The Court's Ruling on the preliminary objection on admissibility
"Compatibility of the rights alleged to have been violated with the Charter of the Organisation of
African Unity, now the Constitutive Act of the African Union and the African Charter on Human and
Peoples' Rights."
127. The Respondent contends that the Application should be declared inadmissible as it is not in
compliance with Article 56 of the Charter and Rule 34(4) of the Rules since the Application does not
indicate which articles of the Charter the Respondent is alleged to have violated.
128. This preliminary objection based on the inadmissibility of the App lication due to incompatibility of the
rights alleged to have been violated with the Charter of the Organisation of African Unity, now the
Constitutive Act of the African Union, and the Charter is interlinked with the preliminary objection on the
lack of the Court's jurisdiction ratione materiae. As the Court has already addressed the issue of
incompatibility of the Application with the Constitutive Act of the African Union and the Charter when
dealing with the issue of its jurisdiction ratione materiae, it does not find it necessary to address this issue
again.
Non-exhaustion of local remedies
129. The Applicant's Application before this court is connected with the Miscellaneous Criminal and Civil
Applications he filed in connection with the Criminal Cases that he was charged. In these Miscellaneous
Applications, the Applicant prayed the restitution of his property and the withdrawal of the allegedly unlawful
charges that he faced following his alleged unlawful detention and interrogation.
130. All the Miscellaneous Applications were filed at the High Court of Tanzania at Arusha.
131. Miscellaneous Criminal Application No. 7 of 2007 Originating from Criminal Case No. 933 of 2007 was
struck out for being premature. In that application, the High Court, held that because there was no
connection between the property seized by the Police and the murder charge that the Applicant was then
facing, the Court's jurisdiction to order the restitution of the property was ousted and the only avenue open
to him was to approach the District Court before which he was charged, to seek orders for restitution of his
property. The learned High Court Judge added that since the murder charge he was facing in Criminal
Case No. 933 of 2007 was pending, the Applicant's application to the High Court was premature and that it
would have to be stayed until final determination of the pending murder charge, unless the seized
properties had no connection with the charges he faced. Furthermore, the High Court also declined
jurisdiction in the application on the ground that there were additional criminal charges against the
Applicant in the District Court. The application was therefore not heard on merits and the High Court
referred the Applicant back to the District Court, as it considered it the proper forum for adjudicating
whether the property in dispute had a connection with the Criminal Cases the Applicant was facing. The
Applicant did not resort to the District Court to seek restitution of his property, nor did he appeal the
decision of the High Court.
132. The Applicant filed Miscellaneous Criminal Application No. 54 of 2009 originating from Criminal Case
No. 933 of 2007, under Section 91 of the Criminal Procedure Act for the charges preferred against him to
be discharged. On 11 August 2010, the application was struck off as it did not specify the subsection of
Section 91 of the Criminal Procedure Act under which it was made and that the Applicant's prayers were
stated in the Affidavit in support of the application rather than in the Chamber Summons.
133. The Applicant also filed Miscellaneous Criminal Application No. 6 of 2010, citing Section 90 (1) (c) (4)
of the Criminal Procedure Act, for a discontinuance of Criminal Cases Nos. 915/2007, 931 of 2007,
1027/2007, 1029 of 2007, 883 of 2008, 712 of 2009 and 716 of 2009 in the District Court of Arusha on the
grounds that the actions that the Police had taken were contrary to Sections 32, 33, 50(1), 51(1) and 52(1),
(2) and (3) of the Criminal Procedure Act. On 16 November 2010, the application was struck out for being
incompetent as it was filed under a repealed section of the law, that is, Section 90 (1) (c) (4) of the Criminal
Procedure Act which had been previously repealed by Section 31 of the National Prosecution Act No.27 of
2008 which came into effect on 9 June 2008.
134. The Applicant then filed, Miscellaneous Civil Application No.47 of 2010 The application originated from
the Criminal Cases Nos. 915/2007, 931 of 2007, 1027/2007, 1029 of 2007, 883 of 2008, 712 of 2009 and
716 of 2009 in the District Court of Arusha. The application was grounded on Articles 13(1), 15(1), (2) (a)
and 30 (3) of the Constitution of the United Republic of Tanzania guaranteeing equality before the law and
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