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Kalijo v United Republic of Tanzania (Application No. 026/2017) [2019] AfCHPR 94 (27 August 2019)
- Citation
- [2019] AfCHPR 94
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- African Court on Human and Peoples Rights
- Panel
- Anukam J, Ben Achour J, Bensaoula J, Chizumila J, Eno R, Kioko VP, Matusse J, Mengue J, Mukamulisa J, Orè P, Tchikaya J
- Case number
- Application No. 026/2017
- Language
- English
More details
- Court
- African Court on Human and Peoples Rights
- Panel
- Anukam J, Ben Achour J, Bensaoula J, Chizumila J, Eno R, Kioko VP, Matusse J, Mengue J, Mukamulisa J, Orè P, Tchikaya J
- Case number
- Application No. 026/2017
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Court determined that, in the interests of justice, the Applicant's reply to the Respondent State's response should be accepted and the proceedings reopened. The Court found that the Applicant's right to be heard would be prejudiced if his reply was excluded solely due to procedural closure of pleadings. The Court exercised its discretion under the Protocol and Rules to reopen the pleadings, thereby ensuring that both parties have a fair opportunity to present their arguments. The Respondent State was granted an opportunity to reply to the Applicant's response within thirty days, upholding the principles of fairness and equality before the law.
Court disposition
Application for reopening of pleadings granted.
Orders
- The proceedings in Application No. 026/2017 Maulidi Swedi @ Mswezi Kalijo v. United Republic of Tanzania are hereby reopened.
- The Applicant's Reply to the Respondent State's Response is deemed to have been properly filed.
- The Respondent State is ordered to submit its Reply to the Applicant's Response, if any, within thirty (30) days of receipt thereof.
02
Material facts
Parties
Maulidi Swedi @ Mswezi Kalijo
Applicant Counsel: Self-representedUnited Republic of Tanzania
Respondent Counsel: Dr Clement J. Mashamba, Ms. Sarah Mwaipopo, Mr. Zachariah Elisaria, Ms. Nkasori Sarakikya, Mr. Benedict T. Msuya, Mr. Michael Luena, Mr. Veritas Mlay03
Procedural history
Posture
Miscellaneous Application / Order for Reopening of Pleadings
04
Questions and positions
Legal issues
- 01
Whether the Applicant's right to a fair trial was violated.
- 02
Whether the Applicant was denied equality before the law and equal protection by the law.
- 03
Whether the Applicant's reply to the Respondent State's response should be accepted after closure of pleadings.
Party arguments
- Applicant
- The Applicant alleges violations of his rights to a fair trial, equality before the law, and equal protection by the law under the African Charter and the Constitution of Tanzania. He contends that the Respondent State's judicial process was flawed and seeks to have his reply to the State's response accepted despite procedural closure.
- Respondent
- The Respondent State contests the Applicant's claims, maintains that due process was followed in the criminal proceedings, and objects to the late filing of the Applicant's reply after the closure of pleadings.
05
Court’s reasoning
Legal principles
- 01
Article 22 of the Protocol to the African Charter on Human and Peoples' Rights; Rule 8(2) of the Rules of Court
The interests of justice may require reopening of pleadings to ensure all parties are heard.
- 02
Articles 2, 3(1), 3(2) of the African Charter; Article 13(6)(a) of the Constitution of Tanzania
Right to fair trial and equality before the law are protected under the African Charter and the Constitution of Tanzania.
06
Ratio, limits and disposition
Ratio decidendi
The Court determined that, in the interests of justice, the Applicant's reply to the Respondent State's response should be accepted and the proceedings reopened. The Court found that the Applicant's right to be heard would be prejudiced if his reply was excluded solely due to procedural closure of pleadings. The Court exercised its discretion under the Protocol and Rules to reopen the pleadings, thereby ensuring that both parties have a fair opportunity to present their arguments. The Respondent State was granted an opportunity to reply to the Applicant's response within thirty days, upholding the principles of fairness and equality before the law.
Obiter and limits
- The Court emphasizes that procedural rules should not be applied rigidly where doing so would undermine the interests of justice.
- The right to be heard is fundamental and must be preserved even in the face of procedural technicalities.
Court disposition
Application for reopening of pleadings granted.
- The proceedings in Application No. 026/2017 Maulidi Swedi @ Mswezi Kalijo v. United Republic of Tanzania are hereby reopened.
- The Applicant's Reply to the Respondent State's Response is deemed to have been properly filed.
- The Respondent State is ordered to submit its Reply to the Applicant's Response, if any, within thirty (30) days of receipt thereof.
Source and reliance status
African Court on Human and Peoples Rights
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
African Court on Human and Peoples Rights
Judgment
$026|2017$ $(27|08|2019)$ $(000271 - 000267)$
000271
THE MATTER OF
MAURIDI SWADI @ MSWEZI KALIJO
$V_{\cdot}$
UNITED REPUBLIC OF TANZANIA
APPLICATION No. 026/2017
ORDER FOR REOPENING OF PLEADINGS
27 AUGUST 2019
000270
The Court composed of: Sylvain ORE, President; Ben KIOKO, Vice-President; Rafa6 BEN ACHOUR, Angelo V. MATUSSE, Suzanne MENGUE, M-Th6rdse MUKAMULISA Tujilane R. CHIZUMILA, Chafika BENSAOULA, Blaise TCHIKAYA, Stella l. ANUKAM, Judges; and Robert ENO, Registrar.
Pursuant to Article 22 of the Protocol to the African Charter on Rights on the Establishment of an African Court on Human (hereinafter refened to as "the Protocol") and Rule 8(2) of (hereinafter refened to as "the Rules"), Judge lmani D. ABOUD, and a national of Tanzania, did not hear the Application. Human and Peoples' and Peoples' Rights the Rules of Court member of the Court
ln the Mafter of:
o
o
Maulidi Swedi @ Mswezi Kalijo
Self -represented
Versus
UNITED REPUBLIC OF TANZANIA
represented by:
- Dr Clement J. MASHAMBA Solicitor Generai, Office of the Solicitor General; - il Ms. Sarah MWAIPOPO, Director, Constitutional Affairs and Human Rights, Attorney General's Cham bers; - Mr. Zachariah ELISARIA, Senior State Attorney, Attorney Generai's Chambers; l - Ms. Nkasori SARAKIKYA, Principal State Attorney, Attorney General's Chambers; lv
00026t
- Mr. Benedict T. MSUYA, Second Secretary, Legal Officer, Ministry of Foreign Affairs and I nternational Cooperation; - Mr. Michael LUENA, Principal State Attorney. Attorney General's Chambers; VI - Mr. Veritas MLAY State Attorney, Attorney General's Chambers. v
after deliberation,
o
r.ssues the following Order,
o I. THE PARTIES
- 1. Mr. Maulidi Swedi @ Mswezi Kalijo, (hereinafter referred to as "the Applicant") is <sup>a</sup> national of Tanzania, who was arrested and convicted for the crime of armed robbery and sentenced to 30 years imprisonment by the District Court of Nzega on the 21 september 2005. He filed an appeal at the court of Appeal of ranzania at Tabora (Criminal Appeal No. 186 of 2008), and on 29 March 2011, the Court of Appeal upheld the decision of the District Court. The Applicant is cunently serving his sentence at Uyui Central Prison, Tabora. - 2. The Respondent state is the United Republic olranzania, which became a party to the African Charter on Human and Peoples' Rights (hereinafter refered to as the "Charte/') on 21 October 1986, and to the Prolocol on 10 February 2006. Furthermore, the Respondent state, on 2g March 2010, deposited the Declaration prescribed under Article 34(6) of the Protocol, by which it accepts the jurisdiction of the Court to receive applications from individuals and NGOs.
il SUBJECT MATTER OF THE APPLICATION
3. The Application, filed on 31 August 2017, is based on the Respondent State's alleged violations of the Applicant's rights to fair trial, equality before the law and equal protection by the law, as provided for under Articles 2,3(1) and (2) and I of the Charter, as well as Articles 13(6) (a) of the Respondent State's Constitution of 1977.
I!I. SUMMARY OF THE PROGEDURE BEFORE THE COURT
- 4. The Application was received at the Registry of the Court on 31 August 2017. - 5. The Responsdent State filed its Response to the Application on 21 March 2019. - 6. After extensions of time granted to the Applicant on 30 April 2019; 30 May <sup>2019</sup>and I June 2019, on 17 July 2019, pleadings were closed and the Parties were duly notified. - 7. On 7 August 2019, the Applicant filed his Reply to the Respondent State's Response to the Application.
IV THE COURT:
t
o
o
- i. Orders that the proceedings in Application No. 026/2017 Maulidi Swedi @ Mswezi Kalijo v. United Republic of Tanzania be and are hereby reopened; - ii. Rules that, in the interests of justice, the Applicant's Reply to the Respondent State's Response the Application be deemed to have been properly filed; and - iii. Orders the Respondent State to submit his Reply to the Applicant's Response, if any, within thirty (30) days of receipt thereof.
Signed
Sylvain ORE, President;
$\mathcal{L} = 000267$
$\overline{4}$
and Robert ENO, Registrar.
Done at Arusha, this Twenty Seventh Day of August in the Year 2019, in English and French, the English text being authoritative.
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