Wakilii

Elisamehe v United Republic of Tanzania (Application No. 028-2015)

African Court on Human and Peoples' Rights · [2020] AfCHPR 63 · 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 fair trial rights arising from domestic criminal conviction and appeals
Decision
Application partly allowed; violation of right to legal assistance established; conviction and sentence upheld; moral damages awarded

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 read with Article 14(3)(d) of the ICCPR by failing to provide legal representation during trial and appeals for a serious rape charge carrying a thirty-year sentence, where the applicant was indigent. The Court dismissed all other claims, finding no violations regarding the right to defence, charge sheet defects, appellate review, evidence assessment, or delay in review proceedings. The Court awarded moral damages but declined to quash the conviction or order release.

Outcome

Application partly allowed; violation of right to legal assistance established; conviction and sentence upheld; moral damages awarded

Facts

The Applicant was convicted by the District Magistrate's Court of Monduli on 6 March 2004 and sentenced to thirty years imprisonment for the rape of a twelve-year-old minor. He was also ordered to pay compensation of one cow valued at TZS 200,000. The Applicant appealed to the High Court of Tanzania at Arusha, which upheld the conviction and sentence on 9 July 2009. He further appealed to the Court of Appeal of Tanzania at Arusha, which also upheld the conviction and sentence on 24 February 2012. The Applicant alleges he lodged a Notice of Motion for Review of the Court of Appeal's judgment on 9 January 2013, which was pending at the time of filing the Application before the African Court. Throughout the domestic proceedings, the Applicant was not provided with legal assistance despite being indigent and facing a serious charge carrying a severe penalty.

Issues

  1. Whether the Respondent State violated the Applicant's right to legal assistance by failing to provide free legal representation during trial and appeals.
  2. Whether the Applicant was deprived of his right to be heard and to defend himself.
  3. Whether the charge sheet was defective under domestic law.
  4. Whether the appellate courts violated the Applicant's right to have his sentence reviewed by basing their decisions on findings of lower courts.
  5. Whether the domestic courts failed to properly assess the evidence in convicting the Applicant.
  6. Whether there was undue delay by the Court of Appeal in determining the Applicant's application for review.

Orders

  • Dismisses the objection to the Court's jurisdiction.
  • Declares that it has jurisdiction.
  • Dismisses the objections to the admissibility of the Application.
  • Declares that the Application is admissible.
  • Holds that the Respondent State has not violated the Applicant's right under Article 7(1)(c) of the Charter to be heard and defend himself.
  • Holds that the Respondent State has not violated the Applicant's right under Article 7(1)(c) of the Charter as regards the charge sheet being defective.
  • Holds that the Respondent State has not violated Article 14(5) of the International Covenant on Civil and Political Rights as regards the Court of Appeal and High Court basing their decisions on the findings of the District Court.
  • Holds that the Respondent State has not violated the Applicant's right under Article 7(1)(d) of the Charter to be tried within a reasonable time as regards the alleged delay by the Court of Appeal to review its decision.
  • Holds that the Respondent State has not violated the Applicant's right to a fair trial as provided under Article 7(1) of the Charter as regards the sufficiency of the evidence.
  • Finds that the Respondent State has violated the Applicant's right to a fair trial provided under Article 7(1)(c) of the Charter, as read together with Article 14(3)(d) of the International Covenant on Civil and Political Rights, by failing to provide him with free legal assistance.
  • Does not grant the Applicant's prayer for material damages for his imprisonment.
  • Grants the Applicant's prayer for reparation for the prejudice suffered and awards him the sum of Tanzanian Shillings Three Hundred Thousand (TZS 300,000).
  • Orders the Respondent State to pay the sum awarded free from tax as fair compensation within six (6) months from the date of notification of this Judgment, failing which it will be required to pay interest on arrears calculated on the basis of the applicable rate of the Central Bank of Tanzania throughout the period of delayed payment until the accrued amount is fully paid.
  • Dismisses the Applicant's prayer for his conviction and sentence to be quashed.
  • Dismisses the Applicant's prayer for the Court to order his release from prison.
  • Orders the Respondent State to submit a report to it within six (6) months of the date of notification of this judgment on measures taken to implement the orders set forth herein and thereafter, every six (6) months until the Court considers that there has been full implementation thereof.
  • Decides that each party shall bear its own costs.

Rules and key headnotes

Fair Trial — Right to Legal Assistance — Indigent Accused — Serious Offences
Where an accused person is indigent, charged with a serious offence carrying a severe penalty, the interest of justice requires that free legal assistance be provided regardless of whether the accused requests such assistance, pursuant to Article 7(1)(c) of the African Charter read together with Article 14(3)(d) of the International Covenant on Civil and Political Rights.
African Court Jurisdiction — Appellate Function — Review of Domestic Proceedings
The African Court on Human and Peoples' Rights is not an appellate court over domestic courts but is empowered to examine the conformity of proceedings of a State's courts with human rights standards set out in instruments ratified by that State.
Admissibility — Exhaustion of Local Remedies — Extraordinary Remedies
Applications for constitutional review and applications for review of Court of Appeal decisions are extraordinary remedies in Tanzania which an applicant is not required to exhaust before filing an application before the African Court on Human and Peoples' Rights.
Admissibility — Reasonable Time — Incarcerated Applicants
The reasonable period within which to seize the African Court depends on the particular circumstances of each case, including whether the applicant is lay, indigent, incarcerated, and had not benefited from free legal assistance.
Assessment of Evidence — Domestic Court Competence — International Court Intervention
The assessment of evidence and determination of credibility of witnesses falls within the competence of domestic courts; the African Court will only intervene where there are irregularities in the domestic courts' determination resulting in a miscarriage of justice.
Reparations — Release from Prison — Exceptional Circumstances
An order for release from prison can only be made in exceptional and compelling circumstances, such as where an applicant's arrest or conviction is based entirely on arbitrary considerations and continued detention would occasion a miscarriage of justice.

Legislation cited (20)

  • African Charter on Human and Peoples' Rights Article 7(1)(c)
  • African Charter on Human and Peoples' Rights Article 7(1)(d)
  • International Covenant on Civil and Political Rights Article 14(3)(d)
  • International Covenant on Civil and Political Rights Article 14(5)
  • Tanzanian Constitution Article 13
  • Tanzanian Constitution Article 107A
  • Criminal Procedure Act (Cap 20 R.E. 2002) s.310
  • Criminal Procedure Act (Cap 20 R.E. 2002) s.132
  • Criminal Procedure Act (Cap 20 R.E. 2002) s.240(3)
  • Evidence Act 1967 (Cap. 6 R.E. 2002) s.110(2)
  • Legal Aid (Criminal Proceedings) Act
  • Basic Rights and Duties Enforcement Act
  • Appellate Jurisdiction Act
  • Court of Appeal Rules Rule 66
  • 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 7
  • 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)
  • African Charter on Human and Peoples' Rights Article 56

Cases cited (44)

  • Ernest Francis Mtingwi v Republic of Malawi
  • Mohamed Abubakari v United Republic of Tanzania (merits) (2016) 1 AfCLR 599
  • Peter Joseph Chacha v United Republic of Tanzania (admissibility) (2014) 1 AfCLR 398
  • Alex Thomas v United Republic of Tanzania (merits) (2015) 1 AfCLR 465
  • Christopher Jonas v United Republic of Tanzania (merits) (2017) 2 AfCLR 101
  • Ingabire Victoire Umuhoza v Rwanda (merits) (2017) 2 AfCLR 165
  • Andrew Ambrose Cheusi v United Republic of Tanzania (Application No. 004/2015)
  • Ingabire Victoire Umuhoza v United Republic of Rwanda (procedure) (2016) 1 AfCLR 562
  • Beneficiaries of late Norbert Zongo and Others v Burkina Faso (preliminary objections) (2013) 1 AfCLR 197
  • SAHRINGON and Others v. Tanzania
  • Article 19 v. Eritrea
  • Kenyan Section of the International Commission of Jurists and Others v. Kenya
  • Tanganyika Law Society and Others v United Republic of Tanzania (merits) (2013) 1 AfCLR 34
  • Wilfred Onyango Nganyi and 9 Others v United Republic of Tanzania (merits) (2016) 1 AfCLR 507
  • Minani Evarist v Tanzania (merits) (2018) 2 AfCLR 402
  • Thobias Mang'ara Mango and Shukurani Masegenya Mango v Tanzania (merits) (2018) 2 AfCLR 314
  • Diocles William v United Republic of Tanzania (merits) (2018) 2 AfCLR 426
  • Majuru v. Zimbabwe (2008)
  • Armand Guehi v United Republic of Tanzania (merits and reparations) (2018) 2 AfCLR 477
  • Werema Wangoko Werema and Another v United Republic of Tanzania (merits) (2018) 2 AfCLR 520
  • Jibu Amir Mussa and Saidi Ally alias Mang'ara v United Republic of Tanzania (Application No. 014/2015)
  • Kennedy Owino Onyachi and Charles John Mwanini Njoka v United Republic of Tanzania (merits) (2017) 2 AfCLR 65
  • Robert John Penessis v United Republic of Tanzania (Application No. 13/2015)
  • Godi Kasenegala v. the Republic - Criminal Appeal No. 10 of 2008
  • Nguza Viking (Babu Seya) and Johnson Nguza (Papi Kocha) v United Republic of Tanzania (merits) (2018) 2 AfCLR 287
  • Anaclet Paulo v United Republic of Tanzania (merits) (2018) 2 AfCLR 446
  • Ingabire Victoire Umuhoza v Rwanda (reparations) (2018) 2 AfCLR 202
  • Beneficiaries of late Norbert Zongo and Others v Burkina Faso (reparations) (2015) 1 AfCLR 258
  • Lohé Issa Konaté v Burkina Faso (reparations) (2016) 1 AfCLR 346
  • Mohamed Abubakari v United Republic of Tanzania (Application No. 007/2013)
  • Alex Thomas v United Republic of Tanzania (Application No. 005/2013)
  • Wilfred Onyango Nganyi and 9 Others v United Republic of Tanzania (Application No. 006/2013)
  • Kennedy Gihana and Others v Republic of Rwanda (Application No. 017/2015)
  • Tanganyika Law Society and Others v United Republic of Tanzania (reparations) (2014) 1 AfCLR 72
  • Ally Rajabu and Others v United Republic of Tanzania (Application No. 007/2015)
  • Lucien Ikili Rashidi v United Republic of Tanzania (Application No. 009/2015)
  • Reverend Christopher R. Mtikila v United Republic of Tanzania (reparations)
  • Case No. ECW/CCAJ/11/07, Saidykhan v. The Gambia
  • Case No. ICC-01-05-01/08, Prosecutor v. Bemba
  • Mgosi Mwita Makungu v United Republic of Tanzania (merits) (2018) 2 RJCA 570
  • Kijiji Isiaga v United Republic of Tanzania (merits) (2018) 2 RJCA 226
  • Del Rio Prada v. Spain, European Court of Human Rights, Judgment of 10/07/2012
  • Assanidze v Georgia (GC) - 71503/01, Judgment of 8/04/2004
  • Loayza-Tamayo v Peru, Inter-American Court of Human Rights, Judgment of 17/09/1987

Full judgment

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Elisamehe v United Republic of Tanzania (Application No. 028-2015) [2020] AfCHPR 63 (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.