Court saves four convicts’ skin, overturns 30-year jail terms

FAUSTINE KAPAMA

FOUR people, including two Tanzanians currently serving 30-year jail terms for armed robbery, have won a case they lodged before the African Court on Human and Peoples’ Rights (AfCHPR), which is sitting in Arusha City.

The Court clarified in judgments issued last week, relating the two Tanzanians, Alex Thomas and Mohamed Abubakari, that the expression “all necessary measures” it had stated in previous decisions includes their release from prison and any other measure that would help erase the consequences of the violations of rights established.

Under its President Justices Sylvain Ore, the Court found Tanzania to have violated Articles 1 and 7(1) (a), (c) and (d) of the African Charter on Human and Peoples’ Rights and Article 14(3)(d) of the International Covenant on Civil and Political Rights.

“Consequently (Tanzania) should take all necessary measures to remedy these violations,” the Court also composed of Ben Kioko, as Vice-President and Judges Gerald Niyungeko, El Hadji Guisse, Rafaa Ben Achour, Solomon Bossa and Angelo Matusse, Ntyam Mengue, Marie-Thérèse Mukamulisa, Tujilane Chizumila, Chafika Bensaoula, declared.

The Court further prohibited the East African nation to retry the applicants or re-open their defence cases, because doing so would result in prejudice to the two Tanzanians, who have already served more than half of their respective custodian sentences imposed against them.

According to the two judgments, Thomas has already served 21 years of his 30-year prison sentence, while Abubakari has by now remained behind bars for 19 years out of 30 imposed on him.

The Court’s decisions comes after Tanzania had sought some clarifications on a number of issues following previous judgments that had been issued in favour of the two (Alex Thomas and Mohamed Abubakari) on November 20, 2015 and June 3, 2016, respectively.

Other individuals who also won their cases are two Kenyans, Kennedy Owino and Charles Njoka, who were also sentenced to 30 years imprisonment for armed robbery at CRDB Bank of over 3bn/- in 2002.

In its judgment in their favour, the Court found the United Republic of Tanzania, as respondent, to have violated Articles 3, 5, 7 (1) (a), 7(1) (b) and 7(2) of the African Charter on Human and Peoples’ Rights and violation on Articles 1, 6 and 7(1), and 7(1)(c) of the Charter.

“(The Court) orders the Respondent State to take all necessary measures that would help erase the consequences of the violations established, restore the pre-existing situation and re-establish the rights of the applicants (Kennedy Owino and Charles Njoka)”, the justices declared.

Such measures, according to the justices, could include the release of the applicants and the respondent should inform the Court within six months, from the date of this judgment of the measures taken.

However, another Tanzanian, Christopher Jonas, who had also petitioned the Court against the respondent State, lost his case following dismissal of a number of issues he had complained of against his conviction of armed robbery and 30 years custodian sentence.

The Court dismissed his allegation that he had been charged and convicted on the basis of a single deposition, which does not corroborate the particulars on the charge sheet, and held that there was no violation of Article 7 (1) (c) of the Charter in such regard.

Furthermore, the Court found that the national courts evaluated the evidence given in conformity with requirements of fair trial within the meaning of Article 7 of the Charter and declined to annul decisions in respect of conviction and sentence rendered by national courts for lack of jurisdiction to do so.

In the same decision, however, the Court established that the applicant was denied his right to free legal assistance, in violation of Article 7(1) (c) of the Charter, and, therefore, it found Tanzania to have consequently violated her obligation under Article 1 of the Charter.

Under such circumstances, the Court referred to Rule 63 of the Rules, which provides that “the Court shall rule on the request for the reparation by the same decision establishing the violation of a human and people’s rights, or if the circumstances so require, by a separate decision”.

The Court, therefore, requested the applicant to submit to the Court his Brief on other forms of reparations within thirty days of receipt of the judgment and also requested Tanzania to submit to the Court its response on reparations within thirty days of receipt of the applicant’s brief.