60.
At the same
Public Hearing, Counsel for the Applicant stated once again that the
latter had been convicted three times at all levels of the Tanzanian judicial hierarchy; that,
to his knowledge, there had been no Application
for review before the Court of Appeal;
that even if there were to be an Application for a review, such an Application would still
be extraordinary, and not ordinary; that in Case 333/2006 - Southern Africa Human Rights
NGO
Network and Others v. Tanzania,
Court of Appeal
the Respondent
State acknowledged
that the
is the highest court in the country; that as regards the constitutional
remedy, the relevant articles of the Constitution [Art. 30(3)and (5);Art.12] show that this
is left to the judge's discretion; that under international jurisprudence including the UN
Committee on the Elimination of All Forms of Discrimination Against Women, victims are
not required to exhaust the special or extraordinary remedies.
61.
Regarding
the Respondent
State’s allegation that almost
before the African Court had never been
all the complaints
now
submitted before the national courts, Counsel
for the Applicant replied that all the complaints had been presented before the national
courts; and relying on court records and the Judgments filed by the Parties before this
Court, he mentioned by way of example, identification issues, errors committed in respect
of
the invocation of an alibi by the Applicant, the absence of cross-examination of the
witness, and the conflict of interest on the part of the Prosecutor.
62. As
regards
local remedies,
the Court
notes that the fact is undisputed
that the
Applicant appealed his conviction before the Court of Appeal of Tanzania, which is the
highest court in the land, and that that Court had upheld the Judgments of the High Court
and of the District Court in the instant case.
63.
The key question that arises here is whether the other two remedies mentioned by
the Respondent, i e. the constitutional remedy before the High Court, and the Application
for review before the Court of Appeal, are remedies that the Applicant must exhaust within
the meaning of Article 56(5) of the Charter which, in substance, is reproduced in Rule 40
(5) of the Rules.
21