Gozbert Henerico vs United Republic of Tanzania
On September 15th, 2016, Mr Gozbert Henerico, applicant, filed an application instituting proceedings before the African Court on Human and Peoples’ Rights (ACHPR) for alleged violations of the African Charter on Human and Peoples’ Rights (the Charter) in its Articles 4, 5 and 7.
Mr. Henerico had been tried and convicted for the crime of murder before the High Court of Tanzania, sitting in Bukoba, on April 22nd, 2015, a sentence confirmed by the Court of Appeal on February 26th, 2016. At the time of the filing of the application instituting the proceedings, he was incarcerated in Butimba Central Prison and was awaiting the execution of the death sentence imposed on him.
The applicant did not request provisional measures. However, the Court applied Article 27(2) of the Protocol and Article 51(1) of its Rules of Procedure and concluded that in the present case, circumstances of extreme gravity, urgency and the risk of irreparable harm justified the taking of such measures. In its Order dated November 18th, 2016, the Court ordered the Respondent State to stay the application of the death sentence imposed on Mr. Henerico, emphasising that this decision was without prejudice to its ruling on the merits of the case.
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 March 24th, 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.
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 to the applicant’s alleged violation of his right to a fair trial, protected by Article 7(1) of the Charter, he submits, inter alia, that:
- His right to be tried within a reasonable time (Art. 7(1)(d) of the Charter) was violated: the applicant contended that he had to wait 6 years, 8 months and 19 days before being tried by a court. After examining the facts of the case, the Court concluded that nothing in the matter justified such a length in the proceedings. Accordingly, the Court held that Tanzania had violated the provisions of Article 7(1)(d) of the Charter;
- His right to effective legal representation (s. 7(1)(c) of the Charter) was not respected: the applicant claims to have had very little direct contact with his counsel throughout the proceedings and not to have given his consent to the manner in which he was represented. In the light of the documents submitted, the Court agreed with Tanzania that Mr. Henerico had received free legal aid, that he had had a total of 4 different lawyers and that each of them had the latitude to contact him. Therefore, the ACHPR found no violation by Tanzania in this case;
- His right to be tried by a competent court (Art. 7(1) of the Charter) was violated: the Court concluded that there was no basis for ruling that the national courts did not have jurisdiction to hear the case. This branch of the plea was therefore unable to prosper;
- His right to an interpreter (Art. 7(1)(c) of the Charter, read in conjunction with Article 14(3)(a) of the International Covenant on Civil and Political Rights) was not respected: again, after examining the documents submitted, the Court was not convinced by the applicant’s assertions and was therefore unable to find any violation of the above-mentioned provisions.
- With regard to the alleged violation of the right to life (art. 4 of the Charter), the applicant submitted that the systematic imposition of the death penalty for the crimes deemed most serious (section 197 of the Tanzanian Penal Code) did not allow judges to take into account the particular circumstances of each case and to adjust the penalties incurred. The Court confirms here its settled case-law on the matter and affirms that Section 197 of the Tanzanian Penal Code must be abolished.
- Finally, as regards the applicant’s alleged violation of his right to dignity (Article 5 of the Charter), the Court recalled its settled case-law that any execution by hanging constituted a violation of the right to dignity.
The ACHPR awarded 5 million Tanzanian Shillings to the applicant for non-pecuniary damage suffered and ordered the respondent State to reopen the proceedings before the national authorities.
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.
