and, second, that the Court is not mandated to sit as an appellate court.
Each of these arguments will now be addressed.
24. As regards the argument that the Court is being called to sit as a court of
first instance, the Court reiterates its established position that it is not a court
of first instance.5 At the same time, however, it retains the power to assess
the propriety of domestic proceedings, including a domestic court’s
assessment of evidential issues, as against the standards set out in the
Charter and other international human rights instruments ratified by the
State concerned.6 The Court would, therefore, not be sitting as a trial court
if it were to consider the Applicant’s allegations in this Application.
Resultantly, the first limb of the Respondent State’s objection is dismissed.
25. In relation to the argument that the Court is being called to sit as an appellate
court, the Court, again, recalls its established case law that although it is not
an appellate body concerning decisions of national courts,7 this does not
preclude it from examining proceedings of the said courts to determine
whether they were conducted in accordance with the standards set out in
the Charter or any other human rights instruments ratified by the State
concerned.8 As such, the Court would not be sitting as an appellate court if
it were to examine the allegations made by the Applicants. Consequently,
the second limb of the Respondent State’s objection is also dismissed.
26. Overall, therefore, the Court dismisses the Respondent State’s objection
and holds that it has material jurisdiction to consider the present Application.
5
Ernest Francis Mtingwi v. Malawi (jurisdiction) (15 March 2013) 1 AfCLR 190, § 14.
Armand Guehi v. United Republic of Tanzania (merits and reparations) (7 December 2018) 2 AfCLR
477, § 33; Werema Wangoko Werema and Another v. United Republic of Tanzania (merits) (7
December 2018) 2 AfCLR 520, § 29 and Alex Thomas v. United Republic of Tanzania (merits) (20
November 2015) 1 AfCLR 465, § 130.
7 Mtingwi v. Malawi (jurisdiction), supra, § 14.
8 Kennedy Ivan v. United Republic of Tanzania (merits and reparations) (28 March 2019) 3 AfCLR 48,
§ 26; Guehi v. Tanzania (merits and reparations), supra, § 33; Nguza Viking (Babu Seya) and Johnson
Nguza (Papi Kocha) v. United Republic of Tanzania (merits) (23 March 2018) 2 AfCLR 287, § 35.
6
8