Wakilii

Makene v United Republic of Tanzania (Application No. 028-2017)

African Court on Human and Peoples' Rights · [2021] AfCHPR 4 · 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 alleging violations of the African Charter arising from criminal conviction and sentence in Tanzania
Decision
Application declared inadmissible for failure to file within a reasonable time

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 it has jurisdiction to examine applications alleging violations of the African Charter, but is not an appellate court with respect to national court decisions. The Court found that the application was not filed within a reasonable time, as six years, two months and sixteen days elapsed between the dismissal of the applicant's appeal and the filing of the application, and the applicant failed to demonstrate how his personal circumstances prevented timely filing. The application was declared inadmissible.

Outcome

Application declared inadmissible for failure to file within a reasonable time

Facts

The applicant, a Tanzanian national, was convicted of rape by the District Court of Kahama in 2006 and sentenced to thirty years imprisonment and twenty-four strokes of the cane. He appealed to the High Court sitting at Tabora, which dismissed his appeal on 4 November 2008. He then appealed to the Court of Appeal sitting at Tabora, which dismissed his appeal on 29 June 2011. The applicant filed an application with the African Court on Human and Peoples' Rights on 14 September 2017, alleging violations of his rights to non-discrimination and fair trial under the African Charter. Tanzania had deposited its declaration accepting the Court's jurisdiction in 2010 and withdrew it in November 2019, with effect from November 2020.

Issues

  1. Whether the African Court has material jurisdiction to examine the application and quash the conviction and sentence of the Applicant.
  2. Whether the African Court has temporal jurisdiction given that the alleged violations occurred between 2006 and 2011.
  3. Whether the Applicant exhausted local remedies before filing the application.
  4. Whether the application was filed within a reasonable time as required by Article 56(6) of the African Charter.

Orders

  • Objections based on jurisdiction dismissed.
  • Court declared that it has jurisdiction.
  • Objection based on non-exhaustion of local remedies dismissed.
  • Objection that the application was not filed within a reasonable time upheld.
  • Application declared inadmissible.
  • Each party to bear its own costs.

Rules and key headnotes

African Court Jurisdiction — Material Jurisdiction — Not an Appellate Court
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 African Charter or any other human rights instruments ratified by the State concerned.
African Court Jurisdiction — Temporal Jurisdiction — Continuing Violations
The African Court has temporal jurisdiction over alleged violations that occurred after the respondent State became a party to the African Charter and the Protocol, and continuing violations automatically renew themselves for as long as the respondent State does not take steps to remedy them.
Admissibility — Exhaustion of Local Remedies — Criminal Appeals
Once criminal proceedings against an applicant have been determined by the highest appellate court, the respondent State will be deemed to have had the opportunity to cure the violations which resulted from the proceedings, and an application for review of the Court of Appeal's judgment is an extraordinary remedy which applicants are not required to exhaust.
Admissibility — Reasonable Time — Burden of Proof
The reasonableness of the time limit for filing an application depends on the particular circumstances of each case and must be determined on a case-by-case basis, and it is not enough for an applicant to simply plead that he or she was incarcerated, is lay or indigent, but must demonstrate how their personal situation prevented them from filing their application timeously.
Admissibility — Reasonable Time — Six Years Delay
A period of six years, two months and sixteen days between the dismissal of an appeal by the highest court and the filing of an application with the African Court is not a reasonable period of time within the meaning of Article 56(6) of the African Charter, particularly where the applicant provides no cogent explanation for the delay.

Legislation cited (14)

  • 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 22
  • 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 2
  • African Charter on Human and Peoples' Rights Article 7(1)(c)
  • African Charter on Human and Peoples' Rights Article 56
  • African Charter on Human and Peoples' Rights Article 56(5)
  • African Charter on Human and Peoples' Rights Article 56(6)
  • Rules of Court Rule 9(2)
  • Rules of Court Rule 32(2)
  • Rules of Court Rule 49(1)
  • Rules of Court Rule 50(1)
  • Rules of Court Rule 50(2)

Cases cited (16)

  • Andrew Ambrose Cheusi v United Republic of Tanzania (Application No. 004/2015)
  • Kalebi Elisamehe v United Republic of Tanzania (Application No. 028/2015)
  • Kenedy Ivan v United Republic of Tanzania (Application No. 25/2016)
  • Armand Guehi v. United Republic of Tanzania (merits and reparations) (7 December 2018) 2 AfCLR 247 § 33
  • TLS and others v Tanzania (merits) (14 June 2013) 1 AfCLR 34 § 84
  • Jebra Kambole v Tanzania (Application No. 018/2018)
  • Ingabire Victoire Umuhoza v United Republic of Rwanda (jurisdiction) (3 June 2016) 1 AfCLR 562 § 67
  • African Commission on Human and Peoples' Rights v. Republic of Kenya (merits) (26 May 2017) 2 AfCLR 9 §§ 93-94
  • Mohamed Abubakari v. United Republic of Tanzania (merits) (3 June 2016) 1 AfCLR 599 § 76
  • Norbert Zongo and others v. Burkina Faso (preliminary objections) (25 June 2013) 197 § 121
  • Christopher Jonas v. United Republic of Tanzania (merits) (28 September 2017) 2 AfCLR 101 § 44
  • Hamad Mohamed Lyambaka v United Republic of Tanzania (Application No. 010/2016)
  • Godfred Anthony and another v United Republic of Tanzania (Application No. 015/2015)
  • Livinus Daudi Manyuka v United Republic of Tanzania (Application No. 020/2015)
  • Yusuph Hassani v United Republic of Tanzania (Application No. 029/2015)
  • Ghaby Kodeih v Republic of Benin (Application No. 006/2020)

Full judgment

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

Makene v United Republic of Tanzania (Application No. 028-2017) [2021] AfCHPR 4 (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.