TABLE OF CONTENTS

1. I. The Parties 322

2. II. Subject matter of the Application 322

   • A. Facts of the matter 322

   • B. Alleged violations 323

3. III. Summary of the procedure before the Court 325

4. IV. Prayers of the Parties 325

5. V. Jurisdiction 327

   • A. Objections to material jurisdiction 327

     • i. Objection on the ground that the Court is being asked to sit as a court of first instance 327

     • ii. Objection alleging that the Application violates the rules on res judicata 328

   • B. Other aspects of jurisdiction 329

6. VI. Admissibility 330

7. VII. Merits 333

8. VIII. Reparations 335

9. IX. Costs 335

10. X. Operative Part 335

I. THE PARTIES

• 1. Shukrani Masegenya Mango, Ally Hussein Mwinyi, Juma Zuberi Abasi, Julius Joshua Masanja, Michael Jairos, Azizi Athuman Buyogela, Samwel M Mtakibidya (hereinafter referred to as “the Applicants”) are all nationals of the United Republic of Tanzania (hereinafter referred to as “the Respondent State”). The First Applicant, Shukrani Masegenya Mango, and the Seventh Applicant, Samwel M Mtakibidya, were both convicted and sentenced for armed robbery while the rest of the Applicants were convicted and sentenced for murder. Although the Applicants were convicted in different cases and at different times, they filed this Application jointly raising one major common grievance which relates to the exercise of the presidential prerogative of mercy by the Respondent State. With the exception of the Second Applicant, who died on 11 May 2015, all the Applicants are serving their sentences at Ukonga Central Prison in Dar es Salaam.

• 2. The Respondent State became a Party to the African Charter on Human and Peoples’ Rights (hereinafter referred to as “the Charter”) on 21 October 1986 and the Protocol on 10 February 2006. It also deposited, on 29 March 2010, the Declaration under Article 34(6) of the Protocol through which it accepts the jurisdiction of the Court to receive cases from individuals and Non-Governmental Organizations.

II. SUBJECT MATTER OF THE APPLICATION

III. SUMMARY OF THE PROCEDURE BEFORE THE COURT

• 15. The Application was filed on 17 April 2015 and on 28 September 2015 it was served on the Respondent State.

• 16. On 22 September 2016, the Registry received the Respondent State’s Response to the Application.

• 17. On 26 September 2017, the Registry received the Applicant’s Reply to the Respondent State’s Response and this was transmitted to the Respondent State on 2 October 2017.

• 18. On 10 May 2018, the Registry received the Applicant’s submissions on reparations and these were transmitted to the Respondent State on 22 May 2018.

• 19. Notwithstanding several reminders and extensions of time, the Respondent State did not file submissions on reparations.

• 20. On 11 April 2019, pleadings were closed and the Parties were duly informed.

IV. PRAYERS OF THE PARTIES

• 21. Although the First Applicant and the Seventh Applicant have an additional claim which is distinct from the allegations that all the Applicants have jointly made, the Applicants have not desegregated their prayers and they have jointly prayed the Court for the following:

  • i. An order that the application is admissible;

  • ii. An order declaring that their basic rights have been violated through the unconstitutional acts of the Respondent State;

  • iii. An order that they “regain and enjoy” their fundamental rights in respect of the violations perpetrated by the Respondent State;

  • [Page 326] iv. An order that the Respondent State recognise the rights and duties enshrined in the Charter and take legislative and other measures to give effect to them;

  • v. An order nullifying the Respondent State’s decisions violating the Applicants rights and ordering their release from custody;

  • vi. An order for reparations;

  • vii. Any other order(s)/relief(s)/remedies as the Court may be pleased to grant and as seems just in the circumstances of the case.

• 22. In respect of the jurisdiction and admissibility of the Application, the Respondent State prays the Court to grant the following orders:

  • i. That, the African Court on Human and Peoples’ Rights is not vested with jurisdiction to adjudicate over this matter.

  • ii. That, the Application has not met the admissibility requirements stipulated under Rule 40(5) of the Rules of Court or Article 56 and Article 6(2) of the Protocol.

  • iii. That, the Application has not met the admissibility requirements stipulated under Rule 40(6) of the Rules of Court or Article 56 and Article 6(2) of the Protocol.

  • iv. That, the Application be deemed inadmissible.

  • v. That, the Application be dismissed with costs.

• 23. In respect of the merits of the Application, the Respondent State prays the Court to order the following:

  • i. That, the Respondent has not violated Articles 13(1) (2) (3) (4) and (5), 13(6)(c) and 107A(2) (a) of the Constitution of the United Republic of Tanzania.

  • ii. That, the Respondent has not violated Article 2, 3(1)(2), 4,5,7(2), 9(1)(2), 15,19 and 28 of the African Charter on Human and Peoples’ Rights.

  • iii. That, the Respondent has not violated Articles 5, 7, 8 and 10 of the Universal Declaration of Human Rights.

  • iv. That, the Respondent State is not unlawfully detaining the Applicants and has not violated their fundamental rights.

  • v. That, the Respondent State does not discriminate between long term and short term prisoners.

  • vi. That, Sections 4(c) and 5(a) of the Minimum Sentences Act are valid and do not infringe the fundamental rights of the Applicants.

  • vii. That, Section 4(c) and 5(a) of the Minimum Sentences Act are in conformity with Articles 64(5) of the Constitution of the United Republic of Tanzania, 1977.

  • viii. That, the sentence of Thirty years’ imprisonment for the offence of Armed Robbery was lawful.

  • [Page 327] ix. That, the Application lacks merits and should be dismissed.

  • x. That, the Applicants should not be awarded reparations.

  • xi. That, the costs of this Application be borne by the Applicants.

V. JURISDICTION

• 24. Pursuant to Article 3(1) of the Protocol, “the jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned.” Further, in terms of Rule 39(1) of the Rules, “the Court shall conduct preliminary examination of its jurisdiction …”.

VI. ADMISSIBILITY

• 38. In terms of Article 6(2) of the Protocol, “the Court shall rule on the admissibility of cases taking into account the provisions of Article 56 of the Charter.” Pursuant to Rule 39(1) of the Rules, “the Court shall conduct preliminary examination of … the admissibility of the Application in accordance with Article 50 and 56 of the Charter, and Rule 40 of these Rules.”

• 39. Rule 40 of the Rules, which in essence restates Article 56 of the Charter, stipulates that Applications shall be admissible if they fulfil the following conditions:

  • 1. Indicate their authors even if the latter request anonymity,

  • 2. Are compatible with the Charter of the Organization of African Unity or with the present Charter,

  • 3. Are not written in disparaging or insulting language,

  • 4. Are not based exclusively on news disseminated through the mass media,

  • 5. Are filed after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged,

  • 6. Are filed within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter, and

  • 7. Do not deal with cases which have been settled by the States involved in accordance with the principles of the Charter of the United Nations, or the Charter of the Organization of African Unity or the provision of the present Charter.

• 40. While the Parties do not dispute that some of the admissibility requirements have been fulfilled, the Respondent State raises two objections. The first one relates to the exhaustion of domestic remedies, and the second one relates to whether the Application was filed within a reasonable time after the exhaustion of domestic remedies.

• 41. The Respondent State avers that the Applicants did not exhaust local remedies because they never raised the allegations presented to this [Page 331] Court before any of its municipal courts. The Respondent State submits that the Applicants could have filed a constitutional petition under the Basic Rights and Duties Enforcement Act challenging the alleged violations of their rights especially in relation to the alleged discrimination by virtue of the exercise of the presidential prerogative of mercy.

• 42. The Respondent State further submits that except for the First Applicant, the Fifth Applicant and the Sixth Applicant, all the other Applicants never applied for review of their original cases though they lodged appeals at the Court Appeal which were dismissed.

• 43. The Applicants assert that convicts serving long term sentences who exhaust all local remedies in their original cases have no other available domestic remedy and that the only opportunity to address their grievances is found under Article 45 of the Constitution of the Respondent State which refers to the prerogative of mercy by the President of the Respondent State.

• 44. The Applicants also submit that it is useless for them to utilize the avenue provided by the Basic Rights and Duties Enforcement Act, since the Respondent State’s courts are not independent, fair and just in adjudicating matters that involve the judicial system itself.

• 45. In their Reply, the Applicants further submit that all of them except the Second Applicant appealed to the Court of Appeal against their convictions but their appeals were dismissed. They further contend that there is no other judicial avenue, in the Respondent State, for pursuing a remedy after the Court of Appeal.

  * * *

• 46. The Court notes that the crux of the Respondent State’s objection is that the Applicants should have first filed a constitutional petition challenging, among other things, the constitutionality of the Prisons Act and the Parole Act.

• 47. The Court also notes that the gravamen of the Applicants’ case revolves around the manner in which Respondent State has implemented the presidential prerogative of mercy. All the other violations alleged by the Applicants have, in one way or the other, been linked to the exercise of the prerogative of mercy.

• 48. In resolving the admissibility of this Application the Court considers it apposite to make a distinction among the Applicants before pronouncing itself on this issue. On the one hand, all the Applicants are, primarily, alleging a violation of their rights to equality and non-discrimination by reason of the exercise of the presidential prerogative of mercy and, on the other hand, the First Applicant and the Seventh Applicant, in addition to the claims made by everyone else, are also [Page 332] challenging the legality of their sentences for armed robbery. The Court will proceed to deal with these allegations seriatim.

• 49. In relation to the alleged violation of the Applicants rights by reason of the exercise of the presidential prerogative of mercy, the Court notes that the Applicants do not dispute that the avenue offered by the Basic Rights and Duties Enforcement Act was available to them whereby they could have challenged, before the High Court, the alleged violation of their rights. Instead, the Applicants contend that “it is so useless and senseless to refile an application to the high court of the respondent state” since “the tribunal/court is not independent, fair and just in adjudicating justice to the parties particularly to which refers to judicial system …”.

• 50. The Court recalls that in Diakite Couple v. Republic of Mali it held that “exhausting local remedies is an exigency of international law and not a matter of choice; that it lies with the Applicant to take all such steps as are necessary to exhaust or at least endeavour to exhaust local remedies; and that it is not enough for the Applicant to question the effectiveness of the State’s local remedies on account of isolated incidents.”Footnote ⁴

• 51. In this Application, the Court finds that all the Applicants could have approached the High Court to challenge the legality of the exercise of the presidential prerogative of mercy, the Prisons Act, the Parole Act and other laws which they perceive to be implicated in the discrimination that they allegedly suffered. It was not open to the Applicants to offhandedly dismiss the remedies available within the Respondent State without attempting to activate them.

• 52. In the circumstances, the Court finds that the Applicants failed to exhaust local remedies as stipulated under Article 56(5) of the Charter and as restated in Rule 40(5) of the Rules.

• 53. The Court recalls that admissibility requirements under the Charter and the Rules are cumulative such that where an Application fails to fulfil one of the requirements then it cannot be considered.Footnote ⁵ In the circumstances, therefore, the Court does not consider it necessary to examine the other admissibility requirements in so far as they relate to the allegation by all the Applicants that their rights were violated as a result of the exercise of the presidential prerogative of mercy.

• 54. In light of the above, the Court finds that the Application, in so far as it relates to all the Applicants and their allegation of a violation of their rights due to the exercise of the presidential prerogative of mercy, [Page 333] is inadmissible for failure to fulfil the requirement under Article 56(5) of the Charter which is restated in Rule 40(5) of the Rules.

• 55. The above notwithstanding, the Court recalls that the First Applicant and the Seventh Applicant made an additional allegation which is distinct from the allegations made by all the Applicants jointly and this pertains to the legality of their sentence for armed robbery. In this connection the Court notes, firstly, that the legality of their sentence for robbery implicates their right to fair trial.

• 56. The Court further notes that both the First Applicant and the Seventh Applicant appealed their convictions and sentences to the Court of Appeal which dismissed the appeals. The question of the legality of their conviction and sentence, therefore, was enmeshed in the bundle of rights and guarantees due to the Applicants which the Court of Appeal could have pronounced itself on during the hearing of the appeals. The Court of Appeal, therefore, which is the highest court in the Respondent State, had the opportunity to pronounce itself on the allegation pertaining to the legality of the Applicants’ sentences.

• 57. Secondly, the Court, recalling its jurisprudence, reiterates its position that the remedy of a constitutional petition, as framed in the Respondent State’s legal system, is an extraordinary remedy that an applicant need not exhaust before approaching the Court.Footnote ⁶ For this reason, the Court holds that the First Applicant and Seventh Applicant need not have filed a constitutional petition before approaching the Court.

• 58. The Court, therefore, holds that the Application is admissible in so far as it relates to the allegations by the First Applicant and the Seventh Applicant. The Respondent State’s objection is, therefore, dismissed.

• 59. The Court, having declared inadmissible the joint allegations by all the Applicants and having only admitted the allegation by the First Applicant and the Seventh Applicant will now proceed to examine the merits of this allegation.

VII. MERITS

• 60. The First Applicant and the Seventh Applicant submit that their fundamental rights under Article 13(6)(c) of the Respondent State’s Constitution have been violated since they were sentenced to a penalty of thirty (30) years’ imprisonment when the said penalty was heavier than the penalty in force at the time they committed their offences. [Page 334] They further submit that the offence of armed robbery came into existence via the enactment of Section 287A under Act No 4 of 2004 which amended the Penal Code.

• 61. The First Applicant and the Seventh Applicant also submit that Section 4(c) and 5(a)(ii) of the Minimum Sentences Act are invalid as they contravene Article 64(5) of the Constitution.Footnote ⁷ They thus submit that the penalty imposed on them is unconstitutional for violating Article 7(2) of the Charter.

• 62. The Respondent State submits that the applicable sentence for the offence of armed robbery is a term of 30 (thirty) years as stipulated under Section 5 of the Minimum Sentences Act. The Respondent State further avers that the offence of armed robbery was in existence before the enactment of Section 287A of the Penal Code.

• 63. The Respondent State further submits that Sections 4(c) and 5(a) of the Minimum Sentences Act are valid since they do not in any way contravene Article 64(5) of the Respondent State’s Constitution.

  * * *

• 64. The Court notes that notwithstanding the submissions by the First Applicant and the Seventh Applicant, on the alleged violation of their right to fair trial by reason of their sentence, in their Reply the Applicants stated that they did not dispute the Respondent State?s prayers on the legality of sentences under the Minimum Sentences Act. Nevertheless, the Court recalls that it has consistently held that thirty (30) years? imprisonment has been the minimum legal sentence for armed robbery in the Respondent State since 1994.Footnote ⁸ The Court, reiterating its jurisprudence, therefore, holds that the sentence of the Applicants to a prison term of thirty (30) years is in accordance with the applicable law in the Respondent State.

• 65. The allegation by the First Applicant and Seventh Applicant of a violation of Article 7(2) of the Charter by reason of their thirty (30) year sentence is thus dismissed.

VIII. REPARATIONS

• 66. The First Applicant and the Seventh Applicant pray the Court to order reparations to redress the violations of their fundamental rights in accordance with Article 27(1) of the Protocol and Rule 34(1) of the Rules and to grant any remedy that it deems fit in the circumstances.

• 67. The Respondent State prays the Court to dismiss the request for reparations.

  * * *

• 68. Article 27(1) of the Protocol provides that “if the Court finds that there has been violation of a human or peoples’ rights, it shall make appropriate orders to remedy the violation including the payment of fair compensation or reparation.”

• 69. In this respect, Rule 63 of the Rules of Court provides that “the Court shall rule on the request for the reparation … by the same decision establishing the violation of a human and peoples’ right or, if the circumstances so require, by a separate decision.

• 70. The Court notes that, in the instant case, no violation has been established and therefore the question of reparations does not arise. The Court, therefore, dismisses the prayer for reparations.

IX. COSTS

• 71. The Applicants pray that costs should be borne by the Respondent State.

• 72. The Respondent State prays the Court to dismiss the Application with Costs.

  * * *

• 73. The Court notes that Rule 30 of the Rules provides that “unless otherwise decided by the Court, each party shall bear its own costs.”

• 74. In view of the above provision, the Court holds that each Party shall bear its own costs.

X. OPERATIVE PART

• 75. For these reasons,

  The Court,

  Unanimously;

  On jurisdiction

  • [Page 336] (i) Dismisses the objections on lack of jurisdiction;

  • (ii) Declares that it has jurisdiction.

  On admissibility

  By a majority Eight (8) for, and Two (2) against, Justices Rafaâ BEN ACHOUR and Chafika BENSAOULA dissenting:

  • (iii) Declares that the Application is inadmissible in relation to all the Applicants, for failure to comply with the requirement under Article 56(5) of the Charter which is restated in Rule 40(5) of the Rules, in so far as it relates to the allegation of violation of the Applicants’ rights by reason of the exercise of the presidential prerogative of mercy;

  • (iv) Declares the Application admissible in respect of the allegation by the First Applicant and the Seventh Applicant in relation to the legality of their sentence for armed robbery;

  On merits

  • (v) Finds that the Respondent State has not violated the First Applicant’s and Seventh Applicant’s right to fair trial under Article 7(2) of the Charter by reason of their sentences for armed robbery.

  On reparations

  • (vi) Dismisses the prayer for reparations.

  On costs

  • (vii) Decides that each Party shall bear its own costs.

SEPARATE OPINION OF JUDGE BLAISE TCHIKAYA

• 1. Like my honourable colleagues, I subscribe to the Operative Part of this Judgment (Shukrani Masegenya Mango and others v. United Republic of Tanzania). The Application which brought the case before this Court was, after lengthy deliberations, ultimately inadmissible. I hereby wish to explain the reasons for this and also show that the Court should have given further consideration to the argument drawn from the presidential pardon which was, in the instant case, heavily impugned. It is true that whatever the consideration, I share the opinion that the Operative Part would have been the same because of the prior inadmissibility. However, the law applicable to the issue of “presidential pardon” in international human rights law deserved to be clarified.

• [Page 337] 2. Messrs Shukrani Masegenya Mango, Ally Hussein Mwinyi, Juma Zuberi Abasi, Julius Joshua Masanja, Michael Jairos, Azizi Athuman Buyogela, Samwel M. Mtakibidya, nationals of Tanzania, were convicted of murder and armed robbery in various cases. With the exception of Ally Hussein Mwinyi, who died on 11 May 2015, the Applicants are serving their sentences at Ukonga Central Prison in Dar es Salaam. It was a joint Application. The Applicants all claimed therein, without particular legal data, “to be aggrieved by the manner in which authorities in the Respondent State have exercised the prerogative of mercy which is vested in the President of the Respondent State”.Footnote ¹

• 3. The case will not renew the jurisprudence of the Court. It is a unique case. Being inchoately in the Yogogombaye case (15 December 2009),Footnote ² but obviously present in African Commission on Human and Peoples’ Rights v. Libya of 3 June 2013,Footnote ³ the prior consideration of cases has taken a decisive place in the work of the Court. The Shakrani and others Judgment confirms a judicial trend: on the one hand, many cases, like the instant case, stumble over the prior requirement of admissibility and, on the other hand, the judge is left only with the duty of jurisdiction, that is to say, the decision to exclude from consideration on the merits cases which do not fulfil the conditions of admissibility.

DISSENTING OPINION OF JUDGE BENSAOULA

• 1. I would have shared the opinion of the majority of the Judges with regard to the Operative Part of the Judgment. Unfortunately, the manner in which the Court treated the admissibility of the Application is at variance with the principles governing joint application.

• 2. It is clear from the joint application filed on 17 April 2015 that the Applicants, seven in all, alleged human rights violations by the Respondent State, but it should be noted that:

• 3. Although Shukrani Masegenya Mango and Samuel Mtakibidya were both convicted and sentenced for armed robbery, the sentences condemning them were not rendered by the same court. The proceedings that led to the conviction of one and the other are completely distinct in dates, in facts and in law. Indeed:

• 4. Shukrani Masegenya Mango was prosecuted for armed robbery before the Mwanza District Court, convicted on 7 May 2004 and sentenced to 30 years’ imprisonment.

• 5. While Samuel Mtakibidya prosecuted for armed robbery before the Handeni District Court in Tanga was found guilty and sentenced to 30 years’ imprisonment on 5 August 2002.

• 6. As for Applicants Ally Hussein Mwinyi and Juma Zuberi Abasi, the former charged with murder before the Dar es Salaam High Court, was convicted and sentenced to death on 15 February 1989 and on 21 September 2005, his sentence was commuted to life imprisonment. The latter charged with murder was convicted by the High Court of Dar es Salaam on 27 July 1983 and sentenced to death; his sentence was commuted to life imprisonment on 14 February 2012.

• [Page 342] 7. As for Applicants Julius Joshua Masanja and Michael Jairos, the former was tried for murder before the Dodoma High Court, convicted and sentenced to death on 11 August 1989, and his sentence commuted to life imprisonment on 13 February 2002. The latter was prosecuted for murder before the Morogoro High Court, convicted and sentenced to death on 25 May 1999, with his sentence commuted to life imprisonment on 12 February 2006. Lastly, Applicant Azizi Athuman Buyogela prosecuted for murder before the Kigoma High Court, was found guilty and sentenced to death, sentence commuted to life imprisonment on 28 July 2005.

• 8. Although all the Applicants are indeed accusing the Respondent State of human rights violations, Applicants Shukrani and Samwel are, in addition, challenging the legality of the sentence pronounced against them.

• 9. It is clear from the foregoing that each Applicant was prosecuted and convicted by different judicial authorities, on different dates, for different events, even though some of the charges have the same characterization and others the same convictions.

• 10. A reading of the definitions of joint application leads to summarizing it into one action or one legal proceeding or one procedure that allows a large number of persons to sue a legal or natural person in order to obtain an obligation to do, not to do or give.

• 11. Originally from the United States, the first joint application took place in the 1950s after the explosion of the cargo ship at Texas City, where 581 people perished and the beneficiaries of the victims filed a lawsuit for reparation by joint application. This procedure is now widespread in several Common Law countries and also in several European countries.

• 12. The advantage of this remedy is that a large number of individual complaints are tried in a single trial when the facts and standards are identical, to avoid repetition over days with the same witnesses, the same evidence and the same issues from trial to trial.

• 13. It also solves the problem of paying lawyers when the compensation is modest, ensures all applicants the payment of compensation by avoiding that the first to file an application are served first without leaving anything for subsequent applicants, centralizes all the complaints and equitably shares the compensation between claimants in case of victory and, lastly, it avoids discrepancies between several decisions.

• 14. Victims are of a similar situation, the damage caused by the same person with a common cause, the prejudice must be common, the issues on which the judges should rule must be common in fact and in law.

• [Page 343] 15. The choice between joint application and individual application must be assessed on a case-by-case basis, since major damages are generally not appropriate for collective processing because the complaint almost always involves issues of rights and facts that will have to be tried again on an individual basis.

• 16. It follows from comparative law, as well as from certain decisions of international human rights bodies, that a joint application is subject to conditions other than admissibility and jurisdiction over the existence of a sufficient link drawn from the following elements:

  • – identity of the facts,

  • – identity of jurisdiction,

  • – identity of procedure leading to the conviction of the Applicants.

• 17. In its Grand Chamber Judgment on HirsiJamaa and others v. Italy delivered on 23 February 2012, the ECHR was seized by 24 claimants (11 Libyans and 13 Eritreans).

• 18. In that case, more than 200 migrants had left Libya in three boats bound for the Italian coasts. On 6 May 2009, while the boats were 35 miles south of Lampedusa in international waters, they were intercepted by Italian coast guards and the migrants were taken back to Tripoli. The Applicants (11 Somalians and 13 Eritreans) argued that the Italian authorities’ decision to send them back to Libya had, on the one hand, exposed them to the risk of being subjected to ill-treatment and, on the other hand, to the risk of being subjected to ill-treatment if repatriated to their countries of origin (Somalia and Eritrea). They thus invoked the violation of Article 3 of the European Convention on Human Rights. They also felt that they had been subjected to collective expulsion prohibited by Article 4 of Protocol 4. Lastly, they invoked the violation of Article 13 of the ECHR since they considered that they had no effective remedy in Italy to complain about alleged breaches of Articles 3 and 4 of Protocol 4.

• 19. The application was lodged with the European Court of Human Rights on 26 May 2009. In the judgment rendered, the European Court of Human Rights observed that the Applicants were all within the jurisdiction of Italy within the meaning of Article 1 the ECHR, since they complained of the same facts and alleged the same violations. It unanimously concluded on the admissibility of the joint application and the violation of Article 4 of the Protocol.

• 20. Similarly, in Wilfried Onyango Nganyi and 9 others v. Tanzania, the African Court on Human and Peoples’ Rights considered on 18 March 2016 that the application fulfilled the conditions of admissibility of a joint application cited above, because they were prosecuted [Page 344] for identical facts in an identical procedure before the same courts and in a single judgment at national level.

• 21. Faced with this state of affairs, the Court in its Judgment which is the subject of this dissenting opinion, declaring the application admissible without basing its decision on legal grounds for the admissibility of the joint application and by ignoring this peculiarity of the application, breached the principles of reasoning decisions set forth in Rule 61 of the Rules and has completely shifted from its jurisprudence and that of international human rights courts.

DISSENTING OPINION OF JUDGE RAFAÂ BEN ACHOUR

• 1. In the above judgment, Shukrani Masegenya Mango and others v. United Republic of Tanzania, I do not subscribe to the decision of the majority of the judges of the Court declaring the application inadmissible, on the one hand, “in relation to all the Applicants for failure to comply with the requirement under Article 56(5) of the Charter which is restated in Rule 40(5) of the Rules, in so far as it relates to the allegation of violation of the Applicants’ rights by reason of the exercise of the presidential prerogative of mercy”Footnote ¹ and, on the other hand, declaring “[t]he Application admissible in respect of the allegation by the First and Seventh Applicant in relation to the legality of their sentence for armed robbery”Footnote ² and consequently to rule on the merits of the First and Seventh Applicants’ claims, which are, by the way, the common claims of all the Applicants. In my opinion, the application as a whole should have been declared admissible and not inadmissible for some and admissible for others.

• 2. By using this legal apparatus of treating the same Applicants differently, the Court breached the unity of the application submitted by the seven Applicants at the same time (I). Furthermore, and beyond this first objection, by declaring the application concerning all the Applicants inadmissible as to “the manner in which the right of presidential pardon has been applied”, the Court ignored its established case law on extraordinary remedies, in particular the appeal for unconstitutionality before the Tanzanian courts (II).