July 28, 2020 REPORT

Tanzania: Preliminary Analysis of the Criminal Case Against Tito Magoti and Theodory Giyani

Amid the COVID-19 pandemic and the increased threat to the health of detainees, it is imperative that Magoti and Giyani be immediately released pending trial and the charges against them carefully reviewed to determine whether there is a basis on which to proceed.

Human rights activist Tito Magoti speaks during an event in Dodoma, Tanzania on November 6, 2019.

Human rights activist Tito Magoti speaks during an event in Dodoma, Tanzania on November 6, 2019.

Photo courtesy of the Legal and Human Rights Center.

This report was prepared by staff attorneys of the American Bar Association Center for Human Rights and reflects their views. [1]

On December 19, 2019, human rights lawyer, Tito Magoti, was apparently abducted by unknown assailants. [2] At least one individual told his family that they had seen him being forced into an unregistered motor vehicle. [3] Other prominent government critics have been abducted in a similar manner, increasing concern about his safety. [4] After several hours in which the matter was widely reported in the press and concern expressed on social media, [5] Tanzanian authorities confirmed that Magoti, a Program Officer for Mass Education with the Legal and Human Rights Centre (LHRC), had been arrested and was in police custody. [6] It was later confirmed that Theodory Faustin Giyani, an Information Technology expert, and friend of Magoti, had also been arrested. [7] According to individuals familiar with their case, both Magoti and Giyani have been vocal critics of the current government on social media, particularly Twitter, calling for respect for human rights, good governance, and accountability. [8] The American Bar Association (ABA), Center for Human Rights (Center) has been closely following the case against Magoti and Giyani. From its onset, the case has been marred by procedural irregularities that have implicated Tanzania’s international legal obligations to promote and respect the right to a fair trial, the right to be free from arbitrary detention, and the right to freedoms of expression and association. In particular, the duo were apparently arrested without warrant and held in incommunicado detention for four days without access to a lawyer or their families and, to date, their case has been postponed at least 15 times, with no evidence as yet presented against them. In addition, they are charged under laws that automatically preclude their release on bail. As a result, they will remain in pretrial detention until the State proceeds with its case, without individualized assessments of their flight risk or other rationale for their detention and without regard to the increased risk to their health posed by the current COVID-19 pandemic. The Center’s staff are concerned that the case against these defendants fits a pattern of using criminal prosecutions against critics of President Magufuli’s government.

Background

According to the Legal and Human Rights Centre, Magoti and Giyani were detained without warrants and held in custody for four days without charge, during which time they had no access to counsel and were held incommunicado. [9] On December 24, 2019, they were charged before the Kisutu Magistrate Court with having, between February 1, 2019 and December 17, 2019, “organized a criminal racket” and “created a computer program for the purpose of committing a crime,” with which they allegedly acquired the sum of seventeen million, three hundred and fifty-four thousand, five hundred and thirty-five Tanzanian shillings (TSH 17,354,535.00)(equivalent to an estimated USD 7,500.00)”. [10] It was further alleged that the accused acquired the funds knowing they were the proceeds of a predicate offense, identified as “leading organized crime,” and so were also charged with “money laundering” under the Anti-Money Laundering Act, as read with the Economic and Organized Crimes Control Act.[11] There is no additional information in the indictment about the alleged criminal scheme or organization and this preliminary report will not examine the merits of the charges. It would be difficult to do so given the paucity of information contained in the indictment. It is worth noting that both defendants have reported that during their initial detention they were repeatedly questioned only about their use of social media [12] and their associations with other prominent critics of the current regime. [13]

Since their first appearance in court on December 24, 2020, their case has been delayed at least 15 times at the request of the prosecution. [14] Each time the government asserted it needed the additional time to continue its investigation. These postponements have been routinely granted notwithstanding the fact that both men remain in detention without the possibility of pretrial release. [15]

Preliminary Analysis

The Tanzanian authorities have violated Magoti’s and Giyani’s rights to a fair trial and to be free from arbitrary detention, which are guaranteed under Tanzania’s Constitution [16] and in its binding regional and international legal obligations under the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights (African Charter).  [17] Unfortunately, the case against Magoti and Giyani fits a pattern of frivolous criminal charges against government critics in Tanzania and, in particular, the calculated abuse of the country’s anti-money laundering law, which automatically denies bail to accused persons, as a tool of intimidation. [18]

The Right to a Fair Trial includes Access to Counsel; to be Informed of the Charges; and to Proceed without Undue Delay

To date, Magoti and Giyani have suffered several violations of their right to a fair trial. Both defendants were apparently held in incommunicado detention for four days before being charged. The defendants were not granted access to their counsel prior to their first court appearance. [19] In addition, their lawyers have been unable to visit and confer with them in prison since March 2020, when the government banned such visits in light of the COVID-19 epidemic. [20] Both the ICCPR and the African Charter guarantee access to counsel as an integral part of the right to a fair trial. [21]

Article 14(3)(a) of the ICCPR provides that an accused person should “…be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him.” [22] In its General Comment 35, the United Nations (U.N.) Human Rights Committee, which is charged with the authoritative interpretation of the ICCPR, explained that, “[w]hile the exact meaning of “promptly” may vary depending on objective circumstances, delays should not exceed a few days from the time of arrest. In the view of the Committee, 48 hours is ordinarily sufficient to transport the individual and to prepare for the judicial hearing; any delay longer than 48 hours must remain absolutely exceptional and be justified under the circumstances.” [23] In this instance, there is no apparent reason for the delay in charging the defendants and it is unclear why they were interrogated for four days before being brought before a judge.

The U.N. Human Rights Committee has also explained that this provision requires that the charges must include “both the law and the alleged general facts on which the charge is based.” [24] In this case, the charges against Maguti and Giyani provide no information as to the nature of the alleged predicate criminal enterprise. [25]

In addition, the ICCPR and African Charter both require that individuals charged with criminal offenses be tried without undue delay. [26] The calculus as to what constitutes a “reasonable time” between arrest and the conclusion of proceedings entails consideration of factors such as the “complexity of the case, the conduct of the accused, and the manner in which the matter was dealt with by the administrative and judicial authorities.” [27] States carry a heightened burden to expedite proceedings in cases where defendants are detained. [28] In this instance, the State has continuously sought postponements in order to allow it to continue investigations while both defendants have remained detained. It is unclear when the State will be able to proceed to trial. Should the case continue in this pattern, the defendants’ right to a trial without undue delay will be violated.

Automatic Denial of Bail is Arbitrary Detention

Tanzania’s anti-money laundering laws automatically provide that a person accused of money laundering is not entitled to apply for bail. [29] A fundamental principle of any criminal justice system is the presumption of innocence, which dictates that an accused person is innocent until proven guilty by a competent and independent court. As a general rule, bail should be granted and only in certain circumstances denied. [30] Each case must be judged on its own merits, with courts taking into consideration factors such as (1) whether there is overwhelming evidence against the accused (2) the possibility of the accused interfering with witnesses and evidence; and (3) whether the accused is a flight risk or a danger to the community if granted bail. [31] Even then, courts must strive to put in place conditions that favor the liberty of an accused and minimize the risk of an innocent person serving a sentence prior to acquittal. Magoti and Giyani were not afforded the opportunity to apply for bail pending trial and the court has never considered their specific circumstances, such as whether they pose a flight risk or a risk to the community.

In a similar case last year, a Tanzanian investigative journalist, Eric Kabendera was arrested and charged with “money laundering” and automatically denied bail. [32] Over the course of six months, his case was postponed at least ten times to allow the prosecution additional time for investigation. [33] He was eventually released following a plea-bargain agreement with the Director of Public Prosecutions. [34] Many human rights organizations expressed concern that Kabenderas’s guilty plea was coerced in light of his de facto indefinite pretrial detention. [35] And, on January 31, 2020, several U.N mandates, including the U.N Special Rapporteur on Freedom of Expression, and the U.N Working Group on Arbitrary Detention, wrote a letter to President Magufuli, raising the cases of Tito Magoti and Eric Kabendera and citing their concern that Tanzania’s financial crime law “allows the Government to hold its critics in detention without trial and for an indefinite period.” [36]

Criminalization of Government Critics Violates Regional and International Law

In addition to these procedural violations, it appears that the prosecution itself may be retaliation for Magoti and Giyani’s legitimate exercise of their rights to freedom of expression and association. According to individuals familiar with the case and the duo’s online activity on Twitter prior to their arrests, [37] both defendants have been vocal critics of President Magufuli’s policies. [38] Both have alleged that, following their arrests, they were interrogated about their comments on social media and their relationships with other government critics only. [39]

Freedom of expression and association, especially on matters of public interest, are fundamental freedoms enshrined in both the ICCPR and the African Charter. [40] These rights are also necessary for a free and just society. The U.N Human Rights Committee has succinctly explained: “Freedom of expression is a necessary condition for the realization of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human rights.” [41] Combined with the right to freedom of expression, the right to freedom of association, ensures citizens’ rights to gather publicly or privately and collectively express, promote, pursue and defend common interests. [42]

This case fits a pattern of recent cases in Tanzania where the authorities have targeted citizens exercisin g their legitimate rights. [43] For example, in 2019, the Center observed the criminal trial of opposition parliamentarian, Zitto Kabwe, who was convicted of sedition for having called for police accountability for extra-judicial killings. [44] The apparent targeting of citizens, such as Magoti and Giyani, for engaging in matters of public interest contributes to a reported climate of fear and self-censorship. Over the past several years, civil society organizations have documented an escalating crackdown on fundamental freedoms in the country. [45] The situation has only intensified as the country heads towards its general elections in October 2020. Misusing the law to persecute and intimidate government critics and human rights defenders is inconsistent with the founding principles of the Republic of Tanzania, whose constitution states that its founders’ goal is “build a society founded on the principles of freedom and justice”, “whose principles can only be realized in a democratic society” and “where the Executive is accountable.” [46] It is also inconsistent with its regional obligations, particularly the Southern Africa Development Community (SADC) Principles and Guidelines Governing Democratic Elections.[47] The Principles calls on Member States to ensure the “full participation of citizens in the political process” and exemplify “political tolerance” as some of the key principles in the conduct of democratic elections. [48] Ironically, President Magufuli is SADC’s current Chairperson.

Arbitrary Detention during COVID is a Potential Death Sentence

Tanzania’s prisons are overpopulated, and the majority of prisoners are detainees awaiting trial, some of whom have been detained for multiple years. [49] In light of the ongoing COVID-19 pandemic, Magoti and Giyani’s well-being is at serious risk. The U.N High Commissioner for Human Rights, Michelle Bachelet, has called for the urgent decongestion of prisons, not only to protect prison inmate populations and staff, but to ensure those whose constitutional rights have been otherwise suspended do not suffer irreparable harm. Ms. Bachelet has specifically called for the “release [of] every person detained without sufficient legal basis, including political prisoners and others detained for simply expressing critical dissenting views.” [50]

Preliminary Conclusion

Magoti and Giyani’s rights to a fair trial and to be free from arbitrary detention have been violated. It appears that their rights to freedom of expression and association have also been violated in light of the indicia (discussed above) that the case against them was instigated as a means of intimidation. Amid the COVID-19 pandemic and the increased threat to the health of detainees, it is imperative that Magoti and Giyani be immediately released pending trial and the charges against them carefully reviewed to determine whether there is a basis on which to proceed.

[1] This report was prepared by staff attorneys of the American Bar Association, Center for Human Rights and reflects their views.  It has not been approved by the House of Delegates or the Board of Governors of the American Bar Association and therefore should not be construed as representing the policy of the American Bar Association as a whole.  Further, nothing in this report should be considered as legal advice in a specific case.

[2] Nasdaq, Tanzania activist abduction from Dar es Salaam street, rights group says , December 20, 2019, https://www.nasdaq.com/articles/tanzania-activist-abducted-from-dar-es-salaam-street-rights-group-says-2019-12-20.

[3] Legal Human Rights Center (LHRC) was advised by Magoti’s family that the public transport driver who dropped off Magoti witnessed his abduction by the unknown assailants and subsequently raised the alarm.

[4] Reuters, Tanzania opposition activist found beaten, dumped in village, May 2019, available at  https://www.reuters.com/article/us-tanzania-politics/tanzania-opposition-activist-found-beaten-dumped-in-village-idUSKCN1SF13OSee also Vanguard Africa, In Tanzania, Abductions and Disappearances of Government Critics Continue Unabated, July 30, 2019, available at http://www.vanguardafrica.com/africawatch/2019/7/30/in-tanzania-abductions-and-disappearances-of-government-critics-continue-unabated.

[5] Nasdaq, supra note 2.

[6] Tanganyika Law Society, Statement of the National Bar on the Abduction of Mr. Tito Magoti, the Program Officer Legal and Human Rights Centre, December 24, 2019.

[7] Legal and Human Rights Centre (LHRC), Statement, Taarifa Kutoka Mahakamani Kuhusu Kesi Ya Ndugu Titio Magoti Na Theodory Faustin, December 24, 2019, available at  https://www.humanrights.or.tz/posts/b/News/updates-from-the-court-on-the-case-of-tito-elia-magoti-and-theodory-faustin-giyan.

[8] ABA Center for Human Rights interviewed several individuals, including staff of the Legal Human Rights Centre, who stated that Magoti and Giyani had consistently criticized the current government on social media, especially Twitter, and often called for government accountability and respect for human rights. These individuals also stated that both Magoti and Giyani regularly engaged with other Twitter accounts by re-tweeting, commenting, and sharing articles and tweets related to human rights and good governance issues in Tanzania. Their Twitter accounts were taken down shortly after they were arrested and could not be independently reviewed.

[9] LHRC Statement, supra note 7.

[10] Charge Sheet: In the Resident Magistrates Court of Dar es Salaam at Kisutu, Economic Crimes Case no. 137 of 2019, Republic versus Tito Elia Magoti & Theodory Faustin Giyan.

[11] In the Resident Magistrate’s Court of Dar es Salaam at Kisutu, Economic Crime Case 137 of 2019, Republic vs Tito Elia Magoti & Theodory Faustin Giyan.

[12]LHRC Statement, supra note 7.

[13] Kwanza Broadcasting Limited whose director is Ms. Maria Sarungi was earlier in the year suspended for 6 months by the Communications Regulatory Authority for allegedly violating regulations under the Electronic and Postal Communications Online Content Regulations 2028. See Reporters Without Boarders, Tanzania Slaps Harsh Sanctions on three online TV Channels, September 30, 2019, available at  https://rsf.org/en/news/tanzania-slaps-harsh-sanctions-three-online-tv-channels. Ms. Fatuma Karume, who is the former president of the Tanganyika Law Society, was recently arbitrarily suspended from practicing law in mainland Tanzania for her submissions in a constitutional court case challenging the appointment of the Attorney General. See The Citizen, Uproar over Fatma Karume Suspension, September 22, 2019, available at https://www.thecitizen.co.tz/news/1840340-5282716-9d4ama/index.html . Mr. Zitto Kabwe is currently facing criminal charges following statements he made demanding police accountability for extra-judicial killings. See also The EastAfrican, Zitto Kabwe charged with incitement, freed on bail, November 2, 2018, available at https://www.theeastafrican.co.ke/news/ea/Tanzania-opposition-MP-charged-with-incitement/4552908-4834324-m74a5jz/index.html.

[14] LHRC, Six months behind bars, justice for Tito Magoti and Theodory is yet to be served, June 23, 2020, available at https://www.humanrights.or.tz/posts/b/news/six-months-behind-bars-justice-for-tito-magoti-and-theodory-is-yet-to-be-served.

[15] Id.

[16] The Constitution of the United Republic of Tanzania,1977 (as amended). Section 15 (2) (a) mandates that a person may only be deprived of his liberty in a manner that is prescribed by the law. The Criminal Procedure Act, outline the due process rights of arrested persons, including the right to be promptly informed of the charges (Section 23); the right to a lawyer (Section 53); and the right to be promptly presented before a court (Section 32 and 33), ( unofficial version) available at http://www.tanzania.go.tz/egov_uploads/documents/CRIMINAL%20PROCEDURE%20ACT.pdf

[17] International Covenant on Civil and Political Rights, Article. 19, opened for signature Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]; African Charter on Human and Peoples' Rights, Article 9, opened for signature June 27, 1981, 1520 U.N.T.S. 217 [hereinafter African Charter].  Tanzania ratified the African Charter in 1984 and acceded to the ICCPR in 1972.

[18] DefendDefenders, Joint Letter: Urgent Request for Intervention in the Case of Human Rights Defender, Tito Magoti, January 10, 2020, available at https://defenddefenders.org/joint-letter-urgent-request-for-intervention-in-the-case-of-human-rights-defender-tito-elia-magoti/.

[19] LHRC Statement, supra note 7.

[20] The Citizens, Tanzania prisons ban visitations until further notice, March 19, 2020, available at https://www.thecitizen.co.tz/news/1840340-5496836-agy440/index.html. See also Tanzania; Joint CSO Letter to President Magufuli on the Rights of Prison Detainees During the Covid-19 Pandemic, May 21, 2020, available at https://www.amnesty.org/en/documents/afr56/2381/2020/en/.

[21] ICCPR, supra note 16. Article 14(3)(d); African Charter, Article 7(1)(c).

[22] ICCPR, supra note 17, Article 14 (3) (a).

[23] General Comment No. 35 on Article 9: Arbitrary Detention, U.N. Human Rights Committee, U.N. Doc. No. CCPR/C/GC/35, para. 33 (2014).

[24] United Nations Human Rights Committee, Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, U.N. Doc. CCPR/C/GC/32 (2007), Section V. Rights of persons charged with a criminal offence.

[25] Charge sheet, supra note 10.

[26] ICCPR, supra note 16, Article 14(3)(c); African Charter, Article 7(4).

[27] Human Rights Committee, General Comment No. 32, U.N. Doc. CCPR/C/GC/32, August 23, 2007, para. 35. See also African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, Principle N(5)(c).

[28] Id.

[29]Section 148 (5) (a)(v) of the Criminal Procedure Act lists money laundering as one of the non-bailable offences. Read also FB Attorneys, Non bailable offences in Tanzania, July 22, 2019, available at https://fbattorneys.co.tz/qa-22-july-2019/.

[30] ICCPR, supra note 16, Article 9(3): “It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.”

[31] General Comment No. 32, supra note 28, Article 14: Right to Equality Before the Courts and Tribunals and to a fair Trial, U.N. Doc CCPR/C/CG/32 (2007).

[32] U.S Embassy and British High Commission, Joint Statement of Concern over the Erosion of Due Process in Tanzania, August 19, 2019, available at https://tz.usembassy.gov/joint-statement-of-concern-over-the-erosion-of-due-process-in-tanzania/See also, Reuters, Update 1- Tanzania charges journalist, rights group say case politically motivated, August 5, 2019, available at https://af.reutersmedia.net/article/africaTech/idAFL8N2514X6.

[33] BBC, Tanzania journalist Erick Kabendera to spend Christmas in jail, December 18, 2019, available at https://www.bbc.com/news/world-africa-50837986.

[34] Tanzania Human Rights Defenders Coalition (THRDC), Statement about Erick Kabendera’s Plea Agreement, February 24, 2020, available at https://thrdc.or.tz/wp-content/uploads/2020/02/STATEMENT-ABOUT-ERICK-KABENDERAS-PLEA-AGREEMENT.pdf.

[35] Amnesty International, Tanzania: No justice as journalist Kabendera slapped with heavy fines after months in jail, February 24, 2020, available at https://www.amnesty.org/en/latest/news/2020/02/tanzania-no-justice-as-journalist-kabendera-slapped-with-heavy-fines-after-months-in-jail/.

[36] Mandates of the Special Rapporteur on the situation of human rights defenders; the Working Group on Arbitrary Detention; the Working Group on Enforced or Involuntary Disappearances; the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; and the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Letter to President of Tanzania, Reference AL TZA 1/2020, January 31, 2020.

[37] Their accounts are no longer active on Twitter.

[38] ABA Center for Human Rights, Interviews, supra note 8.

[39] LHRC Statement, supra note 7.

[40] ICCPR, supra note 16. Article 19 (expression) and Article 20 (association); African Charter, Article 9 (expression) and Article 10 (association).

[41] United Nations Human Rights Committee, General Comment No. 34, CCPR/C/GC/34, September 2011, https://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf.

[42] United Nations Human Rights Office of the High Commissioner, Universal Declaration of Human Rights at 70, 30 Articles on Article 20, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23954&LangID=E

[43] Amnesty International, Tanzania: Climate of Fear and Repression Mount, October 28, 2019, available at https://www.amnesty.org/en/latest/news/2019/10/tanzania-climate-of-fear-censorship-as-repression-mounts/See also Human Rights Watch, As long as I am quiet, I am safe: Threats to Independent Media and Civil Society in Tanzania, October 28, 2019, available at https://www.hrw.org/report/2019/10/28/long-i-am-quiet-i-am-safe/threats-independent-media-and-civil-society-tanzania.ssociation

[44] The American Bar Association, Center for Human Rights, monitored the trial of Mr. Zitto Kabwe in Dar es Salaam where the Center sent regional observers to several proceedings in 2019.

[45] Human Rights Watch, UN Human Rights Council Should Address Tanzania Crackdown, Preventative Engagement with, and Action on, Tanzania at the Human Rights Council’s 41st session, May 13, 2019, available at https://www.hrw.org/news/2019/05/13/un-human-rights-council-should-address-tanzania-crackdown.

[46] Constitution of the Republic of Tanzania, Preamble, 1977.

[47] Southern Africa Development Community (SADC) Principles and Guideline Governing Democratic Elections, Adopted by the Ministerial Committee of the Organ (MCO) on Politics, Defence and Security Cooperation on 20 July 2015 Pretoria, Republic of South Africa, available at https://www.ohchr.org/EN/Issues/RuleOfLaw/CompilationDemocracy/Pages/SADCPrinciples.aspx

[48] Id. SADC Principles and Guidelines.

[49] Daily News, Tanzania: Fresh Move to Decongest Prisons, December 19, 2019, available at https://dailynews.co.tz/news/2019-12-195dfb1888f2eb5.aspx. Moreover, as of October 2015, Tanzania’s prisons operated at 115.7% capacity, and as of December 2019, 51% of detained populations were in pre-trial detention. World Prison Brief, Tanzania Country Pagehttps://www.prisonstudies.org/country/tanzania.

[50] U.N Human Rights Office of the High Commissioner, Urgent action needed to prevent COVID-19 “rampaging through places of detention – Bachelet, March 25, 2020, available at https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25745&LangID=E