Wakilii

Viking and Another v United Republic of Tanzania (Application No. 006-2015)

African Court on Human and Peoples' Rights · [2018] AfCHPR 77 · 2018 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 convictions in Tanzania
Decision
Applicants' application partly allowed; violations of fair trial rights found; reparations and costs to be determined in separate judgment

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Holding

The African Court held that it has jurisdiction to examine whether domestic criminal proceedings comply with international human rights standards, even though it is not an appellate court. The Court found that Tanzania violated the Applicants' right to a fair trial under Article 7(1)(c) of the African Charter by failing to provide copies of prosecution witness statements, failing to call material witnesses for cross-examination, and refusing to facilitate an impotence test for the First Applicant. The Court dismissed allegations of violations of Articles 5, 13, and 18(1) of the Charter. The Court deferred ruling on reparations and costs.

Outcome

Applicants' application partly allowed; violations of fair trial rights found; reparations and costs to be determined in separate judgment

Facts

The Applicants, father and son, were Congolese musicians living in Tanzania. They were arrested on 12 October 2003 and charged with multiple counts of rape and unnatural offences against ten child victims aged six to ten. They were convicted by the Resident Magistrate's Court on 25 June 2004 and sentenced to life imprisonment. The High Court dismissed their appeal and substituted some convictions. The Court of Appeal reduced the number of convictions to four counts (two counts of rape against the First Applicant and two counts of gang rape against both Applicants) and reduced their sentences to thirty years' imprisonment. Their application for review was dismissed on 13 November 2013. They filed this application before the African Court on 6 March 2015, alleging violations of their rights under the African Charter. During the proceedings, both Applicants were released by Presidential Pardon on Tanzania's Independence Day in 2017.

Issues

  1. Whether the African Court has jurisdiction to examine domestic court proceedings for compliance with international human rights standards.
  2. Whether the Applicants exhausted local remedies before seizing the African Court.
  3. Whether the Application was filed within a reasonable time after exhaustion of local remedies.
  4. Whether the Respondent State violated the Applicants' right to dignity and freedom from inhuman treatment under Article 5 of the African Charter.
  5. Whether the Applicants were promptly informed of charges and afforded access to counsel.
  6. Whether the identification procedures used at trial were fair.
  7. Whether the Applicants were denied copies of prosecution witness statements and the opportunity to cross-examine material witnesses.
  8. Whether the rejection of the Applicants' alibi defence was proper.
  9. Whether the failure to tender blood and urine test results and to facilitate an impotence test violated the right to a fair trial.
  10. Whether the trial judge was biased.
  11. Whether the Respondent State violated Articles 13 and 18(1) of the African Charter.

Orders

  • Objection to jurisdiction dismissed.
  • Court has jurisdiction.
  • Objections to admissibility dismissed.
  • Application declared admissible.
  • Respondent State has not violated Article 5 of the Charter.
  • Respondent State has not violated Article 7(1)(c) of the Charter regarding failure to promptly inform Applicants of charges, manner of identification, rejection of alibi defence, failure to admit urine and blood test results, or alleged judicial bias.
  • Respondent State has violated Article 7(1)(c) of the Charter regarding failure to provide copies of witness statements, failure to call material witnesses, and failure to facilitate impotence test for First Applicant.
  • Respondent State has violated Article 1 of the Charter.
  • Allegations of violation of Articles 13 and 18(1) of the Charter not established.
  • Prayer for release from prison is moot.
  • Respondent State ordered to take all necessary measures to restore Applicants' rights and inform the Court within six months.
  • Ruling on other forms of reparation and costs deferred.
  • Applicants to file written submissions on reparations within thirty days.
  • Respondent State to file response within thirty days of receipt of Applicants' submissions.

Rules and key headnotes

African Court Jurisdiction — Review of Domestic Proceedings for Compliance with International Standards
The African Court on Human and Peoples' Rights is not an appellate court with respect to decisions rendered by national courts, but it has jurisdiction to examine whether procedures before national courts comply with international standards set out in the African Charter and other applicable human rights instruments ratified by the respondent state.
Admissibility — Exhaustion of Local Remedies — Extraordinary Remedies
Constitutional petitions in the Tanzanian judicial system are extraordinary remedies that applicants are not required to exhaust prior to seizing the African Court, where the applicants have already accessed the highest court of the land through ordinary appeal procedures.
Admissibility — Reasonable Time — Assessment of Circumstances
The reasonableness of the time limit for seizing the African Court depends on the particular circumstances of each case and must be determined on a case-by-case basis, taking into account factors such as whether the applicants are lay, indigent, and incarcerated persons without counsel or legal aid.
Fair Trial — Right to Defence — Disclosure of Prosecution Evidence
The right to a fair trial under Article 7(1)(c) of the African Charter and Article 14(3)(b) of the International Covenant on Civil and Political Rights requires that accused persons be provided with copies of prosecution witness statements to enable them to prepare an adequate defence; failure to do so places the accused at a disadvantage contrary to the principle of equality of arms.
Criminal Trials — Cross-Examination — Material Witnesses
The right to a fair trial includes the right to examine or have examined witnesses against the accused and to obtain the attendance and examination of witnesses on behalf of the accused under the same conditions as witnesses against the accused; denying the accused the opportunity to cross-examine material witnesses violates the principle of equality of arms.
Criminal Trials — Defence Evidence — Medical Tests
Where an accused person raises a defence of physical incapacity to commit the alleged offence and requests a medical test to establish that incapacity, the court should facilitate such a test, as the outcome would be material to determining whether the accused could have committed the crime; failure to do so violates the right to defence under Article 7(1)(c) of the African Charter.
Burden of Proof — Human Rights Violations — Incommunicado Detention
In human rights cases involving allegations of incommunicado detention or other violations shrouded in secrecy, the burden of proof is not borne by one party alone; however, applicants must still provide prima facie evidence to support their allegations before the burden shifts to the respondent state.

Legislation cited (21)

  • African Charter on Human and Peoples' Rights Article 1
  • 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 5
  • African Charter on Human and Peoples' Rights Article 7(1)
  • African Charter on Human and Peoples' Rights Article 7(1)(b)
  • African Charter on Human and Peoples' Rights Article 7(1)(c)
  • African Charter on Human and Peoples' Rights Article 13
  • African Charter on Human and Peoples' Rights Article 18(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(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 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)
  • International Covenant on Civil and Political Rights Article 14(3)(a)
  • International Covenant on Civil and Political Rights Article 14(3)(b)
  • International Covenant on Civil and Political Rights Article 14(3)(e)
  • Law of Evidence Act (Cap. 6 R.E. 2002) Section 3(2)(a)
  • Law of Evidence Act (Cap. 6 R.E. 2002) Section 114(1)
  • Basic Rights and Duties Enforcement Act (Cap.3) Section 9(1)

Cases cited (8)

  • Ernest Francis Mtingwi v Republic of Malawi (Application No. 001/2013)
  • Alex Thomas v United Republic of Tanzania (Application No. 005/2013)
  • Peter Joseph Chacha v United Republic of Tanzania (Application No. 003/2012)
  • Mohamed Abubakari v United Republic of Tanzania (Application No. 007/2013)
  • Christopher Jonas v United Republic of Tanzania (Application No. 011/2015)
  • Beneficiaries of late Norbert Zongo and Others v Burkina Faso (Application No. 013/2011)
  • Kennedy Owino Onyachi and Another v United Republic of Tanzania (Application No. 003/2015)
  • Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of Congo) (ICJ, 30 November 2010)

Full judgment

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Viking and Another v United Republic of Tanzania (Application No. 006-2015) [2018] AfCHPR 77 (23 March 2018)
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.