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Kennedy Owino Onyachi and Charles John Njoka Mwanini vs Republic of Tanzania Case

On January 7th, 2015, the applicants, both Kenyan citizens, submitted to the African Court on Human and Peoples’ Rights (the Court) an application instituting proceedings against the Republic of Tanzania for alleged violations of the African Charter on Human and Peoples’ Rights (the Charter) in its Articles 1 and 7. At the time of the application, Misters Onyachi and Mwanini were serving a 30-year prison sentence for aggravated robbery at Ukonga Central Prison in Dar es Salaam, Tanzania.

They were arrested and tried in Kenya for robberies allegedly committed in Tanzania in November 2002. The extradition request made by the Tanzanian authorities was admitted by the Nairobi Court of First Instance on March 21st, 2003. Despite the applicants’ 14-day opportunity to appeal this decision, they were both taken to Tanzania on March 22nd, the day after the judgment. Their close relatives started the action in their place.

Once there, they were presented to the local press before being taken to the Central Police Station. As the proceedings were ongoing, Misters Onyachi and Mwanini were tried for conspiracy to commit a criminal act and armed robbery. By judgment of March 11th, 2005, the two applicants were acquitted of the charges against them. However, they were brought back to their cells and tried on other charges they describe as fabrication. The High Court of Tanzania denied the applicants’ acquittal and sentenced them to 30 years in prison. Their appeal was rejected by the Court of Appeal on December 24th, 2009 and upheld the judgment of the High Court of Tanzania. Both applicants received a copy of the judgment in 2011. It is therefore this 30-year sentence that they were serving at the time they brought the present application before the Court.

Mr. Onyachi and Mr. Mwanini maintain that the Republics of Kenya and Tanzania both violated all recognized principles of international law and that extradition to Tanzania was illegal since at the time of the facts there was no extradition convention between Kenya and Tanzania. Moreover, they claim that their conviction is unlawful and contrary to section 7(2) of the Charter.

As a preliminary point, the respondent State raised objections to the Court’s lack of material and personal jurisdiction and to the inadmissibility of the application. In its judgment dated September 28th, 2017, the Court affirmed that it had jurisdiction to hear this case and that the application was indeed admissible insofar as it fulfilled all the criteria set out in Article 40 of the Rules of Court.

The Court then examined the applicants’ claims in turn:

  • Regarding the allegation of a violation of the right to a fair trial protected by Article 7 of the Charter, which has several parts:
    • The illegality of their extradition to Tanzania as well as the deprivation of their right to appeal the March 21st, 2003 decision: on this point, the Court affirms that it was Kenya that decided to extradite its nationals. However, the country is not a party to this institution. Therefore, Tanzania has not violated Article 7(1)(a) of the Charter.
    • The publication by the media of their photos prior to the identification session by the witnesses: after examination, the Court concluded that the procedural irregularities were sufficient to demonstrate a violation of Article 7(1) of the Charter;
    • Respect of their right to the presumption of innocence: after examining the arguments raised, the Court determined that the rights of the defence had indeed been infringed in accordance with Article 7 (1) (c) of the Charter;
    • The conviction and sentencing of the applicants which would be contrary to section 7(2) of the Charter: the Court rejected this argument;
    • Finally, the Court recognised that the delay in the transmission of copies of the judgment and the failure to provide free legal aid to the applicants constituted a violation of Article 7(1) of the Charter.
  • Regarding the allegation of arbitrary arrest in violation of Article 6 of the Charter, the Court first confirmed that it could not respond to the allegation concerning the excessive length of initial police custody since Kenya was not a party to the Charter. The judicial authority then concluded that the applicants’ right to liberty under Article 6 of the Charter had been violated by Tanzania when it arbitrarily re-arrested the applicants for the same crimes for which they had been acquitted.
  • Finally, as regards the allegations of a violation of Articles 3 and 5 of the Charter, the Court considered that the evidence submitted did not support the applicants’ contentions.

The Court reserved the question of reparations at a later stage.

Judgment of 28-09-2017.pdf

By order of July 20th, 2021, the Court decided to reopen the case to rule on the issue of reparations.

Order of 20-07-2021.pdf

In its judgment of September 30th, 2021 on reparations, the Court decided to award five million Tanzanian Shillings to each of the applicants.

Judgment of 30-09-2021.pdf

This summary is provided for informational purposes only, does not involve the responsibility of Dome and should in no way be used as a substitute for a careful reading of the judgment and order of the case.