The Matter of Marthine Christian Misuguri v United Republic of Tanzania Application No 52 of 2016 African Court on Human and Peoples’ Rights B Tchikaya, VP & J; B Kioko, RB Achour, S Mengue, TR Chizumila, C Bensaoula, SI Anukam, DB Ntsebeza, M Sacko & DD Adjei, JJ December 1, 2022 Reported by Faith Wanjiku and Betty Nkirote Download the Decision International Law-law of treaty-African Charter on Human and Peoples’ Rights-human rights-right to life-where the applicant had been incarcerated at Butimba Central Prison in Mwanza after he was convicted and sentenced to death for the offense of murder-where the applicant alleged violation of his rights in respect to proceedings before domestic courts for being held on pre-trial detention and in inhuman and degrading conditions of confinement- whether the respondent state violated the applicant’s right not to be subjected to inhuman and degrading treatment protected under article 5 of the Banjul Charter in its holding the applicant on pre-trial detention and in inhuman and degrading conditions of confinement- Banjul Charter, 1981, articles 4 and 5. Jurisdiction- jurisdiction of the African Court on Human and Peoples’ Rights on matters of human rights- whether the court had jurisdiction to determine matters of facts and law such as that of the defence of insanity of the applicant in the matter, and grant the applicant’s prayers-whether the applicant ought to have exhausted domestic remedies-whether the applicant ought to have instituted a constitutional petition before the High Court of the respondent state for the alleged violation of his fundamental rights to life, a fair trial, and not to be subjected to inhuman and degrading treatment- Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and People’s Rights, 1998, article 3. Civil practice and procedure -admissibility of filing applications- time factor in the admissibility of filing applications - where the applicant had filed an application late- whether the application was inadmissible for failure to be filed within a reasonable time-whether by sentencing the applicant to death without taking into account special circumstances of his case, the sentencing court violated the right to life protected under article 4 of the Banjul Charter-whether the respondent state violated the applicant’s right to be tried within a reasonable time guaranteed under article 7(1)(d) of the Banjul Charter-whether the respondent state violated the applicant’s right to effective legal representation guaranteed under article 7 (1) of the Banjul Charter- Banjul Charter, 1981, articles 4 and 7(1)(d). Brief facts The applicant was at the time of filing the application incarcerated at Butimba Central Prison in Mwanza after he was convicted and sentenced todeath for the offence of murder. He alleged violation of his rights in respect to the proceedings before domestic courts which held him on pre-trial detention and in inhuman and degrading conditions of confinement. The applicant prayed the court to direct the respondent state to:
  1. Vacate the death sentence and grant the applicant a new trial that comported with the fair trial guarantees of the African Charter and in the alternative;
  2. Set aside the death sentence and grant the applicant a resentencing hearing; and
  3. Amend its laws to ensure the respect for life.
Issues i.   Whether the court had jurisdiction to determine matters of facts and law such as that of the defence of insanity of the applicant in the matter, and grant the applicant’s prayers. ii. Whether the applicant ought to have instituted a constitutional petition before the High Court of the respondent state for the alleged violation of his fundamental rights to life, a fair trial, and not to be subjected to inhuman and degrading treatment. iii. Whether the application was inadmissible for failure to be filed within a reasonable time. iv. Whether by sentencing the applicant to death without taking into account special circumstances of his case, the sentencing court violated the right to life protected under article 4 of the African Charter on Human and Peoples’ Rights (the Banjul Charter). v.  Whether the respondent state violated the applicant’s right to be tried within a reasonable time guaranteed under article 7(1)(d) of the Banjul Charter. vi.  Whether the respondent state violated the applicant’s right to effective legal representation guaranteed under article 7 (1) of the Banjul Charter. vii. Whether the respondent state violated the applicant’s right not to be subjected to inhuman and degrading treatment protected under article 5 of the Banjul Charter. Relevant provisions of the law African Charter on Human and Peoples’ Rights, 1981 (the Banjul Charter) Article 4 Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right. Article 5 Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited. Article 7 1. Every individual shall have: c. The right to defence, including the right to be defended by counsel of his choice. d. The right to be tried within a reasonable time. Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and People’s Rights, 1998 Article 3- Jurisdiction (1) The Jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned. Held
  1. Under article 3(1) of the Protocol to the African Charter on Human and Peoples’ Rights (the Protocol) on the Establishment of an African Court on Human and People’s Rights, the court had jurisdiction to examine any application submitted to it, provided that the rights of which violation was alleged were protected by the Banjul Charter or any other human rights instrument ratified by the respondent state.
  2. The applicant had exhausted local remedies as envisaged under article 56(5) of the Banjul Charter and rule 50(2)(e) of the Rules of Court, 2010 (the Rules).
  3. There was valid justification for the time taken by the applicant to file the application following the judgment of the Court of Appeal. Therefore, the delay of three (3) years, five (5) months and twenty-eight (28) days was reasonable within the meaning of article 56(6) of the Banjul Charter.
  4. The respondent state violated the right to life protected under article 4 of the Banjul Charter in respect to the provision in its Penal Code for mandatory imposition of the death sentence as it removed the discretion of the judicial officer to consider other circumstances pleaded in the case.
  5. The respondent state violated the applicant’s right to be tried without undue delay protected under article 7(1)(d) of the Banjul Charter.
  6. The applicant failed to demonstrate that the authorities of the respondent state restrained his counsel in any manner from investigating his personal, social and health history. The applicant did not demonstrate that the respondent state failed to consider his request for more time before and after the commencement of the proceedings. The respondent state did not violate the applicant’s right to effective legal representation protected under article 7(1) of the Banjul Charter.
  7. The respondent state violated the applicant’s right not to be subjected to inhuman and degrading treatment protected under article 5 of the Banjul Charter in respect to the lengthy pre-trial detention, detention in the death row, and confinement.
Application allowed; each party to bear its own costs. Orders
  1. The respondent state was to pay to the applicant Tanzanian shillings seven million (TZS 7,000,000) for moral damage that ensued from the violations of his fundamental rights. The amount was to be paid free from taxation within six (6) months effective from the notification of the judgment, failure to which the respondent was to pay interest on arrears calculated on the basis of the applicable rate of the bank of Tanzania throughout the period of delayed payment and until the accrued amount was fully paid.
  2. The respondent state was to take all the necessary measures within six (6) months from the notification of the judgment to remove the mandatory imposition of the death penalty from its laws.
  3. The respondent state was to take all necessary measures within one (1) year of the notification of the judgment, for the rehearing of the case on the sentencing of the applicant through a procedure that did not allow the mandatory imposition of the death sentence.
  4. The respondent state was to publish the judgment within a period of three (3) months from the date of notification on the websites of the Judiciary, and the Ministry for Constitutional and Legal Affairs, and ensure that the text of the judgment was accessible for at least one (1) year after the date of publication.
  5. The respondent state was to submit to the court within six (6) months from the date of the notification of the judgment, a report on the status of implementation of the decision of the court and thereafter, every six (6) months until the Court considered that there had been full implementation thereof.
Relevance to the Kenyan jurisprudence Kenya is a state party to the African Charter on Human and Peoples’ rights having ratified it in January 23, 1992 and the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights having ratified it on February 4, 2004. Therefore, the decisions of the African Court on Human and Peoples’ Rights form part of Kenyan law as per article 2 (6) of the Constitution of Kenya, 2010. Article 26 of the Constitution of Kenya 2010, provides that every person has the right to life. However, this right is not absolute as article 26 (3) permits deprivation of life within the confines of the law. Further, the right of an accused person to a fair trial is provided for under article 50(2) of the Constitution. This right is absolute as it is one of the rights which cannot be limited under article 25 of the constitution. In the case of Francis Karioko Muruatetu & another v Republic [2017] eKLR, the Supreme Court declared section 204 of the Penal Code which provided for mandatory death sentence for the offense of murder unconstitutional in the following terms: Consequently, we find that Section 204 of the Penal Code is inconsistent with the Constitution and invalid to the extent that it provides for the mandatory death sentence for murder. For the avoidance of doubt, this decision does not outlaw the death penalty, which is still applicable as a discretionary maximum punishment. Thus, it is clear that in Kenya a mandatory death penalty as prescribed under section 204 of the Penal Code is unconstitutional. Notably, imposition of a mandatory death sentence deprives the court of the use of judicial discretion in a matter of life and death. The mandatory nature deprives the courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. This was the reasoning of the court in Francis Karioko Muruatetu & another v Republic [2017] eKLR. Article 50 (2) (e) of the Constitution of Kenya states that every accused person has the right to have the trial begin and conclude without unreasonable delay. The Supreme Court of Kenya in the case of Joseph Lendrix Waswa v R (2020) eKLR observed as follows: In the instant matter, the delay of over six years in our opinion, defeats the intention of the framers of the Constitution and of Parliament to have criminal trials concluded expeditiously. The guarantee to have a criminal trial conducted without undue delay relates not only to the time by which a trial should commence but also the time by which it should end, judgment rendered and any applicable appeals or reviews completed. Additionally, courts in Kenya have on several occasions held that prolonged pre-trial detention of an accused person violates their fundamental rights to human dignity, freedom from cruel, inhuman and degrading treatment/punishment, and the right to a fair trial. In the case of Peter Tonny Wambua & 17 others v Attorney General [2017] eKLR, where the petitioners were held in pre-trial detention, the court found the detention unlawful holding thus: In the present case, the Respondent made no effort to explain why the Petitioners were incarcerated for long periods without being taken to any Court including the Court Martial. In their evidence, the Petitioners were held between 25 days and over 200 days and were thereafter either released without any charge or charged and convicted at the Court Martial…. [92] without an explanation as to why they were kept in custody from 1stAugust 1982 until proceedings at the Court Martial or until eventual release without charge, the Petitioners have proved that they were unlawfully detained and I so find. This case is therefore relevant to the Kenyan jurisprudence as it expands the jurisprudence on imposition of mandatory death sentence for the offense of murder. Also, it enlarges the jurisprudence on the rights of an accused person to a fair trial and not to be subjected to inhuman and degrading treatment.