Mlama and Others v United Republic of Tanzania
African Court on Human and Peoples' Rights
· [2020] AfCHPR 26
· 2020
Application Dismissed
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AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.
Holding
The African Court on Human and Peoples' Rights held that Tanzania did not violate the applicants' rights under the African Charter. The Court found that the conviction for sexual exploitation of a child was based on an existing offence properly interpreted by Tanzanian courts, that the trial was conducted by an impartial tribunal, that the denial of bail was justified to protect the victim, and that the applicants failed to substantiate their claim that the Penal Code provisions promote sexism. The application was dismissed in its entirety.
Outcome
Application dismissed in its entirety; applicants to continue serving their lawful sentences
Facts
The three applicants were convicted by a Tanzanian Resident Magistrate's Court in 2009 for sexual exploitation of a child under section 138B(1) of the Penal Code, having allegedly forced a thirteen-year-old girl to engage in sexual intercourse with a dog. Each was sentenced to twenty years' imprisonment. On appeal, the High Court quashed one count but confirmed the conviction on the second count. The Court of Appeal dismissed their appeal in 2013 and ordered compensation to the victim. The applicants then filed an application to the African Court on Human and Peoples' Rights alleging violations of their rights under the African Charter.
Issues
- Whether the Applicants' conviction was based on partial evaluation of evidence in violation of the right to an impartial tribunal.
- Whether the Applicants were convicted for an act that did not constitute an offence at the time it was committed.
- Whether the denial of bail pending trial violated the Applicants' right to liberty.
- Whether section 138B(1)(e) of the Penal Code and the section on offences against morality promotes sexism in violation of the rights to non-discrimination and equality before the law.
Orders
- Objection to jurisdiction dismissed.
- Court declared it has jurisdiction.
- Objections on admissibility dismissed.
- Application declared admissible.
- Respondent State has not violated Article 7(1)(d) of the Charter regarding partial evaluation of evidence.
- Respondent State has not violated Article 7(2) of the Charter regarding conviction on the basis of a non-existent law.
- Respondent State has not violated Article 6 of the Charter regarding denial of bail pending trial.
- Respondent State has not violated Articles 2 and 3 of the Charter regarding sexism in Penal Code provisions.
- Applicants' prayer for reparations dismissed.
- Each party to bear its own costs.
Rules and key headnotes
Human Rights — Jurisdiction of African Court — Material Jurisdiction — Court Not an Appellate Body
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.
Human Rights — Admissibility — Exhaustion of Local Remedies — Extraordinary Remedies
An applicant is only required to exhaust ordinary judicial remedies before seizing the African Court. A constitutional petition in the Tanzanian judicial system is an extraordinary remedy that an applicant is not required to exhaust prior to seizing the Court.
Human Rights — Admissibility — Reasonable Time — Assessment of Circumstances
The reasonableness of the timeframe for seizing the African Court depends on the specific circumstances of the case and should be determined on a case-by-case basis. Circumstances such as imprisonment, lack of legal assistance, indigence, illiteracy, lack of awareness of the Court's existence, and intimidation may justify a longer period before filing an application.
Criminal Law & Procedure — Fair Trial — Impartial Tribunal — Presumption of Impartiality
The presumption of impartiality of a judge carries considerable weight. To rebut this presumption, an applicant must demonstrate how the conduct of the judge displayed bias which led to their conviction. General allegations of bias without specific evidence are insufficient to establish a violation of the right to an impartial tribunal.
Criminal Law & Procedure — Principle of Legality — Judicial Interpretation — Foreseeability
The principle of legality under Article 7(2) of the African Charter proscribes retroactive application of criminal law and extension of the scope of existing offences. However, judicial interpretation of ambiguous points of law to adapt it to the circumstances of a case is permissible, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen.
Criminal Law & Procedure — Bail — Denial of Bail — Protection of Witnesses
Restriction of liberty through denial of bail is justified where it aims to preserve public security, protect the rights of others, and avoid possible repetition of the offence. Denial of bail to protect a minor victim from possible attacks by accused persons is a justifiable limitation of the right to liberty, provided it is prescribed by law and is necessary and proportionate.
Human Rights — Non-Discrimination and Equality — Burden of Proof — Substantiation Required
To establish a violation of the rights to non-discrimination and equality before the law under Articles 2 and 3 of the African Charter, an applicant must explain the circumstances of differential treatment and provide evidence to substantiate the allegation. General allegations without explanation or evidence are insufficient.
Legislation cited (14)
- African Charter on Human and Peoples' Rights Article 2
- African Charter on Human and Peoples' Rights Article 3
- African Charter on Human and Peoples' Rights Article 6
- 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)
- Penal Code of Tanzania s.138B(1)
- Constitution of Tanzania Article 13
- Basic Rights and Duties Enforcement Act s.4
- Basic Rights and Duties Enforcement Act s.9(1)
- Criminal Procedure Act of Tanzania s.148(4)
Cases cited (22)
- Ernest Francis Mtingwi v Republic of Malawi (Application No. 003/2012)
- Alex Thomas v. United Republic of Tanzania
- Andrew Ambrose Cheusi v United Republic of Tanzania (Application No. 004/2015)
- Armand Guehi v United Republic of Tanzania (Application No. 001/2015)
- Nguza Viking and Johnson Nguza v United Republic of Tanzania (Application No. 006/2015)
- Ingabire Victoire Umuhoza v Republic of Rwanda (Application No. 003/2014)
- Beneficiaries of late Norbert Zongo and Others v Burkina Faso (Application No. 013/2011)
- Southern African Human Rights NGO Network and others v. Tanzania, Communication No. 333/2006
- African Commission on Human and Peoples' Rights v Republic of Kenya (Application No. 006/2012)
- Wilfred Onyango Nganyi and others v Tanzania (Application No. 006/2013)
- Mohamed Abubakari v. Tanzania (merits)
- Christopher Jonas v. Tanzania (merits)
- Michael Majuru v. Zimbabwe (2008) AHRLR 144 (ACHPR 2008)
- Ramadhani v Tanzania (Application No. 007/2015)
- Association Pour le Progrès et la Défense des Droit des Femme Maliennes and the Institute for Human Rights and Development in Africa v Republic of Mali (Application No. 046/2016)
- Werro Wangoko v United Republic of Tanzania (Application No. 005/2015)
- Alfred Agbesi Woyome v Republic of Ghana (Application No. 001/2017)
- Peter Joseph Chacha v United Republic of Tanzania (Application No. 003/2012)
- Findlay v UK (1997) 24 EHRR 221
- Coëme and others v. Belgium, Appl. nos 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, Judgment of 22 June 2000
- Streletz, Kessler and Krenz v. Germany, Appl. nos 34044/96, 35532/97 and 44801/98, Judgment of 22 March 2001
- Anaclet Paulo v Tanzania (Application No. 003/2016)
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.
Mlama and Others v United Republic of Tanzania [2020] AfCHPR 26 (25 September 2020)
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