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0004 I 0
lndividual Opinion
Blaise Tchikaya, Judge at the African Court on
Human and Peoples'Rights (AfCHPR)
Mgosi Mwita Makungu v. Tanzania
7 December 2018
1.
There are works which though collective and have a common goal, still keep
their specificities. The Mgosi Mwita Makungu v. United Republic of Tanzania decision of
the African Court lends credence to this assertion. I agree with the majority of the
judges as regards admissibility, jurisdictionl and the operative part, but I believe that the
Court should have given further thought to the issue of consistency of the evidence
before it in this case. The question arose as to the admissibility of Mr. Mgos/s
assertions in support of his claims; a crucial question, one may say, that the court
should have set out in detail.
2.
believe that the court should have paid particular attention to the question which
the point of law raises in that judgement. Had Mr. Mgosi sufficiently proven his key
allegation that the Tanzanian State failed to provide him with the documents necessary
for his appeal? The African Court should have made sure that this issue is well tackled
and investigated well in advance of any other facets of this dispute. A fortiori, it is known
that international human rights law has abundant jurisprudence2 protecting the rights of
individuals against the non-availability of documents necessary for procedure. The
court was aware of this and it was within its jurisdiction to enforce this fundamental right.
But, of course, this must be clearly proven.
I
3.
lt is needful to consider not only the insufficiency of the allegations on the ground
that the applicant did not substantiate them (l) but also that proof of claims have always
impacted the judgements of the Court.
l. The claims presented are not substantiated
4
The applicant sought compensation from the Arusha Court sitting in Tunis, for
I There were no objections to jurisdiction
or admissibility. As
it established in Alex Thomas y. Tanzania,
20/lll20l5andPeterJosephChachav.Tanzania,2Sl3l20l4:..."as
longastherightsallegedlyviolatedare
protected by the Charter or any other human rights instrument ratified by the State concerned , the Court will
have jurisdiction over the matter".
2
EUCJ, Seyersted and ll/iberg v. Sweden,2Ol9l2OO5 (right of access to personal information in the file held
by the public services); CEDH Ramzy v. The Netherlands, 20 May 2010; CEDH, Gulijev u Lettonia, 16
December 2008 ; CEDH, Tsourlakis v. Greece, 15 Octobre 2009.
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