333/06 : Southern Africa Human Rights NGO Network and Others /
Tanzania
Summary of Facts
1. The Secretariat of the African Commission on Human and Peoples’ Rights, (the Secretariat)
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received a Communication on 17 November 2006 from the Southern Africa Human Rights NGO
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Network-Tanzania and its member organisations (the Complainants).
2. The communication is submitted against the United Republic of Tanzania (hereafter referred to as
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the Respondent State), State Party to the African Charter on Human and Peoples’ Rights (the African
Charter). The communication is submitted under Article 55 of the African Charter.
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3. The Complainants submit that on 22 June 1994, the High Court of Tanzania rendered a decision
in the case of R v. Mbushuu alias Dominic Mnyaroje and Kalai Sangula, (the Mbushuu’ case) where it
found that the death penalty in Tanzania is unconstitutional on the grounds that the way the sentence
is executed (by hanging) violates the right to dignity of a person as protected under Article 13.6.d of
the Constitution of the United Republic of Tanzania and constitutes an inherently cruel, inhuman and
degrading treatment outlawed by Article 13(6)(e) of the same.
4. As a result of the above reasoning, Hon. Justice Mwalusa sentenced the accused persons
(Mbushuu alias Dominic Mnyaroje and Kalai Sangula) to life imprisonment instead of the compulsory
capital punishment for the crime of murder.
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5. The Complainants further submit that the Tanzanian Government appealed the decision of the
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High Court before the Court of Appeal. They state that on 30 January 1995, the Hon. Justices of the
Court of Appeal: Makame, Ramadhan and Lubuva overturned the High Court decision rendered by
Justice Mwalusa and found that the death penalty is constitutional because it is saved by claw back
clauses provided in the Tanzanian Constitution.
6. The Court of Appeal held that the death penalty is permissible under international human rights
instruments, has effective deterrence effect, is accepted by the public, is economically cheaper to
execute than to serve a life imprisonment and is compatible with the Constitutions and practices of
other State Parties to the African Charter. The Court further held that in the event of a conflict between
domestic law and international law, the domestic law prevails.
7. The Complainants refuted each of the grounds of the decision rendered by the Court of Appeal on
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30 January 1995.
Complaint
8. The Complainants allege that the decision of the Tanzanian Court of Appeal is a violation of Article
4 of the African Charter.
9. The Complainants request the African Commission to declare that the Court of Appeal’s decision
violates Article 4 of the African Charter and that the circumstances of death penalty executions in
Tanzania by hanging violates other relevant articles and other international norms against torture
recognised by the African Commission.
Procedure
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10. The complaint, dated 17 November 2006, was received at the Secretariat on 25 November
2006.
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11. During the 40 Ordinary Session of the African Commission held in Banjul, The Gambia, from
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15 to 29 November 2006, the African Commission considered the communication and decided to be
seized of it.
12. By Note Verbale ACHPR/LPROT/COMM/333/2006/RWE dated 21st December 2006, the
Secretariat informed the Respondent State of this decision and requested it to provide, within three
months from the date of notification, its submissions on the admissibility of the communication.
13. By letter ACHPR/LPROT/COMM/333/2006/RWE dated 21st December 2006, the Secretariat also
informed the Complainants of this decision and requested it to forward its submissions on the
admissibility of the communication within three months.
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14. On 8 May 2007, the Secretariat received a Note Verbale CHD 87/738/01/04 forwarding
submissions on admissibility from the Respondent State.
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15. By Note Verbale ACHPR/LPROT /COMM/333/2006/SN dated 18 July 2007, the Secretariat
acknowledged receipt of the Respondent State’s submissions on admissibility and informed the latter
of its decision during the 41st Ordinary Session to defer its decision on admissibility of the case in
order to study the Respondent State’s submissions on admissibility.
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16. By letter ACHPR/LPROT /COMM/333/2006/SN dated 16 July 2007, the Secretariat transmitted
the Respondent State’s submissions on admissibility to the Complainants and informed the latter of
the African Commission’s decision during the 41st Ordinary Session to defer its decision on
admissibility in order to study the Respondent State’s submissions.
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17. By letter ACHPR/LPROT/COMM/333/06/TZ, dated 11 December 2008, both parties were
informed by the Secretariat that the African Commission deferred its decision on admissibility to its
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45 Ordinary Session in order to allow both parties submit additional arguments on admissibility.
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18. During the 45 Ordinary Session of the African Commission, the communication was deferred to
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the 46 Ordinary Session.
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19. On 5 March 2009, the Respondent State submitted additional arguments on admissibility.
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20. By Note Verbale ACHPR/COMM/333/06/TZ/0.2/148.09, dated 18 March 2009, the Secretariat
acknowledged receipt of the Respondent State’s additional submissions.
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21. By letter ACHPR/COMM/333/06/TZ/0.1/147.09, dated 18 March 2009, the Secretariat forwarded
the Respondent State’s additional submissions on admissibility to the Complainants, and requested
the latter to submit their additional submissions on admissibility.
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22. By letter ACHPR/COMM/333/06/TZ/0.2/864.09 dated 5 November 2009, the Secretariat sent a
reminder to the Complainant requesting for its additional submissions on admissibility, including
clarifications on specific issues such as the delay in bringing the matter to the African Commission.
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23. By letter ACHPR/COMM/333/06/TZ/0.3/938.09 dated 3 December 2010, the Secretariat
informed the Complainants of the African Commission’s decision to defer the decision on the
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admissibility of the communication during its 46 Ordinary Session to the 47 Ordinary Session,
pending additional information that was requested.
Law
Admissibility
Submissions on Admissibility
Complainant’s submissions on Admissibility
24. The Complainants submit that they have fulfilled all the requirements under Article 56 of the
Charter, including the fact that all domestic legal remedies have been exhausted. They indicate that
the Tanzanian Court of Appeal is the highest and final court in the country.
25. The Complainants further submit that the case has neither been heard nor decided by any other
international or regional body, and call on the African Commission to act on the Complaint with
urgency because death penalty convicts or persons awaiting trial on crimes punishable by compulsory
death penalty in the country may be subjected to suffer death by hanging.
Respondent State’s submissions on admissibility
26. The Respondent State indicates in its submissions that the list containing the names of the other
members who are joint authors of the communication was not communicated to them.
27. The Respondent State affirms that the Court of Appeal is the highest court of the land, adding
that this Court did find that the death penalty is provided for by Article 30(2) (c) of the Constitution and
that it is not a claw back clause.
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28. The State further asserts that the 14 Constitutional Amendment (the Amendment) expunged
some of the so called ‘ claw back’ clauses, and that this Amendment did not oust the legislative
powers of the National assembly to enact laws. It also states that the Amendment did not oust the
powers of the Court to interpret the Constitution and other enactments of the National Assembly by
virtue of the rules of interpretation. According to the Respondent State therefore, the Amendment did
not in any way render the judgment of the Court of Appeal outdated, adding that Article 30 gives room
for the Court to interpret laws of the land as it did.
29. The Respondent State submits that the death penalty is still a lawful punishment in Tanzania,
and that the decision of the Court of Appeal will continue to be respected because it is the highest
Court in the land. It adds that, even though the State Party is bound by international instruments it has
ratified, domestic laws will still prevail to serve specific situations.
Complainants’ additional submissions on admissibility
30. In their additional submissions on admissibility, the Complainants reiterate the fact that they have
fulfilled all the requirements under Article 56 of the African Charter.
31. The Complainants submit that Article Article 56.1 has been fulfilled because a signed copy of the
list of the authors was attached to the Complaint brought before the African Commission.
32. They further submit that the requirement under Article 56.2 has also been met because the Court
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of Appeals’ decision of 30 January 1995 constitutes a violation of Article 4 of the African Charter.
33. With respect to Article 56.3, the Complainants submit that it has been met because the
communication is not written in an insulting language.
34. They state that the communication is in line with Article 56.4 because it is not based exclusively
on news disseminated through the mass media, but rather on Court judgments and on the past and
present jurisprudence on the death penalty.
35. The Complainants state further that the requirement under Article 56.5 has been complied with,
because they have exhausted all local remedies. They elaborate on this by explaining that they took
the matter to the Appeal Court of Tanzania, which is the highest Court in the land, before bringing it to
the African Commission.
36. The Complainants further state that they have fulfilled Article 56.6 of the African Charter because
the communication was brought to the African Commission within a reasonable period of time, after
the Court of Appeal’s decision on the case.
37. Finally, the Complainants aver that the communication is in line with Article 56.7 because it has
not been submitted to any other international body for settlement.
Respondent State’s additional submissions on admissibility
38. The Respondent State made additional submissions on admissibility addressing the requirements
in Articles 56(2), 56(5)and 56(6) of the African Charter.
39. The Respondent State refutes the Complainants’ submission that they have fulfilled Article
56.2 of the African Charter. According to the Respondent State, the Complainants have not
demonstrated the extent to which the communication is in conformity with the provisions of the African
Charter.
40. They state that, apart from citing Article 4 which deals with the right to life, they have not
indicated any other provisions in relation to torture which is the basis of their communication. In the
absence of specific provisions related to torture, the Respondent State submits that the
communication is “wild, vague, and hence incompatible with the provisions of the Charter and it
violates Article 56(2)”.
41. With regard to Article 56.5, the Respondent State disputes the fact that local remedies have been
exhausted. It submits that the accused persons in the Mbushuu’ case were charged and convicted of
murder, and sentenced to life imprisonment instead of death in the High Court, pursuant to the
provisions of Section 196 and 198 of the Penal Code Cap 16 of the Laws of Tanzania.
42. The Respondent State submits further that the Appellant in the Mbushuu’ case, that is, the State,
appealed to the Court of Appeal of Tanzania, through Criminal Appeal no 142 of 1994, and the Court
of Appeal ruled on a death sentence, instead of life imprisonment, arguing that death sentence is
constitutional.
43. Furthermore, the Respondent State submits that the Complainants did not exhaust local
remedies available under Article 30(4) of the Constitution of Tanzania and Section 4 of the Basic
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Rights and Duties Act.
44. In contending the Complainants’ fulfilment of Article 56.6, the Respondent State submits that this
communication is based on the Mbushuu’ case decided fifteen years ago, adding that the
Complainants have not made any efforts to exhaust local remedies since then.
45. In its final observations, the Respondent State requests that the communication be found
inadmissible by the African Commission based on the aforementioned grounds.
Analysis of the African Commission on admissibility
46. This communication is submitted pursuant to Article 55 of the African Charter which allows the
African Commission to receive and consider communications, other than from State Parties. Article
56 of the African Charter provides that the admissibility of communications submitted pursuant
to Article 55 is subject to seven conditions which must all be met.
47. In the communication before the African Commission, the Complainants aver that they have
complied with all the requirements under Article 56. However, the State disagrees, arguing that, the
Complainants have not complied with Articles 56(2), 56(5) and 56(6).
48. The African Commission will now proceed to determine whether these sub-articles under Article
56 raised by the Respondent State have indeed not been complied with. Nevertheless, the
Commission would also analyse compliance with the, other sub-articles of Article 56 that are not in
contention.
49. In terms of Article 56.1 of the Charter, “communications should indicate their authors, even if the
latter requests anonymity”. In the communication before the African Commission, the Respondent
State submits that it was disadvantaged by not seeing the list of the other members who are the joint
authors of the communication. It is important to note that the Complainants did attach a list of the joint
authors of the communication in Annexure I of the complaint to the attention of the African
Commission, which was forwarded to the Respondent State. The communication in the opinion of the
African Commission thus clearly shows the name of the authors. In this regard, the requirement
of Article 56.1 has been fulfilled.
50. Article 56.2 requires that, “The communication be compatible with either the African Charter or
the Constitutive Act of the OAU (now the Constitutive Act of the AU)”. This sub-article is subject to
scrutiny because the Respondent State raised an objection to it. The State argues that the
Complainants have only cited Article 4 of the African Charter which deals with the right to life, and that
they have not indicated any other provisions in relation to torture which is the basis of their
communication. It goes further to describe the communication as “wild, vague and hence not
compatible with the provisions of the Charter…”.
51. This Commission notes that, one of its primary considerations under Article 56.2 is whether there
has been prima facieviolation of human rights guaranteed by the African Charter. Furthermore, as was
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its position in Mouvement des réfugiés mauritaniens au Sénégal v Senegal, the Commission is only
concerned with whether there is preliminary proof that a violation occurred. Therefore, in principle, it is
not mandatory for the Complainant to mention specific provisions of the African Charter that have
been violated.
52. In the communication before the African Commission, the Complainants have alleged violation
of Article 4 of the African Charter, meaning they have alleged the violation of a right by the
Respondent State. The determination whether other rights have been violated or the extent to which
they have been violated is not relevant because such an analysis is required only at the merits stage.
Based on this, the African Commission finds that Article 56.2 has been fulfilled.
53. Article 56.3 requires that, “communications are not written in disparaging or insulting language
directed against the State concerned and its institutions or to the African Union”. According to this
Commission, looking at the alleged facts of this communication, there is no evidence of insulting or
disparaging language. Thus, Article 56.3 is complied with.
54. Article 56.4 requires that, “the communication should not be based exclusively on news
disseminated through the mass media”. This communication has not portrayed any indication of
information coming from the media before this Commission. The Complainants’ submissions have
been supported by Court judgments, national laws and reports on which the Complainants relied. In
this regard, the African Commission holds that Article 56.4 has been duly complied with.
55. Article 56.5 requires that, “communications be sent to the Commission only after exhausting local
remedies, if any, unless it is obvious that this procedure is unduly prolonged”. It has become an
established principle in international law that a State should be given the opportunity to redress an
alleged wrong within the framework of its own domestic legal system before it is dealt with at the
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international level. This requirement safeguards the role of domestic courts to decide the matter
before it is brought to any international adjudication body.
56. The Respondent State in this communication is of the view that the Complainants have not
complied with this requirement. It argues that the accused persons in the Mbushuu’ case were
charged and convicted of murder, and sentenced to life imprisonment instead of death pursuant to the
provisions of Section 196 and 198 of the Penal Code Cap 16 of the Laws of Tanzania.
57. It further argues that the Complainants did not exhaust local remedies available under Article
30(4) of the Constitution of Tanzania and Section 4 of the Basic Rights and Duties Act.
58. According to this Commission, the argument by the Respondent State that the Complainants
have not exhausted local remedies because the “accused persons in the Mbushuu’ case were
charged and convicted of murder, and sentenced to life imprisonment in the High Court, instead of
death pursuant to the provisions of Section 196 and 198 of the Penal Code Cap 16 of the Laws of
Tanzania,” cannot be sustained because the premise of exhausting local remedies according to the
practice and purpose of Article 56.5 only requires that judicial domestic avenues should be exploited
before a communication is brought to the Commission. In the present communication, there is
evidence that the matter was considered and decided upon by the highest Court in the Respondent
State prior to its submission to this Commission.
59. This Commission also notes that, the ruling on life imprisonment in the Mbushuu’ Case was made
in the High Court on the ground that the death penalty in Tanzania is unconstitutional. The Appellant
not being satisfied with the decision of the High Court, appealed to the Court of Appeal which found
that the death penalty is constitutional because it is saved by claw back clauses provided in the
Tanzanian Constitution. In this regard therefore, the Complainants in the present communication
brought the matter before the Commission after the Court of Appeal had pronounced on the death
penalty.
60. Concerning the argument that the Complainants have not exhausted local remedies because
they did not avail themselves to the remedies provided by Article 30(4) of the Constitution of Tanzania,
as well as the Basic Rights and Duties Act, it is imperative for the African Commission to verify the
content of these Laws to determine whether remedies provided therein are sufficient and effective
remedies.
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61. Article 30(4) of the Constitution of the United Republic of Tanzania provides that:
“Subject to the other provisions of this Constitution, the High Court shall have original jurisdiction to
hear and determine any matter brought before it pursuant to this Article; and the state authority may
enact legislation for the purposes of –
1.
2.
regulating procedure for instituting proceedings pursuant to this Article;
specifying the powers of the High Court in relation to the hearing of proceedings instituted
pursuant to this Article;
3.
ensuring the effective exercise of the powers of the High Court, the preservation and
enforcement of the rights, freedoms and duties in accordance with this Constitution.
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62. On the other hand, Section 4 of the Basic Rights and Duties Act, provides for the right to apply
to the High Court for redress. It stipulates that: “If any person alleges that any of the provisions of
sections 12 to 29 of the Constitution has been, is being or is likely to be contravened in relation to him,
he may, without prejudice to any other action with respect to the same matter that is lawfully available,
apply to the High Court for redress.”
63. Looking at the content of both Article 30(4) of the Tanzanian Constitution and Section 4 of the
Basic Rights and Duties Act, they are all geared towards the option of bringing matters to the High
Court for redress. This option was exploited because the matter was considered by the High Court
before later referred to the Court of Appeal.
64. Furthermore, the ‘remedies’ referred to in Article 56.5 include all judicial remedies that are easily
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accessible for justice. The Commission in INTERIGHTS and others v Mauritania, declared:‘The fact
remains that the generally accepted meaning of local remedies, which must be exhausted prior to any
communication/complaint procedure before the African Commission, are ordinary remedies of
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common law that exist in jurisdictions and normally accessible to people seeking justice.”47
65. In this regard, what is important to the African Commission in determining whether local remedies
were exhausted is whether judicial remedies indeed exists, and if so, whether they were explored by
the Complainants. On this ground, the Respondent State’s reliance on the provisions of Article 30(4) of
the Constitution of Tanzania and Section 4 of the Act is not enough to conclude that the Complainants
did not exhaust local remedies.
66. Based on the above reasoning, this Commission holds that local remedies have been exhausted
by the Complainants in compliance with Article 56.5 of the African Charter.
67. Article 56.6 of the Charter states that, “communications received by the Commission will be
considered if they are submitted within a reasonable period from the time local remedies are
exhausted, or from the date the Commission is seized with the matter.” The Respondent State asserts
that the Complainants have not complied with this requirement because “this matter was decided
fifteen years ago…”.
68. The African Charter does not specifically state what it means by “reasonable time”, as opposed to
Article 46(1(b) of theAmerican Convention on Human Rights (the American Convention), which
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provides for a six months period. In the absence of this specification, the Commission has always
ruled based on the contexts and characteristics of each case.
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69. In Michael Majuru v Zimbabwe, for instance, the communication was submitted to the African
Commission twenty-months (22) after the Complainant allegedly fled the Respondent State without
approaching the Courts therein. As reasons for delay, he argued without substantiating that he had
been undergoing psychotherapy while in South Africa. He further indicated that he did not have the
financial means to bring the case before the Commission, and that he was afraid for the safety of
members of his family.
70. In the above communication, the African Commission held that the communication was not
submitted within a reasonable time period envisaged in Article 56.6 because, “the arguments
advanced by the Complainant as impediments for his late submission of the complaint do not appear
convincing.” It added that, “Even if the Commission accepts that he fled the country and needed time
to settle, or that he was concerned for the safety of his relatives, twenty two (22) months after fleeing
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the country is clearly beyond a reasonable man’s understanding of reasonable period of time.”
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71. Similarly, in Darfur Relief and Documentation Centre v Republic of Sudan, the African
Commission held that a period of twenty nine (29) months (2 years and 5 months) between the time
when the High Court dismissed the matter and when the communication was submitted to the African
Commission is unreasonable, particularly because the Complainants did not give any compelling
reason to explain the delay. It stated that, “Where there is a good and compelling reason why a
Complainant does not submit his Complaint to the Commission for consideration, the Commission has
a responsibility, for the sake of fairness and justice, to give such a Complainant an opportunity to be
heard. In the present case, there is no sufficient reason given as to why the communication could not
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be submitted within a reasonable period.”
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72. However, in Mr Obert Chinhamo v Zimbabwe, the communication was submitted to the African
Commission ten months after the Complainant allegedly fled from his country. Due to the
circumstances in this case, the Commission decided that the communication complied with Article
56.6, stating that; “The Complainant is not residing in the Respondent State and needed time to settle
in the new destination, before bringing his Complaint to the Commission. Even if the Commission were
to adopt the practice of other regional bodies to consider six months as the reasonable period to
submit complaints, given the circumstance in which the Complainant finds himself, that is, in another
country, it would be prudent, for the sake of fairness and justice, to consider a ten months period as
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reasonable.”
73. As portrayed in the facts of the communication before this Commission, the judgment of the Court
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of Appeal was delivered on 30 January 1995, and the communication was brought to the
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Commission on 17 November 2006. Even though the State indicates that the Complainants took
fifteen years before bringing the matter to the African Commission, according to the latter’s calculation,
it took the Complainants exactly eleven years. The question of whether eleven years falls within the
meaning of reasonable time would have to be assessed by this Commission.
74. The Commission underscores the fact that, in the submissions of the Complainants, there is no
substantiation as to why it took them so long to bring the matter to the Commission after exhausting
local remedies. It is the opinion of this Commission that, delays such as this could be prompted by
different circumstances, including attempts to request for Presidential clemency and awaiting response
or judicial reviews.
75. This Commission notes that it requested the Complainants to provide additional information to
explain the delay, and no response was provided.
76. In the absence of any explanation whatsoever from the Complainants regarding the long period
of time that it took before the matter was brought to the African Commission, the latter observes that,
given the nature of the present communication, there has been an unreasonable delay. In view of this,
it holds that the communication was not submitted within a reasonable period of time and therefore
does not comply with Article 56.6 of the African Charter.
77. Article 56.7 states that, “The Commission does not deal with cases which have been settled by
those States involved in accordance with the principles of the Charter of the United Nations, or the
Charter of the OAU or the provisions of the present Charter.” There is no evidence in this
communication that would prompt the Commission to believe that the matter has been settled by any
international body. Moreover, this sub-Article has not raised any contention on the part of the
Respondent State. Accordingly, the African Commission holds that the requirement under Article
56.7 has been duly fulfilled.
Decision of the African Commission
78. In view of the foregoing, the African Commission decides:
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•
•
That this Communication does not comply with Article 56.6 of the African Charter, and
therefore declares it inadmissible;
To transmit its decision to the parties in accordance with Rule 119(1) of its Rules of
Procedure;
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To Publish this decision in its 28 Activity Report.
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Done at the 47 Ordinary Session, held from 12 to 26 May 2010, in Banjul, The Gambia.
Footnotes
1. The member organisations of SANGONET are; the Legal and Human Rights Centre, the Women’s Legal Aid
Centre, DOLASED, Women in Law and Development in Africa, the Centre for Human Rights Promotion, the
National Organisation for Legal Assistance, the Youth Partnership Countrywide and the Children Education
Society.
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2. Ratified on 18 February 1984.
3. The Appellant in the Mbushuu’ case before the matter was brought to the African Commission.
4. Article 30(4) of the Constitution of the United Republic of Tanzania provides that: “Subject to the other
provisions of this Constitution, the High Court shall have original jurisdiction to hear and determine any matter
brought before it pursuant to this Article; and the state authority may enact legislation for the purposes of - (a)
regulating procedure for instituting proceedings pursuant to this Article; (b) specifying the powers of the High
Court in relation to the hearing of proceedings instituted pursuant to this Article; (c) ensuring the effective exercise
of the powers of the High Court, the preservation and enforcement of the rights, freedoms and duties in
accordance with this Constitution.” While Section 4 of the Basic Rights and Duties Act,41 provides for the right to
apply to the High Court for redress. It stipulates that: “If any person alleges that any of the provisions of sections
12 to 29 of the Constitution has been, is being or is likely to be contravened in relation to him, he may, without
prejudice to any other action with respect to the same matter that is lawfully available, apply to the High Court for
redress.”
5. Communication 162/97.
6. A.A. Cacado Trinidade, The Application of the Rule of Exhaustion of Local Remedies in International Law
1 (1983)
7. The Constitution of Tanzania is available at http://www.lrct.or.tz/documents/REPUBLIC.pdf
8. The Basic Rights and Duties Enforcement Act (Cap 3 R.E. 2002), available
at http://www.lrct.or.tz/documents/DUTIES.pdf
9. Communication 242/2001
10. Note above para. 27.
11. See also Article 26 of the European Convention on Human Rights (the European Convention).
12. Communication 308/05.
13. Note above, para. 110.
14. Communication 310/05.
15. Note above, 78 and 79.
16. Communication 307/2005.
17. Note above, para. 88 and 89.