Two cases involving convictions and heavy sentences for rape have been heard by the African Court on Human and Peoples’ Rights. Both cases originate in Tanzania and both show that legal rights of the accused were not observed by the state. In one, the accused was not given free legal representation though he faced a mandatory 30 years behind bars. In the other, an appeal was filed three days after sentence, but it took almost 16 years before the authorities provided the records needed for the appeal.
Read the Mallya judgment
Read the Goa judgment
The case of Benedicto Mallya tells a story that will distress anyone with a human rights conscience.
Even if Mallya had not ultimately been exonerated, his case would still be a poor reflection on the legal system of his home country, Tanzania.
At the time of sentence he was just 15. Nothing in the judgment of the African Court indicates that he was treated any differently from an adult accused by the Tanzanian justice system.
He spent well over 15 years trying to enforce his right to an appeal: the Tanzanian authorities simply failed to help him obtain a copy of the original judgment and the court record from his trial in the district court, Moshi, even though he filed for an appeal three days after his conviction in 2000.
It was only once he lodged an application with the African Court in September 2015, that the Tanzanian authorities stirred. Five months after filing his complaint with that court, he received the copies of the record and the judgment he had been trying to access for 15 years.
The high court in Moshi then called for the records and ordered a hearing of the appeal. Mallya was notified and on 22 February 2016, he attended his appeal. The high court expressed doubt about evidence relied on by the district court, allowed the appeal, quashed the conviction, set aside the sentence and ordered his release.
His conviction overturned, Mallya continued his action at the African Court, saying that his right to appeal had been violated, along with his right to a fair and expeditious trial, not to mention his right to equality before the law.
In its judgment, the court said that the appeal sought by Mallya might have been available in theory, but in reality he could not access it. The court also pointed out that Tanzania, like other states, was obliged to ensure that people ‘enjoy the fundamental guarantees’ of court access; and found that Tanzania violated Mallya’s appeal rights.
The court also found that for a case that was not complicated, ‘there was an inordinate and unexplained delay of over 15 years’ before the appeal was heard. His right to a fair and expeditious trial had thus also been violated.
Mallya’s third claim was that his right to liberty had been violated as well, since the authorities failed to give him the documents he needed to bring an appeal. Tanzania did not agree, saying that it had acted in good faith by not opposing Mallya’s appeal and releasing him. In its view, ‘the matter has been finalised’.
In the court’s view, simply freeing Mallya did not cancel out the state’s obligation for failing to ensure that his appeal could be heard timeously, and held that Mallya’s right to liberty had indeed been violated.
Unsurprisingly, Mallya asked for reparations and ‘just compensation’. The state on the other hand, argued that it acted in good faith by releasing Mallya, and that this was ‘sufficient reparation’. To this, the court responded: ‘Given the unjust incarceration of (Mallya) for almost 16 years, the better part of his youth is already lost and he has also been prevented from enjoying other rights … including the right to education, the right to family, right to work, right to privacy ….’ Further, he suffered ‘moral prejudice’ including emotional and psychological trauma.
Having found that reparations are due to Mallya, the court will rule on both reparations and costs at a date still to be determined.
The second case, of Majid Goa, also involves a conviction of raping a minor. But in this case, the sentence was 30 years. Despite complaints by Goa about the way the matter was handled by the Tanzanian justice system, the African Court found no error or miscarriage of justice that required the court to interfere.
However, there had been a problem about legal defence for Goa. He was not given free legal help during the trial and appeal. Tanzania argued that the African Charter was not specific about whether the right to defence included state funding of that legal defence. But the African Court has, in earlier decisions, interpreted the provision to mean that there was a right to free legal help. Where the accused is indigent and charged with a serious offence that carries a severe penalty, there was no need for the accused to specifically ask for representation.
Goa was charged with a serious offence, carrying a ‘severe mandatory punishment of 30 year’s imprisonment’. He should thus have been given free legal help, whether or not he asked for it.
As his free trial rights had been violated, the court awarded him TZS300,000 in reparations. Although Goa asked the court to order his release, the court refused to do so, saying the fact that he did not have free legal help did not affect the outcome of the trial.
The African Court is based in Tanzania which explains why so many of its cases originate from that state. But it also means that shortcomings in Tanzania’s justice system – like the failure to provide legal defence, and the shocking delay in hearing an appeal in these two cases – are more easily brought to the attention of an outside arbiter. Awkward and irritating to the authorities, perhaps, but it could be viewed differently: as a prod ultimately leading to a justice system that is a model for the rest of the continent.