MUNYAGA: Human rights ruling wake up call to African states

With every passing day, the ten-year-old African Court on Human and People’s Rights (AfCHPR) proves it is indeed an institution guided by very high standards of professionalism that make its decisions onerously fair and impartial even where a party loses a case.

On March 18th, 2016, ten justices of the court ruled unanimously against the government of Tanzania in a case brought before it by five Kenyan nationals serving 30 years in jail each for armed robbery but whose appeal has dragged on for ten years in the country’s judicial system.

It is noteworthy that the Kenyans were able to seize the court because Tanzania has deposited a Declaration according to Article 34(6) of the Protocol that established the court, which allows individuals and NGOs to access the court, being one of only seven countries among the 54 African Union (AU) member states do so.

Kenya has not deposited the declaration at the Arusha-based court, which means there is no possibility the applicants would have sought justice all the way to the Pan African organ if they were incarcerated in their native country.   

The Kenyans; Boniface Mwangi Mburu, David Ngugi Mburu, Peter Gikuru Mburu (not sure whether related), Michael Mbaya, Wilfred Onyango Nganyi, Jimmy Maina Njoroge, Patrick Muthee Muriithii, Patrick Kungu Kariuki, Simon Githinji Kariuki (again not sure whether related) and Simon Ndugu Kiambuthi were originally tried for murder and armed robbery by the High Court in Moshi for the May 24th, 2004 National Bank of Commerce (NBC) robbery in the Tanzania northern town and the July 26, 2005 murder also in Moshi, of one Benedict Laurent Kimaro Mfuria.

Murder charges against Boniface Mwangi Mburu, David Ngugi Mburu and Michael Mbaya were dropped for lack of evidence and the trio released while two, Peter Gikuru Mburu and Simon Githinji Kariuki died in custody. The five who were convicted on three charges of armed robbery were Wilfred Onyango Nganyi, Jimmy Maina Njoroge, Patrick Muthee Muriithii, Gabril Kungu Kariuki and Simon Ndugu Kiambuthi. They are the ones who appealed to the AfCHPR.

According to the rules of the court, the AfCHPR President, Justice Augustino Ramadhani who is from Tanzania, did not hear the application, apparently a procedure intended to avoid any conflict of interest. In sum, the court ordered the Government of Tanzania “to take all necessary measures within a reasonable time to expedite and finalise all criminal appeals by or against the applicants in the domestic courts.”

The court also held that the applicants’ rights to a fair trial were violated. The court “holds that there has been a violation of Article 7 (1) (c) and (d) of the Charter by the Respondent,” Article 7 (1) (c) and (d) states: “Every individual shall have the right to have his cause heard. This comprises: 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 by an impartial court or tribunal.”

Finally, AfCHPR ordered the government of Tanzania to inform the court of the measures taken within six months of delivering the judgement. It also allowed the applicants to file submissions within 30 days for request of any reparations and the state to reply within another 30 days. The implications here are obvious. Tanzania stands likely ordered to costs to convicted criminals it lawfully tried and jailed except for one thing that their human rights to fair trial within reasonable time were violated!

The court also dismissed a number of objections by the state including admissibility of the application and whether the court had the jurisdiction to hear the case. Altogether, the judgement is more than just highly considered legal opinion but an exposure of the laxity with which many governments in Africa tend to conduct criminal cases, paying little respect for human and other rights. What shudders the mind is this: For ten years investigations are still and the case was adjourned 55 times before Tanzania courts! Justice delayed is justice denied. God knows how many such cases may still be on in Tanzania courts and on the continent!

But as mentioned earlier, there is need for more African countries to deposit the Declaration according to the Protocol that established the AfCHPR that allows individuals and NGOs to access the court. If countries truly trust their judicial systems, I see no reason they should hesitate to be proven by anyone on their merits. Actually, one of the grounds of the complaints by the applicants is that they were abducted from Mozambique where they were prospecting for minerals and forced onto a military plane in collusion with Mozambican and Kenyan police officers.

Clearly, governments do not encumber the freedom of any citizens lightly. There is always a reason. But the cardinal rule of criminal justice is that it is the prosecuting authority, in this case the state, that must prove its case beyond any reasonable doubt. With many African countries becoming states parties to many regional and international conventions, then domestic jurisdictions shall definitely have to step up their game otherwise many, the way I see it, risk being portrayed as grossly incompetent.