This blog post is based on my presentation given at the conference on “The Judicial Power of Africa’s Supranational Courts” hosted at the University of Luxembourg on the 21st of September 2018. It is also my inaugural post at The ACtHPR Monitor, enjoy! Misha Plagis
The cases of Alex Thomas v. Tanzania and Mohamed Abubakari v. Tanzania are undoubtedly some of the most important to come out of the African Court to date. For example, Alex Thomas established important precedents on applicants not having to exhaust extraordinary remedies[1], the need for States to ensure that litigants are represented,[2] and the requirement for the circumstances to order the released from prison to be special and compelling,[3] among others.[4]
However, within two years, Tanzania submitted a request for interpretation in both cases in September 2017. It is argued here that the request for interpretation in the two cases, which were the first in a long line of cases concerning the right to a fair trial in armed robbery prosecutions filed against Tanzania, have changed the course of how the African Court frames it’s remedies in contentious cases.
The case of Alex Thomas will be used here as an illustration.
The Original Case
In the original case filed Mr Thomas was jailed for 30 years for armed robbery.[5] Mr Thomas made a number of claims which included rights mostly related to article 7 on the right to fair trial, but he also invoked articles 1, 3, 5, 6, and 9 of the African Charter.[6] Notably, Mr Thomas also requested to be released from prison.
In the operative part of the decision, the African Court found that Tanzania had violated articles 1, 7(1)(a), (c) and (d) of the Charter, as well as article 14(3)(d) of the International Covenant on Civil and Political Rights.[7] In the judgement’s section on remedies the African Court ordered, inter alia:
“ix. Unanimously, that the Respondent is directed to take all necessary measureswithin a reasonable time to remedy the violations found, specifically precluding the reopening of the defence case and the retrial of the Applicant […].”[8]
Importantly, two judges dissented in a crucial way from the perspective of the subsequent request for interpretation.[9] Namely, they agreed with the merits of the case but took issue with para. 159 of the decision, which effectively stated that the Court would not order the release of Mr Thomas because there were no ‘special or compelling circumstances’[10] to do so, but at the same time the Court also ordered Tanzania “to take appropriate measures to remedy the violations taking into account the above factors.”[11] In other words, the Court found that the request to be released from prison could only be granted under “very specific and/or, compelling circumstances”[12], which Mr Thomas did not fulfil,[13]despite having been imprisoned for almost 20 years as a result of a trial that violated article 7, and left it up to Tanzania to remedy the violation in an appropriate manner.[14]
Judges Thompson and Ben Achour dissented in their interpretation of whether or not ‘special or compelling’ circumstances were shown in the case of Mr Thomas. In their dissenting opinion the Judges stated that:
“5. In spite of the fact that the Application does not state that particular facts exhibit exceptional circumstances, we are of the firm view that the Court found such specific/and or [sic] compelling circumstances when it noted that the Applicant has been in prison for 20 years out of the 30 year term of imprisonment and that the reopening of the defence case or a retrial ‘would result in prejudice and occasion a miscarriage of justice.’
6. We cannot find a more ‘specific and/or compelling’ [reason] than that the Applicant has been in prison for about 20 years out of a 30 year prison term following a trial which the Court has declared to be an unfair trial, in violation of the Charter.
[…]
8. The Court fell shy of making the Order of releasing the Applicant. Our view is therefore that, there is no other remedy in the circumstance other than, that the Applicant be released.”[15]
It is precisely the tension highlighted here by Judge Thompson and Judge Ben Achour that formed the core of what Tanzania asked in its request for interpretation.
Tanzania’s Request for Interpretation
Tanzania’s request for interpretation raised three main questions:
1. The meaning of “all necessary measures”;
2. What exactly the “violations found” were and how it should remedy them; and
3. The definition of the word “precluding”.
In interpreting its judgement, the African Court made three important points worthy of further discussion. First, it restated the purpose of preparations as the need to “erase the consequences of an unlawful act and restore” the situation in which the applicant would have been had the violation not taken place.[16] Second, the Court further emphasised this need to have the situation restored when there has been a violation of the right to a fair trial.[17] Third, in this particular case, the Court identified two avenues to remedy the situation of Mr Thomas: 1) Tanzania should “reopen the case in compliance with the rules of a fair trial”, or 2) “take all appropriate measures to ensure that the Applicant finds himself in the situation preceding the violations.”[18]
In its further analysis, the Court clearly states that to retry the case would ‘not be just’,[19] therefore, leaving only the second option of ‘all appropriate measures’. The Court argued that the reason reopening the case would be inappropriate is due to the fact that Mr. Thomas had already served “more than half of the prison sentence[.]”[20] However, it remains unclear whether the Court is deliberately setting this as a bar for when a case could be retried or not.[21] In addition, although a matter of semantics, the shift in language from “all necessary measures” to “all appropriate measures” is not explicitly dealt with by the Court.[22]
The question remains, therefore, what does “all necessary (or appropriate) measures” mean in the context of the Alex Thomas case? The Court appears to use these terms to give Tanzania a certain margin of appreciation in implementing the judgement by giving it “room for evaluation to enable it to identify and activate all the measures that would enable it [to] eliminate the effects of the violations established by the Court.”[23] In the context of the time of the judgement, Alex Thomas being the first case in which Tanzania was found to have violated article 7, this is not a surprising move. However, in the context of the request for interpretation after a further five cases found that Tanzania had violated the right to a fair trial, it may have been prudent for the Court, in the interpretation, to provide more substantive guidance. Instead, it appeared to go back on its original judgement and state that “the expression ‘all necessary measures’ includes the release of the Applicant and any other measure that would help erase the consequences of the violations established and restore the pre-existing situation and re-establish the rights of the Applicant.”[24] This move is especially surprising considering that the judgement had explicitly rejected the request to be released by Mr. Thomas, albeit on the grounds of ‘special and compelling circumstances’.
In the end, there are two particularly important findings by the Court with regard to the Request for Interpretation. First, that the Court was in fact referring to the release of Mr Tomas when it ordered that ‘all necessary measures’ be taken in the original judgment, “or any other measure that would help erase the consequences of the violations established, restore the pre-existing situation and re-establish the rights of the Applicant”.[25] Second, that ‘remedy the violations found’ meant to “erase the effects of the violations found through the adoption of the measures indicated […] above;”[26] of which the release from prison was the only specific measure mentioned.
It would appear that the Court has a revelation in its interpretation that it in fact did mean the release of Mr. Thomas after all, despite being in contrast to what it ordered in paragraph 159 and section vii of the operative part of the original Judgement. The reasoning provided by the Court was that it “did not state that the Applicant’s request was unfounded” but merely that it could not order the measure directly due to the lack of ‘specific and compelling circumstances’.[27] Therefore, despite the Court originally finding that the situation was insufficiently compelling to order the immediate release of Mr. Thomas, it emerges from the Request for Interpretation that Tanzania should have released him in order to comply with the judgement.
The problematic element is not whether or not the release of Mr. Thomas was the appropriate measure to be taken. Rather, the issue is that the African Court did not have a clear line on what was appropriate in the case of Alex Thomas v. Tanzania, and that this was part of a trend in which the Court appeared to not be defining and specifying what is required for certain types of remedies.[28]
The Impact
Despite the unusual path that the African Court took to come to the conclusion that Mr Thomas (and Mr Abubakari[29]) should have been released from prison, the legacy of the requests for interpretation submitted by Tanzania can be seen in the subsequent case law.
For example, in the case of Christopher Jonas v. Tanzania the Court made a new addition to its formula for dismissing the Applicant’s prayers for release from prison in a fair trial cases. Namely, the African Court dismissed Mr. Jonas’s appeal to be released from prison, but did so “without prejudice to the Respondent applying such a measure proprio motu[.]”[30] The Court adopted the same approach for the Applicant’s prayer to have the conviction and sentence set aside.[31] The case of Christopher Jonas was decided during the same session as the requests for interpretation in Alex Thomas and Mohamed Abubakari. This additional phrase coined in Christopher Jonas can be seen in other cases against Tanzania regarding the right to a fair trial such as Kijiji Isiaga v. Tanzania, Thobias Mang’ara Mango and Shukurani Masegenya Mango v. Tanzania, and Amiri Ramadhani v. Tanzania.
The more recent case law of the African Court marks a new shift in the Court’s approach once again. For example, in the case of Anaclet Paulo v. Tanzania and Minani Evarist v. Tanzania, the Court awarded the applicants three hundred thousand Tanzanian Shillings in compensation. Thus, the 50th Ordinary Session potentially signifies a new era in which the African Court is now also willing to order monetary awards to victims of violations of the Charter.[32] In addition, in the case of Mgosi Mwita Makungu v. Tanzania the African Court found that the situation was‘exceptional and compelling’ enough to warrant the order of the release of Mr Makungu.[33] It remains to be seen how the African Court will position itself in terms of remedies, both in terms of measures and monetary compensation, in the future. However, the direction taken by the African Court in developing its case law, from the early days of Alex Thomas v. Tanzania and Mohamed Abubakari v. Tanzaniato the latest set of cases decided in August-September and November-December 2018, seems to be a positive one and will hopefully set the tone for how the Court deals with remedies in the jurisprudence to come.
Correction [19 Jan. 2019]: The original post contained the case name Thobias Mang’ara Mnago and Shukurani Masegenya Mango v. Tanzania, instead of Thobias Mang’ara Mango and Shukurani Masegenya Mango v. Tanzania.
[1]Alex Thomas v. Tanzania, para. 64.
[2]Ibid para. 115 (also see para. 116 and 124), also see Mohamed Abubakari v. Tanzania, para. 122 on how the right to access to legal counsel is assessed, and elaborates on when free legal assistance should be provided in para. 137-145.
[3]Alex Thomas v. Tanzania, para. 157.
[4]In Mohamed Abubakari v. Tanzania for example the court made important findings on the need for impartiality of prosecutors for a fair trial (para. 107-111), the Court not being bound by national law (para. 136), the timely communication of indictment and statement of witnesses (para. 157-161), and the definition of ‘open court’ for the public pronouncements of judgements (para. 224-227).
[5]Alex Thomas v. Tanzania, para. 4
[6]Articles 1, 3, 5, 6, and 9 relate to giving effect to the rights of the African Charter, equality before the law, prohibition of torture and inhuman and degrading treatment, the right to liberty and security, and the right to receive information respectively.
[7]Alex Thomas v. Tanzania, operative part, para. vii.
[8]Ibid, operative part, para. ix. [own emphasis added]
[9]Judge Elsie N. Thompson and Judge Rafâa Ben Achour.
[10]Alex Thomas v. Tanzania, para. 157.
[11]Ibid para. 159.
[12]Ibid para. 157.
[13]Ibid para. 157.
[14]The African Court has provided more guidance on this issue in the case of Diocles William v. Tanzania, para. 101-105, and para. xi of the operative part of the judgement.
[15]Alex Thomas v. Tanzania, Dissenting opinion, para.’s 5-6.
[16]Request for Interpretation, Alex Thomas v. Tanzania, para. 31.
[17]Ibid para. 33.
[18]Ibid.
[19]Ibid para. 34.
[20]Ibid.
[21]This issue is also dealt with in Diocles William v. Tanzania, para. 95-106.
[22]See Request for Interpretation, Alex Thomas v. Tanzania, para. 33.
[23]Ibid para. 35.
[24]Ibid para. 39.
[25]Ibid, operative part, para. iii.
[26]Ibid, operative part, para. iv.
[27]Ibid para. 36.
[28]Another example of the vague wording of remedies can be found in the case of Actions Pour la Protection des Droits de l’Homme (APDH) v. Côte d’Ivoire (see para. operative part, para. 7) and the subsequent request for interpretation on the measures that Côte d’Ivoire could take to remedy the situation. However, in that case the Court did not provide more details, as “[…] although the first question seems to relate to […] paragraph 7 of the operative provisions of the Judgement, it is not intended to clarify the meaning of this point. Rather, it seeks the Court’s opinion as to how to implement this point, which, in the Court’s view, is the responsibility of the State of Côte d’Ivoire.” See Request for Interpretation, ADPH v. Côte d’Ivoire, para. 16.
[29]The same general story applies to Mr Abubakari, who was also denied release from prison as a remedy in the original case due to lack of ‘special and compelling circumstances (see Mohamed Abubakari v. Tanzania, para. 234) but in the Request for Interpretation, the Court identified that the release of Mr Abubakari from prison was the appropriate remedy (see Request for Interpretation, Mohamed Abubakari v. Tanzania, para. 36-39).
[30]Christopher Jonas v. Tanzania, operative part, para. vii.
[31]Ibid, operative part, para. viii.
[32]Also see Armand Guehi v. Tazania, para. 151-195, for a more detailed discussion on monetary damages.
[33]Mgosi Mwita Makungu v. Tanzania, para. 85-86.