Wakilii

Rashidi v United Republic of Tanzania (Application No. 009-2015)

African Court on Human and Peoples' Rights · [2019] AfCHPR 10 · 2019 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application before the African Court on Human and Peoples' Rights alleging violations of rights to residence, freedom of movement, dignity, and trial within a reasonable time following arrest, detention, and deportation from Tanzania
Decision
Application granted with findings of multiple human rights violations; monetary compensation awarded to Applicant and family members; non-pecuniary measures ordered including publication of judgment and compliance with international standards for body searches

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 Tanzania violated the Applicant's rights to residence and freedom of movement by arresting him while he held a valid police certificate of loss of passport, violated his right to dignity and physical integrity by subjecting him to anal search in the presence of his children, and violated his right to trial within a reasonable time by taking six years and four months to complete his case. The Court awarded TZS 10,000,000 to the Applicant and TZS 1,000,000 to each identified family member for moral damages.

Outcome

Application granted with findings of multiple human rights violations; monetary compensation awarded to Applicant and family members; non-pecuniary measures ordered including publication of judgment and compliance with international standards for body searches

Facts

The Applicant, a DRC national, entered Tanzania in 1993 on a temporary visa. In 2005, he filed a civil case against a debtor. On 5 June 2006, Tanzanian police issued him a certificate of loss of passport, which was still valid with a visa until September 2006. On 9 June 2006, immigration authorities arrested him for illegal residence while he attended court proceedings. He and his family were detained for five days and charged with illegal stay. Following DRC Embassy intervention, the criminal case was withdrawn, his family left Tanzania, and he was allowed to remain to pursue his civil case with visa extensions until March 2007. In September 2007, he filed a civil case against immigration officers for illegal arrest and degrading treatment. During detention, he was subjected to anal search in the presence of his two sons. The High Court delivered judgment on 2 January 2014, finding his arrest lawful and declaring him a prohibited immigrant. He was ordered to leave within seven days and complied. The High Court took six years and four months to complete the case.

Issues

  1. Whether the Applicant's arrest and detention in 2006 while he held a certificate of loss of passport issued by Tanzanian police violated his rights to residence and freedom of movement under Article 12(1) of the African Charter.
  2. Whether the anal search performed on the Applicant in the presence of his children violated his right to dignity under Article 5 of the African Charter.
  3. Whether the seven-year delay before the High Court delivered judgment in Civil Case No. 118 of 2007 violated the Applicant's right to be tried within a reasonable time under Article 7(1)(d) of the African Charter.

Orders

  • Application declared admissible.
  • Respondent State found in violation of Article 4 of the Charter (right to integrity of person).
  • Respondent State found in violation of Article 5 of the Charter (right to dignity).
  • Respondent State found in violation of Article 7(1)(d) of the Charter (right to be tried within a reasonable time).
  • Respondent State found in violation of Article 12(1) of the Charter (rights to residence and freedom of movement).
  • Respondent State ordered to pay TZS 10,000,000 to the Applicant for moral damage, free from taxes.
  • Respondent State ordered to pay TZS 1,000,000 to each of the Applicant's wife and children for moral damage, free from taxes.
  • Payment to be made within six months from notification, failing which interest at the Central Bank of Tanzania rate applies.
  • Respondent State ordered to take measures to ensure anal searches comply with international obligations.
  • Respondent State ordered to publish the judgment on websites of the Judiciary and Ministry for Constitutional and Legal Affairs for at least one year.
  • Respondent State ordered to submit implementation report within six months.
  • Each party to bear its own costs.

Rules and key headnotes

Freedom of Movement — Right to Residence — Reasonable Expectation — Certificate of Loss of Passport
Where a foreign national holds a certificate of loss of passport issued by competent police authorities and official correspondence from his embassy confirming the process of obtaining a new passport, he has a legitimate expectation that the State will not issue a Notice of Prohibited Immigrant against him, and the State's agents should confer with issuing authorities to ascertain validity before arrest and deportation.
Dignity — Body Searches — Anal Search — Degrading Treatment
Systematic anal search conducted on a detainee without demonstrating necessity, without exploring alternative security measures, and particularly when conducted in the presence of the detainee's children, constitutes degrading treatment and violates the right to dignity under Article 5 of the African Charter, which contains no limitation clause and must be interpreted to extend the widest possible protection against physical or mental abuse.
Physical Integrity — Body Searches — Judicial Authorization
Full body search, especially anal search, that is not justified by security threat and not duly authorized by a judicial authority constitutes a breach of the right to physical integrity protected under Article 4 of the African Charter.
Fair Trial — Reasonable Time — Immigration Status Determination
A period of six years and four months for a court to determine whether a person is an illegal immigrant, where the State had already arrested and detained the person for the same issue seven years earlier and established the alleged illegal status within days, is inordinately long and violates the right to be tried within a reasonable time under Article 7(1)(d) of the African Charter.
Admissibility — Exhaustion of Local Remedies — Accessibility
A remedy exists but is not exhausted within the meaning of Article 56(5) of the African Charter where domestic authorities fail to respond to an applicant's requests for copies of judgment and waiver of deportation order, thereby making it impossible for the applicant to access the appeal remedy, particularly where the applicant has been deported and is no longer in the territory.
Admissibility — Reasonable Time — Case-by-Case Assessment
What constitutes a reasonable time for filing an application after exhausting local remedies under Article 56(6) of the African Charter must be assessed on a case-by-case basis, and a period of one year and twenty-six days is reasonable where the applicant was deported within a week of the domestic judgment and lacked proximity necessary to follow up on requests to domestic authorities.
Reparations — Indirect Victims — Proof of Relationship
Indirect victims claiming reparations must prove their relation to the direct victim through marriage certificates, birth certificates, or equivalent evidence, but where the respondent State expressly and consistently acknowledges the existence of the family relationship in its submissions and in domestic court judgments, a prima facie relation is established sufficient to entitle indirect victims to reparation.

Legislation cited (18)

  • African Charter on Human and Peoples' Rights Article 4
  • African Charter on Human and Peoples' Rights Article 5
  • African Charter on Human and Peoples' Rights Article 7(1)(d)
  • African Charter on Human and Peoples' Rights Article 12(1)
  • 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)
  • Constitution of Tanzania Article 15(2)
  • Immigration Act of Tanzania Section 8(1)
  • Immigration Act of Tanzania Section 10(1)(h)
  • Immigration Act of Tanzania Section 12(1)
  • Immigration Act of Tanzania Section 15(1)
  • Universal Declaration of Human Rights Article 5
  • Universal Declaration of Human Rights Article 13
  • International Covenant on Civil and Political Rights Article 7
  • United Nations Convention against Torture Article 1

Cases cited (29)

  • Lohé Issa Konaté v. Burkina Faso (Application No. 004/2013)
  • Alex Thomas v. United Republic of Tanzania (Application No. 005/2013)
  • African Commission on Human and Peoples' Rights (Saïf Al-Islam Gaddafi) v. Libya (Application No. 002/2013)
  • Mgosi Mwita Makungu v. United Republic of Tanzania (Application No. 006/2016)
  • Mohamed Abubakari v. United Republic of Tanzania (Application No. 007/2013)
  • Michael Majuru v. Republic of Zimbabwe (Communication 308/2005)
  • Norbert Zongo and Others v. Burkina Faso (Application No. 013/2011)
  • Anudo Ochieng Anudo v. United Republic of Tanzania (Application No. 012/2015)
  • Stretch v. United Kingdom (Application No. 44277/98)
  • Huri-Laws v. Nigeria (Communication 225/98)
  • Media Rights Agenda v. Nigeria (Communication 224/98)
  • John Modise v. Botswana (Communication 97/93)
  • El Shennawy v. France (Application No. 51246/08)
  • Frérot v. France (Application No. 70204/01)
  • Ms. X v. Argentina (Case 10.506)
  • Miguel Castro-Castro Prison v. Peru
  • Buchholz v. Germany (Application No. 7759/77)
  • Abubakar v. Ghana (Communication 103/93)
  • Beaumartin v. France
  • Armand Guehi v. United Republic of Tanzania (Application No. 001/2015)
  • Ingabire Victoire Umuhoza v. Republic of Rwanda (Application No. 003/2014)
  • Loayza-Tamayo v. Peru
  • Papamichalopoulos v. Greece (Application No. 14556/89)
  • Mohammed El Tayyib Bah v. Sierra Leone (Suit No. ECW/CCJ/APP/20/13)
  • Geneviève Mbiankeu v. Cameroon (Communication 389/10)
  • Article 19 v. Eritrea (Communication 275/03)
  • Anuak Justice Council v. Ethiopia (Communication 299/05)
  • Dawda Jawara v. Gambia (Communication 147/95-149/96)
  • Case of the "Street Children" Villagran-Morales et al. v. Guatemala

Full judgment

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Rashidi v United Republic of Tanzania (Application No. 009-2015) [2019] AfCHPR 10 (28 March 2019)
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.