Tuesday April 3, 2018
By Joe Lihundi
Tranquility News Reporter, Arusha
The African Court on Human and Peoples’ Rights (AfCHPR) has found the Tanzania government guilty of violating the Universal Declaration of Human Rights, the African Charter on Human and People’s Rights and the International Covenant on Civil and Political Rights (ICCPR).
In its March 22, 2018, judgment of a case filed by the victim, Mr Anudo Ochieng Anudo, against Tanzania, the court says the government has arbitrarily deprived him of his Tanzanian nationality in violation of the international laws.
Prior to Mr Anudo’s expulsion, the State failed to take necessary measures to prevent him from being in a statelessness situation, the court says.
“As a matter of fact, prior to his expulsion to Kenya, the Respondent State could have satisfied itself that, if the Applicant is not Tanzanian, he is Kenyan,” it adds.
“In any event, even if it were to be assumed that he (Mr Anudo) was an alien, the Respondent State could still not expel him in the arbitrary manner it did,” reads the judgment, concluding that the expulsion violates Article 13 of the ICCPR.
As a result, the AfCHPR orders Tanzania to amend its legislation in a bid to provide individuals with judicial remedies in case of disputes over their citizenship.
The continental court also orders the State to take all necessary steps to restore the applicant’s rights, by allowing him to return to the national territory, ensure his protection and submit a report to it within 45 days.
The court comprised a panel of nine judges, namely the AfCHPR President Justice Sylvain Ore, Vice President Justice Ben Kioko, and Justices El Hadji Guisse, Rafaa Ben Achour, Ntyam Mengue, Marie-Therese Mukamulisa, Tujilane Chizumila and Chafika Bensaoula as well as Robert Eno, the Registrar.
“In any event, even if it were to be assumed that he (Mr Anudo) was an alien, the Respondent State (Tanzania) could still not expel him in the arbitrary manner it did,” – the African Court’s judgment
Mr Anudo, who was born in 1979 at Masinono in Butiama District, Tanzania, alleged that his nationality was withdrawn in 2012 and he was then deported to Kenya.
The Kenya government also expelled him back to Tanzania where he was denied entry and was compelled to remain at a “no man’s land” at Sirari border between the two neighbouring East African countries.
His attempt to consult the Tanzania’s Immigration Department, the Home Affairs Ministry, the Prevention and Combating of Corruption Bureau (PCCB) and the Prime Minister to resolve the matter locally proved futile, as his passport was cancelled on grounds that it was a fake document.
This is despite Mr Anudo writing to the PCCB from the ‘no man’s land’ informing the bureau that the Tanzania immigration officers had asked him to give them a bribe, which he refused to do.
These and other allegations, the court notes, are contrary to Article 15(2) of the Universal Declaration of Human Rights. The Article says “no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality”.
Article 7 of the African Charter on Human and Peoples’ Rights says “every individual shall have the right to have his cause heard” and Article 14 of the ICCPR says, in turn, “all persons shall be equal before the courts and tribunals”.
Mr Anudo pleaded with the continental court to declare the Tanzania immigration authorities’ decision to expel him from his own country null and void, cancel the ‘prohibited immigrant’ notice issued against him and reinstate his nationality by declaring him a Tanzania citizen.
He asked the AfCHPR in his prayers to order the Tanzania government to allow him to enter and stay in the country like all its other citizens, ensure his protection as it does for other citizens and protect him from victimisation on account of the case.
Mr Anudo finally prayed the court to order Tanzania to reform its immigration law to guarantee the right to a fair trial before taking any decision that may deprive a person of his fundamental right, like the right to nationality.
Advocate Jane Ruhundwa — the Tanzania Country Director with Asylum Access and Advocate Mwajabu Khalid — a local lawyer, represented Mr Anudo in the Application Number 012 of 2015.
However, the Tanzania government argued, saying the continental court did not have jurisdiction to hear the case before it and that the application did not meet conditions stipulated under Rule 40(5) and (6) of the court.
The rules say applications to the court shall comply with, among other conditions, being filed after exhausting local remedies, if any.
The government further argued that it did not violate Mr Anudo’s right to personal freedom and to life and that his corruption allegations were false.
It prayed the court to dismiss the case for lacking merit, as it asked the AfCHPR to grant it leave to file additional evidence pursuant to Rule 50 which says “no party may file additional evidence after the closure of pleadings except by leave of court”.
On its part, the Tanzania government was represented by Ms Sarah Mwaipopo — the Director of Division of Constitutional Affairs and Human Rights, Ms Nkasori Sarakikya — Assistant Director of Human Rights cum Principal State Attorney and Mr Baraka Luvanda — the Head of Legal Unit from the Ministry of Foreign Affairs, International and East African Regional Cooperation.
Others were Ms Aida Kisumo — the Senior State Attorney from the Attorney General’s Chambers, Ms Blandina Kasagama — a Legal Officer from the Ministry of Foreign Affairs, Advocate Abubakar Mrisha — a Senior State Attorney from the Attorney General’s Chambers and Advocate Msillo Mgaza — an Inspector from the Immigration Department in the Ministry of Home Affairs and Immigration.
The court defended itself saying it has both temporal and territorial jurisdictions to hear the case since the alleged violations occurred subsequent to the Tanzania’s ratification of the protocol establishing the court and that the facts of the case also occurred in the country.
The court dismissed the Tanzania government’s objection to acceptability of the case for failure of exhausting local remedies, saying it would have been difficult for Mr Anudo to apply a review of his case from his hideout at the ‘no man’s land’.
“In view of the contradictions in the witnesses’ statements about the applicant’s paternity, the proof would have been a DNA test,” – the African Court judgment
The court also dismissed the government’s objection that the case was time bound, saying five months and 21 days was a reasonable period, given Mr Anudo was outside the country.
“In view of the contradictions in the witnesses’ statements about the applicant’s paternity, the proof would have been a DNA test,” reads the ruling in part, insisting that a scientific DNA Mr Anudo’s father, Mr Achok, requested was crucial.
By refusing to carry out the requested DNA test, the government missed an opportunity for obtaining proof of its claims and that the decision to deprive Mr Anudo of his nationality was, therefore, unjustified.
The evidence provided by the Tanzania government concerning the justification for the withdrawal of Mr Anudo’s nationality ‘is not convincing and arbitrary’, contrary to Article 15(2) of the Universal Declaration of Human Rights, the judgment says.
The continental court has allowed Mr Anudo to file his written submissions on reparation within 30 days to give the government of Tanzania room to file its response to the submissions within a month.