African Court faults trial of convict, yet upholds 30-year jail term

By Lemmy Ughegbe, Abuja

PHOTO: arushacity.com

ALTHOUGH the African Court on Human and Peoples Rights (AFCHPR) found the trial and 30-year jail sentence of Mr. Alex Thomas by the United Republic of Tanzania for armed robbery unfair and in violation of his rights, the court declined his request to release him.

The African Court held that the United Republic of Tanzania was guilty of violating the right to fair hearing of Thomas during his trial, leading to his conviction in 1989 which has kept him in prison for 30 years now.

In an electronic copy of the judgment endorsed by its Registrar, Robert Eno made available to The Guardian yesterday, the African Court dismissed the preliminary objection filed by the United Republic of Tanzania, seeking to stop it from hearing Mr. Thomas’ application to upturn his conviction by the District Court of Rombo, Tanzania.

However, in a split decision of six to two judges on the panel, the court refused the request of the convict that he be released from Karanga Central prison in Moshi, Kilimanjaro, Tanzania.

The majority decision that Thomas remained in prison was reached by Judges Gerard Niyungeko, Duncan Tambala, Sylvian Ore, El Hadji Guisse, Ben Kioko, and Solomy B. Bossa, while the Vice President of the court, Judge Elsie N. Thompson and Judge Rafaa Ben Achour delivered dissenting decisions that Thomas be freed from prison custody.

In the dissenting judgment, Judges Thompson and Achour held that “since the court had found that the applicant has been in prison for 20 years out of a 30-year prison term following a trial which this court has declared to be an unfair trial, in violation of the charter, the proper thing would be to order his release.”

The Pan African Lawyers Union (PALU), which provided legal representation for Mr. Thomas, had approached the African Court (AFCHPR) with an application, claiming that he was wrongfully convicted.

Besides that claim of wrongful conviction, PALU also claimed that the trial court and appellate Court in Tanzania which convicted and affirmed Thomas’ conviction respectively lacked jurisdiction to try him because the alleged robbery he was accused of occurred in Kenya.

PALU further alleged that Thomas was not given an opportunity to defend himself during trial; that the prosecution did not prove the case against him beyond reasonable doubt; that he was not provided with legal aid during trial contrary to the Constitution of Tanzania and the Universal Declaration of Human Rights, and that there had been undue delay in the review of the decision of the Court of Appeal where he appealed in 2009.

In his reply to the applicant’s claims, the respondents – the Union of the Republic of Tanzania- prayed the court to dismiss the applicant’s application “for lack of admissibility requirements as stipulated under the Rules of the Court, the Charter and the Protocol.”

The United Republic of Tanzania legal team was led by Amb. Irene Kasyanju, Head of Legal Division, Ministry of Foreign Affairs with Rule 38 of the Rules of the Court (dismissal of applications without merit).

It submitted that the application failed to evoke the jurisdiction of the court.

In a unanimous decision, the court held that “there has been no violation of Articles 3, 5, 6, 7(1)(b), and 9(1) of the Charter.”
But the court unanimously held that “there has been a violation of Articles 1(recognition by State parties of the rights, duties and freedom under the African Charter); Article 7(1)(a), (c) and (d) of the Charter [right to an appeal to competent national organs, right to defence and right to be tried within a reasonable time by an impartial court];and Article 14(3) (d) of the International Covenant on Civil and Political Rights (ICCPR) [right to be tried in one’s presence and right to defend oneself or through legal assistance of one’s choice and right to be informed and provided legal assistance where the interest of justice requires, without payment if not able to afford].”

In conclusion, by a vote of six to two, the applicant’s prayer for release from prison was denied.

The court also unanimously ordered the respondent to “take all necessary measures within a reasonable time to remedy all the violations found, specifically precluding the re-opening of the defence case and the retrial of the applicant and to inform the court within six months from the date of this judgment of the measures taken.”

In accordance with Rule 63 of the Rules of the Court, the court directed the applicant to file submission on the request for reparations within 30 days from the date of judgment and the respondent to respond within 30 days of receipt of the applicant’s submission.