How long is (not) too long before filing an application at the African Court? Evidentiary challenges for incarcerated applicants

By Edward Kahuthia Murimi

Typically, international human rights courts and bodies require applicants to meet various requirements for their applications to be deemed admissible. At the African Court on Human and Peoples’ Rights (hereafter, African Court or Court) one requirement is that the application must be submitted ‘within a reasonable time from the date local remedies were exhausted or from the date the [Court] is seized with the matter’ (Article 56(6) of the African Charter and Rule 50(2)(f) of the Court’s Rules). The African Court has established the principle that ‘the reasonableness of a time limit of seizure will depend on the particular circumstances of each case and should be determined on a case-by-case basis’ (Nobert Zongo & Others v. Burkina Faso, p.197, §121). While there are no specific timelines under the African Charter, other regional human rights systems have prescribed specific timelines within which applications must be filed after exhaustion of local remedies. At the European Court of Human Rights, applications must currently be filed within four months while at the Inter-American Commission on Human Rights the period is six months. On the one hand, the framing of the rule under the African Charter allows for flexibility in determining whether there was undue delay before filing an application. On the other hand, the flexible approach poses the challenge of apparent inconsistency in the decisions of the African Court as this post highlights.

From some of its early decisions, the African Court accepted several distinct grounds as justification for the period taken before seizing the Court. In Alex Thomas v. Tanzania (decided in 2015) for example, the Court found a period of 3 years and 5 months between the exhaustion of local remedies and filing of the application reasonable on the basis that the applicant was a ‘lay, indigent, incarcerated person’ (§74). A similar period of 3 years and 3 months was also accepted in Mohamed Abubakari v. Tanzania (decided in 2016) given the applicant was in prison, indigent, illiterate, could not afford to hire a lawyer and could not have been aware of the existence of the Court because of its relatively recent establishment (§92). Importantly, the Court has in subsequent cases held that the applicant must prove these circumstances. In summary, the circumstances the Court has taken into consideration in different decisions include: imprisonment, being lay without the benefit of legal assistance, indigence, illiteracy, lack of awareness of the existence of the Court, intimidation and fear of reprisal and the use of extra-ordinary remedies (Masoud Rajabu v. Tanzania, §51). The question then arises of how these circumstances or grounds can be proven; and there seems to have been an evolution in this respect. In this post, I will describe the evidentiary challenges the applicants face and suggest how they could be met. The post specifically focuses on the Court’s treatment of three circumstances, namely, imprisonment, indigence and lack of awareness of the existence of the Court. I give these three particular attention because the evidentiary challenges and inconsistencies related to them stand out. The cases selected for analysis were all filed by incarcerated applicants against Tanzania, which constitute the majority of such cases, whilst presenting the advantage of allowing examination of the Court’s approach in cases which emanate from the same domestic context.

I begin with an examination of how the Court treats the fact of incarceration in determining reasonableness of time taken to file an application. Imprisonment was considered as a factor (among others) in justifying the period taken before filing of applications in the Alex Thomas and Mohamed Abubakari cases as seen above. In subsequent cases, the Court has treated the fact of incarceration in different and seemingly contradictory ways, as three decisions highlighted below illustrate. First, in the case of Godfred Anthony and Ifunda Kisite v. Tanzania,  the Court implied that an applicant would have to plead and prove other grounds, in addition to imprisonment, for the long period taken before filing to be deemed reasonable. The Court stated: ‘Although the applicants are […] incarcerated and thus restricted in their movement, they have not asserted or provided any proof that they are illiterate, lay, or had no knowledge of the existence of the Court’ (§48). Such a phrasing suggests that the fact of incarceration cannot in itself justify delayed filing of an application. Two other recent cases, which were coincidentally delivered on the same day, show that the Court still considers the implication of imprisonment differently in determining the timeliness of filing applications. In Stephen John Rutakikirwa v. Tanzania, the Court held: ‘[T]he applicant is incarcerated, restricted in his movements and with limited access to information, he was also not assisted by counsel in the cases at the national courts’ (§48). The Court then found a delay of 4 years and 4 months before filing to be reasonable. This finding is inconsistent with the Court’s statement in Rajabu Yusuph v. Tanzania  where it held: ‘[A]lthough the applicant was, at the material time, incarcerated, he hasn’t provided the Court with compelling arguments and sufficient evidence to demonstrate that his personal situation prevented him from filing the application in a more timely manner’ (§72). The Court then found the period of 7 years and 7 months taken before filing to be unreasonable. The applicant in this case, just like in the Stephen John Rutakikirwa case, was also not represented in the domestic courts and was probably in a worse situation because he had been arrested while still a minor. In my view, the Court fails to give equal weight to the fact of incarceration in these two cases. The different verdicts from similar facts in these cases reveal an inconsistency that the Court should resolve going forward. This would hopefully provide clarity on what needs to be pleaded and proven by incarcerated applicants who seek to rely on the fact of incarceration to justify the time taken before submitting their applications.

Related to the above, it is worth noting that the Court’s more recent decisions suggest that a time frame of about 5 years is crystalizing as the period beyond which a delay in filing will be found to be unreasonable. Some examples of cases whose filing periods were deemed unreasonable include: Hamad Mohamed Lyambaka v. Tanzania (5 years, 11 months), Godfred Anthony and another v. Tanzania (5 years, 4 months), Livinus Daudi Manyuka v. Tanzania (5 years, 6 months), Yusuph Hassani v. Tanzania (5 years, 8 months) and Layford Makene v. Tanzania (6 years, 2 months). My proposition is that in view of this trend, the only explanation for the different outcomes in the two similar cases discussed above (Rajabu Yusuph and Stephen John Rutakikirwa) is that one application had crossed the ‘5 years and several months’ mark and the other had not. If my assessment is accurate, then it can be argued that the Court has abandoned the case-by-case approach with regard to reasonableness of time taken to file applications (at least for cases against Tanzania) and adopted a ‘5-years plus rule’ without explicitly stating so.

Turning to the second issue of indigence, it remains unclear what evidence is required for an applicant to establish that they are indigent. There is no indication by the Court as to  which proof would be required to establish ‘indigence’, whether in cases where the Court actually accepts an applicant was indigent or when it rejects the claim of indigence as a mere allegation. It does not help the situation that applicants themselves often do not submit evidence of their claims of indigence. In the Alex Thomas case, the applicant only asserted that he was indigent and this was accepted by the Court without a detailed analysis (see §§ 68 &74). In contrast, the Court dismissed a similar claim by the applicant in the Livinus Daudi Manyuka v. Tanzania case rejecting it as a ‘blanket assertion’ (§54). In my view, the Court could have taken the opportunity in the latter case to spell out what it expected as proof of the claim of indigence as it has done on other issues. For example, in Lucien Ikili Rashidi v. Tanzania (§125), before dismissing a reparation claim (for loss of income) the Court gave examples of evidence that the applicant ought to have provided to prove existence of his business (such as a business licence, payment receipts or business contracts). The Court has also provided a template form for filing applications which lists some examples of evidence to accompany an application.   In the absence of elaboration of this kind in its decisions or an external source of information by the Court providing guidance on proving indigence, prospective applicants are unclear as to the evidence they should gather in this regard. Should such elaboration become a reality, I suggest that such ought to take into consideration the African context. In most of the countries on the continent, the reality is that a considerable proportion of the populace (if not the majority) is not in formal employment and does not enjoy the benefits of social security from the State. The typical proof requirements such as ‘proof of income’ or ‘proof of receipt of public assistance’ that are applicable in the global north, may therefore not be appropriate. A suggestion in this regard is that the Court should consistently use presumptions to address the apparent lacuna on the question of proving indigence. I suggest that it is sufficient to presume indigence if an applicant is in prison and had no legal representation in the domestic courts. The rationale for this would be that it is reasonable to expect that anyone with means would make use of legal representation when charged with a serious offence and their liberty is at stake. Those who are incarcerated and unrepresented, it can be presumed, do not voluntarily elect not to have legal representation. There should therefore be a rebuttable presumption that applicants in these specific circumstances are indigent.

Finally, the third issue of (lack of) awareness of the existence of the Court also needs to be problematised. The Court has sometimes accepted the ground of ‘lack of awareness of existence of the Court’ by applicants and found the period they took before filing an application to be reasonable (Amiri Ramadhani v. Tanzania, §50). On the same issue, the Court in Godfred Anthony and Ifunda Kisite v. Tanzania required specific proof that the applicant ‘had no knowledge of the existence of the Court’ (§48). Even when it has seemed plausible that an applicant was unaware of the existence of the Court, more has still been required. For example, in Rajabu Yusuph v. Tanzania the applicant argued that he was unaware of the Court’s existence and had filed his application only four months after an application was filed by a fellow inmate. Importantly, the latter was the first ever application to the African Court originating from that prison. The Court found this argument as ‘insufficient to persuade the Court that the applicant [had] diligently pursued his case’ (§§68-69). The Court did, however, arrive at  a different outcome in Dismas Bunyerere v. Tanzania, where it deduced lack of such awareness from the fact of incarceration. It held: ‘The Court notes that the applicant is in prison and this resulted in restriction of his movements and his access to information about the existence of the Court’ (§47). I contend that the jurisprudence in this case is more progressive. It is also more  aligned to the context and reality in which the Court operates in. The Court’s Strategic Plan (2021-2025) has provided for an analysis of its strengths, weaknesses, opportunities and threats. The plan identifies, as one of its ‘threats’, the ‘limited public awareness throughout the continent about existence and related benefits of the Court’ (p.14). It can be argued that if, to date, the general public largely remains unaware of the existence of the Court, this situation is even more likely to apply to a person who is incarcerated. Given this, it would appear reasonable for the Court to take judicial notice of the fact that applicants in prison may not have been aware of the existence of the Court. This would save them the difficulty of having to specifically prove ‘lack of awareness’ which, as a negative claim, is particularly difficult – arguably epistemologically impossible – to prove ( Saunders 1985: 278-279).

Even with the evidentiary challenges highlighted in the cases cited above, there appears to be an added complication as seen in the recent decision of Rajabu Yusuph v. Tanzania (decided in 2022). The Court in this case implied that the applicant must do something more than just invoking – and proving – their state of incarceration, indigency, being lay or lack of awareness of the existence of the Court. It held: ‘[E]ven for lay, incarcerated or indigent litigants there is a duty to demonstrate how their personal situation prevented them from filing their applications in a more timely manner’ (§66). This, in my view, requires more than is necessary from the applicant. I suggest that it should be enough for the Court to employ a presumption rather than placing an additional evidentiary hurdle over and above the grounds the Court recognises as justifying delayed filing. For example, if an applicant is lay, indigent and in prison, my argument is that the Court ought to presume that it was difficult if not impossible for the applicant to have approached the Court timeously.

In a nutshell, my recommendation would be for the African Court to consistently employ presumptions and take judicial notice of some facts to address the evidentiary challenges identified above. Use of these evidentiary tools would enable the Court to take cognisance of the unique circumstances that incarcerated applicants face, thereby allowing more claims of human rights violations to be determined on their substance rather than be rejected on the technicality of inadmissibility. This would, in turn, promote fair administration of justice at the Court.

Edward Kahuthia Murimi is a PhD researcher within the DISSECT project and his research is focusing on the evidentiary regime of the African Court on Human and Peoples’ Rights. The author is grateful to his doctoral supervisor, Professor Marie-Bénédicte Dembour, and two members of the Registry at the African Court for their insightful comments on the drafts of this post. All arguments and any errors are mine.

Leave a Reply