44. Concerning those allegations that implicate the Republic of Kenya, the Court observes that the Republic of Kenya has not made the declaration required under Article 34 (6) of the Protocol allowing individuals to directly file an application before this Court. In this regard, the Court notes that the Registry of the Court has, in accordance with Rule 35 (2) (b) and (4) (b) of its Rules, invited the Republic of Kenya to intervene in the case, if it so wishes, since the Applicants are its nationals, but the Republic of Kenya did not do so and in these circumstances, the Court lacks personal jurisdiction to entertain allegations against Kenya.

45. The Court observes that its lack of competence on some allegations of the Applicants directed to the Republic of Kenya does not prevent it from proceeding with the examination of this Application and address those allegations raised against the Respondent. Articles 5 (3) and 34 (6) of the Protocol empower the Court to examine allegations brought before it in so far as these allegations involve the Respondent, which has deposited the required declaration.

46. In view of the above, the Respondent's preliminary objection to the competence of the Court on the basis that the present Application contains allegations which implicate the Republic of Kenya is dismissed and the Court finds that it has personal jurisdiction to examine the allegations against the Respondent in the instant Application.

C. Other Aspects of Jurisdiction

47. With regard to the other aspects of its jurisdiction, the Court notes:

1. that it has temporal jurisdiction since the alleged violations are continuous in nature, the Applicants having remained convicted on grounds which they believe are flawed by irregularities [see the Court's jurisprudence in the Zongo case]^[2]
2. that it has territorial jurisdiction in as much as the facts of the case occurred on the territory of a State Party to the Protocol, i.e. the Respondent State.

48. In view of the foregoing observations, the Court finds that it has jurisdiction to examine this Application.

VIl. ADMISSIBILITY OF THE APPLICATION

49. The admissibility requirements before the Court are provided in Articles 50 and 56 of the Charter, Article 6 (2) of the Protocol and Rules 39 and 40 of the Rules. These provisions mandate the Court to conduct a preliminary examination of an Application in accordance with Article 50 and 56 of the Charter. Rule 40 of the Rules provides as follows:

"Pursuant to the provisions of article 56 of the Charter... applications to the Court shall comply with the following conditions:

1. . disclose the identity of the Applicant notwithstanding the latter's request for anonymity;
2. comply with the Constitutive Act of the African Union or the Charter;
3. do not contain any disparaging or insulting language;
4. are not based exclusively on news disseminated through the mass media;
5. are filed after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged;
6. are filed within a reasonable period from the time local remedies were exhausted or from the date set by the Court as being the commencement of the time limit within which it shall be seized with the matter; and
7. do not raise any matter or issues previously settled by the parties in accordance with the principles of the Charter of the United Nations, the Constitutive Act of the African Union, the provisions of the Charter or of any other legal instrument of the African Union"

50. In its Response, the Respondent raises objections concerning two of the above conditions, namely, the requirements of exhaustion of local remedies and the time limit for seizure of the Court.

1. Objection based on non-exhaustion of local remedies

51. The Respondent argues that this Application fails to meet the requirement of Article 56(5) of the Chaffer. It contends that all allegations of violation of the rights of the Applicants are being raised and brought to its notice for the very first time in the instant Application, although local avenues of redress existed.

52. In this regard, the Respondent asserts that the Applicants had the possibility of lodging a petition regarding the alleged violations of their constitutional rights before the High Court pursuant to the Basic Rights and Duties Act No.9, Chapter 3, 2002. According to the Respondent, the Applicants should have utilised these available local avenues before approaching the Court. The Respondent adds that the Court is not a Court of first instance, but a Court of last resort.

53. The Applicants, in their Reply, argue that the local remedies indicated by the Respondent are extra-ordinary remedies, which, pursuant to the jurisprudence of the Court, need not be exhausted.

The Court's Assessment

54. The Court notes that six of the allegations made by the Applicants relating to: the alleged violation of 'all accepted principles of international law'; alleged violation of the right to equality before the law and equal protection of the law; the re-arrest of the Applicants after their acquittal; the incommunicado detention of the Applicants following their re-arrest; the failure of the Respondent to give copies of judgments of national courts in due time and the non-provision of legal assistance were not explicitly raised in the domestic proceedings. These are matters that are being raised for the first time in this Court. However, these allegations happened in the course of the domestic judicial proceedings that led to the Applicants' conviction and sentence to thirty (30) years' imprisonment. They all form part of the "bundle of rights and guarantees" that were related to or were the basis of their appeals. The domestic authorities thus had ample opportunities to address these allegations even without the Applicants having raised them explicitly. It would therefore be unreasonable to require the Applicants to lodge a new application before the domestic courts to seek redress for these claims^[3]

55. With regard to the other two claims relating to the procedural irregularities claimed to have existed in the identification parade and the alleged violation of the Applicants' presumption of innocence contrary to article 7 of the Charter, the records available before the Court show that the Applicants raised these matters before the domestic courts. ^[4] Therefore, the Applicants have exhausted local remedies with respect to such claims.

56. Furthermore, the jurisprudence of this Court has established that the requirement of exhaustion of local remedies is applicable only with respect to ordinary, available and efficient judicial remedies but not extraordinary or nonjudicial remedies. In this regard, the Respondent alleges that the Applicants could have filed a constitutional petition to the High Court before they bring their matter to this Court. On this issue, this Court has held that the said constitutional review is "not common, that it is not granted as of a right and that it can be exercised only exceptionally... and is available as extraordinary remedy" in the Respondent State, thus, the Applicant was not required to pursue it. ^[5] In the same vein, it was not necessary for the Applicants in the instant Application to approach the High Court to seek constitutional redress for the violations of their rights because such remedy was extraordinary.

57. In view of the foregoing, the Court therefore decides that the requirement of exhaustion of local remedies is satisfied in the instant Application in terms of Article 56 (5) of the Charter.

2. Objection based on the alleged failure to file the Application within a reasonable time

i) Respondent's Submission

58. The Respondent submits that the Application should be found to be inadmissible on the ground that it was not filed within a reasonable time after exhaustion of local remedies. The Respondent contends that the Applicants received the Court of Appeal's judgment on 19 December 2005 (sic) and the Respondent deposited the declaration in terms of Article 34 (6) of the Protocol on 29 March 2010. According to the Respondent, reckoned from the date when the Respondent deposited its declaration, it was after four (4) years and two (2) months that the Application was filed before the Court on 7 January 2015.

59. With regard to the second Applicant, the Respondent argues that the decision on his Application for review of the Court of Appeal's judgment was delivered on 12 June 2013 and as the Respondent had already accepted the individual complainant mechanism under Article 34(6) of the Protocol on 29 March 2010, this date, that is, 12 June 2013, should be the relevant date to calculate the time under Article 56 (6) of the Charter. On this basis, the Respondent submits that three (3) years and two (2) months lapsed when the Application was filed, which according to the Respondent is not a reasonable time.

ii) Applicants' Submission

60. On their part, the Applicants argue that the Court of Appeals' judgment was delivered on 24 December 2009, but the copies of the judgment were served on them about two years later, on 2 November 2011. Relying on the Court's jurisprudence ^[6] , the Applicants contend that the assessment of reasonableness of the time under Article 56(6) of the Charter depends on the circumstances of each case, and in the present case, given that the Applicants are both lay, indigent, and incarcerated persons without the benefit of legal education or assistance, their particular circumstances provide sufficient grounds for this Application to be admissible.

iii) The Court's Assessment

61. The Court notes that Article 56 (6) of the Charter does not indicate a precise timeline in which an Application shall be brought to this Court. Its mirror provision in the Rules, that is, Rule 40 (6) simply provides for "reasonable time from the date local remedies were exhausted or from the date set by the Court as being the commencement of the time limit within which it shall be seized of the matter." It is therefore within the discretion of the Court to determine the reasonableness of the time in which an Application is filed.

62. On several occasions, this Court has emphasized that "whether an Application has been filed within reasonable time after exhaustion of local remedies is decided on a case by case basis depending on the circumstances of each case. "The Court has also held that when domestic remedies were exhausted before a State made its declaration under Article 34 (6) of the Protocol, reasonable time under Article 56(6) of the Charter shall be reckoned from the date the Respondent deposited the instrument of its declaration.

63. In the instant case, the Court notes that the judgment of the Court of Appeal in Criminal Appeal No. 48 of 2006 was delivered on 24^th of December 2009 and that the Applicants received the decision of the Court of Appeal only on the 2^nd of November 2011. The Court also notes that the second Applicant's application for review of the Court of Appeal decision was dismissed by the Court of Appeal on 9 June 2014. There is no evidence on record showing that the first Applicant also pursued a similar Application for review.

64. Although the judgment of the Court of Appeal was rendered on 24 November 2009 both Applicants received the copies of the judgment only on 2^nd of November 201 1. With respect to the first Applicant, the relevant time should thus run from this date when he received copies of the judgment. From this date until the date the Court was seized of the matter, that is, 7 January 2015, about three (3) years and two (2) months had lapsed for the first Applicant.

65. On the other hand, as the second Applicant opted to pursue the application for review proceeding in the Court of Appeal, the date on which his Application for review was dismissed, that is, 9 June 2014, should be the relevant date to assess reasonableness under Article 56(6). Accordingly, from this date, about seven months had lapsed until the date when the Application was filed before the Court.

66. The key issue for the Court to determine is whether the three years and two months period for the first Applicant and the seven months' time for the second Applicant are, in view of the circumstances of the case, to be considered as reasonable in terms of Rule 40 (6) of the Rules.

67. With respect to the second Applicant, given that he is lay, incarcerated and indigent person with no legal assistance, the Court holds that seven months period is not unreasonable.

68. Regarding the first Applicant, the Court observes that three years and two months' time is relatively long to bring an Application to the Court. However, like the second Applicant, he is also lay, incarcerated and indigent person without the benefit of legal education and legal assistance until this Court assigned PALU to provide him with pro bono legal representation services. In view of this, with respect to the second Applicant, too, the Court finds that the time in which the Application was filed is reasonable.

69. The Court thus, finds that the filing of the Application was done within a reasonable time in terms of Article 56 (6) of the Charter as restated in Rule 40(6) and therefore, that the Application meets this criterion.

3. Admissibility requirements that are not in contention between the Parties

70. The requirements regarding the identity of Applicants, the language used in the Application, compliance with the Constitutive Act of the African Union, the nature of the evidence and the non bis in idem principle (Rule 40(1), 40(2), 40(3), 40(4), 40(7) of the Rules) are not in contention between the Parties.

71. The Court also notes, for its part, that nothing in the records submitted to it by the Parties suggests that any of the above requirements has not been met in the instant case.

72. Consequently, the Court holds that the requirements under consideration in this regard have been fully met and concludes that the Application is admissible.

VIII. ON THE MERITS

73. The Applicants' allegations relate to violations of Articles 1, 3, 5, 6 and 7 of the Charter. The Court now makes an assessment of each of these alleged violations, the Respondent's responses thereto and the merits of the parties' claims. In line with the sequence of events which gave rise to the various alleged violations, the Court deems it appropriate to examine first those allegations relating to article 7 of the Charter.

A. Allegations of violations of the right to a fair trial under Article 7 of the Charter

74. In relation to Article 7, of the Charter, the allegations of the Applicants have several prongs, which are treated separately below.

1/ Allegation regarding illegal extradition

i) Applicants' Submissions

75. The Applicants submit that they were extradited from Kenya unlawfully as there was no extradition treaty between Kenya and Tanzania. They also allege that they were prevented from exercising their rights of appeal following the order of extradition issued by the Nairobi Law Court on 22 March 2003 as they were immediately taken to the United Republic of Tanzania by a contingent of both Kenyan and Tanzanian police.

ii) Respondent's Submissions

76. On its part, the Respondent avers that the extradition of the Applicants was not illegal as it was carried out in accordance with the Extradition Acts of both countries on a reciprocal basis. The Respondent annexed a document titled the "Extradition Act, 1965" showing an extradition agreement between the Respondent and the Republic of Kenya. On this basis, the Respondent contends that this allegation lacks merit and that it should be dismissed.

iii) The Court's Assessment

77. The Court notes that the Applicants' complaint in respect of their extradition has two related facets: first, the claim that the Applicants were extradited without a pre-existing extradition agreement between the Respondent and the Republic of Kenya. Second, the allegation that the Applicants were denied their right to appeal against the extradition order because of the swift implementation of the order by a joint Kenyan and Tanzanian Police force.

78. However, the Court recalls its earlier finding that its jurisdiction is only limited to allegations involving the responsibility of the Respondent, as the Republic of Kenya has not made a declaration allowing individuals and NGOs to access this Court and is not party to these proceedings.

79. The Court observes that it is the Republic of Kenya which extradited the Applicants and the Respondent may not be held responsible for the conduct of the Republic of Kenya in the course of the extradition. Therefore, the allegation of the Applicants that they were extradited unlawfully and that their extradition violated their right to appeal under article 7 (1) (a) of the Charter is hereby dismissed.

2/ Alleged Violations relating to the Identification Parade

i) Applicants' Submissions

80. The Applicants allege that the identification parade exercise of 25 March 2003, was carried out after their pictures and descriptions taken by I.T.V and TVT media, the day before at the Namanga border, were in most of the local newspapers and had been aired by different TV channels in Tanzania. The Applicants contend that this made it easier for some witnesses to identify them, and therefore, the identification parade was null, as it was not carried out following standard procedures.

 ii) Respondent's Submissions

81. On its part, the Respondent argues that the identification evidence was highly scrutinized by the Court of Appeal in Criminal Appeal No. 48 of 2006, that the Court of Appeal discarded any evidence that was not watertight, and only admitted the identification evidence that met the standard of "proof beyond reasonable doubt". The Respondent submits that this allegation lacks merit and should be dismissed.

iii) The Court's Assessment

82. Article 7 (1) of the Charter provides as follows:

"Every individual shall have the right to have his cause heard. This comprises:

1. . The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;
2. The right to be presumed innocent until proved guilty by a competent court or tribunal;
3. The right to defence, including the right to be defended by counsel of his choice;
4. The right to be tried within a reasonable time by an impartial court or tribunal"           

83. From the submissions of both parties, the main issue for determination is whether the identification parade that led to the conviction of the Applicants was conducted in manner contrary to the Charter or other international human rights standards.

84. From the records available before it, the Court notes that the only evidence on which the Court of Appeal relied to sustain the conviction of the Applicants by the High Court is the testimony given by an eye witness (PW 8) who claimed to have identified the Applicants during the identification parade. ^[7]

85. The Court also notes that the witnesses who participated in the identification parade have, while providing their testimony, indicated that they did not see the Applicants on before the date of the said parade. However, the Applicants further allege that their images were disseminated not only on but also through newspapers before the parade, which the Respondent has not directly refuted.

86. It is a matter of common sense that in criminal proceedings, identification parade is not necessary and cannot be carried out if witnesses previously knew or saw a suspect before the identification parade. The Court notes that this is also the practice in the jurisdiction of the Respondent State^[8] .

87. In the instant case, the records of both the High Court and the Court of Appeal do not show that this requirement was fulfilled. Although some of the witnesses provided affidavits stating that they had not watched TV before the identification parade, neither of them (including PW 8 whose only testimony was used to sustain conviction) clearly stated that he/she did not see the images of the Applicants before the said parade in local newspapers. This implies that the identification parade was conducted despite the fact that the witnesses may have had a chance to see the Applicants in local newspapers.

88. In this regard, the Respondent has not supplied evidence showing that the domestic courts took measures to verify whether or not the witnesses read newspapers. In light of the probability that witnesses may have seen the Applicants on local TV channels and newspapers, the safeguards which applied in the assessment of the evidence were inadequate. ^[9] Given that the conviction of the Applicants depended only on evidence from a single witness testimony obtained during this identification parade, there is an additional reason to doubt the context in which they were convicted. In these circumstances, the Court concludes that the procedural irregularities in the identification parade affected the fairness of the Applicants' trial and conviction.

89. The Court, therefore, holds that there was a violation of the right to a fair trial of the Applicants under Article 7 (1) of the Charter.

3/ The allegation concerning the defence of Alibi

i) Applicants' Submission

90. The Applicants argue that their right to respect for the presumption of innocence under Article 7 (1) (b) of the Charter (sic) was violated because both the Court of Appeal and the High Court arbitrarily rejected their defence of alibi. ^[10]

91. The Applicants complain that they submitted evidence attesting that they had never been to Tanzania before their extradition and they were in Kenya on the day and at the time the crime allegedly was committed. The Applicants assert that both the High Court and the Court of Appeal also acknowledged, in their respective judgments, that the passports of the Applicants show nothing suggesting their travel to Tanzania on the day of the crime. The Applicants allege that, this notwithstanding and even though no corroborating evidence was adduced, both Courts disregarded their defence of alibi on a wrong assumption that the Applicants could have used illegal routes ("panya routes") (to enter Tanzania and this would not have been reflected on their passports.

ii) Respondent's Submission

92. The Respondent has not made any submissions on this allegation.

iii) The Court's Assessment

93. The Court notes that an alibi is an important instrument of evidence for one's defence. The defence of alibi is implicit in the right of a fair trial and should be thoroughly examined and possibly set aside, prior to a guilty verdict- ^[11][12] In its judgment in Mohamed Abubakari v Tanzania, this Court observed that:

"Where an alibi is established with certitude, it can be decisive on the determination of the guilt of the accused. This issue was all the more crucial especially as, in the instant case, the indictment of the Applicant relied on the statements of a single witness, and that no identification parade was conducted."

94. In the present case, the records of the domestic judicial proceedings clearly evince that the Applicants had invoked an alibi during their trial, and the domestic Courts of the Respondent indeed considered the issue. The Court of Appeal specifically addressed the matter and rejected the defence after weighing it up vis-å-vis the testimony given by the witness PW 8 and found that this witness's testimony is strong enough to dispel the defence of alibi raised by the Applicants. ^[13]

95. The Court however recalls its finding above that the testimony of the single Prosecution Witness (PW8) was obtained following an identification parade which was marred by procedural irregularity. Therefore, the conviction of the Applicants relying solely on this single witness (PW8)'s testimony and on the basis of an uncorroborated assumption that the Applicants might have used other illegal ("panaya") routes to enter Tanzania did not amount to due and serious consideration of the Applicants' alibi defence and thus, violated their right to defence under article 7 (1) (c) of the Charter.

4/ The Allegation relating to the Applicants' conviction and sentencing to a 30 years' imprisonment

i) Applicants' Submissions

96. The Applicants allege that their conviction and sentencing to a 30-years imprisonment term was unconstitutional and contrary to Article 7 (2) of the Charter

ii) Respondent's Submissions

97. The Respondent denies the Applicants' allegations and submits that the conviction and sentencing of the Applicants was based on Sections 285 & 286 of the Respondent's Penal Code Cap 16 (which define the offences of robbery and armed robbery), and the Minimum Sentences Act of 1972 as amended by Act No 10 of 1989 and later by Act No. 6 of 1994 (which provides the punishment of the offences of robbery and armed robbery). It submits that the conviction and sentencing of the Applicants were done according to the Respondent's applicable laws and therefore not contrary to the Constitution and Article 7(2) of the Charter. The Respondent also adds that, if the Applicants are complaining of the length of penalty for armed robbery, the Court does not have the authority to examine the constitutionality of the length of a punishment stipulated for a crime in its domestic legislation.

iii) The Court's Assessment

98. The Court observes from the particulars of the case, that with regard to the length of the imprisonment imposed on them, the Applicants simply assert that their sentence to 30 years imprisonment violates the Constitution of the Respondent and Article 7 (2) of the Charter. Article 7 (2) of the Charter provides that:

"No one may be condemned for an act of omission, which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender."

99. It emerges from the file that the relevant question at stake is whether the penalty to which the Applicants were sentenced on 19 December 2005 and upheld on 24 December 2009 was not provided for in the law.

100. The records before this Court indicate that the armed robbery for which the Applicants were convicted was committed on 5^th of November 2002. Following their extradition to the Respondent on 24 March 2003, the Applicants were charged at the Resident Magistrate's Court of Dar es Salaam at Kisutu for crimes of armed robbery and conspiracy to commit crimes contrary to Sections 285 and 286 of the Penal Code as amended by Act No. 10 of 1989. Both crimes were defined in the Penal Code and the amending Act. According to Section 286 of this Penal Code a person convicted of armed robbery is liable to a penalty of life imprisonment with or without corporeal punishment. Section 5 (b) of the Minimum Sentences Act of 1972 as amended by the 1994 Written Laws Amendment, also prescribes that the minimum sentence for the said offence is thirty (30) years. The two provisions read together show that the applicable penalty for armed robbery is a minimum of thirty (30) years imprisonment.

101. It follows that the Applicants were convicted and punished on the basis of legislation that existed before the date of commission of the crime, that is, 5 November 2002 and the punishment imposed on them was also prescribed in the same legislation. The Applicants' allegation that their conviction and penalty violates the Charter thus lacks merit and the Court therefore finds that there was no violation of Article 7 (2) of the Charter.

5/ The Alleged Violation relating to free legal aid

i) Applicants' Submissions

102. In their submissions, the Applicants aver that their rights protected under Article 7 (1) (c) of the Charter were violated because they were not given legal assistance in the Court of Appeal, although they were lay, indigent and incarcerated persons facing offences carrying heavy sentences. They further claim that the non-provision of legal aid violated the rule specified in many international instruments, including soft laws, which impose obligations on the Respondent to afford legal assistance.

ii) Respondents' Submissions

103. The Respondent has not responded to this allegation.

iii) The Court's Assessment

104. The Court notes that the Charter does not explicitly provide for the right to legal assistance. However, in its previous judgment in the matter of Alex Thomas v. The United Republic of Tanzania, this Court stated that free legal aid is a right implicit in the right to defense enshrined under Article 7 (1) (c) of the Charter. In the same case, the Court identified two cumulative conditions required for an accused person to be eligible for the right of legal assistance: indigence and the interests of justice.

105. In assessing these conditions, the Court considers several factors, including (i) the seriousness of the crime, (ii) the severity of the potential sentence; (iii) the complexity of the case; (iv) the social and personal situation of the defendant and , in cases of appeal, the substance of the appeal (whether it contains a contention that requires legal knowledge or skill), and the nature of the "entirety of the proceedings", for example, whether there are considerable disagreements on points of law or fact in the judgments of lower courts. ^[14]

106. The Court observes that, as long as the conditions which would warrant legal assistance exist, free legal assistance should be made available in all trial and appellate proceedings

107. In the instant case, the Court notes that the Applicants were represented by lawyers both at the trial Magistrate's Court and the High Court, although from the records of the case file it is not clear if the lawyers were contracted by the Applicants themselves or by the Respondent. ^[15] Thus, it was only in the Court of Appeal that the Applicants were not represented. The issue that shall therefore be addressed is whether the conditions that justify the provision of legal assistance were available during the appellate proceedings at the Court of Appeal.

108. With regard to the first condition of indigence, the Respondent has not disputed the claim of the Applicants that they are indigent. The Court thus considers this requirement as having been met.

109. With respect to the second requirement that the interest of justice must warrant the provision of legal assistance, the Court considers that the crime of armed robbery that the Applicants were convicted of was serious and the 30 years' imprisonment that they were sentenced to was severe with grave repercussions on the right to liberty of the Applicants.

110. The case further contains numerous complex legal and factual questions (involving 22 prosecution and 10 defence witnesses) that require considerable legal knowledge and technical pleading skills, which ordinary and lay individuals, as the Applicants are, do not often have. In this regard, the Court notes that, in the course of the domestic proceedings, the trial Magistrate Court and the High Court made divergent findings both in law and fact. Whereas the trial magistrate acquitted the Applicants, the High Court reversed the acquittal and convicted the Applicants. Furthermore, although the Court of Appeal confirmed the decision and sentence of the High Court, it differed in its reasoning. All these confirm the complexity of the case.

111. In these circumstances, the Court is of the view that the interest of justice made the provision of free legal representation particularly indispensable in the appellate proceedings of the Court of Appeal.

112. The Court thus concludes that the failure of the Respondent to provide the Applicants with free legal aid in the Court of Appeal was a violation of their right to defence under article 7 (1) (c) of the Charter.

6) Allegation concerning the delay in the delivery of copies of the judgment

i) Applicants' Submission

113. The Applicants submit that their right to a fair trial was violated by the Respondent's failure to provide them with copies of the judgment of the Court of Appeal in Criminal Appeal No. 48 of 2006 until about two years later. They contend that the delay led to their inability to file a petition for a review of the Appeal Court's judgment, and the subsequent dismissal of their Application for extension of time to file a petition for review.

ii) Respondent's Submissions

114. The Respondent admits that the judgment in Criminal Appeal No. 48 of 2006 was delivered on 24 December 2009 and that the Applicants received the decision of the Court of Appeal only on 2 November 2011. The Respondent also concedes that the time in which the Applicants could have lodged a request for review of the judgment had already expired when the Applicants received the copies of the said judgment.

115. Nevertheless, the Respondent argues that the reason for the dismissal of the 2nd Applicant's application for extension of time to file a review was not based on the lapse of time, but on the merits of the application, which according to the Judge of the Court of Appeal, did not warrant the granting of the extension of time.

iii) The Court's Assessment

116. From the submissions of the Parties, the Court deduces that the matter in dispute here is whether the delay in the delivery of copies of judgment of the Court of Appeal affected the right of the Applicants' right to request for review of the judgment and whether this constitutes a violation of their right to have one's cause heard, which is a fair trial right stipulated under Article 7 (1) of the Charter.

117. The Court observes that the right of an individual to have his cause heard includes a set of other rights listed under article 7 (1) of the Charter and other international human rights treaties ratified by the Respondent. The term "comprises" in article 7 (1) of the Charter predicates that the list is not exhaustive and the right to be heard may also include other entitlements available for individuals both in international law and the domestic law of the concerned State. In the instant case, the Applicants have had appeals heard by the High Court and Court of Appeal of the Respondent. The national law further provides for the possibility of a review of the decision of the Court of Appeal in the event that a decision is tainted by procedural irregularities, which have caused injustice to a party. ^[16]

118. A party would not be in a position to lodge a meaningful application for a review of a particular judgment unless it is in possession of copies of the judgment that it seeks to get reviewed. In this regard, the timely delivery of copies of a judgment is an important consideration especially in circumstances where a considerable delay affects the right of individuals to pursue possible redress available in the domestic system. In Alex Thomas v. the United Republic of Tanzania, this Court held that:

"It was the responsibility of the Courts of the Respondent to provide the Applicant with the Court record he required to pursue his appeal. Failure to do so and then maintain that the delay in the hearing of the Applicant's appeal was the Applicant's fault is unacceptable. the Applicant made several attempts to obtain the relevant records of proceedings but the judicial authorities unduly delayed in providing him with these records- "24

119. The Court notes that in Alex Thomas v Tanzania, the delay was related to the provision of court records to pursue an appeal. In contrast, in this instant case, the delay relates to the provision of copies of judgments to enable the Applicants to pursue an application for review. The Court considers that the principle laid down in Alex Thomas v. Tanzania equally applies in this case in that the right of Applicants to pursue possible redress available in the domestic system was affected by the delay in providing them with copies of the judgment.

120. The Court accordingly considers that the failure of the Respondent to provide the Applicants with copies of the judgment of the Court of Appeal for almost two years, without adducing any justification, is an inordinate delay. The Court also holds that the delay certainly affected the right of the Applicants to request for review within the time specified under the domestic law.

121. In view of the above, the Court finds that the unjustified delay of two years to deliver the copies of the judgment to the Applicants violated their right to be heard under Article 7 (1) of the Charter.

B) Allegations relating to arbitrary arrest contrary to article 6 of the Charter

122. Under article 6 of the Charter, the Applicants invoke the responsibility of the Respondent for the violation of their right to liberty as a result of their alleged arbitrary arrest in the Republic of Kenya before their extradition and their rearrest by Tanzanian authorities after they were acquitted of criminal charges by the Magistrate's Court.

1) The Allegation relating to the Applicants' being held in custody for three weeks

123. The Applicants submit that they were held in custody for 3 weeks by the authorities of the Republic of Kenya before being arraigned in court, and that this was in violation of their basic rights. The Respondent contends that it is directed to the Republic of Kenya, which is not a party to the instant Application.

124. The Court reiterates its position that it lacks personal jurisdiction to entertain allegations against the Republic of Kenya and therefore, dismisses this allegation.

2) Allegation relating to the re-arrest after acquittal

i) Applicants' Submissions

125. The Applicants allege that their rights under Article 6 of the Charter were violated when they were re-arrested by the Police after the trial Magistrate at Kisutu acquitted them. The Applicants argue that after they were acquitted of charges of armed robbery and conspiracy to commit crimes, they were immediately re-arrested and charged before the Resident Magistrate Court of Dar es Salaam at Kisutu with the crime of stealing contrary to section 265 and armed robbery contrary to Section 287 of the Penal Code of the Respondent. They claim that the re-arrest and subsequent charges of stealing and armed robbery violated their right to presumption of innocence.

ii) Respondent's Submissions

126. The Respondent argues that the Applicants were lawfully re-arrested and that the second charges were subsequently withdrawn in the interest of justice and the rights of the Applicants.

iii) The Court's Assessment

127. From the records available before it, the Court notes that on 26 March 2003, the Applicants were arraigned at the Kisutu Resident Magistrate Court in Dar es Salaam and charged with two counts under the Penal Code, Cap 16. The first count was conspiracy to commit an offence contrary to Section 384 and the second count was armed robbery contrary to Sections 285 and 286 of the Penal Code. The particulars of the case, undisputed by the Respondent, also show that after the Kisutu Resident Magistrate's acquitted them of these counts, they were, on 14 March 2005, again arraigned before the same Court on two new charges:(i) stealing, contrary to Section 265 of the Penal Code in Criminal Case No. 399/2005 and (ii) armed robbery, contrary to Section 287 of the Penal Code in Criminal Case No. 400/2005.

128. These charges were later dropped when the appeal made on the original charge of armed robbery succeeded at the High Court, where their acquittal was set aside and substituted with conviction and a sentence of 30 years' imprisonment. It appears from this series of facts that the authorities of the Respondent issued a new charge on different sections of the Penal Code against the Applicants on the basis of the same facts as those relied upon in the original armed robbery charge and to the same trial Magistrate.

129. In view of the above, the question this Court should address is whether the re-arrest of the Applicants was contrary to Article 6 of the Charter, which provides that:

"Everyone shall have the right to liberty and security of his person and that no one shall be deprived of his freedom except for reasons and conditions laid down by law. In particular, no one may be arbitrarily arrested or detained. "

130. Under Article 6 of the Charter, the right to liberty prohibits arbitrary arrest and this generally involves the deprivation of liberty of individuals contrary to the law or against the reasons and conditions specified by the law.  The notion of arbitrariness also covers deprivation of liberty contrary to the standard of reasonableness, that is, whether it is "just, necessary, proportionate and equitable in opposition to unjust, absurd and arbitrary.

131. The established international human rights jurisprudence sets three criteria to determine whether or not a particular deprivation of liberty is arbitrary, namely, the lawfulness of the deprivation, the existence of clear and reasonable grounds and the availability of procedural safeguards against arbitrariness. ²⁸ These are cumulative conditions and non-compliance with one makes the deprivation of liberty arbitrary.

i) The lawfulness of the detention

132. The Court notes that arrest or detention that lacks any legal basis is arbitrary. Any deprivation of liberty shall have a legal basis or shall be carried out in "accordance with the law 30

133. In the case at hand, the Respondent generally argues that the re-arrest of the Applicants was lawful without indicating the specific law on the basis of which the re-arrest was made. Nonetheless, the Court infers from the undisputed submission of the Applicants that they were re-arrested on the basis of section 265 of the Penal Code of the Respondent. The Court thus, holds that there was an adequate legal basis for the re-arrest and that it was conducted "in accordance with the law".

ii) The Existence of clear and reasonable grounds

134. The Court notes that a deprivation of liberty shall also have clear and reasonable grounds. Although Article 6 of the Charter does not explicitly require that the grounds should be clear or reasonable, the expression "reasons and conditions" in the same implies that any arrest or detention should not be conducted without adequate or reasonable grounds.

135. In the present case, the Applicants were arrested on the basis of a criminal charge. It is a trite law that the arrest or detention of individuals for purpose of criminal charge is a common and valid ground for detention recognized by both the domestic legislation of the Respondent and international human rights law. ^[17] However, the Court considers that the validity of a particular ground for deprivation of liberty shall also be examined in accordance with the circumstances of each case and in the light of the requirement of reasonableness. In the context of criminal proceedings, once an accused is acquitted of a particular crime by a court of law, the fundamental right to liberty and also the standard of reasonableness require that s/he shall be released forthwith and be allowed to enjoy his liberty unhindered.

136. In the instant Application, the Applicants were released in accordance with the decision of the trial Magistrate's Court acquitting them of charges of armed robbery and conspiracy to commit crimes, but re-arrested immediately and kept in detention. They were subsequently charged with another crime of stealing and armed robbery based on the same facts under different sections of the Penal code. The Respondent has not proffered any reason as to why it was necessary to charge the Applicants with a new crime of stealing and armed robbery on the basis of the same facts after a court of law had already acquitted the Applicants of similar charges.

137. The Court is of the view that it is inappropriate, unjust, and thus, arbitrary to re-arrest an individual and file new charges based on the same facts without justification after s/he has been acquitted of a particular crime by a court of law. The right to liberty becomes illusory and due process of law ends up being unpredictable if individuals can anytime be re-arrested and charged with new crimes after a court of law has declared their innocence. The Court thus finds that there was no a reasonable ground for the re-arrest of the Applicants in the time between their acquittal by the Resident Magistrate's Court and their conviction by High Court for the initial charges.

138. In view of this finding, the Court deems it unnecessary to examine the issue whether the third requirement relating to the availability of procedural safeguards against arbitrariness was met.

139. The Court therefore holds that the Respondent has violated the right to liberty of the Applicants under Article 6 of the Charter by arbitrarily re-arresting and charging them with fresh crimes based on the same facts after they were acquitted of the same by a court of law.

C) The Alleged Incommunicado detention of the Applicants in contravention of Article 5 of the Charter

i) Applicants' Submissions

140. The Applicants submit that, following their re-arrest by the Respondent's authorities, they were detained for four days in a police cell without food and access to the outside world. They allege that their detention was unlawful and violated their rights as guaranteed under Articles 5 of the Charter.

i) Respondents' Submissions

141. The Respondent on its part denies the allegation that the Applicants were detained incommunicado without food, and requests that the Applicants be put to the strictest proof thereof.\

ii) The Court's Assessment

142. The Court notes that it is a fundamental rule of law that anyone who alleges a fact shall provide evidence to prove it. However, when it comes to violations of human rights, this rule cannot be rigidly applied. By their nature, some human rights violations relating to cases of incommunicado detention and enforced disappearances are shrouded with secrecy and are usually committed outside the shadow of law and public sight. The victims of human rights may thus be practically unable to prove their allegations as the means to verify their allegation are likely to be controlled by the State. ^[18]

143. In such circumstances, "neither party is alone in bearing the burden of proof'34 and the determination of the burden of proof depends on "the type of facts which it is necessary to establish for the purposes of the decision of the case" It is therefore for this Court to evaluate all the circumstances of the case with a view to establishing the facts.

144. In the instant case, the Applicants simply assert that they were detained for four days in a police cell without food and access to the external environment. Given the particular condition of their detention, the Court understands that it may be difficult for them to prove their contention.

145. Nevertheless, the Applicants have not submitted any prima facie evidence to support their allegation which could enable the Court to shift the burden of proof to the Respondent. The Court recalls that the Applicants had lawyers both at the Magistrate's Court and the High Court and there is nothing on record to show that they raised the matter before the courts of the Respondent or communicated the condition of their detention to their lawyers, or their government.

146. In view of the foregoing, the Court finds that the allegation lacks merit and is hereby dismissed.

D) Allegation of violation of Article 3 of the Charter

i) Applicants' Submissions

147. The Applicants generally allege without providing specifics, that the Respondent has violated their right under Article 3 of the Charter.

ii) Respondent's Submissions

148. The Respondent maintains that Articles 12 and 13 of the Constitution of the United Republic of Tanzania firmly guarantee these rights and that the Applicants have failed to demonstrate how these guarantees of equality were not applied to them therefore resulting in the alleged violations. The Respondent also reiterates that Section 9(1) of the Basic Rights and Duties Enforcement Act [Cap 3 RE 2002] also provides adequate safeguards against the alleged violation.

iii) The Court's Assessment

149. Article 3 of the African Charter provides that:

"Every individual shall be equal before the law. Every individual shall be entitled to equal protection of the law"

150. This provision has two limbs, namely, the right to equality before the law and the right to equal protection of the law.

151. With regard to the right to equal protection of the law, the Court notes that this is recognized and guaranteed in the Constitution of the Respondent. The relevant provisions (Articles 12 and 13) of the Constitution enshrine the right in its sacred form and content on equal par with the Charter, including by prohibiting discrimination.

152. Concerning the right to equality before the law, in their submissions, the Applicants have alleged that their right under Article 3 of the Charter has been violated by the Respondent without specifying how and under what contexts that they have been discriminated against. The Court has, in the case of Abubakari v Tanzania, held that "it is incumbent on the Party purporting to have been a victim of discriminatory treatment to provide proof thereof'. ^[19]The Applicants have not indicated circumstances where they were subjected to unjustified differential treatment in comparison to other persons in a similar situation. ^[20] As this Court has stated in its case law of Alex Thomas v Tanzania, "General statements to the effect that [a] right has been violated are not enough. More substantiation is required. ^[21]"

153. The Court therefore dismisses the Applicants' allegation that their rights under Article 3 of the Charter were violated.

E) The Allegation concerning the violation of all accepted principles of human rights and international law

i) Applicants' Submissions

154. The Applicants also make a general submission that both the Kenyan and the Tanzanian Governments have violated all accepted principles of human rights and international law through their actions.

ii) Respondent's Submissions

155. With regard to part of the allegation directed against it, the Respondent State submits that this allegation is not clear and specific. It argues that the Applicants have not specified with precision which principles and what areas of international law have been violated. In the opinion of the Respondent, the phrase "all accepted principles of human rights and international law" is vague and general-

iii) The Court's Assessment

156. The Court has already dismissed the claim of the Applicants against the Government of Kenya for lack of personal jurisdiction as specified above (para. 44).

157.As far as the Respondent is concerned, the Court has previously decided that it can only examine a specific allegation of human rights violation only when either the facts indicating such violation or the nature of the right which was allegedly violated is adequately stated in the Application. ^[22] The instant allegation lacks precision in both respects. The Applicants have not clearly stated the specific right or principle of human rights or international law, which is said to be violated nor have they sufficiently indicated the factual basis of such alleged violation. As a result, the Court is unable to make a determination on the merits of the substance of the Applicants' allegation because of its generalised nature and finds no violation of a right protected in the Charter or other international human rights instruments ratified by the Respondent.

F) Allegation that the Respondent State has violated Article 1 of the Charter

158. The Applicants allege that the Respondent has breached its obligation under Article 1 of the Charter by failing to give effect to the rights enshrined in it. ⁴⁰ The Respondent has not made any submission on this allegation.

159. The Court reiterates its position in the matter of Alex Thomas v Tanzania that Article 1 of the Charter imposes on States Parties the duty to recognize the rights guaranteed therein and to adopt legislative and other measures to give effect to these rights, duties and freedoms." Accordingly, in assessing whether or not a State has violated Article 1 of the Charter, the Court examines not only the availability of domestic legislative measures taken by the State but also whether the application of those legislative or other measures is in line with the realization of the rights, duties and freedoms enshrined in the Charter, that is, the attainment of the objects and purposes of the Charter. ⁴² If the "Court finds that any of the rights, duties and freedoms set out in the Charter are curtailed, violated or not being achieved, this necessarily means that the obligation set out under Article 1 of the Charter has not been complied with and has been violated''

160. In the instant case, the Court has found that the Respondent State has violated Article 6 and Article 7 of the Charter. On this basis, the Court thus concludes that the violation of these rights also simultaneously violates Article 1 of the Charter requiring the Respondent to respect and ensure respect for the rights guaranteed thereof.

IX. REPARATIONS

161. In their Application, the Applicants requested, among other things, the Court to grant reparations and order such other measures or remedies as it may deem fit.

162. On the other hand, the Respondent prayed the Court to deny the request for reparations and all other reliefs sought by the Applicants.

163. Article 27.1 of the Protocol provides that "if the Court finds that there has been violation of a human or peoples' rights, it shall make appropriate orders to remedy the violation including the payment of fair compensation or reparation."

164. In this regard, Rule 63 of the Rules of Court provides that "the Court shall rule on the request for reparation... by the same decision establishing the violation of a human and peoples' right or, if the circumstances so require, by a separate decision."

165. In the instant case, the Court will decide on certain forms of reparation in this Judgment, and rule on other forms of reparation at a later stage of the proceedings.

X. COSTS

166. In their submissions, the Applicants and the Respondent did not make any statements concerning costs.

167. The Court notes that Rule 30 of the Rules provides that "unless otherwise decided by the Court, each party shall bear its own costs".

168. The Court shall decide on the issue of costs when making a ruling on other forms of reparation.

169. For these reasons:       

The COURT

Unanimously,

1. Dismisses the Respondent's preliminary objection on the lack of personal and material jurisdiction of the Court.
2. Declares that the Court has jurisdiction.
3. Dismisses the Respondent's preliminary objections on the admissibility of the Application for non-exhaustion of local remedies and for not having been filed within a reasonable period of time after exhaustion of local remedies.
4. Declares the Application admissible.
5. Declares that the Respondent has not violated Articles 3, 5, 7 (1) (a), 7(1) (b) and 7(2) of the Charter.
6. Finds that the Respondent violated Articles 1 , 6 and 7(1), and 7(1) (c) of the Charter.
7. Orders the Respondent State to take all necessary measures that would help erase the consequences of the violations established, restore the preexisting situation and re-establish the rights of the Applicants. Such measures could include the release of the Applicants. The Respondent should inform the Court within six (6) months, from the date of this judgment of the measures taken.
8. Grants, in accordance with Rule 63 of the Rules of Court, the Applicants to file submissions on the request for reparations within thirty (30) days hereof, and the Respondent to reply thereto within thirty (30) days of the receipt of the Applicant's submissions.
9. Reserves its ruling on the prayers for other forms of reparation and on costs.

 

Signed

Sylvain ORÉ, President

Ben KIOKO, Vice President

Gérard NIYUNGEKO, Judge

El Hadji GUISSE, Judge

Rafäa BEN ACHOUR, Judge

Solomy B. BOSSA, Judge

Angelo V. MATUSSE, Judge

and Robert ENO, Registrar.                  

Done at Arusha, this Twenty Eighth Day of September, in the Year Two Thousand and Seventeen in English and French, the English text being authoritative.