therefore,
the
door
for commencing
action
against
the
Respondent
State,
in
relation to the violations alleged by the Applicant, was only opened in March 2010.
This Application, however, was filed on 4 July 2018, which is eight (8) years and
four (4) months after the deposit of the Declaration. In the circumstances, the Court
must determine whether,
on the facts of the present case, the aforementioned
period is reasonable within the meaning of Rule 40(6) of the Rules.
48. At the outset, the Court notes that although the Respondent State has submitted
that the “Applicant’s case at the local jurisdiction was concluded in 2010 where the
Court of Appeal of Tanzania dismissed the appeal” no details have been provided
of the case involving the Applicant which was dismissed in 2010. For example, the
Respondent State has not indicated to the Court who were the parties in the 2010
case; what the issues before the Court of Appeal were or even what the registration
number of the case was.
Given the lack of information about the alleged 2010
case, the Court holds that the Respondent State has failed to demonstrate that
there
was
a 2010
case
involving
the
Applicant
which
has
relevance
to
the
proceedings before it. The Court is reinforced in its finding since it is trite law that
he who alleges bears the burden of proving the allegation(s).
49. The Court recalls that Rule 40(6) of the Rules, which restates Article 56(6) of the
Charter,
emphasises two aspects that the Court must consider for purposes of
determining
whether
or not an application fulfils the requirement
of being
filed
within a reasonable time. The first aspect is that an “application be filed within a
reasonable time from the date local remedies were exhausted.” The second aspect
requires that an application be filed within a reasonable time “from the date set by
the Court as being the commencement
of the time limit within which it shall be
seized with the matter.”
50. In the present Application, since the Court has found that there were no domestic
judicial
remedies
reasonable
time,
available
for the
Applicant
after the exhaustion
14
to
of domestic
exhaust,
remedies,
the
question
within which
of
a
the