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Mgosi Mwita Makungu vs United Republic of Tanzania

On January 29th, 2016, Mr. Mgoso Mwita Makungu (the Applicant) filed before the African Court of Human and Peoples’ Rights (the Court or the ACHPR) a application instituting proceedings against the United Republic of Tanzania for alleged violations of the African Charter of Human and Peoples’ Rights (the Charter) in its articles 2, 3 and 7.

Mr. Makungu had been tried and sentenced to 30 years’ imprisonment for robbery with assault in two cases, tried successively in 1995 and 1996 before the Bunda District Court. He had indicated his intention to appeal these decisions by filing notices of appeal within the legally prescribed time limits in April and June 1996. In order to carry out these proceedings, he wished to receive certified copies of the transcripts of the hearings and judgments in the two cases and sent several requests to the competent authorities to this effect. At the time this application was filed before the Court, Mr. Mukungu had spent 20 years in prison and had been unable to appeal.

The applicant accompanied his application with a request for the indication of provisional measures for the Government of Tanzania to produce the records of hearings and judgements in the two cases concerning him. The Court considered that such request dealt with the merits of the case and therefore decided to reject the request.

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 June 23rd, 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, the alleged violation of the right to appeal, the applicant submits that the failure to obtain the records of hearings and judgments in the two cases for which he was convicted made his appeal impossible and constitutes a violation of his right to a fair trial (Article 7 of the Charter). The Tanzanian Government, for its part, submitted that the applicant had the possibility of filing a motion for unconstitutionality to safeguard his rights before the High Court of Tanzania. The Court concluded that it is apparent from the evidence provided that the applicant had tried over the years to obtain the documents necessary for his appeal both before the Bunda Court and the High Court of Appeal. Moreover, it appears that he tried to bring the appeal proceedings without these documents but that he was unsuccessful, as the court required the production of these documents. Accordingly, the ACHPR concluded that Tanzania had indeed violated the applicant’s right to appeal.

As regards, then, the alleged violation of the right to equality before the law and equal protection of the law (Article 3 of the Charter), the applicant submitted that the failure or negligence to produce records of hearings and judgments constituted violations of his rights, which Tanzania denied. The Court notes that it is for the applicant to prove his allegation, which he has failed to do. The respondent State therefore did not violate Article 3 of the Charter.

Finally, as regards the alleged violation of the right to non-discrimination (Article 2 of the Charter), the applicant submitted that the treatment to which he had been subjected constituted discrimination before the law. The Tanzanian Government refutes those allegations, noting that the applicant does not prove his argument. After examining the documents provided, the Court ruled in favour of the Tanzanian State.

In the light of the circumstances deemed exceptional by the Court,it  ordered the applicant’s release within 30 days of that decision and reserved the question of reparations.

Judgment of 07-12-2018.pdf

In its judgment of June 23rd, 2022, the Court awarded the victim the sum of 35,807,421 Tanzanian Shillings in compensation for the damage suffered.

Judgment of 23-06-2022.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.