Mhina Zubery vs United Republic of Tanzania

On September 2nd, 2016, Mr. Mhina Zubery, applicant, filed an application instituting proceedings against the United Republic of Tanzania before the African Court of Human and Peoples’ Rights (the Court of the ACHPR) for alleged violations of the African Charter on Human and Peoples’ Rights (the Charter) in its articles 3 and 7.

The applicant had been tried and sentenced by the Muheza District Court to 30 years’ imprisonment on September 30th, 2014, for raping a 10-year-old girl. He had appealed this decision successively to the High Court of Tanzania and the Court of Appeal, both of which sitting in Tanga. The two courts had successively upheld the judgment of the District Court. At the time of the initiation of the present proceedings, Mr Zubery was incarcerated in Maweni Central Prison.

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 February 26th, 2021, 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:

First of all, as regards to the alleged violation of the right to a fair trial (Article 7. 1). (c) of the Charter), the applicant claims that he did not receive legal aid, which in turn did not allow him to mount a proper defence for himself. Tanzania countered that legal aid was automatic in the context of murder or homicide, but that the aid system was being revised in the country. The Court notes that in the present case the alleged offence was serious and carried heavy penalties, that the applicant was indigent and therefore did not have the means to have access to judicial representation and that the interests of justice required that he be assisted by counsel. As Tanzania failed to provide such assistance, it has therefore violated the provisions of Article 7.1. (c) the Charter.

Next, as regards to the alleged violation of the right to a hearing of his case (Article 7.1.( (c) of the Charter), the applicant submits that he was deprived of the right to call defence witnesses as accused, appellant or applicant. The Respondent State notes that there is nothing in the record to indicate that the respondent wished to have another person heard to substantiate his allegations. After examining the elements provided, the Court concluded that there was nothing to suggest that the applicant had wished to have persons other than himself heard; the means cannot therefore prosper.

Finally, as regards to the inadequate assessment of the evidence submitted, the applicant claims that the Court of Appeal erred in law and in fact in considering the statements of the prosecution witness PW1 to be credible and reliable when the factual evidence did not corroborate that sentiment. Tanzania refutes this allegation. The Court concludes that, in the light of the documents produced, there was no material error or prejudicial denial of justice to the applicant.

The Court awarded the applicant 300,000 Tanzanian Shillings in compensation for the violation of his right to legal aid. This sum must be paid within 6 months of the publication of this decision.

Judgment of 26-02-2021.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.