Wakilii

Swedi alias Kalijo v United Republic of Tanzania (Application No. 026-2017)

African Court on Human and Peoples' Rights · [2023] AfCHPR 53 · 2023 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 fair trial rights arising from domestic criminal proceedings in Tanzania
Decision
Application dismissed as inadmissible for failure to file within a reasonable time after exhaustion of local remedies

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 allegations of human rights violations arising from domestic proceedings and to order release from prison where violations are established, but declared the application inadmissible because it was filed six years after exhaustion of local remedies, which was not a reasonable time within the meaning of Article 56(6) of the African Charter.

Outcome

Application dismissed as inadmissible for failure to file within a reasonable time after exhaustion of local remedies

Facts

The applicant, a Tanzanian national, was convicted of armed robbery and sentenced to thirty years imprisonment by the District Court of Nzega on 21 September 2005. The conviction arose from a robbery on 10 April 2004 in which the applicant and two others broke into a shop, stole goods and cash at gunpoint, and shot the owner. The applicant appealed to the High Court, which transferred the matter to the Resident Magistrate's Court with Extended Jurisdiction. That court dismissed the appeal on 11 June 2008. The applicant then appealed to the Court of Appeal, which dismissed the appeal on 29 June 2011. The applicant filed this application to the African Court on 31 August 2017, alleging violations of his rights to non-discrimination, equality before the law, and fair trial under the African Charter.

Issues

  1. Whether the Court has material jurisdiction to examine allegations of human rights violations arising from domestic criminal proceedings.
  2. Whether the Court has jurisdiction to order the release of an applicant from prison.
  3. Whether the applicant exhausted local remedies before filing the application.
  4. Whether the application was filed within a reasonable time after exhaustion of local remedies.

Orders

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

Rules and key headnotes

Admissibility — Reasonable Time — Incarceration
An applicant who is incarcerated must demonstrate how their personal situation prevented them from filing an application in a timelier manner; it is not sufficient to simply plead incarceration, lay status, or indigence to justify failure to file within a reasonable period.
Admissibility — Reasonable Time — Six Year Delay
A delay of six years, two months and two days between exhaustion of local remedies and filing an application before the African Court on Human and Peoples' Rights is not a reasonable time within the meaning of Article 56(6) of the African Charter where the applicant has not provided compelling arguments and sufficient evidence to demonstrate that their personal situation prevented timelier filing.
Exhaustion of Local Remedies — Bundle of Rights
Where an alleged violation of the right to legal aid occurred during domestic criminal proceedings and forms part of the bundle of fair trial rights that was the basis of the applicant's appeals, the domestic judicial authorities have had ample opportunity to address the allegation even without the applicant having raised it explicitly, and it would be unreasonable to require a new application to a lower court after the highest court has ruled.
Jurisdiction — Material Jurisdiction — Appellate Function
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.
Jurisdiction — Reparations — Release from Prison
The African Court on Human and Peoples' Rights has jurisdiction under Article 27(1) of the Protocol to grant different types of reparations, including release from prison, provided that the alleged violation has been established.
Jurisdiction — Withdrawal of Declaration — Pending Cases
The withdrawal of a State's declaration under Article 34(6) of the Protocol accepting the Court's jurisdiction to receive applications from individuals and NGOs does not have retroactive effect and has no bearing on matters pending prior to the filing of the instrument of withdrawal or new cases filed before the withdrawal takes effect twelve months after deposit of the notice.

Legislation cited (19)

  • 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 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)
  • African Charter on Human and Peoples' Rights Article 2
  • African Charter on Human and Peoples' Rights Article 3(1)
  • African Charter on Human and Peoples' Rights Article 3(2)
  • African Charter on Human and Peoples' Rights Article 7
  • 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 49(1)
  • Rules of Court Rule 50(1)
  • Rules of Court Rule 50(2)
  • Rules of Court Rule 50(2)(e)
  • Rules of Court Rule 50(2)(f)
  • Rules of Court Rule 32(2)

Cases cited (18)

  • Cheusi v United Republic of Tanzania (Application No. not stated)
  • Elisamehe v United Republic of Tanzania (Application No. not stated)
  • William v United Republic of Tanzania (Application No. not stated)
  • Guéhi v United Republic of Tanzania (Application No. not stated)
  • Mtingwi v Republic of Malawi (Application No. not stated)
  • Ivan v United Republic of Tanzania (Application No. not stated)
  • Yusuph v United Republic of Tanzania (Application No. 036/2017)
  • Umuhoza v United Republic of Rwanda (Application No. not stated)
  • Beneficiaries of late Norbert Zongo and Others v Burkina Faso (Application No. not stated)
  • African Commission on Human and Peoples' Rights v Republic of Kenya (Application No. not stated)
  • Thomas v United Republic of Tanzania (Application No. not stated)
  • Beneficiaries of late Norbert Zongo and Others v Burkina Faso (Application No. not stated)
  • Isiaga v United Republic of Tanzania (Application No. not stated)
  • Viking and Nguza v United Republic of Tanzania (Application No. not stated)
  • Makene v United Republic of Tanzania (Application No. 028/2017)
  • Mabomba and Others v United Republic of Tanzania (Application No. 017/2017)
  • Gombert v Côte d'Ivoire (Application No. not stated)
  • Johnson v Republic of Ghana (Application No. 016/2017)

Full judgment

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

Swedi alias Kalijo v United Republic of Tanzania (Application No. 026-2017) [2023] AfCHPR 53 (7 November 2023)
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.