Wakilii

Kisase v United Republic of Tanzania (Application No. 005-2016)

African Court on Human and Peoples' Rights · [2021] AfCHPR 6 · 2021 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 in domestic criminal proceedings
Decision
Application partly allowed; Applicant awarded TZS 300,000 in moral damages; conviction and sentence upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Court held that it had jurisdiction and the Application was admissible. The Court found 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 him with legal aid during domestic criminal proceedings for armed robbery, given that he was indigent and faced a serious charge carrying a heavy sentence. The Court dismissed claims that Tanzania violated the right to have one's cause heard or the right to equal protection of the law. The Court awarded TZS 300,000 in moral damages but declined to annul the conviction or order the Applicant's release.

Outcome

Application partly allowed; Applicant awarded TZS 300,000 in moral damages; conviction and sentence upheld

Facts

The Applicant, a Tanzanian national, was convicted by the District Court of Geita on 30 June 2008 and sentenced to thirty years imprisonment and twelve strokes of the cane for armed robbery under section 287A of the Tanzanian Penal Code. He appealed to the High Court, which upheld the conviction on 18 March 2011. He then appealed to the Court of Appeal, which dismissed his appeal on 26 July 2013. The Applicant alleges he filed an application for review of the Court of Appeal judgment on 21 March 2014, which remained pending at the time of filing this Application. Throughout the domestic proceedings, the Applicant was not provided with legal representation. He was incarcerated at Butimba Central Prison, Mwanza, at the time of filing the Application before the African Court on 13 January 2016.

Issues

  1. Whether the African Court has jurisdiction to examine the Application despite the Respondent State's withdrawal of its Declaration under Article 34(6) of the Protocol.
  2. Whether the Application is admissible, particularly regarding exhaustion of local remedies and whether it was filed within a reasonable time.
  3. Whether the Court of Appeal of Tanzania violated the Applicant's right to have his cause heard by failing to properly examine all his grounds of appeal.
  4. Whether the Court of Appeal violated the Applicant's right to have his cause heard by failing to schedule his application for review.
  5. Whether the Respondent State violated the Applicant's right to free legal assistance by not providing him with legal representation during domestic criminal proceedings.
  6. Whether the Respondent State violated the Applicant's right to equal protection of the law by allegedly failing to schedule his review application while scheduling others filed later.

Orders

  • Objection to material jurisdiction dismissed.
  • Court has jurisdiction.
  • Objections to admissibility dismissed.
  • Application declared admissible.
  • Respondent State has not violated the Applicant's right to have his cause heard under Article 7(1) of the Charter regarding assessment of evidence.
  • Respondent State has not violated the Applicant's right to equal protection of the law under Article 3(2) of the Charter regarding the alleged failure to examine the application for review.
  • Respondent State has violated the Applicant's right to defence under Article 7(1)(c) of the Charter, read with Article 14(3)(d) of the ICCPR, by failing to provide free legal assistance.
  • Applicant's claim for damages for loss of income, mental shock, stress, physical pain and general damages dismissed.
  • Applicant awarded TZS 300,000 for moral prejudice.
  • Respondent State ordered to pay the sum awarded within six months from notification, failing which interest will accrue at the Central Bank of Tanzania rate.
  • Applicant's prayer for annulment of conviction and sentence and release from prison dismissed.
  • Respondent State ordered to submit implementation report within six months and every six months thereafter until full implementation.
  • Each party to bear its own costs.

Rules and key headnotes

Human Rights — Fair Trial Rights — Right to Free Legal Assistance — Duty of State to Provide Legal Aid
Where an accused person is charged with a serious offence carrying a heavy sentence and is indigent, the State has a duty to provide free legal assistance as of right, regardless of whether the accused requests it.
Human Rights — Admissibility — Exhaustion of Local Remedies — Bundle of Rights Doctrine
An issue not expressly raised in domestic proceedings may still be examined by the African Court if it forms part of a 'bundle of rights and guarantees' that domestic courts ought to have observed, particularly where the issue is inherently connected to matters adjudicated domestically or was deemed known to judicial authorities.
Human Rights — Jurisdiction — Withdrawal of Declaration — Effect on Pending Cases
The withdrawal of a State's Declaration under Article 34(6) of the Protocol has no retroactive effect and does not affect applications filed before the withdrawal takes effect, which occurs twelve months after deposit of the notice of withdrawal.
Human Rights — Jurisdiction — Appellate Jurisdiction — Distinction from Review of Fairness
The African Court does not exercise appellate jurisdiction over domestic courts but retains the power to assess whether domestic proceedings complied with standards set out in international human rights instruments ratified by the State concerned.
Human Rights — Admissibility — Reasonable Time — Assessment Factors
The reasonableness of the time frame for filing an application after exhaustion of local remedies depends on the specific circumstances of the case, including whether the applicant was incarcerated, indigent, self-represented, or had limited awareness of the Court's existence and requirements.
Human Rights — Reparations — Moral Damages — Judicial Discretion
Where a violation of human rights is established, the Court exercises judicial discretion in equity to award moral damages as a lump sum, taking into account the nature and gravity of the violation and the circumstances of the case.
Human Rights — Reparations — Release from Prison — Conditions for Ordering
The African Court will not order the release of a convicted person unless the nature of the violation reveals circumstances signifying that the imprisonment is a miscarriage of justice or an arbitrary decision, or the applicant demonstrates specific and compelling circumstances justifying release.

Legislation cited (14)

  • 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 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)
  • Tanzanian Penal Code s.287A
  • Tanzanian Constitution 1997 Article 1
  • Tanzanian Constitution 1997 Article 107(2)(b)
  • Basic Rights and Duties Enforcement Act
  • Legal Aid (Criminal Proceedings) Act

Cases cited (25)

  • Andrew Ambrose Cheusi v United Republic of Tanzania (Application No. 004/2015)
  • Ernest Francis Mtingwi v Republic of Malawi (Jurisdiction)
  • Kalebi Elisamehe v United Republic of Tanzania (Application No. 028/2015)
  • Armand Guehi v United Republic of Tanzania (Merits and Reparations)
  • Werema Wangoko Werema and Another v United Republic of Tanzania (Merits)
  • Alex Thomas v United Republic of Tanzania (Merits)
  • Ingabire Victoire Umuhoza v United Republic of Rwanda (Jurisdiction)
  • Beneficiaries of late Norbert Zongo and Others v Burkina Faso (Preliminary Objections)
  • African Commission on Human and Peoples' Rights v Republic of Kenya (Merits)
  • Kennedy Owino Onyachi and Charles John Mwanini Njoka v United Republic of Tanzania (Merits)
  • Nguza Viking and Johnson Nguza v United Republic of Tanzania (Merits)
  • Thobias Mang'ara Mango and Shukurani Masegenya Mango v United Republic of Tanzania (Merits)
  • Mohamed Abubakari v United Republic of Tanzania (Merits)
  • Christopher Jonas v. Tanzania (merits)
  • Amiri Ramadhani v United Republic of Tanzania (Merits)
  • Kijiji Isiaga v Tanzania (Merits)
  • 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)
  • Norbert Zongo and Others v Burkina Faso (Reparations)
  • Lohé Issa Konaté v Burkina Faso (Reparations)
  • Reverend Christopher R. Mtikila v United Republic of Tanzania (Reparations)
  • Christopher Jonas v United Republic of Tanzania (Application No. 025/2016)
  • Kenedy Ivan v United Republic of Tanzania (Merits and Reparations)
  • Diocles William v United Republic of Tanzania (Merits and Reparations)
  • Sadick Marwa Kisase v The Republic (Criminal Appeal No. 83 of 2012)

Full judgment

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

Kisase v United Republic of Tanzania (Application No. 005-2016) [2021] AfCHPR 6 (2 December 2021)
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.