Alex Thomas and Mohamed Abubakari: The Legacy of Requests for Interpretation on Remedies

This blog submit is predicated on my presentation given on the convention on “The Judicial Power of Africa’s Supranational Courts” hosted at the College of Luxembourg on the 21st of September 2018. It’s also my inaugural submit at The ACtHPR Monitor, take pleasure in! Misha Plagis

The instances of Alex Thomas v. Tanzania and Mohamed Abubakari v. Tanzania are undoubtedly some of crucial to return out of the African Courtroom thus far. For example, Alex Thomas established necessary precedents on applicants not having to exhaust extraordinary cures[1], the necessity for States to make sure that litigants are represented,[2] and the requirement for the circumstances to order the launched from jail to be special and compelling,[3] amongst others.[4]

Nevertheless, within two years, Tanzania submitted a request for interpretation in both instances in September 2017. It is argued here that the request for interpretation within the two instances, which have been the primary in an extended line of instances regarding the fitting to a fair trial in armed theft prosecutions filed towards Tanzania, have modified the course of how the African Courtroom frames it’s cures in contentious instances.

The case of Alex Thomas will probably be used right here as an illustration.

The Unique Case

In the unique case filed Mr Thomas was jailed for 30 years for armed theft.[5] Mr Thomas made a quantity of claims which included rights principally related to article 7 on the proper to truthful trial, but he also invoked articles 1, 3, 5, 6, and 9 of the African Constitution.[6] Notably, Mr Thomas additionally requested to be launched from prison.

In the operative half of the decision, the African Courtroom discovered that Tanzania had violated articles 1, 7(1)(a), (c) and (d) of the Charter, as well as article 14(three)(d) of the International Covenant on Civil and Political Rights.[7] Within the judgement’s part on cures the African Courtroom ordered, inter alia:

“ix. Unanimously, that the Respondent is directed to take all necessary measureswithin a reasonable time to remedy the violations found, specifically precluding the reopening of the defence case and the retrial of the Applicant […].”[8]

Importantly, two judges dissented in an important means from the attitude of the next request for interpretation.[9] Specifically, they agreed with the deserves of the case however took situation with para. 159 of the choice, which successfully said that the Courtroom would not order the discharge of Mr Thomas as a result of there have been no ‘special or compelling circumstances’[10] to do so, however at the similar time the Courtroom also ordered Tanzania “to take appropriate measures to remedy the violations taking into account the above factors.”[11] In other phrases, the Courtroom discovered that the request to be launched from prison might solely be granted underneath “very specific and/or, compelling circumstances”[12], which Mr Thomas did not fulfil,[13]despite having been imprisoned for virtually 20 years consequently of a trial that violated article 7, and left it as much as Tanzania to remedy the violation in an applicable manner.[14]

Judges Thompson and Ben Achour dissented in their interpretation of whether or not or not ‘special or compelling’ circumstances have been proven in the case of Mr Thomas. Of their dissenting opinion the Judges said that:

“5. In spite of the truth that the Software does not state that specific information exhibit distinctive circumstances, we are of the agency view that the Courtroom found such specific/and or [sic] compelling circumstances when it famous that the Applicant has been in jail for 20 years out of the 30 yr term of imprisonment and that the reopening of the defence case or a retrial ‘would result in prejudice and occasion a miscarriage of justice.’

6. We can’t find a extra ‘specific and/or compelling’ [reason] than that the Applicant has been in prison for about 20 years out of a 30 yr jail term following a trial which the Courtroom has declared to be an unfair trial, in violation of the Charter.


8. The Courtroom fell shy of making the Order of releasing the Applicant. Our view is subsequently that, there isn’t a different treatment within the circumstance aside from, that the Applicant be launched.”[15]

It is precisely the strain highlighted right here by Decide Thompson and Decide Ben Achour that shaped the core of what Tanzania requested in its request for interpretation.

Tanzania’s Request for Interpretation

Tanzania’s request for interpretation raised three foremost questions:

1. The which means of “all necessary measures”;
2. What precisely the “violations found” have been and the way it should treatment them; and
three. The definition of the phrase “precluding”.

In deciphering its judgement, the African Courtroom made three necessary factors worthy of additional discussion. First, it restated the aim of preparations as the need to “erase the consequences of an unlawful act and restore” the state of affairs by which the applicant would have been had the violation not taken place.[16] Second, the Courtroom further emphasised this have to have the state of affairs restored when there has been a violation of the correct to a good trial.[17] Third, on this specific case, the Courtroom identified two avenues to remedy the state of affairs of Mr Thomas: 1) Tanzania should “reopen the case in compliance with the rules of a fair trial”, or 2) “take all appropriate measures to ensure that the Applicant finds himself in the situation preceding the violations.”[18]

In its further analysis, the Courtroom clearly states that to retry the case would ‘not be just’,[19] subsequently, leaving solely the second choice of ‘all appropriate measures’. The Courtroom argued that the rationale reopening the case can be inappropriate is because of the truth that Mr. Thomas had already served “more than half of the prison sentence[.]”[20] Nevertheless, it stays unclear whether the Courtroom is deliberately setting this as a bar for when a case could possibly be retried or not.[21] As well as, though a matter of semantics, the shift in language from “all necessary measures” to “all appropriate measures” just isn’t explicitly dealt with by the Courtroom.[22]

The question stays, subsequently, what does “all necessary (or appropriate) measures” mean in the context of the Alex Thomas case? The Courtroom appears to use these phrases to offer Tanzania a sure margin of appreciation in implementing the judgement by giving it “room for evaluation to enable it to identify and activate all the measures that would enable it [to] eliminate the effects of the violations established by the Court.”[23] In the context of the time of the judgement, Alex Thomas being the primary case through which Tanzania was found to have violated article 7, this is not a shocking transfer. Nevertheless, within the context of the request for interpretation after an extra 5 instances found that Tanzania had violated the proper to a fair trial, it might have been prudent for the Courtroom, within the interpretation, to offer more substantive steerage. As an alternative, it appeared to go back on its unique judgement and state that “the expression ‘all necessary measures’ includes the release of the Applicant and any other measure that would help erase the consequences of the violations established and restore the pre-existing situation and re-establish the rights of the Applicant.”[24] This transfer is particularly shocking contemplating that the judgement had explicitly rejected the request to be released by Mr. Thomas, albeit on the grounds of ‘special and compelling circumstances’.

In the long run, there are two notably essential findings by the Courtroom with regard to the Request for Interpretation. First, that the Courtroom was in truth referring to the release of Mr Tomas when it ordered that ‘all necessary measures’ be taken in the unique judgment, “or any other measure that would help erase the consequences of the violations established, restore the pre-existing situation and re-establish the rights of the Applicant”.[25] Second, that ‘remedy the violations found’ meant to “erase the effects of the violations found through the adoption of the measures indicated […] above;”[26] of which the discharge from prison was the only particular measure mentioned.

It might appear that the Courtroom has a revelation in its interpretation that it the truth is did mean the release of Mr. Thomas in any case, despite being in distinction to what it ordered in paragraph 159 and section vii of the operative half of the unique Judgement. The reasoning offered by the Courtroom was that it “did not state that the Applicant’s request was unfounded” however merely that it could not order the measure immediately because of the lack of ‘specific and compelling circumstances’.[27] Subsequently, despite the Courtroom initially finding that the state of affairs was insufficiently compelling to order the quick launch of Mr. Thomas, it emerges from the Request for Interpretation that Tanzania ought to have launched him with a purpose to comply with the judgement.

The problematic aspect just isn’t whether or not or not the discharge of Mr. Thomas was the appropriate measure to be taken. Relatively, the difficulty is that the African Courtroom didn’t have a clear line on what was applicable within the case of Alex Thomas v. Tanzania, and that this was part of a development through which the Courtroom appeared to not be defining and specifying what’s required for certain varieties of cures.[28]

The Impression

Despite the weird path that the African Courtroom took to return to the conclusion that Mr Thomas (and Mr Abubakari[29]) ought to have been released from prison, the legacy of the requests for interpretation submitted by Tanzania may be seen in the subsequent case regulation.

For example, within the case of Christopher Jonas v. Tanzania the Courtroom made a brand new addition to its formulation for dismissing the Applicant’s prayers for release from prison in a fair trial instances. Specifically, the African Courtroom dismissed Mr. Jonas’s attraction to be released from prison, however did so “without prejudice to the Respondent applying such a measure proprio motu[.]”[30] The Courtroom adopted the same strategy for the Applicant’s prayer to have the conviction and sentence set aside.[31] The case of Christopher Jonas was decided throughout the same session as the requests for interpretation in Alex Thomas and Mohamed Abubakari. This extra phrase coined in Christopher Jonas could be seen in other instances towards Tanzania relating to the appropriate to a good trial similar to Kijiji Isiaga v. Tanzania, Thobias Mang’ara Mango and Shukurani Masegenya Mango v. Tanzania, and Amiri Ramadhani v. Tanzania.

The newer case regulation of the African Courtroom marks a new shift within the Courtroom’s strategy as soon as once more. For example, in the case of Anaclet Paulo v. Tanzania and Minani Evarist v. Tanzania, the Courtroom awarded the candidates three hundred thousand Tanzanian Shillings in compensation. Thus, the 50th Abnormal Session probably signifies a brand new period through which the African Courtroom is now additionally prepared to order financial awards to victims of violations of the Charter.[32] As well as, in the case of Mgosi Mwita Makungu v. Tanzania the African Courtroom discovered that the state of affairs was‘exceptional and compelling’ enough to warrant the order of the release of Mr Makungu.[33] It stays to be seen how the African Courtroom will position itself in terms of cures, both in phrases of measures and monetary compensation, sooner or later. Nevertheless, the path taken by the African Courtroom in creating its case regulation, from the early days of Alex Thomas v. Tanzania and Mohamed Abubakari v. Tanzaniato the newest set of instances decided in August-September and November-December 2018, seems to be a constructive one and will hopefully set the tone for how the Courtroom offers with cures in the jurisprudence to return.

Correction [19 Jan. 2019]: The unique publish contained the case identify Thobias Mang’ara Mnago and Shukurani Masegenya Mango v. Tanzania, as an alternative of Thobias Mang’ara Mango and Shukurani Masegenya Mango v. Tanzania.

[1]Alex Thomas v. Tanzania, para. 64.

[2]Ibid para. 115 (also see para. 116 and 124), additionally see Mohamed Abubakari v. Tanzania, para. 122 on how the fitting to entry to legal counsel is assessed, and elaborates on when free authorized assistance ought to be offered in para. 137-145.

[3]Alex Thomas v. Tanzania, para. 157.

[4]In Mohamed Abubakari v. Tanzania for instance the courtroom made necessary findings on the need for impartiality of prosecutors for a fair trial (para. 107-111), the Courtroom not being sure by nationwide regulation (para. 136), the well timed communication of indictment and assertion of witnesses (para. 157-161), and the definition of ‘open court’ for the public pronouncements of judgements (para. 224-227).

[5]Alex Thomas v. Tanzania, para. 4

[6]Articles 1, three, 5, 6, and 9 relate to giving impact to the rights of the African Charter, equality before the regulation, prohibition of torture and inhuman and degrading remedy, the best to liberty and security, and the suitable to obtain info respectively.

[7]Alex Thomas v. Tanzania, operative half, para. vii.

[8]Ibid, operative part, para. ix. [own emphasis added]

[9]Decide Elsie N. Thompson and Decide Rafâa Ben Achour.

[10]Alex Thomas v. Tanzania, para. 157.

[11]Ibid para. 159.

[12]Ibid para. 157.

[13]Ibid para. 157.

[14]The African Courtroom has offered extra steerage on this difficulty in the case of Diocles William v. Tanzania, para. 101-105, and para. xi of the operative half of the judgement.

[15]Alex Thomas v. Tanzania, Dissenting opinion, para.’s 5-6.

[16]Request for Interpretation, Alex Thomas v. Tanzania, para. 31.

[17]Ibid para. 33.


[19]Ibid para. 34.


[21]This situation can also be dealt with in Diocles William v. Tanzania, para. 95-106.

[22]See Request for Interpretation, Alex Thomas v. Tanzania, para. 33.

[23]Ibid para. 35.

[24]Ibid para. 39.

[25]Ibid, operative half, para. iii.

[26]Ibid, operative part, para. iv.

[27]Ibid para. 36.

[28]One other instance of the obscure wording of cures may be found in the case of Actions Pour la Safety des Droits de l’Homme (APDH) v. Côte d’Ivoire (see para. operative half, para. 7) and the next request for interpretation on the measures that Côte d’Ivoire might take to remedy the state of affairs. Nevertheless, in that case the Courtroom did not present extra details, as “[…] although the first question seems to relate to […] paragraph 7 of the operative provisions of the Judgement, it is not intended to clarify the meaning of this point. Rather, it seeks the Court’s opinion as to how to implement this point, which, in the Court’s view, is the responsibility of the State of Côte d’Ivoire.” See Request for Interpretation, ADPH v. Côte d’Ivoire, para. 16.

[29]The similar basic story applies to Mr Abubakari, who was additionally denied release from jail as a treatment within the unique case as a result of lack of ‘special and compelling circumstances (see Mohamed Abubakari v. Tanzania, para. 234) but within the Request for Interpretation, the Courtroom identified that the discharge of Mr Abubakari from jail was the appropriate treatment (see Request for Interpretation, Mohamed Abubakari v. Tanzania, para. 36-39).

[30]Christopher Jonas v. Tanzania, operative part, para. vii.

[31]Ibid, operative half, para. viii.

[32]Also see Armand Guehi v. Tazania, para. 151-195, for a extra detailed discussion on monetary damages.

[33]Mgosi Mwita Makungu v. Tanzania, para. 85-86.