NGUZA VIKINGI V. REPUBLIC
- robertmatama2
- May 31, 2022
- 4 min read
SUMMARY OF THE CASE IN APPLICATION NGUZA VIKING (BABU SEYA),
1 ST APPLICANT AND JOHNSON NGUZA (Papi kocha), 2 nd Applicant) v.
UNITED REPUBLIC OF TANZANIA, APPLICATION No. 006/2015
1. Summary of the facts
The Applicants, Mr. Nguza Viking and Mr. Johnson Nguza are citizens of the
Democratic Republic of Congo and lived and worked as musicians in Dar es
Salaam, Tanzania. The second Applicant (Johnson Nguza) is the first Applicant’s
(Nguza Viking) biological son.
All applicants were arrested on 12th day of
October, 2003 and transferred to the Magomeni Police Station. The Applicants
and another person (later known as a teacher) were arraigned before the
Resident Magistrate Court of Kisutu (Dar es Salaam) on 16th day of October,
2003 and were charged with 10 counts of rape and 11 counts of sodomy. They
pleaded not guilty to all charges. The ten alleged victims were all children
between six and eight years old and were from the same classes. It was alleged
that they were gang raped and sodomized in turns by four adults. After a full trial,
the Court ruled on the matter on 25th day of June, 2004, in favor of the
prosecution and sentenced the Applicants to serve a term of life imprisonment.
Only the fifth accused, the teacher, was acquitted. The Applicants appealed to
the High Court of Tanzania but the appeal was dismissed. They appealed to the
Tanzania Court of Appeal and two other accused in the trial were acquitted, but
both Applicants’ sentences were uphold on four remaining rape charges. After
the appeal of the Applicants was dismissed by the Tanzania Court of Appeal,
they filed for an application for review that was later dismissed. The applicants
state they have exhausted all local remedies.
2. Alleged violations
The Applicants allege that the Respondent state violated Article 1, 2, 3, 5, 7(1)b),
13 and 18(1) of the African Charter on Human and Peoples’ Rights. They submit
that after the arrest, they were not promptly informed of what charges they were
1being arrested for and were put under restraint for four days incommunicado
without access to a lawyer or anyone else. Further, while they were in custody,
the Applicants claim to have been mistreated by police officers who notably
insulted them. Only after having spent some time in police custody, a police
officer informed them that they were charged with rape.
According to the Applicants, the trial was unjustified for various reasons: the
Court repeatedly dismissed requests to submit evidence, the results of the blood
and urine test underwent by the Applicants were not presented as evidence in
the trial Court, even while the alleged victims claimed to be infected with
HIV/AIDS and Gonorrhea, the first Applicant’s request to test his impotence, and
therefore his material impossibility to participate in the commission of the alleged
crimes, was rejected. Further, they state that the Court used statements of the
alleged victims as evidence, where they described from their memory the room
where the rape took place, but the Court did not give consideration that these
children and their parents visited the Applicants’ house before the hearing and
studied the room several times. Further, the Applicants allege that the charges
were fabricated in revenge by the former partner of the first Applicant, who was
envious of his new engagement.
According to the Applicants, the judgment was not based on strong evidence: the
Court deliberately did not call material witnesses in the scene of the crime, the
medical report tendered in Court by the prosecution contradicted the evidence
adduced in Court by the alleged victims of rape and sodomy and the defense
called 31 witnesses, but this evidence of the defense was not given enough
consideration by the Court. Further, in the Appeal, six counts of rape and the
charges of sodomy were dismissed, even though the remaining counts of rape
were alleged to have been committed at the same material time and place, and
the evidence brought by the prosecution was similar to the other charges.
According to the Applicants, their right to a fair trial was violated: the charges
lacked the dates on which the alleged offences were committed, therefore
disabling the Applicants to prepare for their defense, and the Court relied on
prosecution evidence which was uncorroborated and had too
many inconsistencies to convict both Applicants. The Applicants allege that the
Tanzanian Government, through their officials’ actions, violated all accepted
principles of human rights and international law.
3. Prayers to the Court
The Applicants state that the Court should rule that their rights were violated.
They request the Court to facilitate them with free legal representation or legal
assistance and request the Court to appoint experts to provide clarification of the
facts of the case and assist the Court in carrying out its task. The Applicants
request an order compelling the Respondent state to release the Applicants from
custody and request reparation and any order or remedy that the Court may deem fit to grant.
Nguza v United Republic of Tanzania (Application No. 006/2015) [2018] AfCHPR 7; (23 March 2018)
Summary by AfricanLII: The Court considered whether the Respondent State violated, inter alia, the fair trial rights of the Applicants during the conduct of criminal trial proceedings against them (Art 7 African Charter on Human and Peoples' Rights).
HELD The Court held that the Respondent State violated the Applicants’ right to defence (Art 7(c) Charter) on two grounds, being (i) the rejection of a request to be medically tested on an issue related to his capacity to commit the offence, and (ii) the denial of access to the prosecution’s witness’ statements and the opportunity to cross-examine witnesses. The Court ordered the Respondent State to take all necessary measures to restore the Applicants’ rights; their prayer to be released from prison having become moot due to a presidential pardon.
FULL JUDGEMENT.
Another important document in the law of evidence
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