Wakilii

Abubakari v Tanzania (Application No. 007-2013)

African Court on Human and Peoples' Rights · [2019] AfCHPR 23 · 2019 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for reparations following judgment on merits finding violations of fair trial rights
Decision
Reparations partially granted; monetary compensation awarded to Applicant and two family members; publication of judgments ordered

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Court on Human and Peoples' Rights held that it has jurisdiction to order reparations following its earlier finding that Tanzania violated the Applicant's fair trial rights. The Court awarded TZS 2,000,000 to the Applicant for moral prejudice, TZS 1,500,000 to his wife, and TZS 1,000,000 to his son. The Court dismissed claims for material damages for loss of income, rejected claims for siblings and nephew due to insufficient proof of affiliation, and declined to order release from prison as the Applicant had already been released. The Court ordered Tanzania to publish both the merits and reparations judgments on official government websites as a measure of satisfaction.

Outcome

Reparations partially granted; monetary compensation awarded to Applicant and two family members; publication of judgments ordered

Facts

Mohamed Abubakari was convicted of armed robbery by Tanzanian domestic courts and sentenced to thirty years imprisonment. On 3 June 2016, the African Court found that Tanzania violated his fair trial rights under Article 7 of the African Charter and Article 14 of the ICCPR, including his right to legal assistance, right to defence documents, and right to have his alibi defence properly considered. The Court ordered Tanzania to remedy the violations and invited submissions on reparations. The Applicant sought pecuniary reparations for material loss, moral prejudice to himself and family members, legal fees, and non-pecuniary reparations including restoration of liberty and publication of the judgment. The Applicant was released from prison on 28 July 2017 after completing his sentence. Tanzania objected to the Court's jurisdiction to order reparations for violations occurring before it deposited its declaration in 2010.

Issues

  1. Whether the Court has jurisdiction to order reparations for violations that occurred before Tanzania deposited its declaration accepting individual complaints.
  2. What pecuniary reparations should be awarded to the Applicant for material loss and moral prejudice.
  3. Whether indirect victims (the Applicant's family members) are entitled to compensation for moral prejudice.
  4. What non-pecuniary reparations should be ordered, including restoration of liberty, guarantees of non-repetition, and measures of satisfaction.
  5. Whether the Applicant is entitled to reimbursement of legal fees and other costs incurred in proceedings before the Court.

Orders

  • Objection to jurisdiction dismissed.
  • Court declares it has jurisdiction to order reparations.
  • Prayer for material damages for loss of income and loss of life plan dismissed.
  • Prayer for reparations for moral prejudice to siblings and nephew dismissed.
  • Tanzanian Shillings Two Million (TZS 2,000,000) awarded to the Applicant for moral damages.
  • Tanzanian Shillings One Million, Five Hundred Thousand (TZS 1,500,000) awarded to Lukresia L. Kimario (Applicant's wife).
  • Tanzanian Shillings One Million (TZS 1,000,000) awarded to Ibrahim Mahamadu Ulotu (Applicant's son).
  • Respondent State ordered to pay the amounts within six months, failing which interest shall accrue at Central Bank rates.
  • Prayer for release from prison dismissed as moot.
  • Prayer for order regarding non-repetition dismissed.
  • Respondent State ordered to publish both the reparations judgment and the 3 June 2016 merits judgment on official websites of the Judiciary and Ministry of Constitutional Affairs within three months, to remain accessible for at least one year.
  • Respondent State ordered to submit implementation report within six months and every six months thereafter until full implementation.
  • Prayer for legal fees, costs and expenses dismissed.
  • Each party to bear its own costs.

Rules and key headnotes

International Human Rights Courts — Jurisdiction — Reparations — Temporal Jurisdiction
Where an international human rights court has established jurisdiction over an application and found violations, its jurisdiction extends to the reparations phase of the same application involving the same parties and same facts, and a preliminary objection to jurisdiction raised after judgment on the merits is redundant.
Reparations — Principles — Restitutio in Integrum — Full Reparation
A State found guilty of an internationally wrongful act is required to make full reparation for the damage caused to the victim, and reparation must, as far as possible, erase all consequences of the wrongful act and restore the state which would presumably have existed if that act had not been committed.
Reparations — Material Damages — Burden of Proof — Causal Link
For material prejudice to be compensable, there must be a causal link between the established violation and the alleged prejudice, and the burden of proof rests on the applicant to provide evidence justifying the claim; it is not sufficient to show a violation occurred without proving the specific damage claimed.
Reparations — Moral Damages — Presumption — Direct Victims
Moral prejudice to an applicant is presumed when a violation of rights has been found, without the need to demonstrate with evidence a link between the violation and the prejudice, and the burden of proof shifts from the applicant to the respondent State.
Reparations — Indirect Victims — Proof of Affiliation — Family Members
Before a court can order reparations for moral damages to family members as indirect victims, there must be proof of affiliation between them and the direct victim; a marriage certificate or equivalent is sufficient proof of marriage, a birth certificate or equivalent is sufficient to prove parent-child affiliation, and common law marriage may be established through evidence of cohabitation and joint designation on official documents.
Reparations — Non-Pecuniary Measures — Guarantees of Non-Repetition
Guarantees of non-repetition generally apply in cases of systemic violations and are only relevant in individual cases where the violation has not ceased, is likely to recur, or is structural in nature; where criminal proceedings are finalized and there is no possibility of repetition, an order for non-repetition is not necessary.
Reparations — Measures of Satisfaction — Publication of Judgments
Publication of international human rights court judgments as a measure of satisfaction is current practice and serves to enhance public awareness of the court's decisions; where publication in an official gazette is impractical, dissemination through official government websites for a specified period constitutes an appropriate alternative measure of satisfaction.

Legislation cited (9)

  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 22
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 27(1)
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 30
  • African Charter on Human and Peoples' Rights Article 7
  • International Covenant on Civil and Political Rights Article 14
  • Law of Marriage Act of Tanzania 1971 s.41(f)
  • Law of Marriage Act of Tanzania 1971 s.160(1)
  • Penal Code s.285
  • Penal Code s.286

Cases cited (11)

  • Mohamed Abubakari v United Republic of Tanzania (Application No. 007/2013)
  • Beneficiaries of the Late Norbert Zongo and Others v Burkina Faso (Application No. 013/2011)
  • Lohé Issa Konaté v Burkina Faso (Application No. 004/2013)
  • Ingabire Victoire Umuhoza v Republic of Rwanda (Application No. 003/2014)
  • PCIJ, Factory At Chorzow, Germany v. Poland, Jurisdiction, Determination of Indemnities and Merits 26/7/1927, 16/12/1927 and 13/9/1928, Rec. 1927, p. 47
  • Reverend Christopher R. Mtikila v United Republic of Tanzania (Application No. 011/2011)
  • Inter-American Court of Human Rights (IACHR) case of Aloeboetoe et al v. Suriname, Judgment of 10 September 1993, (Reparations and Costs)
  • IACHR Judgment of September 17, 1997 Loayza-Tamayo v Peru
  • Armand Guehi v United Republic of Tanzania (Application No. 024/2015)
  • Communication 279/03-296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v. Sudan, 27 May 2009
  • Communication 334/06- Egyptian Initiative for Personal Rights and Interights v Arab Republic of Egypt 01 March 2011

Full judgment

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Abubakari v Tanzania (Application No. 007-2013) [2019] AfCHPR 23 (4 July 2019)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.