Wakilii

Evarist v United Republic of Tanzania (Application No. 027-2015)

African Court on Human and Peoples' Rights · [2018] AfCHPR 75 · 2018 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 conviction and appeals in Tanzania
Decision
Application partly allowed. Violation of right to legal aid established. Compensation awarded. Conviction and sentence remain in place.

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 defence under Article 7(1)(c) of the African Charter by failing to provide free legal assistance to an indigent accused person charged with rape and facing a severe sentence of 30 years' imprisonment. The Court found that free legal aid is intrinsic to the right to a fair trial and is automatically required when the interests of justice demand it, regardless of whether the accused requested it. The Court dismissed claims that the Court of Appeal failed to properly examine grounds of appeal and that the applicant's right to equal protection was violated.

Outcome

Application partly allowed. Violation of right to legal aid established. Compensation awarded. Conviction and sentence remain in place.

Facts

The applicant, a Tanzanian national, was convicted of rape of a 15-year-old girl by the District Court of Ngara on 30 March 2006 and sentenced to 30 years' imprisonment. He appealed to the High Court at Bukoba, which upheld the conviction and sentence on 29 March 2007. He further appealed to the Court of Appeal at Mwanza, which again upheld the conviction on 16 February 2012. The applicant filed an application for review before the Court of Appeal on 19 August 2014, which remained pending at the time of filing this application. Throughout the trial and appeals, the applicant was not provided with legal representation. He filed this application before the African Court on 10 October 2015, alleging violations of his rights under the African Charter.

Issues

  1. Whether the African Court has jurisdiction to hear the application and whether the application is admissible.
  2. Whether the applicant exhausted local remedies before filing the application.
  3. Whether the application was filed within a reasonable time after exhaustion of local remedies.
  4. Whether the Court of Appeal of Tanzania violated the applicant's right to have his cause heard by failing to examine all his grounds of appeal.
  5. Whether the respondent state violated the applicant's right to legal aid by failing to provide free legal assistance during his trial.
  6. Whether the respondent state violated the applicant's right to equal protection of the law by failing to schedule his application for review while scheduling later applications.

Orders

  • Objection to jurisdiction dismissed.
  • Court has jurisdiction.
  • Objection to admissibility dismissed.
  • Application declared admissible.
  • Alleged violation of right to be heard under Article 7(1) not established.
  • Alleged violation of right to equal protection under Article 3(2) not established.
  • Respondent State violated applicant's right to defence under Article 7(1)(c) for failure to provide free legal assistance.
  • Prayer to annul conviction and sentence and order release dismissed.
  • Applicant awarded Three Hundred Thousand Tanzania Shillings (TZS 300,000) as fair compensation.
  • Respondent State ordered to pay compensation and report to Court within six months.
  • Respondent State ordered to pay costs (by majority of 6 to 4).

Rules and key headnotes

Fair Trial — Right to Legal Aid — Automatic Entitlement in Serious Criminal Cases
Free legal aid is a right intrinsic to the right to a fair trial, particularly the right to defence guaranteed in Article 7(1)(c) of the African Charter. An individual charged with a serious criminal offence carrying a severe penalty is automatically entitled to free legal aid whenever the interests of justice so require, even if the individual has not requested it, provided the accused is indigent.
Fair Trial — Right to Legal Aid — State Responsibility
The fact that an accused person did not request legal aid does not exonerate the State from its responsibility to provide free legal aid where the conditions for compulsory grant are fulfilled, namely: the accused is indigent, the offence is serious, and the penalty is severe.
Exhaustion of Local Remedies — Constitutional Petition as Extraordinary Remedy
A constitutional petition in the Tanzanian judicial system is an extraordinary remedy that an applicant is not required to exhaust prior to seizing the African Court on Human and Peoples' Rights.
Admissibility — Reasonable Time for Filing Application
The reasonableness of the timeline for filing an application before the African Court depends on the circumstances of each case and must be assessed on a case-by-case basis. A period of three years, seven months and twenty-four days between exhaustion of local remedies and filing may be reasonable where the applicant is a lay, indigent, incarcerated person without counsel who attempted to use extraordinary measures such as an application for review.
Jurisdiction — African Court Not an Appellate Court
The African Court on Human and Peoples' Rights is not an appeal court with respect to decisions rendered by national courts. However, this does not preclude it from examining whether procedures before national courts are in accordance with international standards set out in the Charter or other applicable human rights instruments to which the respondent State is a party.
Remedies — Release from Prison
An order for an applicant's release from prison can be made by the African Court only under very specific and compelling circumstances, such as where the applicant's arrest or conviction is based entirely on arbitrary considerations and continued imprisonment would occasion a miscarriage of justice. A violation of the right to legal aid that did not affect the outcome of the trial does not constitute such circumstances.

Legislation cited (19)

  • African Charter on Human and Peoples' Rights Article 3(2)
  • African Charter on Human and Peoples' Rights Article 7(1)
  • 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 27(1)
  • 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(1)
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 5(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 34(6)
  • Tanzanian Penal Code s.130(1)
  • Tanzanian Penal Code s.130(2)(e)
  • Tanzanian Penal Code s.131(1)
  • Tanzanian Constitution Article 1
  • Tanzanian Constitution Article 30(3)
  • Tanzanian Constitution Article 107A(2)(b)
  • Tanzanian Criminal Procedure Act s.310
  • Legal Aid Act (Criminal Proceedings) s.3
  • Basic Rights and Duties Enforcement Act

Cases cited (11)

  • Ernest Francis Mtingwi v Republic of Malawi (Application No. 001/2013)
  • Alex Thomas v United Republic of Tanzania (Application No. 005/2013)
  • Mohamed Abubakari v United Republic of Tanzania (Application No. 007/2013)
  • Communication No. 333/20 - SAHRINGON and Others v. Tanzania
  • Communication No. 275/03, Article 19 v. Eritrea
  • Beneficiaries of Late Norbert Zongo and Others v Burkina Faso (Application No. 013/2011)
  • Communication No. 308/05, Michael Majuru v. Zimbabwe
  • Christopher Jonas v United Republic of Tanzania (Application No. 011/2015)
  • Nguza Viking (Babu Seya) and Johnson Nguza (Papi Kocha) v Tanzania (Application No. 006/2015)
  • Kijiji Isiaga v United Republic of Tanzania (Application No. 032/2015)
  • Reverend Christopher R. Mtikila v United Republic of Tanzania (Application No. 011/2011)

Full judgment

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

Evarist v United Republic of Tanzania (Application No. 027-2015) [2018] AfCHPR 75 (21 September 2018)
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.