Wakilii

Elisamehe v United Republic of Tanzania

African Court on Human and Peoples' Rights · [2020] AfCHPR 38 · 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 in Tanzania
Decision
Application partly allowed; violation of right to legal assistance found; modest moral damages awarded; conviction and sentence upheld

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 Tanzania violated the applicant's right to a fair trial by failing to provide free legal assistance during criminal proceedings for rape, where the offence was serious, the penalty severe, and the applicant indigent. The Court found no other violations of fair trial rights and awarded modest moral damages but declined to quash the conviction or order release.

Outcome

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

Facts

The Applicant, a Tanzanian national, was convicted by the District Magistrate's Court of Monduli on 6 March 2004 and sentenced to 30 years imprisonment for rape of a 12-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 at Arusha (Criminal Appeal No. 03/2006) and subsequently to the Court of Appeal at Arusha (Criminal Appeal No. 315/2009). Both appellate courts upheld the conviction and sentence on 9 July 2009 and 24 February 2012 respectively. On 9 January 2013, the Applicant allegedly lodged a Notice of Motion for Review of the Court of Appeal's judgment, which remained pending at the time of filing this Application. The Applicant was not provided with legal assistance throughout the trial and appeals despite being indigent and facing a serious charge carrying a severe penalty.

Issues

  1. Whether the Applicant was denied the right to legal assistance during trial and appeals in violation of Article 7(1)(c) of the African Charter.
  2. Whether the Applicant was denied the right to be heard and defend himself in violation of Article 7(1)(c) of the African Charter.
  3. Whether the charge sheet was defective under Section 132 of the Criminal Procedure Act.
  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 violation of Article 7(1) of the African Charter.
  6. Whether there was undue delay by the Court of Appeal in determining the Applicant's review application in violation of Article 7(1)(d) of the African Charter.

Orders

  • Objection to jurisdiction dismissed.
  • Court has jurisdiction.
  • Objections to admissibility dismissed.
  • Application is admissible.
  • Respondent State has not violated Article 7(1)(c) of the Charter regarding right to be heard and defend himself.
  • Respondent State has not violated Article 7(1)(c) of the Charter regarding defective charge sheet.
  • Respondent State has not violated Article 14(5) of ICCPR regarding appellate courts basing decisions on lower court findings.
  • Respondent State has not violated Article 7(1)(d) of the Charter regarding delay in review application.
  • Respondent State has not violated Article 7(1) of the Charter regarding sufficiency of evidence.
  • Respondent State has violated Article 7(1)(c) of the Charter read with Article 14(3)(d) of ICCPR by failing to provide free legal assistance.
  • Applicant's prayer for material damages dismissed.
  • Respondent State ordered to pay Applicant TZS 300,000 as fair compensation for moral prejudice.
  • Payment to be made free from tax within six months, failing which interest at Central Bank of Tanzania rate applies.
  • Applicant's prayer for conviction and sentence to be quashed dismissed.
  • Applicant's prayer for release from prison dismissed.
  • Respondent State to submit implementation report within six months and every six months thereafter.
  • Each party to bear its own costs.

Rules and key headnotes

Fair Trial — Right to Legal Assistance — Serious Offences
Where an accused person is charged with a serious offence carrying a severe penalty and is indigent, the interest of justice requires that free legal assistance be provided regardless of whether the accused requests such assistance.
Fair Trial — Right to Legal Assistance — Scope of Article 7(1)(c) African Charter
Article 7(1)(c) of the African Charter on Human and Peoples' Rights, as read together with Article 14(3)(d) of the International Covenant on Civil and Political Rights, establishes the right to free legal assistance where a person cannot afford to pay for legal representation and where the interest of justice so requires, including where the applicant is indigent, the offence is serious, and the penalty provided by law is severe.
African Court Jurisdiction — Not an Appellate Court
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 bringing a matter to the African Court on Human and Peoples' Rights.
Admissibility — Reasonable Time — Factors for Assessment
The reasonable period within which to seize the African Court depends on the particular circumstances of each case and must be determined on a case-by-case basis, taking into account factors including whether the applicant is lay, indigent, incarcerated, and whether they benefited from free legal assistance.
Assessment of Evidence — Intervention by International Court
The African Court will intervene regarding the assessment of evidence by domestic courts only if such domestic assessment resulted in a miscarriage of justice, as the assessment of evidentiary details falls within the competence of domestic courts.
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, or where the violation found necessarily vitiated the conviction and sentencing.

Legislation cited (19)

  • 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) Section 310
  • Criminal Procedure Act (Cap 20 R.E. 2002) Section 132
  • Criminal Procedure Act (Cap 20 R.E. 2002) Section 240(3)
  • Evidence Act 1967 (Cap. 6 R.E. 2002) Section 110(2)
  • Legal Aid (Criminal Proceedings) Act
  • Basic Rights and Duties Enforcement Act
  • Appellate Jurisdiction Act
  • 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
  • Diodes 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
  • Lohe Issa Konate 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 [2020] AfCHPR 38 (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.