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.