An Emerging Framework for All of Africa: The Right to a Fair Trial at the African Court

A few weeks ago, Justice Hub published my analysis of the African Court’s recent judgements concerning Tanzania and its criminal justice system. I am now cross-posting the piece here on The Monitor. This means those readers who read the piece on Justice Hub will not find anything new in the following post. However, I thought there may be some Monitor readers who did not see this when it first went up. As always, I would be very interested in readers views on the post, and more importantly perhaps, the judgements themselves. Enjoy! OW


Introduction

At the end of September, the African Court on Human and Peoples’ Rights (African Court) handed down an unprecedented ten decisions. These decisions, made up of judgements, requests for advisory opinions and applications for interpretation of past judgements each all deserve to be examined in detail. For the purposes of this post however, I want to focus on the delivery of two judgements: Jonas v Tanzania and Onyachi and Njoka v Tanzania. These judgements continue the African Court’s examination of the Tanzanian criminal justice system and are not only important for Tanzania, but also beyond Tanzania’s borders and across Africa as they continue to provide further clarification on what is meant by the right to a fair trial as found under Article 7 of the African Charter on Human and Peoples’ Rights (African Charter).[/tooltip]

Before we look at the two judgements themselves, it may help to put them in a little context. These judgements are the latest in a series of similar cases brought by applicants against Tanzania. In essence, all these cases argue that the Tanzanian criminal justice system fell well short of the right to fair trial as protected under Article 7 of the African Charter. The previous cases worth reading are Alex Thomas v Tanzania, and Abubakari v Tanzania which the African Court refers to in these latest two decisions, plus Onyango et al. v Tanzania . In terms of context, it’s also worth noting that so far Tanzania has lost every one of these cases, with the African Court consistently finding the treatment of those accused and convicted of serious crimes in Tanzania violates the African Charter.

30-year Sentences for Armed Robbery

In both cases the applicants were serving 30 year sentences for armed robbery. Kenyan nationals Kennedy Onyachi, and Charles Njoka were first arrested in Nairobi, Kenya on suspicion of armed robbery in Tanzania in November 2002. In March 2003, they were extradited to Tanzania to face trial. They were met on the Kenyan-Tanzanian border not only by Tanzanian police, but also Tanzanian TV cameras, causing their identity to be widely disseminated across Tanzanian television and newspapers. Shortly after, they were subject to an identification parade where they were positively identified. They were then charged with conspiracy and armed robbery.  In March 2005 following trial the Tanzanian Magistrates Court acquitted Onyachi and Njoka.

However, they were immediately re-arrested and charged with further offences of robbery on the same facts whilst the Prosecution also appealing their acquittals. In December 2005 the Tanzanian High Court overturned the acquittals and convicted Onyachi and Njoka, sentencing them to 30 years imprisonment. Onyachi and Njoka then appealed against conviction, an appeal that was dismissed by the Tanzanian Court of Appeal in December 2009. However, Onyachi and Njoka were only served with copies of the Court of Appeal’s decision in November 2011, almost two years after the judgement was rendered. Attempts were made to lodge a review of the 2009 Court of Appeal decision, but were time barred, since appeals must be lodged within 60 days of judgement.

Christopher Jonas was convicted of similar offences in 2004 and was serving 30 years imprisonment at the time of his application. In his case, its worth nothing that Jonas was originally sentenced to 30 years imprisonment and 12 strokes of the cane. Jonas appealed the case through the Tanzanian criminal justice system, with the Tanzanian High Court and Court of Appeal upholding his conviction and prison sentence, although the Court of Appeal did set aside the 12 strokes of the cane.

Onyachi and Njoka petitioned the African Court in January 2015, whilst Jonas petitioned the African Court in May 2015. Interestingly, in both cases the African Court took it upon itself to ask the Pan African Lawyers Union to represent the applicants who were otherwise unrepresented; a welcome move and evidence of the African Court thinking outside the box.  In both cases the applicants argued that their treatment within the Tanzanian criminal justice system violated various articles of the African Charter.

Tanzania Uses Jurisdiction and Admissibility Arguments

Suffice to say, Tanzania refuted both claims, and did so at every stage of the African Court’s examination of the case. In both cases Tanzania argued that the claims were outside the African Court’s jurisdiction. It argued that the African Court was being asked to act as a quasi-Supreme Court, which was beyond its remit, and that it should simply respect the Tanzanian Court of Appeal’s decisions as the highest judicial body in Tanzania. The African Court however was not persuaded. It made clear that it was not prepared to act as a court of appeal for criminal matters, but that it was entirely within its jurisdiction to examine whether criminal justice processes, including trial and appeal, complied with the right to fair trial as enshrined under Article 7 of the African Charter. These cases further clarify what might already considered the African Court’s clear position; the African Court will not act as an appellate court but it is in no way barred from considering allegations of human rights violations emerging from criminal justice systems. AU Member States will need to work harder than simply saying that the African Court should respect domestic appeal judgements in future cases.

Tanzania also attempted to thwart both claims on issues of admissibility. Under the African Court Rules and African Charter applications must comply with eight conditions in order to be considered admissible. These conditions include two which are almost always raised by AU member states as reasons to find applications inadmissible: exhaustion of local remedies and the filing of applications within a reasonable time after those local remedies are exhausted.

In terms of exhaustion of local remedies, Tanzania raised arguments familiar to African Court followers; that the applicants had failed to properly avail themselves of all domestic remedies. Every country facing an application before the African Court to date has raised this as a reason why the case cannot be considered. In these cases, Tanzania argued that the applicants still had the option to lodge constitutional challenges before the Tanzanian High Court. This argument was however swiftly dismissed by the African Court, as it has done previously.

Tanzania’s submission that the applications were time-barred do however deserve a little more examination. As mentioned above. the African Court Rules and the African Charter set out that to be admissible, an application must be filed within a reasonable time from when local remedies were exhausted or from a date which the African Court deems appropriate. It does not however set out a timeframe. Interestingly, in Jonas although the Court of Appeal rendered its decision in March 2009 the African Court declared that the clock did not start ticking on the reasonable timing of the application until March 2010 when Tanzania signed the Additional Declaration that allows individuals and NGOs direct access to the African Court. This decision has the potential to considerably effect on future applications, since it ensures that claimants will not be time barred simply because member states dragged their heels on fully signing up to the African Court- something every AU Member State bar eight is guilty of.

Taking the starting point then as Tanzania’s signature of the Additional Declaration, the African Court found that the petition had been filed 5 years, 1 month and 12 days since after; a not insubstantial amount of time. Looking to the previous case of Abubakari, the African Court recalled that in assessing whether an application was filed within this undetermined “reasonable time” it will consider whether the applicant was incarcerated, indigent, did not have access to free legal assistance, illiterate, and unaware of the existence of the African Court due to its relatively recent establishment. This non-exhaustive list provides the African Court with a large degree of flexibility that can allow relatively large temporal gaps to be overcome. In this case, given that Jonas met many of the same circumstances listed in the Abubakari case, the period of five years, 1 month and 12 days was deemed reasonable for filing a petition before the African Court. Similarly, in Onyachi and Njoka gaps of three years and two months and about seven months were also considered reasonable.

The African Court Found Violations

Having found that it had jurisdiction to consider the cases and that both cases were admissible, the African Court went on to consider the meat of the applications; the alleged human rights violations themselves. In both cases the African Court made short work of claims that the imposition of a 30 year sentence for armed robbery were in violation of Article 7(2) of the African Charter since Tanzanian law clearly proscribed a minimum of 30 years for this crime. In Onyachi and Njoka, the African Court also rejected claims concerning their extradition and transfer from Kenya to Tanzania since Kenya was not within its jurisdiction.

Onyachi and Njoka did however enjoy more success on their claims relating to the identification parade that formed the basis for their convictions. Here, the African Court found that the way the identification parade occurred; with images of the applicants distributed on local television and newspapers just before the identification parade took place, made the procedure unsafe and therefore in violation of Article 7(1) of the African Charter. Similarly, the African Court found that the Tanzanian courts had failed to give “due and serious consideration” to Onyachi’s and Njoka’s alibi defence and was therefore a further violation of Article 7 (1) (c) of the African Charter. The African Court’s decisions that these two elements of Onyachi and Njoka cases violated the African Charter further bolsters the court’s ability to review criminal procedure as it stacks up against a Member States’ ongoing obligation to adhere to the African Charter.

In both Onyachi and Njoka and Jonas the African Court also found violations of Article 7 of the African Charter concerning the provision of legal representation. All the applicants made claims concerning Tanzania’s failure to provide free legal representation during the entire process of trial and appeal. The African Court followed its previous decision in Thomas, in which it found that provision of legal aid is a right implicit in the right to defence enshrined in Article 7(1) (c) of the African Charter.

The African Court reiterated that the two requirements for provision of free legal aid were: (i) indigence; and (ii) interests of justice. In assessing whether these requirements were met the African Court considered several circumstances including: (i) the seriousness of the crime alleged; (ii) the severity of the potential sentence; (iii) the complexity of the case; and (iv) the social and personal situation of the defendant. In appeal cases, the African Court also looked at the substance of the appeal, such as requiring a certain level of legal knowledge or skill, and the nature of the entire proceedings, such as considerable disagreement on points of law, or fact in the judgements of the lower court.

The African Court concluded that if these conditions exist then free legal assistance should be provided in trial and appellate proceedings as part of the right to fair trial guaranteed under the African Charter. It’s worth noting that Onyachi and Njoka were represented at trial and the first level of appeal, to the High Court. They were not however represented in the appeal to the Court of Appeal. Since they were indigent, included a large number of witnesses and several points of law requiring legal skills which lay persons could not be expected to possess, and the case involved a 30 year prison sentence for serious crimes, the African Court found that both the “indigent” and “interest of justice” requirements were met.

In Jonas, Tanzania adopted a slightly different tack, and argued that legal assistance was available under Tanzanian law but the applicant had never asked for it. The African Court found however that Tanzania should have done more than simply have the possibility of free legal assistance on the books; it should have offered Jonas proprio motu the free services of a lawyer throughout the judicial procedure. In both cases, the African Court therefore found Tanzania in violation of Article 7(1) (c) of the African Charter. This approach is very much in line with the Thomas and Abubakari decisions but may even take things further. It seems to indicate firstly, that legal representation must be provided throughout the criminal process including appeals to the highest courts. Secondly, it is not enough for AU Member States to point to provisions contained in legislation or policies for the free provision of legal assistance. They must do more, and actively offer that assistance to individuals in order to fully comply with the African Charter.

Lastly, on the right to a fair trial under Article 7 of the African Charter, it is worth noting that Onyachi and Njoka also brought a claim for the failure to provide copies of their Court of Appeal judgement until almost two years after the judgement was rendered. The African Court again found in the applicant’s favour, ruling that such an inordinate delay contravened Article 7 (1) of the African Charter, especially where the applicants faced a 60-day window from the time of the judgement being rendered to seek a review of the decisions; an impossible task without the judgement. On this point, an additional wrinkle is that the African Court found that the list of protections to a fair trial under Article 7 of the African Charter is non-exhaustive; a small point perhaps, but one that keeps open the possibility of new and inventive challenges to the right to fair trial before the African Court.

It should also be mentioned that the African Court also found violations of Article 6 of the African Charter (Right to Liberty) in Onyachi and Njoka. We don’t have space to examine this in much detail, other than to say that it found the immediate arrest of Onyachi and Njoka after their acquittal at the Magistrates Cout on similar charges based on the same facts was in violation of Article 6 of the African Charter; a welcome cautionary note to overzealous officials seeking to ensure those acquitted do not walk free.

Lastly, the African Court found that Onyachi and Njoka had failed to prove their allegations that they were detained incommunicado and without food after their Magistrates acquittal in violation of Article 5 of the African Charter. I mention this point since whilst this was no doubt a disappointment to the applicants, this section of the judgement came with a small silver lining. In assessing the claim, the African Court acknowledged that allegations of incommunicado detention are often difficult for applicants to prove since this kind of event tends to occur when “shrouded in secrecy” and “outside the shadow of law and public sight”. The African Court therefore found that it is not for applicants alone to shoulder the burden of proof on these types of issues. So whilst in this particular case the African Court was not convinced that the evidence demonstrated the existence of a violation, it is a welcome sight to see the court at least acknowledging the difficulties of bringing such application which can be seen as a positive step towards further similar cases in the future.

These Judgements do “not make pleasant reading for Tanzania”

Certainly, these judgements do not make pleasant reading for Tanzania. With these two cases building on the previous Thomas, Onyango et al. and Abubakari cases we now have a quintet of judgements demonstrating quite clearly how the Tanzanian criminal justice system has violated the African Charter. However, whilst not wanting in any way to absolve the problems Tanzanian faces, Tanzania’s continued dismal performance before the African Court must be put in some context. Only eight out of 55 AU Member States allow individuals and NGOs to bring cases directly before the African Court, making the percentage of Member States criminal justice systems that can be examined by the court very small. I suspect Tanzania would point to this fact in defending its criminal justice system in the face of the dubious honour of now owning five African Court judgements finding it in violation of the African Charter.

The statistics on access to the African Court cannot be denied, and this does limit the field in terms of access, but this should not serve as an excuse for Tanazania not to fully comply with these latest judgements. What is clear is that the African Court is saying that fundamental parts of Tanzania’s criminal justice system have not met the required standards as protected under the African Charter. Help is at hand though in the form of the judgements themselves, which should be carefully scrutinized by Tanzania in order to improve its criminal justice system and avoid further similar judgements. But expanding this beyond Tanzania, the African Court is also beginning to craft a framework that must be applied across Africa.

Decisions Can Apply Across the AU

Other AU member states must also take these decisions on board, since every AU Member State has ratified the African Charter and is required to ensure that its domestic legislation and policies are in compliance with it. What the African Court has done in these latest cases is to set out clearly a framework which can ensure a Member State can claim compliance with the African Charter. Every AU member state should be examining its criminal justice system based on the African Court’s findings. For the avoidance of doubt, issues top of the list should include: (i) free legal representation for all accused at trial and appeal; (ii) the timely provision of trial judgements, appeal decisions and the like; (iii) due care and consideration given to the use of identification parades; and (iv) proper consideration of defences raised by accused. Should these provisions and others not be ensured, citizens and NGOs across Africa will have every right take copies of these latest African Court judgements and place them before domestic, regional and continental mechanisms to demand immediate and tangible improvements.

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