0ilir?0
,
1. tvoted fortire entire Judgment in the lt/atter of Minani Evaristv. uniteci Republic
of Tanzania captioned above, and I agree with all the reasoning of the Court as well
as the entire operative- part. However, I have reservations regarding the reasons
developed in paragraph 81 of the Judgment.
2. The Court's refusal to order the Applicant's release, in my opinion, reposes on
questionable reasons. lndeed, the Court states in paragraph Bl that "fhe Court
reiterates its decision that it is not an appellate Court". This is more than obvious in
as much as we are in the presence of a continental courtwhose "jurisdiction ... shal
o
extend fo a// cases and disputes submitted to it concerning the interpretation and application
of the Charter ... Protocol, and any other relevant Human Rrghfs instrument ratified by the
Sfafes concerned''. And the Court justifies this assertion by adding thal 'Tor the simple
reason that it does not belong to the same judicialsysfem as the national courts, it does not
apply the same law as the Tanzanian courts; that is, Tanzanian law, and ff does not examine
the detail of the issues of fact and law that national courts are entitled to deat with ,,. Here
again, the justification does not tally with what the Court will say to argue the reasons
for its refusal to order release. The latter in fact reposes on the reasons ouflined
in
paragraph 82, which for the first time in the jurisprudence of the AfCHPR, gives a list,
albeit not exhaustive, of "exceptional or compelling circumstances" which could lead
the Court to pronounce a release, reasons unrelated to the fact that the African Court
is not a Tanzanian appellate court. By adopting this line of argument, it could be said
o
that the Court forever closes the possibility of it ordering the release of an applicant
in detention or in arbitrary imprisonment.
3. This notwithstanding, I agree with the Court's decision to reject the prayer for
release. lndeed, and in this case, the Court rightly took into account only one
complaint against the Respondent State, namely, the violation of Article 7(1)(c) on
the Applicant's right to defence with the use of legal aid2.
4. This violation is certainly as important as any violation of a human right. There is
indeed no violation of human rights that is not important. But the consequences of
violation are variable when the issue comes to that of reparation.
lArticle3oftheProtocol totheAfricancharter
onHumanandpeoples'RightsontheEstablishmentof
an
African Court on Human and Peoples' Rights
2
See paras. 65 to 69 of the Judgment
2lPage
@--