Robert John Penessis v. Tanzania

Parties (including notable third parties)

Robert John Penessis (the Applicant); The United Republic of Tanzania (the Respondent)

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Summary of Facts

On 8 January 2010 the Applicant was arrested by the Tanzanian immigration authorities. On 17 January 2011 he was charged, convicted and sentenced to a fine of eighty thousand Tanzanian shillings or, in default, two years in prison and 10 strokes of the cane for illegal entry and irregular presence in the territory of the Respondent State.

The Applicant subsequently appealed before the High Court of Tanzania. On 6 June 2011 the High Court upheld the conviction and sentence of imprisonment for the reason that the Applicant had not paid the eighty thousand Tanzanian shillings fine. In addition, the High Court sentenced the Applicant to six months prison for contempt of court and issued an order for his expulsion from the territory of the Respondent State after serving the prison sentence. The High Court set aside the corporal punishment sentence.

The Applicant then appealed before the Court of Appeal which, on 4 June 2012, upheld the two years prison sentence but set aside the six months sentence for contempt of court and the expulsion order on the basis that those matters fell within the purview of the Minister of Home Affairs.

On 4 December 2012 the Minister of Home Affairs issued the deportation and detention orders.

The Applicant claimed that he is Tanzanian by birth, that his father and mother are Tanzanians and that he has been residing in Tanzania since birth.

The Respondent State argued that the Applicant was never a Tanzanian and possessed the nationality of two other countries: South Africa and the United Kingdom.

The Court considered whether the following violations had occurred:

• A violation of the Applicant’s right to Tanzanian nationality as guaranteed by Article 5 of the African Charter on Human and Peoples’ Rights (‘Charter’) and Article 15 of the Universal Declaration of Human Rights (‘UDHR’);
• A violation of Article 6 of the Charter in respect of the right to liberty and security of the person;
• A violation of Article 6 of the Charter in respect of the right to freedom of movement and residence; and
• A violation of Article 1 of the Charter.

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Legal Arguments

Alleged violation of the Applicant’s right to Tanzanian nationality

The Applicant argued that according to Section 3(1) of the Tanzania Citizenship Act, persons born to Tanzanian parents on Tanzanian territory after the date of the Union are Tanzanians by birth. The Applicant claimed to have a birth certificate which proves he was born in the United Republic of Tanzania in 1968, which is after the creation of the Union, and accordingly he is Tanzanian by birth. He also claims that he never obtained the nationality of any other foreign country, which – given that Tanzania does not accept dual nationality – would have led him to lose his Tanzanian nationality.

The Applicant said that he had initiated the process to obtain a passport. While waiting for his passport, the competent authorities of the Respondent State issued him with a temporary travel document, which he still had.

The Respondent State contended that the Applicant is not a Tanzanian citizen. In this respect, the Respondent State relied on what it alleged were copies of the Applicant’s passports issued by the United Kingdom and the Republic of South Africa. Those passports were in different names. The Respondent State submitted that the criterion to prove Tanzanian nationality, that is, to be born in Tanzania, was not met by the Applicant, given that his passports confirm his nationality and place of birth as being South African.

The Respondent State also asserted that the laws of Tanzania do not permit dual citizenship. Once an individual who has dual nationality has attained the age of 18 years, they must make a choice to retain or renounce their Tanzanian nationality. Therefore, regardless of the Applicant’s claim, the fact that he is over 18 years old and possessed passports of other countries proved that he was a citizen of those countries and therefore nullifies any contention that he is Tanzanian.

The Respondent State also alleged that the Applicant’s birth certificate was fraudulent.

Alleged violation of the Applicant’s right to liberty

The Applicant contended that, as a citizen of the Respondent State, he had the right to enjoy his liberty and not to be arrested and detained illegally. He alleged that he was arrested and detained illegally and continued to be in prison even after having served his sentence for two years following his conviction for the offence of illegal entry and unlawful presence.

The Respondent State argued that the detention of the Applicant was consistent with its law for the reason that the Applicant did not have any documents allowing him to remain in Tanzania and that the Applicant was prosecuted and sentenced in accordance with the law.  The Respondent State submitted that the Applicant remained in detention because he refused to cooperate with the authorities for his deportation order to be executed.

Alleged violation of the Applicant’s right to freedom of movement

The Applicant submitted that according to Article 12(1) and (2) of the Charter, every individual has the right to move freely within a country, the right to leave the same and return to it subject only to restrictions provided by law and required for the protection of national security. The Applicant claimed he did not threaten the Respondent State’s public order or breach Article 12(2) of the Charter.

The Applicant also argued that the right to freedom of movement is a fundamental human right recognised under international human rights instruments such as the UDHR and the International Covenant on Civil and Political Rights (‘ICCPR’) as well as the Charter.

The Applicant claimed that as a citizen of the Respondent State he should not have been arrested or unlawfully detained.

The Respondent State contended that the Applicant’s detention came about only after he was arrested, charged and convicted in accordance with the laws governing criminal proceedings in the Respondent State. The Respondent State contended that the Applicant’s presence in Tanzania was unlawful and that consequently it did not violate the Applicant’s right to freedom of movement.

Alleged violation of the Article 1 of the Charter

The Applicant submitted that the Respondent State violated Article 1 of the Charter. According to the Applicant Article 1 confers on the Charter its legally binding character and therefore a violation of any right under the Charter automatically means a violation of this article.

The Respondent State made no submissions in this respect.

Outcome

Alleged violation of the Applicant’s right to Tanzanian nationality

The Court noted that the Applicant who alleges that he holds a certain nationality bears the onus to prove so. Once he has discharged the duty prima facie, the burden shifts to the Respondent State to prove otherwise. It is against these standards that the Court settled the issue of proof of nationality.

The Court noted that the Applicant had always maintained that he is Tanzanian by birth. At the time of his arrest, he presented a copy of his birth certificate and the emergency travel document issued to him pending issuance of his passport.

At the time of the Applicant’s birth in 1968, a person could acquire Tanzanian nationality by birth if that person was born in the United Republic of Tanzania after Union Day provided either of his parents are Tanzanian.

The Respondent State challenged the Applicant’s nationality by disputing his place of birth. However, a witness who claimed to be the Applicant’s mother gave evidence that her son, the Applicant, was born in Tanzania in 1968. The witness is the person listed on the Applicant’s birth certificate as his mother. The Court found that this evidence, along with the fact that the birth certificate clearly shows that the Applicant was born in Tanzania established a presumption that the Applicant is Tanzanian by birth and it was for the Respondent State to refute this presumption.

The Court noted that the passports relied on by the Respondent State bore different names and the Respondent State did not provide compelling evidence to substantiate its allegation that both these passports belong to the Applicant. The Court also noted that the Applicant refused knowledge of those passports.

The Court noted that all of the documents tendered by the parties were copies or certificated copies and that neither of the parties produced originals. The Court was of the opinion that the Respondent State, as the depository and guarantor of public authority and custodian of the civil status registry, had the necessary means to correctly establish whether the Applicant was a Tanzanian, South African or British citizen. The Respondent State could also have obtained and produced concrete evidence to support its assertion that the Applicant had other nationalities.

The Court considered that there was a body of documents, especially the certified copy of the birth certificate and the certified temporary travel document issued by the authorities pending finalization of the passport, establishing that the Applicant is Tanzanian by birth and that the Respondent State had not been able to prove the contrary.

The Court therefore found that the Applicant’s right to Tanzanian nationality was violated, contrary to Article 5 of the Charter and Article 15 of the UDHR.

Alleged violation of the Applicant’s right to liberty

The Court noted that Article 6 of the Charter guarantees the right to liberty and to the security of person. The Court noted that this right strictly prohibits any arbitrary arrest or detention and that an arrest or detention becomes arbitrary if it is not in accordance with the law, lacks clear grounds or is conducted in the absence of procedural safeguards against arbitrariness.

The Court noted its earlier finding that the Respondent State had not provided evidence to substantiate that the Applicant is not a Tanzanian. The Court found that this renders the Applicant’s arrest, conviction and detention unlawful.

The Court noted that the Applicant had remained in prison notwithstanding that he served his two years’ imprisonment sentence. The Court found that the Applicant’s alleged refusal to cooperate for the purpose of his expulsion was not a reasonable justification for keeping him in prison indefinitely.

The Court found that the Respondent State violated the Applicant’s right to liberty contrary to Article 6 of the Charter.

Alleged violation of the Applicant’s right to freedom of movement

The Court noted the right to freedom of movement in Article 12 of the Charter and Article 12(1) of the ICCPR.

The Court noted that the right to freedom of movement in Article 12 of the Charter is guaranteed to ‘every individual’ lawfully present within the territory of a State. The Court highlighted that nationals of a State are presumed to be lawfully present in the territory of that State by reason of their citizenship.

The Court noted that it had already established that the Applicant is presumed to be a national of the Respondent State and accordingly is considered to have been lawfully present in the territory. Despite this, the Applicant was convicted and detained for illegal entry. The Respondent State did not provide any justification that would fall under Article 12 (2) of the Charter such as protection of national security or public order.

The Court found that the Applicant’s arrest and continued detention constitute a violation of Article 12 of the Charter.

Alleged violation of the Article 1 of the Charter

Having found that the Applicant’s right to liberty, nationality, security of his person and the right not to be unlawfully detained had been violated, the Court found that the Respondent State also violated its obligations under Article 1 of the Charter.

Reparations

The Applicant alleged that his detention led to a loss of his socio-economic activities and sought reparations. The Court noted that for the reparation of any material prejudice arising from the violation of any right there must be evidence establishing a causal link between the facts and the prejudice suffered. The Court noted that the Applicant failed to adduce evidence to prove his alleged losses and did not explain how he had arrived at the figures claimed. The Court dismissed the Applicant’s request for compensation for material prejudice for lack of evidence.

In respect of the moral prejudice suffered by the Applicant the Court ordered the Respondent State to pay the Applicant the sum of ten million Tanzanian shillings for his illegal detention to date and a further sum of three hundred thousand Tanzanian shillings for each month of illegal detention from the date of notification of the Judgment until his release.

The Court ordered the Respondent State pay the Applicant’s mother the sum of five million Tanzanian shillings for the moral prejudice she suffered.

The Court ordered the immediate release of the Applicant.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	Universal Declaration of Human Rights 1948	Articles 6, 15
Regional	African Charter on Human and Peoples’ Rights	Articles 1, 5, 6, 12, 50, 56
Regional	African Charter on the Rights and Welfare of the Child	Article 6
Regional	Protocol to the African Charter on Human and Peoples’ Rights	Articles 3, 5, 6, 27, 28, 34
International	Geneva Convention of 1949	Articles 1, 2, 3, 4
International	Additional Protocol 1 to the Geneva Convention	Article 59
International	International Covenant on Civil and Political Rights	Article 12

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Clement Bernardo Mubanga, ‘Jus Soli or Jus Sanguinis? Diagnosing Letters of Law and Official Interpretation of Tanzanian Citizenship by Birth’ (2020) 47(1) The Eastern African Law Review 140

• This article examines the interpretation of the Tanzanian Citizenship Act in respect of what constitutes Tanzanian citizenship by birth and particularly whether the Tanzanian Citizenship Act provides for jus soli (right or soil or birth right without the condition of citizenship of parents) or jus sanguinis (right of blood or citizenship conditional on parents’ citizenship status).

The article indicates that the Court in Penessis v United Republic of Tanzania subscribed to the jus sanguinis mode.

Jamil D Mujuzi, ‘The right to return to one's country in Africa: Article 12 (2) of the African Charter on Human and Peoples' Rights’ (2021) 21(1) African Human Rights Law Journal 234

• This article discusses the Court’s interpretation of the words ‘every individual’ in Article 12(1) of the Charter to include both nationals and non-nationals and discusses whether this interpretation should be extended to Article 12(2) so that the right to return is also available to non-nationals.