78. In the present case, although the First Applicant has asserted that his rights
under Articles 2 and 3 of the Charter were violated due to fabrication of
evidence which in turn led to his unfair treatment, the Court has not been
presented with any evidence to justify this allegation. The Court’s perusal
of the record does not also show the particular manner in which the Second
Applicant was treated differently from other accused persons, facing similar
charges to the First Applicant, before the Respondent State’s courts.
79. In so far as the First Applicant’s case is grounded on the alleged fabrication
of evidence before domestic courts, the Court reiterates its established
position that it does not, generally, interfere with evidential findings made
by trial courts unless a grave injustice is manifest.22 In the present case, the
Court finds that the First Applicant has not raised any justification to invite
the Court to interfere with the evidential findings by the domestic courts.
80. The Court also finds that the Second Applicant, having made no
submissions to demonstrate how his rights under Articles 2 and 3 of the
Charter were violated, has failed to prove his allegations.
81. In the circumstances, the Court finds that there is no basis for it to hold that
the Applicants’ rights under Articles 2 and 3 of the Charter were violated.
82. As for the First Applicant’s allegation that the offence of rape under the
Respondent State’s Penal Code contravenes the Charter on the ground of
“sexism”, the Court finds that the First Applicant has just made the averment
without substantiating the same. The Court cannot, therefore, uphold this
submission.
83. In light of all the above, therefore, the Court dismisses both Applicants’
allegations of a violation of Articles 2 and 3 of the Charter.
22
Oscar Josiah v. United Republic of Tanzania (merits) (28 March 2019) 3 AfCLR 83, §§ 52-53.
22