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Kenya Law / Blog / Case Summary: A violation of article 7 (1) (d) of the Banjul Charter on the right of each individual to be afforded a fair trial can be remedied by article 27 (1) that encourages the court to make appropriate orders, including the payment of fair compensation or reparation

A violation of article 7 (1) (d) of the Banjul Charter on the right of each individual to be afforded a fair trial can be remedied by article 27 (1) that encourages the court to make appropriate orders, including the payment of fair compensation or reparation

RR v United Republic of Tanzania [2021]

Application No. 035/2016

The African Court on Human and Peoples’ Rights

Tchikaya B, VP & J; Kioko B, Achour R, Mengue S, Mukamulisa T, Chizumila T, Bensaoula C, Anukam S, Ntsebeza D, Sacko M, JJ

December 2, 2021

Report by Faith Wanjiku and Bonface Nyamweya

Download the Decision

Constitutional Law-Bill of Rights- right to fair trial within a reasonable time-failure of the court to try a person within a reasonable time-whether the respondent State’s almost ten year delay for the trial amounted to the failure of the realization of the fundamental right to fair trial within a reasonable time- whether there was breach of the right-whether there were constitutional damages accruing from the respondent State’s failure- whether the applicant was entitled to another remedy other than constitutional damages- African Charter on Human and Peoples’ Rights, 1981, article 7 (1)(d); Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and People’s Rights, 1998, article 27 (1).

Constitutional Law- violation of constitutional rights – appropriate reliefs- whether constitutional damages would be appropriate relief in that case- whether the 5, 000, 000 Tanzanian shillings as reparation for moral prejudice in relation to the inordinate delay of the applicant’s appeal would be appropriate relief-Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and People’s Rights, 1998, article 27 (1); Rules of Court, 2020, rule 32.

Civil Practice and Procedures-judgement-default of the court-conditions for default of the court- where the respondent State failed to file a response within the stipulated time-Whether the court was justified to proceed to deliver the judgement in default since the respondent State failed to file a response within the stipulated time- Rules of Court, 2020, rule 63 (1).

Brief facts

The applicant had been charged with sodomizing a child who was one year and five months old. He was convicted and sentenced to the statutory penalty of life imprisonment. The applicant alleged that he appealed against his conviction and sentence at the High Court of Tanzania at Dar es Salaam.

He contended that the hearing of his appeal began on April 15, 2009 but was pending at the time of filing the appeal on June 8, 2016. On September 1, 2017, the respondent State transmitted its list of representatives but failed to file its response despite the fact that it was sent a reminder in that regard on January 24, 2017; December 7, 2017; August 6, 2018; September 25, 2018; November 26, 2018; February 20, 2019; and July 9, 2020. In addition, the respondent State was informed on September 25, 2018 and March 20, 2019 that if it failed to file a response within the stipulated time, the court would proceed to deliver a judgement in default.

On August 6, 2018, the court requested the applicant to file submissions on reparations but the applicant failed to do so, despite having been sent reminders on November 26, 2018, January 29, 2019, February 19, 2019 and July 30, 2020. On September 26, 2018 the High Court of Tanzania delivered its judgement whereby the appeal was allowed, the conviction quashed, hence the life imprisonment set aside and an order for his release made.

Issues:

i. Whether the court was justified to proceed to deliver the judgement in default since the respondent State failed to file a response within the stipulated time.

ii. Whether there was a breach of the right to fair trial within a reasonable time by the respondent State’s delay in the hearing of the applicant’s case.

iii. Whether the applicant was entitled to any other remedy other than constitutional damages for the breach of his right to fair trial within a reasonable time.

Relevant provisions of the law

African Charter on Human and Peoples’ Rights, 1981 (the Banjul Charter)

Article 7

(1)Every individual shall have the right to have his cause heard. This comprises: (d) The right to be tried within a reasonable time by an impartial court or tribunal.

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and People’s Rights, 1998

Article 3- Jurisdiction

(1) The Jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned.

(2) In the event of a dispute as to whether the Court has jurisdiction, the Court shall decide.

Article 6- Admissibility of Cases

(2) The Court shall rule on the admissibility of cases taking into account the provisions of article 56 of the Charter.

Article 22- Exclusion

If a judge is a national of any State which is a party to a case submitted to the Court, that judge shall not hear the case.

Article 27-Findings

(1) If the Court finds that there has been violation of a human or peoples’ right, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation.

Article 34-Ratification

(6) At the time of the ratification of this Protocol or any time thereafter, the State shall make a declaration accepting the competence of the Court to receive cases under article 5 (3) of this Protocol. The Court shall not receive any petition under article 5 (3) involving a State Party which has not made such a declaration.

Rules of Court, 2020

Rule 9-Inability to Sit, Exemption and Withdrawal

(2)In accordance with Article 22 of the Protocol, a Judge who is a national of a State that is party to a case shall not hear that case.

Rule 32-Legal Costs

(2)Unless otherwise decided by the Court, each party shall bear its own costs, if any.

Rule 49-Examination of Jurisdiction and Admissibility

(1)The Court shall conduct preliminary examination of its jurisdiction and the admissibility of an Application in accordance with the Charter, the Protocol and these Rules.

Rule 50-Admissibility of Applications

(1)The Court shall ascertain the admissibility of an Application filed before it in accordance with Article 56 of the Charter, Article 6 (2) of the Protocol and these Rules.

(2)Applications filed before the Court shall comply with all of the following conditions:

a) Indicate their authors even if the latter request anonymity;

b) Are compatible with the Constitutive Act of the African Union and with the Charter;

c) Are not written in disparaging or insulting language directed against the State concerned and its institutions or the African Union;

d) Are not based exclusively on news disseminated through the mass media;

e) Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged;

f) Are submitted 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 seised with the matter; and

g) Do not deal with cases which have been settled by those States involved in accordance with the principles of the Charter of the United Nations, or the Constitutive Act of African Union or the provisions of the Charter.

Rule 63-Decision in Default

(1) Whenever a party does not appear before the Court, or fails to defend its case within the period prescribed by the Court, the Court may, on the Application of the other party, or on its own motion, enter a decision in default after it has satisfied itself that the defaulting party has been duly served with the Application and all other documents pertinent to the proceedings.

 

Held by majority

  1. The respondent State was duly notified because the application was filed on June 8, 2016. From September 7, 2016 (the date of service of the application on the respondent State) to the date of the close of pleadings, the registry notified the respondent State of all the pleadings submitted by the applicant.
  2. The respondent State failed to defend its case within the prescribed time. The respondent State was granted sixty days to file its response but it failed to do so within the time allocated. Even after the court sent seven reminders to the respondent State, it did not file its response.
  3. The court could render a judgement in default either suo motu or on request of the other party. The applicant having not requested for a default judgement, the court decided suo motu for the proper administration of justice to render the judgement by default.
  4. The claims made by the applicant sought to protect his rights guaranteed under the Charter. Article 3(h) of the Constitutive Act of the African Union was after the promotion and protection of human and peoples’ rights. The application was thus deemed compatible with the Constitutive Act of the African Union and the Banjul Charter and met the requirements of rule 50 (2) (b) of the Rules of Court.
  5. The application was not based exclusively on news disseminated through the mass media. The court had established in its case law that the local remedies that had to be exhausted by the applicants were ordinary judicial remedies unless they were manifestly unavailable, ineffective and insufficient or the proceedings were unduly prolonged.
  6. The applicant pursued local remedies by appealing against his conviction and sentence to the High Court registry on June 7, 2012; May 10, 2013; September 20, 2013; October 3, 2013; November 18, 2013; September 16, 2014; and August 3, 2015.
  7. The applicant received a response from the deputy registrar of the High Court on August 12, 2015 indicating that he had to be patient and that the High Court would find a solution to his grievance.
  8. At the time of filing the application, his appeal had not been determined. That was about seven years later. Also, the respondent State did not take part in the proceedings before the court and consequently did not respond as to why it took so long for the applicant’s appeal to be determined, yet there was nothing on record to indicate that the matter was fraught with complexity. It was evident that, the delay could not be attributable to the applicant since he sent seven letters of enquiry to the respondent State regarding the delay in the finalisation of his appeal.
  9. The appeal in the domestic courts which had not been decided after the lapse of seven (7) years indicated that local remedies were unduly prolonged. In those circumstances, the applicant could not have exhausted local remedies and thus fell within the exception under rule 50(2)(e) of the Rules of Court.
  10. The rule only required an application to be filed within a reasonable time from the date local remedies were exhausted or from the date set by the court on being the commencement of the time limit within which it had to be seized with the matter.
  11. The reasonableness of the period for seizure of the court depended on the particular circumstances of each case and had to be determined on a case-by-case basis. The applicant was unable to exhaust the local remedies because they were unduly prolonged.
  12. The applicant did not concern a case which had already been 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 Banjul Charter or of any legal instrument of the African Union in fulfilment of rule 50(2)(g) of the Rules of Court. The various factors needed to be considered when assessing whether justice was dispensed within a reasonable time, in accordance with article 7(1)(d) of the Charter included the complexity of the matter, the behaviour of the parties, and the conduct of the judicial authorities who bore a duty of due diligence.
  13. The applicant filed his appeal in 2008. The hearing commenced on April 15, 2009 but was not finalized until September 26, 2018. That amounted to a period of almost ten years. There was nothing on record to show that the case involved complex issues that required such a long time to finalize his appeal. The period of almost ten years which the High Court took to determine the appeal of the applicant was unreasonable because of lack of diligence on the part of the national authorities. The respondent State had violated the applicant’s right to be tried within a reasonable time, contrary to article 7(1)(d) of the Banjul Charter.
  14. For reparations to be granted, the respondent State had first to be intentionally responsible for the wrongful act. Second, causation had to be established between the wrongful act and the alleged prejudice. Where it was granted, reparation had to cover the prejudice suffered. The applicant bore the onus to justify the claims made.
  15. With respect to moral prejudice, the quantum assessment had to be undertaken in fairness and by looking at the circumstances of the case. The applicant’s right to be tried within a reasonable time was violated and the applicant suffered emotional distress due to the unduly prolonged wait for a decision on his appeal and therefore awarding the applicant the sum of 5, 000, 000 Tanzanian shillings would be an appropriate remedy.
  16. The applicant requested for a decision in his favour and requested to be granted appropriate relief. The court had the power to order appropriate measures to remedy situations of human rights violations, including ordering the respondent State to take the necessary measures to vacate the applicant’s conviction and sentence as well as to release him.
  17. By the judgement of September 26, 2018, the High Court allowed his appeal, quashed his convictions, and ordered his release. Given the extent of the time which the applicant waited for his exoneration, it was appropriate for the respondent state to publish the judgement.

Application allowed; each party to bear its own costs.

Orders

(i) The respondent State was to publish the judgement within a period of three months from the date of notification, on the websites of the Judiciary and the Ministry for Constitutional and Legal Affairs, and to ensure that the text of the Judgment remained accessible for at least one (1) year after the date of publication.

(iii) The respondent State was to pay 5, 000, 000 Tanzanian shillings as reparation for moral prejudice in relation to the inordinate delay of the applicant’s appeal.

(iv) The respondent State to pay the amount indicated under sub-paragraphs

(iv) free from taxes within six months, effective from the notification of that judgment, failing which it would pay interest on arrears calculated on the basis of the applicable rate of the Bank of Tanzania throughout the period of delayed payment and until the accrued amount was fully paid.

(v) The respondent State to submit to the court within six months from the date of notification of the judgment, a report on the status of implementation of the decision set forth therein and thereafter, every six (6) months until the Court considers that there had been full implementation thereof.

Per Tchikaya B, J (Dissenting opinion)

  1. On the reparation granted to the applicant, the damages awarded, were completely dissociated from the original offence, and the amount to be paid by the respondent State was set separately from and independently of the original offence. The court’s intervention in relation to the violation attributed to the State had to be on the basis of reparation not compensation.
  2. The payment of money was only one of the options needed. The idea of forms of reparations could not be without a purpose. The court could not be locked into a specific nature and scope of reparations awarded to applicants who were victims of violations.
  3. Common law had engendered a punitive system in the international treatment of reparations owed by states. It entailed the award of a sum of money, distinct from any reparation stricto sensu, (in strict sense) as punitive damages to the victim of a violation. The aim was to punish the state responsible, and to prevent any violations. However, that measure was short sighted, and that could be the case of the court’s situation in the matter of reparation.
  4. In the practice of the court, awarding financial compensation appeared to be the preferred form of reparation. That could not obscure the sociological and collective nature of other forms of reparation such as full restitution, when necessary. In that case, satisfaction gave rise to a variety of possible reparations, regulatory and practical, public or individual. The solemn pronouncement of the violation and its recognition by the respondent State could constitute effective means of reparation. A decision of the court already constituted a sufficient form of reparation.
  5. Various forms of reparation were appropriate and feasible by the state in favour of a victim. The proclamation of the amount to be paid was only one of them. The aim was to avoid awarding sums of money that often had no impact on the collective and individual outcomes of violations.

Relevance to Kenya’s legal system

Kenya is a state party to the African Charter on Human and Peoples’ Rights having ratified it in January 23, 1992 and the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights having ratified it on February 4, 2004 hence the decisions of the African Court on Human and Peoples’ Rights form part of Kenyan law as per article 2 (6) of the Constitution of Kenya, 2010.

The right to fair trial within a reasonable time is ensconced in article 25 (c) that talks of the right to fair trial, 50 (1) that illustrates about fair hearing, and 50 (2)(e) that strictly advocates for the trial to begin and conclude without unreasonable delay. Article 50 (2)(d) explains on public trial before a court established under the Constitution of Kenya 2010, and (q) says that if convicted, a person can appeal, or apply for review by, a higher court as prescribed by law. Article 159 (2) (b) is eloquent that justice shall not be delayed.

The Civil Procedure Rules, 2010 order 1, rule 11 evinces on government proceedings, rule 12 gives elaboration on the conduct of suit, rule 16 clarifies on notice to the government as third party while rule 18 expounds on the default of appearance by the government as 3rd party. Order 5, rule 33 is about the general powers of the court. Order 10, rule 8 enlightens us about judgement in default against the government.

The Criminal Procedure Code 2010 (Rev 2012) in section 348A talks of the right to appeal against acquittal, order of refusal or order of dismissal. Section 350 highlights on the petition of appeal and section 351 talks of the appellant in prison. Section 171 presents the power to award costs against accused and section 172 shows the right of appeal from order as to costs. The Government Proceedings Act 1981 (Rev 2015) in section 3 talks of the right to sue the government, section 16 explains on the nature of relief and section 30 sets out the Rules of court.

In Nzoia Sugar Company Ltd v West Kenya Sugar Ltd [2020] eKLR, the court established that the delay of two years in prosecuting the matter was inordinate and unreasonable. In Invesco Assurance Co. Ltd v Oyange Barrack [2018] eKLR, the court invoked order 17 rule 2 (3) of the Civil Procedure Rules that gave the court the discretion to discuss the case where no action had been taking place for one year and on application by a party since justice delayed without explanation is justice denied and delay defeats equity.

Pursuant to the aforementioned provisions it is evident that this case of the African Court of Human and Peoples’ Rights supplements Kenya’s jurisprudence.

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