It still remains to be seen if the two will drop the application from the Arusha-based court following their pardon after they were convicted in June 25, 2004.
In a telephone interview with this paper yesterday, AfCHPR’s Head of Media and Information Unit Sukdhev Chattbar said the discretion of either dropping or continuing with the application lied with the two.
“Until today (yesterday) their application hasn’t been struck out by the court as it is upon them to drop it or not,” explained Chattbar.
In November 2015, Nguza Viking and his son submitted their application before the AfCHPR to seek justice following unsuccessful attempts at the High Court and the Court of Appeal.
In their application number 0006/2015, the two are requesting for an order compelling the respondent state (the government of Tanzania) to release them from custody.
They also ask the court to order payment of reparation and any order or remedy that the court may deem fit to grant.
The applicants allege that the respondent state violated Articles 1, 2, 3, 5, 7(1)b),13 and 18(1) of the African Charter on Human and Peoples’ Rights.
The African Charter on Human and Peoples’ Rights solely focuses on the right to life, prohibition of torture and cruel, inhuman and degrading treatment and the right to a fair trial.
In their submission, the two claim that after their arrest, they were not promptly informed of what charges they were being arrested for and were put under restraint for four days incommunicado without access to a lawyer or any other person.
The applicants further claim to have been mistreated and insulted by police officers while in custody.
“Only after having spent some time in police custody, a police officer informed them that they were charged with rape,” the application reads in part.
According to the applicants, the trial was unjustified for a number of reasons, including the court repeatedly dismissing requests to submit evidence while the results of blood and urine tests underwent by the applicants were not presented as evidence in the trial court.
They further submit that even when the alleged rape victims claimed to be infected with HIV/AIDS and gonorrhea, the first applicant, Nguza Viking’s request to test his impotence and therefore prove his material impossibility to participate in the commission of the alleged crimes, was rejected.
The two further state that the trial court used statements of the alleged victims as evidence, where they described from their memory the room where the rape took place, though the court did not give consideration to the fact that the children and their parents had visited the applicants’ house prior to the hearing and studied the room several times.
The two further allege in their application that the charges were fabricated and facilitated by the former partner of the first applicant who was envious of his new engagement.
Nguza and his son were first arraigned at the Kisutu Resident Magistrates’ Court in 2003 charged with ten counts of raping and sodomising minors, who were then pupils at Mashujaa Primary School in Sinza, a suburb of Dar es Salaam.
They were convicted of the rape charges on June 25, 2004 and sentenced to life imprisonment. They were additionally ordered to pay Sh2 million compensation to each victim.