Wakilii

Makame and Others v United Republic of Tanzania

African Court on Human and Peoples' Rights · [2021] AfCHPR 35 · 2021 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to the African Court on Human and Peoples' Rights challenging domestic convictions for drug trafficking following dismissal of appeal by Tanzania Court of Appeal
Decision
Application dismissed — Applicants to continue serving their sentences

Observed later treatment

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Holding

The African Court held that it has jurisdiction to examine whether domestic proceedings comply with the African Charter, even though it is not an appellate court. The Court found that Tanzania's judicial system, which provides one level of appeal from High Court convictions to the Court of Appeal, does not violate the right to appeal under Article 7 of the Charter. The right to appeal requires only that trial court findings be reviewable by another court, not multiple levels of appeal. The Court dismissed all allegations of fair trial violations, finding no manifest errors in the Court of Appeal's treatment of evidence and no violation arising from the absence of an interpreter where the applicant was represented by counsel who did not request interpretation services.

Outcome

Application dismissed — Applicants to continue serving their sentences

Facts

On 10 August 2012, the High Court of Tanzania at Tanga convicted the four Applicants of trafficking narcotic drugs under section 16 of the Drugs and Prevention of Illicit Traffic in Drugs Act and sentenced each to twenty-five years imprisonment plus a fine of TZS 1,438,364,400. The Applicants appealed to the Court of Appeal of Tanzania against both conviction and sentence. On 8 September 2015, the Court of Appeal dismissed the appeal in its entirety. The Applicants then filed this application with the African Court on 13 April 2016, alleging violations of their rights to fair trial and equality. At the time of filing, all four Applicants were incarcerated at Maweni Central Prison, Tanga. Three Applicants are Tanzanian nationals; the Fourth Applicant is an Iranian national.

Issues

  1. Whether the African Court has jurisdiction to hear the application given that the Applicants are asking it to sit as an appellate court.
  2. Whether the Applicants exhausted domestic remedies before filing the application.
  3. Whether the application was filed within a reasonable time.
  4. Whether the absence of a higher court above the Court of Appeal in Tanzania violates the Applicants' right to appeal under Article 7 of the African Charter.
  5. Whether the Applicants were subjected to unequal treatment compared to other convicts who have access to two levels of appeal.
  6. Whether the Court of Appeal's alleged errors in recalling evidence violated the Applicants' right to a fair trial.
  7. Whether the acquittal of a co-accused demonstrates that the Applicants' conviction was unsafe.
  8. Whether the failure to provide the Fourth Applicant with an interpreter violated his right to a fair trial.

Orders

  • Dismissed the objection to material jurisdiction.
  • Declared that the Court has jurisdiction.
  • Dismissed the objections to admissibility.
  • Declared that the Application is admissible.
  • Found that the Respondent State has not violated the Applicants' right to equality under Article 3 of the Charter.
  • Found that the Respondent State has not violated the Applicants' right to a fair trial under Article 7 of the Charter.
  • Found that the Respondent State has not violated Article 1 of the Charter.
  • Dismissed the Applicants' prayers for reparations.
  • Found that the request for provisional measures is moot.
  • Ordered each party to bear its own costs.

Rules and key headnotes

Human Rights — Jurisdiction of African Court — Appellate Jurisdiction — Distinction Between Appellate Review and Examination of Compliance with Charter Standards
The African Court on Human and Peoples' Rights is not an appellate body with respect to decisions of national courts, but this does not preclude it from examining relevant proceedings in national courts to determine whether they are in accordance with the standards set out in the Charter or any other human rights instruments ratified by the State concerned.
Human Rights — Admissibility — Exhaustion of Local Remedies — Extraordinary Remedies
An application for review of a Court of Appeal decision, as applied in Tanzania's judicial system, constitutes an extraordinary remedy that applicants are not required to exhaust within the meaning of Article 56(5) of the African Charter before filing an application with the African Court.
Human Rights — Admissibility — Bundle of Rights and Guarantees — Exhaustion of Remedies
Where allegations of fair trial violations occurred during domestic judicial proceedings that led to conviction and sentence, and these allegations form part of the bundle of rights and guarantees related to or forming the basis of appeals, domestic courts have ample opportunity to address the allegations even without the applicants having raised them explicitly, and it would be unreasonable to require applicants to lodge a new application before domestic courts to seek relief for these claims.
Criminal Law & Procedure — Right to Appeal — Number of Appellate Levels — Scope of Right
The right to an appeal or review of a decision of a lower court as provided for under Article 7 of the African Charter and Article 14(5) of the ICCPR entails the provision of another level of judicial structures for recourse beyond the trial court, but does not prescribe the number of levels at which an appeal must be processed. The essence of the right is that findings of a trial court should always be amenable to review by another court.
Constitutional Law — Equality Before the Law — Differential Treatment Based on Original Jurisdiction
Differential treatment of convicts according to the offences for which they were convicted, where jurisdiction for different offences vests either in the High Court only or in subordinate courts only or concurrently in both, does not violate the right to equality under Article 3 of the African Charter, provided there is no demonstration that the law vesting such jurisdiction is faulty or that persons convicted of the same offence are treated differently.
Criminal Law & Procedure — Right to Interpreter — Duty to Request — Representation by Counsel
While an accused person is entitled to an interpreter if he or she cannot understand or speak the language being used in court, where an accused person is represented by counsel it is practically necessary that the need for interpretation be communicated to the court. The absence of an interpreter does not violate the right to a fair trial where the accused was represented by counsel and there is no indication that a request for interpretation services was brought to the court's attention.

Legislation cited (12)

  • African Charter on Human and Peoples' Rights Article 1
  • African Charter on Human and Peoples' Rights Article 3
  • African Charter on Human and Peoples' Rights Article 7
  • 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 Convention on Civil and Political Rights Article 14
  • Universal Declaration of Human Rights Article 10
  • Criminal Procedure Act (Tanzania) s.164
  • Drugs and Prevention of Illicit Traffic in Drugs Act (Tanzania) s.16

Cases cited (18)

  • Ernest Francis Mtingwi v Republic of Malawi (Application No. 003/2012)
  • Alex Thomas v. United Republic of Tanzania
  • Kalebi Elisamehe v United Republic of Tanzania (Application No. 028/2015)
  • Kenedy Ivan v United Republic of Tanzania (Application No. 025/2016)
  • Armand Guehi v United Republic of Tanzania (Application No. 001/2015)
  • Nguza Viking (Babu Seya) and Johnson Nguza (Papi Kocha) v. United Republic of Tanzania (merits) (23 March 2018) 2 AfCLR 287
  • Anudo Ochieng Anudo v United Republic of Tanzania (22 March 2018) (merits) 2 AfCLR 248
  • Andrew Ambrose Cheusi v United Republic of Tanzania (Application No. 004/2015)
  • Ingabire Victoire Umuhoza v United Republic of Rwanda (jurisdiction) (3 June 2016) 1 AfCLR 562
  • African Commission on Human and Peoples' Rights v. Republic of Kenya (merits) (26 May 2017) 2 AfCLR 9
  • Mohamed Abubakari v Tanzania (merits)
  • Christopher Jonas v Tanzania (merits)
  • Jibu Amir alias Mussa and Another v United Republic of Tanzania (Application No. 014/2015)
  • Kennedy Owino Onyachi and Another v. United Republic of Tanzania (merits)
  • Michael Majuru v. Republic of Zimbabwe, ACHPR Communication 308/2005, 2008
  • Norbert Zongo and Others v Burkina Faso (Application No. 013/2011)
  • Christopher Jonas v. United Republic of Tanzania (28 September 2017) 2 AfCLR 101
  • Minani Evarist v. United Republic of Tanzania (merits and reparations) (21 September 2018) 2 AfCLR 402

Full judgment

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Makame and Others v United Republic of Tanzania [2021] AfCHPR 35 (25 June 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.