Wakilii

Cheusi v United Republic of Tanzania (Application No. 004-2015)

African Court on Human and Peoples' Rights · [2020] AfCHPR 44 · 2020 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 the African Charter arising from criminal convictions and sentences in Tanzania
Decision
Application partly allowed; violations of right to free legal assistance and right to be tried within a reasonable time established; compensation awarded; Applicant remains in custody serving sentence

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Court held that Tanzania violated the Applicant's right to free legal assistance under Article 7(1)(c) of the African Charter by failing to provide him with legal representation during part of his trial and appeals, and violated his right to be tried within a reasonable time under Article 7(1)(d) by taking over ten years to determine his appeal. The Court dismissed allegations of violations of the rights to equality, freedom from cruel treatment, and other fair trial guarantees. The Court awarded the Applicant TZS 5,725,000 in moral damages and ordered publication of the judgment.

Outcome

Application partly allowed; violations of right to free legal assistance and right to be tried within a reasonable time established; compensation awarded; Applicant remains in custody serving sentence

Facts

The Applicant, a Tanzanian national, was arrested on 6 June 2003 for armed robbery of a pick-up vehicle in Dar es Salaam and prosecuted in Criminal Case No. 95/2003. While on bail, he was arrested again on 3 September 2004 and charged with conspiracy and robbery in Criminal Case No. 194/2004. In the first case, he was convicted of armed robbery on 22 September 2005 and sentenced to 30 years imprisonment. His appeals to the High Court and Court of Appeal were dismissed in 2006 and 2009 respectively. In the second case, he was convicted on 3 October 2005 and sentenced to 7 years for conspiracy and 15 years for robbery. He filed an appeal in October 2006 which was heard in June 2007 but judgment was not delivered until 20 March 2017, when the High Court quashed the conviction due to lost records. The Applicant filed this Application before the African Court on 19 January 2015, alleging violations of his rights under the African Charter.

Issues

  1. Whether the African Court has jurisdiction to hear the Application
  2. Whether the Application is admissible under Article 56 of the African Charter
  3. Whether Tanzania violated the Applicant's right to a fair trial under Article 7(1) of the African Charter by relying on visual identification evidence without an identification parade
  4. Whether Tanzania violated the Applicant's right to a fair trial by denying him the opportunity to challenge prosecution evidence
  5. Whether Tanzania violated the Applicant's right to a fair trial by failing to allow the Applicant to present an alibi defence
  6. Whether Tanzania violated the Applicant's right to free legal assistance under Article 7(1)(c) of the African Charter
  7. Whether Tanzania violated the Applicant's right to be tried within a reasonable time under Article 7(1)(d) of the African Charter
  8. Whether Tanzania violated the Applicant's right to equality before the law under Article 3 of the African Charter
  9. Whether Tanzania violated the Applicant's right not to be subjected to cruel, inhuman and degrading treatment under Article 5 of the African Charter
  10. What reparations, if any, should be awarded to the Applicant

Orders

  • Application declared admissible
  • Court has jurisdiction to hear the Application
  • Tanzania has not violated Article 3(1) and (2) of the Charter (equality before the law)
  • Tanzania has not violated Article 5 of the Charter (freedom from cruel, inhuman and degrading treatment)
  • Tanzania has not violated Article 7(1) of the Charter regarding visual identification, challenge to prosecution evidence, or alibi defence
  • Tanzania has violated Article 7(1)(c) of the Charter as read with Article 14(3)(d) of the ICCPR by failing to provide free legal assistance
  • Tanzania has violated Article 7(1)(d) of the Charter by failing to try the Applicant within a reasonable time in Criminal Appeal No. 58/2006
  • Applicant's prayer for damages for material loss dismissed
  • Applicant's prayer for damages for moral prejudice to indirect victims dismissed
  • Tanzania ordered to pay the Applicant TZS 5,725,000 as compensation for moral prejudice
  • Payment to be made tax-free within six months, failing which interest at the Central Bank of Tanzania rate shall accrue
  • Applicant's prayer for conviction to be quashed dismissed
  • Applicant's prayer for release from prison dismissed
  • Applicant's prayer for non-repetition order dismissed
  • Tanzania ordered to publish the judgment on official websites of the Judiciary and Ministry of Constitutional and Legal Affairs within three months, accessible for at least one year
  • Tanzania ordered to submit implementation reports to the Court within six months and every six months thereafter
  • Applicant's prayer for legal fees and costs dismissed
  • Each party to bear its own costs

Rules and key headnotes

African Court Jurisdiction — Material Jurisdiction — Not an Appellate Court
The African Court on Human and Peoples' Rights does not exercise appellate jurisdiction over decisions of national courts. However, it has jurisdiction to examine procedures of national courts to determine whether they conform with standards set out in the African Charter or any other human rights instrument ratified by the State concerned.
Admissibility — Exhaustion of Local Remedies — Extraordinary Remedies
An applicant is only required to exhaust ordinary judicial remedies before filing an application before the African Court. Constitutional petition procedures and review procedures at the highest court are extraordinary remedies which an applicant is not required to exhaust prior to filing an application before the African Court.
Admissibility — Reasonable Time for Filing Application — Assessment Factors
The reasonableness of the time limit for filing an application after exhaustion of local remedies depends on the particular circumstances of each case and should be determined on a case-by-case basis. Relevant circumstances include whether the applicant is imprisoned, is a layperson without legal assistance, and whether the applicant was awaiting the outcome of pending proceedings.
Criminal Procedure — Visual Identification — Identification Parade Not Always Required
In criminal proceedings, an identification parade is not necessary and cannot be carried out if witnesses previously knew or saw a suspect before the identification parade. The omission of an identification parade does not constitute a miscarriage of justice where witnesses had ample opportunity to observe and identify the accused during the commission of the crime.
Fair Trial — Right to Free Legal Assistance — Factors for Assessment
The right to defence under Article 7(1)(c) of the African Charter includes the right to be provided with free legal assistance without requesting it, provided that the interest of justice so requires. In assessing whether the interest of justice requires free legal assistance, relevant factors include the seriousness of the crime, the severity of the potential sentence, the complexity of the case, and the social and personal situation of the defendant.
Fair Trial — Right to Be Tried Within Reasonable Time — Assessment Factors
In determining whether the right to be tried within a reasonable time has been violated, the Court adopts a case-by-case approach taking into consideration the nature and complexity of the case, the length of the domestic proceedings, and whether the national authorities exercised due diligence in the circumstances of the case for the finalisation of the matter. A period of over ten years to determine an appeal is excessive and cannot be regarded as reasonable.
Reparations — Moral Prejudice — Presumption in Favour of Applicant
Where a violation of human rights has been established, there is a presumption that the applicant has suffered some form of moral prejudice as a result of such violation. The causal link between the wrongful act and moral prejudice can result from the human rights violation as a consequence thereof, without a need to establish causality as such. The evaluation of quantum in cases of moral prejudice must be done in fairness and taking into account the circumstances of the case.

Legislation cited (20)

  • African Charter on Human and Peoples' Rights Article 3
  • African Charter on Human and Peoples' Rights Article 5
  • African Charter on Human and Peoples' Rights Article 7(1)(a)
  • African Charter on Human and Peoples' Rights Article 7(1)(b)
  • African Charter on Human and Peoples' Rights Article 7(1)(c)
  • African Charter on Human and Peoples' Rights Article 7(1)(d)
  • African Charter on Human and Peoples' Rights Article 7(2)
  • African Charter on Human and Peoples' Rights Article 56
  • 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 6(2)
  • 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 34(6)
  • International Covenant on Civil and Political Rights Article 14(3)(d)
  • Constitution of the United Republic of Tanzania 1977 Article 13(1)
  • Constitution of the United Republic of Tanzania 1977 Article 13(6)(c)
  • Constitution of the United Republic of Tanzania 1977 Article 26(1)
  • Constitution of the United Republic of Tanzania 1977 Article 26(2)
  • Penal Code (Tanzania) Section 285
  • Criminal Procedure Act (Tanzania) Section 3
  • Legal Aid (Criminal Proceedings) Act (Tanzania)

Cases cited (27)

  • Alex Thomas v. United Republic of Tanzania (merits) (2015) 1 AfCLR 465
  • Peter Joseph Chacha v. United Republic of Tanzania (jurisdiction) (2014) 1 AfCLR 398
  • Ernest Francis Mtingwi v. Republic of Malawi (admissibility) (2013) 1 AfCLR 190
  • Kenedy Ivan v. United Republic of Tanzania (Application No. 025/2016)
  • Armand Guehi v. United Republic of Tanzania (merits and reparations) (2018) 2 AfCLR 493
  • Werema Wangoko Werema and Others v. United Republic of Tanzania (merits)(2018) 2 AfCLR 539
  • Christopher Jonas v. United Republic of Tanzania (merits) (2017) 2 AfCLR 105
  • Mohamed Abubakari v. United Republic of Tanzania (merits) (2016) 1 AfCLR 599
  • Ingabire Victoire Umuhoza v. Republic of Rwanda (merits) (2017) 2 AfCLR 171
  • Ingabire Victoire Umuhoza v. Republic of Rwanda (jurisdiction)(2014) 1 AfCLR 540
  • Beneficiaries of late Norbert Zongo and Others v. Burkina Faso (preliminary objections) 1 AfCLR 197
  • Wilfred Onyango Nganyi and 9 Others v. United Republic of Tanzania (merits)(2016) 1 AfCLR 507
  • Oscar Josiah v. United Republic of Tanzania (Application No. 053/2016)
  • Diodes William v. United Republic of Tanzania (merits) (2018) 2 AfCLR 426
  • Amiri Ramadhani v. United Republic of Tanzania (merits) (2018) 2 AfCLR 344
  • Lucien Ikili Rashidi v. United Republic of Tanzania (Application No. 009/2015)
  • Kijiji Isiaga v. United Republic of Tanzania (merits) (2018) 2 AfCLR 218
  • Kennedy Owino Onyachi and Charles John Mwanini Njoka v. United Republic of Tanzania (merits) (2017) 2 AfCLR 65
  • Reverend Christopher R. Mtikila v. United Republic of Tanzania (reparations) (2014) 1 AfCLR 72
  • Lohe Issa Konate v. Burkina Faso (reparations) (2016) 1 AfCLR 346
  • Beneficiaries of late Norbert Zongo v. Burkina Faso (reparations)
  • Ingabire Victoire Umuhoza v. Republic of Rwanda (reparations), (2018) 2 AfCLR 202
  • Majid Goa v. United Republic of Tanzania (Application No. 025/2015)
  • Minani Evarist v. United Republic of Tanzania (merits) 2 RJCA 415
  • Mgosi Mwita Makungu v. United Republic of Tanzania
  • Alfred Agbesi Woyome v. Republic of Ghana (Application No. 001/2017)
  • Michael Majuru v. Zimbabwe

Full judgment

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Cheusi v United Republic of Tanzania (Application No. 004-2015) [2020] AfCHPR 44 (26 June 2020)
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.