On 7 December 2018, the African Court on Human and Peoples’ Rights delivered its judgment in the case of Mgosi Mwita Makungu v. Tanzania. This judgment affirms states’ obligations to provide access to documents as part of an individual’s right to an appeal. It also clarifies aspects of the requirement to exhaust domestic remedies.
The applicant in this case was a Tanzanian national who, having been convicted of armed robbery in two separate proceedings in 1995, was sentenced to 30 years imprisonment. The applicant sought to appeal both of his convictions and required certified copies of his trial transcripts and judgments, as these must be included in an appeal file in Tanzania. The applicant requested these documents from the registry of the District Court where he was originally convicted and the registry of Tanzania’s High Court; however, both institutions failed to provide the documents to him. Following this, he sought the intervention of Tanzania’s Human Rights Commission, however the Commission stated that after making enquiries with District Court, it had been informed that the documents could not be located. Subsequently, the applicant attempted to file his appeals without certified copies of the trial transcripts and judgments, but these applications were declared inadmissible by the High Court, which stated that it could not decide the appeals without them.
In response to this, the applicant brought claims before the African Court claiming, inter alia, that his right to an appeal to competent national organs against human rights violations under Article 7(1)(a) of the African Charter on Human and Peoples’ Rights (‘ACHPR’) had been breached. It is of note that at the time of seizing the Court, the applicant had been imprisoned for 20 years without being given the documents necessary for his appeal.
Judgment and Comment
In its judgment, the Court first considered Tanzania’s argument that the claims should be declared inadmissible as the applicant had not exhausted domestic remedies. According to Tanzania, it had been open to the applicant to file a constitutional petition in the High Court concerning the state’s failure to provide him with the requested documents, which he did not do. In dismissing this argument, the Court pointed to its decision in the earlier case of Alex Thomas v Tanzania in which it had examined this remedy and concluded that it was an “extraordinary remedy” that applicants are not required to exhaust prior to seizing the Court. The Court also reaffirmed its general principle that an individual need not attempt to have recourse to remedies if they are “not available, they are ineffective, insufficient or the domestic procedures used to pursue them are unduly prolonged”.
In its discussion of the merits, the Court elaborated on the meaning of the right to appeal under Article 7(1)(a) ACHPR. It held that it requires “that individuals are provided with an opportunity to access competent organs, to appeal decisions or acts violating their rights” and that the state “facilitates the exercise of this right by individuals, by providing them with the judgments or decisions that they wish to appeal from”. The Court found that by failing to provide the applicant with the documents needed to file his appeals, despite his repeated requests for them to do so, Tanzania had violated the applicant’s right to appeal under Article 7(1)(a) ACHPR. As a part of the remedy, the Court ordered the applicant to be released by state authorities.
With this judgment, the Court has placed robust requirements on states to ensure that they safeguard and provide convicted persons with documents that are essential to their appeals. The Court has also made plain that in cases such as this, where an applicant has gone to great lengths to redress rights violations through domestic legal processes, recourse to special remedies like constitutional petitions is not a prerequisite to bringing a complaint before it. As a final point, it is interesting that the Court has once again demonstrated that where there is very serious injustice, it is willing to order the release of applicants by states. The making of such an order is controversial, as it is not explicitly mentioned in the court’s statute, protocol or rules of procedure. However, in cases of extreme miscarriages of justice such as this, it is clear how seeking the immediate release of an individual is a rational response from the Court.