Wakilii

Onyachi and Another v United Republic of Tanzania (Application No. 003-2015)

African Court on Human and Peoples' Rights · [2017] AfCHPR 120 · 2017 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 proceedings in Tanzania
Decision
Application partly allowed; violations of Articles 1, 6, and 7(1) and 7(1)(c) of the African Charter established; respondent ordered to take remedial measures including possible release of applicants; reparations and costs reserved for separate determination

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Holding

The African Court on Human and Peoples' Rights held that Tanzania violated the applicants' rights to a fair trial under Article 7(1) and 7(1)(c) of the African Charter by conducting a flawed identification parade after media publication of their images, failing to provide free legal aid at the Court of Appeal, and delaying delivery of the judgment for two years. The Court also found a violation of Article 6 through arbitrary re-arrest after acquittal. The Court dismissed claims regarding extradition, incommunicado detention, and equality before the law. The Court ordered Tanzania to take measures to remedy the violations and reserved ruling on other forms of reparation.

Outcome

Application partly allowed; violations of Articles 1, 6, and 7(1) and 7(1)(c) of the African Charter established; respondent ordered to take remedial measures including possible release of applicants; reparations and costs reserved for separate determination

Facts

The applicants, Kenyan nationals, were arrested in Kenya in November 2002 on suspicion of armed robbery in Tanzania. They were extradited to Tanzania in March 2003 before they could appeal the extradition order. Upon arrival at the Namanga border, their images were broadcast on television and published in newspapers. Three days later, an identification parade was conducted. They were charged with armed robbery and conspiracy. The trial magistrate acquitted them in March 2005, but they were immediately re-arrested and charged with new offences based on the same facts. The High Court overturned the acquittal in December 2005, convicting them and sentencing them to 30 years' imprisonment. The Court of Appeal dismissed their appeal in December 2009, but they received copies of the judgment only in November 2011, almost two years later. The second applicant's application for extension of time to seek review was dismissed in June 2014. Throughout the Court of Appeal proceedings, the applicants had no legal representation.

Issues

  1. Whether the Court has material and personal jurisdiction to hear the application.
  2. Whether the application is admissible, particularly regarding exhaustion of local remedies and filing within a reasonable time.
  3. Whether the identification parade conducted after the applicants' images were published in media violated their right to a fair trial under Article 7(1) of the Charter.
  4. Whether the rejection of the applicants' alibi defense violated their right to defense under Article 7(1)(c) of the Charter.
  5. Whether the failure to provide free legal aid at the Court of Appeal violated Article 7(1)(c) of the Charter.
  6. Whether the delay in delivering copies of the Court of Appeal judgment violated the applicants' right to be heard under Article 7(1) of the Charter.
  7. Whether the re-arrest of the applicants after acquittal constituted arbitrary detention in violation of Article 6 of the Charter.
  8. Whether the applicants were detained incommunicado in violation of Article 5 of the Charter.
  9. Whether the respondent violated Article 3 of the Charter regarding equality before the law.
  10. Whether the respondent violated Article 1 of the Charter by failing to give effect to the rights enshrined therein.

Orders

  • Dismisses the Respondent's preliminary objection on the lack of personal and material jurisdiction of the Court.
  • Declares that the Court has jurisdiction.
  • Dismisses the Respondent's preliminary objections on the admissibility of the Application for non-exhaustion of local remedies and for not having been filed within a reasonable period of time after exhaustion of local remedies.
  • Declares the Application admissible.
  • Declares that the Respondent has not violated Articles 3, 5, 7(1)(a), 7(1)(b) and 7(2) of the Charter.
  • Finds that the Respondent violated Articles 1, 6 and 7(1), and 7(1)(c) of the Charter.
  • Orders the Respondent State to take all necessary measures that would help erase the consequences of the violations established, restore the pre-existing situation and re-establish the rights of the Applicants. Such measures could include the release of the Applicants. The Respondent should inform the Court within six (6) months, from the date of this judgment of the measures taken.
  • Grants, in accordance with Rule 63 of the Rules of Court, the Applicants to file submissions on the request for reparations within thirty (30) days hereof, and the Respondent to reply thereto within thirty (30) days of the receipt of the Applicant's submissions.
  • Reserves its ruling on the prayers for other forms of reparation and on costs.

Rules and key headnotes

Fair Trial — Identification Parade — Media Publicity Before Parade
An identification parade conducted after the suspects' images have been disseminated through television and newspapers violates the right to a fair trial where the domestic courts fail to verify whether witnesses saw the suspects in media before the parade, and where the conviction depends solely on testimony from that flawed identification parade.
Defense of Alibi — Burden on Prosecution
Where an accused establishes an alibi defense, it must be thoroughly examined and possibly set aside prior to a guilty verdict. Rejection of an alibi based solely on uncorroborated assumptions and testimony from a flawed identification parade violates the right to defense under Article 7(1)(c) of the African Charter.
Right to Legal Aid — Appellate Proceedings
Free legal aid is a right implicit in the right to defense under Article 7(1)(c) of the African Charter. Where an accused is indigent, faces serious charges with severe potential sentences, and the case involves complex legal and factual questions, the State must provide free legal representation in appellate proceedings as well as at trial.
Right to Be Heard — Timely Delivery of Judgments
The right to have one's cause heard under Article 7(1) of the African Charter includes the right to receive copies of judgments in a timely manner. An unjustified delay of two years in delivering copies of an appellate judgment violates this right, particularly where the delay prevents the applicant from pursuing available remedies such as review within statutory time limits.
Right to Liberty — Arbitrary Arrest After Acquittal
The re-arrest of an individual and filing of new charges based on the same facts after a court has acquitted them, without justification, constitutes arbitrary detention in violation of Article 6 of the African Charter. Once an accused is acquitted, the right to liberty and the standard of reasonableness require immediate release.
Jurisdiction — Personal Jurisdiction Over Non-Party States
The African Court on Human and Peoples' Rights lacks personal jurisdiction to entertain allegations against a State that has not made the declaration under Article 34(6) of the Protocol accepting the Court's competence to receive cases from individuals and NGOs, even where that State's conduct is relevant to the factual narrative of the case.
Admissibility — Exhaustion of Local Remedies
Where allegations of human rights violations occurred during domestic judicial proceedings and formed part of the bundle of rights related to or forming the basis of appeals, domestic authorities have ample opportunity to address such allegations even if not explicitly raised. It is unreasonable to require applicants to lodge new applications before domestic courts to seek redress for such claims after exhausting appeals.

Legislation cited (15)

  • 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 5
  • African Charter on Human and Peoples' Rights Article 6
  • African Charter on Human and Peoples' Rights Article 7
  • 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 34(6)
  • Penal Code of Tanzania s.265
  • Penal Code of Tanzania s.285
  • Penal Code of Tanzania s.286
  • Penal Code of Tanzania s.287
  • Penal Code of Tanzania s.384
  • Minimum Sentences Act of Tanzania 1972 s.5(b)
  • Basic Rights and Duties Enforcement Act of Tanzania Chapter 3

Cases cited (15)

  • Peter Joseph Chacha v The United Republic of Tanzania (Application No. 003/2014)
  • Mohamed Abubakari v The United Republic of Tanzania (Application No. 007/2013)
  • Zongo and Others v Burkina Faso (Preliminary Objections)
  • Alex Thomas v The United Republic of Tanzania (Application No. 005/2013)
  • Tanganyika Law Society and Others v The United Republic of Tanzania (Application Nos. 009 & 011/2011)
  • Republic v Mwango Manaa (1936) 3 EACA 29
  • Mukong v Cameroon (Communication No. 458/1991)
  • Hugo van Alphen v The Netherlands (Communication No. 305/1988)
  • A v Australia (Communication No. 560/1993)
  • Essono Mika Miha v Equatorial Guinea (Communication No. 414/1990)
  • Abdel Hadi, Ali Radi & Others v Republic of Sudan (Communication No. 368/09)
  • Monim Elgak, Osman Hummeida and Amir Suliman v Sudan (Communication No. 379/09)
  • Velásquez-Rodríguez v Honduras
  • Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo)
  • Granger v United Kingdom (Application No. 11932/86)

Full judgment

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Onyachi and Another v United Republic of Tanzania (Application No. 003-2015) [2017] AfCHPR 120 (28 September 2017)
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.