109. The Court notes that Article 7(1)(d) provides that:
“Every individual shall have the right to have his cause heard. This
comprises the right to be tried within a reasonable time by an impartial
court or tribunal.”
110. This Court has held that “impartiality within the meaning of Article 7(1)(d) of
the Charter must be understood as the absence of bias or prejudice in the
consideration of a case in court. As such, bias cannot be presumed and
must be irrefutably proven by the party alleging it”.50
111. The Court recalls its position in Makungu Misalaba v. United Republic of
Tanzania that the obligation of impartiality owed by judges extends to
assessor bias, or the appearance thereof, which has the potential to cast
doubt on the accuracy of the judges’ factual findings and the overall
credibility of the courts.51 The Court further takes judicial note of the position
of the domestic courts of the Respondent State regarding the duty of
assessors in criminal matters such as in Mapuji Mtogwashinge v. The
Republic, where the Court of Appeal of Tanzania stated that the duty of
assessors is to put questions to witnesses for clarification and not to crossexamine as the aim of cross-examination is to “contradict, weaken or cast
doubt upon the accuracy of the evidence by the witness during examination
in chief.”52
112. This Court notes, from the record of the High Court proceedings, that the
questions asked by the assessors were not recorded, only the witnesses’
responses were recorded. As highlighted in the case of Mapuji
Mtogwashinge v. The Republic, assessors are not precluded from
questioning witnesses to ensure clarity. The Court further notes, from the
record, that there is nothing to show that the questions asked by the
50
Fidèle Mulindahabi v. Republic of Rwanda (judgment), supra, § 70; Umuhoza v. Rwanda (merits),
supra, §§ 103 and 104; Thomas v. Tanzania (merits), supra, § 124.
51 Makungu Misalaba v. United Republic of Tanzania, ACtHPR, Application No. 033/2016, Judgment of
7 November 2023 (merits and reparations), §§ 93-99.
52 Mapuji Mtogwashinge v. The Republic (Criminal Appeal No. 97 of 2015 (unreported).
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