and Peoples’ Rights”.
29. To buttress its assertions, the Respondent State relies on the
African Commission on Human and Peoples’ Rights’ (hereinafter
referred to as “the Commission”) jurisprudence in Communication No.
333/20 –SAHRINGON and Others v Tanzania and Communication No.
275/03, Article 19 v Eritrea.
30. The Respondent State contends that the alleged violation of the
provisions of Articles 1 and 107A(2)(b) of the Tanzanian Constitution,
1977 should have been challenged in a constitutional petition,3 as

provided by Article 30(3) of the Tanzanian Constitution and in the Basic
Rights and Duties Enforcement Act, Revised Edition, 2002.
31. The Respondent State also claims that the right to legal aid
is provided under the Legal Aid Act (Criminal Proceedings), Revised
Edition, 2002, but the Applicant never requested for it before the
domestic courts.
32. The Applicant refutes the Respondent State’s assertion that the
Application is inadmissible, arguing that he could not file a constitutional
petition since the violation had been committed by the Court of Appeal;
nor could he file such a petition before a single High Court Judge
against a ruling by the highest court in Tanzania made up of a panel of
three Judges.
33. The Court notes that the Applicant filed an appeal and had
of Appeal, to adjudicate on the various allegations, especially those
relating to violations of the right to a fair trial.
34. Concerning the filing of a constitutional petition for violation
of the Applicant’s rights, the Court has already established that this
that the Applicant is not required to exhaust prior to seizing this Court.4
35. With regard to the allegation that the Applicant did not raise the
issue of legal aid during domestic proceedings but chose to bring it
before this Court for the first time, the Court, in accordance with the
Judgment rendered in Alex Thomas v United Republic of Tanzania,
is of the view that the violation occurred in the course of the domestic
judicial proceedings that led to the Applicant’s conviction and sentence
to thirty (30) years’ imprisonment; that the allegation forms part of the
“bundle of rights and guarantees” relating to the right to a fair trial
which was the basis of the Applicant’s appeals. The domestic judicial
authorities thus had ample opportunity to address the allegation even
without the Applicant having raised it explicitly. It would therefore be
unreasonable to require the Applicant to file a new application before
the domestic courts to seek redress for these claims.5
36. Accordingly, the Court finds that the Applicant has exhausted
the local remedies as envisaged under Article 56(5) of the Charter and
3 Petition to the High Court against violations of the fundamental rights and duties
provided for in Articles 12 to 29 of the Constitution.
Tanzania Judgment, op cit, paras 66 – 70; Application No.011/2015. Judgment of
28/9/20l7, Christopher Jonas v United Republic of Tanzania (hereinafter referred
to as “Christopher Jonas v Tanzania Judgment”, para 44.
5 Alex Thomas v Tanzania Judgment, op cit, paras. 60 – 65.
Rule 40(5) of the Rules. The Court therefore overrules this preliminary
objection to the admissibility of the Application relating to the exhaustion
of local remedies.
ii. Objection on the ground that the Application was not

filed within a reasonable time
37. The Respondent State argues that, should the Court find that
the Applicant has exhausted domestic remedies, it should still dismiss
the Application because it was not filed within a reasonable time after
local remedies were exhausted.
38. It further contends that, even though Article 40(6) of the Rules
of Court is not specific on the issue of reasonable time, international
human rights case law has established that six months would be a
reasonable time limit within which the Applicant should have filed the
Application, maintaining that such was the position of the Commission
in Communication No. 308/05, Michael Majuru v Zimbabwe.
39. The Respondent State also maintains that three (3) years and
six (6) months had elapsed between the decision of the Court of Appeal
of Tanzania (16 February 2012) and the date this Court was seized (10
October 2015), and that this timeframe is not reasonable given that the
Applicant had no difficulty in filing the Application earlier.
40. The Applicant refutes the Respondent State’s allegations
regarding the reasonableness of the timeframe for seizing the Court,
arguing that there is no provision in the Rules for assessment of the
reasonable time for filing applications before the Court. To this end, he
cites the Court’s decision in Application No. 013/2011: Beneficiaries
of Late Norbert Zongo and Others v Burkina Faso, that the Court had
established that the “reasonableness of a timeframe of seizure will
determined on a case-by-case basis.”
41. The Applicant then states that he was awaiting the decision of
the Court of Appeal of Tanzania on his application for review of the
decision of 16 February 2012, which took a long time.
42. The Court observes that the question at issue is whether the
time that elapsed between the exhaustion of local remedies and filing
of the case before it, is reasonable within the meaning of Rule 40(6)
of the Rules.
43. The Court notes that the ordinary judicial remedies available
in the Respondent State were exhausted on 16 February 2012, the
date of the Court of Appeal decision and that the Application was filed
before the Court on 10 October 2015. Between the Court of Appeal’s
decision and the filing of the Application at this Court, three (3) years,
seven (7) months and twenty-four (24) days had elapsed.
44. In its Judgment in the Matter of the Beneficiaries of late Norbert

Zongo and Others v Burkina Faso, the Court set out the principle that
“... the reasonableness of the timeline for referrals to it depends on the
circumstances of each case and must be assessed on case-by-case
basis.”6
45. The Court notes that the Applicant is lay, indigent and
incarcerated person without counsel or legal assistance,7 as well as
his attempt to use extraordinary measures, that is, the application
for review of the Court of Appeal’s decision,8 and holds that all these
constitute sufficient grounds to justify the filing of the Application after
three (3) years, seven (7) months and twenty-four (24) days following
the Court of Appeal decision.
46. In view of the aforesaid, the Court dismisses this objection to
admissibility relating to the filing of the Application within a reasonable
time.

between the Parties

Rules 1, 2, 3, 4, and 7 of Rule 40 of the Rules) are not in contention
48. The Court also notes that nothing on the record suggests that
these conditions have not been met in the instant case. The Court
therefore holds that the requirements under those provisions are
fulfilled.
Application fulfils all admissibility conditions set out under Article 56
of the Charter and Rule 40 of the Rules, and accordingly, declares the
6 Application No. 013/2011. Ruling on preliminaries objections of 21/06/2013,

Beneficiaries of late Zongo and Others v Burkina Faso, para 121. See also
Application No. 005/2013, Alex Thomas v Tanzania Judgment, op cit, para 73;
Application No. 007/2013, Judgment of 3/6/2013, Mohamed Abubakari v Tanzania
Judgment, op cit, para 91; Application No. 011/2015. Christopher Jonas v Tanzania
Judgment, op cit, para 52.
7 Alex Thomas v Tanzania Judgment, op cit, para 74.
8 Application No. 006/2015. Judgment of 23/3/2018, Nguza Viking (Babu Seya) and
Johnson Nguza (Papi Kocha) v Tanzania, para 61.
same admissible.
VII. Merits
50. The Applicant alleges two violations, which fall within the ambit
of the right to a fair trial, namely: the violation of the Applicant’s right
to have his cause heard by a court of law and the violation of the right
to legal aid.
i. The alleged violation of the right to have his cause

heard by a court of law
51. The Applicant alleges that the Court of Appeal failed to examine
all of his arguments, since it grouped them into three clusters, although
each of his grounds of appeal were invoked for different purposes.
According to the Applicant, this affected the merits of each of his pleas
and consequently violated “... his fundamental right to have his cause
heard by a court of law, as provided for in Article 3(2) of the Charter”.
The Applicant also contends that there should have been a voir dire
examination of the witnesses before they were allowed to testify.
52. The Respondent State rebuts the Applicant’s allegation, and
submits that all his arguments were duly examined by the Court of
Appeal, which held that of the three arguments submitted only the third
was relevant, which states that “... the prosecution has not been able
to gather evidence beyond reasonable doubt ...”
53. The Court notes that the Applicant’s allegation does not relate
to Article 3(2) of the Charter, as he asserts, which provides that “Every
individual shall be entitled to equal protection of the law”, but rather to
Article 7(1), which stipulates that: “Every individual shall have the right
to have his cause heard...”
54. The Court observes that the question that arises here is
whether the pleas raised in the appeal were duly examined by the
Court of Appeal in conformity with the abovementioned Article 7(1) of
the Charter. On this point, the Court has consistently ruled that the
examination of particulars of evidence is a matter that should be left for
the domestic courts, considering the fact that it is not an appellate court.
The Court may, however, evaluate the relevant procedures before the
national courts to determine whether they conform to the standards
prescribed by the Charter or all other human rights instruments ratified
by the State concerned.9

55. The Court notes that in the appeal before the Court of Appeal, the
Applicant raised two issues, namely: the lack of conclusive evidence
on the age of fifteen (15) attributed to the victim and the fact that the
crime has not been proven beyond reasonable doubt.
56. The Court notes that the Court of Appeal held that the only
important matter was whether the material act of rape (penetration)
had been committed by the Applicant, and following examination of the
same, it concluded that the Applicant committed the act and confirmed
the conviction.
57. The Court notes that the Applicant has not provided sufficient
evidence to substantiate his claim as to the age of the victim, and has
not demonstrated how the voir dire examination would have impacted
the decision to convict him. This Court has held in the past that “…
general statements to the effect that a right has been violated are not
enough. More substantiation is required”.10
58. The Court further notes that nothing suggests that the Court
of Appeal’s assessment of the evidence was manifestly erroneous.
Therefore, the Court holds that the alleged violation has not been
proven and accordingly dismisses it.
ii. Alleged violation of the right to legal aid
59. The Applicant submits that “... he was not afforded legal
representation, he was deprived of his right to have his cause heard”,
which had a prejudicial effect on him and that … “such a position
constitutes a violation of his fundamental rights as set forth in Article
7(1)(c) and (d) of the Charter, and also in Articles 1 and 107A(2)(b) of
the Tanzanian Constitution.”
60. He challenges the Respondent State’s arguments, admits that
he “… never asked for legal aid”, and that domestic law provisions on
legal aid “… does not provide for a procedure or directives on how to
seek legal aid.”
61. The Respondent State refutes the Applicant’s allegations that
its domestic law does not provide for a procedure as to how to seek
legal aid, and requests proof in that regard. It contends that legal aid
is provided in Section 310 of the Tanzanian Criminal Procedure Act,
9 Ernest Francis Mtingwi v Tanzania Decision, op cit para 14; Alex Thomas v
Tanzania Judgment, op cit para 130; Mohamed Abubakari v Tanzania Judgment,
op cit, paras 25 and 26, Application No. 032/2015. Kijiji Isiaga v United Republic of
Tanzania, Application No. 032/2015. Judgment, 21/3/2018 (hereinafter referred to
as “Kijiji Isiaga v Tanzania Judgment”) para 63.
Section 3 of the Legal Aid Act and Rule 31(1) of the Court of Appeal
Rules, 2009.
62. It further contends that, at any rate, the competent judicial
authority applies for legal aid on behalf of the defendant, where required,
provided the following conditions have been met: the defendant must
be indigent and unable to pay lawyer’s fees; and whether the interests
of justice so demand.
63. The Respondent State further prays the Court to take into
account the fact that legal aid is progressively being made available
and that it is mandatory in cases of murder and homicide. It submits
that while legal aid is granted by all its courts, there are however
constraints that may impede the mandatory nature of the automatic
provision of legal aid in all cases, especially the inadequate number of
lawyers to meet this need across the country, as well as the constraint
of shortage of financial and other resources.
64. The Respondent State further submits that the right to be
represented by a Counsel of one’s choice is guaranteed to all those
who can afford it. As regards legal aid, however, the Respondent avers
that it is neither easy nor practical to provide the defendant with a pro
bono lawyer of his own choice. It, therefore, prays the Court to take
into account the fact that legal aid is not an absolute right and that
States exercise their discretionary powers in providing the said aid,
depending on their capacity to do so; and this is how the extant legal
aid system in the country operates.
65. In conclusion, the Respondent State indicates that the process
of review of its legal aid system is ongoing, and that the outcome will
be communicated to the Court in due course.
66. The Court notes that Article 7(1)(c) of the Charter provides
comprises:
… c) The right to defence, including the right to be defended by counsel of

his choice.”
67. The Court notes that even though this Article guarantees the
right to defence, including the right to be assisted by counsel of one’s
choice, the Charter does not expressly provide for the right to free legal
assistance.
68. However, in its judgment in the Alex Thomas v United Republic of
Tanzania, this Court held that free legal aid is a right intrinsic to the right
to a fair trial, particularly, the right to defence guaranteed in Article 7(1)
(c) of the Charter. In its previous jurisprudence, the Court also held that
an individual charged with a criminal offence is automatically entitled
to the right of free legal aid, even if the individual has not requested for
it, whenever the interests of justice so require, in particular, if he/she
is indigent, if the offence is serious and if the penalty provided by the

law is severe.11
69. In the instant case, the contention that the Applicant was not
afforded free legal aid throughout his trial is not in dispute. Given that
the Applicant was convicted of a serious crime, that is, rape, carrying
a severe punishment of thirty (30) years, there is no doubt that the
interests of justice would warrant free legal aid provided that the
Applicant did not have the means to pay for the services of a lawyer.
In this regard, the Respondent State does not contest the indigence of
the Applicant nor does it argue that he was financially capable of hiring
Counsel. It is clear in the circumstances that the Applicant should have
been provided with free legal aid. The fact that he did not request for
it does not exonerate the Respondent State from its responsibility to
provide him with free legal aid.
70. As regards the allegations concerning the margin of discretion
that the Respondent State should be given in the implementation of the
right to legal aid, the non-absolute nature of the right to legal aid and
the lack of financial means to offer legal aid to all persons charged with
crimes, the Court holds that these allegations are no longer relevant in
this instant case, given that the conditions for the compulsory grant of
legal aid are all fulfilled.
71. The Court therefore finds that the Respondent State has violated
Articles 7(1) (c) of the Charter.
B. Alleged violation of the right to equal protection of the

law
72. The Applicant submits that, although he filed his application for
review before the Court of Appeal and provided all the materials and
evidence to corroborate the same, the application was not scheduled
for hearing, whereas other applications filed subsequently were
registered, set down for hearing and determined.
73. The Respondent State merely refutes this claim and calls on the
Applicant to provide proof thereof.
74. The Court notes that the situation described by the Applicant as
a violation of his right to equal protection of the law relates to Article
3(2) of the Charter, which stipulates that: “Every individual shall be
entitled to equal protection of the law.”
75. However, the Court notes that the Applicant has made general
allegations without sufficient evidence to substantiate them. Relying
11 Ibid para. 123, see also Mohamed Abubakari v Tanzania Judgment, op cit, paras
138 and 139.
on its jurisprudence cited in paragraph 57 of this Judgment, the Court

therefore holds that the alleged violation has not been proven, and
accordingly dismisses the same.
76. The Applicant prays the Court to restore justice by setting

aside his conviction and sentence; ordering his release from prison;
awarding him compensation for the violation of his fundamental rights
and, making such other orders as it may deem fit.
77. In its Response, the Respondent State prays the Court to
dismiss the Application and the Applicant’s prayers in their entirety on
the grounds that they are baseless.
78. The Court notes that Article 27(1) of the Protocol stipulates that
“If the Court finds that there has been violation of a human or peoples’
right, it shall make appropriate orders to remedy the violation, including
the payment of fair compensation or reparation.”
circumstances so require, by a separate decision”.
80. The Court notes its finding in paragraph 69 above that the
Respondent State has violated the Applicant’s rights to be provided
with legal aid. In this regard, the Court recalls its position on State
responsibility in Reverend Christopher R Mtikila v United Republic
of Tanzania, that “any violation of an international obligation that has
caused harm entails the obligation to provide adequate reparation.”12
81. As regards the Applicant’s prayer to annul his conviction and
sentence and order his release, the Court reiterates its decision that it
is not an appellate Court for the reasons that it does not operate within
the same judicial system as national courts; and that it does not apply
“the same law as the Tanzanian national courts, that is, Tanzanian
law”.13
82. The Court also recalls its decision in Alex Thomas v United
Republic of Tanzania where it stated that “an order for the Applicant’s
release from prison can be made only under very specific and/or,
compelling circumstances”14. This would be the case, for example, if an
Applicant sufficiently demonstrates or the Court itself establishes from
12 Application No. 011/2011. Ruling of 13/6/2014, Reverend Christopher R Mtikila v

United Republic of Tanzania, op cit, para 27.
13 Mohamed Abubakari v Tanzania Judgment, para. 28.
14 Alex Thomas v Tanzania Judgment, op. cit., para 157.
its findings that the Applicant’s arrest or conviction is based entirely

on arbitrary considerations and his continued imprisonment would
occasion a miscarriage of justice. In such circumstances, the Court
has pursuant to Article 27(1) of the Protocol the powers to order “all
appropriate measures”, including the release of the Applicant.
83. The Court observes, however, that such a finding does not
preclude the Respondent State from adopting such measures should
it deem appropriate.
84. The Court further notes that, in the instant case, the Applicant’s
right to legal aid was violated but this did not affect the outcome of
his trial. The Court further notes that the violation it found caused
non-pecuniary prejudice to the Applicant who requested adequate
compensation therefor in accordance with Article 27(1) of the Protocol.
85. The Court therefore awards the Applicant an amount of
three hundred thousand Tanzania Shillings (TZS 300,000) as fair
compensation.
IX. Costs
86. In its Response, the Respondent prays the Court to rule that the
costs of the proceedings be borne by the Applicant.
87. The Applicant has made no specific requests on this issue.
own costs.”
89. In the instant case, the Court decides that the Respondent State
shall bear the costs.
X. Operative part

The Court,
Unanimously,
On jurisdiction:
On admissibility:
On the merits:
v. Finds that the alleged violation of the Applicant’s right to be
heard under Article 7(1) has not been established;

vi. Finds that the alleged violation of the Applicant’s right to equal
protection of the law, provided for in Article 3(2) of the Charter, has not
been established;
vii. Declares that the Respondent State has violated the Applicant’s
right to defence under Article 7(1)(c) of the Charter for failure to provide
him free legal assistance.
viii. Dismisses the Applicant’s prayer for the Court to annul his
conviction and sentence and to order his release from prison;
On reparations
ix. Awards the Applicant an amount of Three Hundred Thousand
Tanzania Shillings (TZS 300,000) as fair compensation;
x. Orders the Respondent State to pay the Applicant the said sum
and report to the Court thereon within six (6) months from the date of
notification of this Judgment; and
By a majority of Six (6) for, and Four (4) against, Justices Ben KIOKO,
Ângelo V MATUSSE, Tujilane R. CHIZUMILA and Stella I ANUKAM
dissenting:
On costs
xi. Orders the Respondent State to pay the costs.
_____________________________
1. I voted for the entire Judgment in the Matter of Minani Evarist v

United Republic of Tanzania captioned above, and I agree with all the
reasoning of the Court as well as the entire operative part. However,
I have reservations regarding the reasons developed in paragraph 81
of the Judgment.
2. The Court’s refusal to order the Applicant’s release, in my
opinion, reposes on questionable reasons. Indeed, the Court states
in paragraph 81 that “the Court reiterates its decision that it is not an
appellate Court”. This is more than obvious in as much as we are in the
presence of a continental court whose “jurisdiction … shall extend to
all cases and disputes submitted to it concerning the interpretation and
application of the Charter ... Protocol, and any other relevant Human
Rights instrument ratified by the States concerned”.1 And the Court

justifies this assertion by adding that “for the simple reason that it does
not belong to the same judicial system as the national courts, it does
not apply the same law as the Tanzanian courts; that is, Tanzanian law,
and it does not examine the detail of the issues of fact and law that
national courts are entitled to deal with”. Here again, the justification
does not tally with what the Court will say to argue the reasons for
its refusal to order release. The latter in fact reposes on the reasons
outlined in paragraph 82, which for the first time in the jurisprudence
of the African Court, gives a list, albeit not exhaustive, of “exceptional
or compelling circumstances” which could lead the Court to pronounce
a release, reasons unrelated to the fact that the African Court is not a
Tanzanian appellate court. By adopting this line of argument, it could
be said that the Court forever closes the possibility of it ordering the
release of an Applicant in detention or in arbitrary imprisonment.
3. This notwithstanding, I agree with the Court’s decision to reject
the prayer for release. Indeed, and in this case, the Court rightly took
into account only one complaint against the Respondent State, namely,
the violation of Article 7(1)(c) on the Applicant’s right to defence with
the use of legal aid.2
4. This violation is certainly as important as any violation of a
human right. There is indeed no violation of human rights that is not
important. But the consequences of violation are variable when the
issue comes to that of reparation.
1 Article 3 of the Protocol to the African Charter on Human and Peoples’ Rights on
the Establishment of an African Court on Human and Peoples’ Rights.
2 Article 3 of the Protocol to the Afric of the individual that are protected within the
rule of law and democracies. Fundamental rights are also called fundamental
freedoms, and are inherent in the very notion of individual” https://droit-finances.
commentcamarche.com/faq/23746-droits-fondamentaux-definition. In the context
of the European Union, the notion of fundamental right has been enshrined in
The Charter of Fundamental Rights of the European Union which was signed
and proclaimed by the Presidents of the European Parliament, the Council and
the Commission at the Nice European Council on 7 December 2000. See L.
Burgorgue-Larsen, et al (eds.), ‘Treaty Establishing a Constitution for Europe.
Part II. The Charter of Fundamental Rights of the European Union’– (2005) Article
Commentary p 837.
5. The violation established by the Court in this case does not

concern a fundamental or intangible human right.3 Moreover, there
has not been a cascade of violations in this case. The only violation
established by the Court was not decisive in terms of the lawfulness
of the proceedings against the Applicant for the crime of rape of a
10-year-old girl. The Court expressly says so in paragraph 84.
6. According to the Basic Principles and Guidelines on the Right to a
Remedy and Reparation for Victims of Gross Violations of International
Human Rights Law and Serious Violations of International Humanitarian
Law,4 restitution as a form of reparation seeks to restore the victim
to the original situation before the gross violations of international
human rights law or serious violations of international humanitarian
law occurred, and includes: “restoration of liberty, enjoyment of human
rights, identity, family life and citizenship, return to one’s place of
residence, restoration of employment and return of property”.5
7. The Permanent Court of International Justice has pointed out
that “It is a principle of international law that the reparation of a wrong
may consist in an indemnity corresponding to the damage which the
nationals of the injured State have suffered as a result of the act which
is contrary to international law”,6 a position reiterated by the European
Court of Human Rights which held that “a judgment in which the Court
finds a violation entails for the Respondent State the legal obligation
to put an end to the violation and to erase the consequences so as
to restore as much as possible the situation that existed before the
3 In international human rights law, intangible rights are those excluded by Article
4 of the International Covenant on Civil and Political Rights (ICCPR) from any
derogation, namely:
• Right not to be discriminated against based solely on race, color, sex, language,
religion or social origin (Article 4 (1) ICCPR)
• Right to life (Art 6. ICCPR)
• Right not to be subjected to torture or to cruel, inhuman or degrading treatment
(Article 7 ICCPR)
• Right not to be held in slavery or servitude (Articles 8 (1) and 2 ICCPR)
• Right not to be imprisoned merely on the ground of inability to fulfil a contractual
obligation (Article 11 ICCPR)
• Right not to apply criminal law retroactively (Article 15 ICCPR)
• Right to be recognized as a person everywhere before the law (Article 16
ICCPR)
• Freedom of thought, conscience and religion (Article 18 ICCPR).
4 Basic Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law; 60/147 Resolution adopted by the
General Assembly on 16 December 2005.
5 Principle 19.
6 CPJI, 13 September 1928, Matter of the Factory at Charzòw (Claim for Indemnity),
Série A – No. 77.
violation”.7 Further, the august Court adds that: “The essential principle,
which stems from the very notion of an unlawful act and which seems to
emerge from international practice, in particular from the jurisprudence
of arbitral tribunals, is that reparation must as far as possible erase all
the consequences of the unlawful act and restore the state that would
presumably have existed if the act had not been committed. Restitution
in kind, or, if it is not possible, payment of an amount corresponding to
the value of restitution in kind; allowance, if any, for damages for losses
suffered which are not covered by the refund in kind or the payment
which takes the place of it”.8
8. For its part, the African Commission recognized the importance
of restitution, and has held that a State in violation of the rights set forth
in the African Charter must “take measures to ensure that victims of
human rights abuses are given effective remedies, including restitution
and compensation.”9 A restitution order should specify precisely which
rights of the victim should be restored so as to indicate to the State the
best way to correct the violation and put the victim in the situation prior
to the commission of the violation, as far as possible
9. In its basic principles and guidelines, the United Nations refers to
a variety of violations that require specific forms of restitution, including
restoration of the right to a fair trial, restoration of freedom, restoration
of citizenship and return to one’s place of residence, etc.
10. In the event that the violations found by the Court do not require a
full restitution measure, such as release or re-opening of proceedings,
it goes without saying that the appropriate compensation is pecuniary
compensation; and this is the solution chosen by the Court in the
instant case.
11. Article 27(1) of the Protocol to the Charter on the Establishment
of an African Court on Human and Peoples’ Rights (hereinafter referred
to as “the Protocol”) states that: “If the Court finds that there has been
violation of a human or peoples’ rights, it shall make appropriate orders
to remedy the violation, including the payment of fair compensation or
reparation”. It is clear from that Article that the Court has full discretion
to determine measures of reparation such that can “remedy the
situation”.
12. Compared with similar Articles of the European Convention
(Article 41) and the Inter-American Convention (Article 63 paragraph
7 CEDH, Papamichalopoulos and Others v Greece, Application No. 14556/89,

Judgment of 31 October 1995, para 34.
8 Page 47.
9 African Commission: Sudan Human Rights Organisation & Centre on Housing
Rights and Evictions (COHRE), Sudan, Operative Part para 229(4).
1), the afore-cited Article 27 of the Protocol is rather generous and

is very similar to Article 61 of the Inter-American Convention.10 As
we indicated earlier, Article 41 of the European Convention does
not confer on the European Court of Human Rights the possibility of
pronouncing “just satisfaction” save where the domestic law allows for
the erasure of the consequences of a violation and, even in such a
case, only ‘’ if it is necessary ‘’ to do so. In other words, the award of
just satisfaction does not flow automatically from the finding by the
European Court of Human Rights that there has been a violation of a
right guaranteed by the European Convention on Human Rights. For
this reason, the European Court very rarely pronounced an Applicant’s
release. In contrast, Article 63(1) of the Inter-American Convention is
quite liberal in as much as it states that: “When it recognizes that a
right or freedom protected by this Convention has been violated, the
Court shall order that the party injured be granted the enjoyment of the
rights or freedoms infringed. It will also order, where appropriate, the
reparation of the consequences of the measure or the situation which
gave rise to the violation of the said rights and the payment of fair
compensation to the injured party.”
13. Even if the Protocol does not speak, like the Inter-American
Convention, of the possibility for the Court “to order that the injured
party be guaranteed the enjoyment of the right or freedom violated”,
Article 27 speaks of “appropriate measures to remedy the violation”,
which amounts to the same thing.
14. It is generally accepted in doctrine11 and in jurisprudence that
release or re-opening of proceedings is necessary only where the Court
is of the view that there is no proportionality between the full reparation
sought and the violation found, especially if it concerns only one aspect
of the right to a fair trial which could not, in view of the elements on
file, vitiate the whole of the trial at its various stages. But in the event
of a series of substantial violations, the condition of “exceptional or
compelling circumstances” is met and the full restitution order should
be made in the form of an order for release or resumption of the trial
in accordance with the norms and international standards of fair trial.
15. The violation of the Applicant’s right to legal aid, in addition
to not fundamentally vitiating the outcome of the trial, is not, in my
opinion, an “exceptional or compelling circumstance” which could have
led to the Court to order restitution such as release of the Applicant or
10 See in this sense H Tigroudja, “The Reparation of Human Rights Violations: The
Practice of Regional and Universal Bodies”. Audiovisual Library of International
Law, http://legal.un.org/avl/ls/Tigroudja_HR.html#
11 D Shelton Remedies in international human rights law (2009).
resumption of the trial.

16. In my opinion, there are “exceptional or compelling circumstances”
if, and only if, the violation affects a fundamental human right or if
there is a cascade of violations, which would have had irreparable
consequences which would have substantially vitiated the outcome of
the trial. In the remedies ordered by the Court, there must always be
proportionality between the seriousness of the human rights abuses,
the nature, the magnitude and scope of the remedies. The Court took
the welcome initiative in the present judgment to offer some examples
of “exceptional or compelling circumstances”. For the Court, and I fully
agree, “this would be the case, for example, if the Applicant sufficiently
demonstrates or the Court itself establishes, from these circumstances
that the arrest or conviction of the Applicant is based fully on arbitrary
considerations and that his continued imprisonment would result in a
denial of justice” (para 82).
17. In my opinion, the crucial criterion for determining the nature
and magnitude of reparation measures is the proportionality between
the violations found, and the remedy or measures determined. The
more serious the violations, or more numerous the violations, the more
the reparation must come closer to full restitution such as an order for
release or the reopening of proceedings, etc.
18. In the instant case, the violation as indicated did not “affect the
outcome [of] the trial”. Reparation for the violation of Article 7(1)(c) of the
Charter established by the Court can, in my opinion, only be resolved
by pecuniary compensation, and this is what the Court has done for
the first time, by awarding the Applicant a lump sum compensation,
the amount of which was absolute and depended on the material on
file and the gravity of the criminal offense, as estimated by the Court.
19. For all these reasons, I was in agreement with certain nuances
in the solution advocated by this Judgment. I remain convinced that the
Court, by virtue of Article 27(1) of the Protocol, has the full latitude to
determine the nature of “appropriate measures capable of remedying
the situation”.
_____________________________
Dissenting Opinion: KIOKO, CHIZUMILA and ANUKAM
1. We agree substantially with the findings of the majority on the

merits of this Application but there is one particular issue relating
to costs under paragraph 89 of the judgment where we differ in our
position from the majority. In the said paragraph, on the issue of costs,
the majority has decided that “the Respondent State shall bear the
costs”. In our considered opinion, this decision of the majority requiring
the Respondent State to bear all the costs in the instant case is not
correct for the reasons we outline below.
2. At the outset, we wish to point out that international human rights
litigation is mostly but not exclusively between an individual and a State
and due to the nature of the proceedings and the unequal capacity of
the Parties, it is not always the rule that the loser party bears costs,
which may be the norm in other forms of litigation. In particular, in
circumstances where the loser party is the individual, he or she shall
not in principle be penalized for exercising his/her right to be heard by
being required to bear the entire costs of the litigation.
3. The only exception to this principle would be if the State sufficiently
demonstrates that the individual abused his/her rights or acted in bad
faith by filing frivolous claims while having been fully aware/ knowing
that he was not entitled to make such claims. Even when the bad
faith of the individual is sufficiently vindicated, the financial capacity of
the individual and the amount of costs that the State incurred should
guide the determination of whether the former shall bear the costs.
It therefore rests on the discretion of a Court to assess and identify,
having regard to the specific contexts of each case, the party which
shall incur the costs.
4. In the instant case, it is evident from the facts on record that the
Respondent State has prayed the Court to order that the Applicant
shall bear the costs. However, the Applicant has neither prayed for
costs nor did he provide any supporting documents showing expenses
in relation to his Application, if any.
5. On the other hand, the Court has, in our view rightly, found that
the Respondent State has violated the right to defence of the Applicant
by failing to provide him legal assistance during his trial contrary to
Article 7(1)(c) of the Charter (See paragraph 71 of the Judgment).
From this finding, it is clear that the Respondent State is the losing
party and in accordance with the general default principle, that a losing
party meets the costs of the suit, it would ordinarily be the case that it
shall be the Respondent State to bear the costs.
6. However, Rule 30 of the Rules provides that “Unless otherwise
decided by the Court, each party shall bear its own costs”. According to
this rule, the default principle for the Court is thus that each party bears
its cost unless the Court decides otherwise. In the past, the Court has
applied this rule on many occasions and held in majority of cases that
each party covers its own costs, even where the Respondent State
was found to be in breach of the Charter and other relevant human
rights instruments. This has been the case also where neither of the
Parties has filed submissions on costs.1 This reinforces the fact that
costs are not damages for the violations of human rights as such, but
a compensation or reimbursement of expenses incurred by a party for
the litigation.
7. The opinion of the majority in the instant case is therefore a
clear departure from the Court’s established position. While we do not
have problems with this shift in approach, we nevertheless believe
that the departure should have been necessitated by some cogent
reasons or, at the minimum, supported by adequate justification, which
the majority did not provide. Regrettably in another judgment, in the
Matter of Dicoles William v United Republic of Tanzania, delivered on
the same day with similar facts relating to costs, the Court contradicted
itself by deciding that each party shall bear its own costs, in spite of
the fact that in that matter, as in the instant Application, the Applicant
neither claimed costs nor provided any supporting documentation, and
only the Respondent State prayed the Court to order the Applicant to
bear the costs, the majority in this case agreed that each party bears
its own costs.2
8. Consequently, we are of the view that the position of the Court
in the instant case reveals an unjustified inconsistency in its decisions
with respect to similar cases that the Court has concluded so far.
9. Furthermore, according to the established jurisprudence
of other human rights courts, a party is entitled to a refund of costs
and expenses only in so far as it is demonstrated that such costs
or expenses have been actually and necessarily incurred and are
reasonable as to quantum.3 This requires that the Applicant should
substantiate his claims with evidence showing that he incurred the
said costs or expenses and were indeed necessary for pursuing his
Application.
10. This is not the case in the instant Application. As we indicated
earlier, the Applicant has not made any submissions or prayed for
costs, or provided documents indicating that he incurred any costs.
While ordering the Respondent State to bear the costs, the majority
1 See Application No. 010/2015. Judgment 11/05/ 2018. Amiri Ramadhani v United
Republic of Tanzania, para 90, Application No. 046/2016, Judgment of 11/05/2018.
APDF & IHRDA v Republic of Mali, para 134, Application No. 011/2015, judgment
28/09/2017. Christopher Jonas v United Republic of Tanzania, para 98, Application
No. 032/2015 – Kijiji Isiaga v United Republic of Tanzania. Judgment of 21/03/2018
para 101.
2 Application No. 016/2016. Judgment of 21/09/2018. Diocles William v United
Republic of Tanzania, paras 107-110.
3 Applications 68762/14 and 71200/14. Judgment of 20/09/2018. Case of Aliyev
v Azerbaijan, para. 236, Series C No. 352. Judgment of 13/03/2018, Case of
Carvajal Carvajal et al v Colombia Merits, Reparations and Costs. Inter-American
Court of Human Rights, para 230.
also did not specify or reckon the necessary and reasonable costs
that the Respondent State is expected to bear. Nor did the Court, as it
has done in some other cases,4 indicate in the instant case that it will
in a future separate proceeding, determine the exact amount of such
costs that the Applicant is entitled to get reimbursement. It is thus not
clear what the majority envisaged as costs that should be borne by
the Respondent State, since the Applicant is self-represented, and the
Court does not charge any fees.
11. We therefore conclude that the majority should, for purpose of
maintaining consistency, have followed the Court’s established position
that, in the absence of submissions or claims on costs from one or both
Parties, each party shall bear its own costs. Alternatively, the majority
should have provided reasons to justify their departure from the court’s
established position.
4 In some previous cases, the Court has deferred the issue of costs to a later stage to
consider it together with other forms of reparations. See Application No. 012/2015.
Judgment of 22 /03/2018. Anudo Ochieng Anudo v United Republic of Tanzania,
para 131.
Application 016/2016, Diocles William v United Republic of Tanzania

The Applicant had been convicted and sentenced for rape of a minor.
He brought this Application claiming a violation of his rights as a result
of his detention and trial. The Court found that the Applicant’s fair trial
guarantees had been violated by not facilitating the hearing of the
Applicant’s witnesses, failure to undertake DNA test and inadequate
evaluation of witness testimony. The Court further held that the failure to
provide the Applicant with free legal representation violated the African
Charter.
Jurisdiction (fair trail, 28)
Fair trial (evidence, facilitiation of hearing of defence witnesses, 64-66,
DNA testing, 76, evaluation of witness testimony, 77; defence, free legal
represnetation, 86, 87)
Reparations (not appellate court, 100, release, 101, 104)
I. The Parties
1. The Applicant, Mr Diocles William, is a national of the United

Republic of Tanzania, convicted of raping a twelve (12) year old minor
and sentenced to 30-years’ imprisonment.
(hereinafter referred to as “the Charter”) on 21 October 1986, and also
to the Protocol to the African Charter on Human and Peoples’ Rights
prescribed under Article 34(6) of the Protocol on 29 March 2010.
William v Tanzania (merits) (2018) 2 AfCLR 426 427
3. The record before the Court indicates that on 11 July 2010,

at around 16:00 hours, at Mbale Village, Missenyi District in Kagera
Region, the Applicant who was twenty-two (22) years old at the time,
allegedly raped a minor aged twelve (12) years.
4. In Criminal Case No. 42/2010 before the Resident Magistrate
Court of Bukoba, the Applicant was found guilty and sentenced on 4
August 2010 to thirty (30) years imprisonment and twelve (12) strokes
of the cane for the rape of a minor of twelve (12) years of age, under
Sections 130(2)(e) and 131(2)(a) of the Tanzanian Penal Code(Revised
Edition 2002) as amended by the Sexual Offences Special Provisions
Act 1998 (hereinafter referred to as the “Tanzanian Penal Code”).
5. The Applicant filed an appeal in Criminal Case No. 23/2011
against the judgment before the High Court of Tanzania at Bukoba
(hereinafter referred to as the “High Court”), contesting the credibility
of the prosecution witnesses, the consistency of the testimonies and
the administration of the corporal punishment; but the appeal was
dismissed on 29 May 2014.
6. Aggrieved by the High Court’s decision to dismiss his appeal,
the Applicant lodged an appeal before the Court of Appeal of Tanzania
at Bukoba (hereinafter referred to as the “Court of Appeal”) in Criminal
Appeal No. 225/2014; which was dismissed the appeal on 24 February
2015 as being baseless.
7. The Applicant alleges that he was deprived of his fundamental

right to have his cause heard in a court of law, in violation of Section
231(4) of the Tanzania Criminal Procedure Act, Revised Edition, 2002,
and Article 7(1)(c) of the Charter.
8. The Applicant further alleges that Section 130(2)(e), and Section
131(2)(a) of the Tanzanian Penal Code, are clearly in breach of Article
13(2) and (5) of the Constitution of Tanzania 1977.
9. In his Reply, the Applicant also alleges the violation of his right
to legal aid.
10. The Application filed on 8 March 2016 and served on the

Respondent State by a notice dated 20 April 2016, inviting the latter
to submit a list of its representatives within thirty (30) days, and its
Response to the Application within sixty (60) days of receipt of the
notice, in accordance with Rules 35(2)(a) and 35(4)(a) of the Rules of
Court. The Applicant’s prayer for legal aid before this Court was not
granted.
11. On 10 June 2016, following its failure to file its Response, the
Registry notified the Respondent State of the Court’s decision, proprio
motu, to extend by 30 days the time for the Respondent State to file
its Response.
12. On the same date, the Application was transmitted to the
Executive Council of the African Union and to the State Parties to the
Protocol, through the Chairperson of the African Union Commission in
accordance with Rule 35(3) of the Rules.
13. On 9 August 2016, the Respondent State filed its Response,
explaining that the delay in doing so had been due to the fact that it
needed to collect information from the various entities involved in the
proceedings.
14. The Registry transmitted the Respondent State’s Response to
the Applicant on 17 August 2016, enjoining the latter to file its Reply
within thirty (30) days of receipt thereof.
15. The Applicant submitted his Reply on 22 September 2016, and
this was served on the Respondent State by a notice dated 4 October
2016.
16. At its 43rd Ordinary Session held from 31 October to 18
November 2016, the Court decided to close the written procedure.
17. On 26 January 2017, the Registry notified the Parties of the
closure of the written procedure as from 14 November 2016.
18. On 6 April 2018, the Parties were informed that the Court would
not hold a public hearing and indicated that written submissions and
the evidence on file are sufficient to determine the matter.

“i. admit his Application and review all the proceedings in
the Respondent State’s courts, including the issue of
Constitutional petition1 raised in the Application;
ii. quash the conviction and order his release from prison;
iii. issue such other order(s) or relief(s) as it may deem fit in
the circumstances;
1 Petition to the High Court against violations of the fundamental rights and duties
provided for in Articles 12 to 29 of the Tanzanian Constitution.
iv. provide him with free legal assistance in accordance with

Rule 31 of the Rules and Article 10(2) of the Protocol.”
20. The Respondent State prays the Court to declare that:
“i. it lacks jurisdiction to hear the case;
ii. the Application does not meet the admissibility conditions
set out in Rule 40(5) and (6) of the Rules;
iii. the Application is inadmissible.”
21. The Respondent State also prays the Court to :
“i. declare that it has not violated the Applicant’s rights under
Articles 2, 3(2) and 7(1)(c) of the Charter;
ii. dismiss the Applicant’s prayers;
iii. declare that the Applicant should continue to serve the
sentence;
iv. reject the Application for lack of merit;
v. order that the costs are to borne by the Applicant.”
22. In his Reply, the Applicant also prays the Court to dismiss the
objections to its jurisdiction and reject the contention of the Respondent
State contention on the merits of the case.
V. Jurisdiction
23. Pursuant to Rule 39(1) of its Rules: “The Court shall conduct
preliminary examination of its jurisdiction...”
24. The Respondent State alleges that the Applicant’s prayer that
the Court should review the evidence adduced before and reviewed by
its courts up to the highest judicial level amounts to asking the Court to
act as an appellate jurisdiction, which the Respondent State maintains,
is not within the purview of the Court.
25. The Respondent State also claims that the Court’s mandate is
only limited to interpreting and applying the Charter and other relevant
human rights instruments in accordance with Article 3(1) of the
Protocol, Rules 26 and 40(2) of the Rules, mirroring its own decision in
Application No. 001/2013: Ernest Francis Mtingwi v Republic of Malawi.
26. The Respondent State further submits that it is the first time
that the Applicant raises the issue of alleged violation of Article 13(2)
and (5) of the Constitution; Section 130(2) and Section 131(2) of the
Tanzanian Penal Code, as well as the violation of Article 7(1)(c) of the
Charter concerning legal aid. It maintains that by failing to raise these
issues before the domestic courts, the Applicant would be asking this
Court to act as a court of first instance, for which it lacks jurisdiction.

The Respondent State emphasises that the Court is not a court of first
instance to deal with the question of unconstitutionality.
27. The Applicant refutes the Respondent State’s argument that
the Court lacks jurisdiction, maintaining that it has jurisdiction over
an Application whenever there is a violation of the Charter and other
relevant human rights instruments. Therefore, the Court is empowered
to review decisions rendered by domestic courts, assess the evidence,
and set aside the sentence and acquit the victim, as was the case in its
decision in Application No. 005/2013 - Alex Thomas v United Republic
of Tanzania.
28. On the first objection of the Respondent State that the Court is
being asked to act as an appellate court, this Court reiterates its position
in Ernest Mtingwi v Republic of Malawi1 that it is not an appeal court
with respect to decisions rendered by national courts. However, this
does not preclude the Court from examining whether the procedures
before national courts are in accordance with international standards
set out in the Charter or other applicable human rights instruments to
which the Respondent State is a Party.2 In the instant case, this Court
has jurisdiction to determine whether the domestic courts’ proceedings
with respect to the Applicant’s criminal charges that form the basis of
his Application before this Court, have been conducted in accordance
with the international standards set out in the Charter.
29. Furthermore, concerning the allegation that the Application calls
for the Court to sit as a court of first instance, the Court notes that since
the Application alleges violations of the provisions of the human rights
has material jurisdiction by virtue of Article 3(1) of the Protocol, which
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.”
objection that the Applicant is requesting the Court to act as an
appellate court and as a court of first instance; and holds that it has
material jurisdiction to hear the matter.

2 Application No. 005/2013. Judgment of 20/11/2015, Alex Thomas v United Republic
130 and Application No. 007/2013. Judgment of 3/6/2016, Mohamed Abubakari
v United Republic of Tanzania (hereinafter referred to as “Mohamed Abubakari v
Tanzania Judgment”), para 29. Application No. 032/2015. Kijiji Isiaga v Tanzania,
paras 34 and 35.
jurisdiction has not been contested by the Respondent State;
i. it has personal jurisdiction given that the Respondent
Declaration required under Article 34(6) thereof, which
enabled the Applicant to access the Court in terms of
ii. it has temporal jurisdiction in as much as the alleged
violations are continuous in nature, since the Applicant
remains convicted on the basis of what he considers an
unfair process;
Protocol, namely, the Respondent State.
32. In view of the foregoing, the Court declares that it has jurisdiction
to hear the instant case.
34. Pursuant to Rule 39(1) of its Rules, “the Court shall undertake
a preliminary examination of (…) the admissibility of the Application in
accordance with both Article 50 and Article 56 of the Charter and Rule
40 of the Rules”.
35. Rule 40 of the Rules, which in essence restates Article 56 of the
Charter, provides as follows:
“1. disclose the identity of the Applicant notwithstanding the latter’s

mass media;


Parties
36. The Respondent State raised objections in relation to the

exhaustion of local remedies and as to whether the application was
filed within a reasonable time.

remedies
37. The Respondent State contests the admissibility of the

Application on the grounds that the Applicant cannot plead before this
Court the violation of his right to a fair trial under Article 13(6)(a) of
the Tanzanian Constitution and 7(1)(c) of the Charter, as he has failed
to exhaust available local remedies within its jurisdiction, especially
that of filing a constitutional petition, as provided by Article 30(3) of the
Tanzanian Constitution and in the Basic Rights and Duties Enforcement
Act, as revised in 2002.
38. In this regard, citing the jurisprudence of the Commission,3 the
Respondent State alleges that the Applicant failed to comply with
Rule 40(5) of the Rules arguing that at no time was the issue of legal
aid raised at the domestic courts, notwithstanding the fact that both
Section 3 of Criminal Procedure Act and Rule 31 of the 2009 Rules of
Procedure of the Court of Appeal provides for legal aid.
39. The Applicant refutes the objection of the Respondent State to
the admissibility of his Application on the grounds that he did not lodge
a constitutional petition for he was not obliged to exhaust this remedy.
40. Concerning the question of legal aid, the Applicant contends
that, pursuant to the provisions of Section 3 of the Criminal Procedure
Act and Rule 31 of the Rules of Procedure of the Court of Appeal, the
only condition required for an accused to be afforded legal aid is when,
3 African Commission on Human and Peoples’ Rights Communication 263/02 -

Kenyan Section of the International Commission of Jurists, Law Society of Kenya
and Kituo Cha Sheria v Kenya.
in the interests of justice, the judicial authorities deem it desirable to

provide such legal aid.
41. The Court notes that the Applicant filed an appeal and had
of Appeal, for determination of the various allegations, especially those
relating to violation of the right to a fair trial.
42. Concerning the filing of a constitutional petition for violation of
the Applicant’s rights, the Court has repeatedly stated that this remedy
in the Tanzanian judicial system is an extraordinary remedy that the
Applicant is not required to exhaust prior to seizing this Court.4
43. With regard to the allegation that the Applicant did not raise
the legal aid issue during domestic proceedings but chose to bring it
before this Court for the first time, the Court, in line with its Judgment
in Alex Thomas v United Republic of Tanzania, takes the view that
this complaint forms part of the “bundle of rights and guarantees”
enshrined in the appeal procedures at domestic level which upheld
the guilty verdict against the Applicant and the sentence to thirty (30)
years’ imprisonment. The Court stresses that legal aid forms part of
the “bundle of rights and guarantees” in respect of the right to a fair
trial, which is the basis and substance of the Applicant’s appeal. The
domestic judicial authorities thus had ample opportunity to address
that allegation even without the Applicant having raised it explicitly.
It would therefore be unreasonable to require the Applicant to file a
new application before the domestic courts to seek redress for these
complaints.5
44. Accordingly, the Court finds that the Applicant has exhausted
local remedies as envisaged in Article 56(5) of the Charter and Rule
40(5) of the Rules. The Court therefore overrules this objection to the
admissibility of the Application.

45. The Respondent State argues that, should the Court take the
view that the Applicant has exhausted local remedies, the fact would
still remain that he did not file his Application within a reasonable time
from the date the domestic remedies were exhausted.
46. The Respondent State further asserts that even if Rule 40(6)

Tanzania Judgment, op cit, paras 66 – 70; Application No. 011/2015. Judgment of
28/9/20l7, Christopher Jonas v United Republic of Tanzania, para 44.
5 Alex Thomas v Tanzania Judgment, op cit, paras 60 – 65.
of the Rules is not specific on what constitutes a reasonable time,

international human rights jurisprudence has established that six (6)
months is considered a reasonable time, invoking in particular the
decision in respect of Communication No. 308/05, in Michael Majuru
v Zimbabwe, wherein the Commission is claimed to have applied that
timeframe.
47. The Respondent State argues that eleven (11) months elapsed
between the decision of the Court of Appeal (24 February 2015) and
the date the Court was seized (8 March 2016), thus exceeding the
period of six (6) months that is considered reasonable, whereas nothing
prevented the Applicant from filing his Application earlier.
48. In his Reply, the Applicant refutes the Respondent State’s
submission that the deadline for filing an appeal before the Court is six
months after exhaustion of local remedies, claiming that reasonableness
of a deadline depends on the circumstances of each case. In this
regard, the Applicant quotes the Court’s ruling in Application 013/2011
– Beneficiaries of Late Norbert Zongo and Others v Burkina Faso.
49. The Court is of the opinion that the question that arises at this
juncture is whether the period that elapsed between the exhaustion
of local remedies and the time within which the Applicant seized the
Court, is reasonable within the meaning of Rule 40(6) of the Rules.
50. The Court notes that local remedies were exhausted on 24
February 2015, the date of the Court of Appeal’s decision, and that
the Application was filed at the Registry on 8 March 2016. One (1)
year and thirteen (13) days had elapsed between the Court of Appeal
decision and the filing of the Application with the Registry of the Court.
51. In the matter of the Beneficiaries of late Norbert Zongo and
Others v Burkina Faso, the Court established the principle that “...
the reasonableness of the timeline for referrals to it depends on the
circumstances of each case and must be assessed on case-by-case
basis.”6
52. The Court notes that, in the instant case, the Applicant is a layman
in matters of law, indigent and incarcerated without the benefit of legal
counsel or legal assistance.7 The Court holds that these circumstances
sufficiently justify the filing of the Application one (1) year and thirteen
(13) days after the Court of Appeal decision.
6 Application No. 013/2011. Ruling on preliminaries objections of 21/06/2013,

Beneficiaries of late Nobert Zongo and Others v Burkina Faso, para 121. See also
Application No. 005/2013, Alex Thomas v Tanzania Judgment, op cit, para 73;
Application No. 007/2013, Judgment of 3/6/2013, Mohamed Abubakari v Tanzania
Judgment, op cit, para 91; Application No. 011/2015, Christopher Jonas v Tanzania
Judgment, op cit, para 52.
53. In view of the aforesaid, the Court dismisses the objection to

admissibility that the Application was not filed within a reasonable time.

the Parties
54. The Court notes that the conditions regarding the identity of
the Applicant, the language used in the Application, the nature of the
evidence and the non bis in idem principle as set out in sub Rules 1, 2,
3, 4 and 7 of Rule 40 of the Rules, are not in contention between the
Parties.
55. The Court also notes that nothing in the pleadings submitted to
it by the Parties suggests that any of the above requirements has not
been met in the instant case. Consequently, the Court holds that the
requirements under consideration have been fully met in the instant
case.
Application fulfils all admissibility requirements in terms of Article 56
same admissible.
VII. Merits
57. The Applicant alleges the violations of his right to a fair trial,
namely: (i) the failure to hear his witnesses, (ii) the fact that the conviction
was based on insufficient evidence and conflicting statements of the
prosecution witnesses, and the lack of access to legal aid.
i. Allegation that defence witnesses were not heard
58. The Applicant alleges that the trial court refused to order the
attendance of his witnesses for examination. He claims, as a result,
that he has been deprived of his fundamental right to have his cause
heard in violation of Section 231(4) of the Criminal Procedure Act and
59. He also refutes the Respondent State’s claim that the absence
of his witnesses was due to his own negligence, adding that he was
under arrest and the authorities did nothing to bring the witnesses
in question before the court. Further, the Applicant stresses that he
was not informed by the authorities that he could benefit from their
assistance in producing his witnesses, prior to his decision to give up
on calling witnesses.
60. The Respondent State reiterates that the Applicant never
invoked this violation before the domestic courts, notwithstanding the
fact that the domestic laws provide for such right and the Applicant
had, on two occasions, requested that the hearing be postponed due
to the absence of his witnesses; and in the end decided to let the trial
proceed without obtaining the appearance of his witnesses.
61. The Court notes that Article 7(1)(c) of the Charter states that:
comprises:
c. the right to defence…”
62. The right to effective defence includes, inter alia, the right to
call witnesses for the defence.8 The question arises as to whether
obtaining the attendance of witnesses before the Court is the sole
responsibility of the accused or whether the competent authorities
of the Respondent State also have the responsibility to ensure the
presence of the witnesses whom the authorities intend to hear.
63. The Court notes that in all proceedings, more specifically,
in criminal matters, a court seized of a case must hear both the
prosecution as well as the defence witnesses. If it does not do so,
it must provide the grounds for its decision. In this regard, the Court
observes Section 231(4) of Criminal Procedure Act of the Respondent
State contains provisions which allow national courts to take measures
to ensure the appearance of defence witnesses where the absence of
such witnesses is not due to the fault of the accused and that where
the witnesses appear, there is the likelihood that they would adduce
evidence in his favour.9
64. In the instant case, it emerges from the file that the Applicant
called witnesses on three (3) occasions without success, and in the
8 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa
approved by the African Commission on Human and Peoples’ Rights (2003) – 6)
Rights during a trial: “f) The accused has a right to examine, or have examined,
witnesses against him or her and to obtain the attendance and examination of
witnesses on his or her behalf under the same conditions as witnesses against him
or her.”
9 Section 231(4) of the Criminal Procedure Act provides as follows: “If the accused
person states that he has witnesses to call but that they are not present in Court,
and the Court is satisfied that the absence of such witnesses is not due to any
faults or neglect of the accused person and that there is likelihood that they could,
if present, give material evidence on behalf of the accused person, the Court may
adjourn the trial and issue process or take other steps to compel attendance of
such witness.”
end, he gave up on getting them to appear.10 However, he claims before

this Court that the reason why he gave up on calling his witnesses
was because the judicial authorities did not inform him that they could
assist him to obtain their appearance.
65. The Court is of the opinion that even if the Applicant has given
up on calling his witnesses, the fact remains that witnesses did not
cease to be necessary in the course of the trial proceedings to ensure
equality of arms. However, this being the case, the reasons as to why
the trial court decided not to take the appropriate measures to hear the
Applicant’s witnesses are not provided anywhere in the record of the
proceedings.
66. The Court is of the view that it was necessary for the Respondent
State’s judicial authorities to be more proactive, in particular, in
ascertaining whether the Applicant no longer intended to call his
witnesses either because he did not actually want them to appear
on his behalf or because he did not have the means to obtain their
attendance. It was also desirable on the part of the Respondent State’s
judicial authorities to provide, suo motu, sufficient information in this
regard to the accused, where he is indigent, in detention and without
legal aid.
67. The Court therefore holds from the foregoing that the Respondent
State has violated the Applicant’s right to defence under Article 7(1)(c)
of the Charter by failing to ensure the appearance of his witnesses.
ii. Allegations of insufficient evidence and inconsisten-

cies in witness statements
68. The Applicant submits that the evidence presented at the trial
court and relied upon to convict him was based only on the victim’s
(PW4) testimony, who claimed she was at home playing with a friend
(PW5) and that the Applicant went to PW2’s house (the victim’s mother)
and told her to follow him to his house where he promised to give her
one hundred Tanzania Shillings (TZS 100); that halfway to his house,
the Applicant took her to a thicket where he raped her and threatened
to stab and beat her with a stick if she told anyone what happened.
69. The Applicant denies having committed such a crime, affirming
that on the day in question, he was at the house of the victim’s mother
(PW2), together with three friends to consume alcohol (“pombe” also
known as “Gongo”) at around 6:00 pm to 7:00 pm. He then amended
10 At the hearing of 24 November 2010 before Resident Magistrate Court of Bukoba,

the Applicant declared: “I have failed to get my witness. I am no longer intending to
call them. I am closing my defence case”. See page 23 of the document attached
to Criminal appeal No. 225/2014 before the Court of Appeal.
his initial statement and said that they had arrived at PW2’s house at
around 3:45 pm, 45 minutes after they had left their own houses.
70. He disputes the Respondent State’s claims regarding examination
of evidence, and prays the Court to re-examine the evidence, taking
into account the doubts he has raised over the statements of the
Respondent State’s Attorney.
71. The Respondent State refutes the Applicant’s claims and
describes the steps that were followed during proceedings at its various
courts until the final determination, wherein the Resident Magistrate’s
Court of Bukoba,11 the High Court of Tanzania,12 and the Court of
Appeal,13 all concluded that the Applicant had committed the offence
in question.
72. The Court notes that in criminal proceedings the conviction of
individuals for a crime should be established with certitude. In this
regard, the Court has in the past held “....that a fair trial requires that the
imposition of a sentence in a criminal offence, and in particular a heavy
prison sentence, should be based on strong and credible evidence.
That is the purport of the right to the presumption of innocence also
enshrined in Article 7 of the Charter.”14
73. In the instant case, the Court notes that, as stated in the
record of the proceedings, the Applicant was charged and convicted
essentially on the basis of information provided by the victim (PW4),
corroborated by the testimonies of her family members, especially her
mother (PW2), the victim’s friend (PW5), the mother of her friend and
the victim’s aunt (PW1), who recounted what the victim herself had told
them. The victim’s friend (PW5) is the only eyewitness who allegedly
saw the events first hand, and partially witnessed some of the facts
affirming that the victim was taken away by the Applicant while she was
playing with her.
74. The Court also notes the fact that the items of clothing worn
11 Criminal case No. 42 of 2010, Judgment of 8/12/2010: “27. The Court of Appeal
also considered the Applicants defense in its Judgment at para 5, lines 11 – 15 and
from pages 10-11 of its Judgment and concluded as follows: “We find no reason for
interfering with the finding of the first appellant Court that it was the appellant who
committed the offence of rape.”
12 Criminal Appeal No. 23 of 2011, Judgment of 29/5/2014: “26. The High Court
Judgement also considered the Applicant’s defense from pages 4 - line 6 and
concluded at page 9, line 13 by stating: “His defense did not raise any doubt
against the prosecution case.”
13 Criminal Appeal No. 225 of 2014, Judgment of 24/2/2014: “24. The Court of Appeal
then considered whether it was the Applicant who committed the offence and
stated at page 10 of its Judgement: “The other issue is whether it was the penis of
the appellant which penetrated the vagina of the complainant’ and held as follows
at page 11 “We find no reason for interfering with the findings of the first appellant
court that it was the appellant who committed the offence of rape.”.
14 Mohamed Aboubakari v Tanzania Judgment, op cit, para 174.
by the victim at the time of the rape were not presented as evidence
before the domestic judicial authorities and the prosecuting authorities
merely stated that their production was deemed to be irrelevant.
75. Furthermore, the Court notes that the absence of information
in the record of proceedings concerning the steps taken to obtain
clarifications on whether the victim’s mother sells alcoholic beverages
and, if so, determine the trading hours of the business; and whether
the Applicant was drinking in her presence on the material day, as she
claims, and up to what time; and cross-check this information with the
version given by the victim who claims that no adults were at home at
the time; the reasons as to why no blood was drawn from the Applicant
for testing to confirm whether or not the bodily fluids of the rapist found
in the victim’s private parts or on her clothing matched the Applicant’s
DNA (deoxyribonucleic acid) disclose patent anomalies in the domestic
proceedings.
76. The Court is of the view that the medical report should not be
limited to only confirming the occurrence of rape, but should also
ascertain whether the offence had been committed by the Applicant,
since the victim was taken for medical examination when she was
still wearing the same clothes about one hour after the offence was
committed (between 4:00 pm and 5:00 pm). In the instant case, there
is no mention that the Respondent State has any technical constraints
in that respect, and as such due diligence would have required the
DNA testing to clear any doubt as to who committed the offence.
77. The Court recalls its position in the matter of Mohamed
Abubakari v United Republic of Tanzania,15 where it emphasised the
need to obtain clarification on issues or situations likely to impact the
decision of the judges. In the instant case, the Court’s understanding
is that even if it is accepted that, in offences of sexual nature, the main
testimony is given by the victim, as the Respondent State’s prosecuting
authorities claim, in the specific circumstances of the case, wherein
there are signs of contradiction between the statements given by the
witnesses, all of whom are relatives of the victim, especially the fact
that the accused was not assisted by counsel, it would have been
desirable for the prosecuting authorities to exercise greater effort in
terms of due diligence to corroborate the victim’s statements and clarify
the circumstances of the crime.
78. In view of the aforesaid, the Court accordingly considers that the
Applicant’s right to a fair trial provided for in Article 7 of the Charter has
been violated, as the victim’s and Prosecution witnesses’ statements
15 Mohamed Abubakari v Tanzania Judgment, paras 110 and 111. See also
Application No. 006/2015, Judgment of 23/3/2018, Nguza Viking (Babua Seya)
and Johnson Nguza (Papi Kocha), paras 105 – 107.
were not corroborated, and the circumstances of the crime were not
clarified.
iii. Alleged violation of the right to legal aid
79. The question of legal aid was not raised expressly in the
Application. However, in his Reply, the Applicant refutes the
Respondent State’s arguments regarding legal aid, claiming that the
only established procedure in Section 3 of the Legal Aid Act is that the
judicial authorities order the provision of legal aid where such aid is
deemed justified if the interests of justice so demand.
80. The Respondent State contends that at all stages of the
proceedings before its judicial authorities, the Applicant never requested
for legal aid, nor did he make any such request to the various Non-
Governmental Organizations (NGOs) that provide such assistance;
and never declared his indigent status in order to qualify for the same.
81. The Respondent State submits that legal aid is mandatory for
those accused of manslaughter and murder, and does not require
an express request by the accused. It, however, further submits that
legal aid is not an absolute right and that States exercise the margin
of appreciation in granting such aid within the limits of their capacity;
and this is how the current legal aid regime operates in the country. It
states also that, with respect to the Court itself, Rule 31 of the Rules
makes provision for legal assistance only within the limits of available
financial resources.
82. In conclusion, the Respondent State indicates that, in any event,
the process of reviewing its legal aid system was ongoing, and the
outcome would be communicated to the Court in due course.
83. The Court notes that Article 7(1)(c) of the Charter stipulates
comprises:
… c. The right to defence, including the right to be defended by counsel of

his choice.”
84. The Court observes that even though Article 7(1)(c) of the Charter
guarantees the right to defence, including the right to be assisted by
counsel of one’s choice, the Charter does not expressly provide for the
right to free legal assistance.
85. However, in its Judgment in the Matter of Alex Thomas v The
United Republic of Tanzania, this Court stated that free legal aid is
a right intrinsic to the right to a fair trial, particularly, the right to
defence guaranteed by Article 7(1)(c) of the Charter.16 In its previous

jurisprudence, the Court also held that an individual charged with a
criminal offence is automatically entitled to the right of free legal aid,
even without the individual having to request for the same, where the
interests of justice so require, and in particular, if he is indigent, if the
offence is serious and if the penalty provided by the law is severe.17
86. In the instant case, it is not in dispute that the Applicant was not
afforded free legal aid throughout his trial. Given that the Applicant
was convicted of a serious crime, that is, rape, which carries a severe
punishment of thirty (30) years, there is no doubt that the interests
of justice would warrant free legal aid where the Applicant did not
have the means to engage his own legal counsel. In this regard, the
Respondent State does not contest the indigence of the Applicant nor
does it argue that he was financially capable of getting a legal counsel.
In these circumstances, it is evident that the Applicant should have
been afforded free legal aid. The fact that he did not request for it does
not exonerate the Respondent State from its responsibility to offer free
legal aid.
87. As regards the allegations of the Respondent State relating
to the margin of discretion that should be available to States in the
implementation of the right to legal aid, its non-absolute nature and the
lack of financial capacity, the Court is of the opinion that the allegations
are no longer relevant in this case, given that the conditions for the
mandatory provision of legal aid have all been met. Accordingly, the
Court holds that the Respondent State has violated Article 7(1)(c) of
the Charter.
B. Alleged violation of Article 13(2) and (5) of the

Constitution of Tanzania
88. The Applicant contends that Sections 130(2)(e) and 131(2)(a) of

the Tanzanian Penal Code dealing with Offences against Morality that
formed the basis for his conviction clearly violate Article 13(2) and (5)
of the Tanzanian Constitution.
89. The Respondent State contests this allegation by arguing that
the acts committed by the Applicant fall under the definition of the
crime of rape, as per the sentence of the trial court, which was upheld
by the two appellate courts.
90. The Court observes that it is not mandated to assess the

17 Ibid, para 123. See also Mohamed Abubakari v Tanzania Judgment, op cit, paras
138 and 139.
constitutionality of a specific national legislation. However, this does

not prevent the Court from examining the compatibility of a particular
domestic legislation with international human rights standards
established by the Charter and any other international human rights
instruments ratified by the Respondent State.18
91. In the instant case, the Applicant alleges that Sections 130(2)(e)
and 131(2)(a) of the Tanzanian Penal Code19 breach Articles 13(2) and
(5) of the Tanzanian Constitution, which enshrines the right to equality
and equal protection of the law essentially in the same terms as Article
3 of the Charter.20 It is thus incumbent upon this Court to ascertain
whether such sections of the Penal Code contravene Article 3 of the
Charter, which states that “Every individual shall be equal before the
law [and] …the right to equal protection of the law”.
92. The Court notes that Sections 130 (2)(e) and 131(2)(a) of the
Penal Code define the material scope of the offence of rape in the
Respondent State with the penalty its commission entails. The Court
also observes from the file that the national Courts convicted and
sentenced the Applicant on the basis of these provisions in accordance
with established domestic procedures and there is nothing manifestly
erroneous in the process.
93. For the Court, the Applicant’s contention that the said sections of
the Penal Code contravene the constitution is a mere general allegation
which remains unproven. In this vein, the Court recalls its established
jurisprudence that “general statements to the effect that a right has
been violated are not enough. More substantiation is required”.21
94. In view of the foregoing, the Court holds that the Respondent
has not violated the Applicant’s right to equality and equal protection of
the law under Article 3 of Charter.

19 Section 130(2)(e) of the Penal Code provides that “A male person commits
the offence of rape if he has sexual intercourse with a girl or a woman under
circumstances falling under any of the following descriptions: … (e) being a
religious leader takes advantage of his position and commits rape on a girl or
woman. Section 131(2)(a) of the same stipulates that “Notwithstanding the
provisions of any law, where the offence is committed by a boy who is of the age
of eighteen years or less, he shall: if a first offender, be sentenced to corporal
punishment only.”
20 Article 13(3)(5) of the Tanzanian Constitution provides that “All persons are equal
before the law and are entitled, without any discrimination, to protection and equality
before the law. For the purposes of this Article the expression “discriminate” means
to satisfy the needs, rights or other requirements of different persons on the basis
of their nationality, tribe, place of origin, political opinion, colour, religion or station
in life such that certain categories of people are regarded as weak or inferior and
are subjected to restrictions or conditions whereas persons of other categories are
treated differently or are accorded opportunities or advantage outside the specified
conditions or the prescribed necessary qualification.”
21 Alex Thomas Judgment v Tanzania Judgment, op cit, para 140.
95. The Applicant prays the Court to restore justice; quash his
conviction and the sentence meted out to him; order that he be released
and take such other measures as it may deem appropriate.
96. In its Response, the Respondent State prays the Court to
dismiss the Application and the Applicant’s prayers in their entirety, as
being unfounded
97. Article 27(1) of the Protocol stipulates that: “If the Court finds that
99. The Court notes its finding in paragraphs 67, 78 and 87 above
that the Respondent State violated the Applicant’s rights to a fair trial
due to (i) the fact that he was not afforded legal aid; (ii) his witnesses
were not heard; and that his conviction was based on insufficient
evidence and contradictory statements of the Prosecution witnesses.
In this regard, the Court recalls its position on State responsibility in
Reverend Christopher R Mtikila v United Republic of Tanzania, that
“any violation of an international obligation that has caused harm
entails the obligation to provide adequate reparation.”22
100. As regards the Applicant’s prayer to quash his conviction
and sentence and directly order his release, the Court reiterates its
decision that it is not an appellate Court for the reasons that it does not
operate within the same judicial system as national courts; and that it
does not apply “the same law as the Tanzanian national courts, that is,
Tanzanian law”. 23
101. The Court also recalls its decision in Alex Thomas v Tanzania
where it stated that “an order for the Applicant’s release from prison can
be made only under very specific and/or, compelling circumstances”24.
This would be the case, for example, if an Applicant sufficiently
demonstrates or the Court itself establishes from its findings that
the Applicant’s arrest or conviction is based entirely on arbitrary
considerations and his continued imprisonment would occasion a
22 Application No. 011/2011. Judgment of 13/6/2014; Reverend Christopher R Mtikila

v United Republic of Tanzania, para 27.
23 Mohamed Abubakari v Tanzania Judgment, op cit, para 28.
24 Alex Thomas v Tanzania judgment, op cit, para157.
miscarriage of justice. In such circumstances, the Court has pursuant

to Article 27(1) of the Protocol to order “all appropriate measures”,
including the release of the Applicant.
102. In this regard, the Court refers to the jurisprudence of the
European Court of Human Rights and the Inter-American Court of
Human Rights. In their case law, both Courts, considering the nature
of the violations established and in order to assist states to comply
with their human rights obligations, have exceptionally requested
Respondent States to ensure the release of individuals with respect
to some specific violations where no other options are available to
remedy or to put an end to the violations.25
103. In the instant case, the Court observes that the Respondent has
violated the Applicant’s right to a fair trial contrary to Article 7(1) of the
Charter by failing to afford him legal aid, denying his witnesses to be
heard and convicting him in the face of insufficient and contradictory
statements of the prosecution witnesses.
104. The Court considers that in spite of the fact that it has found
these violations of the Charter, according to the record before the
Court and taking into account the nature and scope of the violations
and the nature of the offence, it cannot in this instant case order the
Respondent State to release the Applicant from prison.
105. In order to ensure fair and adequate reparations for the
violations, the Court finds that the violations affected the right to a fair
trial guaranteed in the Charter. Consequently, the trial of the Applicant
should be reopened taking into consideration the guarantees of a fair
trial pursuant to the Charter and international human rights standards,
including the Applicant’s right to defence.
106. The Court, lastly, notes that the Parties did not request or file
submissions regarding other forms of reparation.
IX. Costs
107. The Respondent State prays the Court to rule that the costs be
borne by the Applicant.
108. The Applicant has not made any specific request on this issue.
109. In terms of Rule 30 of the Rules: “Unless otherwise decided by
110. In the instant case, the Court decides that each Party shall bear
its own costs.
25 Del Rio Prada v Spain, European Court of Human Rights, Judgment of 10 July
2012, para 139, Assanidze v Georgia [GC] - 71503/01. Judgment 8 April 2004,
para 204. Case of Loayza-Tamayo v Peru, Inter-American Court of Human Rights,
Judgment of 17 September 1997, para 84
X. Operative part

The Court,
unanimously,
On jurisdiction
i. Dismisses the objection to jurisdiction of the Court.
On admissibility
iv. Declares that the Application is admissible.
On the merits
v. Finds that the alleged violation of Applicant’s right to equal
protection before the law provided for in Article 3 of the Charter, the
content of which is similar to Article 13(2) and (5) of the Tanzanian
Constitution has not been established;
vi. Finds that the Respondent State has violated Article 7(1)(c) of
the Charter by failing to provide the Applicant with legal aid;
vii. Finds that the Respondent State has violated Article 7(1)(c) of
the Charter by failing to hear the Applicant’s defence witnesses;
viii. Finds that the Respondent State has violated Article 7 of the
Charter by convicting the Applicant on the basis of insufficient evidence
and contradictory statements of the prosecution witnesses;
ix. Dismisses the Applicant’s prayer for the Court to quash his
conviction and sentence;
x. Dismisses Applicant’s prayer for the court to directly order his
release from prison;
xi. Orders the Respondent State to reopen the case within six (6)
months in conformity with the guarantees of a fair trial pursuant to
the Charter and other relevant international human rights instruments
and conclude the trial within a reasonable time and, in any case, not
exceeding two (2) years from the date of notification of this judgment.
xii. Orders the Respondent State to report on the implementation
of this judgment within a period of two (2) years from the date of
notification of this judgment.
On costs
xiii. Decides that each Party shall bear its own costs.
Application 020/2016, Anaclet Paulo v United Republic of Tanzania

The Applicant was convicted and sentenced to thirty years imprisonment
for armed robbery with violence. He brought this Application allegation
various fair trial violations. The Court held that the Applicant’s right to free
legal representation had been violated.
Jurisdiction (rights in the Charter or other human rights instruments, 25)
Admissibility (fair trial guarantees, 41, 42, extraordinary remedy, 43;
Personal liberty and security (bail, 61; legitimate aim of restrictions,
65-68)
Fair trial (absence of accused, 81-83; reconstitution of case file, 85, 86;
free legal representation, 92-95)
Reparations (compensation, 106, 107)
I. The Parties
1. The Applicant, Mr Anaclet Paulo, is a citizen of the United

Republic of Tanzania, who at the time of filing this Application was
serving a thirty (30) years prison term at the Butimba Central Prison in
Mwanza, Tanzania.
2. The Respondent State is the United Republic of Tanzania which
(hereinafter referred to as “the Charter”) on 21 October 1986 and to the
Protocol to the African Charter on Human and Peoples’ Rights on the
Establishment an African Court on Human and Peoples’ Rights on 10
February 2006. It deposited the Declaration prescribed under Article
34(6) of the Protocol on 29 March 2010.
3. The file record indicates that on the night of 28 July 1997, four
Paulo v Tanzania (merits) (2018) 2 AfCLR 446 447
individuals forced their way into the home of a certain Benjamin Mhaya
Simon, in the village of Izingo Nshamba; and after tying up the latter
and his wife, they made away with a sum of Eight Hundred Thousand
Tanzania Shillings (TZS 800,000), a radio cassette player, five trousers,
two wrist watches and three pairs of loin cloth.
4. On the same night, the Applicant and three other individuals
were arrested by the Police and charged with the offence of armed
robbery with violence. By Judgment of the Muleba District Court
delivered on 27 November 1997, three of the accused, including the
Applicant, were found guilty and each sentenced to a term of thirty (30)
years imprisonment.
5. The Applicant lodged an appeal before the High Court of
Mwanza and on 6 June 2003, the High Court held a public hearing
in the absence of the Applicant and without the original case file. In a
Judgment rendered on 17 June 2003, the High Court dismissed the
Appeal, and upheld the Judgment of the District Court. The Applicant
was notified of the High Court’s Judgment on 4 February 2005.
6. On 5 February 2005, the Applicant and his two co-accused filed
an appeal before the Court of Appeal of Tanzania sitting at Mwanza. On
28 January 2008, the Registry of the Court of Appeal notified them that
their application for appeal had never been received. On 27 February
2008, the Applicants and the co-accused sought an extension of time
from the High Court so as to file their appeal before the Court of Appeal
of Tanzania.
7. On 29 September 2009, the High Court dismissed the request
for extension of time on the basis that the grounds invoked for seeking
the extension were irrelevant and that the deadline for appeal had long
elapsed.
8. Dissatisfied with the decision dismissing their Application
for extension of time to file the appeal, on 18 November 2009, the
Applicant and his co-accused, brought the matter before the Court of
Appeal in Criminal Appeal No. 120/2012, an appeal dismissed by the
Court of Appeal in a Judgment dated 5 August 2013.

“i. He was denied bail pending his trial, and this, he claims is
unjust and in contravention of the Tanzanian Constitution
and his right to personal freedom, equality before the
law and equal protection of the law as guaranteed by the
ii. His conviction and sentence to 30 years in prison was
based on a crime which did not exist at the time of the
alleged facts;
iii. He was not afforded the right to be heard, as he was not
present at the proceedings at the High Court and the
Court of Appeal;
iv. The proceedings before the High Court and the Court
of Appeal were flawed because they were conducted
without the original record of the proceedings in Criminal
Case No. 123 of 1997 before the District Court of Muleba;
v. He was denied the right to be represented by Counsel
before the High Court and the Court of Appeal, contrary
to Article 7(1)(c) of the Charter.”
10. Relying on the foregoing allegations, the Applicant submits in
conclusion that the judgments of the Respondent State’s courts were
in violation of Articles 13(6)(a) and 18(a) of the Constitution of the
United Republic of Tanzania as well as Articles 2, 3(1) and (2), 6, 7(1)
(a) and (c), and 7(2), 9(1) and 9(2) of the Charter.
III. Summary of the procedure before this Court
11. The Application was filed on 5 April 2016 and was served on the
Respondent State on 10 May 2016.
12. On 3 June 2016, the Respondent State transmitted to the Registry
the names and addresses of its representatives and filed its Response
on 12 July 2016. The Response was transmitted to the Applicant on 9
August 2016 to which he filed his Reply on 15 September 2016.
13. On 10 June 2016, pursuant to Rule 35(2) and (3) of the Rules of
Court the Registry transmitted the Application to the Chairperson of the
African Union Commission and through him, to the State Parties to the
Protocol. On the same day, the Application was communicated to the
African Commission on Human and Peoples’ Rights.
14. On 18 January 2017, the Registry informed the Parties that the
written phase of the procedure had come to a close and that the matter
has been set down for deliberation.
15. By a letter dated 6 November 2017 received at the Registry on 8
November 2017, the Applicant informed the Court that his prison term
would come to an end on 26 November 2017and submitted his new
address to the Court.
16. On 27 June 2018, the Registry requested the Applicant to submit
supporting documents for his claim for reparation, but no response has
been received as at the time of this Judgment.
17. By a letter dated 11 September 2018, the Officer-in-charge of
Butimba Central Prison, informed the Court of the Applicant’s release
on 25 December 2017.
18. In his Application and his Reply to the Respondent State’s

Response to the Application, the Applicant prays the Court to:
“i. intervene in his favour in regard to the violation of the
Constitution and his fundamental rights by the courts of
the Respondent State;
ii. Grant him reparations pursuant to Article 27(1) of the
Protocol and Rule 34(5) of the Rules;
iii. issue such other order(s) or relief(s) as it deems necessary
based on the circumstances of the case”.
iv. facilitate his access to legal aid pursuant to Article 10(2)
of the Protocol and Rule 31 of the Rules.
v. declare that it has jurisdiction to hear the matter;
vi. declare that his Application is well founded; and
vii. call on the Respondent State to bear the costs.”
“i. declare that it lacks jurisdiction to hear the matter;
ii. find that the Application does not meet the admissibility
conditions set out in Rule 40(5) and (6) of the Rules of
Court, and to dismiss the said Application;
iii. find that the Respondent State did not violate the rights
of the Applicant under Articles 2, 3(1), 3(2), 6, 7(1)(a) and
(c), 7(2) of the Charter;
iv. declare that the Application is unfounded;
v. dismiss the Applicant’s prayer for reparation;
vi. hold the Applicant liable to bear the cost”.
V. Jurisdiction
20. In terms of Rule 39(1) of the Rules, “the Court shall conduct
preliminary examination of its jurisdiction and the admissibility of the
Application…”
21. The Respondent State raises an objection to the jurisdiction of

the Court, citing Article 3(1) of the Protocol which 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 State also invokes Rule 26(1)
(a) of the Rules of Court which restates the provisions of Article 3(1) of
the Protocol.
22. The Respondent State contends that, in the instant Application,
and contrary to the above-mentioned provision, the Applicant seems
to pray this Court to act as a Court of First Instance and to adjudicate
allegations which the Applicant never raised before domestic courts.
The Respondent State notes that, before the domestic courts, the
Applicant had not raised the issues which he was bringing up for the
first time before this Court, in particular:
“i. denying him bail pending his trial;
ii. application of a penalty based on a crime that was non-
existent at the time the incident took place;
iii. the denial of his right to be assisted by Counsel before the
High Court and the Court of Appeal;
iv. the conduct of proceedings before the High Court and
the Court of Appeal in the absence of the Applicant and
without the originals of the record of proceedings on the
appeal file.”
23. The Respondent State submits, in conclusion, that the Court
lacks jurisdiction to hear this Application.
24. The Applicant refutes the Respondent State’s argument, stating
that since the Court is empowered to deal with issues of human rights
violation in the interest of justice and equity, it is also empowered to
examine his Application regardless of its shortcomings and whether
or not the issues raised before the Court had been brought before
domestic courts.
25. The Court recalls its long-standing jurisprudence in the matter
and reaffirms that its material jurisdiction is established if the Application
brought before it raises allegations of violation of human rights; and
that it suffices on this issue that the subject of the Application relates
to the rights guaranteed by the Charter or any other relevant human
rights instrument ratified by the States concerned.1

45; Application No. 001/2012. Judgment of 28/03/2014 (merits), Frank David
Omary and Others v United Republic of Tanzania (hereinafter referred to as
“Frank Omary v Tanzania Judgment”). para 115; Application No. 003/2012. Ruling
of 28/3/2014, Peter Joseph Chacha v United Republic of Tanzania (hereinafter
referred to as “Peter Chacha v Tanzania Judgment”). para 114.
26. In the instant case, the Court notes that the Application invokes
violation of the human rights protected by the Charter and other human
rights instruments ratified by the Respondent State.
objection and finds that it has material jurisdiction to hear the case.
28. The Court notes that the personal, temporal and territorial
aspects of jurisdiction have not been challenged by the Respondent
State. Furthermore, there is nothing in the record indicating that it lacks
personal, temporal and territorial jurisdiction.
29. The Court therefore finds that:
“i. it has personal jurisdiction given that the Respondent State
is a Party to the Protocol and has deposited the declaration
prescribed under Article 34(6) thereof, allowing individuals to
institute cases directly before it, in accordance with Article 5(3)
of the Protocol;
ii. it has temporal jurisdiction since the alleged violations are
continuous, given that the Applicant remains sentenced on the
basis of what he considers as irregularities;2
iii. it has territorial jurisdiction because the facts took place in the
territory of a State Party to the Protocol, that is, the Respondent
State.”
30. In view of the above considerations, the Court holds in conclusion
that it has jurisdiction to hear the instant case.
32. According to Rule 39(1) of its Rules, “the Court shall conduct
preliminary examination of … the admissibility of the Application in
accordance with Articles 50 and 56 of the Charter, and Rule 40 of these
Rules”.
33. Pursuant to Rule 40 of the Rules which in substance restates
the content of Article 56 of the Charter,
“ ....applications to the court shall comply with the following conditions:
2 Application No. 013/2011. Judgment of 21/6/2013, Beneficiaries of Late Norbert

Zongo and Others v Burkina Faso (hereinafter referred to as “Norbert Zongo v
Burkina Faso Judgment”), paras 73-74.
“1. disclose the identity of the Applicant, notwithstanding the latter’s

mass media;
commencement of the time-limit within which it shall be seized
34. The Court notes that, with regard to the admissibility of the
Application, the Respondent State raises two preliminary objections
concerning exhaustion of local remedies and the deadline for seizure
of the Court.

Parties
i. Objection based on failure to exhaust the local

remedies
35. The Respondent State contends that the Applicant raises before
this Court allegations of violation of his rights, which were never brought
before the domestic courts. The Respondent State further avers that
the said rights mentioned by the Applicant as having been violated are
guaranteed and protected by the Tanzanian Constitution in its Articles
13 and 15, as summarised hereunder:
“i. equality before the law and equal protection of the law -
Article 13(1) and (2);
ii. the right to a fair hearing and the right to appeal - Article
13(6)(a);
iii. prohibition of sanctions for acts which do not constitute a
crime at the time of its commission - Article 13(6)(c);
iv. the right to individual freedom - Article 15.”
36. The Respondent State contends that, pursuant to Article 30 of its
Constitution, anyone claiming that his fundamental rights are violated
shall have the right to seek redress before the domestic courts. It
further argues that the Applicant should have exercised this remedy
before seizing the African Court.
37. The Respondent State also invokes Section 9 of The Basic
Rights and Duties Enforcement Act, and contends that the Applicant
had the possibility of filing a constitutional petition before the High
Court of Tanzania after he was sentenced by the District Court or after
the judgment of the High Court.
38. The Respondent State finally submits that the Applicant, having
not exercised the aforesaid remedies available at the domestic level,
has not met the conditions set forth in Rule 40(5) of the Rules of Court,
and therefore his Application must be dismissed for failure to exhaust
the local remedies.
39. In reply, the Applicant submits that he is a layman in legal
matters and that he was not provided with legal aid to enable him better
understand the issues of law and procedure before the domestic courts.
However, he prays the Court to take into account his appeals before
the High Court and the Court of Appeal, find that he has exhausted the
local remedies and declare his Application admissible.
40. The Court notes that, after the District Court Judgment, the
Applicant lodged an appeal before the High Court and, subsequently,
before the Court of Appeal challenging both the issues of evidence and
application of the sentence by the Judges, thus giving the afore-said
courts the possibility to adjudicate the different allegations of violation
relevant to his trial.
41. The Court notes also that the violations alleged by the Applicant
form part of “a bundle of rights and guarantees” which relate to his
appeal in the “domestic procedures” that resulted in his being found
guilty and sentenced to thirty (30) years prison term. These issues in
the instant case are part of “a bundle of the rights and guarantees”
relating to the right to a fair trial which were the basis of the Applicant’s
appeal before the High Court and the Court of Appeal.3
42. Given the above findings, the Court holds that the domestic
courts had ample opportunity to address the Applicant’s allegations
even without him having raised them explicitly. The Court notes that
it has already in several cases brought before it decided that when
alleged violations of the right to a fair trial form part of the Applicant’s
pleadings before domestic courts, the Applicant is not required to have
raised them separately to show proof of exhaustion of local remedies.4
3 Application No. 006/2015. Judgment of 23/3/ 2018, Nguza Viking (Babu Seya) and
Johnson Nguza (Papi Kocha) v United Republic of Tanzania. para 53.
4 Alex Thomas v Tanzania Judgment. op cit para 60.
43. Regarding the constitutional petition, the Court has already

determined that this remedy in the Tanzanian judicial system is an
extra-ordinary remedy which Applicants are not required to exhaust
before seizing this Court.5
objection to the admissibility of the Application for failure to exhaust
the local remedies.
ii. Objection based on failure to file the Application within

a reasonable time
45. The Respondent State contends that the Applicant did not file his
Application within a reasonable time as prescribed by Rule 40(6) of the
Rules. Citing the Commission’s jurisprudence in Communication No.
308/05: Michael Majuru v Zimbabwe before the African Commission
on Human and Peoples’ Rights, the Respondent State argues that
international jurisprudence considers reasonable time as being 6
months. Consequently, since the Applicant filed his Application two
(2) years and eight (8) months after the Court of Appeal of Tanzania’s
Judgment of 5 August 2013, this Court has to consider this time frame
as unreasonable and declare the Application inadmissible.
46. The Applicant refutes the Respondent State’s argument and
contends that despite the fact that he is a lay man in matters of law, he
was not afforded legal representation before the domestic courts, and
it was therefore impossible for him to have an idea as to the existence
of this Court and of issues of procedure and deadlines. In conclusion,
he prays the Court to admit and hear his Application by virtue of the
powers conferred on it.
47. The Court reaffirms that Article 56(6) of the Charter, like Rule
40(6) of the Rules, does not lay down any specific timeframe for
seizure.6 The Rules of Court simply stipulate that cases must be filed
“within a reasonable time from the date local remedies were exhausted
or from the date set by the Court as being the commencement of the
time limit within which it shall be seized with the matter.”
48. The Court notes, in the instant case, that between the date of
exhaustion of the last local remedy, that is, the Applicant’s appeal
before the Court of Appeal which delivered its judgement on 5 August
2013 and seizure of this Court on 5 April 2016, a period of two (2) years
5 Idem, paras 60-65; Application No. 007/2013. Judgment of 3/6/2016, Mohamed

Abubakari v United Republic of Tanzania. paras 65-72; Application No. 011/2015,
Judgment of 28/09/2017, Christopher Jonas v United Republic of Tanzania
(hereinafter referred to as “Christopher Jonas v Tanzania Judgment”). para 44.
6 Christopher Jonas v Tanzania Judgment. op cit para 36.
and eight (8) months had elapsed.

49. The Court recalls its jurisprudence to the effect that to assess
the reasonableness of the timeframe for seizure, the Court takes into
account the particular circumstances of each case and determines the
issue on a case-by-case basis.7 In its Judgment of 28 September 2017:
Christopher Jonas v United Republic of Tanzania, the Court noted that
“the fact that the Applicant was incarcerated, is indigent, did not have
the benefit of free assistance of a lawyer throughout the proceedings
at national level, his being an illiterate and his being unaware of the
existence of the Court due to its relatively recent establishment - are
all circumstances that can work in favour of some measure of flexibility
in determining the reasonableness of the time frame for seizure of the
Court.”8
50. From the record of the instant case, it is inferred that the Applicant
is in a situation similar to the one described above because he was
self-represented and could not afford the services of a Counsel. The
Court further notes that the Applicant, having been in detention since
1997 right up to the date of seizure, he might not have been aware
of the existence of this Court. From the foregoing observation, the
Court holds in conclusion that the two (2) years and eight (8) months
within which it was seized is reasonable in terms of Article 56(6) of the
Charter.
inadmissibility objection based on failure to file the Application within a
reasonable time.

the Parties
52. The Court notes that the conditions regarding the identity of the
Applicant, compatibility of the Application with the Constitutive Act of
the African Union, the language used in the Application, the nature of
the evidence and the principle that the Application should not concern
a matter or issues previously settled by the Parties in accordance with
the principles of the Charter of the United Nations, the Constitutive
Act of the African Union, the provisions of the Charter or of any legal
instrument of the African Union (sub-rules 1, 2, 3, 4 and 7 of Rule 40 of
the Rules), are not in contention between the Parties.
53. The Court further notes that nothing on the record submitted by
the Parties shows that any of these conditions has not been met in the
7 Norbert Zongo v Burkina Faso Judgment, op cit para 121.

8 Christopher Jonas v Tanzania Judgment, op cit para 53.
instant case. Consequently, the Court finds that the conditions set out
above have been fulfilled.
54. In view of the foregoing, the Court holds in conclusion that this
Application meets all the admissibility conditions contemplated in
Articles 56 of the Charter and Rule 40 of the Rules, and consequently
declares the Application admissible.
VII. Merits
55. The Applicant alleges that the Respondent State violated his
right to liberty and to a fair trial. He contests the legality of the sentence
meted to him and with regard to all the violations, invokes the failure
to abide by Articles 2, 3(1) and (2), 6, 7(1)(a) and (c) and (2), 9(1) and
(2) of the Charter.
A. Alleged violation of the right to liberty
56. The Applicant submits that after his arrest and during his remand
in custody, he requested bail pending his trial, which was denied. He
contends that denying him bail was a violation of his right to freedom
guaranteed under Articles 13 and 15 of the Tanzanian Constitution and
57. The Respondent State contends that in conformity with relevant
constitutional provisions, release on bail is not an absolute right; the
requirements of freedom and its limits having been enshrined in Article
15(1) and (2) of the Tanzanian Constitution.
58. The Respondent State further submits that the right to freedom
as provided under Article 6 of the Charter is also not absolute in as
much as even the said instrument enshrines some exceptions to
freedom.
59. To justify the restriction under Tanzanian law, the Respondent
State invokes Section 148(5) of the Criminal Procedure Act, and affirms
that the detention of the Applicant and the refusal to grant him bail are
consistent with the spirit of the provisions of the Tanzanian Constitution
and the Charter, arguing, in conclusion, that the said refusal is not a
violation of the Applicant’s rights to freedom.
60. Article 6 of the Charter which guarantees the right to liberty
provides that: “Every individual shall have the right to liberty and to the
security of his person. No one may be deprived of his freedom except
for reasons and conditions previously laid down by the law…”
61. The Court notes that the possible limits to freedom mentioned in
Article 6 of the Charter particularly arrest or detention, are exceptions
which the Charter subjects to the strict requirements of legitimacy and
legality. In the instant case, to determine whether the refusal to grant bail
to the Applicant violated his right to freedom, the Court will determine
whether the said denial of bail is provided by law, whether it is justified
by legitimate reasons and whether the restriction is proportional.
62. On this issue, the Court notes that Article 15(1) and (2) of
the Tanzanian Constitution provides two situations wherein limits to
freedom may be placed on an individual, where the person is under the
execution of a Judgment, an order or a sentence given or passed by
the court following a decision in a legal proceeding or a conviction for
a criminal offence, and under circumstances and in accordance with
procedures prescribed by law. The Article in question reads as follows
”For the purposes of preserving individual freedom and the right to live as
a free person, no person shall be arrested, imprisoned, confined, detained,
deported or otherwise be deprived of his freedom save only:
a. under circumstances and in accordance with procedures

prescribed by law;
or
b. in the execution of a Judgment, order or a sentence given or
passed by the court following a decision in a legal proceeding or
a conviction for a criminal offence”.
63. The Court also notes that Section 148(5) of Tanzania’s Criminal
Procedure Act provides that:
“a Police Officer in charge of a police station, or a court before whom an
accused person is brought or appears, shall not admit that person to bail
if:
a. this person is accused of:

i. murder, treason, armed robbery or rape”.
64. The Court further notes that Section 148(5)(a)(i) is worded in
sufficiently clear and precise terms so as to be understandable and to
«enable individuals to adapt their behavior to the rule»9 as required by
international standards and jurisprudence. Accordingly, the Court finds
that the restriction on liberty is duly provided by law.
65. However, the Court reiterates that it is not enough for a restriction
to be provided by law; the restriction must have a legitimate aim and
the reasons for the restriction must serve a public or general interest.10
66. In the instant case, the restriction on liberty provided under
Section 148(5) (a)(i) of the Criminal Procedure Act aims to preserve
9 Application No. 004/2013. Judgment of 05/12/2014 , Lohé Issa Konaté v Burkina

Faso (hereinafter referred to as Issa Konaté v Burkina Faso Judgment, para 129.
10 Issa Konaté v Burkina Faso Judgment, op ci. para 131.
public security, protect the rights of others and avoid possible repetition
of the offense insofar as this provision covers cases of armed robbery.
The restriction is further justified by the need to ensure the actual
appearance of the accused for the purposes of proper administration
of justice. The Court, consequently, notes that the restriction on liberty
is underpinned by legitimate objectives.
67. The Court also notes that the restriction is necessary
and appropriate to ensure the reality of the aim pursued without
compromising the ideal of liberty and personal security provided under
Article 6 of the Charter. In circumstances such as those set out in
Section 148 (5)(a)(i) of the Criminal Procedure Act, pre-trial detention
is undoubtedly the necessary restriction for attainment of the desired
objective.
68. The Court finds, in conclusion, that the Applicant’s detention
pending trial was not without reasonable grounds and that the refusal
to grant him bail does not constitute a violation of his right to liberty.
Article 6 of the Charter has therefore not been violated.
B. Alleged violation of the right to equal protection of the

law and equality before the law
69. The Applicant submits that the refusal to grant him bail is
discriminatory, thus violating his right to equality before the law and
equal protection of the law as provided under Article 3(2) of the Charter.
70. The Respondent State has not responded to this allegation.
71. The Court recalls that the right to equality before the law requires
that all persons shall be equal before the courts and tribunals.11 It holds
however that to claim discrimination or unequal protection of the law,
the Applicant must adduce evidence that those in the same or similar
situation as he was, have been treated differently.
72. In the instant case, the Court holds, as a fundamental rule of
law, that whoever makes an allegation must adduce evidence thereof.
In this matter, the Applicant does not provide evidence that persons
who were in the same or similar situation as himself had been treated
differently.
73. Consequently, in the absence of evidence by the Applicant as
to any differential treatment, the Court finds that the Respondent State
has not violated the Applicant’s right to equality before the law and
equal protection of the law.
11 Application No. 032/2015. Judgment of 21/3/2018, Kijiji Isiaga v United Republic of

Tanzania, para 85.
C. Alleged violation of the right to a fair trial
74. The Applicant made several allegations of violation of his rights

as provided under Article 7(1)(a) and (c) and (2) of the Charter, which
stipulates as follows:
“Article 7:
1. Every individual shall have the right to have his cause heard.
This comprises:
violating his fundamental rights as recognized and guaranteed
b. …
Counsel of his choice;
2. No one may be condemned for an act or omission which did
not constitute a legally punishable offence at the time it was
committed. No penalty may be inflicted for an offence for which
no provision was made at the time it was committed…”
i. Alleged violation of the right to defence
75. The Applicant submits that the proceedings before the High
Court and the Court of Appeal were conducted in his absence in
violation of his right to be heard by a court as contemplated in Article
7(1)(a) of the Charter.
76. The Applicant also submits that the fact that the High Court and
the Court of Appeal held their hearing in his absence, whereas the
Prosecutor was present, constitutes a violation of his right to equality
before the law and his right to express his opinion as guaranteed
by Article 9(1) and (2) of the Charter. He contends that, in the
circumstances, he was not afforded the same possibility to express
himself as the Prosecution had.
77. The Applicant further submits that throughout the appeal
proceedings, a record purporting to be presented as the summary
of the evidence before the District Court was used in replacement of
the original record of proceedings that was found to be untraceable or
indeed lost. Arguing that he has serious doubts about the authenticity
of this document, which he considers as having already been tampered
with, in favour of the Public Prosecutor, the Applicant denounces the
irregularity of the procedure.
78. In his view, as at the time of reconstitution of the record of
proceedings, the judicial authorities had taken no steps to guard
against the risk of falsification of evidence in favour of the Prosecution.
He concludes that the review of his appeal without the original record
violates his right to equal protection of the law.
79. The Respondent State refutes the Applicant’s allegations,
affirming that the latter participated in all stages of the proceedings
before the District Court and had opted not to appear at the hearing of
the appeal before the High Court. The Respondent State indicates that
the Applicant was also present at the hearing before the Court of Appeal
and in this regard, that the Applicant cannot hold the Respondent State
responsible for his absence at the hearing of the appeal before the
High Court.
80. The Respondent State also contests the Applicant’s allegations
that the appeal proceedings were flawed for lack of the original
record of the court’s proceedings, arguing that the said records were
reconstituted and made available in the end.
81. The Court reiterates that the right for the Applicant to have
his cause heard requires that he should be entitled to take part in all
proceedings, and to adduce his arguments and evidence in accordance
with the adversarial principle. However, the individual as was the case
here, has the right to choose whether or not to take part in proceedings,
provided this waiver is unequivocally established.12
82. The record before this Court indicates that the Applicant took
part in his trial before the District Court and the proceedings before the
Court of Appeal. In contrast, when the Parties were summoned for the
hearing of the appeal before the High Court, the Applicant and his two
co-accused reportedly indicated that they had no intention to appear
- a statement which the Applicant did not challenge given that, in his
Reply, he had stated that he had taken note of the Respondent State’s
observations in this regard.
83. The Applicant having refused to appear before the Court, the
Court in conclusion holds that the hearing before the High Court in the
absence of the Applicant does not constitute a violation of his right to
have his cause heard.
84. On the Applicant’s allegation that he was not heard on
account of the Court of Appeal adjudicating on the matter without
the original record of proceedings, the Court holds that whereas, in
every procedure, original documents constitute crucial and precious
evidence in the determination of a case, such that the non-existence
of such documents can cast serious doubt on the fairness of the case,
the fact remains that it is possible to reconstitute the whole record or
parts thereof.
12 Sejdovic v Italy no. 56581/00, para 39, ECHR 2004-II; or Poitrimol v France no.
14032/88, para 33, ECHR 1993-II.
85. In the instant case, it is apparent from the records before this
Court that in order to lodge the Applicant’s appeal at the Court of
Appeal, his case file was reconstituted from the High Court’s Judgment
and the notes taken at the hearing before that Court. The Applicant
challenges the authenticity of the reconstituted record without proof as
to how the reconstituted elements lack credibility.
86. The Court therefore holds that, in the absence of any evidence
that the reconstituted record of proceedings has been wholly or
partly falsified, it dismisses the Applicant’s claims and holds that the
procedure before the High Court has not been vitiated as alleged by
the Applicant.
ii. Alleged failure to provide legal aid
87. The Applicant complains that he was not afforded legal aid before
the High Court and the Court of Appeal. He contends that by not doing
so, the domestic courts failed in their duty as set out in Section 3, of
the Criminal Procedure Act, thus violating Article 7(1)(c) of the Charter.
88. The Respondent State argues that though the right to defence is
an absolute right in its domestic law, the right to legal aid is mandatory
only in cases of homicide, murder or manslaughter; that for all other
criminal cases, legal aid is granted only at the request of the accused if
it is proven that he or she is indigent and cannot afford to pay lawyers’
fees. It therefore refutes the allegations made by the Applicant who, it
claims, at no time during the proceedings, made any such request for
legal aid, but rather chose to represent himself.
89. In his Reply, the Applicant contends that as a layman, he was
completely unaware that it was possible to be granted legal aid under
the legal provisions, particularly, Section 3 of the Criminal Procedure Act
as indicated in the Respondent State’s Response. He further submits
that, in view of the amendment to the Penal Code on the offence of
armed robbery offence raising the minimum sentence from 15 years to
a 30 years’ imprisonment, it was incumbent on the Respondent State
to grant him legal representation before its courts.
90. Article 7(1)(c) of the Charter provides that:
comprises:
…c) the right to defence, including the right to be defended by Counsel of

his choice.”
91. The Court notes that, though Article 7 of the Charter guarantees
the right to defence, including the right to be assisted by Counsel of
one’s choice, the Charter does not clearly provide for the right to free
legal assistance.
92. The Court however recalls that its jurisprudence according to

which free legal aid is a right inherent in a fair trial, and that when the
interests of justice so require, any person accused of a criminal offence
must be informed of his right to legal assistance or to be granted
Counsel if he is indigent or where the offence is serious and the penalty
provided by law is severe.13
93. In the instant case, the Applicant was accused of an offence
punishable by a heavy sentence of 30 years imprisonment and it was
in the interest of justice to provide him with free legal aid. This was
made even more necessary by the fact that the Applicant claims to
be a layman in law and was also unable to pay for the services of a
Counsel.
94. The Court further notes that at no time was the Applicant
informed that he may request and be provided with legal aid even
though the Respondent State does not refute the fact that the Applicant
was indigent.
95. The Court finds in conclusion that, by failing to do so, the
Respondent State violated Article 7(1)(c) of the Charter.
iii. Allegation that the 30 years prison sentence is not

provided by law
96. The Applicant submits that the conviction and thirty (30) years
prison sentence pronounced against him were based on a non-existent
crime and constitute a violation of Article 7(2) of the Charter, which
stipulates that: “no one may be condemned for an act or omission
which did not constitute a legally punishable offence at the time it
was committed. No penalty may be inflicted for an offence for which
no provision was made at the time it was committed. Punishment is
personal and can be imposed only on the offender…”. The Applicant
avers that the thirty (30) years prison sentence was not applicable at
the time the offence of which he is accused was committed; that at the
time, the maximum sentence applicable was fifteen (15) years.
97. The Respondent State refutes the Applicant’s allegation, arguing
that in Criminal Case No. 123/1997, the Applicant was accused of
armed robbery, contrary to Sections 285 and 286 of the Penal Code,
that at the time of his conviction and sentencing , the law known as
the Minimum Sentence Act of 1972 had been amended by Law No.
6/1994; that this new law of 1994 repealed the 15 years sentence and
introduced a mandatory minimum sentence of thirty (30) years in cases
13 Mohamed Abubakari v Tanzania Judgment. op cit para 139. See also Christopher
Jonas v Tanzania Judgment. op cit para 77.
of armed robbery and robbery with violence.

98. The Court notes that, in his Reply, the Applicant affirms having
taken note of the Respondent State’s observations on this argument.
Furthermore, the Court recalls that it has already noted that in the
United Republic of Tanzania, the minimum sentence applicable for
armed robbery or robbery with violence is 30 years imprisonment since
the 1994 law.14
99. The Court therefore holds, in conclusion, that the Respondent
State did not violate Article 7(2) of the Charter and that the Applicant’s
conviction and sentence to thirty (30) years imprisonment was in
accordance with the law.
VIII. Reparation
100. As stated in paragraph 18 of this Judgment, the Applicant prays

the Court to: (i) grant him adequate reparation pursuant to Article 27 of
the Protocol; (ii) order the Respondent State to bear the costs; (iii) issue
such other order(s) or measure(s) as the Court deems appropriate in
the circumstances of the instant case.
101. However, when requested to clarify and substantiate his claim
for reparation, the Applicant did not file any submissions.
102. The Respondent State in its submission prayed the Court to
dismiss the Applicant’s claim for reparation and order him to pay the
costs.
103. Article 27(1) of the Protocol provides that: “if the Court finds that
there has been violation of a human or people’s rights, it shall make
104. Rule 63 of the Rules, stipulates that: “the Court shall rule on the
request for reparation… by the same decision establishing the violation
of a human and peoples’ right or, if the circumstances so require, by a
105. The Court recalls its jurisprudence in Reverend Christopher R
Mtikila v United Republic of Tanzania in application of Article 27(1) of
the Protocol whereby “…any violation of an international obligation
that has caused harm entails the obligation to provide adequate
reparation.”15
106. The Court notes that, in the instant case, the Applicant’s right to
14 Mohamed Abubakari v Tanzania Judgment. op cit, para 210; Christopher Jonas v

Tanzania Judgment. op cit para 85.
15 Application No. 011/2011. Ruling of 13/6/2014, Reverend Christopher R. Mtikila v
United Republic of Tanzania. para 27.
legal aid was violated but this did not affect the outcome of his trial. The
Court further notes that the violation it found caused non-pecuniary
prejudice to the Applicant who requested adequate compensation in
accordance with Article 27(1) of the Protocol.
107. The Court therefore awards the Applicant a token amount of
three hundred thousand Tanzania Shillings (TZS300,000 ) as fair
compensation.
IX. Costs
108. In terms of Rule 30 of the Rules: “unless otherwise decided by
109. The Court notes that the Parties did express their positions on
costs even though they did not indicate the amounts. Both Parties
requested the Court to order the other Party to bear the costs.
110. In the instant case, the Court decides that the Respondent State
shall bear the costs.
X. Operative part

The Court,
Unanimously
On jurisdiction:
i. Dismisses the objection to its jurisdiction;
On admissibility:
iii. Dismisses the objection to admissibility of the Application;
On the merits:
unanimously
v. Declares that the Respondent State did not violate the Applicant’s
right to freedom as provided under Article 6 of the Charter;
vi. Declares that the Respondent State did not violate Articles 2 and
3(1) and (2) of the Charter on non-discrimination, equality before the
law and equal protection of the law;
vii. Finds that the Respondent State did not violate the Applicant’s
right to have his cause heard as provided under Article 7(1)(a) of the
Charter;
viii. Declares that the 30 years prison sentence is in accordance with
the law and is not in violation of Article 7(2) of the Charter;
ix. Declares that the Respondent State violated the Applicant’s right
to defence under Article 7(1)(c) of the Charter for failure to provide him
with free legal assistance;
x. Awards the Applicant a token amount of Three Hundred
Thousand Tanzania Shillings (TZS 300,000) as fair compensation;
xi. Orders the Respondent State to pay the Applicant the said sum
and report to the Court thereon within six (6) months from the date of
notification of this Judgment; and
xii. Orders the Respondent State to pay the costs.
Ajavon v Benin (re-opening of proceedings) (2018) 2 AfCLR

466
Application 013/2017, Sebastien Germain Ajavon v Republic of Benin

Order, 5 December 2018. Done in English and French, the French text
The applicant, a politician, alleged the violation of many provisions of
the African Charter, including those relating to the right to a fair trial,
following his sentencing to 20 years’ imprisonment for drug trafficking.
Having already begun its deliberations, the Court ordered the closure
of the deliberations and the reopening of the proceedings to consider
further submissions and requests from the applicant.
Procedure (closure of the deliberations, reopening of the proceedings,
25, 26)
I. The Parties
1. The Applicant Mr Sébastien Germain Ajavon (hereinafter referred

to as “the Applicant”) a businessman and politician, is a national of
Benin.
2. The Respondent State is the Republic of Benin (hereinafter
referred to as “the Respondent State”) which became party to the
African Charter on Human and Peoples’ Rights (hereinafter referred to
as “the Charter”) on 21 October 1986 and to 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”) on 22 August 2014. The Respondent State, on 8
February 2016, also deposited the declaration prescribed under Article
34(6) of the Protocol accepting the jurisdiction of the Court to receive
cases directly from individuals and Non-Governmental Organisations.
3. The Court was seized of the Application on 27 February 2017.

The Applicant submits that, between 26 and 27 October 2016, the
gendarmerie of the Autonomous Port of Cotonou and the Benin
Customs Department were alerted to the presence of a large quantity
of cocaine in a container aboard the ship “MSC Sophie” transporting
frozen goods.
4. Based on the information given by the Intelligence and
Documentation Department of the Office of the President of the Republic
Ajavon v Benin (re-opening of proceedings) (2018) 2 AfCLR 466 467
of Benin, the Public Prosecutor’s Office and the Benin Customs, as

of 28 October 2016, initiated legal proceedings against the Applicant
and his three employees for trafficking eighteen (18) kilograms of pure
cocaine found in a container of frozen goods imported by Société
Comptoir Mondial de Négoce (COMON SA) of which he is the Chief
Executive Officer.
5. On 4 November 2016, the Criminal Chamber of Cotonou First
Class Court of First Instance Court, by Judgment No. 262/IFD-16,
acquitted the Applicant and one of his employees for lack of evidence
and for the benefit of the doubt. The other two employees were also
released without being charged.
6. The Applicant also alleges that, in the process, the Customs
Administration suspended the container terminal of the Transit and
Consignment Brokerage Company (SOCOTRAC) and withdrew its
customs brokerage license. The High Authority for Audiovisual and
Communication (HAAC), by two decisions both dated 28 November
2016, disconnected the signals of the radio station SOLEIL FM and
the TV channel SIKKA TV. The Applicant alleged that he is the majority
shareholder in all these companies.
7. In his application of 27 February 2017, the Applicant indicated
that he brought the matter before this Court in the belief that the
international drug trafficking case and the subsequent proceedings
were part of a conspiracy orchestrated against him and violated his
human rights guaranteed and protected by international human rights
instruments.
8. Moreover, in October 2018, the Applicant reported the creation
by the Respondent State, in July 2018, of a special court to try him once
again for the same case of drug trafficking, and actually sentenced him
to twenty years in prison.
9. The Application was filed on 27 February 2017 and served on

the Respondent State on 31 March 2017. The Respondent State filed
its Brief on Preliminary Objections on 1 June 2017.
10. In a letter dated 17 July 2017 and received at the Registry on
19 July 2017, the Applicant filed his Reply to the Respondent State’s
preliminary objections; and on 29 August 2017, the Respondent State
submitted its Rejoinder on the Applicant’s Reply to the preliminary
objections.
11. On 9 October 2017, the Applicant replied to the Rejoinder, and
on 14 November 2017, the Respondent State submitted its Response
to the Applicant’s observations on its Rejoinder.
12. On 27 November 2017, the Registry notified the Parties that the
written proceedings in this case were closed.

13. In a letter dated 6 November 2017, received on 11 December
2017, the Applicant alleged further attacks against his person and the
use of new methods by the Respondent State to stifle his companies
and as such requested a public hearing of the case. The Applicant
reiterated this request on 26 March 2018.
14. On 9 May 2018, the Court held a public hearing, and granted the
Respondent State leave to file its Response to the Applicant’s further
submissions within thirty (30) days. This Response was filed at the
Registry on 13 May 2018.
15. In a letter dated 15 October 2018, received on 16 October 2018,
the Applicant brought before the Court new allegations in respect of the
case in which he indicated that while the judgment of the Court was
being awaited by the Parties, the Respondent State, by a Law dated
2 July 2018, established a special court named “Economic Crimes
and Terrorism Court (hereinafter referred to as “CRIET”) to once again
hear the case of international drug trafficking which involves him. He
also alleged that the new proceedings involves fresh violations of his
rights for which he solicits the Court to issue an order requesting the
Respondent State to stay its proceedings before CRIET.
16. On 24 October 2018, the Registry notified the Respondent State
of the new allegations tendered by the Applicant.
17. On 26 October 2018, the Applicant submitted another letter in
which he referred to the CRIET judgment convicting him and requested
the Court to issue, as a provisional measure, an order for a stay of
execution of that judgment. This letter was registered in the Registry
on 31 October 2018.
18. On 31 October 2018, the Registry received from the Applicant
a letter dated the same day. In that letter, the Applicant referred to the
record of proceedings of the General Assembly of Cotonou Magistrates
highlighting the illegality of CRIET and requesting this Court to take all
appropriate measures, including a stay of execution of the judgment
delivered by CRIET, until consideration of the cassation appeal.
19. On 5 November 2018, the Applicant addressed to the Court a
corrigendum to the letter dated 31 October 2018, and requested the
Court to consider a stay of execution of the CRIET judgment up to
the date of its decision rather than until consideration of the cassation
appeal. This letter was received at the Registry on 20 November 2018
and served on the Respondent State on the same day.
20. On 7 November 2018, the Registry notified the Respondent State
of the Applicant’s letters dated 26 and 31 October 2018, respectively.
21. On 12 November 2018, the Applicant reiterated his request for
a stay of execution of the CRIET judgment. This letter was received
at the Registry on 19 November 2018 and served on the Respondent
Ajavon v Benin (re-opening of proceedings) (2018) 2 AfCLR 466 469
State on 20 November 2018.

22. On 13 November 2018, the Respondent State filed its
observations on the admissibility of the new allegations submitted by
the Applicant. The Respondent State’s submissions were received on
14 November 2018 at the Registry, which transmitted the same to the
Applicant on the same day.
23. On 20 November 2018, the Registry received the Respondent
State’s observations as contained in the latter’s letter dated 19 November
2018, on the prayer for a stay of execution of CRIET judgment. On
the same day, the Registry transmitted the said observations to the
Applicant.
24. On 21 November 2018, the Applicant submitted to the Court a
set of documents in support of the allegations of violation of his rights,
consisting of a study report conducted by the Benin Bar Association on
CRIET, the transcript of the statement of the President of the National
Union of Magistrates of Benin and a copy of the judgment delivered by
CRIET. The said documents were served on the Respondent State on
the same day.
IV. Position of the Court
25. The Court notes that the developments that occurred after the
matter was placed on the deliberations are linked to the facts alleged
in the Application filed on 27 February 2017 and represent an obvious
continuity with the facts in question.
26. In this regard, the Court holds that in the interest of proper
administration of justice, it has the inherent power to decide to set aside
the deliberation, reopen the pleadings and admit the new evidence
filed by the Parties after the matter has been placed under deliberation.
V. Operative part

The Court
unanimously,
i. sets aside the deliberation on Application No. 013/2017 -
Sébastien Germain Ajavon v Republic of Benin, and decides to reopen
written pleadings.
ii. admits the new evidence filed by the Parties after the matter was
placed under deliberation;
iii. allows the Applicant thirty (30) days from the date of notification
of this Order to submit on all aspects of the case, his Reply to the
Respondent State’s Response.
Application 013/2017, Sebastien Germain Ajavon v Republic of Benin

Order, 7 December 2018. Done in English and French, the French text
The applicant, a politician, alleges the violation of many provisions of the
African Charter, including those relating to the right to a fair trial, following
his sentencing to 20 years’ imprisonment for drug trafficking. The Court
ordered the respondent State to stay the execution of the judgment of
the national court until it had rendered its decision on the merits of the
application.
Jurisdiction (provisional measures, prima facie jurisdiction, 28)
Provisional measures (risk of execution of prison sentence, 44-46)
I. The Parties
1. The Applicant is Mr Sébastien Germain AJAVON (herein-after

referred to as “the Applicant”), a businessman and politician of the
Republic of Benin.
2. The Respondent State is the Republic of Benin (hereinafter
referred to as “the Respondent State”) which became a party to the
as “the Charter”) on 21 October 1986 and to the Protocol to the African
Charter on Human and Peoples’ Rights (hereinafter referred to as “the
Protocol”) on 22 August 2014. The Respondent State also deposited
on 8 February 2016 the declaration prescribed under Article 34(6) of
the Protocol accepting the jurisdiction of the Court to receive cases
directly from individuals and Non-Governmental Organisations.
3. The Court was seized of the Application on 27 February 2017.

The Applicant submits that, between 26 and 27 October 2016, the
gendarmerie of the Autonomous Port of Cotonou and the Benin
Customs authorities were alerted to the presence of a large quantity
of cocaine in a container aboard the ship “MSC Sophie” transporting
frozen goods.
4. Based on the information given by the Intelligence and
Documentation Department of the Office of the President of the Republic
of Benin, the Public Prosecutor’s Office and the Benin Customs, as
of 28 October 2016, initiated legal proceedings against the Applicant
Ajavon v Benin (provisional measures) (2018) 2 AfCLR 470 471
and his three employees for trafficking eighteen (18) kilograms of pure
cocaine found in a container of frozen goods imported by Société
Comptoir Mondial de Négoce (COMON SA) of which he is the Chief
Executive Officer.
5. On 4 November 2016, the Criminal Chamber of Cotonou First
Class Court of First Instance Court, by Judgment No. 262/IFD-16,
acquitted the Applicant and one of his employees for lack of evidence
and for benefit of the doubt. The other two employees were released
without charge.
6. The Applicant alleges that, in the process, the Customs
Administration suspended the container terminal of the Transit and
Consignment Brokerage Company (SOCOTRAC) and withdrew its
customs brokerage license. The High Authority for the Audiovisual and
Communication (HAAC), by two decisions both dated 28 November
2016, disconnected the signals of the radio station SOLEIL FM and
the TV channel SIKKA TV. The Applicant alleges that he is the majority
shareholder in all these companies.
7. In his application of 27 February 2017, the Applicant indicated
that he brought the matter before this Court in the belief that the
international drug trafficking case and the subsequent proceedings
were part of a conspiracy orchestrated against him and violated his
human rights guaranteed and protected by international human rights
instruments.
8. Moreover, in October 2018, the Applicant reported the creation
by the Respondent State, in July 2018, of a special court to try him once
again for the same case of drug trafficking, and actually sentenced him
to twenty years in prison.
9. The Applicant argued that the sentences passed against him by
CRIET on 18 October 2018 violate the international conventions ratified
by the Respondent State and place him in a precarious and extremely
serious situation. He also argued that the Respondent State basically
violated his right to a fair trial in several respects, citing the following
violations: the right to be notified of the charges levelled against him;
the right of access to the record of proceedings; the right to have his
cause heard by the competent national courts; the right to respect for
the principle of reasonable time; the right to respect for the principle of
the independence of the judiciary; the right to assistance by Counsel;
the right to respect for the principle of non bis in idem and the right to
respect for the principle of two-tier jurisdiction.
10. The Request was received at the Registry on 27 February 2017

and was served on the Respondent State on 31 March 2017. By a
letter dated 29 May 2017 received at the Registry on 1 June 2017, the
Respondent State filed its brief on preliminary objections.
11. In a letter dated 17 July 2017 received by the Registry on 19 July
2017, the Applicant filed his rejoinder to the preliminary objections raised
by the Respondent State; and on 29 August 2017, the Respondent
State submitted its rejoinder on the preliminary objections.
12. On 9 October 2017, the Applicant responded to the rejoinder; and
on 14 November 2017, the Respondent State submitted its response
to the Applicant’s observations on its rejoinder.
13. On 27 November 2017, the Registry notified the Parties that the
written procedure in the case was closed.
14. In a letter dated 6 November 2017 received at the Registry
on 11 December 2017, the Applicant alleged further attacks against
his person, the use of new methods by the Respondent State to stifle
his businesses and, for that reason, solicited a public hearing. He
reiterated this prayer on 26 March 2018.
15. On 9 May 2018, the Court held its public hearing, placed the
matter under deliberation and allowed the Respondent State leave to
file its response to the Applicant’s new observations within thirty (30)
days. The response was submitted at the Registry on 13 May 2018.
16. In a letter dated 15 October 2018 received on 16 October 2018,
the Applicant brought new allegations on the matter before the Court,
arguing in his written pleadings that while the Court’s decision was
being awaited by the Parties, the State of Benin, by a law dated 2
July 2018, created a special court named “Anti-Economic Crimes and
Terrorism Court (hereinafter referred to as “CRIET”) to once again
hear the case of international drug trafficking in which he was involved.
Alleging that this new procedure involves further violations of his rights,
the Applicant requested that the Court issue an order requesting the
Respondent State to stay its proceedings before CRIET.
17. On 24 October 2018, the Registry notified the Respondent State
of the Applicant’s new allegations.
18. On 26 October 2018, the Applicant filed another letter in which
he referred to the CRIET judgment No. 007/3C.COR of 18 October
2018 convicting him, and prayed the Court to issue, as an interim
measure, an order for a stay of execution of the said judgment. This
letter was registered in the Registry on 31 October 2018.
19. On 31 October 2018, the Registry received from the Applicant a
letter dated the same day by which the Applicant tendered the record
of proceedings of the General Assembly of Cotonou Magistrates
highlighting the illegality of CRIET, and requested the Court to take all
appropriate measures, including a stay of execution of the judgment
delivered by CRIET until examination of the cassation appeal.
20. On 5 November 2018, the Applicant addressed to the Court
a corrigendum to the letter dated 31 October 2018, requesting the

Court to consider a stay of execution of the judgment of CRIET until its
decision and not until consideration of the cassation appeal. The said
letter was received at the Registry on 20 November 2018 and served
on the Respondent State on the same day.
21. On 7 November 2018, the Registry notified the Respondent State
of the Applicant’s letters dated 26 and 31 October 2018, respectively.
22. On 12 November 2018, the Applicant reiterated his request for a
stay of execution of CRIET judgment in a letter received at the Registry
on 19 November 2018 and served on the Respondent State on 20
November 2018.
23. On 13 November 2018, the Respondent State submitted
its observations on admissibility of the new allegations filed by the
Applicant. The Respondent State’s submissions were received on
14 November 2018 at the Registry, which served the same on the
Applicant on the same day.
24. On 20 November 2018, the Registry received the Respondent
State’s observations as contained in its letter of 19 November 2018,
regarding the stay of execution of CRIET judgment. The Registry
transmitted the said observations to the Applicant on the same day.
25. On 21 November 2018, the Applicant tendered before the Court
a set of documents in support of the allegations of violation of his rights,
consisting of a study report conducted by the Benin Bar Association on
CRIET, the transcript of the statement of the President of the National
Union of Benin Magistrates and a copy of the judgment delivered by
CRIET. The said documents were forwarded to the Respondent State
on the same day.
26. On 5 December 2018, the Court issued an interim order to set
aside the deliberation and reopen the written proceedings. It also
admitted the new evidence filed by the Parties after the matter was
placed under deliberation.
IV. On prima facie jurisdiction
27. In dealing with any Application filed before it, the Court has to
ascertain that it has jurisdiction pursuant to Rule 39 of its Rules and
Articles 3 and 5(3) of the Protocol.
28. However, in examining a request for provisional measures, the
Court need not establish that it has jurisdiction on the merits of the
case, but simply satisfy itself that it has prima facie1 jurisdiction.
29. Article 3(1) of the Protocol stipulates that: “The jurisdiction of the
any other relevant Human Rights instruments ratified by the States
concerned.”
30. In terms of Article 5(3) of the Protocol, “The Court may entitle
relevant Non-Governmental organizations (NGOs) with observer
status before the Commission, and individuals to institute cases directly
before it, in accordance with Article 34(6) of this Protocol.”
31. As specified in paragraph 2 of this Order, the Respondent State
is a party to the Charter and to the Protocol, and also has deposited
the declaration accepting the jurisdiction of the Court to receive
applications from individuals and non-governmental organizations as
per Article 34(6) of the Protocol read together with Article 5(3) thereof.
32. In the instant case, the rights of which the Applicant alleges
violation are protected by the provisions of Articles 3(2), 5, 6, 7, 14 and
26 of the Charter.
34. The Applicant prays the Court to order a stay of execution of the
18 October 2018 Judgment No. 007/3C.COR rendered by CRIET.
35. He contends that, notwithstanding his appeal before the Court
of Cassation, the Respondent State can at any time proceed with
execution of the judgment of CRIET; adding that CRIET decisions are
not subject to appeal and that the appeal before the Court of Cassation
is an extraordinary remedy.
36. The Applicant submits further that execution of judgment No.
007/ 3C.COR of 18 October 2018 rendered by CRIET, would have
unforeseeable consequences for him, and prays the Court take the
decision for a stay of execution of the said judgment, as a matter of
urgency.
37. The Respondent State submits that the Applicant cannot ask
the Court for a stay of execution of a judgment of a Benin court under
1 Application No. 002/2013. Order of 15/3/2013 for Provisional Measures, African

Commission on Human and Peoples’ Rights v Libya (herein-after referred to as
African Commission on Human and Peoples’ Rights v Libya, Order for Provisional
Measures”) para 10; Application No. 024/2016. Order of 3/6/2016 for Provisional
Measures, Amini Juma v United Republic of Tanzania (herein-after referred to as
“Amini Juma v United Republic of Tanzania, Order for Provisional Measures”) para
8.
Benin’s positive law and the laws declared by the Constitutional Court
as being in conformity with Benin’s Constitution.
38. It further submits that it is established jurisprudence that
community courts do not have jurisdiction to issue injunctions to
Member States in respect of their domestic laws and procedures;
adding that to admit such injunctions would lead to the obliteration
of domestic court decisions. The Respondent State also refers to the
Applicant’s cassation appeal, describing the same as premature and
unfounded.
39. Finally, the Respondent State prays the Court to dismiss the
Applicant’s claims as premature and baseless. The Court notes that
Article 27(2) of the Protocol provides that:
“In cases of extreme gravity and urgency, and when necessary to avoid
irreparable harm to persons, the Court shall adopt such provisional
measures as it deems necessary”.
40. Further, Rule 51(1) of the Rules provides that the Court may:
“[a]t the request of a party, the Commission or on its own accord, prescribe
to the Parties any interim measure which it deems necessary to adopt in
the interest of the Parties or of justice.”
41. The Court notes that it lies with it to decide for each case, whether
in light of the particular circumstances of the matter, it should exercise
the jurisdiction conferred on it by the aforementioned provisions.
42. The Court notes that, although in terms of Article 19 paragraph 2
of the Law establishing CRIET, its judgments are subject to cassation
appeal,2 Article 594 of the Benin Code of Criminal Procedure declares
invalid the appeal of convicted persons who are not in detention or
have not obtained exemption from execution of the sentence.3
43. In the circumstances of the instant case, wherein the Applicant
is not in detention and has not obtained exemption from execution of
the sentence, the Court holds that there is still the risk that the prison
sentence would be executed notwithstanding possible cassation
appeal.
44. In view of the foregoing, the Court finds that the circumstances
of this case highlight a situation of extreme gravity and presents a
risk of irreparable harm to the Applicant if the CRIET’s decision of 18
October 2018 were to be enforced prior to this Court’s decision in the
2 “The judgments of the Economic Crimes and Terrorism Court shall be justified.
They shall be delivered in open Court and shall be subject to cassation appeal by
the convicted person, the Public Prosecutor’s Office and the civil Parties.”
3 “Persons subject to custodial sentence with or without bail shall be declared
incompetent to file any appeal. In order for his Application to be admitted, It is
sufficient for the Applicant to present him/herself before the Office of the Prosecutor
to undergo the detention.“
matter pending before it.

45. The Court therefore holds in conclusion that the said
circumstances require it to order Provisional Measures, in accordance
with Article 27(2) of the Protocol and Rule 51 of its Rules, so as to
preserve the status quo.
46. The Court specifies that this Order is necessarily provisional and
does not in any way prejudge the findings the Court might make as
regards its jurisdiction, admissibility of the Application and the merits
of this matter.
VI. Operative part

The Court,
unanimously
Orders the Respondent State to:
i. stay execution of Judgment No. 007/3C.COR of 18 October 2018
delivered by the Economic Crimes and Terrorism Court established by
Law No. 2018/13 of 2 July 2018, pending this Court’s final decision in
the instant Application;
ii. report to this Court within fifteen (15) days of receipt of this Order
on the measures taken to implement the same.
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR 477 477
Guehi v Tanzania (merits and reparations) (2018) 2 AfCLR

477
Application 001/2015, Armand Guehi v United Republic of Tanzania

(Republic of Côte d’Ivoire intervening)
Judgment, 7 December 2018. Done in English and French, the English
Judges: KIOKO, NIYUNGEKO, GUISSE, BEN ACHOUR, MATUSSE,
The Applicant, an Ivorian citizen, was convicted and sentenced to death
for the murder of his wife. He brought this Application claiming a violation
of his rights as a result of his detention and trial. The Court held that some
fair trial guarantees had been violated but that the reparations requested
by the Applicant were not in line with the violations found. The Court
awarded some monetary compensation for the violations established.
Jurisdiction (conformity of domestic proceedings with Charter, 33;
consular assistance, 37, 38)
Admissibility (exhaustion of local remedies, fair trial guarantees, 50,
extraordinary remedy, 51; submission within reasonable time, 56)
Fair trial (defence, interpretation, 73, 75-78; consular assistance, 95, 96;
evidence, 105-111; trial within reasonable time, 124)
Cruel, inhuman or degrading treatment (burden of proof, 132-136)
Reparations (quashing of conviction, 163, release, 164, 165;
compensation, 178-183, 186, 189; guarantees for non-repetition;
publication of judgment, 195)
Costs (pro bono counsel, 200; supporting documents, 203)
Separate Opinion: BENSAOULA
Procedure (intervention by third party state, 13-15)
I. The Parties
1. The Applicant, Armand Guehi, is a national of the Republic of

Côte d’Ivoire. He was sentenced to death for the murder of his wife
and is currently detained at the Arusha Central Prison, United Republic
of Tanzania.
(hereinafter referred to as the “Respondent State”), which became
party to the African Charter on Human and Peoples’ Rights (hereinafter
referred to as the “Charter”) on 21 October 1986 and the Protocol on
10 February 2006. The Respondent State also deposited, on 29 March
2010, the declaration under Article 34(6) of the Protocol, accepting the
jurisdiction of the Court to receive cases from individuals and Non-
Governmental Organisations.
3. In accordance with Article 5(2) of the Protocol as well as Rules
33(2) and 53 of the Rules, the Republic of Côte d’Ivoire (hereinafter
referred to as the “Intervening State”) was permitted to join.
4. The Applicant moved to Tanzania on 1 May 2004 as a dependant

of his wife, an Ivorian citizen, then working for the International Criminal
Tribunal for Rwanda (hereinafter referred to as “ICTR”). The Applicant
was also undertaking an internship at the ICTR.
5. On 6 October 2005, the Applicant was arrested by security
officers of the ICTR in connection with his wife’s disappearance. He
was handed over to local police and detained. On 18 October 2005,
he was charged with the murder of his wife before the High Court of
Tanzania at Moshi.
6. On 30 March 2010, he was found guilty, convicted and sentenced
to death. He appealed to the Court of Appeal of Tanzania, which on 28
February 2014, dismissed the appeal.
7. On 15 April 2014, the Applicant filed a notice of motion for review
of the Court of Appeal’s decision.
8. On 6 January 2015, while the request for review awaited hearing
in the Court of Appeal, the Applicant filed Application No. 001 of 2015
before this Court alleging that several of his rights were violated in the
course of the domestic proceedings.

“i. Save for the trial in 2010, the Respondent State did not
provide him with language assistance at critical stages of
the case such as when he was interviewed and recorded
his statement at the police station while at the time of his
arrest he only properly spoke and understood French.
ii. The Respondent State did not ensure or conduct a proper,
fair and professional and diligent investigation of the
matter. Consequently, several pieces of evidence which
could have led to other suspects besides him were not
investigated or were simply destroyed in complicity with
the investigation officers. Had these pieces of evidence
been investigated or presented to the High Court, they
would have proved that he was in fact not the perpetrator

of the crime.
iii. His right to presumption of innocence was “savagely
ignored” in this case. There was a clear presumption of
guilt which breached his right to a fair trial.
iv. The Respondent State did not provide him with an attorney
at the time of recording his statement at the police even
though he requested for one. Consequently, the statement
recorded was manipulated and used against him during
the trial.
v. The Respondent State never facilitated consular
assistance.
vi. After his arrest, the Respondent State failed to secure his
properties in his house in Arusha and, as a result, the said
properties were arbitrary disposed of.
vii. He was arrested in October 2005, but it was not until 2010
that he was actually convicted, that is after a period of
almost five years. The whole trial process was unduly
prolonged, which constitutes an infringement of his right
to be tried within a reasonable time.
viii. He has suffered a lot of mental anguish as a result of the
initial arrest, charges being dropped and subsequently
another case being opened against him.
ix. During his detention, he was subjected to inhuman and
degrading treatment.”
10. The Registry received the Application on 6 January 2015. By

notices dated 8 January 2015 and 20 January 2015 respectively, the
Registry acknowledged receipt of the Application and informed the
Applicant of its registration in accordance with Rule 36 of the Rules.
11. On 20 January 2015, the Registry served the Application on the
Respondent State, the African Commission on Human and Peoples’
Rights and the Chairperson of the African Union Commission, as
prescribed by Rule 35(2) and (3) of the Rules.
12. On 21 January 2015, and in accordance with Article 5(1)(d) and
5(2) of the Protocol as well as Rules 33(1)(d) and 53 of the Rules,
the Registry served the Application on the Republic of Côte d’Ivoire
as the Applicant’s state of origin for purposes of possible intervention.
The Republic of Côte d’Ivoire, which requested for intervention on 1
April 2015, was allowed to join the case and filed its observations and
responses to the submissions made by the Parties on 16 May 2016

and 4 May 2017 respectively.
13. On the Court’s direction, by a notice dated 17 March 2015 and in
line with Rule 31 of the Rules, the Registry requested the Pan-African
Lawyers’ Union (PALU) to assist the Applicant who indicated that he
did not have a legal representative. On 16 June 2015, PALU agreed to
provide the requested support.
14. On their request, Professor Christof Heyns (University of Pretoria)
and Professor Sandra Babcock (Cornell University) were granted
leave to participate as amici curiae by notice dated 29 November 2017
in accordance with Article 26(2) of the Protocol, Rules 45 and 46 of the
Rules as well as Directions 42 to 47 of the Practice Directions.
15. In accordance with Rule 36(1) of the Rules, the Respondent
State was duly served with the Application and all the submissions
of the Applicant, Intervening State, and Amici, and was granted the
statutory time and subsequent extensions of time as applicable to file
its responses. All Parties were similarly served with the pleadings and
annexures, and duly allowed to file their observations.
16. On 18 March 2016, in accordance with Rule 51(1) of the Rules,
the Court issued an Order for provisional measures directing the
Respondent State to suspend the execution of the death sentence on
the Applicant pending determination of the matter on the merits. On
29 March 2016, the Registry notified the Parties and other relevant
entities of the Order as prescribed under Rule 51(3) of the Rules. On
23 January 2017, the Respondent State filed its response to the Order
as part of its observations to the Intervening State’s submissions. On
15 February 2017, the Registry acknowledged receipt of the response
with copy to the Parties.
17. By notices dated 22 July 2016 and in accordance with Rule
45(2) of the Rules, the Court sought a legal opinion on the issue of
death penalty in Africa from Penal Reform International, Legal and
Human Rights Centre - Tanzania, the Death Penalty Project and the
African Commission on Human and Peoples’ Rights. Only the Legal
and Human Rights Centre made a submission.
18. On 16 April 2018, the Registry informed the Parties that the
matter was set down for public hearing on 10 May 2018. The Applicant
and Respondent State were represented at the public hearing during
which they presented their pleadings, made oral submissions and
responded to questions put to them by Judges of the Court.
19. On 22 May 2018 and in accordance with Rule 48(2) of the
Rules, the Registry served the verbatim records of the hearing on the
Parties. On the same date, the Registry further requested the Parties
to submit their oral observations in writing and file their submissions
on reparations. On 18 June 2018, the Applicant filed his submissions
on reparations, which were served on the Respondent State on 21

June 2018 for response within 30 days. At the expiry of that time and
in accordance with Rule 37 of the Rules, the Court suo motu granted
the Respondent State an extension of fifteen (15) days to submit on
reparations failing which the matter would be considered based on
pleadings on file.
20. On 16 August 2018, the Registry received the Respondent State’s
submissions on reparations together with a request for leave to submit
the same. On 29 August 2018, the Registry informed the Respondent
State that, in the interest of justice, the Court had decided to grant the
leave sought. The Applicant and Intervening State were in copy of this
notice and were served the said submissions for information.
21. In his Application, Reply and oral submissions, the Applicant

prays the Court to:
“i. Declare that the Respondent State has violated his
rights guaranteed under the African Charter, in particular
Articles 1, 5, 7 and 14;
ii. Order that the conviction is quashed, the sentence is set
aside, and his liberty is restored;
iii. Order the Respondent State to take immediate steps to
remedy the violations;
iv. Order that he should be granted reparations;
v. Make any other orders or grant any remedies that it shall
deem fit.”
22. In its Responses to the Application and to the Intervening State’s
Application for intervention and substantive pleadings as well as in its
oral pleadings, the Respondent State prays the Court to find that:
“i. The African Court has no jurisdiction to entertain this
matter and the Application should be duly dismissed;
ii. The Application has not met the admissibility requirement
under Rule 40(5) of the Rules of Court and should be
declared inadmissible;
iii. The Application has not met the admissibility requirement
under Rule 40(6) of the Rules and should be declared
inadmissible;
iv. The Respondent State has not violated Article 5 of the
Charter;
v. The Respondent State has not violated Article 7 of the
Charter;
vi. The Respondent State has not violated Article 14 of the

Charter;
vii. The Applicant’s conviction is lawful;
viii. The Applicant must continue serving his sentence;
ix. The Application is dismissed for lack of merit;
x. The Applicant’s request for reparations is dismissed;
xi. The Applicant must bear the costs of the Application;
xii. The Respondent State is entitled to any other remedies
the Court may deem fit to grant.”
23. In its Application for intervention and the substantive pleadings
filed thereafter, the Intervening State prays the Court to order that:
“i. The Application has met the admissibility requirements
and should be declared admissible;
ii. The Application to intervene has met the jurisdiction and
admissibility requirements under Rules 35(3)(b) and 53 of
the Rules;
iii. The Applicant’s rights to a fair trial have been violated;
iv. The Applicant’s execution must be stayed as a provisional
measure.”
V. Jurisdiction
24. Pursuant to Rule 39(1) of the Rules, “the Court shall conduct a
preliminary examination of its jurisdiction …”.
25. The Respondent State avers that the Application is asking this
Court to act as a tribunal of first instance given that the Applicant’s
allegations that his statement was taken in a language unknown to
him and without the presence of his lawyer are being raised for the
first time. According to the Respondent State, the Applicant should
have raised these allegations during the trial proceedings or before the
Court of Appeal.
26. During the public hearing, the Respondent State reiterated this
argument and extended the same to the allegations that it arbitrarily
disposed of the Applicant’s property, never facilitated him with consular
assistance and did not investigate several pieces of core evidence,
which could have led to other suspects besides him.
27. The Respondent State further alleges that by asking this Court
to quash the conviction, set aside the sentence and set him at liberty,
the Applicant is seeking to have the decision of the Court of Appeal of

Tanzania overturned. According to the Respondent State, by examining
these allegations, this Court would usurp the prerogative of the Court
of Appeal, which duly concluded and finalised matters of evidence.
28. In his Reply, the Applicant contends that this Court is competent
to deal with the matter as provided by relevant provisions of the Charter,
the Protocol and case law of the Court.
29. At the public hearing, the Applicant reiterated the arguments
made in his written pleadings on all aspects of jurisdiction. In response
to the Respondent State’s oral pleadings, the Applicant submitted
that the Court is not being asked to act as an appellate court but
to adjudicate on the fairness of the judicial process in light of the
rights guaranteed in the Charter. In support of that submission, the
Applicant referred to previous judgments of the Court including in the
cases of Alex Thomas,1 Frank Omary,2 and Kijiji Isiaga3 involving the
Respondent State.
30. On its part, the Intervening State submits that “the Court has
prima facie jurisdiction to deal with the Application” given that the
Respondent State ratified the Charter, and the Protocol, deposited the
required declaration and the Applicant alleges the violation of rights
protected by various instruments to which the Respondent State is a
party.
i. Objection based on the allegation that the Court is

being called to act as a court of first instance
31. The Court is of the view, with respect to whether it is called to act
as a court of first instance, that, by virtue of Article 3 of the Protocol, it
has material jurisdiction so long as “the Application alleges violations of
provisions of international instruments to which the Respondent State
is a party”.4 In the instant matter, the Applicant alleges violations of
rights guaranteed in the Charter.
32. The Court therefore dismisses the Respondent State’s objection
on this point.

of Tanzania (hereinafter referred to as “Alex Thomas v Tanzania”).
2 Application No. 001/2012. Judgment of 03/06/16, Frank David Omary and Others
v United Republic of Tanzania.
3 Application No. 032/2015. Judgment of 21/03/18, Kijiji Isiaga v United Republic of
Tanzania.
4 See Application No. 006/2015. Judgment of 23/03/18, Nguza Viking (Babu Seya)
and Johnson Nguza (Papi Kocha) v United Republic of Tanzania (hereinafter
referred to as “Nguza Viking and Johnson Nguza v Tanzania”), para 36.
ii. Objection based on the allegation that the Court is

being called to assume appellate jurisdiction
33. Regarding the question whether it would be exercising appellate

jurisdiction by examining certain claims, which the Court of Appeal of
Tanzania had already determined, this Court reiterates its position that
it is not an appellate court with respect to decisions of national courts.5
However, as it has previously held in the case of Mohamed Abubakari
v United Republic of Tanzania, the Court restates that the fact that it
is not an appellate court vis-à-vis domestic courts does not preclude
it from assessing whether domestic proceedings were conducted in
accordance with international standards set out in the Charter and
other international human rights instruments ratified by the State
concerned.6 In the present case, the Applicant alleges the violation of
his rights guaranteed in the Charter, which is a human rights instrument
duly ratified by the Respondent State as earlier recalled.
34. In light of the above, the Court dismisses the Respondent State’s
objection on this point.
B. Material jurisdiction regarding the alleged violation of

the right to consular assistance
right to consular assistance provided for under Article 36(1)(b) and (c)
of the Vienna Convention on Consular Relations (hereinafter referred
to as “the VCCR”) adopted on 22 April 1963. The Applicant specifically
avers that, as a consequence, the Respondent State violated his right
to a fair trial and, in particular, the rights to be assisted by an interpreter
and to be represented by a lawyer.
36. Although the Respondent State did not raise an objection in
relation to this point, the Court has to make a determination on whether
it has jurisdiction to examine this allegation.
37. The Court notes in that respect that Article 36(1) of the VCCR to
which the Respondent State became a party on 18 April 1977 provides
5 See Application No. 001/2013. Decision of 15/03/13, Ernest Francis Mtingwi v

Republic of Malawi, para 14; Alex Thomas v Tanzania, paras 60-65; and Nguza
Viking and Johnson Nguza v Tanzania, op. cit., para 35.
6 See for instance, Application No. 007/2013. Judgment of 03/06/2016, Mohamed
Abubakari v United Republic of Tanzania (hereinafter referred to as “Mohamed
Abubakari v Tanzania”), para 29; and Application No. 003/2012. Judgment of
28/03/14, Peter Joseph Chacha v United Republic of Tanzania, para 114.
for consular assistance.7 As reflected in the said provision, consular

assistance touches on certain privileges whose purpose is to facilitate
the enjoyment by individuals of their fair trial rights including the right to
be assisted by an interpreter and a lawyer, which the Applicant alleges
was violated in the present Application.
38. Given that the said right is also guaranteed under Article 7(1)(c)
of the Charter read jointly with Article 14 of the International Covenant
on Civil and Political Rights (hereinafter referred to as “the ICCPR”)8
to which the Respondent State became a party on 11 June 1976, the
Court has jurisdiction to examine the Applicant’s allegation based on
the above mentioned provision of the Charter.
C. Other aspects of jurisdiction
39. Considering that there is no indication on the record that it is not

competent with respect to other aspects of jurisdiction, the Court holds
that:
i. It has personal jurisdiction given that, as ascertained
earlier, the Respondent State became a party to the
Protocol and deposited the required declaration.
ii. It has temporal jurisdiction as the alleged violations
occurred from 2010 and were continuing at the time
the Application was filed in 2015, which is after the
Respondent State became a party to the Protocol and
deposited the declaration.
iii. It has territorial jurisdiction given that the alleged facts
occurred within the territory of the Respondent State.”
7 Article 36(1) reads as follows:

“1. With a view to facilitating the exercise of consular functions relating to nationals of
the sending State:
(a) consular officers shall be free to communicate with nationals of the sending State
and to have access to them. Nationals of the sending State shall have the same
freedom with respect to communication with and access to consular officers of the
sending State;
(b) if he so requests, the competent authorities of the receiving State shall, without
delay, inform the consular post of the sending State if, within its consular district, a
national of that State is arrested or committed to prison or to custody pending trial
or is detained in any other manner. …;
(c) consular officers shall have the right to visit a national of the sending State who is in
prison, custody or detention, to converse and correspond with him and to arrange
for his legal representation. …”
8 See Mohamed Abubakari v Tanzania, op.cit., paras 137-138. See also, Application
No. 012/2015. Judgment of 22/03/18, Anudo Ochieng Anudo v United Republic of
Tanzania, paras 110-111.
40. In light of the foregoing, the Court finds that it has jurisdiction to
hear this Application.
accordance with Articles 50 and 56 of the Charter, and 40 of these
Rules”.
"1. Disclose the identity of the Applicant notwithstanding the latter’s

mass media;
Nations, the Constitutive Act of the African Union the provisions
43. While the Parties do not dispute that some of the abovementioned
requirements have been met, the Respondent State raises three
objections relating respectively to the exhaustion of local remedies,
the filing of the Application within a reasonable time and the late
submission of the claim that the Applicant’s detention was unfairly
prolonged without charges being preferred.

Parties

remedies
44. The Respondent State avers that the Applicant did not exhaust
local remedies with respect to the allegation that he was not accorded
an interpreter during his interrogation by police. According to the
Respondent State, while he could have done so, the Applicant did not
raise this matter either for a trial within the trial, as a ground of appeal or
as a basic rights enforcement claim during the trial as provided under
the Basic Rights and Duties Enforcement Act. The Respondent State
asserts that the basic rights enforcement remedy similarly applies to
the Applicant’s claim that his right to property was violated.
45. In its oral submissions, the Respondent State reiterated its
written observations on the abovementioned issues and further
contended that the Applicant could have raised before domestic courts
his allegations concerning the defective statement taken by the police,
key evidence that was not pursued and the lack of consular assistance.
46. It is also the Respondent State’s contention that the review
process initiated by the Applicant is evidence that he understood
the said process as an available remedy, which he left pending and
thus has not exhausted. During the hearing, the Respondent State
stressed that the Applicant understood that the review process applied
in his case and informed the Court that the hearing of the Applicant’s
application for review was scheduled for 18 July 2018.
47. In his Reply, the Applicant argues that “the failure to challenge the
legality of any of the legal processes that took place in the first instance
cannot be interpreted as resulting in the extinction of the Applicant’s
right to contest the said legality”. The Applicant further contends that
the provision for filing a basic rights enforcement action with respect to
property does not in itself mean that the laws are observed. In support
of that contention, he states that his arrest, followed by a lengthy trial
process and lack of measures by the Respondent State to preserve his
property, resulted in the loss of the said property.
48. In response to the Respondent State’s contention that the review
process is pending, the Applicant asserts that it is an extraordinary
remedy, which, even if sought, would not change the fact that the Court
of Appeal is the highest court of the land. The Applicant reiterated these
arguments during his oral submissions.
49. The Intervening State submits that the Application meets the
requirement of Article 56(5) of the Charter because the Court has
consistently ruled that the review process is an extraordinary remedy,

which does not have to be exhausted.
50. The Court considers, with respect to whether it is asked to act
as a court of first instance, that as it has held in the earlier mentioned
case of Alex Thomas v Tanzania, the rights whose violation is alleged
are part of a “bundle of rights and guarantees”. As such, the domestic
authorities had ample opportunity to address the related allegations
even if they were not raised expressly by the Applicant during the
proceedings that resulted in his conviction. In these circumstances,
domestic remedies must be considered to have been exhausted.9
51. With respect to whether the Applicant should have completed
the review process prior to filing the present Application, this Court
has consistently held that, as it applies in the judicial system of the
Respondent State, such process is an extraordinary remedy. It is
therefore not a remedy that the Applicant is required to exhaust in the
meaning of Article 56(5) of the Charter.10
52. As a consequence of the above, the Court dismisses the
Respondent State’s objections that the Applicant failed to exhaust local
remedies by raising some issues for the first time before this Court and
not awaiting completion of the review process before filing the present
Application. The Court therefore finds that local remedies have been
exhausted.
ii. Objection based on the failure to file the Application

within a reasonable time
53. The Respondent State avers that this Application was filed
eleven (11) months after exhaustion local remedies, which is not
reasonable as per the decision of Majuru v Zimbabwe11 where the
African Commission applied the six-month standard of the European
and Inter-American human rights conventions. The Respondent State
reiterated this argument during the public hearing.
54. The Applicant does not address this issue specifically in his
written submissions. In his oral submissions, the Applicant avers that
the period of eleven (11) months should be considered as a reasonable
time if assessed by the Court’s approach, which is to deal with the issue
9 See Alex Thomas v Tanzania, op. cit., paras 60-65; and Application 003/2015.
Judgment of 28/09/2017, Kennedy Owino Onyachi and Charles John Mwanini
Njoka v United Republic of Tanzania (hereinafter referred to as “Kennedy Owino
Onyachi and Charles John Mwanini Njoka v Tanzania”), para. 54.
10 See Alex Thomas v Tanzania, ibid; and Kennedy Owino Onyachi and Charles John
Mwanini Njoka v Tanzania, op. cit., para 56.
11 Michael Majuru v Zimbabwe (2008) AHRLR 146 (ACHPR 2008).
on a case-by-case basis. He further contends that, even though it is an

extraordinary remedy, the Court should consider the fact that he tried
to have the Court of Appeal’s judgment reviewed. Finally, the Applicant
avers that the fact that the Respondent State took a year to respond
to the Application makes it inequitable to consider unreasonable the
period of eleven (11) months within which the present Application was
filed.
55. In its established case law, this Court has adopted a case-by-
case approach to assessing the reasonableness of the time within
which an Application is filed.12 The Court notes that the Applicant filed
the present Application on 6 January 2015 after the Court of Appeal
delivered its judgment on 28 January 2014. The issue for determination
is whether the period of eleven (11) months and nine (9) days that
elapsed between the two events is reasonable.
56. This Court notes that, following the judgment of the Court of
Appeal, the Applicant tried to have that judgment reviewed. In the
Court’s view, he was therefore at liberty to wait for some time before
submitting the present Application. As the Court held in the case of
Nguza Viking and Johnson Nguza v Tanzania, even if the review
process is an extraordinary remedy, the time spent by the Applicant in
attempting to exhaust the said remedy should be taken into account
while assessing reasonableness within the meaning of Article 56(6) of
the Charter.13 As such, the time during which the Applicant attempted
to have the Court of Appeal’s judgment reviewed before filing this
Application cannot be said to be unreasonable.
57. The Court therefore finds that the Application was filed within a
reasonable time. As a consequence, the Respondent State’s objection
is dismissed.
iii. Objection based on the late submission of the claim

related to the unfairly prolonged detention without charges
preferred
58. In its submissions on reparations, the Respondent State

disputes the Applicant’s claim of being detained for a long period
of time without charges being preferred and being detained unfairly
for two (2) years without proceedings. According to the Respondent
State, the Court should not consider this claim while dealing with the
12 See Application No. 013/2011. Preliminary Ruling of 28/06/2013, Norbert Zongo

and Others v Burkina Faso, para 121; and Alex Thomas v Tanzania, op. cit., paras
73-74.
13 See Nguza Viking and Johnson Nguza v Tanzania, para 61.
reparations because it was not raised in the pleadings or argued during

the public hearing.
59. The Court refers to the Applicant’s Reply dated 16 May 2016,
where the allegation of prolonged detention without charges is made
as an additional claim on the merits.14 This Reply was served on the
representatives of Respondent State on 10 June 2016 by United Parcel
Services Courier No. 2422. The Court further refers to the verbatim
record of the public hearing held in this matter on 10 May 2018 where
the Applicant submitted at length on this claim.15 The Respondent State
did not respond to or challenge the abovementioned submissions
while it had the opportunity to do so prior to the hearing and also while
addressing the Court during the hearing.16
60. In light of the above, the Court dismisses the Respondent State’s
objection on this point.

the Parties
61. The Court notes that the conditions set out in Article 56 sub-
Articles (1), (2), (3), (4) and (7) of the Charter regarding the identity
of the Applicant, compatibility of the Application with the Constitutive
Act of the African Union, the language used in the Application, the
nature of evidence adduced, and the previous settlement of the case
respectively are not in contention.
62. The Court further notes that the pleadings do not indicate that
these conditions have not been met and therefore holds that the
Application meets the requirements set out under those provisions.
63. As a consequence of the foregoing, the Court finds that the
Application fulfils all the requirements set out under Article 56 of the
Charter and accordingly declares the same admissible.
VII. Merits
rights to a fair trial, consular assistance, property as well as his right not
to be subjected to inhuman and degrading treatment. He also alleges
14 See Applicant’s Reply, page 10, para 32.

15 See Verbatim Record of the African Court on Human and Peoples’ Rights,
Application No. 001/2015 Armand Guehi v United Republic of Tanzania (10 May
2018) pages 1640 to 1638. The Record was served on the Respondent State by a
notice dated 22 May 2018.
16 See Verbatim Record, page 1632 and 1630 where the Respondent listed the
issues to address the Court on, and those being raised for the first time.
that he suffered mental anguish.
A. Alleged violation of the right to a fair trial
i. The right to defence
65. The Court notes that some of the violations of fair trial rights
alleged in the present Application relate to the right to defence. These
are the alleged violations of the right to be assisted by an interpreter,
the right to have access to a lawyer and the right to consular assistance.
The relevant provision of the Charter with respect to the said rights is
Article 7(1)(c), which provides that everyone has “The right to defence
including the right to be defended by counsel of his choice”.
a. The right to be assisted by an interpreter
66. The Applicant alleges that the Respondent State did not provide
him with an interpreter during his interview by the police where he
made a statement, which was later used against him during the trial.
He asserts that the lack of language assistance at a time he could only
properly speak and understand French undermined his right to a fair
trial.
67. The Applicant also avers that he expressed his language
limitations to the court and requested an interpreter during the
committal proceedings, which were conducted in a language he did
not understand. He further contends that his failure to repeatedly point
this out does not mean that the violation should be overlooked given
that the Respondent State had an obligation to provide language
assistance at all stages due to the gravity of the offence and the nature
of the sentence he faced.
68. During the public hearing, Counsel for the Applicant reiterated
these arguments and further submitted that the fact that the Applicant
was able to follow part of the proceedings and pleaded not guilty did not
mean that he understood English in a way that relieved the Respondent
State from its obligation to provide an interpreter. Counsel averred that,
had the Applicant been afforded language assistance in the four hours
following his arrest, “he would not be in the situation he is in today” as
he would have understood the reason for being detained, the extent
of the accusations he was facing including their gravity, the existence
of his right to have access to a lawyer of his choice to assist him in
preparing his defence and the consequences of giving a statement to
authorities that could later on be used against him.
69. The Applicant also claims to have raised the issue of his
statement being tampered with because he noticed the statement

produced in court had fewer pages than the one he made.
70. It is the Respondent State’s contention that the Applicant was
“duly conversant” in the English language and that he never raised his
language limitations. The Respondent State asserts that the Applicant
faced a language barrier only during the trial when witnesses testified
in Kiswahili and he was provided with an interpreter.
71. According to the Respondent State, the Applicant was
represented at the preliminary hearing and his lawyer should have
informed the court if the Applicant had been unable to understand the
proceedings.
72. The Respondent State avers that an interpreter was not required
during the committal proceedings or during the preliminary hearing
because they were conducted in English, which the Applicant never
indicated he did not understand. The Respondent State submits that,
during the committal proceedings, the accused person is not required
to make a plea, but the charges are only read over and explained
to him. The Respondent State stresses that the actual plea is made
during the preliminary hearing and that, in the instant case, the record
of proceedings shows on pages 1 and 2 that the Applicant’s lawyer
was then present, the charge of murder was read over, and he pleaded
guilty without raising any issue to the court. The Respondent State
adds that documents of the hearing were served on the Applicant and
his Counsel who accepted some and rejected others, did not raise any
issue with the conditions in which the statement was given, and even
signed the memorandum of undisputed facts. In its oral submissions,
the Respondent State reiterated and elaborated the same arguments
advanced in the written pleadings.
73. The Court notes that, even though Article 7(1)(c) of the Charter
referred to earlier does not expressly provide for the right to be assisted
by an interpreter, it may be interpreted in the light of Article 14(3)(a) of
the ICCPR, which provides that “… everyone shall be entitled to … (a)
be promptly informed and in detail in a language which he understands
of the nature and cause of the charge against him; and (f) to have the
free assistance of an interpreter if he cannot understand or speak the
language used in court”. It is evident from a joint reading of the two
provisions that every accused person has the right to an interpreter.
74. The Respondent State does not dispute the fact that the
Applicant was not assisted by an interpreter during the police interview
and committal proceedings which were both conducted in English.
The fact being disputed is whether the Applicant understood English
at the time of these processes and if the fact that he was not provided
an interpreter affected his right to a fair trial at the above-mentioned
stages of the process.
75. The Court considers that the Applicant’s ability to communicate

in English should be assessed against his behaviour and the purpose
of each of the processes referred to. The Applicant does not dispute
the fact that the purpose of being assisted by an interpreter during
the police interview, committal proceedings and preliminary hearing
is to understand the charges being brought against him and be able
to plead and take part in the process accordingly. The Court is of the
view that, at such stages of the proceedings, the said purpose does not
require one to have an outstanding mastery of the English language.
76. In that respect, the Court first notes that the Applicant himself
indicates in his statement given to the police in the English language
that, at the time of arrest, he had been an intern at the ICTR for over a
year. Secondly, the statement reveals that the Applicant was expressly
told that he was being interrogated in relation to the murder of his wife.
To that effect, he gave a statement of over fifteen (15) pages in English
in which he expressly responded that he understood the purpose of
the interrogation and did not need the assistance of anyone to give it.
He also read through the statement, confirmed the contents thereof
and signed it. Finally, on several occasions, during the committal
proceedings and the preliminary hearing, the Applicant who was then
assisted by a lawyer, was read over the same charges, pleaded guilty,
did not raise any issue regarding his statement and signed the outcome
of the processes together with his lawyer after these were served on
them.
77. Against these undisputed facts, the reasonable conclusion is
that the Applicant had the minimum understanding required to make
decisions on whether and how he should participate in the proceedings
and possibly object to any part thereof. This Court is of the view that
by not objecting, the Applicant understood the processes and agreed
to the manner in which they were being conducted. The Applicant did
not point to any part of the proceedings where he expressly objected
and demanded the presence of an interpreter. During the trial, he only
pointed to the fact that the statement had eleven (11) pages instead of
five (5). However, the Applicant in the same paragraph stated that he
recognised the statement as his and signed it.17
78. In light of the above, the Court finds that the lack of provision
of an interpreter during the concerned proceedings did not affect the
Applicant’s ability to defend himself.
79. The Court consequently dismisses the allegation of violation of
Article 7(1)(c) of the Charter with regard to the right to be assisted by
17 See Record of Proceedings, High Court of Tanzania at Moshi, Criminal Case No.
40 of 2007, page 129, lines 20 to 24.
an interpreter.
b. The right to have access to a lawyer
80. The Applicant claims that he was not provided with a lawyer
during the recording of his police statement even though he requested
one. This position was reiterated during the public hearing and the
Applicant averred that he was detained for nine (9) days before being
informed of his right to a lawyer of his choice, this being contrary to
81. Without challenging the Applicant’s allegation that he was not
allowed to communicate with a lawyer during the police interview, the
Respondent State avers that, under Section 54(1) and (2) of its Criminal
Procedure Act, “upon request by a person who is under restraint”, the
police should facilitate “communication with a lawyer, a relative or
friend of his choice”. However, such request may be refused regarding
a relative or friend if the police “believes on reasonable grounds that it
is necessary to prevent the person under restraint from communicating
… for the purpose of preventing the escape of an accomplice … or the
loss, destruction or fabrication of evidence relating to the offence”.18
82. In its oral submissions, the Respondent State asserts that the
Applicant was presented with the opportunity to be represented by a
lawyer.
83. The Intervening State contends that persons facing criminal
charges must be provided legal assistance at all times during the
proceedings, including at the first interrogation, and failure to do so
violates the right to a fair trial. The Intervening State supports its
contention by referring to the judgment of the European Court of
Human Rights in the matter of Abdulgafur Batmaz v Turkey.19
84. The Court recalls, with respect to whether the Applicant was
allowed to communicate with a lawyer, that, generally, access to a
lawyer is a fundamental right especially in a case where a person is
accused of murder and faces the death sentence.20
85. The Court refers to the facts as earlier established regarding the
allegation that language assistance was not provided during the police
interrogation. According to these facts, the Applicant did not demand
the assistance of a lawyer before or while giving his statement despite
the fact that the police asked him whether he wished to do so in the
18 Criminal Procedure Act [CAP 20 RE 2002], Section 54(1) and (2).

19 Abdulgafur Batmaz v Turkey, Application No. 44023/09 Judgment (Merits and Just
Satisfaction) ECHR (24 May 2016).
20 Mohamed Abubakari v Tanzania, op. cit., para 121.
presence of any person of his choice. Furthermore, the record of the

proceedings in the High Court shows that the Applicant acknowledged
meeting with a lawyer on 6 October 2005, which was the day of his
arrest and this meeting was before he gave his statement. He also
requested and was given a phone and spoke to a lawyer.21
86. As a consequence, the Court dismisses the allegation of violation
of Article 7(1)(c) of the Charter with respect to the right to have access
to a lawyer.
c. The right to consular assistance
87. The Applicant alleges that the Respondent State did not facilitate
consular assistance, which he avers should not be confused with legal
assistance.
88. In response to the Court’s enquiry into the kind of assistance
he expected, the Applicant referred to Article 36(1)(b) and (c) of the
VCCR as quoted earlier, and avers that once he requested consular
assistance, it was the Respondent State’s obligation to ensure he was
granted the same, timely and effectively. He alleges that the failure
to do so constituted an infringement of his right to a fair trial. It is
the Applicant’s contention that, had the Respondent State provided
consular assistance, he would have had the opportunity to insist on
access to an interpreter and legal representation.
89. The Applicant reiterates these arguments in his oral submissions
and further contends that the VCCR is customary international law and
that it is therefore irrelevant that the Intervening State, the Republic of
Côte d’Ivoire, is not a party to it. According to the Applicant, accessing
consular assistance was critical given the charges he faced and the
fact that he was not conversant with the Respondent State’s judicial
system.
90. In its response, the Respondent State asserts that the Applicant
had access to counsel during his preliminary hearing, trial and appeal.
91. During the public hearing, the Respondent State averred that it
was not under the obligation to provide consular assistance given that it
does not have any agreement with the Applicant’s state of origin, which
is Côte d’Ivoire, to that effect. It is the Respondent State’s contention
that there was no sending state as provided under Article 36 of the
VCCR since the Applicant resided in Tanzania under his wife’s consular
protection as granted by the ICTR. The Respondent State considers
that, as such, it did not have an obligation to inform Côte d’Ivoire of the
21 See Record of Proceedings, High Court of Tanzania at Moshi, Criminal Case No

40 of 2007, page 134.
Applicant’s arrest as doing so was the ICTR’s responsibility.

92. The Intervening State submits that, based on its connection with
the Applicant as one of its nationals, it is entitled to ensure that his
fair trial rights are respected. It alleges that the Respondent State had
the duty to guarantee the conditions for a fair and equitable trial and
facilitate consular assistance.
93. The Amici Curiae submit that, in accordance with the VCCR
and various international human rights instruments, the right to
consular notification is of the utmost importance in cases were foreign
nationals face the death penalty, and that related fair trial rights must
be afforded without delay. The Amici refer to the concurring opinion of
Judge Sergio Ramirez in the Inter-American Court of Human Right’s
decision interpreting the scope of Article 36 of the VCCR,22 to the
Mexican Supreme Court’s decision in the case of Florence Cassez23 to
highlight the difficulties that foreign nationals face both from language
and cultural standpoints. They also refer to decisions of the United
States Court of Appeals for the 7th Circuit,24 the High Court of Malawi25
and the Supreme Federal Court of Brazil26 which have all stressed the
fundamental character of consular notification and the enjoyment of
related fair trial rights.
94. According to the Amici, the failure to respect the consular rights
of a capital sentence defendant makes any subsequent execution an
arbitrary deprivation of life that is contrary to Article 4 of the Charter. To
that effect they refer to the African Commission’s General Comment on
the right to life.27 The Amici aver that such violation requires substantial
remedies notwithstanding the failure to raise that issue during the trial.28
95. The Court notes that, as it is stated in his own submissions
and those of the Intervening State, the Applicant’s claim is that the
lack of consular assistance provided under Article 36(1) of the VCCR
22 Advisory Opinion CC – 16/99 IACHR (1 October 1999) ‘The right to information on

consular assistance in the framework of the guarantees of the due process of law’.
23 Amparo Directo en Revision 517/ 2011 Florence Marie Cassez Crepin, Pleno de la
Suprema Corte de Justicia, pages 20-22.
24 Osagiede v United States.
25 High Court of Malawi, Sentence rehearing Case No 25 of 2017 (23 June 2017):
The Republic v Lameck Bendawe Phiri.
26 S.T.F., Ext. No. 954, Relator: Joaquim Barbosa, 17.05.2005; 98 DIARIO DA
JUSTICIA 24.05.2005 §para 75.
27 Other cases cited to that effect are: Mansaraj and Others v Sierra Leone,
International Pen and Others (on behalf of Saro-Wiwa) v Nigeria, Yasseen &
Thomas v Guyana.
28 Avena and Other Mexican Nationals. (Mexico v United States of America),
Judgment, I.C.J. Reports 2004, p. 12, 121.
deprived him of the possibility to enjoy assistance from his country with
respect to the protection of his fair trial rights. The Court further notes
the Applicant specifically mentioned the rights to be assisted by an
interpreter and a lawyer.
96. As this Court has found earlier, these rights accruing from the
provision of Article 36(1) of the VCCR are also protected under Article
7(1)(c) of the Charter. Having also concluded that the related claims
made under Article 7(1)(c) of the Charter are unfounded, the Court
does not find it necessary to examine the same under the VCCR.
ii. The allegation that the investigation was improper and

insufficient
97. The Applicant claims that the Respondent State did not ensure a
“proper, fair, professional and diligent investigation of the matter” given
especially that “core evidence” that could have led to other potential
suspects were not investigated or were destroyed. He alleges that if
the evidence referred to had been presented in court it would have
proved that he did not commit the crime.
98. It is also the Applicant’s contention that two other bodies had
previously been discovered at the same place where his wife’s body
was found, but there was no investigation into whether there was a
connection between the three (3) victims, which could have raised a
reasonable doubt as to his involvement.
99. The Applicant further avers that extraneous evidence was used
to convict him, such as evidence that he had previously beaten his
wife and that he was allegedly having an extra marital affair. He also
claims that emails allegedly between him and his lover were admitted
as evidence, despite the fact that no investigation was conducted to
verify their origin and the Applicant denied being the author.
100. In his Reply, the Applicant alleges that the Respondent State failed
to investigate several contradictions. First, the Applicant avers that he
was convicted on only circumstantial evidence as the Respondent State
failed to find evidence directly linking him to the crime. Second, he claims
that no investigation was conducted on the deceased’s car from which the
police did not take fingerprints because they were convinced of his guilt
since he had been seen driving it and he was the last person to drive it.
101. Finally, the Applicant alleges that, due to the fact that he was not
represented by a lawyer at the time he gave his statement to the police,
the said statement was manipulated and used against him during the
trial. He further alleges that the fact that the judgment of the High Court
did not expressly refer to the statement does not mean it was not used
against him.
102. The Respondent State disputes these allegations and avers that
the murder was well investigated in accordance with the provisions of

the Criminal Procedure Act. The Respondent State also claims that the
allegations are vague and do not specify what “core evidence” could
have been pursued during the investigation.
103. During the public hearing, the Respondent State concurred that
the Applicant was convicted on the basis of circumstantial evidence
but stated that such practice is common in several jurisdictions and
deemed as reliable as other types of evidence.
104. With regard to the statement, the Respondent State alleges
that the Applicant agreed to and signed the same, which he never
challenged during the trial or before the Court of Appeal at which point
he was represented by a lawyer. The Respondent State also avers that
this claim is immaterial since the statement was never relied on by the
trial Judge.
105. The Court considers, with respect to whether the investigation
was properly conducted regarding evidence relied on, that, as it has
held in the case of Mohamed Abubakari v Tanzania, “ … the imposition
of a sentence in a criminal offence, and in particular a heavy prison
sentence, should be based on strong and credible evidence”.29
106. The Court is of the view that as long as evidence was properly
received and considered, the proceedings and decisions of domestic
courts cannot be seen as encroaching upon fair trial rights. In the
instant matter, the Applicant’s allegation in relation to “core evidence”
and “extraneous evidence” was considered by the Court of Appeal and
dismissed. In such circumstances, it cannot be said that the conviction
and sentencing were based on an improper investigation especially
where the prosecution proved its case beyond reasonable doubt.
107. Regarding whether the conviction was properly arrived at
based solely on circumstantial evidence, the Court first notes that, as
records of the domestic proceedings show, both the High Court and
Court of Appeal considered a wide range of circumstantial evidence
to which they applied both the law and extensive case law on the
use of circumstantial evidence. Furthermore, both courts examined
the Applicant’s alibi and defence and arrived at the conclusion that
the prosecution proved its case beyond reasonable doubt.30 More
particularly, it is evident from the Court of Appeal’s judgment that it
undertook a thorough case law-based analysis of conditions in which
reliance on circumstantial evidence should apply generally31 and in
29 Mohamed Abubakari v Tanzania, paras 174, 193 and 194.

30 Criminal Case 40 of 2007. Judgment of the High Court, 30 March 2010, pages 14-
26; and Judgment of the Court of Appeal, 28 January 2014, pages 16-33.
31 See Judgment of the Court of Appeal, pages 16-19.
cases similar to that of the Applicant in the instant matter.32

108. As to whether domestic courts properly arrived at the conviction
by ignoring contradictions as well as other evidence, this Court notes
that the Court of Appeal considered all the contradictions raised by the
Applicant, including those alleged before this Court, and reached the
conclusion that they did not affect the credibility of the prosecution’s
case.33 It is important to note that, where it decided not to undertake a
thorough consideration of issues raised by Counsel for the Applicant
because they were deemed immaterial or had been considered, the
Court of Appeal provided reasons for doing so including applicable case
law.34 These are the grounds on which the Court of Appeal concluded
that the High Court properly arrived at its finding.35
109. Turning to the claim that his statement was tampered with and
used against him during the trial, the Court notes that the Applicant
raised the issue of pages being added. He also raised the use of the
statement as a ground of appeal. However, in the Court’s view, the
determining factor in assessing a breach of due process is whether
the alleged reliance on the Applicant’s statement outweighed other
evidence and considerations.
110. As established earlier, the High Court based its determination
of the matter on a wide range of pieces of evidence. Furthermore, the
Applicant pleaded guilty of the charge on which he was being tried.
Finally, in any event, the Applicant does not adduce any evidence that
the High Court relied on his statement in arriving at the conviction. This
allegation is therefore dismissed.
111. In light of the above, the Court dismisses as unfounded the
allegation of violation of Article 7(1) of the Charter with respect to the
manner in which the investigation was conducted.
iii. The right to presumption of innocence
112. The Applicant claims that his right to presumption of innocence

was “savagely flown” as there was a “presumption of guilt” against
him. He avers in that regard that he had been treated with suspicion
and arrested before there was any evidence that a crime had
been committed and he was handed over to the police before the
investigations were completed.
113. The Applicant also claims that his conviction based solely on

35 See Judgment of the Court of Appeal, page 33.
circumstantial evidence and by ignoring some pieces of evidence and

considering others, violated his right to presumption of innocence.
114. According to the Respondent State, the Applicant fails to
specify or substantiate the manner in which his right to presumption of
innocence was “savagely flown”.
115. Article 7(1)(b) of the Charter provides that everyone has “The
right to be presumed innocent until proven guilty by a competent court
or tribunal”.
116. The Court notes that, in the instant case, the Applicant inferred
“presumption of guilt” from the allegation that his trial was not conducted
in a proper and professional manner. The Court further notes that this
allegation has been considered earlier while examining the Applicant’s
claim that the investigation was improper and insufficient. The finding
made earlier applies to the allegation of “presumption of guilt”.
117. With respect to the allegation that he was treated with suspicion,
the Court notes that the Applicant does not adduce any evidence to
support the claim. Regarding the allegation that the Applicant was
handed over to the police before investigations were completed, the
Court is of the view that in certain circumstances, including where a
person is being accused of committing murder, movement may be
restricted once investigations are commenced. These are generally
known as measures that are implemented to either protect the suspect,
prevent him or her from tampering with vital evidence or escaping. The
Court however recalls that, in such cases, the restriction imposed must
always be done under the law, which the Applicant does not challenge
in the instant case.
118. As a consequence of the foregoing, the Court dismisses the
allegation of violation of the right to be presumed innocent protected
under Article 7(1)(b) of the Charter.
iv. The right to be tried within a reasonable time
119. The Applicant alleges that he was convicted in 2010 after being
arrested in October 2005 and that this undue delay infringed his right to
be tried within a reasonable time. In his oral submissions, the Applicant
avers that the process of nolle prosequi entered by the State Attorney,
on account of mistakes in terms of procedure, almost two (2) years
after he was first charged violates his right to be tried without undue
delay.
120. The Respondent State does not address this allegation in its
written pleadings and did not respond to the submissions made by the
Applicant on the same issue during the public hearing.
121. The Court notes that, as provided under Article 7(1)(d) of the
Charter, every individual has the right “to be tried within a reasonable
time by an impartial court or tribunal”.

122. In its case law on the right to have one’s cause heard within a
reasonable time, this Court has taken into account the length of the
domestic proceedings and imposed an obligation of due diligence on
the Respondent State.36 The Court has also held that the complexity of
the case and the situation of the Applicant must be brought to bear in
assessing whether the time being considered is reasonable.37
123. In the instant matter, the Court notes that, the Applicant was
first charged on 18 October 2005. He was then charged afresh on 24
August 2007 after the State Attorney entered a nolle prosequi on the
ground that there had been a mistake in procedure.38 The Applicant
had thus remained in custody for one (1) year, ten (10) months and six
(6) days.
124. The Court notes that the fact that the Respondent State is
responsible for the delay is not in dispute. The Court is of the view that in
circumstances where the Applicant was in custody and did not impede
the process, the Respondent State bore an obligation to ensure that
the matter was handled with due diligence and expeditiously. Moreover,
the delay was not caused by the complexity of the case. Finally, even
after charging the Applicant afresh, the Respondent State’s courts
adjourned the matter on numerous occasions and it still took from 24
August 2007 to 1 March 2010, that is, about two (2) years and six (6)
months, before the trial actually started. The Applicant was eventually
convicted on 30 March 2010. In view of these considerations, the
length of the proceedings cannot be considered as reasonable.
125. In light of the foregoing, the Court finds that such delay is in
violation of the Applicant’s right to have his cause heard within a
reasonable time as guaranteed under Article 7(1)(d) of the Charter.
B. Alleged violation of the right to dignity
right not to be subjected to inhuman and degrading treatment by
detaining him for ten (10) days in very poor conditions, including being
given little to no food, having to sleep on the floor without blankets
with the same set of clothes, and being deprived of the support of his
36 See Application No. 013/2011. Judgment of 28/03/14 (Merits) Norbert Zongo and
Others v Burkina Faso, para 152; Application No. 006/2013. Judgment of 18/03/16,
Wilfred Onyango Nganyi v United Republic of Tanzania, para 155.
37 See Norbert Zongo v Burkina Faso (Merits), paras 92-97; Alex Thomas v Tanzania,
op. cit., para 104; and Wilfred Onyango Nganyi v Tanzania, ibid.
38 See Applicant’s reply, para 3; and verbatim records of the public hearing, pages
1649 and 1639.
friends and relatives.

127. According to the Applicant he was relentlessly questioned
without being given food or water for long periods of time and food was
only provided to him on two (2) occasions over the course of those ten
(10) days, once by a police officer and on another occasion when he
was allowed to contact his housemaid.
128. While refuting the Applicant’s allegations as vague and general,
the Respondent State contends that they refer to the manner in which
the Applicant was treated when he was in custody of the ICTR. The
Respondent State avers that when he was in police custody, the
Applicant was offered the possibility to have his housemaid bring food.
During the public hearing, the Respondent State submitted that what it
believed should amount to inhuman treatment with respect to a person
in custody would be for instance, not having access to their family or
a lawyer but not “sharing a cell with five other persons, being given a
three-inch mattress to sleep on, and sharing latrines”.
129. Article 5 of the Charter provides that “Every individual shall
have the right to the respect of the dignity inherent in a human being
and to the recognition of his legal status. All forms of exploitation and
degradation of man, particularly slavery, slave trade, torture, cruel,
inhuman or degrading punishment and treatment shall be prohibited.”
130. The Court notes that the allegations being examined relate to
deprivation of food, conditions of detention, and restriction of access to
friends and relatives.
131. The Court further notes that the prohibition of cruel, inhuman
and degrading treatment under Article 5 of the Charter is absolute.39
Furthermore, such treatment can take various forms and a determination
whether the right was breached will depend on the circumstances of
each cause.40
132. In light of the submissions made by the Applicant and the
Respondent State, the Court considers that the determination of the
Applicant’s allegation bears on evidence. In this regard, the Court is of
the view that the ordinary evidentiary rule that who alleges must prove
may not apply rigidly in human rights adjudication. The Court restates
its position in the earlier cited case of Kennedy Owino Onyachi and
Charles John Mwanini Njoka v Tanzania that in circumstances where
the Applicants are in custody and unable to prove their allegations
because the means to verify the same are likely to be in the control of
39 See Huri-Laws v Nigeria Communication 225/98 (2000) AHRLR 273 (ACHPR

2000) para 41.
40 See John Modise v Botswana Communication 97/93 (2000) AHRLR 30 (ACHPR
2000) para 91. With respect specifically to the lack of food, see Moisejevs v Latvia,
No. 64846/01, 80, 15 June 2006.
the State, the burden of proof will shift to the Respondent State as long
as the Applicants make a prima facie case of violation.41
133. The Court notes that, in the instant case, the Applicant adduced
prima facie evidence that he was given food two (2) times only in the
course of ten (10) days, including once by his house maid. While it
does not challenge this assertion, the Respondent State avers that the
Applicant’s statement shows that he was not prevented from receiving
food.
134. In the Court’s view, the Respondent State bore the duty to
provide the Applicant with food so long as he was in its custody. Once
the Applicant adduces prima facie evidence that he was not given food
on a regular basis, the burden shifts to the Respondent State to prove
the contrary. Given that it has not done so in the present circumstances,
this Court finds that the Respondent State violated the Applicant’s right
not to be subjected to inhuman and degrading treatment.
135. With respect to the allegation that the Applicant was left to sleep
on the floor without a blanket and restricted from accessing friends
and relatives, the Court considers that detention conditions necessarily
involve some restrictions of movement, communication and comfort.
Furthermore, the Applicant does not adduce any prima facie evidence
to support his allegation. This allegation is therefore dismissed.
136. In light of the foregoing, the Court finds that the Respondent
State violated the Applicant’s right not to be subjected to inhuman
and degrading treatment protected under Article 5 of the Charter with
respect to deprivation of food.
C. Alleged violation of the right to property
137. The Applicant alleges that after his arrest, the Respondent
State failed to secure his properties left in his house in Arusha and
as a result, agents of the Respondent State arbitrarily disposed of the
said properties. Upon request by this Court, the Applicant provided an
itemised list of all the property with the values. To prove the Respondent
State’s responsibility in securing his properties, the Applicant alleges
that, after his arrest, his son was taken away and the house maid was
asked to leave the house. The house was then placed under the custody
of the police officers and officers of the ICTR Security Department.
138. The Applicant also avers that ICTR officers came to him at
Karanga Prison in Moshi with documents, including two court orders
from Côte d’Ivoire, which they requested him to sign in order to dispose
41 See Kennedy Owino Onyachi and Charles John Mwanini Njoka v Tanzania, op.
cit., paras 142-145.
of the properties. He requested for the presence of a lawyer before

signing and demanded a copy thereof, which the ICTR officers never
provided him.
139. In its Response, the Respondent State claims that the Applicant
did not specify the property in question and did not substantiate the
claim. It avers that during the trial, the Applicant mentioned that he did
not know the whereabouts of his property but did not elaborate as to
what property specifically he referred to.
140. In its oral submissions, the Respondent State contends that,
pursuant to Article 4 of the host agreement between the Government
of the United Republic of Tanzania and the ICTR, and in compliance
with Article 37(1) of the Vienna Convention on Diplomatic Relations,
the Applicant’s wife enjoyed the inviolability of her private residence. It
is the Respondent State’s contention that, as such, it complied with its
related duties by protecting the deceased’s properties and allowing her
employer, the ICTR, to remove them. The Respondent State declared
that the items found in the house at the time of arrest were handed
over to the ICTR in accordance with the applicable protocol on United
Nations’ immunity rules.
141. The Court recalls that, as Article 14 of the Charter provides,
“The right to property shall be guaranteed”. The issue in dispute in the
instant case is that of the Respondent State’s responsibility regarding
the disposal of the Applicant’s property.
142. The Court notes that the fact that police officers of the
Respondent State were put in charge of the Applicant’s house after
arrest is not disputed. However, the Applicant did not challenge the
Respondent State’s contention that it handed over all the items found
in the house to the ICTR as per a standing agreement and in line with
its international obligations as earlier recalled.
143. The Court is of the view that in such circumstances, the
Respondent State’s responsibility is not established regarding the said
properties.
144. As a consequence of the above, the Court dismisses the
allegation of violation of the right to property protected by Article 14 of
the Charter.
D. Allegation that the Applicant suffered mental anguish
145. The Applicant avers that he has suffered a lot of mental anguish
as a result of being first arrested, the charges being dropped and
another case being opened against him.
146. In its oral submissions, the Respondent State avers that, given
that the Applicant’s conviction and sentencing are lawful, the emotional
anguish is the result of his guilt and there should be no finding of
violation in this regard.

147. The Court notes that this claim arises as a consequence of the
delayed proceedings before domestic courts as established earlier.
Having found that the consequential delay led to the violation of the
Applicant’s right to have his cause heard within a reasonable time, the
Court is of the view that the present claim is a request for reparation,
which will be dealt with later on.
E. Alleged violation of Article 1 of the Charter
148. The Applicant does not substantiate his claim that the
Respondent State violated Article 1 of the Charter. The Respondent
State challenges the claim without substantiating its contention.
149. As this Court has consistently held, a determination on whether
Article 1 of the Charter was violated involves an examination not
only of whether the domestic legislative measures taken by the
Respondent State are available but also whether the said measures
were implemented, which is that the relevant object and purpose of
the Charter was attained.42 In the same case, the Court held that if it
finds that any of the rights in the Charter is curtailed, violated or not
achieved, then Article 1 is violated.43
150. Having found that the Respondent State violated Articles 5 and
7(1)(d) of the Charter, the Court also finds a violation of Article 1 of the
Charter.
VIII. Reparations
151. The Applicant requests the Court to order that his liberty be
restored. He also asks the Court to order that damages be paid to him
by the Respondent State for the moral and material loss suffered by
himself and that suffered by his friends and relatives. The Applicant
finally requests for orders on measures of satisfaction, non-repetition
and costs.
152. The Respondent State prays the Court to dismiss all the reliefs
and orders sought by the Applicant for lack of merit or not being
supported with evidence.
153. The Court notes that, as Article 27(1) of the Protocol provides,
“If the Court finds that there has been violation of a human or peoples’
rights it shall make appropriate orders to remedy the violation, including
42 See Alex Thomas v Tanzania, op. cit., para 135; Kennedy Owino Onyachi and
Charles John Mwanini Njoka v Tanzania, op. cit., paras 158 and 159.
43 n42
the payment of fair compensation or reparation”.

154. In this respect, Rule 63 of the Rules provides that “The Court shall
rule on the request for the reparation by the same decision establishing
the violation of a human and peoples’ rights, or if the circumstances so
155. In its case law on reparations, the Court has ruled on “other
reparations” in a separate decision where the Parties have not adduced
sufficient evidence or none for it to do so in the main judgment44 or
where it was necessary to hear the Parties extensively.45
156. The Court notes that written and oral submissions made by the
Parties offer sufficient evidence to adequately consider the claims for
reparation made in this matter. It is therefore in a position to rule on
both the alleged violations as well as all reliefs and other reparations
sought in a single judgment.
157. The Court, in line with its previous judgments on reparations,
considers that for reparations claims to be granted, the Respondent
State should be internationally responsible, the reparation should cover
the full damage suffered, there should be causality and the Applicant
must bear the onus to justify the claims made.46
158. The Court has earlier found that the Respondent State violated
the Applicant’s right not to be subjected to inhuman and degrading
treatment protected under Article 5 of the Charter and his right to be
tried within a reasonable time guaranteed under Article 7(1)(d) of the
Charter.
159. It is against these findings that the Court will consider the
Applicant’s requests for reparation.
A. Order for the Applicant’s conviction to be quashed,

the sentence to be set aside, and for him to be released
160. The Applicant requests the Court that his conviction be quashed,
the sentence set aside and his liberty be restored. He avers that there
are specific and compelling circumstances as to warrant the Court to
order his release. The Applicant asserts that ordering his release is the
44 See Application No. 011/2011. Ruling on Reparations of 13/06/14, Reverend

Christopher R. Mtikila v United Republic of Tanzania, para 124 and Application
No. 011/2015. Judgment of 28/09/17, Christopher Jonas v United Republic of
Tanzania, para 97.
45 See Mohamed Abubakari v Tanzania, op. cit., para 237.
46 See Application No. 013/2011. Judgment on Reparations of 05/06/15, Norbert
Zongo and Others v Burkina Faso, paras 20-31; Application No. 004/2013.
Judgment on Reparations of 03/06/16, Lohé Issa Konaté v Burkina Faso, paras
52-59; and Reverend Christopher R. Mtikila v Tanzania (Reparations), paras 27-
29.
only way that the prejudice suffered could be restored given the fact
that having a re-trial after (thirteen) 13 years would be impossible since
the evidence has been destroyed.
161. The Applicant also urges the Court to take into consideration
the fact that he has been incarcerated for many years without the
support of his friends and family which is vital for a life in prison. He
alleges that his incarceration far from his friends and family increases
the damages that he has endured and will continue to endure as long
as his incarceration continues. It is the Applicant’s contention that his
continued incarceration may only lead to further violations to occur
and not releasing him would have devastating consequences that no
amount of pecuniary damages could remedy.
162. The Respondent State submits that the Applicant should serve
his time for the crime as he was duly sentenced by domestic courts.
The Respondent State further submits that the Applicant did not provide
any specific or compelling circumstance to substantiate his request to
be released and that he is, as such, not entitled to the relief sought
especially because he committed the offence.
163. With respect to the prayer that the conviction be quashed and
the sentence set aside, the Court reiterates its position that it is not an
appellate court as it does not operate within the same judicial system
as national courts; and does not apply the same law.47 This Court
cannot therefore entertain the Applicant’s prayer.
164. Regarding the prayer for release, the Court refers to its
established case law where it held that a measure such as the
release of the Applicant can only be ordered in special or compelling
circumstances.48 The Court is of the view that such circumstances are to
be determined in casu bearing in mind mainly proportionality between
the measure of restoration sought and the extent of the violation
established. Determination must be done with the ultimate purpose
of upholding fairness and preventing double jeopardy.49 As such, the
procedural violation that underpins the request for a particular relief
has to have fundamentally affected domestic processes to warrant
47 See Application No. 027/2015. Judgment of 21/09/18, Minani Evarist v United

Republic of Tanzania, para 81; Mohamed Abuakari v Tanzania, op. cit., 28.
48 See for instance, Alex Thomas v Tanzania, op. cit., para 157.
49 See Application No. 016/216. Judgment of 21/09/18, Diocles Willian v United
Republic of Tanzania, para 101; Minani Evarist v Tanzania, op. cit., para. 82;
Loaysa-Tamayo v Peru, Merits, IACHR Series C No 33, [1997], paras. 83 and 84;
Del Rio Prada v Espagne, 42750/09 – Grand Chamber Judgment, [2013] ECHR
1004, para. 83; Annette Pagnoulle (on behalf of Abdoulaye Mazou) v Cameroun
(2000) AHRLR 57 (ACHPR 1997) operative provisions; and Communication
No. 796/1998, Lloyd Reece v Jamaica, Views under Article 5(4) of the Optional
Protocol, 21 July 2003, U.N. Doc. CCPR/C/78/D/796/1998, para. 9.
such a request.
165. In the case at hand, the violations found by the Court did not
affect the processes which led to the conviction and sentencing of the
Applicant to the extent that he would have been in a different position
had the said violations not occurred. Furthermore, the Applicant
did not sufficiently demonstrate nor did the Court establish that his
conviction and sentencing were based on arbitrary considerations and
his continued incarceration is unlawful.50
166. In light of the facts and circumstances, this prayer is therefore
dismissed.
B. Orders for pecuniary damages
i. Moral damages
167. The Applicant asks the Court to award him damages for the
moral prejudice he suffered as well as for the moral prejudice suffered
by his friends and relatives. The Applicant also claims that he suffered
mental anguish due to being charged twice. He quantifies the prejudice
as follows:
“i. US Dollars Twenty Thousand ($20,000) for the moral
prejudice suffered by the Applicant himself (caused by
long imprisonment following an unfair trial, emotional
anguish during the trial and imprisonment, disruption of
his life plan, loss of social status, lack of contact with his
family based in Côte d’Ivoire, chronic illnesses and poor
health due to lack and failure of treatment; and physical
and psychological abuse);
ii. US Dollars Five Thousand ($5,000) for the moral prejudice
suffered as indirect victims by each of the family members
and friends of the Applicant namely, Mr. Lambert Guehi
(father), Ms. Espérance Houeyes (sister) and Ms.
Elizabeth Mollel Lesitey (friend).”
168. The Applicant also prays the Court to grant him compensation
as a substitute to restitution as he cannot be returned to his situation
before incarceration.
169. With respect to the principle of reparation, the Respondent State
submits that a request for reparation must fulfil three main conditions,
these being, a deliberate or negligent failure of the State to comply with
50 See Minani Evarist v Tanzania, op. cit., para. 82.

its international human rights obligations, a recognised harm suffered

as a result of the failure and a direct injury to the Applicant. Comparing
the present case to that of Norbert Zongo,51 the Respondent State avers
that no reparation should be ordered in the instant matter because
there is no link between the wrongful act and the prejudice suffered, as
agents of the Respondent State were not implicated.
170. The Respondent State also alleges that there is no evidence
of victimhood in this case given that the Applicant is not a victim of
deliberate actions or negligence of the Respondent State. The
Respondent State avers that domestic courts had sufficient evidence
to show that the Applicant was involved in the crime, and his conviction
and detention were as a result of his actions and the operation of
domestic law. According to the Respondent State, such facts cannot
be considered to have led to mental damage, emotional suffering and
loss of earnings.
171. Regarding the victimhood of relatives, the Respondent State
acknowledges the Court’s finding in the Zongo case, but submits that
the finding cannot apply in the instant case because the Applicant
caused the deceased’s death as established by domestic courts; he
is serving a sentence for a crime he committed; and his acts as a
dependent of the deceased among many others have caused the
direct heirs of the deceased including a son to suffer emotionally,
psychologically and financially.
172. With respect to the claims of long imprisonment following an
unfair trial and emotional anguish during trial and imprisonment, the
Respondent State alleges that they should be dismissed since the
domestic processes followed fair trial requirements, and anguish was
as a result of the Applicant’s guilt.
173. On the loss of his life plan, the disruption of his sources of
income and loss of social status, the Respondent State argues that the
Applicant decided to quit his job in Côte d’Ivoire to live as a dependent
of his wife in Tanzania. In the Respondent State’s view, his modest
allowance as an intern at the ICTR could not maintain his upkeep or
social status and he did not therefore have any meaningful source
of income. The Respondent State submits that the Applicant rather
disrupted his own life plan along with his source of income and social
status.
174. Regarding the lack of communication with the Applicant’s family
since his incarceration, the Respondent State submits that it has not
banned any visits and cannot force relatives to visit the Applicant. The
Respondent State avers that it has not denied the Applicant any medical
51 Norbert Zongo and Others v Burkina Faso (Reparations), op. cit.

treatment and shall continue to provide the same where necessary.

175. Concerning the claim of physical and psychological abuse, the
Respondent State alleges that the Applicant was not arrested by its
agents but rather by the ICTR who then handed him over to the police.
According to the Respondent State, the Applicant has failed to prove
any of the abuses alleged.
176. Finally, with respect to the Applicant’s prayers to be compensated
because he could not be returned to his situation before incarceration,
the Respondent State requests the Court to dismiss it since the
incarceration was lawful.
177. As this Court has held in its previous judgments on reparations,
the causal link between the wrongful act and moral damage “can result
from the human rights violation, as a consequence thereof, without a
need to establish causality as such”.52 The Court has also held that
the evaluation of quantum in cases of non-pecuniary damage must
be done in fairness and taking into account the circumstances of the
case.53 The Court adopted the practice of affording lump sums in such
circumstances.54
178. With respect to the request for payment of US Dollars Twenty
Thousand ($20,000) for moral damage suffered by the Applicant, the
Court notes that the claims relating to long imprisonment, emotional
anguish during trial and imprisonment, disruption of life plan, loss of
social status and lack of interaction with his family in Côte d’Ivoire are
based on the alleged unfair trial and sentencing. This Court has earlier
found that the only right of the Applicant which was violated in relation
to fair trial is that to be tried within a reasonable time. The Court has
however concluded that the said violation did not affect the conviction,
sentencing and imprisonment of the Applicant. Regarding other claims,
they are the lawful consequence of the conviction and sentencing of
the Applicant. The reliefs sought cannot therefore be granted as they
are not justified by any violation.
179. The Court notes that the same request for compensation is
based on chronic illnesses and poor health due to lack and failure of
treatment, physical and psychological abuse, and delayed trial. The
Court further notes that the Applicant does not adduce evidence that
the Respondent State denied him medical attention, or its agents
subjected him to abuse. As the Court found earlier, the actions
complained of related to restrictions which are inherent to detention
52 See Norbert Zongo and Others v Burkina Faso (Reparations), op. cit., para 55; and
Lohé Issa Konaté v Burkina Faso (Reparations), para 58.
53 See Norbert Zongo and Others v Burkina Faso (Reparations), op.cit., para. 61.
54 See Norbert Zongo and Others v Burkina Faso (Reparations), op.cit., para. 62.
and imprisonment. The related claims are therefore dismissed.

180. In relation to the same request for compensation in respect of
the alleged inhuman and degrading treatment, this Court has earlier
found that the Respondent State violated the Applicant’s right due
to deprivation of food. Based on the fact that this violation lasted ten
days and on the basis of equity, the Court grants the Applicant moral
damages in the amount of US Dollars Five Hundred ($500).
181. On the compensation claim for delayed proceedings, the Court
earlier found that the Respondent State violated the Applicant’s right
to have his cause heard within a reasonable time. The Respondent
State did not justify the delay of at least one (1) year and ten (10)
months. The Court is of the view that, in the circumstances of this
case where the Applicant was accused of murder and faced the
death sentence, such delay is also likely to have caused anguish. The
prejudice that ensued warrants compensation, which the Court has
discretion to evaluate based on equity. Given the circumstances, the
Court grants the Applicant moral damages in the amount of US Dollars
Two Thousand ($2,000).
182. Regarding the requests for payment of compensation for moral
prejudice suffered by friends and family members as indirect victims, the
Court recalls that victimhood must be established to justify damages.55
Given that the related claims are based on the conviction, sentencing
and incarceration of the Applicant, they do not warrant damages as
earlier found regarding similar claims made for the Applicant himself.
The Court consequently dismisses the claims.
183. Finally, the Applicant requests for payment of damages as
a substitute for restitution as he cannot be returned to the situation
prior to the violations. In light of its previous findings on the Applicant’s
conviction, sentencing and incarceration; and given that the order for
release was denied and relief granted especially with respect to the
delayed proceedings, the Court is of the view that the compensation
sought is not warranted. The claim is consequently dismissed.
ii. Material damages
184. The Applicant asks the Court to grant him the amount of US
Dollars Fifteen Thousand ($15,000) for monetary loss suffered by his
friends and family due to his undue detention (the loss resulting among
others from his family having to sell their cocoa farm to pay a lawyer
and Ms Mollel having suffered from witnessing the Applicant’s injuries
55 See, Norbert Zongo and Others v Burkina Faso (Reparations), op. cit., paras 45-
54.
and pain, and having to incur costs of a flight to Côte d’Ivoire to inform
the Applicant’s family about his situation).
185. The Respondent State submits that there is no proof regarding
the claims of loss due to the sale of a cocoa farm and a trip by Ms
Mollel to Côte d’Ivoire, which are new and fabricated evidence.
186. The Court notes that the claim for US Dollars Fifteen Thousand
($15,000) being the “monetary loss suffered by the Applicant’s friends
and family members due to his undue detention” is not supported by
evidence or justification. The Court further notes that, in any event,
the claim relates to the conviction, sentencing and incarceration of the
Applicant and does not therefore warrant damages as earlier found.
The Court consequently dismisses the request.
iii. Legal fees related to domestic proceedings
187. The Applicant claims the payment of US Dollars Two Thousand

($2,000) for legal fees incurred during proceedings in domestic courts
where he was represented by Maro Advocates in the Court of Appeal
proceedings. The Respondent State prays the Court to reject the claim
as the Applicant was represented by counsel on a pro bono basis both
before the High Court and the Court of Appeal.
188. The Court recalls that, in line with its case law, reparation may
include payment of legal fees and other expenses incurred in the course
of domestic proceedings.56 The Applicant must provide justification for
the amounts claimed.57
189. In the instant case, the Court concluded earlier that the violations
found did not fundamentally affect the conviction and sentencing of the
Applicant. The alleged loss is therefore not justified. Furthermore, the
Applicant does not challenge the Respondent State’s submission that
he was provided free legal representation in the course of domestic
proceedings. In any event, in absence of evidence to support the claim,
the same is dismissed.
C. Other forms of reparation
i. Non-repetition
56 See Norbert Zongo and Others v Burkina Faso (Reparations), op. cit., paras. 79-
93; and Reverend Christopher Mtikila v Tanzania (Reparations), op. cit., para. 39.
57 Norbert Zongo and Others v Burkina Faso (Reparations), para. 81; and Reverend
Mtikila v Tanzania (Reparations), op. cit., para. 40.
190. The Applicant requests the Court to make an order for guarantee
of non-repetition of the violations. The Respondent State prays the
Court to dismiss the claim given that there was no violation to warrant
an order of non-repetition.
191. The Court notes that, while they seek to prevent the commission
of future violations,58 guarantees of non-repetition are generally used
to eradicate structural and systemic human rights violations.59 These
measures are therefore not usually aimed to remedy individual harm
but rather to address the underlying causes of the violation. Having
said that, the Court is of the view that guarantees of non-repetition can
also be relevant, especially in individual cases, where there is evidence
that the violation will not cease or is likely to occur again. Such cases
include when the Respondent State has challenged or not complied
with earlier findings and orders of the Court.60
192. In the instant case, the Court found that the Applicant’s rights
were violated only with respect to his lengthy trial and deprivation of
food for which remedy has been granted. These violations are not
systemic or structural in nature within the circumstances of this case.
Furthermore, there is no evidence that the violations have been or
are likely to be repeated. The Court also notes that, in compliance
with its Order for provisional measures, the Respondent State has not
carried out the execution of the Applicant pending consideration of
the merits of the present Application. The Court is of the view that, in
the circumstances, the order sought is not warranted. The request is
consequently denied.
58 See Norbert Zongo and Others v Burkina Faso (Reparations), op.cit., paras. 103-
106.
59 African Commission on Human and Peoples’ Rights, General Comment No.
4 on the African Charter on Human and Peoples’ Rights: The Right to Redress
for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or
Treatment (Article 5), para. 10 (2017). See also Case of the “Street Children”
(Villagran-Morales et al.) v Guatemala, Inter-American Court of Human Rights,
Judgment on Reparations and Costs (May 26, 2001).
60 See Reverend Christopher Mtikila v Tanzania (Reparations), op. cit., para. 43.
ii. Publication of the Judgment
193. The Applicant seeks an order that the Respondent State

publishes the judgment in the national Gazette within one month of its
delivery as a measure of satisfaction. The Respondent State does not
make any specific submission in this respect.
194. The Court reiterates its position that “a judgment, per se, can
constitute a sufficient form of reparation for moral damages”.61 In its
previous judgments, the Court has however departed from that principle
to order the publication of its judgments where the circumstances so
require or proprio motu.62
195. The Court restates its earlier finding that the violations found in
this case did not fundamentally affect the outcome of the proceedings
in domestic courts. Therefore, the findings of the Court in relation to
the prayer for an order of non-repetition also apply to the request for
publication. Furthermore, the declaratory and compensatory reliefs
granted by the Court represent sufficient remedy for the violations
found. In light of these considerations, the Court is of the view that
publication of the judgment is not warranted. As a consequence, the
request is denied.
IX. Costs

197. The Court recalls that, in line with its previous judgments,
reparation may include payment of legal fees and other expenses
incurred in the course of international proceedings.63 The Applicant
must provide justification for the amounts claimed.64
A. Legal fees related to the proceedings before this Court
198. The Applicant makes a claim for the payment of US Dollars

Ten Thousand ($10,000) for the lead Counsel, and US Dollars Ten
Thousand ($10,000) for the two Assistants as legal aid fees for 300
hours of legal aid work in the Application before the African Court (that
61 See Reverend Christopher Mtikila v Tanzania (Reparations), para. 45.

62 See Reverend Christopher Mtikila v Tanzania (Reparations), paras. 45, 46(5); and
Norbert Zongo and Others v Burkina Faso (Reparations), op.cit., para. 98.
63 See Norbert Zongo and Others v Burkina Faso (Reparations), op. cit., paras. 79-
93; and Reverend Mtikila v. Tanzania (Reparations), op. cit., para. 39.
64 Norbert Zongo and Others v Burkina Faso (Reparations), para. 81; and Reverend
Mtikila v Tanzania (Reparations), para. 40.
is 200 hours for two Assistant Counsel and 100 hours for the lead
Counsel, charged at US Dollars One Hundred ($100) per hour for the
lead Counsel and US Dollars Fifty ($50) per hour for the Assistants).
199. The Respondent State disputes the claim for payment of legal
fees as counsel for the Applicant served on a pro bono basis under the
African Court’s legal aid scheme. The Respondent State further prays
the Court to deny the request as it is not supported by any receipts.
200. The Court notes that the Applicant was duly represented by
PALU throughout the proceedings under the Court’s legal aid scheme.
Noting further that the current Court’s legal aid scheme is pro bono in
nature, the request is denied.
B. Other expenses before this Court
201. The Applicant asks for the payment of the following amounts for
other expenses:
“i. US Dollars Two Hundred ($200) for postal services;
ii. US Dollars Two Hundred ($200) for printing and photocopy
fees;
iii. US Dollars Four Hundred ($400) for the transport to
and from the seat of the African Court from the PALU
Secretariat and from the PALU Secretariat to Kisongo
Prison;
iv. US Dollars One Hundred ($100) for communication fees.”
202. With respect to the costs incurred by the Applicant, the
Respondent State avers that the claims must be dismissed given
that the expenditure relates to postage, printing and photocopying,
transport, and communication, which are all paid for by the prison
authorities.
203. The Court notes that the requests for payment of US Dollars
Two Hundred ($200) for postal services; US Dollars Two Hundred
($200) for printing fees; US Dollars Four Hundred ($400) for transport
fees; and US Dollars One Hundred ($100) for communication fees are
not backed with supporting documents. They are therefore dismissed.
204. As a consequence of the above, the Court decides that each
Party shall bear its own costs.
X. Operative part

The Court,
Unanimously:
On jurisdiction
i. Dismisses the objections on the lack of material jurisdiction of
the Court;
ii. Declares that the Court has jurisdiction;
On admissibility
iv. Declares that the Application is admissible;
On the merits
v. Finds that the Respondent State has not violated Articles 7, 7(1)
(b) and (c) of the Charter with respect to the claims that the Applicant’s
rights to be assisted by an interpreter, to have access to a lawyer, to
consular assistance, in relation to the allegation that the investigation
was improper and insufficient, and to be presumed innocent were
breached;
vi. Finds that the Respondent State has not violated Article 14 of
the Charter in relation to the allegation that the Applicant’s property
was disposed of by agents of the Respondent State;
vii. Finds that the Respondent State has violated Article 5 of the
Charter for failing to provide the Applicant with food;
viii. Finds that the Respondent State has violated Article 7(1)(d) of
the Charter with respect to the allegation that the Applicant’s trial was
unduly delayed;
ix. Finds that the Respondent State has violated Article 1 of the
Charter.
On reparations
x. Does not grant the Applicant’s prayer for the Court to quash his
conviction and sentence, and order his release;
xi. Does not grant the Applicant’s prayers related to compensation
for moral prejudice;
xii. Does not grant the Applicant’s prayer to be paid material
damages for monetary loss;
xiii. Does not grant the Applicant’s prayers related to payment of
legal fees incurred in the course of domestic proceedings;
xiv. Does not grant the Applicant’s prayers related to the guarantee
of non-repetition and publication of this Judgment;
xv. Grants the Applicant the sum of US Dollars Five Hundred ($500)
for being subjected to inhuman and degrading treatment;
xvi. Grants the Applicant the sum of US Dollars Two Thousand
($2,000) for not being tried within a reasonable time and the anguish
that ensued therefrom;
xvii. Orders the Respondent State to pay the amounts indicated in
sub-paragraph (xv) and (xvi) of this part within six (6) months, effective
from this date, failing which it will also be required to pay interest on
arrears calculated on the basis of the applicable Bank of Tanzania rate
throughout the period of delayed payment until the amounts are fully
paid;
xviii. Orders the Respondent State to submit within six (6) months
from the date of notification of this Judgment a report on the status of
implementation of the Orders herein.
On costs
xix. Does not grant the Applicant’s prayer related to payment of legal
fees and other expenses incurred in the proceedings before this Court;
xx. Decides that each Party shall bear its own costs.
_____________________________
Separate Opinion: BENSAOULA
1. I share the opinion of the majority of the judges with regard to

the admissibility of the application, the jurisdiction of the Court and the
operative part.
2. On the other hand, I think that concerning the intervention made
by the Republic of Côte d’Ivoire, the Court should have considered
more the question of the admissibility of the application in the form and
substance of its merits.
3. While Article 5(2) of the Protocol on the Establishment of the
African Court on Human and Peoples’ Rights provides that “When a
State Party has an interest in a case, it may submit a request to the
Court to be permitted to join”, Rule 53 of the Rules of Court states that:
"1. An application for leave to intervene, in accordance with Article
5(2) of the Protocol shall be filed as soon as possible, and, in
any case, before the closure of the written proceedings.
2. The application shall state the names of the Applicant’s
representatives. It shall specify the case to which it relates, and
shall set out:
- the legal interest which, in the view of the State applying to
intervene, has been affected;
- the precise object of the intervention;
- the basis of the jurisdiction which, in the view of the State
applying to intervene, exists between it and the parties to the
case.
3. The application shall be accompanied by a list of the supporting

documents attached thereto and shall be duly reasoned.
4. Certified copies of the application for leave to intervene shall
be communicated forthwith to the parties to the case, who shall
be entitled to submit their written observations within a time-
limit to be fixed by the Court, or by the President if the Court is
not in session. The Registrar shall also transmit copies of the
application to any other concerned entity mentioned in Rule 35
of these Rules.
5. If the Court rules that the application is admissible, it shall fix
a time limit within which the intervening State shall submit its
written observations. Such observations shall be forwarded by
the Registrar to the parties to the case, who shall be entitled to
file written observations in reply within the timeframe fixed by
the Court.
6. The intervening State shall be entitled, in the course of the oral
proceedings, if any, to present its submissions in respect of the
subject of the intervention”.
4. In view of these two attached articles, it is clear that conditions
are required for the admissibility of the application for leave to intervene:
- Interest in the matter, subject of the application;
- the time limit for submitting this application, “before the closure
of the written proceedings”;
- the content of the application;
- the reason of the application;
- supporting documents.
5. The procedure on which the application to intervene is subject
is bound by the same procedural requirements as an application for
main action, ... notification to the parties for written observations by the
Court if it is sitting ... otherwise by the President, the intervening party
having the right to speak in case of oral pleadings.
6. This application is also sent to the State Parties concerned as
set out in 35(3) of the Rules of Court.
7. It is apparent from the reading of the judgment delivered by the
Court on 7/12/2018 subject of this separate opinion, that in its chapter
“the parties” the Court considered the intervening State Party to the
matter because “authorized to intervene”.
8. And it does not appear at any time from the reading of the said
judgment that the admissibility of this petition was settled or discussed,
which is contrary to Rule 53(5) of the Rules.
9. Moreover, paragraph 12 of Chapter III, “summary of the
proceedings before the Court”, misconstrued the genesis of the
proceedings by certifying that on 21/01/2015 ... and pursuant to Articles
5(1)(d) and 5(2) of the Protocol and Rules 33(d) and (53) of the Rules,
the Registry notified the Application to the Republic of Côte d’Ivoire as

the State of which the Applicant is a national.
10. While it appears from the case file that the intervening State -
the Republic of Côte d’Ivoire requested its intervention on 1 April 2015,
therefore the intervention of the Ivorian State is voluntary since it is
stipulated in that same paragraph that the Court has authorized it and
it had filed its observations and responses to the submissions of the
parties.
11. It is apparent from both paragraphs 15 and 16 of the judgment
that the adversarial principle was observed since the observations of
the intervening State were notified to the respondent, as is clear from
the reading of the judgment that the Respondent State responded to the
requests and arguments of the intervening State and the intervening
State also responded to its responses by opposing requests.
12. It is evident from the State Party’s applications and responses
that, in addition to its application concerning the admissibility of its
application and the Court’s jurisdiction over it, it supports the applicant’s
requests and allegations (paragraphs 23, 30, 49). 83 and 92 of the
judgment).
13. But at no point in the Judgment does it appear that the Court
responded to these requests, which, in my respectful view, constitutes
a procedural irregularity both with regard to the intervening State to
declare its application for intervention admissible and on the merits of
its requests approving the applicant’s allegations if only by considering
them supported by the Court in its decision on the applicant’s requests
because similar to those of the intervening State.
14. From my point of view, if the Court has held that in responding to
the Applicant it also responds to the intervening State, it should have
said so expressly throughout the judgment to its operative part.
In conclusion
15. Being a kind of “third-party remedy” with an interest in a case

pending before the Court, provided for in the provisions regarding
form and merits in both the Rules and the Charter, the Court had
to deal with the application for intervention in the same way as was
done for the application and the Applicant’s requests both in the body
of the judgment and in its operative part, regarding the jurisdiction,
admissibility and merits.
16. Even if on the merits the State of Côte d’Ivoire was involved
with the Applicant and therefore supported him in his allegations and
requests.
Application 024/2015, Werema Wangoko Werema and Waisiri Wangoko

Werema v Republic of Tanzania
Judgment, 7 December 2018. Done in English and French, English text
The Applicant had been convicted and sentenced for armed robbery. He
brought this Application claiming a violation of his rights as a result of his
detention and trial. The Court found that there was no manifest error in
the way the national courts evaluated the evidence against the Applicant
and that the Applicant had not shown any other fair trial violations.
Jurisdiction (evaluation of evidence before national courts, 30, 31)
Admissibility (submission within reasonable time, 49)
Fair trial (evidence, 59-64; right to have one’s cause heard, 68, 69)
Joint separate opinion: KIOKO and CHIZUMILA
Fair trial (evidence, 6, 8, 12)
Dissenting opinion : TCHIKAYA
Admissibility (submission within reasonable time, 14, 18)
I. The Parties
1. The Applicants, Werema Wangoko Werema and Waisiri

Wangoko Werema are nationals of the United Republic of Tanzania
(hereinafter, the Respondent State). The Applicants were sentenced
to thirty (30) years’ imprisonment each for the crime of armed robbery.
2. The Respondent State became a Party to the African Charter on
on 21 October 1986, and to 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”) on 10 February 2006. Furthermore, on 29 March 2010, the
Respondent State deposited the declaration required under Article 34
(6) of the Protocol, accepting the jurisdiction of the Court to receive
cases from individuals and Non-Governmental Organisations.
Werema v Tanzania (merits) (2018) 2 AfCLR 520 521
3. The Application relates to alleged human rights violations

stemming from convictions and sentences of thirty (30) years’
imprisonment and twelve (12) strokes of the cane each imposed on the
Applicants for the crime of armed robbery. The Applicants are currently
serving their sentence in Butimba Central Prison, Mwanza, Tanzania.
4. It emerges from the file that on 25 February 2001 at midnight, a
gang of burglars broke into the house of Mr Maiko Matiko Nyisurya and
stormed into his room where he was sleeping with his wife, Mrs. Sara
Maiko, and their children. It is alleged that the burglars were armed
with ‘pangas’ (machetes) and a gun and when Mr. Maiko confronted
them, having lit a torchlight, they inflicted eleven panga cuts on his
body causing him serious bodily harm. The burglars also stole two (2)
suitcases of clothes and cash of Seventy Thousand Tanzania Shillings
(75,000 TZS).
5. On the basis of a testimony proffered by six (6) Prosecution
Witnesses (PW), including Mr Maiko (PW1) and his wife (PW5), the
Applicants were, on 30 November 2001, in Criminal Case No. 169/2001
convicted of armed robbery contrary to Sections 285 and 286 of the
Penal Code of Tanzania by the District Court of Tarime and sentenced
to thirty (30) years’ imprisonment and twelve (12) strokes of the cane.
6. The High Court in Criminal Appeal No. 02/2002 and the Court
of Appeal in Criminal Appeal No. 67/2003 subsequently upheld the
decision of the District Court on 9 October 2002 and 1 March 2006,
respectively.
7. Aggrieved by the verdict, the Applicants filed a request for
the review of the decision of the Court of Appeal on the ground that
the judgment contained “manifest errors” and that this resulted in a
miscarriage of justice. On 19 March 2015, the Court of Appeal declared
their request inadmissible asserting that the application for review was
not filed within the time prescribed by law.
8. The Applicants submit that both their conviction and the refusal
of the Court of Appeal to review the convictions on the basis that their
application for review was filed out of time contravene the provisions
of the Charter and the 1977 Tanzanian Constitution. In this regard, the
Applicants allege that they were convicted based on a mistaken identity
and solely on the basis of incriminating evidence of visual identification
which is “perjured, concocted and privy”. According to the Applicants:

“i. The primary victim (PW 1) of the alleged crime contradicted
himself while testifying and that the victim saw other
burglars rather than them. He named them only on 4
March 2001 even though he claimed to have identified
them on the day of the incident, that is, 25 February
2001. In addition, though he denied having made his first
statement on 26 February 2001, which was tendered in
the trial court, his co-witness (PW 3) confirmed that the
complainant (PW 1) made two statements, the first on the
day of the incident without naming the suspects and the
second at a later date mentioning names of suspects.
ii. With regard to the second witness (PW 2), although he
claimed to have been present at the scene of the crime,
“the trial court had recorded his demeanor while testifying
that at the same time he was laughing and joking as [if
he] was not serious of what he [was] talking [about]”, thus,
proving that the witness was lying.
iii. The third prosecution witness (PW 3), who was a crime
investigation officer “confirmed that PW 1 made two
statements, the first one on the day of the incident without
naming any suspects [and the other day, mentioning
the names of the Applicants]” despite the fact that PW 1
denied making two statements on different days.
iv. The fourth Prosecution Witness (PW 4) was not at the
scene of the incident and named them to the police as
was informed by the victim (PW 1) and only a month after
the incident.
v. The statements of the fifth Prosecution Witness (PW 5),
the wife of PW I, were contradictory. Even if she claimed
to have identified them during the incident, it was not
possible for her to identify them if, as she confirmed,
she hid herself far outside of the house. She also forgot
the date when she reported to the police and that her
statement indicating that on the day of the incident her
husband did not report to the police conflicts with the
testimony given by PW 3.
vi. The sixth Prosecution Witness (PW 6), who was a cell
leader working under PW 1 claimed that he saw the
Applicants at the scene of the crime but he did not justify
why he did not raise the alarm during the incident nor did
he make a follow up to effect their arrest.
vii. The intimate relationship that existed among the
Prosecution Witnesses: PW I, PW 2, PW 4 and PW 6, and

in view of their contradictory statements, the accusation
made against the Applicants was rather a fabrication by
PW.”
9. The Applicants further state that their conviction on the basis
of a mistaken identity was substantiated by the “unfolding truth” that
emerged from the investigation of the Tanzanian Commission for Human
Rights and Good Governance (CHRGG). The Applicants allege that
the observations made by the Commission following such investigation
reveal that the victim was later paid compensation by the true burglars
under the aegis of the local authority. This, according to the Applicants,
was not included in the record of the court proceedings as the said
investigation was carried out after all domestic court proceedings were
concluded. The Applicants also add that the witnesses admitted to
the Applicants’ relatives that they made an error in identifying the true
culprits of the crime and even offered an apology to the Applicants’
relatives.
10. The Applicants accordingly submit that, given the circumstances
of their case, the Court of Appeal should have allowed their petition for
review by complying with Article 107(A)(2)(c) and (e) of the Constitution
of the Respondent State. They contend that the Court`s refusal to allow
their request for review violated the Constitution and their conviction
on the basis of a mistaken identity and without the Prosecution having
proven the charges laid against them beyond reasonable doubt violated
Article 3(1) and (2) and Article 2 of the Charter.
11. The Applicants further allege that they “were isolated on the
procedure and the decision of the [domestic] courts, thus violating their
fundamental rights which need to be served pursuant to Article 27(1) of
the Protocol and Rule 34(5) of the Rules of the Court in order to rectify
the violation”.
12. The Application was filed on 2 October 2015 and was served on
the Respondent State on 4 December 2015 in accordance with Rule
35 and Rule 37 of the Rules.
13. On the same date, pursuant to Rules 35 and 53 of the Rules,
the Registry also transmitted the Application to all State Parties to the
Protocol, the African Union Commission and the Executive Council
of the African Union, through the Chairperson of the African Union
Commission.
14. On 11 February 2016, the Respondent State requested the
Court for an extension of time to file its Response on the basis that it
is still collecting information from stakeholders involved in the matter.
15. During its Fortieth Ordinary Session held from 29 February to 18

March 2016, the Court granted a thirty (30) days extension of time to
the Respondent State to file its Response from the date of receipt of
the notice dated 21 March 2018. The Court also instructed the Registry
to request CHRGG for any observations on the Applicants’ claims.
16. On 10 May 2016, CHRGG responded by indicating that it does
not have any comments to submit on the matter. It stated that as per
the law, it cannot investigate any matter that has been adjudicated by
a court or is sub-judice. The Commission also indicated that it only
carried out a preliminary rather than a full investigation into the matter.
17. The Registry notified the Respondent State on 7 June 2016 that
the Court, suo motu, granted sixty (60) additional days for filing of the
Response.
18. On 28 November 2016, citing that the Respondent State has
failed to defend its case, the Applicants applied for the Court to issue a
judgment in default in their favour.
19. On 20 March 2017, the Court proprio motu granted forty five (45)
days extension of time to the Respondent State to file the Response
and indicating that it would proceed to issue a judgment in default
should the Response not be filed.
20. The Respondent State filed its Response on 25 May 2017,
which was served on the Applicants on 29 May 2017 requesting them
to file their Reply within 30 days of receipt.
21. The Applicants filed their Reply to the Response on 21 June 2017
and this was transmitted to the Respondent State for its information by
a notice of the same date.
22. On 6 October 2017, the Registry notified the Parties of the
closure of pleadings.
23. The Applicants pray to the Court:

“i. To quash both the conviction and the sentence and to set
them at liberty;
ii. To redress the violation of their fundamental rights in
accordance with Article 27(1) of the Protocol and Rule
34(1) of the Court; and
iii. To restore justice where it was overlooked and to grant
any other remedy that deems fit in the circumstances of
the complaint.”
24. In its Response, the Respondent State prays the Court to grant
the following orders:
“i. That, the Court is not vested with jurisdiction to adjudicate
on this Application;
ii. That, the Application has not met the admissibility
requirements stipulated under Rule 50(5) of the Rules
of the Court and it is therefore inadmissible and be duly
dismissed;
iii. That, the Application is dismissed with costs.”
V. Jurisdiction
conduct a preliminary examination of its jurisdiction …”
26. In the instant Application, the Court notes from the Respondent
State’s submission that the Respondent State disputes only the Court’s
material jurisdiction. However, the Court shall also satisfy itself that it
has personal, temporal and territorial jurisdiction.
A. Objection to material jurisdiction
27. The Respondent State disputes the jurisdiction of the Court by

submitting that the instant Application contains legal and factual issues
which were conclusively determined by its domestic courts. According
to the Respondent State, the Protocol does not vest the Court with the
power to adjudicate on issues involving matters of law and evidence by
placing itself as an appellate court; however, in the instant Application,
the Court is being requested to make determination on issues that
would require it to sit as such. In this regard, the Respondent State
indicates three allegations the assessment of which would require the
Court to sit as an appellate court:
“i. the visual identification evidence which was used to
convict the Applicants was fabricated;
ii. the witnesses who testified against the Applicants
contradicted themselves”;
and
iii. the Applicants were isolated during the Courts’ procedures
and decisions.”
28. The Applicants do not dispute the Respondent State’s assertion
that the Court is not vested with appellate jurisdiction. Nevertheless,
they argue that their Application relates to the violation of human rights
protected by the Charter on which the Court has unlimited jurisdiction.
The Applicants, citing the jurisprudence of the Court,1 aver that the
Court has the power to receive and consider matters, including those
relating to decisions of domestic courts and determine whether the
proceedings and judgments of the national courts are in accordance
with international human rights standards.
29. Article 3(1) of the Protocol and Rule 26(1)(a) of the Rules specify
that the material jurisdiction of the Court extends to “all cases and
disputes submitted to it concerning the interpretation and application of
the Charter, the Protocol and other relevant human rights instruments
ratified by the State concerned.” In this regard, the Court has observed
that it exercises its jurisdiction over an Application in so far as the subject
matter of the Application involves alleged violations of rights protected
by the Charter or any other international human rights instruments
ratified by a Respondent State.2 The Court has further stated that it
does not have appellate jurisdiction to uphold or reverse judgments of
domestic courts merely depending on the manner in which evidentiary
issues were considered in the national proceedings.3
30. In the instant Application, the Court notes that the Applicants
raise issues relating to alleged violations of human rights protected
by the Charter. The Court further notes that the Applicants’ allegations
essentially challenge the manner in which the domestic courts of the
Respondent State evaluated the evidence that was used to justify their
conviction.
31. However, the fact that the Applicants question the manner in
which domestic courts have assessed evidence does not prevent the
Court from making determination on the allegations contained in the
Application. It is also well-established in the jurisprudence of this Court
that where allegations of violations of human rights relate to the way in
which domestic courts evaluate evidence, the Court retains the power
to examine whether such assessment is compatible with international
human rights standards.4 This is within the purview of its jurisdiction
and doing so, does not require the Court to sit as an appellate Court.
The Respondent State’s objection in this regard is thus dismissed.
32. The Court therefore finds that it has material jurisdiction to

of Tanzania, (hereinafter referred to as “Alex Thomas v Tanzania Judgment”).
2 Application No. 003/2014. Ruling on Admissibility of 28/3/2014, Peter Joseph
Chacha v United Republic of Tanzania (hereinafter referred to as “Peter Chacha v
Tanzania Ruling”), para114.
3 Application No. 001/201. Judgment of, 15/03/2015, Ernest Francis Mtingwi v The
4 Alex Thomas v Tanzania Judgment, para 130; Application No. 007/2013. Judgment
of 20/05/2016, Mohamed Abubakari v United Republic of Tanzania. (hereinafter
referred to as “Mohamed Abubakari v Tanzania Judgment”), para 26.
consider the instant Application.
33. The Court notes that the other aspects of its jurisdiction are not
contested by the Respondent State and nothing on the record indicates
that the Court lacks jurisdiction in this regard. The Court thus holds:
“i. that it has personal jurisdiction given that the Respondent
State is a Party to the Protocol and deposited the
declaration required under Article 34(6) thereof which
enabled the Applicants to access the Court in terms of
ii. that it has temporal jurisdiction on the basis that the
alleged violations are continuous in nature, in that the
Applicants remain convicted and are serving a sentence
of thirty (30) years’ imprisonment on grounds which they
consider are wrong and indefensible5; and
iii. that it has territorial jurisdiction given that the facts of the
to examine this Application.
VI. Admissibility of the application
accordance with Article 50 and 56 of the Charter, and Rule 40 of these
Rules”.
36. Rule 40 of the Rules which in substance restates the provisions

2. comply with the Constitutive Act of the Union and the Charter ;
5 See Application No. 013/2011. Ruling on Preliminary Objections, 21/06/2013,

Norbert Zongo and Others v Burkina Faso, (hereinafter referred to as “Norbert
Zongo and Others Ruling”), paras 71 to 77.

mass media;
7. not raise any mater or issues previously settled by the Parties

Parties
37. The Respondent State has raised two objections to the

admissibility of the Application relating first to, the requirement of
exhaustion of local remedies and second, to the filing of the Application
within a reasonable time after local remedies were exhausted.
i. Objection based on non-exhaustion of local remedies
38. The Respondent State contends that the Applicants have

appealed before its High Court and Court of Appeal and both courts
upheld their conviction and the request for review of their conviction at
the Court of Appeal was struck out for being filed out of the time. The
Respondent State submits that the time to apply for review before the
Court of Appeal is an ordinary procedure and may be extended for a
good cause and the Applicants, rather than filing the Application before
this Court, could have sought and may still seek an extension of time
and file their request for review. Accordingly, the Respondent State
argues that the Application fails to meet the admissibility requirement
specified under Rule 40(5) of the Rules on exhaustion of local remedies.
39. On their part, the Applicants contend that the violations of
their rights were occasioned by the highest court of the Respondent
State through its judgments; thus, the domestic procedures on their
application are completed. They add that the records of the Court of
Appeal on applications for review show that it does not often grant
leave for review. The Applicants therefore submit that they have no
other alternative avenues to seek the correction of the wrong done
by the Respondent State, and hence, they have exhausted all local
remedies.
40. The Court notes that any application filed before it shall meet
the requirement of exhaustion of local remedies and this requirement

may only be dispensed with if the said remedies are unavailable,
ineffective, insufficient, or the domestic procedures to pursue them
are unduly prolonged.6 In its established jurisprudence, the Court has
consistently stressed that in order for this admissibility requirement
to be met, the remedies that should be exhausted must be ordinary
judicial remedies.7 In this regard, in the Matter of Alex Thomas v
United Republic of Tanzania and other similar cases filed against the
Respondent State, this Court has further held that in the Tanzanian
judicial system, the procedure for review of the Court of Appeal’s
judgments is an extraordinary remedy and Applicants are not required
to exhaust this remedy before seizing this Court.8
41. In the instant case, the Court notes from the file that, before
filing their Application in this Court, the Applicants went through the
trial and appellate proceedings for their criminal cases up to the Court
of Appeal, which is the highest court in the Respondent State. The
Applicants have further attempted to pursue the review procedure at
the Court of Appeal, but this application was declared inadmissible due
to being filed out of time. Considering that the review procedure in
the Court of Appeal is an extraordinary remedy, the Applicants were
neither required to pursue it nor seek an extension of time to file their
petition for the same. The Court therefore finds that the Applicants
have exhausted local remedies available in the Respondent State.
42. Accordingly, the Court dismisses the objection of the Respondent
State that the Applicants did not exhaust local remedies.

43. The Respondent State contends that, should the Court find that
the Applicants have exhausted local remedies, it should reject the
Application on the basis that it was not filed within a reasonable time
after local remedies were exhausted. In this regard, the Respondent
State asserts that even though Rule 40(6) of the Rules is not specific
on the question of a reasonable time, international human rights
6 Application No 004/2013. Judgment, 05/12/2014, Lohé Issa Konaté v Burkina

Faso, (hereinafter referred to as Lohé Issa Konaté v Burkina Faso Judgment) para
77; See also Peter Chacha v Tanzania Ruling, para 40.
7 Alex Thomas v Tanzania Judgment, para 64; See also Application No. 006/2013,
Judgment of 18/03/2016, Wilfred Onyango Nganyi and 9 Others v United Republic
of Tanzania, para 95.
8 Ibid; See also Mohamed Abubakari v Tanzania Judgment, paras 66-68; Application
No. 032/2015. Judgment of 21/03/2018, Kijiji Isiaga v United Republic of Tanzania
(hereinafter referred to as “Kijiji Isiaga v Tanzania Judgment”), paras 46-47.
jurisprudence has established six (6) months as a reasonable time

but the Applicants in the instant Application seized the Court five (5)
years after the Respondent State deposited the declaration required
under Article 34(6) of the Protocol providing the individual complaints
mechanism.
44. In their Reply, the Applicants dispute the Respondent State’s
submission and argue that, in accordance with the jurisprudence of
the Court, the determination of a reasonable time depends on the
circumstances of each case. In the light of the specific circumstances
of their case, the Applicants contend that their Application should be
considered as having been filed within a reasonable time.
45. The Court observes that Rule 40(6) of the Rules refers to a
“reasonable time from the date local remedies were exhausted or from
the date set by the Court as being the commencement of the time limit
within which it shall be seized of the matter.”
46. In the Matter of Norbert Zongo and Others v Burkina Faso, the
Court stated that “the reasonableness of a time limit of seizure will
determined on a case-by-case basis”.9
47. In the instant case, the Court notes that the judgment of the Court
of Appeal in Criminal Appeal No. 182 of 2010 was delivered on 1 March
2006. However, the Applicants were able to file their Application before
this Court only after 29 March 2010, the date on which the Respondent
State, in accordance with Article 36(4) of the Protocol, deposited the
declaration allowing individuals to file cases before the Court.
48. The Court further notes that the Application was filed on 2
October 2015, that is, after five (5) years and five (5) months from the
date of the deposit of the said declaration. In the intervening period,
the Applicants attempted to use the review procedure at the Court of
Appeal, but their application for review was dismissed on 19 March
2015 as having been filed out of time. In this regard, the key issue for
determination is whether the five (5) years and five (5) months’ time
within which the Applicants could have filed their Application before the
Court is reasonable.
49. The Court takes note that the Applicants do not invoke any
particular reason as to why it took them five (5) years and five (5)
months to seize this Court after they had the opportunity to do so,
the Respondent having deposited the declaration envisaged under
the Protocol, allowing them to directly file cases before the Court.
Nonetheless, although they were not required to pursue it, the
9 Norbert Zongo and Others v Burkina Faso Ruling, para 92; See also Kijiji Isiaga v
Tanzania Judgment, para 56.
Applicants chose to exhaust the abovementioned review procedure

at the Court of Appeal. It is evident from the file that the five (5) years
and five (5) months delay in filing the Application was due to the fact
that the Applicants’ were awaiting the outcome of this review procedure
and at the time they seized this Court, it was only about six (6) months
that had elapsed after their request for review was dismissed for filing
out of time.
50. In view of these circumstances, the Court dismisses the
Respondent State’s objection in this regard.

between the Parties
51. The conditions of admissibility regarding the identity of the

Applicants, the Application’s compatibility with the Constitutive Act of
the African Union, the language used in the Application, the nature of
the evidence adduced, and the principle that an Application must not
raise any matter already determined in accordance with the principles
of the United Nations Charter, the Constitutive Act of the African Union,
the provisions of the Charter or of any other legal instruments of the
African Union as required by Sub-Rules 1, 2, 3, 4 and 7 of Rule 40 of
the Rules are not in contention between the Parties.
52. The Court also notes that nothing in the record before it indicates
that these requirements are not fulfilled. Consequently, the Court holds
that these admissibility requirements have been fully met in the instant
case.
53. In view of the foregoing, the Court declares that the instant
Application is admissible.
VII. The merits
A. Allegations of violations of the right to a fair trial
54. The Applicant makes allegations of violations which fall within

the scope of Article 7 of the Charter. The Court will examine them one
after the other as follows.
i. Allegation that the Applicants’ conviction was based

on contradictory evidence
55. The Applicants submit that their conviction in the domestic courts
was based solely on incriminating evidence of visual identification
which is “perjured, concocted and privy”. The Applicants as indicated
in paragraph 8 above, cite what they consider contradictory statements

made by the witnesses who testified against them and those that,
were not credible enough to support their conviction. The Applicants
emphasise that four (4) of the prosecution witnesses have a close
relationship which, in view of their contradictory testimonies, attests
to their fabrication of the story that the Applicants were the ones who
committed the crimes in question.
56. On its part, the Respondent State disputes the Applicants’
allegation and submits that the issue of visual identification was
analysed and determined by the Court of Appeal. The Court of Appeal,
according to Respondent State, thoroughly examined the issue and
concluded that the evidence proffered by the witnesses was credible
enough to sustain the Applicants’ conviction. The Respondent State
emphasised that the witnesses testified the truth and there was nothing
perjured or concocted in their testimony, the Applicants’ allegations
lacks merit and, as such, should be dismissed.
57. In their Reply, the Applicants submit that the Respondent
State’s argument that the matter of their identification was analysed
and concluded by the Court of Appeal in one procedure but the other
procedure to determine whether their identification was credible was
perjured, concocted and contradictory.
58. Article 7(1) of the Charter stipulates that:
“1. Every individual shall have the right to have his cause heard.
This comprises:
(a) The right to an appeal to competent national organs against acts
(b) The right to be presumed innocent until proved guilty by a
(c) The right to defence, including the right to be defended by
(d) The right to be tried within a reasonable time by an impartial
59. The Court notes that “a fair trial requires that the imposition
of a sentence in a criminal offence, and in particular, a heavy prison
sentence, should be based on strong and credible evidence”.10
60. The Court also observes that when visual identification is used
as a source of evidence to convict a person, all circumstances of
possible mistakes should be ruled out and the identity of the suspect
should be established with certainty. This is also the accepted principle
10 Ibid, para 174.

in the Tanzanian jurisprudence.11 In addition, the evidence of visual

identification must demonstrate a coherent and consistent account of
the scene of the crime. The Court has also previously stated that it is not
an appellate court and as a matter of principle, it is up to national courts
to decide on the probative value of a particular piece of evidence.12 The
Court cannot assume this role of the domestic courts and investigate
the details and particulars of evidence used in domestic proceedings
to establish the criminal culpability of individuals.13
61. In the instant case, the record before this Court shows that the
domestic courts convicted the Applicants on the basis of evidence
tendered by six (6) prosecution witnesses, three (3) of whom were
present at the scene of the crime. The statements made by these
witnesses were generally similar and revealed a consistent account of
the scene of the crime.
62. As regards the Applicants’ claim that there were some
inconsistencies in the testimonies of prosecution witnesses, the Court
notes from the record of the trial court that indeed PW 2 was laughing
while testifying before the trial court “as [if he] was not serious of what
he [was] talking [about]”. It is also true that the four (4) prosecution
witnesses (PW 1, PW2, PW 4 and PW 6) had a close relationship
which might have created the possibility of collusion. Furthermore, the
fourth Prosecution Witness (PW 4), an investigation officer “confirmed
that PW 1(main victim) made two statements, the first one on the day
of the incident without naming any suspects” and the second one,
mentioning the Applicants as the perpetrators. This was despite the
fact that the PW 1 denied that he made statements on the day of the
incident, again disclosing some inconsistencies and casting doubts on
the veracity of PW 4’s statements.
63. Nevertheless, both the High Court and the Court of Appeal
subsequently addressed these and other related issues raised by the
Applicants and determined that the evidence was enough to convict
the Applicants. This Court is of the opinion that the manner in which
the domestic courts evaluated the evidence does not per se reveal any
manifest error or resulted in a miscarriage of justice to the Applicants
and hence, requires the Court’s deference.14 In addition, the Applicants’
other allegations questioning the credibility of the testimony of PW 5
11 In the Matter of Waziri Amani v United Republic of Tanzania, the Court of Appeal
declared that “no court should act on evidence of visual identification unless all
possibilities of mistaken identity are eliminated and the court is fully satisfied that
the evidence before it is absolutely watertight”. Ibid, para 175.
12 Kijiji Isiaga v Tanzania Judgment, para 65.
13 Ibid.
14 Ibid, para 73.
relate to specific details of evidence which this Court is not positioned

to assess and thus, leaves this role to the national courts, which
have already made their determinations by examining the particular
circumstances of the case.
64. In view of the above, the Court thus finds that, the allegation
relating to the Applicants’ conviction on the basis of contradictory
testimony is not founded and therefore, the Respondent has not
violated Article 7(1) of the Charter.
ii. Allegation that the Applicant’s conviction was based

on mistaken identity
65. The Applicants submit that their conviction was based on a

mistake of fact with regard to the identity of the actual perpetrators of
the crimes in question. The Applicants allege that this was substantiated
by the “unfolding truth” that emerged from the investigation of the
Commission for Human Rights and Good Governance (CHRGG) of
the Respondent State, which reveals that the victim (PW 1) was later
paid compensation by the real burglars under the aegis of the local
authority. According to the Applicants, this was not included in the
record of the court proceedings because the investigation was carried
out after all trial and appellate proceedings their cases were concluded.
66. The Applicants also add that the witnesses admitted to their
relatives that they made an error in identifying the true perpetrators
of the crime and even offered an apology to the relatives. The
Applicants further allege that the Court of Appeal’s refusal to consider
their application for review filed on the basis of the new evidence
contravenes the provisions of the Charter.
67. The Respondent State has not responded to this allegation
directly but in its submission on admissibility in paragraph 38 above,
the Respondent State maintains that the Applicants can still pursue the
matter within the domestic courts by seeking an extension of time to
file their application for review.
68. The Court observes that the right to have one’s own cause
heard as enshrined under Article 7(1) of the Charter is a fundamental
human right that bestows upon individuals a wide range of entitlements
pertaining to due process of law, including the right to be given an
opportunity to express their views on matters and procedures affecting
their rights, the right to file a petition before appropriate judicial and
quasi-judicial authorities for violations of these rights and the right
to appeal to higher judicial authorities when their grievances are not
properly addressed by the lower courts.
69. The Court also notes that the right to have one’s cause heard
does not cease to exist after the completion of appellate proceedings.
In circumstances where there are cogent reasons to believe that the

findings of the trial or appellate courts are no longer valid, the right to
be heard requires that a mechanism to review such findings should
be put in place. This is the case if there is new evidence which would
potentially lead the trial or appellate court to reverse its decision or
make substantially different findings.
70. In the instant case, the Court notes from the file that the
Applicants raise an allegation that they are not the real perpetrator of
the crime they were charged with and they were convicted as a result of
a mistake relating to their identity. In this regard, the Applicants indicate
that the prosecution witnesses admitted to have erred in identifying
the real culprits and they apologised to the Applicants’ relatives for
the same. The Applicants substantiate their allegation by submitting
a letter which they have received from the Commission for Human
Rights and Good Governance (CHRGG), a governmental organ in the
Respondent State established under the Constitution, with a mandate
of promoting and protecting human rights.
71. The Court observes that in the said letter, which displays the
Commission’s official stamp, the Commission wrote to the Applicants
indicating that from its preliminary investigation into the matter, it had
established that the true perpetrators of the crime were other persons
and these other persons paid a compensation of six (6) cows and
Tanzania Shillings one hundred and twenty thousand (120,000 TZS)
to the victim.
72. The key issues for determination therefore are whether this letter
from the Commission is properly before it as evidence and can be
relied upon in determining the present Application and whether it could
be considered to have such value that, had it been available during the
trial and appellate proceedings, it would have substantially affected
the outcome of the decisions of the national courts of the Respondent
State.
73. The Court notes from the Commission’s letter that the Applicants
were convicted of crimes committed by other persons and this casts
some doubt on the Applicant’s culpability and conviction. However,
as indicated in paragraph 16 above, the findings of the Commission
communicated by a letter to the Applicants were said to have been
made following a preliminary investigation rather than after a full
investigation into the matter. In these circumstances, the Court is thus
not in a position to conclude that there would have been a substantially
different outcome in the decisions of the domestic courts, had this letter
been available during the trial and appellate proceedings.
74. In view of the above, the Court therefore finds that the allegation
according to which the Applicants’ culpability was based on mistaken
identity is not founded and therefore the Respondent State has not
violated Article 7(1) of the Charter.
iii. Allegation that the Applicants were isolated during the

domestic proceedings
75. The Applicants contend that they were isolated during the
procedures when the decision of the domestic courts were rendered
and this violated their fundamental rights.
76. The Respondent State denies the allegation and argues that
the Applicants were present during their trial from the time the armed
robbery charge was read out to them on 7 May 2001 in which they
pleaded not guilty, up to the conclusion of the trial on 16 November
2001. The Respondent State also avers that the Applicants were also
present when their appeal was heard at the High Court on 12 August
2002. The Respondent State further indicates that the Applicants were,
except at the Court of Appeal, represented by a lawyer and at the Court
of Appeal, they were not provided with legal counsel because they did
not apply for it, as required under Rule 31 of the Tanzania Court of
Appeal Rules, 2009.
77. The Court notes that the right to a fair trial, in particular, the right
to defence under Article 7(1) requires that an accused person must be
given the opportunity to take part in all the hearings in respect of his
trial, and to adduce his arguments and evidence in accordance with
the adversarial principle.15 This is an inherent component of the basic
precept of equality of arms, which demands that both the accused and
the prosecution must have the possibility to present in an equal manner
their case and examine or cross-examine the evidence proffered by
the other party.
78. In the instant case, the Applicants generally allege, without
indicating the violation of a specific right, that they were isolated
during the procedures and the decisions of the domestic courts. In
their submissions however, they did not clearly state how and why
they were isolated in the domestic proceedings. As submitted by the
Respondent State, the Applicants indeed participated in all the trial and
appeal proceedings and they were also represented by a lawyer at
the District Court and at the High Court. The Court observes in this
regard that, nothing on record indicates that the Applicants were kept
in isolation or isolated in any manner during their trial and appellate
proceedings.
79. The Court is therefore of the view that the allegation that the
15 Application No. 020/2016. Judgment of 21/09/2018. Anaclet Paulo v United

Applicants were isolated during domestic proceedings is not founded

and accordingly, holds that the Respondent State has not violated
Article 7(1) of the Charter.
B. Allegation of violation of the right to equality before

the law and equal protection of the law
80. The Applicants allege that both their conviction on the basis of a
mistaken identity and the refusal of the Court of Appeal to review their
conviction to rectify the wrong citing the reason of filing the application
of review out of time contravene Articles 3(1) and (2) of the Charter.
The Applicants submit that the Court of Appeal should have applied not
only the Charter but also Article 107A(2)(c) and (e) of the Respondent
State’s Constitution to allow their application for review as the victim
was paid compensation by the real perpetrators under the aegis of the
local authority.
81. On its part, the Respondent State denies the allegation and
contends that the Applicants should be put to strict proof thereof. The
Respondent State indicates that its Constitution contains provisions
similar to Article 3(1) and (2) of the Charter and the rights enshrined
therein are therefore duly protected. The Respondent State submits that
the Applicants have not showed how their rights in the said provisions
were infringed upon to the extent that they have been so aggrieved as
to file the instant Application before the Court to seek remedy.
82. The Respondent State avers that, in the course of their trial and
appeals, the Applicants had a lawyer of their own choice and they never
raised the issue of discrimination during those proceedings, rather they
raise the claim of unequal treatment for the very first time before this
Court. The Respondent State argues that the Applicants therefore
enjoyed the right to defend themselves and to file their first and second
appeals and they were not subjected to any wrong procedure in that
regard. The Respondent State reiterates its position that the Applicants
could have had the chance to apply for review of their conviction, if only
they sought an extension of the time to file the application for review.
83. The Respondent State further contends that Article 107A(2)(c)
and (e) of its Constitution require national courts to deliver justice in
civil and criminal matters in accordance with the laws, which its Courts
have duly done. According to the Respondent State, the Applicants
have not shown how the Respondent State has breached these
provisions of the Constitution.
84. The Court notes from the outset that it does not have jurisdiction
to interpret or apply the domestic legislation of the Respondent State,
rather it has jurisdiction only to interpret and apply the Charter and
other human rights instruments ratified by the Respondent State.
Accordingly, it limits its assessment to the relevant provisions of the

Charter and makes reference to the domestic legislation including the
Constitution of the Respondent State, only in the course of interpreting
and applying those provisions.
“Every individual shall be equal before the law. Every individual shall be
entitled to equal protection of the law”
86. The Court notes that Article 3 is essentially intertwined with

Article 2 of the Charter prohibiting discrimination.16 For the Court to find
a violation of Article 3, it shall be demonstrated either that an Applicant
was discriminated against before judicial or quasi-judicial authorities
or that the domestic law allows a discriminatory treatment against him
or her as compared to other persons who are in the same situation as
he or she is.
87. In the present Application, the Court notes that Articles 12
and 13 of the Constitution of the Respondent State provides for the
right to equality and equal protection of law in the same terms as the
provisions in the Charter, including by prohibiting discrimination among
individuals on unjustified grounds. To this extent, the Applicants have
the right to equality before the law and equal protection of the law just
as any other individuals within the jurisdiction of the Respondent State
and there is nothing on record showing that this is not the case with
respect to the Applicants.
88. The issue for determination then is whether the Applicants’
conviction and, the alleged refusal of the Court of Appeal to review
their conviction amounts to a violation of their right to equal protection
of the law and equality before the law, that is, whether the domestic
courts have treated the Applicants in a discriminatory manner while
considering their case. In the case of Abubakari v United Republic of
Tanzania, this Court held that “it is incumbent on the Party purporting
to have been a victim of discriminatory treatment to provide proof
thereof”.17
89. In the instant case, the Applicants merely allege that their
conviction and the Court of Appeal’s dismissal of their application
for review of their conviction reveal discriminatory treatment. The
Applicants do not state the circumstances in which they were subjected
to unjustified differential treatment in comparison to other persons in a
16 Application No 009&011/2011. Judgment of 14/05/1015.Tanganyika Law Society

and The Legal and Human Rights Centre and Reverend Christopher Mtikila v The
United Republic of Tanzania, paras105.1 and 105.2, Application No. 006/2012.
Judgment of 26/0502017. African Commission on Human and Peoples’ Rights v
Republic of Kenya, para 138.
17 Mohamed Abubakari v Tanzania Judgment, para 153.
similar situation.18 As this Court has stated in Alex Thomas v Tanzania,

“general statements to the effect that a right has been violated are not
enough. More substantiation is required.”19
90. The Court therefore dismisses the Applicants’ allegation that
their rights under Article 3(1) and (2) of the Charter were violated.
VIII. Reparations
91. In their submissions, the Applicants pray the Court to quash

both their conviction and the sentence imposed on them and to set
them at liberty, to redress the violation of their fundamental rights in
accordance with Article 27(1) of the Protocol and Rule 34(1) of the
Rules and to restore justice where it was overlooked and to grant any
other remedy that deems fit in the circumstances of the complaint.
92. On the other hand, the Respondent State prays the Court to
deny the request for reparation and all other reliefs sought by the
Applicants and dismiss the Application with costs.
94. In this respect, Rule 63 of the Rules of Court provides that:
“The Court shall rule on the request for the reparation … by the same
decision establishing the violation of a human and peoples’ right or, if
the circumstances so require, by a separate decision.”
95. The Court notes in the instant case, that as no violation has
been established, the issue of reparation does not arise, and therefore
dismisses the Applicant’s prayers for reparation.
IX. Costs
96. In its submissions, the Respondent State prays the Court “to
dismiss the Application with Costs”.
97. The Applicants did not make any submissions concerning costs.
99. The Court holds that in the instant Application, there is no
reason for it to depart from the provisions of Rule 30 of the Rules and,
consequently, rules that each Party shall bear its own costs.
18 Ibid, para 154.

19 Alex Thomas v Tanzania Judgment, para 140.
X. Operative part
100. For the above reasons:

The Court,
Unanimously:
On jurisdiction:
By a majority of nine (9) for, and one (1) against, Justice Blaise
TCHIKAYA Dissenting
On admissibility:
iv. Declares the Application is admissible;
Unanimously:
On the merits:
v. Finds that the Respondent State has not violated the Applicants’
right to a fair trial in Article 7 of the Charter
vi. Finds that the Respondent State has not violated the Applicants’
right to equality before the law and equal protection of the law provided
for in Article 3 of the Charter
On reparations:
vii. Consequently, does not grant all requests for reliefs sought by
the Applicants.
On costs:
viii. Decides that each Party shall bear its own costs.
_____________________________
Joint Separate Opinion: KIOKO and CHIZUMILA
1. We fully agree with the findings of the majority on the merits of

this application. However, there is one particular issue in the judgement
which we believe that the majority could have been more robust in its
reasoning and eventually order the Respondent State, even if as obiter
dictum, to take necessary steps to clarify the doubt cast by the new
evidence obtained from the Commission on Human Rights and Good
Governance (CHRGG), which is the national human rights institution

of the Respondent State.
2. The letter from the CHRGG to the Applicants informed them
that the former had established, as indicated in Paragraph 70 of the
Judgment, that the true perpetrators of the crime were other persons
and who had in fact paid compensation of six (6) cows and Tanzania
Shillings one hundred and twenty thousand (120,000 TZS) to the victim.
3. The Court in paragraph 73 of its decision has observed that the
letter issued by CHRGG was not adequate evidence for it to conclude
that it would potentially annul the conviction of the Applicants or likely
result in a substantially different outcome to the one reached by the
domestic courts. This is, as the majority noted, because of the fact
that the said letter, indicating that the true perpetrators of the crime
in question were others, not the Applicants, was issued following a
preliminary investigation by CHRGG into the matter. However, it
should be noted that this aspect was not contained in the letter to the
Applicants and was highlighted only in the letter to the Court, perhaps,
with the intention of justifying why the Commission could not appear
before the Court on this matter.
4. In their submissions, the Applicants have not indicated that the
attention of the Respondent State’s judicial or justice authorities was
drawn to the letter or that they had an opportunity to undertake a further
enquiry on the issues raised in it. This is partly because the Applicants
received the letter only in 2011 long after the appellate proceedings in
the domestic courts were completed in 2006 and it was not practically
possible for them to file it as evidence to challenge their conviction in
the course of such proceedings. It is also not clear whether the CHRGG
on its part communicated the contents of the letter to judicial or justice
authorities or whether the latter had attached the letter to their request
for review at the Court of Appeal, which was declared inadmissible only
in 2015 for being filed out of time.
5. Indeed, if the Applicants had alleged in their application before
this Court that the letter was attached to their application for review
before the Court of Appeal, in our view, this court would have had to
examine whether domestic courts had violated Applicant’s rights by
not doing substantial justice without regard to technicalities. In the
circumstances, we concur with the majority’s conclusion that there are
no sufficient grounds to find violations of the rights of the Applicants
entailing the responsibility of the Respondent State.
6. Granted that the findings of the CHRGG point to the possibility
that the Applicants may have spent over 17 years in prison for a crime
they did not commit, it is our strong opinion that a human rights court
ought to explore all avenues to ensure that the Respondent State
undertakes full investigations on this matter to establish the culpability
or otherwise of the Applicants. This could have included requiring the

Parties to appear before the Court and making submissions on this
matter. In addition, the letter tendered by the Applicants, as the majority
observed, comes from a government institution, that is, CHRGG, with
a constitutional mandate to protect human rights in the Respondent
State. Although it is not clear whether the full investigation have been
concluded by CHRGG, we are of the considered view that the fact
that it is a constitutionally established body gives some weight to the
probative value of the letter.
7. Furthermore, we do not see how the categorical finding by the
CHRGG can change even after further investigations. Payment of
compensation of cows and money in a traditional setting in an African
village cannot be a confidential exercise. In any event, the information
given by the CHRGG was collaborated by the Applicants’ assertions
that the prosecution witnesses had admitted to the former’s
witnesses that they erred in identifying the real culprits and that
they apologised to the Applicants’ relatives for the same.
8. Despite the fact that the Respondent State’s responsibility is
not engaged, we also think that the Court should have given some
importance to the said letter and taken judicial notice of its contents to
urge or at least, encourage the Respondent State to take necessary
measures to clear the shadow of doubt cast on the Applicants’
conviction. We understand that the majority’s hesitance to do so stems
from the lack of an explicit normative basis that would enable the
Court to make such order in circumstances where it has not found
the Respondent State in breach of its international obligations in the
Charter or other human rights treaties to which is it is a party.
9. However, it is also not unusual for international courts to make
remarks, including in the form of obiter dictum when the need arises,
and we are of the view that the majority could have done the same in
the instant Application.
10. In view of the above, we regret that the Court failed to nudge
or urge the Respondent State to take judicial or other administrative
measures to decisively establish the truth of the preliminary findings
of the CHRGG and to clear any doubt about the culpability of the
Applicants.
11. As the traditional legal adage goes “It is far better that ten guilty
men go free than one innocent man is wrongfully convicted”. Even
after conviction, the right to be heard requires the possibility of review
of such conviction when, for example, there is new evidence, which,
as is the case in the instant Application, casts doubt on the Applicants’
conviction. Every government owes a duty of care to its citizens and
since the CHRGG is a government agency it should not be difficult for
the authorities to implement whatever final findings have been reached
relevant to the conviction of the Applicants.

12. Furthermore, in our view, the Court’s reasoning should not have
been predicated on speculations as to the potential impact of the letter
on the Applicants’ conviction, had it been available at the time of their
trial and appellate proceedings. What is more relevant and which the
majority should have relied on, rather, is the fact that there is nothing
on record to show that the letter was presented and considered by the
domestic courts and yet it was in the possession of the Applicants at
the time of the Application for review of the Court of Appeal’s decision.
13. In spite of the fact that the Court has not urged the Respondent
State to ensure that investigations initiated by CHRGG are concluded
and necessary action taken as may be necessary, we express the hope
that the State will still do so in exercise of its international responsibility
and the duty it owes to its citizens.
_____________________________
Dissenting opinion: TCHIKAYA
14. Having not been able to agree with my colleagues in the decision
Werema Wangoko Werema and Waisiri Wangoko Werema v United
Republic of Tanzania, I hereby explain why I hold a different view. My
idea is that this case should have been dismissed as inadmissible by
the Court sitting in Tunis. The matter has been brought too late before
this Court.
15. In the instant case, the Applicants are serving 30 years prison
sentence at Butimba Central Prison in Mwanza, Tanzania, following
their conviction for armed robbery. They petitioned the African Court on
2 October 2015. The petition came after the Tanzanian courts (the High
Court and the Court of Appeal) upheld their conviction by Judgments
of 9 October 2002 and 1 March 2006.1 The Application was filed before
the African Court in 2015, that is, nine years after the last decisions of
the domestic courts. This Application should have been rejected by this
honourable Court because of the time - too long - elapsing between
2006 and 2015.
16. Procedural incidents seem to have been debated in the case,
but this could not convince. The context of the case, indeed, shows
1 Matter of Werema Wangoko Werema and Waisiri Wangoko v Tanzania, 7

December 2018, p 3, para 6.
that no legally valid element intervened to breach the nine years period
preceding the Application before the African Court. The Court should
have proffered as reason for rejecting the Applicant’s case the general
principle of reasonable time2.
17. It will therefore be shown that this appeal is manifestly out of
time (I). Besides, the imperativeness of reasonable time will be raised
as it renders legally incomprehensible the decision of the Court in this
case. The appeal of Messers Werema against Tanzania should be
deemed inadmissible (II).
I. That the Application was filed out of time is clearly

established
18. The mere fact that an appeal is out of time obliges the judge to
dismiss it, whatever the cause. This is somehow a counterpart to the
obligation on the part of States to organize their judicial system in a
way that ensures that their courts can guarantee for everyone the right
to obtain a final decision on disputes within a reasonable time.
19. As has been stated, the dates, which are not contested by the
Applicants, indicate clear nine years between the Tanzanian domestic
judges and the date on which this Court was seized (2006-2015).
Two elements, which are fairly broadly recognized in the Court’s
jurisprudence could have interrupted and reactivated these time
frames; they are the present application for review in this case (A) and
the incident resulting from a letter from the Tanzania Human Rights
Commission(B). The inadmissibility of the application for review as
submitted confers no new right in as much as the appeal was submitted
out of time. The issue is therefore no longer that of exhaustion of local
remedies, since the local remedies had been exhausted in this case.
This can therefore be considered as having no legal effect, same as
the issue of the letter from the Tanzania Human Rights Commission
referred to in the case file.
A. The Applicants’ Application for review was out of time,

and hence fruitless
20. The review remedy was one of the arguments available to

reactivate the case. It is apparent from the case file that the application
for review of their conviction before the Court of Appeal was dismissed
on the ground that it had been brought out of time. An appeal may be
2 IN Fauveau , ‘Duration of international trial and the right to a fair trial’,(2010) Revue
québécoise de droit international, Hors-série, 243.
considered only if it is positive, regardless of its merits. It legitimately

must not amount to a maneuver or a diversion. It must fulfill the
conditions of admissibility. The appeal for review of a decision must
itself be valid and must be filed within deadlines, if the appeal is to
reactivate the deadlines.
21. The Applicants could have requested, and could still request, an
extension of time. Messers Werema do not challenge this observation,
but instead sought to circumvent it through extra-judicial elements,
elements that Tanzanian justice refuses to internalize. Even if one
holds the view that the national judge must not lend himself to a rigid
interpretation of the domestic law3, he retains the power of control over
the time in which to render justice in the interest of all. The view may
be held that the Tanzanian judge had been able to assess the merits of
the appeal brought before him.
22. Since the time limit had been set, the Applicants could have
requested an extension of time. They simply suggest that they
hardly cooperated in a proper administration of justice. It is in these
circumstances that the Respondent State, concerned about the idea of
rendering justice to the victims, was able declare that the Application
could not succeed. We are faced in this regard with the assumption
from which the idea was forged that the right of access to the courts that
benefits the litigants is not absolute; that it has obvious and accepted
limitations. This is particularly the case for the conditions of admissibility
of an application. The said conditions, by their very nature, call for
regulation by the State. The latter has a margin of manoeuver in making
assessment.4 This, indeed, have been accepted by jurisprudence and
doctrine. These powers of the State are always in a relation of tension
between the offense committed and the administration of a just and
proportionate punishment.
B. The incident introduced by the Tanzania Human

Rights Commission does not prosper
23. An investigation by the Commission for Human Rights and

Good Governance (CHRGG) supposedly revealed that the victim
had received reparation from the actual aggressors, at the request
3 ECHR: Judgment Ivanova and Ivashova v Russia, 26 April 2017

4 ECHR: Matter of Luordo v Italy, 17July 2003 : “The Court also recalls that the
right to a tribunal is not absolute; it lends itself to implicitly accepted limitations,
particularly with regard to the conditions of admissibility of an appeal, because by
its very nature it requires a regulation by the State, which enjoys in this respect
a certain margin of manoeuvre in making assessment” (Ashingdane v United
Kingdom, Judgment of 28/5/1985, Série A No. 93, pp. 24-25, para 57) », para 85.
of the local authorities That procedural incident seemed to show that

the conviction of Messers Werema was either wrong or improper. It is
presumably based on a mistake of fact as regards the identity of the
true perpetrators of the crimes. The Applicants allege that this finding
was confirmed by “the unfolding truth”. These facts were presumably
not mentioned in the records of all the proceedings conducted by the
domestic courts.
24. The aforesaid allegations are contained in a letter from the
Commission for Human Rights and Good Governance, an organ of
the Government of the Respondent State established for the purpose
of promoting human rights. The evidence on file shows that the
Respondent State was aware of the Commission’s findings. In any
event, only the national judge, subject to a denial of justice, may re-
examine and validly adjudicate on the facts initially placed on the file
record of a case.
II. Messers Werema’s Application against Tanzania

should be deemed inadmissible for having been filed in an
unreasonable time
25. An action can only be brought within an acceptable period of

time, mindful of the procedure and guaranteeing the rights of others.
“Reasonable period of time”5 presupposes three dimensions, that is,
the reasonable period of time to be respected in domestic proceedings,
the reasonable period of time within which the international court must
render its decision and, finally, the reasonable period of time that the
Applicant must observe in submitting his application to the international
judge.6 It is the latter dimension that is at issue in the Werema case
before this Court. In the same vein, the International Court of Justice
recognized a corpus of rules in its Advisory Opinion on the Review
of Judgment No. 158 of the United Nations Administrative Tribunal
in 1973,7 which includes procedural rights, “the right of access to an
independent and impartial tribunal established by law, the right to obtain
a court decision within a reasonable time ...”. This is the line followed
5 Article 8.1 of the Inter-American Convention on Human Rights provides that: “Every
person has the right to a hearing, with due guarantees and within a reasonable
time, by a competent, independent, and impartial tribunal, previously established
by law…”
6 Article 7 of the African Charter on Human and Peoples’ Rights stipulates that:
“Every individual shall have the right to have his cause heard. This comprises:
… the right to be tried within a reasonable time by an impartial court or tribunal”.
7 ICJ : Application for review of Judgment No. 158 of the United Nations Administrative
Tribunal, Advisory Opinion, 12 July1973, Rec. 1973, p. 209, para92
by the Court and as expressed in Norbert Zongo v Burkina Faso,8 of

which the famous paragraph 121 states that the Court “appreciates the
reasonableness of reasonable time on a case-by-case basis” (A). This
analysis leads to the conclusion that the Messers Werema arrived late
before the African Court and that their application does not respect the
fundamental principle of reasonable time (B).
A. An infringement of the fundamental principle of

reasonable time
26. Desperate, the Applicants seem to have simply gone in search of

new judgments in disregard of the time and the role of each jurisdiction.
In Ernest Francis Mtingwi v Tanzania, however, the Court declared that
it is not an appellate body for decisions rendered by national courts.
This position was also emphasized in its judgment of 20 November
2015 in the matter of Alex Thomas v Tanzania. It is up to each court
to ascertain whether actions have been brought before it within a
reasonable time. The Court had to indicate that it did not deviate from
its jurisdiction to ascertain whether the proceedings before the national
courts had met the international standards established by the Charter
or other applicable human rights instruments9.
27. It turns out that, in this case, the Court should dismiss this
Application for having been filed within unreasonable time. The
Applicants in fact lodged an application for review of the judgment of
the Court of Appeal on the ground that it contains “manifest errors”.
On 19 March 2015, the Court of Appeal dismissed the Application on
the ground that it had not been filed within the time frame prescribed
by law. The Applicants do not dispute the lateness of their application
for review pursuant to Article 107(A)(2)(c) and (e) of the Constitution
of Tanzania. The time limit for appealing to the Court of Appeal in this
case is the one applicable to ordinary proceedings, and this period may
be extended for just cause. The Application did not meet the conditions
of admissibility set out in Article 40(5) of the Rules concerning the
28. It is clear that the application for review was not presented in
acceptable terms before the domestic judge who had jurisdiction to
hear it. As such, it cannot justify the fact that the Court regards it as
an element capable of reactivating the assessment of reasonable
8 Matter of Norbert Zongo, Preliminary objection and merits, 29/6/2013 and

28/3/2014
9 Matter of Norbert Zongo, Preliminary objection and the merits, 29/6/2013 and
28/3/2014.
time. Presented in 2015, the African Court accepts, in the interest of

effective preservation of human rights, that extraordinary remedies do
reactivate deadlines, but it is right that the said remedies comply with
the law and that they meet the required conditions. The application for
review Werema et al has been submitted out of time and the Applicants
themselves do not dispute this.
29. It was during the Genie Lacayo case, subject of the decision of
29 January 1997, that the Inter-American Court was able to adjudicate
for the first time on application of Article 8, paragraph 1 of the Inter-
American Convention on Human Rights. The Court had defined the
principle of reasonable time. On the criteria defined by the inter-
American judge in the afore-mentioned important jurisprudence, one
of them is notable in the Werema case: the non-diligent character of
the Applicants10.
B. A position dismissing the Application in this case

would not have contradicted the Court’s jurisprudence
30. The Court had two options: (1) to dismiss, by way of an order,
after finding that the 19 March 2015 review decision had been dismissed
for having been filed out-of- time; or, (2) having associated the merits
with the procedure, take a relatively simple decision to dismiss.
31. Our jurisprudence is precise. Applicants are not required to
exhaust extraordinary remedies. The Court had noted that in the
Tanzania judicial system, the procedure for filing an application for
review before the Court of Appeal is an extraordinary remedy which the
Applicants are not required to exhaust before bringing a case before
it.11 When they exercise this remedy to activate a deadline, the balance
of rights and legal certainty must be recognized in order to recognize
the procedural and substantive conditions that must be respected. The
Werema review application did not meet these conditions.
32. The duty of promptness attached to human rights litigations has
been observed by the Tanzania judicial authorities. The deficiencies
were not held against them until the late application submitted for
review. In Wong Ho Wing v Peru,12 the Inter-American Court analyzed
compliance with the right to judicial protection and procedural
safeguards. In that case, the Inter-American Court sets forth four
10 Among the three criteria identified for assessing reasonable time, complexity of the
case, behavior of the Parties and the attitude of the courts, are recognized.
11 Matter of Mohamed Abubakari, 3/6/2016, paras 66 to 68.
12 IACHR Matter of Wong Ho Wing v Peru, Preliminary Objection, Merits, Reparation
and Costs 30/6/2015.
elements to be taken into account in determining whether a procedure

has exceeded the reasonable time. These are: the complexity of the
case, the procedural activity of the person concerned, the conduct of
the judicial authorities and the sufferings of the person concerned as
a result of his legal situation. These conditions were followed in the
Werema case until rejection of the request for review.
33. To take into account the peculiarity of the case, it may be noted
that it involved a period of too long a stagnation. The Court noted that
the Court of Appeal delivered its criminal appeal judgment on 1 March
2006. The Court further found that the application was lodged before
it on 2 October 2015. The unduly long stagnation period ended. This
state of affairs has already been denounced in international human
rights law. The Applicants must be diligent and not provoke inactions in
the judicial process. The Applicants are required to do so in their own
interest and for equilibrium of the law.13 In view of the foregoing, I file
this dissenting opinion as I could not be convinced of the outcome of
this case.
13 The time-limits for bringing proceedings leading to inadmissibility (Melnyk v

Ukraine, para 26, Miragall Escolano and Others v Spain para 38). It is however up
to the litigants to act with due diligence (Kamenova v Bulgaria, paras 52-55).
Application 006/2016, Mgosi Mwita Makungu v Republic of Tanzania

Judgment, 7 December 2018. Done in English and French, the English
The Applicant had been convicted and sentenced for robbery with
violence and armed robbery. He brought this Application claiming a
violation of his rights as a result of his detention and trial. The Court held
that the Applicant had been prevented from appealing his conviction and
sentence by not being provided with certified true copies of the records of
proceedings and judgments in the case. The Court held that there were
exceptional and compelling circumstances to order the release of the
Applicant who had served 20 years of a 30-year prison sentence.
Admissibility (exhaustion of local remedies, available remedies, 44,
extraordinary remedy, 46)
Fair trial (appeal, access to record of proceedings and judgment, 58, 65)
Reparations (release as an exceptional remedy, 84-86)
Separate Opinion: TCHIKAYA
Fair trial (evidence, 6, 13 ,14)
I. The Parties
1. The Applicant, Mr Mgosi Mwita Makungu, a national of the

United Republic of Tanzania, was convicted of the offences of robbery
with violence and armed robbery and is currently serving a total of
thirty (30) years imprisonment for the two convictions.
2. The Respondent State, the United Republic of Tanzania
(hereinafter referred to as the “Charter”) on 21 October 1986 and to
Rights (hereinafter referred to as “the Protocol”) on 10 February 2006.
Furthermore, on 29 March 2010 the Respondent State deposited
the Declaration as prescribed under Article 34(6) of the Protocol.
Makungu v Tanzania (merits) (2018) 2 AfCLR 550 551
3. The claim arises from the Respondent State’s alleged failure

to provide the Applicant with certified true copies of the records of
proceedings and judgments of Criminal Case No. 244 of 1995 and
Criminal Case No. 278 of 1995 heard at the District Court of Bunda.
In Criminal Case No. 278 of 1995, he was charged with the offence
of robbery with violence and convicted and sentenced to fifteen (15)
years imprisonment on 15 April 1996. The judgment in Criminal Case
No. 244 of 1995, where the Applicant was charged with the offence of
armed robbery, was delivered on 18 June 1996, convicting him and
sentencing him to fifteen (15) years imprisonment.
4. The Applicant indicated his intention to appeal the convictions
and sentencing in both cases, by filing notices of appeal on 16 April
1996 with respect to Criminal Case No. 278 of 1995 and on 22 June
1996 with respect to Criminal Case No. 244 of 1995 within the time
prescribed by law.
5. The Applicant asserts that, in order to pursue the appeals
against these judgments of the District Court of Bunda, he requested
for the certified true copies of records of proceedings and judgments
in both cases, through numerous requests to the concerned judicial
authorities but this has been to no avail. He further alleges that as at
the time of filing the Application before this Court, twenty (20) years
have elapsed since his conviction and sentencing and he has been
unable to file his appeal.
6. The Applicant filed this Application praying the Court to find
the Respondent State in violation of some provisions of the Charter.
The Applicant appended a request for Provisional Measures to his
Application, for the Court to order the Respondent State to provide
him with the certified true copies of the records of proceedings and
judgments in the two afore-mentioned cases, failure to which it should
order his release.
7. In his Application, the Applicant alleges that the Respondent

State’s omission to give him certified true copies of the records of
proceedings and judgments in Criminal Cases No. 244 of 1995 and
No. 278 of 1995 heard at the District Court of Bunda contravenes his
rights that are provided in the Respondent State’s Constitution. He
claims:
“That the administrative omission of the respondent has all along

been, and it is more likely so to prevail if not judicially attacked,
contravening the rights and equality before the law as provided
for by Article 13(1) of the constitution of the United Republic of
Tanzania amongst many others of the constitution”.
Specific provisions of the Constitution of Tanzania 1977, which are

violated, so the basis of this application: -
That, the basis of this application (violations) is basically pagged

(sic) on Article 13(1),3, 4, 6(a) and 26(1), 2 of the constitution of the
united Republic of Tanzania, 1977.”

claims that the Respondent State’s failure to provide him with certified
true copies of the record of proceedings and judgments is proof of
discrimination against him and a violation of his right to equal protection
of the law and equal protection of the law as well as to his fair trial rights
provided by Articles 2, 3(1) and (2) and Article 7 of the African Charter.
9. The Application to which was appended a request for Provisional

Measures, was filed on 29 January 2016 and served on the Respondent
State on 23 February 2016.
10. The Application together with the request for Provisional
Measures was transmitted to the State Parties to the Protocol, the
Chairperson of the African Union Commission, the African Commission
on Human and Peoples’ Rights and the Executive Council of the African
Union through the Chairperson of the African Union Commission, on
12 April 2016.
11. On 28 March 2016, on the direction of the Court, the Registry
requested Pan African Lawyers’ Union (PALU) to provide the Applicant
with legal assistance. On 21 April 2016, PALU informed the Registry
that it would represent the Applicant.
12. The Respondent State was again, on 1 June 2016, notified of
the Applicant’s request for Provisional Measures on the provision of
the certified true copies of records of proceedings and judgments of
the District Court of Bunda, which was appended to the Application.
The Respondent State was also directed to file the Response to the
request for Provisional Measures within thirty (30) days of receipt of
the notice.
13. On 12 May 2016, the Respondent State filed a request for
extension of time to file the Response to the Application. The Court
granted fifteen (15) days from receipt of a notice dated 15 June 2016,
for the filing of these documents.

14. On 28 June 2016, the Respondent State requested for another
extension of time to file its Response to the Application. The Court
granted this request by an additional fifteen (15) days, to run from the
date of receipt of the notice dated 4 July 2016.
15. On 25 July 2016, the Respondent State filed the Response to
the Applicant’s request for Provisional Measures and in the interest of
justice, the Court deemed it as properly filed. This was transmitted to
the Applicant on 28 July 2016 directing that the Applicant should file the
Reply thereto within thirty (30) days of receipt.
16. The Respondent State filed the Response to the Application on
27 July 2016 and in the interest of justice, the Court deemed it as
properly filed. The Response was transmitted to the Applicant on 28
July 2016 directing him to file the Reply within thirty (30) days.
17. On 1 September 2016, the Applicant filed the Reply to the
Respondent State’s Response to the Application and the Reply to the
request for Provisional Measures. These Replies were transmitted to
the Respondent State for information on 7 September 2016.
18. The Parties were informed that pleadings were closed with effect
from 19 December 2016.
19. On 30 January 2017, the Applicant filed a new request for
Provisional Measures on the basis that he needs the certified true
copies of the records of proceedings and judgments to file his appeal
and that his continued inability to access them violates his rights under
the Charter.
20. On 1 November, 2017 the Registry informed the Parties of the
re-opening of pleadings in order to request the Respondent State to file
the certified true copies of the records of proceedings and judgments
for Criminal Case No. 244 of 1995 and Criminal Case No. 278 of 1995
from the District Court of Bunda within fifteen (15) days of receipt of
the notice.
21. The Respondent State did not file the certified true copies of the
records of proceedings and judgments as ordered.
22. On 23 March 2018, the Court dealt with the request for
Provisional Measures and, having noted that the request is linked to
the prayers on the merits of the Application and that granting it would
predetermine the matter in that regard, dismissed the request.
23. On 9 April 2018, the Parties were informed of the close of the
written procedure and that there would be no public hearing on the
matter.
24. The prayers of the Applicant, as submitted in the Application,

are:
“i. This Hon. Court on Human and People’s (sic) Rights
to declare the respondent (sic) administrative omission
unconstitutional.
ii. Declaratory order to enable the Applicant to be immediately
(with time limit) supplied with copies of proceeding(sic)
and Judgment (sic), and if the opposes (fail to supply),
order the immediate release of the Applicant from prison.
iii. Costs to follow the event, and
iv. Any other order(s)/relief(s) that would suit the current and
future interest of justice in the circumstances of the case.
v. That, this Hon. Court be pleased to grant the Applicants(sic)
prayer to be facilitated with free legal representation or
legal assistance as governed by Rule 31 of the Rules of
the court and Article 10(2) of the protocol on the court.”
also prays the Court to declare:
“That: Since the respondent state (The United Republic of Tanzania)
has violated the Applicant’s rights provide (sic) under Article 2, 3(1)
and (2) and 7(1)(a) of the African Charter on Human and Peoples’
Right be pleased to grant and declare orders of merits expressed
in this (sic) grounds.
That: the application declared has merit and be granted with costs
following the event.”
26. In its Response, with regard to the admissibility of the Application,

the Respondent State prays the Court to rule:
“i. That the Application has not met the admissibility
requirements provided under Rule 40(5) of the Rules and
Article 6(2) of the Protocol.
ii. That the Application is inadmissible and be duly
dismissed.”
27. The Respondent State also prays that the Court declare that it
has not violated Articles 2, 3(1) and (2) and 7(1)(a) of the Charter, the
Application lacks merit and it should be dismissed with costs.
V. Jurisdiction
28. The Respondent State has not raised an objection to the

jurisdiction of the Court. In terms of Rule 39(1) of its Rules, “the Court
shall conduct preliminary examination of its jurisdiction.”
29. With regard to its material jurisdiction, the Applicant has sought
reliefs based on allegations relating to the violation of his rights under

Articles 13(1), 13(3), 13(6)(a), 26(1) and 26(2) of the Constitution of the
Respondent State.
30. In accordance with Article 3(1) of the Protocol and Rule 26(1)
(a) of the Rules, the Court’s material jurisdiction relates only to the
application and interpretation of human rights instruments to which a
State is a Party, rather than to the application and interpretation of the
Respondent State’s Constitution.
31. The Court notes however, that the rights provided for under the
afore-mentioned provisions of the Respondent State’s Constitution
correspond to the rights set out in Articles 2, 3(1) and (2) and 7(1)(a)
of the Charter on the right to non-discrimination, the right to equality
before the law and equal protection of the law and the right to appeal
to competent national organs against acts violating rights.
32. With regard to the other aspects of its jurisdiction, the Court
holds that:
“i. It has personal jurisdiction over the Parties because the
Respondent State deposited the Declaration pursuant
to Article 34(6) of the Protocol on 29 March 2010 and
this Declaration enabled the Applicant to file the present
Application in accordance with Article 5(3) of the Protocol.
ii. It has temporal jurisdiction because the alleged violations
are continuous in nature.1
iii. It has territorial jurisdiction given that the facts of the
matter occurred within the territory of a State Party to the
33. From the foregoing, the Court finds that it has jurisdiction to hear
the instant case.
VI. Admissibility
Rules”.
35. Rule 40 of the Rules which in substance restates Article 56 of the
Charter sets outs the requirements for the admissibility of applications
as follows:
1 Application No. 013/2011, Judgment of 28/03/2014, Norbert Zongo and Others v

Burkina Faso (hereinafter referred to as “Norbert Zongo v Burkina Faso Judgment”),
para 50; Application No. 006/2015. Judgment of 23/03/2018, Nguza Viking (Babu
Seya) and Johnson Nguza (Papi Kocha) v United Republic of Tanzania (hereinafter
referred to as “Nguza Viking v Tanzania Judgment”), para 38.


mass media;
between the Parties, the Respondent State has raised an objection
regarding the exhaustion of local remedies.
A. Condition of admissibility in contention between the

Parties
meet the admissibility conditions stipulated under Articles 56(5) of
the Charter, Article 6 of the Protocol and Rules 40(5) of the Rules on
38. The Respondent State argues that the Applicant has not made
use of the local remedy provided for under the Constitution of the
United Republic of Tanzania. In this regard, the Respondent State
submits that its Basic Rights and Duties Enforcement Act, which was
enacted for the enforcement of the rights and duties provided for under
Part III of its Constitution, provides for a procedure for enforcement of
constitutional rights such as those the Applicant alleges were violated.
The Respondent State avers that the Applicant however failed to
pursue this remedy before seizing the Court.
39. The Applicant states that he has been unsuccessful in his
attempts to ensure that his basic rights as provided for under Articles
12 to 29, under Part III of the Constitution of the United Republic of
Tanzania are respected, because of the unaffordable costs of filing
constitutional petitions at the High Court of Tanzania.

40. The Applicant further contends that the Respondent State’s
failure to issue him with the certified true copies of the records of
proceedings and judgments of the District Court of Bunda made it
impossible for him to exhaust local remedies because he could not
appeal the decisions in Criminal Case No. 244 of 1995 and Criminal
Case No. 278 of 1995 without them. The Applicant maintains that the
Respondent State has failed to protect and uphold his right to appeal
on time.
41. The Court notes that the requirement of exhaustion of local
remedies must be complied with before an Application is filed at this
Court. However, this condition may be exceptionally dispensed with
if local remedies are not available, they are ineffective, insufficient
or the domestic procedures to pursue them are unduly prolonged.
Furthermore, the remedies to be exhausted must be ordinary judicial
remedies.2
42. The Court notes that, in the instant case, the Applicant attempted
to use the available remedies, by filing a notice of appeal dated 16
April 1996 in respect of Criminal Case No. 278 of 1995 and a notice of
appeal dated 22 June 1996 in respect of Criminal Case No. 244 of 1995.
Thereafter, he requested for the certified true copies of the records of
proceedings and judgments in respect of these cases in order to file
the actual appeals. The Applicant followed up with the Magistrate in
Charge of the District Court of Bunda and the District Registrar and
Presiding Judge of the High Court at Mwanza, in this regard, without
any success. He also sought the intervention of the Respondent State’s
Commission on Human Rights and Good Governance but all his efforts
were futile.
43. Having failed to get the records of proceedings and judgments
for the two criminal cases, the Applicant filed Miscellaneous Criminal
Application No. 6 of 2014 at the High Court at Mwanza on the basis
of the right to equality before the law provided for in the Respondent
State’s Constitution, seeking to be allowed to file the appeals without
the certified true copies of the records of proceedings and of judgments.
This application was dismissed on 21 September 2015 for lack of merit.
In the obiter dictum, the High Court observed that the Deputy Registrar
of the High Court should ensure that all efforts are made to provide the
2 Alex Thomas v Tanzania Judgment op cit, para 64; Application No.003/2015.

Judgment of 28/09/2017, Kennedy Owino Onyachi and Charles John Mwanini
Njoka v United Republic of Tanzania (hereinafter referred to as “Kennedy Onyachi
and Another v Tanzania Judgment”), para 56; Nguza Viking v Tanzania Judgment
op cit, para 52; Application No. 032/2015. Judgment of 21/03/2018, Kijiji Isiaga v
United Republic of Tanzania (hereinafter referred to as “Kijiji Isiaga v Tanzania
Judgment”), para 45.
Applicant with the records and judgments to facilitate the filing of his
appeals but the instruction in the said obiter dictum was not followed.
44. Consequently, despite the Applicant having filed the notices
of appeal indicating his intention to appeal, he could not pursue his
appeals for lack of the certified true copies of the records of proceedings
and judgments. In this regard, the Court recalls its position that, for
remedies to be considered available, it is not enough that they should
be established in the domestic system but also that individuals should
be able to use them without any hindrance.3
45. Accordingly, in the instant case, the Court concludes that the
Applicant was impeded from pursuing the local remedies as a result
of the Respondent State’s failure to provide him with the certified true
copies of the records of proceedings and judgments.
46. With regard to the Respondent State’s contention that the
Applicant could have filed a constitutional petition regarding the
violation of his rights, the Court has already stated that this remedy
in the Tanzanian judicial system is an extraordinary remedy that
the Applicant is not required to exhaust prior to seizing this Court.4
Notwithstanding this, the Applicant filed a petition under the procedure
provided in the Respondent State’s Constitution for the enforcement of
fundamental rights, seeking to be allowed to file his appeal without the
records of proceedings and the judgments but this was dismissed for
lack of merit.
47. The Court thus finds that though local remedies were available,
the Applicant, was unable to utilise them due to the Respondent State’s
omission and failure to provide him with the necessary documents.
48. The Court therefore dismisses the Respondent State’s objection
to the admissibility of the Application for lack of exhaustion of local
remedies.

the Parties
49. The Court notes that following its finding that local remedies
were not available to the Applicant to exhaust, the issue of compliance
with Article 56(6) of the Charter as restated in Rule 40(6) of the Rules
3 Norbert Zongo v Burkina Faso Judgment, op cit, para 68; Application No.
001/2014. Judgment of 18/11/2016, Ac t ion Pour L a P r o t e c t i o n D e s D r o i t s
De L ’Homme v Cot e d’I v oir e, paras 94 - 106.
4 Alex Thomas v Tanzania Judgment, op cit, paras 60 - 62; Application No.007/2013.
Judgment of 03/06/2016, Mohamed Abubakari v United Republic of Tanzania
(hereinafter referred to as “Mohamed Abubakari v Tanzania Judgment”) paras 66 -
70; Application No.011/2015. Judgment of 28/09/2017, Christopher Jonas v United
on the filing of an application within a reasonable time following the

exhaustion of local remedies becomes moot.
50. The Court notes that there is no contention regarding the
compliance with the conditions set out in Article 56, Sub-Articles (1),
(2), (3), (4) and (7) of the Charter on, the identity of Applicant, the
language used in the Application, compliance with the Constitutive
Act of the African Union, the nature of the evidence adduced and the
previous settlement of the case, respectively.
51. The Court further notes that nothing on the record indicates
that these conditions have not been met and therefore holds that the
Application meets the requirements set out under those provisions.
52. ln light of the foregoing, the Court finds that the instant Application
fulfils all the admissibility requirements in terms of Article 56 of the
Charter as restated in Rule 40 of the Rules, and accordingly declares
the Application admissible.
VII. Merits
53. The Applicant alleges the violation of the right to appeal, the
right to equality before the law and equal protection of the law and the
right to non-discrimination, provided for under Articles 7(1)(a), 3(1) and
3(2) and 2 of the Charter, respectively.
A. Alleged violation of the right to appeal
54. The Applicant claims that his right to have his cause heard,
including the right to appeal, was violated when the Respondent
State failed to supply him with certified true copies of the records of
proceedings and judgments of the two cases in which he was convicted
by the District Court of Bunda. The Applicant alleges that it is due to
this failure that for more than twenty (20) years, he has been unable
to file appeals against the decisions of the District Court of Bunda.
The Applicant maintains that this failure is a violation of his right under
Article 7(1)(a) of the Charter.
55. The Respondent State refutes this allegation. It maintains that
the Applicant has the option of instituting a constitutional petition for the
enforcement of his basic rights and the remedies sought can be issued
by the High Court of Tanzania.
56. The Court observes that the right to appeal is a fundamental
element of the right to a fair trial protected under Article 7(1)(a) of the
Charter, which provides that:
comprises:
(a) the right to an appeal to competent national organs against acts


by conventions, laws, regulations and customs in force;”
57. This right to appeal requires that individuals are provided with an
opportunity to access competent organs, to appeal decisions or acts
violating their rights. It entails that States should establish mechanisms
for such appeals and take necessary action that facilitates the exercise
of this right by individuals, including providing them with the judgments
or decisions that they wish to appeal from.
58. In the instant Application the Court notes that the Applicant has
made numerous attempts to request for the certified true copies of
the record of proceedings and judgments from the Respondent State
to no avail. In the absence of the said documents, the Applicant was
not able to appeal his convictions and sentences in Criminal Case No.
244 of 1995 and Criminal Case No. 278 of 1995, to the High Court and
subsequently to the Court of Appeal.
59. The record before this Court shows that on 29 November 2000,
the Applicant wrote to District Registrar of the High Court at Mwanza,
enquiring on the status of his notice of appeal in respect of Criminal Case
No. 278 of 1995. The Court notes that in response to the Applicant’s
letter dated 16 January 2004, the District Registrar of the High Court
at Mwanza wrote to the Applicant on 9 February 2004 informing him
that the Court is yet to receive the records of proceedings for his cases
from the District Court of Bunda.
60. The record also indicates that the Magistrate in Charge of the
District Court at Mwanza, under whose administration the District Court
of Bunda falls, wrote to the Applicant on 13 October, 2010 informing
him that the records of proceedings for the two criminal cases had not
been returned from the High Court where it had been sent through
a letter dated 7 November, 2003 and therefore the Applicant should
follow up with the High Court at Mwanza to get these records.
61. There is evidence that the Applicant sought the intervention
of the Respondent State’s Commission on Human Rights and Good
Governance in this regard, on Criminal Case No.244 of 1995, through
his letter dated 28 December 2011. By its letter dated 3 July 2013,
the Commission advised the Applicant that by a letter dated 11 May
2012, the District Registrar of the High Court at Mwanza informed the
Commission that despite a lengthy follow-up on the matter, the records
of proceedings of the Applicant’s cases heard at the District Court of
Bunda could not be traced.
62. Besides, the record before this Court further attests to the fact
that the Applicant wrote to the Presiding Judge of the High Court at
Mwanza to follow up on the records of proceedings, particularly by
his letters dated, 14 October 2005, 18 March 2005, 28 June 2005, 2
September 2005, 4 December 2005, 8 January 2006, 2 April 2007, 24
July 2007, 10 September 2007, 7 December 2007, 9 March 2008, 15

June 2008, 30 September 2008, 29 December 2008, 12 April 2009,
24 August 2009, 6 December 2009, 7 April 2010, 2 September 2010,
14 January 2011, 15 August 2011, 18 December 2011, 12 September
2014, 24 January 2015 and 9 April 2015.
63. In his letter dated 28 March 2015 addressed to the Presiding
Judge of the High Court at Mwanza the Applicant indicates that his
appeals were never mentioned because the records of proceedings
and judgment were still being sought, yet the Magistrate in Charge of
the District Court of Bunda had advised him that he was waiting for the
records to be returned from the High Court where they had been sent.
64. Finally, the Applicant filed a petition at the High Court seeking
leave to file his appeal without the records of proceedings but this
petition was dismissed because, according to that court, allowing it
would have been inappropriate since it would have meant that the
appellate Court would have considered the appeal without having the
records and judgments of the trial Court that were to be appealed.
65. The Court therefore finds that by failing to provide the Applicant
with certified true copies of the records of proceedings and judgments
in Criminal Case No. 244 of 1995 and Criminal Case No. 278 of 1995
heard at the District Court of Bunda, the Respondent State has violated
the Applicant’s right to appeal as provided under Article 7(1)(a) of the
Charter.
B. Alleged violation of the right to equality before the law

and equal protection of the law
66. The Applicant alleges that failure of the Respondent State

to provide him with the record of proceedings and the judgments
constitutes an administrative omission and a violation of his right to
equality before the law and equal protection of the law as provided for
in Article 3(1) and 3(2) of the Charter.
67. The Respondent State disputes this and reiterates that the
Applicant had the opportunity to file a constitutional petition which was
a remedy that was readily available to him just as it is available to
everyone and ensuring equality before the law and equal protection of
the law.
68. The Court notes that Article 3 of the Charter guarantees the
right to equality before the law and equal protection of the law in the
following terms:
“(1) Every individual shall be equal before the law
(2) Every individual shall be entitled to equal protection of the law.”
69. In the context of judicial procedures, the right to equality before
the law and equal protection of the law requires that everyone should
be treated equally before courts and tribunals. The Applicant has made
a general claim that the denial of the opportunity to file an appeal at
either the High Court or the Court of Appeal due to the Respondent
State’s failure to provide him with the certified true copies of the
records of proceedings and judgments of the District Court of Bunda
has resulted in a violation of this right.
70. The Court reiterates that the Applicant bears the burden of
proving this claim,5 but he has failed to show how his right to equality
before the law and equal protection of the law has been violated. The
Court has stated that general claims are not enough to establish that
the Respondent State has violated a right.6
71. The Court therefore finds that the Respondent State has not
violated the Applicant’s right to equality before the law and equal
protection of the law provided under Article 3(1) and (2) of the Charter.
C. Alleged violation of the right to non-discrimination
72. The Applicant submits that by failing to provide him with

certified true copies of the record of proceedings and judgments, the
Respondent State has violated his right to non-discrimination as set
out in Article 2 of the Charter.
73. The Respondent State disputes this allegation and avers that
the Applicant has not proved it.
“Every individual shall be entitled to the enjoyment of the rights and
freedoms recognised and guaranteed in the present Charter without
distinction of any kind such as race, ethnic group, colour, sex, language,
religion, political or any other opinion, national and social origin, fortune,
birth or any status.”
75. In the Matter of the African Commission on Human and Peoples’

Rights v Republic of Kenya, the Court noted that the principle of non-
discrimination prohibits any differential treatment among persons
existing in similar contexts, on the basis of one or more of the prohibited
grounds listed under Article 2 of the Charter.7
76. In the present case, the Applicant has failed to show how his
5 Application No. 003/2015. Judgment of 28/09/2017, Kennedy Owino Onyachi

and Another v United Republic of Tanzania, para 140; Application No. 005/2015.
Judgment of 11/05/2018, Thobias Mango Mang’ara and Shukurani Masegenya
Mango v United Republic of Tanzania, para 104.
6 Alex Thomas v Tanzania Judgment, para 140; Mohamed Abubakari v Tanzania
Judgment, para 154; Kijiji Isiaga v Tanzania Judgment, para 86.
7 Application No. 002/2012. Judgment of 26/05/2017, African Commission on
Human and Peoples’ Rights v Republic of Kenya, para 138.
right not to be discriminated against on the basis of any of the ground(s)

prohibited under Article 2 of the Charter has been violated.
77. The Court therefore finds that the Respondent State has not
violated the Applicant’s right to non-discrimination provided under
VIII. Reparations
78. As indicated in paragraphs 24 and 25 and above, the Applicant

requests that the Court declare the Respondent State’s administrative
omission to be unconstitutional, grant him a declaratory order to be
immediately supplied with certified true copies of proceedings and
judgments in Criminal Cases No. 244 of 1995 and 278 of 1995 and if
the Respondent State fails to supply them then the Court should order
his immediate release from prison and any other orders or reliefs it
may deem fit.
79. In its Response to the Application, as indicated in paragraph 26
and 27 above, the Respondent State did not address the Applicant’s
prayers on remedies, rather it stated that the Application is inadmissible,
the Court should find that it has not violated Articles 2, 3(1) and (2) and
7(1)(a) of the Charter and the Application should be dismissed with
costs for lack of merit.
there has been a violation of a human or peoples’ rights, it shall make
81. In this respect, Rule 63 of the Rules stipulates that “the Court
circumstances so require, by a separate decision”.
82. The Court recalls its position on State responsibility in Reverend
Christopher R Mtikila v United Republic of Tanzania, that “any violation
of an international obligation that has caused harm entails the obligation
to provide adequate reparation”.8
83. With regard to the issue of supplying the certified true copies of
the records of proceedings and judgments, the Court had, pursuant
to Rule 41 of the Rules, directed the Respondent State to file them,
as stated in paragraph 20 above, but the Respondent State did not
comply.
84. As regards the Applicant’s prayer to be released if the
8 Application No. 011/2011. Ruling on Reparations of 13/06/2014, Reverend

Christopher R Mtikila v United Republic of Tanzania, para 27.
Respondent State fails to provide him with the certified true copies of
the record of proceedings and judgments, the Court has established
that such a measure could be directly ordered by the Court only in
exceptional and compelling circumstances.9 The Court has stated that
examples of such compelling circumstances include “if an Applicant
sufficiently demonstrates or the Court itself establishes from its findings
that the Applicant’s arrest or conviction is based entirely on arbitrary
considerations and his continued imprisonment would occasion a
miscarriage of justice. In such circumstances, the Court has, pursuant
to Article 27(1) of the Protocol to order “all appropriate measures”
including the release of the Applicant”.10
85. In the instant case, the Court has found at paragraph 65 of this
judgment that the Respondent State has violated the Applicant’s right
to appeal under Article 7(1)(a) of the Charter by not providing him the
certified true copies of the records of proceedings and judgments in
the two Criminal Cases. The Court notes that this has resulted in the
Applicant having served twenty (20) years in prison, a period which
represents two-thirds of the total prison term of thirty (30) years
following his convictions, without having exercised his right to appeal.
86. The Court considers that these circumstances have resulted in a
miscarriage of justice and are compelling enough to warrant it to grant
the Applicant’s prayer to be released as being the most proportionate
measure to restore the Applicant.
IX. Costs
87. The Applicant has made submissions that costs be granted

following the event. The Respondent State has asked for the costs to
be borne by the Applicant.
88. The Court notes that Rule 30 of the Rules of Court provides that
“unless otherwise decided by the Court, each Party shall bear its own
costs”.
89. The Court will make a ruling on costs when considering the
claim on reparations.
X. Operative part
9 Alex Thomas v Tanzania Judgment op cit, para 157; Mohamed Abubakari v

Tanzania Judgment op cit, para 234.
10 Application No. 016/2016. Judgment of 21/09/2018, Diocles William v United
Republic of Tanzania, para 101; See also Application No. 027/2015. Judgment of
21/09/2018, Minani Evarist v United Republic of Tanzania, para 82.
The Court,
Unanimously:
On jurisdiction
i. Declares that the Court has jurisdiction.
On admissibility
ii. Dismisses the objection on the admissibility of the Application;
iii. Declares that the Application is admissible.
On merits
iv. Finds that the Respondent State has not violated Article 2 of the
Charter as regards the right to non-discrimination;
v. Finds that the Respondent State has not violated Article 3(1)
and 3(2) of the Charter as regards to the right to equality before the law
and equal protection of the law;
vi. Finds that the Respondent State violated Article 7(1)(a) of the
Charter as regards the failure to provide the Applicant with the certified
true copies of the records of proceedings and judgments in Criminal
Case No. 244 of 1995 and Criminal Case No. 278 of 1995 heard at
the District Court of Bunda, to facilitate the Applicant file the appeals
therefrom and therefore orders the Respondent State to provide them
to the Applicant;
On reparations
vii. Orders the Respondent State to release the Applicant from
prison within thirty (30) days of this Judgment;
viii. Reserves its decision on the Applicant’s prayer on other forms
of reparation;
ix. Allows the Applicant, in accordance with Rule 63 of its Rules,
to file his written submissions on the other forms of reparation within
sixty (60) days from the date of notification of this Judgment; and the
Respondent State to file its Response thereto within thirty (30) days
from the date of receipt of the Applicants’ written submissions;
x. Orders the Respondent State to submit to the Court a report on
the measures taken in respect of paragraphs (vi) and (vii) above within
sixty (60) days of notification of this Judgment; and
On costs
xi. Reserves its decision on costs.
Separate opinion: TCHIKAYA
1. There are works which though collective and have a common

goal, still keep their specificities. The Mgosi Mwita Makungu v United
Republic of Tanzania decision of the African Court lends credence
to this assertion. I agree with the majority of the judges as regards
admissibility, jurisdiction1 and the operative part, but I believe that the
Court should have given further thought to the issue of consistency
of the evidence before it in this case. The question arose as to the
admissibility of Mr Mgosi’s assertions in support of his claims; a crucial
question, one may say, that the court should have set out in detail.
2. I believe that the court should have paid particular attention to
the question which the point of law raises in that judgement. Had Mr
Mgosi sufficiently proven his key allegation that the Tanzanian State
failed to provide him with the documents necessary for his appeal?
The African Court should have made sure that this issue is well tackled
and investigated well in advance of any other facets of this dispute. A
fortiori, it is known that international human rights law has abundant
jurisprudence2 protecting the rights of individuals against the non-
availability of documents necessary for procedure. The court was aware
of this and it was within its jurisdiction to enforce this fundamental right.
But, of course, this must be clearly proven.
3. It is needful to consider not only the insufficiency of the allegations
on the ground that the Applicant did not substantiate them (I) but also
that proof of claims has always impacted the judgements of the Court.
I. The claims presented are not substantiated
4. The Applicant sought compensation from the Arusha Court

sitting in Tunis, for the prejudice generated by the refusal of the State
of Tanzania to provide copies of the records of proceedings in the
criminal judgments of the Bunda District Court and the decisions of
18 June 1996 and 15 April 1996, respectively, finding the Applicant
guilty of the offence of armed robbery and sentencing him to 35 years
in prison. The Applicant also claimed that he had requested the said
1 There were no objections to jurisdiction or admissibility. As it established in Alex

Thomas v Tanzania, 20/11/2015 and Peter Joseph Chacha v Tanzania, 28/3/2014:
…”as long as the rights allegedly violated are protected by the Charter or any
other human rights instrument ratified by the State concerned , the Court will have
jurisdiction over the matter”.
2 EUCJ, Seyersted and Wiberg v Sweden, 20/9/2005 (right of access to personal
information in the file held by the public services); CEDH Ramzy v The Netherlands,
20 May 2010; CEDH, Gulijev v Lettonia, 16 December 2008; CEDH, Tsourlakis v
Greece, 15 October 2009.
records from the Respondent State on several occasions, but to no

avail. He said he needed the documents to lodge appeal. He further
alleged that twenty years had elapsed between his declaration of guilt
and conviction on the one hand, and the filing of his application before
the Court on the other. Given the passage of time, it is understandable
that the evidence in assessing this allegation would be of paramount
importance in the conduct of the trial before the Court.
5. It was clear from his application that the Applicant did not
contest the charges levelled against him; on the contrary, his claims
were centred on the alleged failure of the Tanzanian State to make
legal remedies available to its citizen in accordance with the African
Charter on Human and Peoples’ Rights3. However, it is apparent from
the documents before the Court that Mr. Mgosi filed a notice of appeal
dated 16 April 1996 in criminal case No. 278 of 1995 and another
notice of appeal dated 22 June 1996 in criminal case No. 244 of 1995.
In accordance with Tanzanian law, these notices would constitute
appeals in the strict sense only if they are accompanied by an appeal
file. Such file must be accompanied by records of the trial proceedings.
The absence of these documents allegedly handicapped the Applicant
in his effort to file a proper appeal. He was reportedly refused the
documents, thus making his appeal incomplete or inadmissible.
6. In the instant case, it seems unconvincing: (1) that the key
decisive elements emanate from the claims of Mr Mgozi and (2) that
the said claims are not verified and sufficiently investigated by the
Court, even though the latter relies on them for its proceedings, and (3)
that the Court is discarding an approach which it has always adopted.
On 23 March 2018, it had this attention in the case of Nguza Viking
(Babu Seya) and Johnson Nguza (Papi Kocha) v Tanzania, which was
decided on 23 March 2018. The court emphasised the value of greater
scrutiny of the probative value of allegations. The court seemed to
have established its jurisprudence based on the evidence adduced by
the Parties in the context of its jurisdiction in that case. There was in
the Nguza dispute, a problem of identification of the accused persons.
The Court noted that “the court is of the opinion that the decision on
the form of identification of the accused falls within the discretion of
the competent national authorities, since it is they which determine the
3 The violations are: “the right to equality before the law and to equal protection
of the law (Section 13(1) of the Charter); the right to protection of its interests
by courts and public bodies; the right to non-discrimination by persons exercising
state functions (Section 13(3) of the Charter); the right to a fair trial, to lodge an
appeal or to exercise any other remedy against the decision of a court or any other
competent body (Article 13(6)(a)) of the Charter; and also as this led to a failure to
observe National Law, there was a breach of the duty to observe and respect the
Constitution and laws (Article 26(1))...finally, an infringement of the right to appeal
(Article 7(1)(a)).
probative value of the evidence and they have a wide discretion in this
respect. The Court generally defers to the decision of national courts
as long as this does not give rise to a denial of justice”4. The Court
adopted a concrete approach to its investigation; a public hearing was
required.
7. A litigation is the sum total of litigious material facts5 in so far as
those facts constitute essential elements of the decision. The material
accuracy of such elements is consubstantial with the decision. Here is
a meeting point between domestic human rights law and international
human rights law6. The administration of evidence will always be a legal
as well as a practical issue. Mr Mgosi acknowledged before the Court
that he had filed two notices of appeal without being able to tender
exhibits. Apart from the fact that he does not state before the Court that
his appeal would have succeeded, had it been filed, it is further clear
that the refusal of the State which he alleges according to the Court,
is based only on his claim. He simply alleged that because of the
refusal he could not defend his cause before the court of Appeal. Even
if there had been no lawyer, it is possible to suppose that Mr Mgosi,
just as he was able to file the notices of Appeal, did not continue the
procedure normally, in the belief that because of his heavily sanctioned
offences, he was already condemned. It may also be said that the
different approaches of the Applicant, some of them through defence
organisations, entailed unearthing a dispute that has already been
settled. The judgement states that “the president of the Mwanza District
Court, on which the Bunda District Court is administratively dependent,
wrote to the Applicant on 13 October 2010 to inform him that the record
of proceedings in criminal cases had not yet been returned from the
High Court, where they had been sent to by letter dated 7 November
2003”.7 Similarly, it is reasonable to assume that subsequent events in
which the Applicant “sought the intervention of the Respondent State’s
Commission for Human Rights and Good Governance in his criminal
cases of 1995”8 cannot be used in judicial decisions. The commission’s
4 See CADHP, NGuza Viking, 28/3/2018, para 89.

5 DR Mougenot , La preuve, Larcier, Bruxelles, 2002, No. 14 -1.
6 L Favore, ‘Challenge and evidence before the International Court of Justice. About
South West African Affairs’, (1965) AFDI, 233-277 ; also, the matter of the ICC,
Detroit De Corfu, United Kingdom v Albania, 25 March 1948, Rec. 1948, 15 ;
merits, 9 April 1949, Rec. 1949, p. 4 ; , ICC, Temple de Preah-Vihear, 26 May 1961
and 15 June 1962; M Lalive ‘Some remarks on evidence before the Permanent
Court and the International Court’ (1950) Swiss Yearbook of International law 97,
note 72).
7 See Judgement, para 45 and seq.
8 Idem, para 48.
letter of 3 July 2013, in which it informed the Applicant on 11 May 2012

that the record of proceedings in respect of his cases before the Bunda
District Court could not be located, does not concern the point of law
raised here, that is, the deadline for appeal. In any event, if the state
had actually refused to produce the necessary documents in support of
the appeal, after a certain time, the Applicant would have been entitled
to file his appeal, within a time which takes into account the general
principle of law that a case must be heard. Mr. Mgosi was entitled to
appeal without these documents, as the notice of Appeal had been
filed.
8. In this view, as one might think, this case does not leave room
for reflection on equality of arms, a principle of the common law
system that prescribes a fair balance between the Parties; a principle
which could have been used had the Applicant established the State’s
refusal. However, as the court pointed out in the same year, proof of
refusal “falls within the discretionary powers of the competent national
authorities since it is they who determine the probative value of that
evidence and they enjoy a wide discretion in that regard”. Coming back
to the requests for copies of the record of proceedings and judgements,
the application was dismissed on 21 September 2015 on the ground
that it was unfounded.
9. The above demonstrates the importance of the provision of
evidence that has always impacted on the court’s judgements.
II. Proof of claims has always impacted the judgement of

the Court
10. Only proven claims form the content of judicial decisions.9 In

AfCHPR, Abubakari v Tanzania,10 the court noted that “it is for the party
alleging discriminatory treatment to prove it”. This shows the decisive
nature of the evidence of claims adduced before a court. It is rightly
believed that where claims are proven, this should be reflected in the
operative part. In this Mgosi decision, I stand with the majority on the
fact that the Court does not grant “the Applicant’s request to order his
9 See ECHR, Gafgen v Germany, 1 June 2010: the Applicant brought an action
before the court alleging a violation of Article 3 ECHR on the ground that the
treatment he was allegedly subjected to during the interrogation of the National
Police concerning the whereabouts of the child he had abducted amounted to
torture. The use of material evidence obtained through his confession, which
incriminated him, should have been excluded by respect for the right to a fair trial.
The court had issued a decision on this evidence, Article 6 ECHR on the right
to a fair trial would have been violated. Also see ECHR, 1 June 2010, Gafgen v
Germany (application No. 22978/05), reports of judgements and decisions 2010-
IV, 327-407.
10 Mohamed Abubakari v United Republic of Tanzania, 3/6 2016.
release, without prejudice to the decision of the respondent State to

take such a measure on its own initiative “. It had thus rejected that
point, which featured among the prayers of the Applicant.
11. The essential nature of the concrete evidence adduced in
support of a claim naturally shapes a judicial decision. Mr Mgosi does
not provide the court with any concrete evidence of the exercise of
appeal, but merely states that he was unable to do so, even though in
accordance with the Tanzanian system, he had gone beyond the notice
of appeal stage. The court should not grant his requests. It stated in the
case of Alex Thomas v Tanzania11 that general claims whereby his right
has been violated are not sufficient. Concrete evidence is required. We
understand the meaning of its decision in this case.
12. Mr MGosi supposedly did not benefited from the availability of
the domestic courts. The violation of Article 7(1)12 of the African Charter
on Human and Peoples’ Rights was retained in the operative part of
judgement. In my opinion, this aspect - availability of justice - does not
form part of the shortcomings actually attributable to the State. While
remaining in solidarity with the majority of my colleagues, it should
be noted that the question at issue is the Applicant’s inconsistency
and lack of rigour in the use of the means of action at his disposal. To
refuse a litigant all means of action may mean denying him the action
in question, but in this case, it seems possible to say that this was not
the case. The first point of the operative part should be specific.
13. The Court had to examine the wrongful conduct of the domestic
courts. The Applicant in this case pointed to the impartiality of the
judges in establishing the breaches enshrined in the Charter. In the
case of Thobias Mango and others v Tanzania, decision of 11 May
2018, the aim of which was to highlight the lack of judicial fairness.
As in the present case, the African Court found that the Applicant
had failed to prove that the judges of the national courts were biased
and thus generated a violation of the right to be tried by an impartial
tribunal.13 In the present case, the court, while citing its jurisprudence
- Abubakari14 - noted that the domestic courts had determined that
there was evidence beyond a reasonable doubt that the Applicants
had committed the crime of which they were accused. The relevance
11 Alex Thomas v United Republic of Tanzania, 20/11/2015.

12 This article states that “every individual shall have the right to have his case heard.
This comprises: the right to an appeal to competent national organs against acts of
violating his fundamental rights recognized and guaranteed by conventions, laws,
regulations and customs in force. “.
13 Thobias Mang ’ara Mango and Shukurani Masegenya Mango v United Republic of
Tanzania, 11/5/2018, para 104.
14 Mohamed Abubakari v United Republic of Tanzania, 3/6/ 2016.
to the case at hand lies in the fact that the Mgosi decision sets aside
the necessary and thorough verification of the Applicant’s claims and
allegations concerning his initiative to lodge an appeal. Reasonable
doubt persists
14. A special feature is worth noting. It is tied to the specificity of the
litigation of the Court. This is also present in the Mgosi case. While the
burden of proof did not always rest with the Applicants in human rights
cases, it was desirable for the court to make reasonable use of the
principle. It is right that the person who alleges a wrongful practice or
initiative that causes damage should adduce proof thereof. The adage
is universally known: “actori incumbit probatio, reus in excipiendo
fit actor” (the one who asserts a right must prove it). The material
elements of human rights abuses leading to a suit in court, are often
extremely damaging, and come after lengthy internal proceedings. The
emergence of evidence at international level is necessary as much as
it is complex. The African Human Rights judge, as in Mgosi case, must
face up to this fact.
15. While sharing the position of my colleagues on the decision on
the merits, I nevertheless express this individual opinion to highlight the
insufficiency of unsubstantiated or unproven claims before the Court.
Request for Advisory Opinion by the Socio-Economic

Rights and Accountability Project (Advisory Opinion) (2017)
2 AfCLR 572
Application 001/2013, Request for Advisory Opinion by the Socio-

Economic Rights and Accountability Project (SERAP)
Advisory Opinion, 26 May 2017. Done in English and French, the English
and MATUSSE
The Court held that it did not have jurisdiction to consider a request for
an Advisory Opinion by an NGO which was not recognised by the African
Union.
Jurisdiction (request advisory opinion, African organisation, 46-51,
recognized by the African Union, 55, 60, 61, 65)
Separate opinion: BEN ACHOUR
Procedure (operative part, 7, 8)
Separate opinion: MATUSSE
Procedure (decision, 13, 15, 20)
I. Author of the request
1. The Request is submitted by the Socio-Economic Rights and

Accountability Project (hereinafter referred to as “SERAP”), a non-profit
Non-Governmental Organization (NGO), registered in 2004 and based
in the Federal Republic of Nigeria. The primary objective of SERAP
is the promotion of transparency and accountability in the public and
private sectors, through human rights.
II. Subject matter of the Request
2. SERAP submits that its Request is based on Articles 2, 19, 21

and 22 of the African Charter on Human and Peoples’ Rights (hereinafter
referred to as “the African Charter”), and Article 4 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”). It submits further that by virtue of the said Article 4 of
the Protocol, the Court has jurisdiction to provide the advisory opinion
requested.
3. It emerges from SERAP’s request that the Court is required to
give an Advisory opinion on the following:
“i. Whether SERAP is an African organization recognized by
SERAP (Advisory Opinion) (2017) 2 AfCLR 572 573
the AU; and

ii. Whether extreme, systemic and widespread poverty is a
violation of certain provisions of the African Charter, in
particular, Article 2 which prohibits discrimination based
on any other status.”
4. SERAP argues that by virtue of the fact that it is legally
registered in Nigeria, it is an African organization. It also maintains
that it is an organization recognized by an organ of the African Union
(AU), namely, the African Commission on Human and Peoples’ Rights
(hereinafter referred to as “the Commission”), having been granted
Observer Status by this organ. It argues further that:
“on the basis of its observer status with the African Commission,
and the fact that the African Commission is an organ of the African
Union, it has the competence to request an opinion relating to any
question within the scope of the African Charter on Human and
Peoples’ Rights and the African Union Constitutive Act”.
5. SERAP also submits that “the non-specific and non-restrictive

nature of the word ‘organization’ used in Article 4 of the Protocol
suggests that a non-governmental organization like SERAP was
contemplated by the drafters of the Protocol”. It notes further that:
“if the drafters wanted to limit the use of the words ‘African
Organization’ only to ‘African Inter-governmental Organizations’,
they would have specifically mentioned this in Article 4”.
6. According to SERAP, the use of the term ‘African organization’ in

Article 4 of the Protocol and repeated in the Rules of Procedure of the
Court represents a conscious choice to leave the use for the Court to
decide. SERAP submits that:
“unlike Article 4, Article 5 [of the Protocol] makes specific reference
to ‘African Inter-governmental organizations’ which further goes to
show that the drafters’ intention in Article 4 was to have a generic
category of ‘organization’ that is broad and all-encompassing to
include organizations like SERAP. In fact, the phrase ‘African
organization’ is used throughout the Rules of Court, and there is
nothing in the Rules to suggest that the words have any restrictive
meaning”.
7. On the merits, SERAP relies on a number of UN instruments and

reports to establish a relationship between poverty and human rights.
8. SERAP refers to a World Bank report, published in 20131 which

indicates that the actual number of people living in poverty across
Africa has risen in recent times, despite the increasing discovery of
wealth and natural resources in many African States. According to
SERAP, while the report notes a marginal decline in the overall number
of people living in extreme poverty, it also provides proof that Africa
still has the highest poverty rate in the world, with 47.5 percent of the
population living on US$ 1.25 a day, which accounts for 30 percent of
the world’s poor.
9. SERAP argues that in the final report of the ex-United Nations
Human Rights Commission, titled Human Rights and Extreme Poverty,
Leandro Despouy2 stated that poverty spreads and creates a vicious
circle of poverty, noting that, the report speaks of extreme poverty as
a state of severe deprivation of basic human needs, including food,
safe drinking water, sanitation facilities, health, shelter, education and
information, and that it ʺdepended not only on income but also on
access to social servicesʺ.
10. SERAP asserts further that these various initiatives were
reflected in the recent work of the UN Human Rights Council, in
view of the impact of poverty on human rights, and notes that in July
2012, the Special Rapporteur on Human Rights and Extreme Poverty,
Magdalena Sepulveda Carmona, submitted her final report on the
Guiding Principles on Extreme Poverty and Human Rights to the Human
Rights Council, which Principles, according to SERAP, significantly
underscores that poverty is not just an economic or developmental
matter but also a crucial human rights issue, and that poverty is not an
inevitable problem but something “created, enabled and perpetuated
by acts and omissions of States and other economic actors”.
11. On the definition of the term poverty, SERAP refers to the
meaning espoused by the UN Committee on Economic, Social and
Cultural Rights, which defines poverty as
ʺa human condition characterized by sustained or chronic
deprivation of the resources, capabilities, choices, security and
power necessary for the enjoyment of an adequate standard of
1 See World Bank, 2013. ‘Africa Development Indicators 2012/13’. (Washington,

D.C: World Bank). Quoted by SERAP in its submission received at the Registry on
29 January 2016.
2 Chairman of the United Nations Human Rights Commission, March 2001 – March
2002.
livingʺ.3
12. SERAP therefore submits that there is a strong relationship

between poverty, under-development and lack of respect for human
rights guaranteed under the African Charter, noting that this proposition
is buttressed by the consensus reached at the World Conference on
Human Rights in Vienna in 1993, that extreme poverty and social
exclusion should be regarded as violations of human dignity and
human rights.
III. Procedure
13. The Request was received at the Registry of the Court on 14

March 2013.
14. By a letter dated 10 June 2013, the Registrar enquired from the
African Commission whether the subject matter of the Request relates
to a matter pending before the African Commission.
15. By a letter dated 25 June 2013, the African Commission
confirmed that the subject matter of the Request does not relate to any
matter pending before it.
16. By separate letters, all dated 3 July 2013, the Registry
transmitted copies of the Request to the African Commission as well
as to Member States of the AU, through the Chairperson of the African
Union Commission (AUC); and at its 30th Ordinary Session held from
16 to 27 September 2013, the Court decided to invite the Member
States to submit written observations on the Request within 90 days.
17. On 12 August 2013, the Registry received from the Centre for
Human Rights, University of Pretoria (hereinafter referred to as “the
Centre”), a request for leave to submit an amicus curiae brief on the
Request. The Court granted leave to the Centre to act as amicus curiae.
18. On 24 September 2014, the Registry notified Member States
and interested parties of the expiry of the time limit prescribed for
them to submit their observations, and by letter of the same date, the
Registry requested the African Union Commission to transmit to it an
official list of organizations that have observer status with the AU.
19. On 13 January 2015, the AUC informed the Court that its records
indicate that SERAP is not accredited to the African Union nor has it
signed any Memorandum of Understanding with the AUC/Union.
20. At its 38th Ordinary Session held from 31 August to 18 September
3 See SERAP’S submissions of 12 January 2016, citing General Comment No. 8 of

the UN Committee on Economic, Social and Cultural Rights ‘substantive issues
arising in the implementation of the International Covenant on Economic, Social
and Cultural Rights, Statement adopted by the Committee on 4 May 2001. UN Doc
E/C. 12/2001/10.
2015, the Court requested SERAP to make submissions on the merits

of the Request.
21. On 29 January 2016, the Court received SERAP’s submission
on the merits of the Request, and by a letter dated 16 February 2016,
the submission was transmitted to Member States of the African Union
which were requested to make observations thereon, if they so wished,
within ninety (90) days of receipt of the notification.
22. Between 5 May and 29 June 2016, the Court received written
submissions on the Request from the Republic of Zambia, the Federal
Republic of Nigeria, the Republic of Uganda, the Republic of Cape
Verde, Burkina Faso and the Republic of Burundi.
A. The position of SERAP
23. Paragraphs 2 to 5 above reflect the submissions of SERAP on

the jurisdiction of the Court.
B. Observations from Member States4
24. Six (6) Member States of the African Union submitted written
observations, some touching on the jurisdiction of the Court. The
States are:
i. Republic of Uganda;5
ii. Republic of Zambia;6
iii. Federal Republic of Nigeria;7
iv. Republic of Cape Verde;8
v. Burkina Faso;9 and
vi. Republic of Burundi.10
4 No observations were received from AU Organs.

5 On 25 June 2014.
6 On 18 February 2014.
7 On 28 March 2014.
8 On 29 July 2014.
9 On 22 September 2014.
10 On 1 June 2016.
i. Observations of the Republic of Uganda
25. In its observations as to whether SERAP is an African

Organization within the meaning of Article 4 of the Protocol, the
Republic of Uganda notes that “the … author of the Request [that is,
SERAP], does not qualify as an intergovernmental organization”, and
prays the Court to “disallow the Request”.
26. On the question as to whether the African Court has jurisdiction
to issue advisory opinion on the Request, Uganda argues that:
“the Court in the instant case is not vested with jurisdiction to hear this
matter. This submission is buttressed by the provision in Rule 26 of
the Rules of Court. We invite the Court to find that the matter before it
needs interpretation of both law and fact. Whereas, the Articles are self-
explanatory, the Applicant, with due respect, did not show how it has been
aggrieved or how the Charter has been violated. For these reasons, the
Court is implored to find that there is no need for an Advisory Opinion and
thus disallow the request”.
ii. Observations of the Republic of Zambia
27. In its observations, the Republic of Zambia submits that in

considering the Request by SERAP, the Court must first determine
whether or not SERAP is entitled to bring a request before it in light
of the provisions of Article 4(1) of the Protocol and Rule 68(1) of the
Rules. Zambia concludes that:
“SERAP falls within the category of institutions permitted to request
advisory opinion of the African Court on Human and Peoples’ Rights, as
per Article 4(1) of the Protocol and Rule 68(1) of the Rules of Court, as it
appears on the list of civil society organizations which have been granted
observer status by the [African Union Commission]11 under the auspices
of the AU. This fact implies recognition by the AU. Consequently, SERAP
has, for purposes of requesting for advisory opinions of the Court, the
requisite legal standing”.
iii. Observations of the Federal Republic of Nigeria
28. The Federal Republic of Nigeria submits that SERAP is not an

African Organization, adding that “there is a clear distinction between
the AU and an organ of the AU. Recognition by an organ of the AU is
not the same as recognition by the AU.”
11 One may assume that the Republic of Zambia must have been referring here to the
African Commission on Human and Peoples’ Rights.
29. On SERAP’s contention that its Request for Advisory Opinion

is not subject to the provisions of Article 34(6) of the Protocol, Nigeria
argues that “Article 34(6) has effectively barred the Court from
entertaining the request from SERAP, being an NGO registered in
Nigeria.”
iv. Observations of the Republic of Cape Verde
30. In its observations, the Republic of Cape Verde argues that the
Request may, à priori, raise the issue as to SERAP’s legitimacy to
make such a Request before the Court, and submits that:
“… the exposé appended to the Request does effectively indicate that
SERAP is a Nigerian NGO whose aim is to promote transparency and
accountability in the public and private sectors through human rights.
It would appear, then, SERAP is an African organization, and thus
precludes the provisions of Article 4, which stipulates that it must be an
intergovernmental organization.”
31. With respect to the issue as to whether SERAP is recognized by

the AU, Cape Verde observes that:
“SERAP enjoys observer status before the African Commission on Human
and Peoples’ Rights. … It would appear reasonable to us to conclude that
SERAP is recognized by the AU by virtue of having been granted observer
status before an organ established by the Union.”
v. Observations of Burkina Faso and Burundi
32. Burkina Faso and Burundi did not address the question of the
jurisdiction of the Court.
V. Observations of the amicus curiae: the Centre for

Human Rights, University of Pretoria
33. The Centre, acting as amicus curiae, and relying on Rule 45(1)
of the Rules of Court, argues that
“the ordinary meaning of the phrase ‘any African organization recognized
by the OAU’, read within the textual context of the Court Protocol as a
whole, and in accordance with the object and purpose of the Court’s
Protocol, supports an interpretation of this phrase that would include
NGOs.
34. The Centre argues that the preparatory documents (travaux

preparatoires) of the Protocol “suggest that the use of the phrase any
African Organization was understood in its ordinary meaning by all
participants during the drafting of the Protocol”,12 and that the use of
the word “any” in the phrase “any African Organization” in Article 4(1)
of the Protocol also indicates an intention to create wider access to the
Court.
35. According to the Centre, the Court has jurisdiction to provide
advisory opinions on the request of NGOs, such as SERAP, within the
meaning of Article 4, and
“this is because SERAP meets all the 3 requirements of the third category
of entities that may request for advisory opinion from the Court, that is,
‘any African organization recognized by the OAU’. First, by virtue of its
geographical location in Africa, its predominantly African management and
membership, as well as its thematic focus on African issues, it qualifies as
‘African’. Second, that it qualifies as an ‘organization’ within the ordinary
meaning and context of Article 4(1) of the Protocol. Third, SERAP ‘is
recognized by the AU’, having enjoyed observer status with the African
Commission since 2008”.
36. The Centre concludes that SERAP is therefore “an African

organization recognized by the African Union”, and may consequently
request for an advisory opinion from the Court pursuant to Article 4(1)
of the Protocol.
VI. Position of the Court
37. In accordance with the provisions of Rule 39, read together

with Rule 72 of the Rules, the Court will now decide whether it has
jurisdiction to render an advisory opinion on the Request before it.
These Rules provide as follows:
Rule 39(1): The Court shall conduct preliminary examination of its
jurisdiction…
Rule 72: The Court shall apply, mutatis mutandis, the provisions of Part
IV of these Rules to the extent that it deems them to be appropriate and
acceptable.
A. Personal jurisdiction
38. To determine whether the Court has personal jurisdiction, the

Court has to satisfy itself that SERAP is one of the entities contemplated
under Article 4 of the Protocol, to request for Advisory Opinion.
12 International Commission of Jurists’ additional Protocol, Article 28, to the African

Charter on Human and Peoples’ Rights, 5th workshop on NGO participation in the
African Commission on Human and Peoples’ Rights (28-30 November 1993) Addis
Ababa, Ethiopia
39. Consideration of its jurisdiction will lead the Court to respond

to the first issue raised by SERAP, relating to its capacity to seize the
Court with a request for Advisory Opinion.
40. Article 4(1) of the Protocol provides that “At the request of a
Member State of the OAU, the OAU, any of its organs, or any African
organization recognized by the OAU, the Court may provide an opinion
on any legal matter relating to the Charter or any other relevant human
rights instruments…”.
41. It is not in dispute that SERAP does not fall under the first
three categories mentioned in paragraph 39 above.13 The Court will
consequently dwell only on the fourth category, that is, whether SERAP
is “an African organization recognized by the AU”.
42. Consideration of the above expression requires clarification of
the phrases used under Article 4(1) of the Protocol for the purpose of
this opinion, namely: “African organization”, and “recognized by the
AU”.
i. The notion of an African organisation
43. The Court notes that neither the Constitutive Act of the African
Union nor the Charter nor the Protocol defines the term “African
Organisation.”
44. On the other hand, in the document titled the Criteria for granting
observer status and for a system of accreditation within the AU,14 the
African Union defines an organisation as “a regional integration or
international organisation, including sub-regional, regional or inter-
African organisation that are not recognised as Regional Economic
Communities”. It defines an NGO as “an organisation at the sub-
regional, regional or inter-African levels, as well as those in the Diaspora
as may be defined by the Executive Council”. This definition is restated
in the Protocol on the Statute of the African Court of Justice and
Human Rights which defines African Non-Governmental Organization
as “Non-Governmental Organizations at the sub-regional, regional or
inter-African levels as well as those in the Diaspora as may be defined
by the Executive Council”.15
45. The Court observes from the foregoing paragraph that there is
13 The first three categories of entities entitled to request the Court for advisory
opinion are: A M em ber St at e of t he AU, t he A U i t s e l f a n d A U o r g a n s .
14 EX.CL/195 (VII) Annex V, adopted by the 7th Ordinary Session of the Executive
Council and endorsed by the 5th Ordinary Session of the Assembly held in Sirte,
Libya, on 1-2 and 4-5 July 2005, respectively.
15 Protocol on the Statute of the African Court of Justice and Human Rights, Preamble
paragraph 6.
still no definition of ‘African Organization’, but notes however that the

term organization is defined.
46. The Court is of the view that the use of the term ‘Organization’
used in the abovementioned instruments and the expression ‘African
organization’ in Article 4 of the Protocol cover both Inter-governmental
and Non-governmental organizations.
47. The Court considers that had the drafters of the Protocol
intended to limit the phrase ‘African Organization’, as used in Article 4
of the Protocol, only to African Inter-governmental Organizations, they
would have specifically done so, as they did in Article 5 thereof relating
to contentious matters. The Court is of the view that this was not an
omission, but a deliberate formulation, aimed at giving wide access to
the Court ‘African organizations’; which interpretation is in keeping with
the letter and spirit of Article 4, as well as the object and purpose of the
African Charter.
48. In the light of the above, the Court is of the opinion that an
organization can be considered ‘African’, with regards to NGOs, which
are relevant in the present Request, if they are registered in an African
State, has structures at the sub-regional, regional or continental level,
or undertakes its activities beyond the territory where it is registered,
as well as any organization in the Diaspora recognized as such by the
African Union.
49. Applying the above definition of an African Organization to
the instant matter, the Court notes that SERAP is an organization
headquartered in an African country, and operating within that country,
as well as at the sub-regional and continental levels. Article 2(a) of
its Statute indicates that the objectives of SERAP are “to promote,
protect and ensure respect for economic, social and cultural rights
in Nigeria in accordance with the Nigerian Constitution, the African
Charter on Human and Peoples’ Rights, the International Covenant
on Economic, Social and Cultural Rights, the Universal Declaration
of Human Rights and other similar instruments”. Article 3 of the same
Statute describes the organization’s working methods, which include,
inter alia, “collaborate with the local and international organizations and
agencies involved in the promotion and protection of human rights and
the rule of law, and in particular, encourage a closely-knit and effective
network of African human rights advocates and organizations”.
50. In the exercise of its mandate, SERAP has brought cases,
petitions and requests for advisory opinion before the ECOWAS
Community Court of Justice, the African Commission on Human and
Peoples’ Rights and the African Court on Human and Peoples’ Rights,
against a number of African countries, including, Nigeria, The Gambia
and Libya.
51. It follows from the foregoing that SERAP operates not only in
Nigeria, but also within the West Africa region and the continent as a
whole, and thus meets the description of an African organization within
the meaning of Article 4 of the Protocol.
ii. The meaning of the expression “recognized by the

African Union”
52. It has been argued by the Applicant and certain States as well
as the amicus curiae that every NGO with observer status before any
organ of the African Union, particularly the Commission, is automatically
an organization recognized by the African Union within the meaning of
53. In the view of the Court, only African NGOs recognized by
the African Union as an international organization with its own legal
personality are covered by this Article, and may bring a request for
Advisory Opinion before the Court. As a matter of fact, not only does
Article 4(1) of the Protocol make a clear distinction between “the
African Union” on the one hand, and “any organ of the African Union”
on the other, but in fact, the African Union has developed a system of
recognition of NGOs distinct from that of the Commission.
54. Pursuant to Article 4(1) of the Protocol, in determining the entities
empowered to make a request for Advisory Opinion, the Protocol
clearly establishes a distinction between the African Union and any
organ of the African Union and targets the two separately. However,
in describing the African organizations empowered to bring requests
for Advisory Opinion before the Court, the same Protocol in the same
provision makes reference only to organizations recognized by the
African Union and says nothing about those recognized by any organ
of the African Union. Had the authors of the Protocol wanted to also
target African organizations recognized by any organ of the African
Union, they would certainly not have hesitated to make this clear. In
particular, had they wanted to target recognition by the Commission
through the granting of observer status, they would have explicitly
made mention of this as they did in Article 5 in which reference to
observer status before the Commission is indicated expressis verbis,
with respect to seizure of the Court in contentious matters.
55. Given the fact that the Member States of the African Union did
not do so, one is obliged to conclude that they deliberately did not
wish to include African organizations recognized by any organ of the
African Union other than those mandated to engage directly with the
continental organization.16
56. In the instant case, the term “recognized by the African
Union” cannot be understood as meaning “recognized by the African
Commission on Human and Peoples Rights”.
57. It is established that in the system of the continental organization,
the granting of observer status to an NGO constitutes one of the forms
of recognition of the latter.
58. With respect to the Commission, its Rules of Procedure of August
2010 provides in its Article 68 that observer status may be granted to
an NGO operating in the field of human rights in Africa, enjoying the
rights and discharging the duties as stipulated in a separate resolution.
In effect, Resolution No. 33 on the Review of the Criteria for Granting
and Enjoying Observer Status to Human Rights NGOs before the
Commission adopted at its 25th Ordinary Session held from 26 April
to 5 May 1999, spells out in its Annex, the criteria for granting such
status, the procedure to be followed before the Commission and the
rights and duties of the NGOs granted the status. It naturally specifies
that it is the Commission which, as the case may be, grants, suspends
or withdraws observer status from NGOs.
59. Furthermore, in Rules 32(3)(e) and 63(1), of its Rules of
Procedure, the Commission itself makes a distinction between NGOs
with observer status before it on the one hand, and the organizations
recognized by the African Union, on the other, as regards the possibility
for them to propose or add items for inclusion on the agenda of Ordinary
Sessions of the Commission.
60. As regards the African Union per se, it has, separately, as an
international organization also itself determined not only the criteria for
granting observer status to NGOs but also the procedure to be followed
and the competent organ in this regard. By its decision EX.CL 195
(VII), Annex V of 1 to 2 July 2005, the Executive Council of the African
Union adopted the “Criteria for Granting Observer Status and for a
System of Accreditation within the African Union”, and this document
was endorsed by the 5th Ordinary Session of the Assembly of Heads
of State and Government of the African Union in July 2005.
61. On the granting of observer status to NGOs, the document
spells out the applicable principles, the procedure for introducing the
request as well as the rights and duties emanating from the status
for the beneficiaries. It follows from the above, that a request for
16 This interpretation of the term “recognized by the African Union” as per Article 4(1)
of the Protocol is founded on Article 31(1) of the Vienna Convention of 1969 on
the Law of Treaties which states that “A treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to the terms of the treaty in their
context and in the light of its object and purpose”.
observer status must be submitted to the African Union Commission

which then submits it to the Executive Council through the Permanent
Representatives’ Committee. It follows also that it is the Executive
Council that is vested with power to grant, suspend or withdraw
observer status from an NGO. The document underscores the fact
that “the granting, suspension and withdrawal of observer status of
an NGO, are the prerogative of the African Union and shall not be the
subject of adjudication in any Court of Law or tribunal” (Section V6).
62. Given the fact that recognition is valid only if it emanates from the
competent authority according to the internal rules of the international
organization concerned, recognition by the Africa Union is valid only
where the said recognition emanates from the competent organ,
namely in this case, the Executive Council of the African Union.
63. It follows from the aforesaid distinction between the two systems
that NGOs with observer status before the Commission do not
automatically have observer status before the African Union and vice
versa. The two statuses are therefore not interchangeable and there is
no system of equivalence between the two.
64. Consequently, it is clear that the authors of the Protocol intended
that requests for Advisory Opinion from NGOs be limited to those with
observer status before or a Memorandum of Understanding with the
African Union.
65. Accordingly, since SERAP does not have observer status
before or a Memorandum of Understanding with the African Union, as
referred to in paragraph 61 above, it is not recognised by the latter, and
therefore it is not entitled to bring a request for advisory opinion before
this Court.
66. For these reasons, the Court, unanimously:

Declares that it does not have personal jurisdiction to give an opinion
on the present Request.
_____________________________
1. I am by and large in agreement with the reasoning and

justifications developed by the Court in ruling that the Applicant for
Advisory Opinion (SERAP) “even if it operates not only in Nigeria,
but also within the West Africa region and the continent as a whole,
and thus meets the description of an African organization within the
meaning of Article 4 of the Protocol” (paragraph 51); but that SERAP

does not have observer status before the African Union and having
not signed Memorandum of Understanding with the African Union... it
is not recognised by the latter, and therefore it is not entitled to bring a
request for Advisory Opinion before this Court” (paragraph 65).
2. The Court had no choice and could not have done otherwise.
Its hands were ‘tied’ by the explicit terms of Article 4(1) of its Protocol1
and by the restrictive practice of the Union in granting observer status
to NGOs.
3. It would have been desirable that referrals to the Court in
advisory matters should be more open and that the conditions imposed
on NGOs should be less rigid. The Court had expressed a similar
wish in its Advisory Opinion of 5 December 2014 (African Committee
of Experts on the Rights and Welfare of the Child). In paragraph 94
of that Opinion, the Court further “notes that the action by the policy
organs (insertion of the Committee of Experts among the bodies that
could refer cases to the Court in the 2008 Protocol merging the African
Court on Human and Peoples’ Rights and the Court of Justice of the
AU) confirms the view of the Court that it is highly desirable that the
Committee should have access to the Court”. In the same vein, the
Court affirms in point 3 (iii) of the operative section of its Opinion that
“the Court is of the view that it is highly desirable that the Committee
is given direct access to the Court under Article 5(1) of the Protocol.”
4. However, my agreement with the reasons given by the Court
in the SERAP Opinion does not amount to my agreement with the
operative section of the Opinion.
5. In my opinion, the Court gave its (negative) Opinion on the first
of the two questions posed by SERAP in its request for an opinion,
namely, “whether SERAP is an African organization recognized by the
AU”.
6. It is true, as the Court quite rightly notes, that this question boils
down to examination of the Court’s jurisdiction to give an Advisory
Opinion. In paragraph 39, the Court affirms that “consideration of Its
jurisdiction will lead the Court to respond to the first question raised
by SERAP relating to its capacity to seize the Court with a request for
Advisory Opinion”.
7. Logically, the operative section of the Opinion should have been
worded differently from a rigid ‘declaration’ of lack of jurisdiction ratione
1 “At the request of a Member State of the OAU, the OAU, any of its organs, or any
African organization recognized by the OAU, the Court may provide an opinion
on any legal matter relating to the Charter or any other relevant human rights
instruments, provided that the subject matter of the opinion is not related to a
matter being examined by the Commission”
personae.
8. In my view, the Court should have concluded its Opinion by
reaffirming what it had developed in the reasons, namely that:
i. SERAP is an African organization within the meaning of Article
4(1) of the Protocol
ii. SERAP is not recognized by AU
iii. The Court cannot therefore answer the second question posed
by SERAP as to whether extreme, systemic and widespread
poverty is a violation of certain provisions of the African Charter,
in particular, Article 2 which prohibits discrimination based on
“any other status,” in the absence of the Applicant’s capacity to
seek an advisory Opinion.
9. This position is firmly grounded in the jurisprudence of the
Permanent Court of International Justice (PCIJ) and in that of its
heiress, the International Court of Justice (ICJ).
10. With regard to PCIJ, the august Court had to reject a request
on one occasion. The Opinion concerned is that of 23 July 1923 in the
matter of the Status of Eastern Carelia.2 In that Opinion, the Court does
not declare that it has no jurisdiction. It explains that its discretionary
refusal to give the requested Advisory Opinion was motivated by the
following factors:
1. the fact that the question raised in the request for an Advisory
Opinion related to a dispute between two States (Finland and
Russia);
2. the fact that answering the question was tantamount to settling
that dispute;
3. the fact that one of the States Parties (Russia) to the dispute in
respect of which an Advisory Opinion was sought, was neither a
party to the Statute of the PCIJ nor, at that time, a member of the
League of Nations, and had refused to give his consent;
4. the fact that the League of Nations did not have jurisdiction to
deal with a dispute involving non-member States which refused
its intervention on the grounds of the fundamental principle
that no State should be obliged to submit its disputes with
other States, either for mediation or arbitration, or for any other
method of peaceful settlement, without its consent;
5. the fact that, following Russia’s refusal, the Court could not
establish the facts on equal terms between the Parties, and was
therefore faced with the concrete lack of “material information
necessary to enable it to pass judgment on the question of fact”
raised in the request for Advisory Opinion.
11. The ICJ, for its part, has constantly held that “in principle, a
2 PCIJ, Advisory Opinion, Status of Eastern Carelia, 23 July 1923, Serie B No. 5
request for an Opinion must not be refused”3 and that only compelling
reasons could lead the Court to such a refusal of a request for an
Advisory Opinion “.4 The compelling reasons relied on by the Court
include the non-juridical5 nature of the questions, matters which
concern cases essentially within the ambit of national jurisdiction,6
or indeed questions which should lead to a “final determination of a
dispute”,7 etc.
12. Like PCIJ, the ICJ refused on only one occasion to respond
to a request for an Advisory Opinion. That was the Opinion on the
request by the World Health Organization (WHO) on the Legality of
the use of nuclear weapons in armed conflict.8 In that request, WHO
prayed the Court to rule on the following question: “given the effects of
nuclear weapons on health and the environment, would their use by a
State in the course of a war or other conflict constitute a breach of its
obligations under international law, including the WHO Constitution?.”
Referring to Article 2 of the Constitution of WHO9 which lists the 22
functions conferred on the Organization, the Court notes that “none of
these points expressly concerns the legality of any activity dangerous
to health; and none of the functions of WHO is predicated on the
legality of the situations which require it to act “(paragraph 20). Later
on, the Court adds, in relation to Article 2 of the Constitution of WHO
concerning the Organization’s means of achieving its aims, that “ the
provisions of Article 2 may be read as empowering the organization
to address the health effects of the use of nuclear weapons or any
other hazardous activity and to take preventive measures to protect
the health of populations in the event such weapons are used or such
activity is carried out (paragraph 21). However, the Court notes that
“the question posed in the present case, relates not to the effects of the
use of nuclear weapons on health, but to the legality of the use of such
3 ICJ, Advisory Opinion of 3 March 1950, Competence of the General Assembly of

the Admission of a State to the United Nations, Rec. 1950. P. 71.
4 ICJ, Advisory Opinion of 8 July 1996, Legality of the Threat or Use of Nuclear
Weapon, Rec. P. 235 para. 14, Advisory Opinion of 9 July 2004, Legal Consequence
of the Construction of a Wall in the Occupied Palestinian Territory, Rec. 2004, p.
156 - 157, para. 44.
5 ICJ, Advisory Opinion of 20 July 1962, Certain Expenses of the United Nations,
Rec. 1962, p. 1155.
6 ICJ, Advisory Opinion of 3 March 1950 n38, p. 70.
7 ICJ, Advisory Opinion of 15 December 1989, Applicability of Article VI, Section 22
of the Convention on the Privileges and Immunities of the United Nations.
8 ICJ, Advisory Opinion of 8 July 1996 n39.
9 The WHO Constitution was adopted and opened for signature on 22 July 1946; it
entered into force on 7 April 1948 and was amended in 1960, 1975, 1977, 1948
and 1994.
weapons, given their effects on health and the environment. Whatever

the said effects, the competence of the WHO to address them is not
dependent on the legality of the acts which produce them. Accordingly,
it does not appear to the Court that the provisions of Article 2 of the
WHO Constitution, interpreted in accordance with the above criteria,
can be understood as conferring jurisdiction on the Organization to
address the legality of the use of nuclear weapons and, hence, to put
a question to the Court “(paragraph 21)10. And the Court thus held in
conclusion that “Having reached the conclusion that the request for
Advisory Opinion submitted by WHO does not concern a question
which arises (within the scope of the activities” of that organization in
accordance with paragraph 2 of Article 96 of the Charter, the Court finds
that an essential condition for founding its jurisdiction in the present
case is lacking and that it cannot therefore give the Opinion requested.
Consequently, the Court does not have to examine the arguments
which have been developed before it concerning the exercise of its
discretion to give an Opinion”(paragraph 31).
13. Thus, like this honourable Court, the ICJ held that it had no
jurisdiction to give the Opinion. However, in the operative part of the
Opinion, the ICJ indicated that “it cannot give11 the advisory Opinion
requested of it under the World Health Assembly resolution WHA46.40
of 14 May 1993 “. This is what the African Court should have said with
respect to SERAP.
14. In conclusion, one can only express the hope that the African
Union would amend Article 4(1) of the Protocol with a view to opening
up possibilities for referrals to African Court and relaxing the conditions
required of NGOs to bring their request for advisory Opinion within
the ambit of the Court’s jurisdiction; or, the way of amendment being
uncertain, to extend its criteria for granting observer status to include
NGOs with similar status before the Banjul Commission.
15. Finally, it is noteworthy that despite their rejection of the requests
for Opinion in the case of Eastern Karelia and in the Legality of the use
of nuclear weapons, both PCIJ and ICJ did not hesitate to give a title
to their two decisions denying an Advisory Opinion. It is in effect the
nature of the request which determines the nature of the decision and
its characterization, and not the response to the request.12
10 Emphasis not in the text.

11 Idem.
12 See on the contrary, the Opinion of Judge Matusse on this Opinion.
1. The Court, unanimously, held that it did not have jurisdiction

ratione personae to issue the Advisory Opinion requested by SERAP,
yet names the procedure by which it arrived at that conclusion an
“Advisory Opinion”, a view that I do not endorse. I, hereby, set my
separate opinion on record on the following grounds:
I. The form of the Court’s acts
2. The legal instruments governing the Court, namely, the Protocol1

and the Rules of the Court are silent regarding the designation of each
of the different forms that its acts may take. That notwithstanding, the
practice that has become the norm is the use of the following terms:
“Order”, “Ruling”, “Decision” and “Judgment”.
3. When adopting the terms hereinabove, the Court has not been
consistent in its practice in that it has used the same expression to
designate different things at different times, as demonstrated herein
below.
II. The practice of the Court
4. In the Requests for Advisory Opinion Nos. 002/2011,2 001/20123

and 001/2014,4 the Court used the expression “Order” to designate
the act through which it struck out the request due to the fact that the
applicants had either given up on them or had lost interest in pursuing
the matter.
5. In the Request for Advisory Opinion No. 002/2012,5 the Court
used the expression “Order” to hold that it was not going to entertain
the request due to the fact that the same was pending before the
African Commission on Human and People’s Rights (the Commission).
1 Protocol to the African Charter on Human and People’s Rights on the Establishment
of an African Court on Human and People’s Rights.
2 Request for Advisory Opinion by Advocate Marcel Ceccaldi on behalf of the Great
Socialist People’s Libyan Jamahiriya, Judgement of 30 March 2012.
3 Request for Advisory Opinion by The Socio-Economic Rights & Accountability
Project (SERAP), “Order” of 15 March 2013.
4 Request No 001/2014 - Coalition on the International Criminal Court Ltd/
gte(ciccn),Legal Defence & Assistance Project Ltd/gte (LEDAP), Civil Resource
Development & Documentation Center (Cirddoc) and Women Advocates
Documentation Center Ltd/gte(WARDC), “Order” of 05 June 2015.
5 Request No 002/2012 - The Pan African Lawyers’ Union (PALU) and Southern
African Litigation Centre (SALC), “Order” of 15 March 2013.

used the expression “Order” to strike out the request for failure, on the
part of the author, to specify the legal provision of the Charter or of any
other human rights instrument in relation to which the Court’s Opinion
was sought, as provided for under Rule 68(2) of the Court’s Rules.
pronounced itself on the merits of the request by means of an “Advisory
Opinion”.
8. In other words, in instances where the Court did not get to the
examination of the merits of the request and decided to strike it out due
to either lack of interest on the part of the author or to failure to comply
with the requirements laid down in Article 68, the Court has preferred
the term “Order”.
9. In contentious matters, the Court issued an “Order” to declare
that it lacked jurisdiction to examine the matter,8 to hold that it was to
continue examining the matter,9 to decide that it was going to merge
the applications10 and to strike the application due to lack of interest on
the part of the applicant to pursue the matter.11
10. Still in respect to contentious matters, the Court used a Judgment
to declare that some applications were inadmissible,12 and to declare
that it lacked jurisdiction.13 The expression “Order” is also used in most
6 Request No 001/2015 - Coalition on International Criminal Court LTD/GTE, “Order”

of 29 November 2015.
7 Request No 002/2013 - The African Committee of Experts on the Rights and
Welfare of the Child on the Standing of the African Committee of Experts on the
Rights and Welfare of the Child before the African Court on Human and Peoples’
Rights, “Order” of 05 December 2014.
8 App. No. 019/2015 – Femi Falana v African Commission on Human and Peoples’
Rights, “Order” of 20 November 2015.
9 App. No. 016/2015 – General Kayumba Nyamwasa And Others v Republic of
Rwanda, “Order” of 03 June 2016.
10 App. Nos. 009&011/2011 – Tanganyika Law Society and Legal and Human Rights
Centre and Reverend Christopher R. Mtikila v United Republic of Tanzania, “Order”
of 22 September 2011.
11 App. No. 002/2015 – Collectif Des Anciens Travailleurs du Laboratoire (ALS) v
Republic of Mali, “Order” of 05 September 2016.
12 App. No. 003/2012 – Peter Joseph Chacha v United Republic of Tanzania, “Ruling”
of 28 March 2014; App. No. 003/2011 – Urban Mkandawire v Republic of Malawi,
“Judgment” of 21 June 2013.
13 App. No 001/2008: Michelot Yogogombaye v Republic of Senegal, “Judgment”
of 15 December 2009; App: No. 001/2011 – Femi Falana v African Union,
“Judgement” of 26 June 2012.
of the Orders for Provisional Measures that the Court has issued.14
11. The Court has extensively used the expression “Decision” to
declare that it lacked jurisdiction in contentious matters.15
III. Analysis
12. In the instant case, the Court found that it lacks jurisdiction
ratione personae, and yet it designated the act by which it arrived at that
conclusion an “Advisory Opinion”, which looks, at least, contradictory.
13. For me, the Court either has jurisdiction hence moves on to issue
the Advisory Opinion, or it lacks jurisdiction, in which case it issues no
Advisory Opinion.
14. My fellow judges might have been influenced by the fact that, in
its Request, SERAP asks the Court to take a position with regard to its
locus standi to seize the Court in terms of Article 4(1) of the Protocol.
Meanwhile, this is an issue that would, in any case, be examined by
the Court, since, according to Article 39(1) of the Rules, applicable by
virtue of Article 72 of the Rules, “[The] Court shall conduct preliminary
examination of its jurisdiction and the admissibility of the application ...”
(my emphasis), before it can adjudicate on any case brought before it.
15. In my view, Article 39(1) of the Rules requires the Court to
conduct preliminary examination in order to ascertain its jurisdiction
and the admissibility of the application, a proceeding that under no
circumstance can be termed, per se, an “Advisory Opinion”, even if, in
instances where the Court has jurisdiction, the decision on jurisdiction
and admissibility becomes part of the Advisory Opinion issued, as it
was the case in the Request for Advisory Opinion No. 002/2013.
14 Namely: APP. No. 016/2015 – General Kayumba Nyamwasa And Others v

Republic of Rwanda, “Order” of 24 March 2017. App. No. 004/2013 – Lohe Issa
Konate v Burkina Faso, “Order” of 04 October 2013; App. No. 002/2013 – The
African Commission on Human and Peoples’ Rights v Libya, “Order” of 15 March
2013.
15 App. No. 002/2011 – Soufiane Ababou v Peoples’ Democratic Republic of Algeria,
“Decision” of 16 June 2011; App. No. 005/2011 – Daniel Amare and Mulugeta
Amare v Republic of Mozambique and Mozambique Airlines, “Decision” of 16
June 2011; App. No. 006/2011 – Association des Juristes d’Afrique pour la Bonne
Gouvernance v Republic of Cote d’ Ivoire, “Decision” of 16 June 2011; App. No.
007/2011 – Youssef Ababou v Kingdom of Morocco, “Decision” of 02 September
2011; App. No. 008/2011 – Ekollo M. Alexandre v Republic of Cameroon and
Federal Republic of Nigeria, “Decision” of 23 September 2011; App. No. 010/2011
– Efoua Mbozo’o Samuel v Pan African Parliament, “Decision” of 30 September
2011; App. No. 012/2011 – Convention Nationale des Syndicats du Secteur
Education (CONASYSED) v Republic of Gabon, “Decision” of 15 December 2011;
App. No. 002/2012 – Delta International Investments S.A, Mr and Mrs A.G.L De
Lange v Republic of South Africa, «Decision» of 30 March 2013; App. No. 004/2012
– Emmanuel Joseph Uko and Others v Republic of South Africa, “Decision” of 30
Marche 2012; App. No. 005/2012 – Amir Adam Timan v The Republic of Sudan,
“Decision” of 30 March 2012.
16. It is, therefore, my understanding that preliminary examination,

as envisaged under Article 39(1) of the Rules, is clearly different from
issuing an Advisory Opinion, even though, sometimes, may form part
of the issued Advisory Opinion.
17. In other words, when the Court, as a result of the preliminary
examination so conducted holds that it has no jurisdiction, by no means
it can still term the act by which it arrives to that conclusion an Advisory
Opinion.
18. In terms of comparative law, when the Inter-American Court
of Human Rights (TIDH) decides not to issue an Advisory Opinion,
it adopts a form of “Resolución”16 in lieu of an “Opinión Consultiva”
(Advisory Opinion). Even when issuing the “Opinión Consultiva”,
it makes a clear separation between the section pertaining to its
jurisdiction (wherein it ascertains whether or not it has jurisdiction vis-
à-vis the request for advisory opinion) from the section pertaining to
the Advisory Opinion itself (wherein it gives its opinion on the issue it
has been seized with, in the event it finds that it has jurisdiction to issue
the Advisory Opinion).17
19. The Permanent Court of International Justice (PCIJ), in the
Request for Advisory Opinion submitted by the Council of the League of
Nations in the case of Russia v Finland, implicitly18 used the expression
“Advisory Opinion”,19 when it found that it could issue the Advisory
Opinion due to Russia’s ad hoc refusal to accept its jurisdiction.
However, this precedent is an incongruous and isolated dating back
a century, and it cannot inform the instant case. In actual fact, this
precedent has never informed any of the approaches adopted by the
Court in its previous decisions on Requests for Advisory Opinion.
IV. My position
20. I am of the opinion that, for the reasons expounded above,
16 Resolución de la corte interamericana de derechos humanos de 23 de junio de

2016, solicitud de opinión consultiva presentada por el secretario general de la
organización de los estados americanos; resolución de la corte interamericana
de derechos humanos de 27 de enero de 2009, solicitud de opinión consultiva
presentada por la comisión interamericana de derechos humanos.
17 Advisory Opinion Oc-21/14 of August 19, 2014 Requested by The Argentine
Republic, The Federative Republic Of Brazil, The Republic Of Paraguay And The
Oriental Republic Of Uruguay; Advisory Opinion Oc-20/09 Of September 29, 2009
Requested By The Republic Of Argentina.
18 Why not termed formally as such. Only at the end of the provision is “(...) Present
Avis ... (…)” mentioned.
19 Decision of the Third Ordinary Session of 23 July 1923, Dossier F. v V Rôle III.
3, available at http://www.icj-cij.org/pcij/serie_B/B_05/Statut_de_la_Carelie_
orientale_Avis_consultatif.pdf , accessed 24.05.2017.
the Court should use the term “Decision” to name the act by which it
conducts preliminary examination of its jurisdiction and the admissibility
of request for Advisory Opinion, in light of Article 39 of the Rules of the
Court. Indeed, the recurring practice of using the term “Decision” when
it declares its lack of jurisdiction to adjudicate on contentious matters,
is perfectly applicable in matters for advisory opinion. This is because
Article 72 of the Rules requires that the Court applies mutatis mutandis
the procedure for contentious matters to procedure relating advisory
opinions.
21. The use of the term “Decision” would avoid giving the wrong
impression that the Court issues an Advisory Opinion, even when
it has issued none. On the other hand, this Court would benefit by
remaining consistent in using appropriate terms for its acts, and this
would ensure that it is in line with its well-established jurisprudence
wherein it uses the term “Decision” when it determines jurisdiction on
contentious matters.
Request for Advisory Opinion by Rencontre Africaine pour

la Défense des Droits de l’Homme (Advisory Opinion)
(2017) 2 AfCLR 594
Application 002/2014, Request for Advisory Opinion by Rencontre

Africaine pour la Défense des Droits de l’Homme (RADDHO)
Advisory Opinion, 28 September 2017. Done in English and French, the
French text being authoritative.
and MATUSSE
an Advisory Opinion by an NGO which was not recognised by the African
Union.
recognized by the African Union, 36, 37)
Jurisdiction (request for advisory opinion, 8, 9)
I. The Applicant
1. This Request dated 18 June 2014, was filed at the Registry on

19 June 2014 by Rencontre Africain pour la Défense des Droits de
L’homme (hereinafter referred to as “the Applicant”).
2. The Applicant states that it is a Non-Governmental Human
Rights Organisation founded in 1990 in Senegal by Africans of different
origins, whose main mission is to “promote, defend and protect human
rights in Africa and across the world.”
II. Circumstances and subject of the request
3. The Applicant avers that as part of fulfilling its mission, it is “…

seized whenever a legal fact, where the violation of human rights
and certain provisions of national, regional and international legal
instruments occurs. This is the case with unconstitutional changes of
government and human rights violations in a State Party to regional and
international instruments, such as violations of freedom of movement,
freedom of expression, demonstration, meeting and participation,
attacks on the independence of the judiciary, torture, crimes against
humanity, violations of international law and international humanitarian
law.” Through this request for Advisory Opinion, the Applicant is of the
RADDOH (Advisory Opinion) (2017) 2 AfCLR 594 595
view, aims at achieving greater “... efficiency in its actions and ensure
better information of the victims...”
4. The Request for Advisory Opinion is based on three key
questions:
5. Firstly, the Applicant requests the Court for clarification as to
whether, in light of Article 13 of the African Charter on Human and
Peoples’ Rights (herein-after referred to as “the Charter”); Article
23 of the African Charter on Democracy, Elections and Governance
(hereinafter referred to as “the African Charter on Democracy); Article
4 of the Constitutive Act of the African Union; and Article 25 of the
International Covenant on Civil and Political Rights (hereinafter referred
to as “the ICCPR”):
a. It is possible to institute legal action before the Commission
or the Court against a State following an unconstitutional
change of government, especially since no national court
has the jurisdiction to examine such an action.
b. If so, which entity would be entitled to initiate such action;
the citizens of the country concerned, or any African Non-
Governmental human rights Organisation recognized by
the African Union and within what time limit?
c. If, following an unconstitutional change of government,
presidential elections are organized, will this new factor
obviate any action against the State under accusation for
the aforesaid change of government?
6. Secondly, the Applicant prays the Court to clarify:
a. The meaning of the expression “serious or massive
violations of human and peoples’ rights”, referred to in
b. Whether the foregoing provision involves only the direct
responsibility of the State or whether it also applies to
the State’s indirect responsibility, where the violations in
question stem from acts committed by pro-government
militia or from the inaction of the State; and
c. What criteria should apply in determining the emergency
situation referred to in Article 58(3) of the Charter.
7. Thirdly, the Applicant prays the Court to provide clarification on
the question as to whether the fairness and impartiality of the justice
system as contemplated by Article 7 of the Charter, Article 14 of the
ICCPR and the Commission Principles and Guidelines on the Right to a
Fair Trial and Legal Assistance in Africa (2003) are compatible with the
expression of political support to government by the judiciary or by its
senior officers, particularly when such support is expressed collectively
(through demonstration) or in the discharge of the judicial function
through various forms of zealous actions, such as the establishment of

special chambers to try opposition figures, or the refusal to investigate
complaints brought by persons suspected of being hostile to the ruling
government.
8. The Request for Advisory Opinion dated 18 June 2014, was

received at the Registry on 19 June 2014.
9. By a letter dated 23 September 2014, the Registry notified the
Applicant of the registration of its Request for Advisory Opinion and
urging it to comply with Rule 68 of the Rules of Court (hereinafter
referred to as “the Rules”) and to resubmit the same within 30 days, if
it so wishes.
10. On 8 November 2014, the Applicant filed an amended Request.
11. By a letter dated 17 March 2015, the Registry, pursuant to the
provisions of Rule 68 (3) of the Rules, enquired from the Commission
whether the subject of the Request relates to any matter pending
before it.
12. On 8 June 2015, the Registry transmitted the Request and the
annexes to the entities listed under Rule 69 of the Rules.
13. By an email of 13 May 2015, the Commission confirmed that the
subject of the Request does not relate to any matter pending before it.
14. At its 38th Ordinary Session held from 31 August to 9 September
2015, pursuant to Rule 70 of the Rules, the Court decided to extend
to 10 October, 2015, the period initially set for submission of written
pleadings by the entities listed in Rule 69 of the Rules.
15. By a letter dated 25 September 2015, the Registry notified the
entities in Rule 69 of the Rules that pursuant to Rule 70 of the Rules,
the Court had extended to 10 October 2015 the period initially set for
submission of written pleadings.
16. At its 39th Ordinary Session held from 9 to 22 November 2015,
the Court decided, on its own, to extend to 31 January 2016, the period
for submission of written pleadings by the entities referred to in Rule
69 of the Rules.
17. By a letter dated 5 January 2016, the Registry notified the
entities listed in Rule 69 of the Rules that period for submission of
written pleadings has been extended to 15 February 2016.
18. On 30 April 2016, the Registry received written submissions
from the Republic of Kenya.
19. Since the Republic of Kenya filed its written observations out
of time (see paragraphs 17 and 18 of the instant Opinion), the Court
decided, suo motu, to accept the said observations in terms of Rules
70(1) of its Rules.
20. At its 41st Ordinary Session, held from 16 May to 3 June 2016,
the Court decided to close the procedure for the filing of written
submissions.
21. In accordance with the provisions of Rule 39, which is applied by

virtue of Rule 72 of the Rules, “The Court shall apply, mutatis mutandis,
the provisions of Part IV of these Rules to the extent that it deems them
to be appropriate and acceptable”.
22. In accordance with Rule 39 of the Rules, “The Court shall
conduct preliminary examination of its jurisdiction…”
23. From the provisions of these Rules, the Court must determine
whether it has jurisdiction to give an opinion on the Request before it.
24. In determining whether it has personal jurisdiction in the instant
matter, the Court must satisfy itself that the Applicant is amongst the
entities entitled to request for advisory opinion under Article 4(1) of
the Protocol to the African Charter on Human and peoples’ Rights on
(hereinafter referred to as the “Protocol”).
IV. Applicant’s arguments
25. The Applicant contends that, under Article 4 of the Protocol

and Rules 26(b) and 68 of its Rules, the Court has jurisdiction ratione
personae to examine the Request as it is filed by an organisation
recognized by the African Union by virtue of its Observer Status before
the Commission.
A. Submissions of the Republic of Kenya
26. The Republic of Kenya, recalling the provisions of Articles 5(3)

and 34(6) of the Protocol, holds that seizure of the Court by individuals
and Non-Governmental Organisations is contemplated by the texts,
and as such, does not contest the Applicant’s entitlement to bring a
Request for Advisory Opinion before the Court.
B. The position of the Court
Member State of the [African Union], the AU], any of its organs, or any
African organization recognised by the [AU], the Court may provide an
opinion on any legal matter relating to the Charter or any other relevant
human rights instruments…”
28. The fact that the NGO which filed the request does not fall
within the first three categories within the meaning of Article 4(1) of the
Protocol is not contested.
29. The first question which arises is whether the NGO is of the
fourth category, that is, whether it is an “African organisation” within the
meaning of Article 4(1) of the Protocol.
30. On this issue, the Court has, in its Advisory Opinion Socio-
Economic Rights and Accountability Project (SERAP) established
that the term “organisation” used in Article 4(1) of the Protocol
covers both non-governmental organisations and inter-governmental
organisations.1
31. As regards the appellation “African”, the Court has established
that an organisation may be considered as “African” if it is registered
in an African country and has branches at the sub-regional, regional
or continental levels, and if it carries out activities beyond the country
where it is registered.2
32. The Court notes that the Applicant is registered in Senegal and
with its Observer Status before the Commission, is entitled to carry
out its activities beyond the country in which it is registered. The Court
concludes that the Applicant is an “African Organisation” in terms of
33. The second question that follows is whether the Applicant is
recognised by the African Union.
34. The Court notes that the Applicant has relied on its Observer
Status before the Commission to contend that it is recognised by the
African Union.
35. In this respect, the Court has, in the afore-mentioned SERAP
Advisory Opinion, indicated that Observer Status before any African
Union organ does not amount to recognition by the latter. It has thus
established that only the NGOs recognised by the African Union itself
are covered by Article 4(1) of the Protocol.3
36. The Court has further established that recognition of NGOs by
the African Union is through the granting of Observer Status or the
signing of a Memorandum of Understanding and Cooperation between
the African Union and those NGOs.4
37. In the instant case, the Applicant has not claimed and has not
provided proof as to its Observer Status before the African Union or
1 Request for Advisory Opinion by Socio-Economic Rights and Accountability Project

(SERAP), Request No. 001/2013, Advisory Opinion of 26 May 2017, Para 46.
2 Idem, para 48.
3 Idem, para 53.
4 Idem, para 64.
that it has signed any Memorandum of Understanding with the Union.

38. From the foregoing, the Court finds that, although the Applicant is
an African organisation within the meaning of Article 4(1) of the Protocol,
it lacks the second essential condition required by this provision as
a basis for the Court’s jurisdiction, namely, to be “recognised by the
African Union”.
39. For the above reasons,
The Court
Unanimously:
i. Finds that it is not able to give the Advisory Opinion which was
requested of it.
_____________________________
1. The four opinions rendered on 28 September 2017, reproduces

in extenso the grounds adduced in the SERAP Opinion of 26 May 2017.
That individual opinion merely affirms the opinion we had expressed in
the SERAP Opinion.
2. The Court once again finds itself unable to address the four
requests for Advisory Opinion and is constrained to not respond to
the legal issues of utmost significance raised by the NGOs1 in regard
to the interpretation of the African Charter on Human and Peoples’
Rights (hereinafter referred to as “the Charter”) and the Protocol to the
Charter establishing the African Court on Human and Peoples’ Rights
(hereinafter referred to as “the Protocol”), or other relevant human
rights instruments in Africa such as the African Charter on Democracy,
Elections and Governance or the Protocol to the Charter on the Rights
of Women in Africa (the Maputo Protocol).
3. I am by an large in agreement with the reasoning and justifications
developed by the Court on the four Opinions in its ruling that “recognition
1 The NGOs concerned are:

- Centre for Human Rights of the University of Pretoria (CHR) & the Coalition of
African Lesbians;
- African Association for the Defence of Human Rights (ASADHO);
- Rencontre Africaine pour la Defense des Droits de l’Homme (RADDHO);
- The Centre of Human Rights, University of Pretoria; Federation of Women Lawyers
in Kenya ; Women Advocates Research and Documentation Centre and Zimbabwe
Women Lawyers Association.
of NGOs by the African Union is subject to the granting of Observer

Status or the signing of a Protocol or Cooperation Agreement between
the African Union and the NGOs concerned” (paragraph 54 of the
Opinion on the Centre and the Coalition).
4. The Court had no choice and could not have done otherwise. Its
hands were “tied” by the explicit terms of Article 4(1) of its Protocol2 and
by the restrictive practice of the Union in matters of granting observer
status to NGOs.
5. In the four Opinions rendered on 28 September 2017 at the
request of several NGOs, all having observer status before the African
Commission on Human and Peoples’ Rights, the Court came up
against the concept of “African organisation recognized by the African
Union”, as used in Article 4(1) of the Protocol.
6. It is noteworthy that Article 4(1) of the Protocol on institutions
entitled to seek the Court’s Advisory Opinion is paradoxically more
restrictive than Article 5(3) of the Protocol on NGOs entitled to refer
cases to the Court. Whereas Article 4(1) provides that “At the request
[...] of any African organization recognized by the OAU, the Court
may provide an opinion on any legal matter relating to the Charter
or any other relevant human rights instrument”, Article 5(3) of the
Protocol states that “the Court may entitle relevant non-governmental
organizations (NGOs) with observer status before the Commission ...
to institute cases directly before it, in accordance with Article 34(6) of
this Protocol”.
7. Review of this article shows that, in the case of NGOs, referrals
in contentious matters are less restrictive than in matters of Advisory
Opinion because in seizing the Court on contentious matters, the
NGO merely needs to have an observer status with the Commission3,
whereas it needs to be recognised by the AU to seek the Court’s
advisory opinion.
8. The novelty in the four Opinions rendered on 28 September
2017, lies in the formulation of the operative provisions. Instead of
stating, as it did in the SERAP Opinion, that the Court “declares that it
has no personal jurisdiction to issue the Opinion sought”, the Court, in
the four Opinions of 28 September 2017, states “that it cannot issue
the Advisory Opinion requested of it”, thus adopting the position of the
2 “At the request of a Member State of the OAU, the OAU, any of its organs or any
African organization recognized by the OAU, the Court may provide an Opinion
instrument, provided that the subject matter of the Opinion is not related to a matter
being examined by the Commission”.
3 Clearly on condition that the State has subscribed to the jurisdiction clause set forth
in Article 34 (6) of the Protocol.
International Court of Justice (ICJ) Advisory Opinion of 8 July 1996 on

the Legality of the threats of use of nuclear weapons, which Opinion
we had advocated in the case of SERAP.
9. In conclusion, we wish to reiterate our hope that the African
Union will amend Article 4 (1) of the Protocol with a view to opening
up possibilities for referrals to AfCHPR and relaxing the conditions
required of NGOS to bring their request for Advisory Opinion within
uncertain, to broaden its criteria for granting observer status to include
_____________________________

ratione personae to issue the Advisory Opinion requested by RADDOH,

below.

the matter.
Opinion”.

III. Analysis

2013.

Advisory Opinion.
Opinion.


IV. My position

opinions.
Request for Advisory Opinion by the Centre for Human

Rights, University of Pretoria and the Coalition of African
Lesbians (Advisory Opinion) (2017) 2 AfCLR 606
Application 002/2015, Request for Advisory Opinion by the Centre for

Human Rights, University of Pretoria and the Coalition of African Lesbians
English text being authoritative.
an Advisory Opinion by two NGOs, neither of which was recognised by
the African Union.
Jurisdiction (request advisory opinion, African organisation, 50, 51,
I. The Applicants
1. This Request dated 2 November 2015, and received at the

Registry on the same date was submitted jointly by the Centre for
Human Rights of the University of Pretoria and the Coalition of African
Lesbians (hereinafter referred to as “the Applicants”).
2. The Centre for Human Rights, University of Pretoria (hereinafter
referred to as “the Centre”) presents itself as a Department in the University
and a Non-Governmental Organisation (NGO) established in 1986 and
engaged in human rights education in Africa, wide dissemination of human
rights publications in Africa and the improvement of the rights of women,
persons living with HIV, indigenous peoples and other disadvantaged or
marginalised groups across the continent. The Centre indicates that it has
had Observer Status before the African Commission on Human and Peoples’
Rights (hereinafter referred to as “the Commission”) since December 1993;
that in 2006, it received the UNESCO Prize for Human Rights Education;
and in 2012, on the occasion of the celebration of its 25th Anniversary, the
Commission conferred on the Centre its “Human Rights NGO Prize”.
3. The Coalition of African Lesbians (hereinafter referred to as “the
Coalition”) presents itself as a network of organisations committed to the
equality of Lesbians in Africa. According to the Applicants, the Coalition was
CHR and Another (Advisory Opinion) (2017) 2 AfCLR 606 607
established in 2003 and is registered as a Non-Governmental Organisation

in South Africa with its Secretariat in Johannesburg. They also indicate
that the goal of the Coalition is to contribute to Africa’s transformation into
a continent where women in their diversity, including lesbians, enjoy every
element of human rights and are recognised as fully-fledged citizens. The
Applicants further indicate that the Coalition has Observer Status before the
Commission.
4. In January 2015, in its Decision on the 37th Activity Report of the

Commission, the Executive Council of the African Union (hereinafter
referred to as “the Executive Council”) requested it (the Commission)
to delete from its Activity Report, passages concerning two decisions
against the Republic of Rwanda and to give the State the opportunity
to present its views in a public hearing on the two cases.
5. In July 2015, in its Decision on the 38th Activity Report of the
Commission, the Executive Council requested the Commission to “take
into account fundamental African values, identity and good traditions
and to withdraw the Observer Status granted to NGOs which may
attempt to impose values contrary to African values”. In this respect, it
requested the Commission to review its Criteria for Granting Observer
Status to NGOs and to withdraw the Observer Status granted to the
Coalition of African Lesbians.
6. The Executive Council also recommended that the Assembly of
the African Union authorise the publication of the Commission’s 38th
Activity Report only after its update and incorporation therein of the
proposals made by Member States.
7. The Executive Council further requested the Commission to
“observe the due process of law in making decisions on complaints
received, consider reviewing its rules of procedure, in particular, the
provisions in relation to provisional measures and urgent appeals, in
consistence with the African Charter on Human and Peoples’ Rights
(hereinafter referred to as “the Charter”) and to take measures to avoid
interference by NGOs and other parties in its activities”.1
8. The Centre and the Coalition are seeking the opinion of the Court
on how the term “considered” as used in Article 59(3) of the Charter
should be interpreted. More specifically, they raise the question as to
whether, in the afore-cited decision taken in 2015, the Executive Council
and the Assembly of the African Union have not exceeded the reasonable
limits of their powers to “consider” the Activity Report of the Commission.
1 Doc.EX.CL/921(XXVII), EX.CL/Dec.887(XXVII).
III. Procedure
9. The Request was received at the Court Registry on 2 November

2015.
10. At its 39th Ordinary Session held from 9 to 29 November 2015
the Court considered the Request and decided to transmit it to Member
States of the African Union, the Commission and to the African Institute
of International Law for possible observations, pursuant to Rule 69
of the Rules of Court, (hereinafter, referred to as “the Rules”). The
transmission was effected by letters dated 21 December 2015, 27
and 29 January 2016 indicating a time limit of ninety (90) days for
submission of observations, if any.
11. On 2 March 2016, the Commission notified the Court that the
Request does not relate to any Application pending before it.
12. On 14 April 2016, the Centre submitted to the Court an
application for the intervention of four (4) other NGOs, in the capacity
of amici curiae.
13. The Court rejected the Centre’s application because it was not
the Centre itself that wished to act as amicus curiae, rather, it was
the four NGOs. The Court, therefore, requested that each NGO file its
individual application specifying its contribution in this regard. None of
the four NGOs submitted its application.
14. At its 41st Ordinary Session, held from 16 May to 3 June
2016, the Court decided to extend by sixty (60) days, the time limit for
Member States and other entities to submit their observations on the
Request, if any.
15. The Republic of Côte d’Ivoire and the Federal Democratic
Republic of Ethiopia transmitted their observations to the Court on 6
June and 3 April 2016, respectively.
16. On 20 October 2016, the Registry notified the Parties of the
close of the written procedure.
17. In terms of Rule 72 of the Rules: “The Court shall apply, mutatis
mutandis, the provisions of Part IV of these Rules to the extent that it
deems them to be appropriate and acceptable”.
18. In terms of Rule 39 of the Rules, “The Court shall conduct
preliminary examination of its jurisdiction…”
whether it has jurisdiction on the Request before it.
matter, the Court must satisfy itself that the Centre and the Coalition are
amongst the entities entitled to institute a request for advisory opinion
under Article 4(1) 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”).
A. Applicants’ arguments
21. The Centre and the Coalition recall that Article 4(1) of the
Protocol lists four categories of entities entitled to bring a request for
Advisory Opinion before the Court, namely: (1) Member States, (2) the
African Union; (3) any of its organs, and (4) any African organisation
22. They maintain that they fall under the fourth category and that the
expression “any African organisation recognized by the African Union”
should be interpreted within its ordinary meaning and in accordance
with the objectives and purposes of the Protocol.
23. According to the Applicants, the term “organisation” defined by
the Oxford English Dictionary as “an organized group of persons with
a specific objective” is sufficiently wide to cover non-governmental
organisations.
24. They assert that, apart from Article 4(1), the term is also used in
other articles of the Protocol such as Article 5(1) in which reference is
made to “non-governmental organisations”; thus showing that the use
of the expression “any African organization” in Article 4(1) is deliberate,
intended to place various types of organisation under the generic term
“organisation”.
25. The Centre and the Coalition further argue that, contrary to Article
5 of the Protocol which concerns the Court’s contentious jurisdiction,
Article 4 (1) does not make a distinction between Governmental and
Non-Governmental Organisations.
26. They therefore conclude that the term “organisation” includes
but is not limited to “inter-governmental organisations”, and that it also
includes African Human Rights NGOs, such as the Centre and the
Coalition.
27. As regards the adjective “African”, the Centre and the Coalition
argue that the Oxford English Dictionary defines it as “that which is
related to Africa”, that according to this ordinary meaning, this term
can also relate to (i) the geographical situation of an organisation
which, according to them, is valid for organisations based in Africa,
(ii) organisations with a predominantly African management structure
even where they are not based in Africa, and lastly, (iii) international
human rights NGOs with essentially African composition and mission.
28. They conclude that an organisation is regarded as “African”
under Article 4(1) of the Protocol when it fulfils any of the criteria listed
in the three aforementioned categories.
29. As regards the requirement of “recognition by the African Union”,

the Applicants maintain that the recognition of an NGO by an organ or
structure of the African Union should amount to recognition by the main
body, namely, the African Union.
30. They maintain that it is customary in “modern” international
law that an agent is authorised to act on behalf of his/her principal
within the context of the mandate received from the latter; that it is
therefore logical and practical to consider NGOs with Observer Status
before African Union organs, such as the Commission or Civil Society
Organisations represented at the Economic, Social and Cultural
Council of the African Union (ECOSSOC) as recognised by the African
Union under Article 4(1) of the Protocol.
31. They contend that the Centre and the Coalition have had
Observer Status before the Commission (since December 1993 for the
Centre, and May 2015 for the Coalition) and that, for that reason, the
two organisations should be regarded as having met the requirement
of recognition by the African Union as set forth under Article 4(1) of the
Protocol.
B. Observations of Member States
32. The following are the observations of the Federal Democratic

Republic of Ethiopia and the Republic of Côte d’Ivoire.
i. Observations from the Federal Democratic Republic

of Ethiopia
33. On the question as to whether the Applicants are African

organisations within the meaning of Article 4 of the Protocol, the
Federal Democratic Republic of Ethiopia responds that they are not.
34. She states that the African Union adopted a Resolution on the
Criteria for Granting Observer Status and a System of Accreditation,
and that the term “organisation” in the Protocol should be interpreted
in light of the aforesaid system of recognition and accreditation defined
by the African Union.
35. According to the Federal Democratic Republic of Ethiopia, the
Centre and the Coalition are not organisations within the definition of
the term “organisation” adopted by the said African Union Resolution.
She indicates that according to that Resolution, an “organisation”
is a “regional integration or an international organization, including
sub-regional, regional or inter-African organisations which are not
recognised as regional economic communities”.
36. The Federal Democratic Republic of Ethiopia further submits
that the Non-Governmental organisations (NGOs) recognised by the
African Union are accorded Observer Status in accordance with the

Criteria for Granting Observer Status before the AU and neither the
Centre nor the Coalition has indicated having been recognised by the
AU or as having Observer Status in accordance with that procedure.
Moreover, even if they have been granted the Observer Status, it would
not confer on them the right to seek an Advisory Opinion from the Court
because this is not one of the prerogatives recognised for them under
the Executive Council decision.
37. She contends that recognition or acquisition of Observer Status
before the Organs established by treaty, including the Commission,
are not synonymous with recognition by the African Union and that no
provision of the Resolution mentioned above envisages this.
38. She avers that the Commission was established by virtue
of the Charter to oversee the human rights situations in Africa; that
the Commission accords Observer Status to non-governmental
organisations on the basis of its own Resolution to facilitate NGOs’
participation in human rights promotion on the continent; that this
status allows NGOs to participate in sessions of the Commission,
submit shadow reports and engage in constructive dialogue on the
consideration of the reports of State Parties; that the Centre and the
Coalition, as NGOs with Observer Status before the Commission,
can enjoy the aforesaid privileges and institute a request without
demonstrating that they have an interest in such a request; that such
status does not however allow them to request the Court for Advisory
Opinion on matters concerning another organisation.
39. The Federal Democratic Republic of Ethiopia also argues that
the Commission’s Rules of Procedure establish a distinction between
“organisations with observer status” and “organisations recognised
by the AU”, and recalls Rule 32(3)(e) of the said Rules of Procedure
which provides that an organisation recognised by the African Union,
a national human rights institution with the status of affiliated member
or a non-governmental organisation with Observer Status, can
propose items for inclusion in the provisional agenda of sessions of
the Commission; that in the same vein, Rule 63(1) thereof accords
these two types of organisation the right to request the Commission to
include in the agenda of an ordinary session a debate on any human
rights situation; that in light of the aforesaid provisions, the Rules of
Procedure of the Commission treats the two types of organisation
differently.
40. The Federal Democratic Republic of Ethiopia concludes that the
Observer Status obtained by the Centre and the Coalition before the
Commission does not confer on them the capacity to seek an Advisory
Opinion from the Court.
ii. Observations from the Republic of Côte d’Ivoire
41. The Republic of Côte d’Ivoire submits that under Article 4(1) of
the Protocol, Requests for Advisory Opinion are reserved for Member
States of the Union, its organs and African organisations recognised by
the latter; that contrary to the assertions of the requesting NGOs, the
expression “African organisation recognised by the African Union” used
in Article 4 of the Protocol does not cover both African International
Organisations and non-governmental organisations having Observer
Status before the Commission; that if that were the case, the drafters
of the Protocol would not have taken pains to enumerate in Article 5
thereof, these two entities as entitled to file applications against State
Parties before the Court.
42. The Republic of Côte d’Ivoire contends that, in law, prohibition
from making a distinction where the law does not do so, carries with it
the obligation to make such a distinction where the law so does; that
consequently, in the absence of specific mention thereof in Article 4 of
the Protocol, as was the case in Article 5, NGOs with Observer Status
before the Commission must not be considered as entitled to seize the
Court with Requests for Advisory Opinion.
43. She further contends that the notion “African organisation” as
used in Article 4 of the Protocol concerns African inter-governmental
organisations and not NGOs, and that the organisations concerned
include, notably, Regional Economic Communities, like the Arab
Maghreb Union (AMU), Economic Community of West African States
(ECOWAS), West African Economic and Monetary Union (WAEMU),
Central Africa Economic and Monetary Community (CEMAC), Indian
Ocean Community (IOC) and the East African Community (EAC).
44. The Republic of Côte d’Ivoire also maintains that to offer NGOs
with Observer Status before the Commission, the possibility of seizing
the Court with a request for Advisory Opinion, would enable them
to target States, even those that are yet to make the Declaration
prescribed by Article 34(6) of the Protocol, that the initiatives of the
Centre and the Coalition clearly falls within this logic; that the real
target of their request is, in fact, the African Union which, through the
Executive Council, has recommended the withdrawal of the Coalition
of African Lesbians’ Observer Status before the Commission.
45. The Republic of Côte d’Ivoire therefore requests the Court to rule
that it has no jurisdiction to examine the request for Advisory Opinion
filed by the Centre and the Coalition.
C. Position of the Court
46. Article 4(1) of the Protocol, which lists the four categories of
entities entitled to apply to the Court for an Advisory Opinion, provides

as follows: “[a]t the request of a Member State of the [African Union],
the [AU], any of its organs, or any African organization recognised by
the [AU], the Court may provide an opinion on any legal matter relating
to the Charter or any other relevant human rights instruments…”
47. The fact that the two NGOs which filed the request do not fall
within the first three categories is not contested.
48. The first question which arises is whether these NGOs are of the
fourth category, that is, whether they are “African organisations” within
the meaning of Article 4(1) of the Protocol.
49. On this issue, the Court has, in its Advisory Opinion in Socio-
Economic Rights and Accountability Project (SERAP), established
that the term “organisation” used in Article 4(1) of the Protocol
covers both non-governmental organisations and inter-governmental
organisations.1
50. As regards the appellation “African”, the Court established that
an organisation may be considered as “African” if it is registered in
an African country and has branches at the sub-regional, regional or
continental levels and if it carries out activities beyond the country
51. The Court notes that the Centre and the Coalition are both
registered in South Africa and with their Observer Status before the
Commission, they are entitled to carry out their activities beyond the
countries where they are registered. It concludes that they are “African
Organisations” in terms of Article 4(1) of the Protocol.
52. The second question that follows is whether these organisations
are recognised by the African Union.
53. The Court notes that the Centre and the Coalition have relied on
their Observer Status before the Commission to contend that they are
Advisory Opinion, indicated that Observer Status before any African
Union organ does not amount to recognition by the African Union. It
has thus established that only the NGOs recognised by the African
Union itself are covered by Article 4(1) of the Protocol.3
55. The Court has further established that recognition of NGOs
by the African Union is through the granting of Observer Status or
the signing of a Memorandum of Understanding and/or Cooperation
1 Request for Advisory Opinion by Socio-Economic Rights and Accountability

Project (SERAP), No. 001/2013, Advisory Opinion of 26 May 2017, para 46.
2 Idem, para 48.
3 Idem, para 53.
between the African Union and those NGOs.4

56. In the instant case, the Centre and the Coalition have not
claimed and have not provided proof as to their Observer Status
before the African Union or that they have signed any Memorandum of
Understanding with the Union.
57. From the foregoing, the Court finds that, although the Applicants
are African organisations within the meaning of Article 4(1) of the
Protocol, they lack the second essential condition required by
this provision as a basis for the Court’s jurisdiction, namely, to be
“recognised by the African Union”.
58. For the above reasons
The Court,
Unanimously:
requested of it.
_____________________________

the SERAP Opinion.
4 Idem, para 64.

3. the legal issues of utmost significance raised by the NGOs1

in regard to the interpretation of the African Charter on Human and
Peoples’ Rights (hereinafter referred to as “the Charter”) and the
Protocol to the Charter establishing the African Court on Human and
Peoples’ Rights (hereinafter referred to as “the Protocol”), or other
relevant human rights instruments in Africa such as the African Charter
on Democracy, Elections and Governance or the Protocol to the
Charter on the Rights of Women in Africa (the Maputo Protocol).
status to NGOs.
organizations (NGOs) with observer status review of this article shows

African Lesbians;
in Kenya ; Women Advocates Research and Documentation Centre and Zimbabwe
that, in the case of NGOs, referrals in contentious matters are less

restrictive than in matters of Advisory Opinion because in seizing
the Court on contentious matters, the NGO merely needs to have
an observer status with the Commission,3 whereas it needs to be
recognised by the AU to seek the Court’s advisory opinion.
has no personal jurisdiction to issue the Opinion sought”, the Court, on
Union will amend Article 4(1) of the Protocol with a view to opening up
possibilities for referrals to African Court and relaxing the conditions
_____________________________

ratione personae to issue the Advisory Opinion requested by the Centre
for Human Rights and the Coalition of African Lesbians, yet names the
procedure by which it arrived at that conclusion an “Advisory Opinion”,
a view that I do not endorse. I, hereby, set my separate opinion on
record on the following grounds:
in Article 34(6) of the Protocol.

below.

the matter.

Opinion”.

2013.
III. Analysis
Advisory Opinion.

Opinion.
IV. My position


opinions.
Request for Advisory Opinion by the Centre for Human

Rights, University of Pretoria and Others (Advisory Opinion)
(2017) 2 AfCHR 622
Application 001/2016, Request for Advisory Opinion by the Centre for

Human Rights; Federation of Women Lawyers, Kenya; Women’s Legal
Centre; Women Advocates Research and Documentation Centre;
Zimbabwe Women Lawyers Association
English text being authoritative.
Judges: ORE, KIOKO, NIYUNGEKO, GUISSE, ACHOUR, BOSSA,
an Advisory Opinion by NGOs which were not recognised by the African
Union.
I. The Applicants
1. This Request for Advisory Opinion dated 7 January 2016 was

filed at the Registry on 8 January 2016 jointly by the Centre for Human
Rights of the University of Pretoria, Federation of Women Lawyers
Kenya, Women’s Legal Centre, Women Advocates Research and
Documentation Centre and Zimbabwe Women Lawyers Association
(hereinafter referred to as “the Applicants”).
2. The Applicants state that they are all registered Non-
Governmental Organisations (NGOs) based in South Africa, Nigeria,
Kenya and Zimbabwe, respectively, working on women’s human rights
issues in various capacities, including public interest litigation, provision
of legal aid, research and in academia. They also state that they are
NGOs with Observer Status with the African Commission on Human
and Peoples’ Rights (hereinafter referred to as the “Commission”).
They have provided copies of the attestation of their Observer Status
with the Commission.
3. The Applicants are represented by Ms. Sibongile Ndashe of the
Initiative for Strategic Litigation in Africa and Professor Frans Viljoen of
the Centre for Human Rights, University of Pretoria, South Africa.
CHR and Others (Advisory Opinion) (2017) 2 AfCHR 622 623
4. The Applicants submit that unrecorded and unregistered

marriages are common in Africa due to (i) the fact that domestic
laws do not stipulate requirements or procedures for the compulsory
registration of all forms of marriages and are grossly inadequate; (ii)
the cost of registering marriages (iii) onerous requirements for such
registrations; (iv) unequal gender relations; (v) lack of awareness;
and (vi) lack of legal frameworks regulating the consequences of
unrecorded and unregistered marriages.
5. The Applicants state that the issue of non-registration and non-
recording of marriages has rendered women vulnerable in that (i)
women are unable to provide proof of their marriages, (ii) women are
easily divorced, (iii) women are unable to enforce the requirement that
a woman’s consent must be sought before the man can take a second
wife in a polygamous marriage, (iv) women are unable to secure land
and property rights and that, (v) it makes it difficult for countries to
collect, monitor and analyse vital information about a population.
6. The Applicants are requesting for an Advisory Opinion on the
interpretation of Article 6(d) of the Protocol to the African Charter
on Human and Peoples’ Rights on the Rights of Women in Africa
(hereinafter referred to as “the Women’s Rights Protocol”) and the
States’ obligations consequent thereto.
7. They indicate that for the purposes of this request and in line
with Articles 6(a) and (b) of the Women’s Rights Protocol, the term
“marriage” shall mean a “marriage entered into with the full and free
consent of the parties and the term shall refer only to marriages entered
into by women who are at least 18 years of age”.
8. The Applicants state that the request is anchored on Articles
2(1)(a) to (e) and 2(2) of the Women’s Rights Protocol, which provide
for the elimination of discrimination against women by requiring State
Parties thereto to prevent all forms of discrimination against women
through appropriate legislative, institutional and other measures.
9. The Applicants submit that Article 6(d) of the Women’s Rights
Protocol imposes an obligation on State Parties to enact national
legislative measures to guarantee that every marriage is recorded in
writing and registered in accordance with national laws in order to be
legally recognised.
10. The Applicants aver that the Court’s interpretation of Article
6(d) of the Women’s Rights Protocol to include a positive obligation to
adopt legislative measures for the registration of marriages, would be
in consonance with the obligation set out in Article 21(2) of the African
Charter on the Rights and Welfare of the Child which provides that
registration of all marriages in an official registry is compulsory.
11. The Applicants contend that the overall purpose of the Women’s
Rights Protocol and particularly Article 2 thereof require that in addition
to “taking legislative measures”, State parties are obligated to take
measures aimed at promoting awareness of the obligation to register
marriages and to allocate financial and other resources aimed at
facilitating such registration.
12. The Applicants maintain that the word “shall” in Article 6(d) of the
Women’s Rights Protocol is peremptory and denotes a duty requiring
State Parties to guarantee the registration of marriages in order for
them to be legally recognised. The Applicants submit further that there
is nothing in this provision suggesting that, in meeting this obligation,
States Parties should impose penalties or sanctions for non-compliance
with the registration requirements set out in their national laws.
13. The Applicants contend that Article 2 of the Women’s Rights
Protocol requires State Parties to put in place measures aimed at
combatting discrimination, among which are:
a. integrating a gender perspective into their policy and
other decisions; and
b. taking positive and corrective actions in those areas
where discrimination in law continue to exist.
14. The Applicants submit that in order to give effect to the overall
purpose of the Women’s Rights Protocol, the commitment towards
eliminating discrimination in Article 2 and the rights and protections
in marriage established in Articles 6(e) to 6(j) thereof and affirmed in
other regional and international human rights treaties, Article 6(d) must
be interpreted purposively and in a way that rejects the imposition of
unnecessary sanctions for non-compliance by its rights holders and
does not perpetuate indirect discrimination against women.
15. The Applicants argue that non-recognition of marriages that are
not recorded in writing or registered perpetuates discrimination against
women as it results in vulnerability, compromises enjoyment of marital
rights enshrined in Article 6(e) to 6(j) of the Women’s Rights Protocol
and other regional and international instruments. The Applicants submit
further that, this discrimination is particular where non-registered
marriages are automatically and as a matter of law presumed void,
invalid or nullified such that the personal and proprietary consequences
and protections in marriage are denied.
16. The Applicants state that Article 6(d) of the Women’s Rights
Protocol was not intended and should not be interpreted as suggesting
that a failure to register will invalidate a marriage, and that while
national laws must require registration of marriages, non-compliance
with registration requirements should not as a matter of law void, nullify
or invalidate the marriage.
17. The Applicants submit that a distinction must be drawn between

“validity” and “legal recognition” (as used in the Women’s Rights
Protocol), and that in their view an action or undertaking which is not
legally recognised need not necessarily be presumed or declared
invalid. The Applicants argue that an unregistered marriage may
simultaneously have the status of being valid but not legally recognised
and that drawing a distinction between the concepts of validity and legal
recognition for the purposes of elaborating on the precise meaning
of Article 6(d) would give greatest effect to the rights and objects
enshrined in the Women’s Rights Protocol.
18. The Applicants submit that in order to give effect to the overall
purpose of the Women’s Rights Protocol, the commitment to eliminate
discrimination in Article 2 and the rights in marriage established in
Article 6(e) to 6(j) thereof and other human rights instruments, the
legal consequences of non-registered marriages, which should be
stipulated by national laws, should be aimed at preserving the personal
and proprietary consequences of marriage that are intended to protect
the parties thereto. State Parties to the Women’s Rights Protocol are
duty bound to also stipulate condonation procedures in their national
laws that afford parties to a marriage an opportunity to rectify or correct
non-compliance with registration requirements.
19. The Applicants submit that the language in Article 6(d) of the
Women’s Rights Protocol seems to have been interpreted as meaning
that unregistered marriages are invalid and/or should not receive
legal recognition and that such an interpretation causes prejudice and
injustice to women across Africa, whose marriages are unrecorded and
unregistered. They submit further that this interpretation is contrary
to the overall purpose of the Women’s Rights Protocol and to the
objectives of Article 2 thereof.
20. The Applicants state that by maintaining the requirement of
recording and registration of marriage as a possible intended precursor
to legality, Article 6(d) of the Women’s Rights Protocol has the potential
to jeopardise the right to equality in marriage and that it is against
this backdrop that they make the request to the Court for an Advisory
Opinion on the precise meaning of this provision.
21. The Applicants submit that their request is therefore that the
Court:
a. Confirm that a failure to enact laws that require and
regulate marriage registration constitute a violation of the
Women’s Rights Protocol by a Member State;
b. Advise on the nature and scope of State obligation that
Article 6(d) of the Women’s Rights Protocol prescribes in
respect of recording and registration of marriages, taking
into account the broader duty of State parties to, respect,
protect and promote the rights of women, as enshrined in

the Women’s Rights Protocol;
c. Confirm that Article 6(d) of the Women’s Rights Protocol
does not suggest or require that non-registration
invalidates a marriage;
d. Advise whether State parties are required to enact national
laws that provide for condonation procedures to correct or
remedy non- compliance with registration requirements ;
and
e. Advise on the legal consequences that flow non-registered
marriages, having regard to the overall purpose of the
Women’s Rights Protocol and the specific protections
and commitments set out in Articles 2 and 6(e-j) of the
Women’s Rights Protocol and other relevant instruments.
II. Procedure before the Court
22. The Request dated 7 January 2016 was received at the Registry
of the Court on 8 January 2016 and registered forthwith as Request
No.001/2016.
23. By a letter dated 15 February 2016, the Registry requested
the Commission to advise whether the Request relates to a matter
pending before it. The Commission responded by a letter dated 18
May 2016, indicating that the Request does not relate to any matter
pending before it.
24. By a letter dated 15 March 2016, the Registry sought confirmation
from the Commission, of the Applicants’ Observer Status. By a letter
dated 30 March 2016, the Commission confirmed that they have
Observer Status before the Commission.
25. By a notice dated 13 June 2016, the Request was notified to
African Union Member States, the Commission, the African Union
Commission, the Pan African Parliament, the Economic, Social and
Cultural Council of the African Union, the African Union Commission
on International Law, the Directorate of Women and Gender of the AU
Commission and Women’s Rights Non-Governmental Organisations.
The Court set a ninety (90) day time limit for receipt of observations
from the date of receipt. By a notice dated 6 October 2016, the Court
extended the time for receipt of such observations by sixty (60) days.
This period elapsed on 31 January 2017.
26. One of the entities to whom the request was transmitted
pursuant to Rule 69 of the Rules, L’Association des Femmes Juristes
de Cote’ d’Ivoire filed their Observations on the merits of the request
on 13 September 2016.
27. By a notice dated 12 July 2017, the Applicants and other entities
to whom the Request was transmitted were notified of the close of the
procedure for the filing of written submissions.
IV. Jurisdiction of the court
28. In accordance with Rule 72 of the Rules, “The Court shall apply,
mutatis mutandis, the provisions of Part IV of these Rules to the extent
that it deems them to be appropriate and acceptable”.
29.
30. In terms of Rule 39(1) of the Rules, “The Court shall conduct
preliminary examination of its jurisdiction”.
31.
whether it has jurisdiction on the Request before it.
matter, the Court must satisfy itself that the Applicants are amongst
the entities entitled to institute a request for advisory opinion under
Article 4(1) of the Protocol to the African Charter on Human and
A. Applicant’s arguments
34. The Applicants state that Article 4(1) of the Protocol as read with
Article 68(1) of the Rules confer a discretionary competence to the
Court to provide an Advisory Opinion at the request of, among others,
any African Organisation recognised by the African Union.
35. The Applicants submit that an interpretation of the clause “any
African organisation recognised by the African Union encompasses
any organisation with Observer Status with the Commission”.
36. The Applicants submit that this interpretation is consistent
with the principles of statutory interpretation that requires courts
to give effect to every word and clause of a statute, to assume that
the construction was intentional and to avoid rendering any statutory
language superfluous.
37. The Applicants also submit that on a reasonable construction
of the overall text of the Protocol, two types of organisations are
envisaged: African Intergovernmental Organisations, as mentioned
in Article 5(1)(e) thereof, and Non-Governmental organisations, as
mentioned in Article 5(3) thereof, which may or may not have been
granted Observer Status with the Commission.
38. The Applicants submit that in their view, the phrase “African
Organisations recognised by the African Union” must be construed
as an umbrella term referring to both African Intergovernmental

Organisations and Non-Governmental Organisations. They submit that
this interpretation is consistent with an overall reading of the text and
also gives effect to the unique distinction drawn in the text between
types of organisations that may seek the assistance of the Court.
39. The Applicants conclude that they qualify as African organisations
recognised by the African Union for the purposes of Article 4(1) of the
Protocol and Article 68(1) of the Rules, thus are entitled to request the
Advisory Opinion.
B. Position of the Court
Member State of the [African Union], the [AU], any of its organs, or any
African organization recognised by the AU, the Court may provide an
human rights instruments…”.
41. The fact that the Applicants do not fall within the first three
categories within the meaning of Article 4(1) of the Protocol is not
contested.
42. The first question which arises, however, is whether they
fall under the fourth category, that is, whether they are “African
organisations recognised by the AU” within the meaning of Article 4(1)
of the Protocol.
43. On this issue, the Court has in the past in the Advisory Opinion
in Socio-Economic Rights and Accountability Project (SERAP)
established that the term “organization” used in Article 4(1) of the
Protocol covers both Non-Governmental Organisations and Inter-
Governmental Organisations.1
44. As regards the appellation “African”, the Court noted in the same
Opinion that an organisation may be considered as “African” if it is
registered in an African country and has branches at the sub-regional,
regional or continental levels and if it carries out activities beyond the
country where it is registered.2
45. The Court notes that the Applicants are registered in South
Africa, Kenya, Nigeria and Zimbabwe, respectively and with their
Observer Status before the Commission, they are entitled to carry out
their activities beyond the countries where they are registered. In view

(SERAP), Request NO. 001/2013, Advisory Opinion of 26 May 2017, Paragraph
46.
2 Idem, Para 48.
of this, the Court concludes that they are “African Organisations” in

terms of Article 4(1) of the Protocol.
46. The second question the Court must address is whether these
organisations, apart from being African, are recognised by the African
Union.
47. The Court notes that the Applicants have relied on their Observer
Status before the Commission to contend that they are recognised by
the African Union.
48. In this respect, the Court has in the afore-mentioned Opinion
held that Observer Status before any African Union organ does not
amount to recognition by the African Union, rather that, only NGOs
recognised by the African Union itself are envisaged in Article 4(1) of
the Protocol.3
signing of a Memorandum of Understanding between the African Union
and those NGOs.4
50. In the instant case, the Applicants have not claimed to be and
have not provided proof that they have Observer Status with the
African Union or have sipned any Memorandum of Understanding with
the Union.
51. From the foregoing, the Court finds that, although the Applicants
are African organisations within the meaning of Article 4(1) of the
Protocol, they lack the second essential condition, required by this
provision as a basis for the Court’s jurisdiction namely, to be “recognised
by the African Union”.
The Court,
Unanimously:
requested of it.
_____________________________
3 SERAP Advisory Opinion, para 53.

4 Idem, para 64.

the SERAP Opinion.
status to NGOs.

African Lesbians;
in Kenya; Women Advocates Research and Documentation Centre and Zimbabwe

organizations (NGOs) with observer status to institute cases directly
before it, in accordance with Article 34(6) of this Protocol”.
advisory opinion.
In conclusion, we wish to reiterate our hope that the African Union will
amend Article 4(1) of the Protocol with a view to opening up possibilities
for referrals to African Court and relaxing the conditions required of
NGOS to bring their request for Advisory Opinion within the ambit of
the Court’s jurisdiction; or, the way of amendment being uncertain, to
broaden its criteria for granting observer status to include NGOs with
similar status before the Banjul Commission.
_____________________________
in Article 34(6) of the Protocol.

ratione personae to issue the Advisory Opinion requested by the
Centre for Human Rights and others, yet names the procedure by
which it arrived at that conclusion an “Advisory Opinion”, a view that
I do not endorse. I, hereby, set my separate opinion on record on the
following grounds:

below.

the matter.

Opinion”.

III. Analysis
Advisory Opinion.

2013.

Opinion.
IV. My position

opinions.
ASADHO (Advisory Opinion) (2017) 2 AfCLR 637 637
Request for Advisory Opinion by l’Association Africaine de

Défense des Droits de l’Homme (Advisory Opinion) (2017)
2 AfCLR 637
Application 002/2016, Request for Advisory Opinion by L’association

Africaine de Défense des Droits de l’Homme
Order 28 September 2017. Done in English and French, the French text
an Advisory Opinion by an NGO that was not recognised by the African
Union.
Jurisdiction (request for advisory opinion, African organisation, 26-9,
recognized by the African Union, 32-34)
I. The Applicant
1. The Request for Advisory Opinion dated 10 May 2016, received

at the Registry on 8 July 2016, was submitted by l’Association Africaine
de Défense des Droits de l’Homme (ASADHO) (hereinafter referred
to as “the Applicant”), a non-profit Non-Governmental Organisation
(NGO) registered as per Ministerial Edict No. 370/CAB/MIN/J§DH/2010
of 7 August 2010, and based in the Democratic Republic of Congo.
The Applicant’s main objective is the defense and promotion of human
rights.
2. The Applicant states that, in discharging its mission, it participated

under the platform of African Non-Governmental Organisations
operating in the natural resources sector known as the International
Alliance on Natural Resources in Africa (IANRA) in case studies on
the impact of extractive industries on members of local communities
in Angola, Democratic Republic of Congo, Kenya, South Africa and
Zimbabwe.
3. The Applicant avers that the said case studies highlighted
several negative impacts of the mining activities which are tantamount
to breaches of the fundamental rights of members of the communities
affected by mineral extraction, which rights are guaranteed by the

as “the Charter”).
4. The Applicant adds that it is in this context that a model mining
law for Africa was drafted, titled “Model Law on Mining on Community
Land in Africa”, which African NGOs intend to present to Member
States of the African Union for the purposes of harmonising their
mining laws and enhancing the protection of the fundamental rights of
the communities affected by extractive industries.
5. The prayer of the Applicant is for the Court to rule that the Draft
Model Law on Mining on Community Land in Africa (Draft Model Mining
Law for Africa) is consistent with the provisions of the Charter.
6. The Request dated 10 May 2016, was received at the Registry

of the Court on 8 July 2016.
7. By a letter dated 12 August 2016, the Registrar requested the
African Commission on Human and Peoples’ Rights (hereinafter referred
to as “the Commission”) to indicate whether the Applicant has Observer
Status before the Commission and whether the subject matter of the
Request concerned any matter pending before it.
8. By an email dated 16 September 2016, the Commission
advised that the Applicant does not have Observer Status before the
Commission but did not respond to the issue whether the subject
matter of the Request concerned a matter pending before it.
9. By a letter dated 8 December 2016, during the 43rd Ordinary
Session of the Court held from 31 October to 18 November 2016,
the Registry, on the Court’s instructions, requested the Applicant to
produce a number of documents for purposes of clarification of their
request.
10. By an email dated 7 March 2017, the Applicant submitted a
series of documents attesting to its participation in the study process
leading to the development of the Draft Model Mining Law for Africa.
11. In accordance with Rule 72 of the Rules, “the Court shall apply,
mutatis mutandis the provisions of Part IV of these Rules to the extent
that it deems them to be appropriate and acceptable”.
12. In terms of Rule 39(1) of the Rules, “the Court shall conduct
preliminary examination of its jurisdiction…”
13. From the provisions of the Rules, the Court must determine
whether it has jurisdiction to examine the Request before it.

matter, the Court must satisfy itself that the Applicants are amongst
the entities entitled to institute a request for advisory opinion under
Article 4(1) of the Protocol to the African Charter on Human and
A. Applicant’s arguments
15. The Applicant bases its request on Article 4 of the Protocol.

16. The Applicant submits that it is registered in the Democratic
Republic of Congo and has legal personality in terms of Ministerial
Edict No. 370/CAB/MIN/JDH/2010 of 7 August 2010. The Applicant
states that, being based in the Democratic Republic of the Congo and
having Observer Status before the Commission confers on it the status
of an African organization.
17. On the merits, the Applicant makes reference to a number of
international legal instruments in its document on implementation of
the Draft Model Mining Law for Africa.1 These include the Universal
Declaration of Human Rights, the International Covenant on Civil and
Political Rights, the International Covenant on Economic, Social and
Cultural Rights and the African Charter on Human and Peoples’ Rights.
18. The Applicant also draws from the Draft Model Mining Law for
Africa2 prepared by the International Alliance on Natural Resources in
Africa (IARNA). The Applicants state that the aforesaid draft model law
is not just about the Democratic Republic of Congo; it also concerns
African communities in other countries such as Angola, Kenya, South
Africa and Zimbabwe, which countries also participated in the studies
leading to the development of the draft model law, whose consistency
with the Charter, the Court is being requested to advise on.
19. In the Draft Model Mining Law for Africa implementation
document, the Applicant highlights the impact associated with Ruashi
Mining’s3 activities in the synopsis of the information gathered during
the raids carried out and affirmed that: “Ruashi Mining PLC did not
provide employment for the population (inhabitants) of the Ruashi
Commune, culminating among other things, in urban banditry, increased
1 Document developed exclusively for the Applicant with financial support from the
European Union.
2 This refers to the draft law which the Court is requested to determine consistency
thereof with the Charter.
3 Ruashi Mining is a mining company based in the Democratic Republic of Congo
on which the investigation was conducted. Vide page 18 of the Draft Model Law for
Mining in Africa implementation document.
poverty of the population of the Commune, insecurity, upsurge in

robberies, prostitution and children dropping out by abandoning school
consequent upon the very high cost of studies for the greatest number
of the population”.
20. The Applicant also submits that relocation of the population
was effected “without the company Ruashi Mining consulting, the
specialised services of the municipal administration, so as to be
compliant with the requisite procedures”.
21. It further submits that the investigation into the Ruashi Mining
Company highlighted the existence of negative impacts of the mining
activities, which is tantamount to breaches of the fundamental rights
guaranteed by the Charter, such as the right to life, health, safety, a
healthy environment, physical integrity, the right to justice, the right to
work and that, consequently, there is a nexus between the negative
impacts of mining activity and the human rights protected by the
Charter.
22. The Applicant contends that its Observer Status before the
Commission confers on it the status of an African organisation entitled
to seek an Advisory Opinion on any matter within the field of application
of the Charter.
B. Position of the Court
23. In terms of Article 4(1) of the Protocol, “At the request of a

Member State of the African Union (AU), any of its organs, or any
African organization recognized by the AU, the Court may provide an
human rights instruments ... “.
24. The fact that the Applicant does not belong to the first three
categories within the meaning of Article 4(1) of the Protocol is not in
contention.
25. The first question which arises is whether the Applicant falls
under the fourth category, that is, whether it is an “African organization”
within the meaning of Article 4(1) of the Protocol.
26. On this issue, the Court has in its Advisory Opinion in Socio-
Economic Rights and Accountability Project (SERAP), established that
the term “organisation” used in Article 4(1) of the Protocol covers both
non-governmental and intergovernmental organisations.4
27. As regards the appellation “African”, the Court has established
that an organisation may be considered as “African” if it is registered

(SERAP), No. 001/2013, Advisory Opinion of 26 May 2017, para 46.
in an African country and has branches at the sub-regional, regional

or continental levels, and if it carries out activities beyond the country
28. The Court notes that the Applicant is registered in the Democratic
Republic of Congo where it undertakes its activities at the sub-regional
and continental levels. Articles 28, 30, 31, 39 of the Statutes which
establish ASADHO define the organisation’s objectives as: Article
28 “voluntarily assist and represent victims of violations, prisoners of
conscience and conscientious objectors ...”, Article 30 “work through
the press to promote and disseminate human rights and denounce
violations thereof” and Article 31 “representative offices are branches
of the Association based outside the country ...”
29. 29 From the foregoing, it is apparent that the Applicant operates
not only in the Democratic Republic of Congo, but also in the Central
Africa region and in a significant part of the African continent. Proof
thereof is that the studies leading to the adoption of the draft mining
law are the inputs of several African States, which in any case are also
members of the AU.
30. The Court therefore concludes that the Applicant is an African
organisation within the meaning of Article 4 of the Protocol.
31. The second question which follows is whether the Applicant is
32. The Court notes that the Applicant relies on its Observer Status
before the Commission to contend that it is recognised by the African
Union.
Advisory Opinion indicated that Observer Status before any African
Union Organ does not amount to recognition by the Union. It has thus
established that only African NGOs recognised by the African Union
itself are covered by Article 4(1) of the Protocol.6
signing of a Memorandum of Understanding and Cooperation between
the African Union and the NGOs concerned.7
35. In the instant case, the Applicant has not claimed and has not
provided proof as to their Observer Status before the African Union or
that it has signed any Memorandum of Understanding with the Union.
36. From the foregoing, the Court finds that although the Applicant is
an African organization within the meaning of Article 4(1) of the Protocol,
5 Idem, para 48.

6 Idem, para 53 .
7 Idem, para 65.
it lacks the second essential condition required under this provision as

a basis for the Court’s jurisdiction, namely to be “recognised by the
African Union”.
The Court,
Unanimously,
requested of it.
_____________________________
1. The four opinions rendered on 28 September 2017, reproduce in

extenso the grounds adduced in the SERAP Opinion of 26 May 2017.
the SERAP Opinion.

African Lesbians;
in Kenya; Women Advocates Research and Documentation Centre and Zimbabwe

status to NGOs.
organizations (NGOs) with observer status to institute cases directly
before it, in accordance with Article 34(6) of this Protocol”.
advisory opinion.
in Article 34 (6) of the Protocol.
Union will amend Article 4(1) of the Protocol with a view to opening up
possibilities for referrals to African Court and relaxing the conditions
_____________________________

ratione personae to issue the Advisory Opinion requested by ASADHO,

below.

the matter.
Opinion”.


III. Analysis
Advisory Opinion.

2013.

Opinion.


IV. My position

opinions.

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Report of judgments,

orders and advisory opinions of the

African Court Law Report

Pretoria University Law Press

Editors Convening Editor

Rafaâ Ben Achour Assistant Editors

Chafika Bensaoula Susan Mutambasere

Dr. Sègnonna H. Adjolohoun

Dr. Mwiza Jo Nkhata

African Court Law Report

For more information on PULP, see www.pulp.up.ac.za

This is the second volume of the Report of judgments, orders and

This second volume of the African Court Law Report includes 37

The support of the following persons in the process of publication of this

• Mr. Nouhou Madani Diallo, Deputy Registrar

Abubakari v Tanzania (interpretation) (2017) 2 AfCLR 134

Cruel, inhuman or degrading treatment

Equal protection of the law

Peoples’ right to development

Peoples’ right to freely dispose of wealth and natural resources

Personal liberty and security

African Charter on Human and Peoples’ Rights

Protocol to the African Charter on Human and Peoples’ Rights on

Protocol to the African Charter on Human and Peoples’ Rights on

African Charter on the Rights and Welfare of the Child

African Charter on Democracy, Elections and Governance

Rules of Court of the African Court on Human and Peoples’

Rules of the African Commission on Human and Peoples’ Rights

OTHER REGIONAL INSTRUMENTS

ECOWAS Protocol on Democracy and Good Governance

East African Community Treaty

Universal Declaration of Human Rights

International Covenant on Civil and Political Rights

Convention on the Elimination of all Forms of Discrimination

United Nations Convention relating to the Status of Stateless

Vienna Convention on Consular Relations

United Nations Declaration on the Rights of Indigenous People

European Convention on Human Rights.

American Convention on Human Rights

African Commission on Human and Peoples’ Rights

African Committee on the Rights and Welfare of the Child

East African Court of Justice

ECOWAS Community Court of Justice

Permanent Court of International Justice

UN Human Rights Committee

UN Committee on the Elimination of Discrimination against

European Court of Human Rights

Inter-American Court of Human Rights

European Court of Human Rights

Nyamwasa and Others v Rwanda (interim measures)

Application 016/2015, General Kayumba Nyamwasa & Others v Republic

1. The Applicants are General Kayumba Nyamwasa, Mr Kennedy

II. Subject of the Application

3. The Application is based on the exercise in Rwanda to amend

1 It should be noted that the Respondent withdrew its declaration on 29 February

seek election to serve for a third term as President. The Applicants

9. The Application was filed on 22 July 2015. It was served on the

19. By a letter dated 3 March 2016, the Office of Legal Counsel

24. This Order was transmitted to the Parties by a notice dated 5