THE MATTER OF
MGOSI MWITA MAKUNGU
V.
UNITED REPUBLIC OF TANZANIA
APPLICATION No. 006/2016
JUDGMENT
7 DECEMBER 2018
TABLE OF CONTENTS
I. THE PARTIES .......................................................................................................... 2
II. SUBJECT OF THE APPLICATION ........................................................................... 2
A. Facts of the Matter ................................................................................................. 2
B. Alleged violations ................................................................................................... 3
III. SUMMARY OF PROCEDURE BEFORE THE COURT ......................................... 4
IV. PRAYERS OF THE PARTIES ............................................................................... 7
V. JURISDICTION ...................................................................................................... 8
VI. ADMISSIBILITY ..................................................................................................... 9
A. Condition of admissibility in contention between the Parties ................................ 10
B. Conditions of admissibility not in contention between the Parties ........................ 13
VII. MERITS ............................................................................................................... 14
A. Alleged violation of the right to appeal ................................................................. 14
B. Alleged violation of the right to equality before the law and equal protection of the
law ....................................................................................................................... 17
C. Alleged violation of the right to non-discrimination ............................................... 18
VIII. REPARATIONS ................................................................................................... 19
IX. COSTS ................................................................................................................ 21
X. OPERATIVE PART .............................................................................................. 22
The Court composed of: Sylvain ORÉ, President; Ben KIOKO, Vice-President; Rafaâ BEN ACHOUR, Ângelo V. MATUSSE, Suzanne MENGUE, M- Thérèse MUKAMULISA, Tujilane R. CHIZUMILA, Chafika BENSAOULA Blaise TCHIKAYA, Stella I. ANUKAM; Judges and Robert ENO, Registrar.
In accordance with Article 22 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (hereinafter referred to as the “Protocol”) and Rule 8 (2) of the Rules of Court (hereinafter referred to as the “Rules”), Justice Imani D. ABOUD a national of Tanzania, did not hear the Application.
In the Matter of
Mgosi Mwita MAKUNGU
represented by: Donald Omondi DEYA – Counsel, Chief Executive Officer, Pan African Lawyers’ Union
versus
UNITED REPUBLIC OF TANZANIA
represented by:
i. Ms. Sarah MWAIPOPO – Director, Division of Constitutional Affairs, and Human Rights, Attorney General’s Chambers
ii. Mr. Baraka LUVANDA – Ambassador, Head Of Legal Unit, Ministry of Foreign Affairs, East Africa, Regional and International Cooperation
iii. Ms. Nkasori SARAKIKYA – Assistant Director, Human Rights, Principal State Attorney, Attorney General’s Chambers
iv. Mr. Mark MULWAMBO – Principal State Attorney, Attorney General’s Chambers
v. Ms. Aidah KISUMO – Senior State Attorney, Attorney General’s Chambers
vi. Mr. Elisha SUKA – Foreign Service Officer, Ministry of Foreign Affairs, East Africa, Regional and International Cooperation
after deliberation,
renders the following Judgment,
I. THE PARTIES
1. The Applicant, Mr. Mgosi Mwita Makungu, a national of the United Republic of Tanzania, was convicted of the offences of robbery with violence and armed robbery and is currently serving a total of thirty (30) years imprisonment for the two convictions.
2. The Respondent State, the United Republic of Tanzania became a Party to the African Charter on Human and Peoples’ Rights (hereinafter referred to as the “Charter”) on 21 October 1986 and to the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (hereinafter referred to as “the Protocol”) on 10 February 2006. Furthermore, on 29 March 2010 the Respondent State deposited the Declaration as prescribed under Article 34(6) of the Protocol.
II. SUBJECT OF THE APPLICATION
A. Facts of the Matter
3. The claim arises from the Respondent State’s alleged failure to provide the Applicant with certified true copies of the records of proceedings and judgments of Criminal Case No. 244 of 1995 and Criminal Case No. 278 of 1995 heard at the District Court of Bunda. In Criminal Case No. 278 of 1995, he was charged with the offence of robbery with violence and convicted and sentenced to fifteen (15) years imprisonment on 15 April 1996. The judgment in Criminal Case No. 244 of 1995, where the Applicant was charged with the offence of armed robbery, was delivered on 18 June 1996, convicting him and sentencing him to fifteen (15) years imprisonment.
4. The Applicant indicated his intention to appeal the convictions and sentencing in both cases, by filing notices of appeal on 16 April 1996 with respect to Criminal Case No. 278 of 1995 and on 22 June 1996 with respect to Criminal Case No. 244 of 1995 within the time prescribed by law.
5. The Applicant asserts that, in order to pursue the appeals against these judgments of the District Court of Bunda, he requested for the certified true copies of records of proceedings and judgments in both cases, through numerous requests to the concerned judicial authorities but this has been to no avail. He further alleges that as at the time of filing the Application before this Court, twenty (20) years have elapsed since his conviction and sentencing and he has been unable to file his appeal.
6. The Applicant filed this Application praying the Court to find the Respondent State in violation of some provisions of the Charter. The Applicant appended a request for Provisional Measures to his Application, for the Court to order the Respondent State to provide him with the certified true copies of the records of proceedings and judgments in the two afore-mentioned cases, failure to which it should order his release.
B. Alleged violations
7. In his Application, the Applicant alleges that the Respondent State’s omission to give him certified true copies of the records of proceedings and judgments in Criminal Cases No. 244 of 1995 and No. 278 of 1995 heard at the District Court of Bunda contravenes his rights that are provided in the Respondent State’s Constitution. He claims:
“That the administrative omission of the respondent has all along been, and it is more likely so to prevail if not judicially attacked, contravening the rights and equality before the law as provided for by Article 13(1) of the constitution of the United Republic of Tanzania amongst many others of the constitution”.
Specific provisions of the Constitution of Tanzania 1977, which are violated, so the basis of this application:-
That, the basis of this application (violations) is basically pagged (sic) on Article 13(1),3, 4, 6(a) and 26(1), 2 of the constitution of the united Republic of Tanzania, 1977.”
8. In the Reply to the Respondent State’s Response, the Applicant claims that the Respondent State’s failure to provide him with certified true copies of the record of proceedings and judgments is proof of discrimination against him and a violation of his right to equal protection of the law and equal protection of the law as well as to his fair trial rights provided by Articles 2, 3(1) and (2) and article 7 of the African Charter.
III. SUMMARY OF PROCEDURE BEFORE THE COURT
9. The Application to which was appended a request for Provisional Measures, was filed on 29 January 2016 and served on the Respondent State on 23 February 2016.
10. The Application together with the request for Provisional Measures was transmitted to the State Parties to the Protocol, the Chairperson of the African Union Commission, the African Commission on Human and Peoples’ Rights and the Executive Council of the African Union through the Chairperson of the African Union Commission, on 12 April 2016.
11. On 28 March 2016, on the direction of the Court, the Registry requested Pan African Lawyers’ Union (PALU) to provide the Applicant with legal assistance. On 21 April 2016, PALU informed the Registry that it would represent the Applicant.
12. The Respondent State was again, on 1 June 2016, notified of the Applicant’s request for Provisional Measures on the provision of the certified true copies of records of proceedings and judgments of the District Court of Bunda, which was appended to the Application. The Respondent State was also directed to file the Response to the request for Provisional Measures within thirty (30) days of receipt of the notice.
13. On 12 May 2016, the Respondent State filed a request for extension of time to file the Response to the Application. The Court granted fifteen (15) days from receipt of a notice dated 15 June 2016, for the filing of these documents.
14. On 28 June 2016, the Respondent State requested for another extension of time to file its Response to the Application. The Court granted this request by an additional fifteen (15) days, to run from the date of receipt of the notice dated 4 July 2016.
15. On 25 July 2016, the Respondent State filed the Response to the Applicant’s request for Provisional Measures and in the interest of justice, the Court deemed it as properly filed. This was transmitted to the Applicant on 28 July 2016 directing that the Applicant should file the Reply thereto within thirty (30) days of receipt.
16. The Respondent State filed the Response to the Application on 27 July 2016 and in the interest of justice, the Court deemed it as properly filed. The Response was transmitted to the Applicant on 28 July 2016 directing him to file the Reply within thirty (30) days.
17. On 1 September 2016, the Applicant filed the Reply to the Respondent State’s Response to the Application and the Reply to the request for Provisional Measures. These Replies were transmitted to the Respondent State for information on 7 September 2016.
18. The Parties were informed that pleadings were closed with effect from 19 December 2016.
19. On 30 January 2017, the Applicant filed a new request for Provisional Measures on the basis that he needs the certified true copies of the records of proceedings and judgments to file his appeal and that his continued inability to access them violates his rights under the Charter.
20. On 1 November, 2017 the Registry informed the Parties of the re-opening of pleadings in order to request the Respondent State to file the certified true copies of the records of proceedings and judgments for Criminal Case No. 244 of 1995 and Criminal Case No. 278 of 1995 from the District Court of Bunda within fifteen (15) days of receipt of the notice.
21. The Respondent State did not file the certified true copies of the records of proceedings and judgments as ordered.
22. On 23 March 2018, the Court dealt with the request for Provisional Measures and, having noted that the request is linked to the prayers on the merits of the Application and that granting it would predetermine the matter in that regard, dismissed the request.
23. On 9 April 2018, the Parties were informed of the close of the written procedure and that there would be no public hearing on the matter.
IV. PRAYERS OF THE PARTIES
24. The prayers of the Applicant, as submitted in the Application, are:
“i. This Hon. Court on Human and People’s (sic) Rights to declare the respondent (sic) administrative omission unconstitutional.
ii. Declaratory order to enable the applicant be immediately (with time limit) supplied with copies of proceeding(sic) and Judgment (sic), and if the opposes (fail to supply), order the immediate release of the applicant from prison.
iii. Costs to follow the event, and
iv. Any other order(s)/relief(s) that would suit the current and future interest of justice in the circumstances of the case.
v. That, this Hon. Court be pleased to grant the applicants(sic) prayer to be facilitated with free legal representation or legal assistance as governed by Rule
31 of the Rules of the court and Article 10(2) of the protocol on the court.”
25. In the Reply to the Respondent State’s Response, the Applicant also prays the Court to declare:
“That: Since the respondent state (The United Republic of Tanzania) has violated the applicant’s rights provide (sic) under Article 2, 3 (1) and (2) and 7(1) (a) of the African Charter on Human and Peoples’ Right be pleased to grant and declare orders of merits expressed in this (sic) grounds. That: the application declared has merit and be granted with costs following the event.”
26. In its Response, with regard to the admissibility of the Application, the Respondent State prays the Court to rule:
“
i. That the Application has not met the admissibility requirements provided under Rule 40(5) of the Rules and Article 6(2) of the Protocol.
ii. That the Application is inadmissible and be duly dismissed.”
27. The Respondent State also prays that the Court declare that it has not violated Articles 2, 3(1) and (2) and 7(1)(a) of the Charter, the Application lacks merit and it should be dismissed with costs.
V. JURISDICTION
28. The Respondent State has not raised an objection to the jurisdiction of the Court. In terms of Rule 39 (1) of its Rules, "the Court shall conduct preliminary examination of its jurisdiction.”
29. With regard to its material jurisdiction, the Applicant has sought reliefs based on allegations relating to the violation of his rights under Articles 13(1), 13(3), 13(6)(a), 26(1) and 26(2) of the Constitution of the Respondent State.
30. In accordance with Article 3(1) of the Protocol and Rule 26(1)(a) of the Rules, the Court’s material jurisdiction relates only to the application and interpretation of human rights instruments to which a State is a Party, rather than to the application and interpretation of the Respondent State’s Constitution.
31. The Court notes however, that the rights provided for under the afore-mentioned provisions of the Respondent State’s Constitution correspond to the rights set out in Articles 2, 3(1) and (2) and 7(1)(a) of the Charter on the right to nondiscrimination, the right to equality before the law and equal protection of the law and the right to appeal to competent national organs against acts violating rights.
32. With regard to the other aspects of its jurisdiction, the Court holds that:
i. It has personal jurisdiction over the Parties because the Respondent State deposited the Declaration pursuant to Article 34(6) of the Protocol on 29 March 2010 and this Declaration enabled the Applicant to file the present Application in accordance with Article 5(3) of the Protocol.
ii. It has temporal jurisdiction because the alleged violations are continuous in nature.1
iii. It has territorial jurisdiction given that the facts of the matter occurred within the territory of a State Party to the Protocol, that is, the Respondent State.
33. From the foregoing, the Court finds that it has jurisdiction to hear the instant case.
VI. ADMISSIBILITY
34. Pursuant to Rule 39(1) of the Rules, “The Court shall conduct a preliminary examination of … the admissibility of the Application in accordance with Article ... 56 of the Charter and Rule 40 of these Rules”.
35. Rule 40 of the Rules which in substance restates Article 56 of the Charter sets outs the requirements for the admissibility of applications as follows:
“Pursuant to the provisions of Article 56 of the Charter to which Article 6(2) of the Protocol refers, applications to the Court shall comply with the following conditions:
1. Disclose the identity of the Applicant notwithstanding the latter’s request for anonymity;
2. Comply with the Constitutive Act of the Union and the Charter;
3. Not contain any disparaging or insulting language;
4. Not be based exclusively on news disseminated through the mass media;
5. Be filed after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged;
6. Be filed within a reasonable time from the date local remedies were exhausted or from the date set by the Court as being the commencement of the time limit within which it shall be seized with the matter; and
7. Not raise any mater or issues previously settled by the parties in accordance with the principles of the Charter of the United Nations, the Constitutive Act of the African Union, the provisions of the Charter or of any legal instrument of the African Union.”
36. While some of the above conditions are not in contention between the Parties, the Respondent State has raised an objection regarding the exhaustion of local remedies.
A. Condition of admissibility in contention between the Parties
37. The Respondent State contends that the Application does not meet the admissibility conditions stipulated under Articles 56(5) of the Charter, Article 6 of the Protocol and Rules 40 (5) of the Rules on exhaustion of local remedies.
38. The Respondent State argues that the Applicant has not made use of the local remedy provided for under the Constitution of the United Republic of Tanzania. In this regard, the Respondent State submits that its Basic Rights and Duties Enforcement Act, which was enacted for the enforcement of the rights and duties provided for under Part III of its Constitution, provides for a procedure for enforcement of constitutional rights such as those the Applicant alleges were violated. The Respondent State avers that the Applicant however failed to pursue this remedy before seizing the Court.
39. The Applicant states that he has been unsuccessful in his attempts to ensure that his basic rights as provided for under Articles 12 to 29, under Part III of the Constitution of the United Republic of Tanzania are respected, because of the unaffordable costs of filing constitutional petitions at the High Court of Tanzania.
40. The Applicant further contends that the Respondent State’s failure to issue him with the certified true copies of the records of proceedings and judgments of the District Court of Bunda made it impossible for him to exhaust local remedies because he could not appeal the decisions in Criminal Case No. 244 of 1995 and Criminal Case No. 278 of 1995 without them. The Applicant maintains that the Respondent State has failed to protect and uphold his right to appeal on time.
41. The Court notes that the requirement of exhaustion of local remedies must be complied with before an Application is filed at this Court. However, this condition may be exceptionally dispensed with if local remedies are not available, they are ineffective, insufficient or the domestic procedures to pursue them are unduly prolonged. Furthermore, the remedies to be exhausted must be ordinary judicial remedies.2
42. The Court notes that, in the instant case, the Applicant attempted to use the available remedies, by filing a notice of appeal dated 16 April 1996 in respect of Criminal Case No. 278 of 1995 and a notice of appeal dated 22 June 1996 in respect of Criminal Case No. 244 of 1995. Thereafter, he requested for the certified true copies of the records of proceedings and judgments in respect of these cases in order to file the actual appeals. The Applicant followed up with the Magistrate in Charge of the District Court of Bunda and the District Registrar and Presiding Judge of the High Court at Mwanza, in this regard, without any success. He also sought the intervention of the Respondent State’s Commission on Human Rights and Good Governance but all his efforts were futile.
43. Having failed to get the records of proceedings and judgments for the two criminal cases, the Applicant filed Miscellaneous Criminal Application No. 6 of 2014 at the High Court at Mwanza on the basis of the right to equality before the law provided for in the Respondent State’s Constitution, seeking to be allowed to file the appeals without the certified true copies of the records of proceedings and of judgments. This application was dismissed on 21 September 2015 for lack of merit. In the obiter dictum, the High Court observed that the Deputy Registrar of the High Court should ensure that all efforts are made to provide the Applicant with the records and judgments to facilitate the filing of his appeals but the instruction in the said obiter dictum was not followed.
44. Consequently, despite the Applicant having filed the notices of appeal indicating his intention to appeal, he could not pursue his appeals for lack of the certified true copies of the records of proceedings and judgments. In this regard, the Court recalls its position that, for remedies to be considered available, it is not enough that they should be established in the domestic system but also that individuals should be able to use them without any hindrance.3
45. Accordingly, in the instant case, the Court concludes that the Applicant was impeded from pursuing the local remedies as a result of the Respondent State’s failure to provide him with the certified true copies of the records of proceedings and judgments.
46. With regard to the Respondent State’s contention that the Applicant could have filed a constitutional petition regarding the violation of his rights, the Court has already stated that this remedy in the Tanzanian judicial system is an extraordinary remedy that the Applicant is not required to exhaust prior to seizing this Court.4 Notwithstanding this, the Applicant filed a petition under the procedure provided in the Respondent State’s Constitution for the enforcement of fundamental rights, seeking to be allowed to file his appeal without the records of proceedings and the judgments but this was dismissed for lack of merit.
47. The Court thus finds that though local remedies were available, the Applicant, was unable to utilise them due to the Respondent State’s omission and failure to provide him with the necessary documents.
48. The Court therefore dismisses the Respondent State’s objection to the admissibility of the Application for lack of exhaustion of local remedies.
B. Conditions of admissibility not in contention between the Parties
49. The Court notes that following its finding that local remedies were not available to the Applicant to exhaust, the issue of compliance with Article 56(6) of the Charter as restated in Rule 40(6) of the Rules on the filing of an application within a reasonable time following the exhaustion of local remedies becomes moot.
50. The Court notes that there is no contention regarding the compliance with the conditions set out in Article 56, sub-articles (1), (2), (3), (4) and (7) of the Charter on, the identity of Applicant, the language used in the Application, compliance with the Constitutive Act of the African Union, the nature of the evidence adduced and the previous settlement of the case, respectively.
51. The Court further notes that nothing on the record indicates that these conditions have not been met and therefore holds that the Application meets the requirements set out under those provisions.
52. ln light of the foregoing, the Court finds that the instant Application fulfils all the admissibility requirements in terms of Article 56 of the Charter as restated in Rule 40 of the Rules, and accordingly declares the Application admissible.
VII. MERITS
53. The Applicant alleges the violation of the right to appeal, the right to equality before the law and equal protection of the law and the right to non-discrimination, provided for under Articles 7(1)(a), 3(1) and 3(2) and 2 of the Charter, respectively.
A. Alleged violation of the right to appeal
54. The Applicant claims that his right to have his cause heard, including the right to appeal, was violated when the Respondent State failed to supply him with certified true copies of the records of proceedings and judgments of the two cases in which he was convicted by the District Court of Bunda. The Applicant alleges that it is due to this failure that for more than twenty (20) years, he has been unable to file appeals against the decisions of the District Court of Bunda. The Applicant maintains that this failure is a violation of his right under Article 7(1) (a) of the Charter.
55. The Respondent State refutes this allegation. It maintains that the Applicant has the option of instituting a constitutional petition for the enforcement of his basic rights and the remedies sought can be issued by the High Court of Tanzania.
56. The Court observes that the right to appeal is a fundamental element of the right to a fair trial protected under Article 7 (1)(a) of the Charter, which provides that:
“1. Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;”
57. This right to appeal requires that individuals are provided with an opportunity to access competent organs, to appeal decisions or acts violating their rights. It entails that States should establish mechanisms for such appeal and take necessary action that facilitates the exercise of this right by individuals, including providing them with the judgments or decisions that they wish to appeal from.
58. In the instant Application the Court notes that the Applicant has made numerous attempts to request for the certified true copies of the record of proceedings and judgments from the Respondent State to no avail. In the absence of the said documents, the Applicant was not able to appeal his convictions and sentences in Criminal Case No. 244 of 1995 and Criminal Case No. 278 of 1995, to the High Court and subsequently to the Court of Appeal.
59. The record before this Court shows that on 29 November 2000, the Applicant wrote to District Registrar of the High Court at Mwanza, enquiring on the status of his notice of appeal in respect of Criminal Case No. 278 of 1995. The Court notes that in response to the Applicant’s letter dated 16 January 2004, the District Registrar of the High Court at Mwanza wrote to the Applicant on 9 February 2004 informing him that the Court is yet to receive the records of proceedings for his cases from the District Court of Bunda.
60. The record also indicates that the Magistrate in Charge of the District Court at Mwanza, under whose administration the District Court of Bunda falls, wrote to the Applicant on 13 October, 2010 informing him that the records of proceedings for the two criminal cases had not been returned from the High Court where it had been sent through a letter dated 7 November, 2003 and therefore the Applicant should follow up with the High Court at Mwanza to get these records.
61. There is evidence that the Applicant sought the intervention of the Respondent State’s Commission on Human Rights and Good Governance in this regard, on Criminal Case No.244 of 1995, through his letter dated 28 December 2011. By its letter dated 3 July 2013, the Commission advised the Applicant that by a letter dated 11 May 2012, the District Registrar of the High Court at Mwanza informed the Commission that despite a lengthy follow-up on the matter, the records of proceedings of the Applicant’s cases heard at the District Court of Bunda could not be traced.
62. Besides, the record before this Court further attests to the fact that the Applicant wrote to the Presiding Judge of the High Court at Mwanza to follow up on the records of proceedings, particularly by his letters dated, 14 October 2005, 18 March 2005, 28 June 2005, 2 September 2005, 4 December 2005, 8 January 2006, 2 April 2007, 24 July 2007, 10 September 2007, 7 December 2007, 9 March 2008, 15 June 2008, 30 September 2008, 29 December 2008, 12 April 2009, 24 August 2009, 6 December 2009, 7 April 2010, 2 September 2010, 14 January 2011, 15 August 2011, 18 December 2011, 12 September 2014, 24 January 2015 and 9 April, 2015.
63. In his letter dated 28 March 2015 addressed to the Presiding Judge of the High Court at Mwanza the Applicant indicates that his appeals were never mentioned because the records of proceedings and judgment were still being sought, yet the Magistrate in Charge of the District Court of Bunda had advised him that he was waiting for the records to be returned from the High Court where they had been sent.
64. Finally, the Applicant filed a petition at the High Court seeking leave to file his appeal without the records of proceedings but this petition was dismissed because, according to that court, allowing it would have been inappropriate since it would have meant that the appellate Court would have considered the appeal without having the records and judgments of the trial Court that were to be appealed.
65. The Court therefore finds that by failing to provide the Applicant with certified true copies of the records of proceedings and judgments in Criminal Case No. 244 of 1995 and Criminal Case No. 278 of 1995 heard at the District Court of Bunda, the Respondent State has violated the Applicant’s right to appeal as provided under Article 7(1) (a) of the Charter.
B. Alleged violation of the right to equality before the law and equal protection of the law
66. The Applicant alleges that failure of the Respondent State to provide him with the record of proceedings and the judgments constitutes an administrative omission and a violation of his right to equality before the law and equal protection of the law as provided for in Article 3(1) and 3(2) of the Charter.
67. The Respondent State disputes this and reiterates that the Applicant had the opportunity to file a constitutional petition which was a remedy that was readily available to him just as it is available to everyone and ensuring equality before the law and equal protection of the law.
68. The Court notes that Article 3 of the Charter guarantees the right to equality before the law and equal protection of the law in the following terms:
“1. Every individual shall be equal before the law
2. Every individual shall be entitled to equal protection of the law.”
69. In the context of judicial procedures, the right to equality before the law and equal protection of the law requires that everyone should be treated equally before courts and tribunals. The Applicant has made a general claim that the denial of the opportunity to file an appeal at either the High Court or the Court of Appeal due to the Respondent State’s failure to provide him with the certified true copies of the records of proceedings and judgments of the District Court of Bunda has resulted in a violation of this right.
70. The Court reiterates that the Applicant bears the burden of proving this claim,5 but he has failed to show how his right to equality before the law and equal protection of the law has been violated. The Court has stated that general claims are not enough to establish that the Respondent State has violated a right.6
71. The Court therefore finds that the Respondent State has not violated the Applicant’s right to equality before the law and equal protection of the law provided under Article 3(1) and (2) of the Charter.
C. Alleged violation of the right to non-discrimination
72. The Applicant submits that by failing to provide him with certified true copies of the record of proceedings and judgments, the Respondent State has violated his right to non-discrimination as set out in Article 2 of the Charter.
73. The Respondent State disputes this allegation and avers that the Applicant has not proved it.
74. Article 2 of the Charter provides as follows:
"Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status."
75. In the Matter of the African Commission on Human and Peoples’ Rights v Republic of Kenya, the Court noted that the principle of non-discrimination prohibits any differential treatment among persons existing in similar contexts, on the basis of one or more of the prohibited grounds listed under Article 2 of the Charter.7
76. In the present case, the Applicant has failed to show how his right not to be discriminated against on the basis of any of the ground(s) prohibited under Article 2 of the Charter has been violated.
77. The Court therefore finds that the Respondent State has not violated the Applicant’s right to non-discrimination provided under Article 2 of the Charter.
VIII. REPARATIONS
78. As indicated in paragraphs 24 and 25 and above, the Applicant requests that the Court declare the Respondent State’s administrative omission to be unconstitutional, grant him a declaratory order to be immediately supplied with certified true copies of proceedings and judgments in Criminal Cases No. 244 of 1995 and 278 of 1995 and if the Respondent State fails to supply them then the Court should order his immediate release from prison and any other orders or reliefs it may deem fit.
79. In its Response to the Application, as indicated in paragraph 26 and 27 above, the Respondent State did not address the Applicant’s prayers on remedies, rather it stated that the Application is inadmissible, the Court should find that it has not violated Articles 2, 3(1) and (2) and 7(1)(a) of the Charter and the Application should be dismissed with costs for lack of merit.
80. Article 27 (1) of the Protocol provides that “if the Court finds that there has been a violation of a human or peoples’ rights, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation”.
81. In this respect, Rule 63 of the Rules stipulates that “the Court shall rule on the request for the reparation … by the same decision establishing the violation of a human and peoples’ right or, if the circumstances so require, by a separate decision”.
82. The Court recalls its position on State responsibility in Reverend Christopher R. Mtikila v. United Republic of Tanzania, that “any violation of an international obligation that has caused harm entails the obligation to provide adequate reparation”.8
83. With regard to the issue of supplying the certified true copies of the records of proceedings and judgments, the Court had, pursuant to Rule 41 of the Rules, directed the Respondent State to file them, as stated in paragraph 20 above, but the Respondent State did not comply.
84. As regards the Applicant’s prayer to be released if the Respondent State fails to provide him with the certified true copies of the record of proceedings and judgments, the Court has established that such a measure could be directly ordered by the Court only in exceptional and compelling circumstances.9The Court has stated that examples of such compelling circumstances include “if an Applicant sufficiently demonstrates or the Court itself establishes from its findings that the Applicant’s arrest or conviction is based entirely on arbitrary considerations and his continued imprisonment would occasion a miscarriage of justice. In such circumstances, the Court has, pursuant to Article 27(1) of the Protocol to order “all appropriate measures” including the release of the Applicant”.10
85. In the instant case, the Court has found at paragraph 65 of this judgment that the Respondent State has violated the Applicant’s right to appeal under Article 7(1)(a) of the Charter by not providing him the certified true copies of the records of proceedings and judgments in the two Criminal Cases. The Court notes that this has resulted in the Applicant having served twenty (20) years in prison, a period which represents two-thirds of the total prison term of thirty (30) years following his convictions, without having exercised his right to appeal.
86. The Court considers that these circumstances have resulted in a miscarriage of justice and are compelling enough to warrant it to grant the Applicant’s prayer to be released as being the most proportionate measure to restore the Applicant.
IX. COSTS
87. The Applicant has made submissions that costs be granted following the event. The Respondent State has asked for the costs to be borne by the Applicant.
88. The Court notes that Rule 30 of the Rules of Court provides that “unless otherwise decided by the Court, each Party shall bear its own costs”.
89. The Court will make a ruling on costs when considering the claim on reparations.
X. OPERATIVE PART
90. For these reasons,
THE COURT,
Unanimously:
On jurisdiction
i. Declares that the Court has jurisdiction.
On admissibility
ii. Dismisses the objection on the admissibility of the Application;
iii. Declares that the Application is admissible.
On merits
iv. Finds that the Respondent State has not violated Article 2 of the Charter
as regards the right to non-discrimination;
v. Finds that the Respondent State has not violated Article 3(1) and 3 (2) of the Charter as regards to the right to equality before the law and equal protection of the law;
vi. Finds that the Respondent State violated Article 7(1) (a) of the Charter as regards the failure to provide the Applicant with the certified true copies of the records of proceedings and judgments in Criminal Case No. 244 of 1995 and Criminal Case No. 278 of 1995 heard at the District Court of Bunda, to facilitate the Applicant file the appeals therefrom and therefore orders the Respondent State to provide them to the Applicant;
On reparations
vii. Orders the Respondent State to release the Applicant from prison within thirty (30) days of this Judgment ;
viii. Reserves its decision on the Applicant’s prayer on other forms of reparation;
ix. Allows the Applicant, in accordance with Rule 63 of its Rules, to file his written submissions on the other forms of reparation within sixty (60) days from the date of notification of this Judgment; and the Respondent State to file its Response thereto within thirty (30) days from the date of receipt of the Applicants’ written submissions;
x. Orders the Respondent State to submit to the Court a report on the measures taken in respect of paragraphs (vi) and (vii) above within sixty (60) days of notification of this Judgment; and
On costs
xi. Reserves its decision on costs.
Signed:
Sylvain ORÉ, President;
Ben KIOKO, Vice-President;
Rafaâ BEN ACHOUR, Judge;
Ângelo V. MATUSSE, Judge;
Suzanne MENGUE, Judge;
M-Thérèse MUKAMULISA, Judge;
Tujilane R. CHIZUMILA, Judge;
Chafika BENSAOULA, Judge;
Blaise TCHIKAYA, Judge;
Stella I. ANUKAM, Judge;
and Robert ENO, Registrar.
In accordance with Article 28(7) of the Protocol and Rule 60(5) of the Rules, the Individual Opinion of Justice Blaise TCHIKAYA is attached to this Judgment.
Done at Tunis, this Seventh day of December in the year Two Thousand and Eighteen in English and French, the English text being authoritative.