Ghati Mwita vs United Republic of Tanzania

On April 24th, 2019, Ms. Ghati Mwita (the Applicant) filed an Application instituting proceedings against the United Republic of Tanzania (the defendant State) before the African Court on Human and Peoples’ Rights (the Court or the ACHPR) for alleged violations of the African Charter on Human and Peoples’ Rights (the Charter) in its Articles 4, 7 and 20.

Mrs. Ghati Mwita had been accused of having sprayed kerosene before setting fire to a fisherman who allegedly committed a theft on February 4th, 2008. The victim had died as a result of his injuries. On the same day, she was arrested and charged before the High Court sitting in Mwanza. In its decision of September 19th, 2011, the High Court found the applicant guilty of murder and sentenced her to death by hanging. This decision was confirmed by the Court of Appeal on March 11th, 2013 and March 19th, 2015. At the time of filing this application, the applicant was being held in Butimba Central Prison.

She accompanied her application initiating proceedings with a request for the indication of provisional measures to stay the execution of that judgment until the ACHPR had ruled on the merits of the case.

The Court issued its order on the latter point on April 09th, 2020 and first verified that it had prima facie jurisdiction to rule on the case in accordance with Article 3(1) of the Protocol of the Court:

  • Tanzania is a party to the Charter and Protocol of the Court and has filed the declaration allowing individuals and NGOs to file applications before the Court. On November 21st, 2019, the Republic of Tanzania deposited the instruments of withdrawal of the Court’s declaration of jurisdiction to receive applications from individuals and non-governmental organizations. In issuing its decision on December 1st, 2022, the Court has been faithful to its consistent jurisprudence of dealing with all cases enrolled in the Registry before the date of entry into force of the withdrawal of the declaration. It therefore proceeded to examine the other conditions for the validity of its jurisdiction;
  • The violations alleged by the Applicants concern rights protected in instruments to which the respondent State is a party.

The Court therefore concludes that it has prima facie jurisdiction to hear this case and has also ascertained the admissibility of the application. Having satisfied these conditions, it ordered the respondent State to stay the applicant’s execution until it had decided on the merits of the case.

Order of 09-04-2020.pdf

As a preliminary point, Tanzania raised objections relating to the lack of jurisdiction of the Court and inadmissibility of the application. After examining the matters, the Court concluded that the case was admissible and declared itself competent to hear it. It then turned to the merits of the case.

  • As regards, first of all, the alleged violation of the right to life (Article 4 of the Charter): the Applicant submits that the Tanzanian courts imposed the death penalty on her without taking into account the circumstances of the case, whereas this punishment should be reserved only for “the most heinous and rare crimes”. It adds that the fact that national judges have no discretion in imposing the death penalty is contrary to the provisions of the Charter. Tanzania counters that, on the one hand, the national courts took into account all the elements of the case before issuing a decision which was confirmed by the higher court. On the other hand, the defendant State asserts that the imposition of the death penalty is in accordance with national legislation, which respects the international commitments undertaken by the State. After examining the pleas put forward, the Court concludes on the first part of the plea that there is no denial of justice or manifest error. As regards the second part of the plea, the Court concludes that the obligation to impose the death penalty in cases of murder without taking into account the mitigating circumstances of the case constitutes a violation of the right to life enshrined in Article 4 of the Charter.
  • As regards the alleged violation of the right to dignity (Article 5 of the Charter): the applicant submits that she suffers from depressive disorders which have been exacerbated by waiting on “death row” to the point of now being considered psychological torture. The defendant State replied that the applicant had not submitted any evidence to support her diagnosis before the national courts. The Court agreed with Tanzania and therefore rejected this plea. The applicant also submits that the method of execution by hanging is “degrading in nature and undermines […] dignity, having regard to the prohibition of cruel, inhuman and degrading treatment”. The Court notes that the final decision against the applicant dates from March 19th, 2015 and that she has therefore been awaiting execution for 7 years. Such a length inevitably caused a degree of suffering that violated his personal dignity, which is a violation of section 5 of the Charter.
  • As regards the violation of the right to a fair trial (Article 7 of the Charter), the applicant claims that the period between her arrest and her trial was unjustifiably extended, which Tanzania disputes. The Court notes that the period of 2 years and 9 months which elapsed between the applicant’s arrest and the commencement of her trial constitutes an unjustified delay in the proceedings and thus a violation of Article 7.1. (d) of the Charter. However, the 9 months and 16 days it took to finalize the proceedings at first instance are not disproportionate to the proceedings. It subsequently rejected the applicant’s submissions on the grounds relating to the presumption of the principle of innocence, the bias of the courts against her, the lack of evidence beyond reasonable doubt and the right to effective representation.

In so far as the Court found that Tanzania had violated certain provisions of Articles 4, 5 and 7 of the Charter, it follows that the defendant State also violated Article 1 of the Charter. The State is required to pay the Applicant the sum of 7 million Tanzanian shillings in respect of non-pecuniary damage suffered by the applicant within one year and must within one year take all necessary steps to retry the applicant in respect of the applicant’s conviction through a procedure which does not allow for the mandatory imposition of the death penalty and maintains the discretion of the justice.

Judgement of 01-12-2022.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.