The African Court on Human and Peoples’ Rights (African Court) recently handed down its sixth merits judgment, in Onyango and Others v. Tanzania, a case concerning allegedly excessive duration of criminal proceedings brought against 10 Kenyans following their extralegal rendition to Tanzania. The petitioners are citizens of Kenya who were kidnapped by government agents tortured, and forcibly removed from Mozambique to Tanzania, two countries without an extradition agreement, where they were incarcerated and charged with murder and armed robbery of a Tanzanian bank. See AfCHPR, Onyango and Others v. Tanzania, App. No. 006/2013, Judgment of 18 March 2016, para. 2.
The Court held that the State violated the applicants’ rights to be tried within a reasonable time and to be defended by counsel under articles 7(1)(d) and 7(1)(c), respectively, of the African Charter on Human and Peoples’ Rights (African Charter). See AfCHPR, Onyango and Others v. Tanzania, App. No. 006/2013. The judges in the case, the Court held, have a duty to restrict the proceedings to a reasonable time, and the applicants, the Court continued to find, have a right to legal aid throughout the trial due to the severity of the case. Id. at paras. 153-55, 181. While the right to legal aid and the right to be tried within a reasonable period of time have both been addressed by the African Commission on Human and Peoples’ Rights, this is the first time that the African Court has ruled on alleged Article 7(c) and (d) violations. See, e.g. ACommHPR, Avocats Sans Frontières (on behalf of Gaëtan Bwampamye) vs. Burundi, Communication No. 231/99, 28th Ordinary Session, 6 November 2000; ACommHPR, Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v. Ethiopia, Communication No. 301/05, 52nd Ordinary Session, 12 October 2013. Video is available of the African Court’s delivery of its judgment in Onyango and Others v. Tanzania.
Ten Kenyan nationals allege that in December 2005 they were in Mozambique seeking employment opportunities when they were kidnapped and arrested by Mozambican police in collaboration with Kenyan and Tanzanian police forces. See id. at paras. 1 and 2. The applicants further alleged that they were handcuffed and forcibly transferred via aircraft to Tanzania. See id. at paras. 2-6. While under police custody in Tanzania, they claim that they were subjected to severe beatings with heavy sticks and metal rods, torture by electric shock, and refused access to communicate with their attorneys. See id. at para. 6.
The applicants were eventually charged with various criminal offenses including murder and armed robbery. See id. at para. 9. However, the murder charges were dropped for three of the applicants due to lack of evidence. Id. At the time that the applicants filed with the African Court, the criminal proceedings were still ongoing in the domestic trial courts. Id. at para. 22. Five of the applicants were convicted by the domestic court and sentenced to 30 years for conspiracy to commit an offense and armed robbery, and two of the applicants died while in custody during the course of the trial. See id.
The applicants presented their complaint to the African Court in July 2013, alleging violations of their rights to property, freedom, work, and to be tried within a reasonable time. Id. at paras. 24, 25. Noticing that domestic legal proceedings were still pending, the African Court’s Registry sought additional information from the applicants about their representation and remedies in Tanzania, and in June 2014, asked the Pan African Lawyers’ Union (PALU) to consider providing them with legal aid, to which PALU agreed. Id. at paras. 26-35. The African Court held a hearing on the preliminary objections, admissibility, and merits of the complaint in May 2015. Id. at para. 43. Several videos are available of that hearing on the African Court’s Livestream page.
Preliminary Admissibility Decision
The African Court rejected the State’s preliminary objection that the applicants failed to exhaust local remedies and that, in the alternative, the applicants failed to file within a reasonable time after local remedies were exhausted. See id. at para. 69. In rejecting these arguments, the African Court noted that the applicants had conceded in their preliminary objection and the public hearing that they had not exhausted all domestic remedies, and asserted that the Tanzanian legal proceedings had been unduly prolonged. See id. at para. 85. Rule 40(5) of the African Court’s Rules of Procedure requires exhaustion of local remedies unless it is obvious that the process of the local remedies is unduly prolonged. See id. at para. 87. Taking all of the facts into consideration, the Court found that the process was unduly prolonged because almost 10 years had passed without a resolution of the matter. See id. at para. 94.
Ruling on the Merits
The Court did not rule on all the allegations raised by the applicants and additionally discussed one possible violation not raised in the application. The Court acknowledged the applicants’ allegation of kidnapping and forcible removal from Mozambique to Tanzania by the police; however, the Court stated that the applicants were actually challenging the “alleged prolonged and undue delay in finalising” this matter, which is still pending before the High Court of Tanzania, and held that it was therefore not called upon to determine and investigate the circumstances surrounding the applicants’ removal from Mozambique. Id. at paras. 112-113. Further, although not raised in the application, the Court determined that it would address the issue of the State’s failure to provide the applicants with legal aid as mentioned by the applicants in the public hearing. See id. at para. 114.
Prolonged and Undue Delay of Proceedings
To determine whether the length of the judicial proceedings was unreasonable, the Court analyzed several criteria from the jurisprudence of the European Court of Human Rights, including the complexity of the case, the behavior of the applicant, and the behavior of the national judicial authority. See id. at para. 136.
In looking to the issue of complexity, the Court considered the number of accused persons and the extradition proceedings concerning other suspects in the case. See id. at paras. 138-143. The Court held that the delay had nothing to do with the complexity of the case and instead, was rooted in the decision of the State to join the case with other accused persons who were still in a foreign jurisdiction and who were never extradited. See id. at. 144. The African Court pointed out that as the domestic court eventually proceeded with the applicants’ trial, their case could be heard without the joining of the additional accused and the wait for extradition was, therefore, not necessary. See id. at para. 144.
The Court dismissed the State’s argument that the applicants’ counsel played a part in the delays. The State cited illness and a preference to appear in superior courts for other cases as reasons the applicants’ counsel was responsible for delays. See id. at paras. 145-149. The Court held that there was no evidence to indicate that counsel acted with the intention to deliberately delay the proceedings and dismissed the State’s argument. See id. at paras. 149-150.
Lastly, the Court looked to the behavior of the national judicial authority. During the public hearing before the African Court, the applicants argued that there were over 55 adjournments in the life of the case, that in the first four years of the case only one witness had testified, and that the State halted the proceedings for almost two years because authorities were still investigating the matter. See id. at para. 151. Based on the jurisprudence of the European Court attributing to the State delays due to transfers of cases and government appeals, the African Court held that the time was unreasonable due to the lack of due diligence on the part of the national judicial authorities and not because of the applicants or the complexity of the case. Accordingly, the Court held that the State violated Article 7(1)(d) of the African Charter. Id. at para. 155.
Right to Legal Aid
During the public hearing, the applicants stated that it was the responsibility of the Tanzanian court to determine whether they required legal aid during the domestic proceedings, and the African Court took up the issue in its merits decision, finding the State did have a duty to provide legal aid. See id. at para. 156. The applicants were represented up until their counsel abandoned them during the proceedings. See id. at para. 159. The State was aware that the applicants were without counsel when they filed their application with the African Court and that their cases were pending in domestic court. See id. at para. 161.
The Court, therefore, looked to Article 7(1)(c) of the African Charter and other international human rights instruments ratified by the State to determine whether it violated the applicants’ rights to a fair trial when it failed to provide legal aid. See id. at para. 162. Tanzania has ratified the International Covenant on Civil and Political Rights (ICCPR), which provides guarantees of the right to legal assistance. See id. at para. 167. Further, the African Commission on Human and Peoples’ Rights and European Court of Human Rights have stressed the importance of legal assistance. See id. at paras. 169-80. Based on these standards and given the serious nature of the charges, the African Court held that the State should have implemented all necessary measures to ensure that the applicants had legal assistance or were at the very least informed of their right to legal aid. See id. at paras. 168, 181. The Court concluded that “the applicants were entitled to legal aid at all stages of the proceedings” and that the State violated Article 7(1)(c) when it failed to provide them with legal aid. Id. at paras. 181, 182.
The African Court ruled that reparations were in order and held that it would determine the form of reparations in a later judgment. See id. at para. 190.
The African Court on Human and Peoples’ Rights is a continental judicial body with competence to hear complaints brought by States, the African Commission on Human and Peoples’ Rights, and other African intergovernmental bodies alleging human rights abuses by any of the 30 States that have accepted its jurisdiction. It additionally may hear human rights complaints brought by individuals and non-governmental organizations against the eight States that have authorized such applications. Although the African Court issued its first decision in 2009, the first ruling on the merits of a complaint did not come until July 2013. The Court has only issued a handful of other merits decisions since 2013. Tanzania is one of the eight States that have accepted the Court’s jurisdiction to hear cases brought by individuals against the State.
The right to legal aid has been addressed by the African Commission in its 2003 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, in addition to in its own decisions concerning individual complaints.