Wakilii

Amir and Others v Tanzania (Application No. 014-2015)

African Court on Human and Peoples' Rights · [2019] AfCHPR 49 · 2019 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to the African Court on Human and Peoples' Rights alleging violations of fair trial rights following conviction for armed robbery in Tanzanian domestic courts
Decision
Application partly allowed; Applicants remain in custody; compensation awarded for fair trial violations

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Court held that Tanzania did not violate Article 7(2) of the African Charter regarding the legality of the 30-year sentence, as the penalty was prescribed by law at the time of the offence. However, Tanzania violated Article 7(1)(c) by failing to provide the Applicants with free legal assistance and by not informing them of their right to counsel, given that they were indigent, unrepresented, and charged with a serious offence carrying a severe penalty.

Outcome

Application partly allowed; Applicants remain in custody; compensation awarded for fair trial violations

Facts

On 31 December 2001, the Applicants robbed Frank Munishi's shop in Dar es Salaam, stealing TZS 12,000. During the robbery, Jibu Amir shot both Frank Munishi and his wife with a pistol, and Saidi Ally stabbed Frank Munishi with a bush knife. Neighbours rushed the victims to police and hospital. Three prosecution witnesses testified at trial, with PW1 identifying both Applicants and PW2 identifying the second Applicant. The Applicants were convicted of armed robbery under Sections 285 and 286 of the Penal Code on 25 February 2004 and sentenced to 30 years' imprisonment. They appealed to the High Court (dismissed 21 June 2009) and Court of Appeal (dismissed 14 April 2011), and filed an application for review (dismissed 20 March 2015). Throughout all proceedings, the Applicants were unrepresented and not informed of their right to counsel.

Issues

  1. Whether the sentence of 30 years' imprisonment imposed on the Applicants was lawful under Tanzanian law at the time of the offence.
  2. Whether the Respondent State violated the Applicants' right to a fair trial by failing to provide them with free legal assistance.
  3. Whether the Respondent State violated the Applicants' right to be informed of their right to legal representation.

Orders

  • Objections to material jurisdiction dismissed.
  • Court has jurisdiction.
  • Objections on admissibility dismissed.
  • Application declared admissible.
  • Respondent State has not violated Article 7(2) of the Charter regarding the sentence imposed.
  • Respondent State has violated Article 7(1)(c) of the Charter in relation to the right to be informed of right to counsel and lack of provision of free legal assistance.
  • Respondent State ordered to pay each Applicant TZS 300,000 as fair compensation within six months.
  • Interest on arrears at Central Bank of Tanzania rate if payment delayed.
  • Respondent State to submit implementation report within six months and every six months thereafter.
  • Applicants' prayer for release from prison dismissed.
  • Each party to bear its own costs.

Rules and key headnotes

Fair Trial — Legality of Punishment — Principle of Legality
Article 7(2) of the African Charter encapsulates the principle of legality, which proscribes the imposition of criminal punishment except when prescribed by a law in force at the time of the commission of the criminalised act entailing such punishment.
Sentencing — Armed Robbery — Minimum Sentences
Where an accused is convicted of armed robbery under Sections 285 and 286 of the Penal Code as read with Section 5(b) of the Minimum Sentences Act 1972 as amended, and the legislation prescribing the minimum sentence of 30 years was in force at the time of the offence, the sentence does not violate the principle of legality.
Fair Trial — Right to Counsel — Free Legal Assistance
Although Article 7(1)(c) of the African Charter does not explicitly provide for free legal assistance, when interpreted in light of Article 14(3)(d) of the ICCPR, the right to defence includes the right to be provided with free legal assistance where an accused is indigent and charged with a serious offence carrying a severe penalty, without the accused having to request it, provided the interests of justice so require.
Fair Trial — Right to Counsel — Duty to Inform
Although Article 7 of the African Charter does not expressly provide for the right to be informed of one's right to counsel, Article 14(3)(d) of the ICCPR requires that in criminal cases any accused shall be informed of this right, and authorities owe a positive obligation to proactively inform accused individuals of their right to legal representation at the earliest time.
Admissibility — Exhaustion of Local Remedies — Extraordinary Remedies
An applicant is only required to exhaust ordinary judicial remedies before seizing the African Court; constitutional petitions and review procedures in the Tanzanian judicial system are extraordinary remedies that an applicant is not required to exhaust.
Admissibility — Reasonable Time — Case-by-Case Assessment
The reasonableness of the timeframe for seizing the African Court depends on the specific circumstances of the case and should be determined on a case-by-case basis; where applicants are lay, incarcerated, without legal assistance, and pursued an extraordinary remedy (review), a delay of four years and two months from exhaustion of ordinary remedies may be reasonable.
Reparations — Release from Prison — Specific and Compelling Circumstances
An order for release from prison can be made only in specific and compelling circumstances, such as where an applicant's arrest or conviction is based entirely on arbitrary considerations and continued imprisonment would occasion a miscarriage of justice; violations of the right to free legal assistance and right to be informed of right to counsel, while serious, do not in themselves constitute such circumstances.

Legislation cited (15)

  • African Charter on Human and Peoples' Rights Article 1
  • African Charter on Human and Peoples' Rights Article 2
  • African Charter on Human and Peoples' Rights Article 3
  • African Charter on Human and Peoples' Rights Article 6
  • African Charter on Human and Peoples' Rights Article 7(1)(c)
  • African Charter on Human and Peoples' Rights Article 7(2)
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 3
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 34(6)
  • International Covenant on Civil and Political Rights Article 14(3)(d)
  • Penal Code (Tanzania) s.285
  • Penal Code (Tanzania) s.286
  • Minimum Sentences Act 1972 (Tanzania) s.5(b)
  • Basic Rights and Duties Enforcement Act (Tanzania) s.4
  • Basic Rights and Duties Enforcement Act (Tanzania) s.9(1)
  • Constitution of Tanzania 1977 Article 13(6)(a)

Cases cited (26)

  • Alex Thomas v United Republic of Tanzania (2015) 1 AfCLR 465
  • Frank David Omary and Others v United Republic of Tanzania (2014) 1 AfCLR 358
  • Peter Joseph Chacha v United Republic of Tanzania (2014) 1 AfCLR 398
  • Anaclet Paulo v United Republic of Tanzania (Application No. 20/2016)
  • Armand Guehi v United Republic of Tanzania (Application No. 001/2015)
  • Werema Wangoko v United Republic of Tanzania (Application No. 024/2015)
  • Beneficiaries of late Norbert Zongo and Others v Burkina Faso (2013) 1 AfCLR 197
  • Mohamed Abubakari v United Republic of Tanzania (2016) 1 AfCLR 599
  • Christopher Jonas v United Republic of Tanzania
  • Kennedy Owino Onyanchi and Another v United Republic of Tanzania (Application No. 003/2015)
  • Christopher Mtikila v United Republic of Tanzania
  • African Commission on Human and Peoples' Rights v Republic of Kenya (Application No. 006/2012)
  • Wilfred Onyango Nganyi and 9 Others v United Republic of Tanzania (Application No. 006/2013)
  • Michael Majuru v Zimbabwe (2008)
  • Lucien Ikili Rashidi v United Republic of Tanzania
  • Reverend Christopher R. Mtikila v United Republic of Tanzania (2014) 1 AfCLR 72
  • Amiri Ramadhani v United Republic of Tanzania (Application No. 010/2015)
  • Beneficiaries of late Norbert Zongo and Others v Burkina Faso (2015) 1 AfCLR 258
  • Diocles William v United Republic of Tanzania
  • Minani Evarist v United Republic of Tanzania
  • Mgosi Mwita v United Republic of Tanzania (Application No. 006/2016)
  • Kijiji Isiaga v United Republic of Tanzania
  • Thomas Miengi v Republic of the High Court of Appeal
  • Panovits v Cyprus (Application No. 4268/04)
  • Padalov v Bulgaria (Application No. 54784/00)
  • Southern African Human rights NGO Network and others v Tanzania

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Amir and Others v Tanzania (Application No. 014-2015) [2019] AfCHPR 49 (28 November 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.