Have his cause heard (fair trial)

Anudo v United Republic of Tanzania (Application No. 012/2015) [2018] AfCHPR 5; (22 March 2018)

The Court considered an application arising from the denial of nationality to and expulsion from the Respondent State of the Applicant, a person who claims citizenship of the Respondent State. Objections to jurisdiction and admissibility were dismissed. The Court held that the Applicant had exhausted all remedies referred to in the relevant immigration legislation and judicial review was not functionally available once he had been expelled.

The Court held that the Applicant had been arbitrarily deprived of his nationality in violation of Art 15(2) of the Universal Declaration of Human Rights. In light of the documentary evidence of nationality and residence provided by the Applicant, and the Respondent State’s failure to carry out a DNA test, the Court found that the Respondent State did not discharge its burden of proof of its claim that the Applicant is not a citizen. The Court held that the Applicant was expelled arbitrarily in violation of Art 12(2) of the African Charter on Human and Peoples' Rights which includes the right to ‘to return to his country’. A State may not, by deporting a person to a third country, prevent that person from returning to his own country. Even if the Applicant had been an illegal alien, when expelling him into Kenya it failed to take the necessary measures to prevent the Applicant from being in a situation of statelessness as required by Art 13 of the ICCPR.  The Court held that the Applicant was deprived of his right to be heard in violation of Art 7 of the Charter and Art 14 of the ICCPR. The relevant Immigration Act purports any decision of the Minister to be final; and in any event judicial review was not functionally available once he had been expelled. The Court ordered the Respondent State to amend its immigration legislation, and to take all necessary steps to restore the Applicant’s rights including return to national territory.

Isiaga v Republic of Tanzania (Application No. 032/2015) [2018] AfCHPR 4; (21 March 2018)

The Court considered an application from the Applicant, a convicted and imprisoned person, for the quashing of a criminal conviction and his release from prison by the Respondent State. The Court considered whether the use of visual evidence during the Applicant’s criminal trial, and the failure of the Respondent to provide free legal aid, constituted a breach of his right to a fair trial within the scope of Art 7 of the African Charter on Human and Peoples' Rights.

The Court held that its role is not to review evidence, but to determine whether the domestic procedures fulfilled international human rights standards with regards to the use and evaluation of that evidence.  The Court held that in this case, the record does not disclose any manifest error or miscarriage of justice. The Court held that while the Charter does not expressly prescribe the right to free legal assistance, free legal aid is a right intrinsic to the right to a fair trial and the right to defence in Art 7(1)(c) of the Charter. The Court held that the Respondent’s failure to provide free legal aid, therefore, violated this right. Accordingly, the Court ordered the Respondent State to take all necessary measures to remedy the violations. The Court did not grant the Applicant’s prayer to have his conviction quashed and to be released from prison.

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