a) On the failure to provide effective legal representation
74. The Applicant alleges that his defence was materially undermined by his
own attorney’s failure to call or conduct a reasonable investigation to
discover critical witnesses whose testimonies may have corroborated his
testimony or contradicted testimony of the prosecution’s key witnesses in
his defence. He submits that his counsel also failed to interview known
witnesses to determine if they had information that could aid in his defence.
The Applicant argues that counsel’s failure to call witnesses resulted in the
assessors drawing adverse inferences against him which undermined both
his alibi and his credibility generally. He submits that counsel should have
anticipated that negative inferences would be drawn against his client and
taken preventive measures. He concludes that the deficient legal
representation fell far short of the standards of effectiveness required by the
law and undermined his right to defence.
75. Without responding directly to the Applicant’s allegations, the Respondent
State in its Response submits that the Applicant was represented by
counsel and his rights were in no way curtailed.
***
76. The Court recalls that, as it has held in Marthine Christian Msuguri v. United
Republic of Tanzania, the right to defence as provided for in Article 7(1)(c)
of the Charter should be understood to mean that legal counsel should be
effective even if provided by the State.28 The Court has also held that for
representation to qualify as effective, it should be one that provides counsel
with sufficient time and means to prepare an adequate defence at all stages
right from the arrest of the individual, without any interference.29 As the
28
Msuguri v. Tanzania (merits and reparations), supra, § 91 and Juma v. Tanzania (judgment), supra,
§ 84.
29 Ghati Mwita v. United Republic of Tanzania ACtHPR, Application No. 012/2019, Judgment of 1
December 2022 (judgment), §§ 122-123; Henerico v. Tanzania (merits and reparations), supra, § 109
and African Commission on Human and Peoples’ Rights v. The Republic of Libya (merits) (3 June 2016)
1 AfCLR 153, § 93.
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