CRPD/C/22/D/24/2014
State party’s observations on admissibility and the merits
4.1
On 25 June 2015, the State party submitted its observations on admissibility and the
merits. It argues that the communication should be held inadmissible for non-exhaustion of
domestic remedies, in compliance with article 2 (d) of the Optional Protocol. The State
party also argues that the communication has not met the admissibility requirement
provided for by article 2 (e) of the Optional Protocol.
4.2
The State party submits that the author could have initiated a constitutional petition
under the Basic Rights and Duties Enforcement Act, which provides for the procedure for
the enforcement of constitutional basic rights. The State party has enhanced adjudication of
constitutional cases by establishing a permanent roster of five judges to preside over
constitutional cases and to expedite their hearings.
4.3
As regards the author’s claim for reparation, the State party argues that this matter
has never been raised before its authorities. In that connection, it submits that the author
could file a civil suit for malicious prosecution against the authorities that instituted the
charges.
4.4
The State party further challenges the author’s allegation that it failed to conduct
effective investigations, as an investigation was instituted by the police immediately after
the attack.5 It recalls that three suspects were arrested and arraigned in the High Court for
attempted murder (criminal case No. 36 of 2009).
4.5
The State party argues that the State prosecution was committed to securing a
conviction as the competent authorities had themselves initiated the criminal prosecution of
the accused. The fact that the available evidence did not meet the required standard of
identification beyond reasonable doubt cannot be attributed to any form of negligence by
the prosecution, which rigorously presented the case.
4.6
When the case came before the High Court, the prosecution withdrew the charges
against two of the accused as the available evidence against them did not meet the required
standard (beyond reasonable doubt) to secure a conviction. These two accused persons were
not acquitted and can still be charged with the offence of attempted murder. A full trial
proceeded against the third accused person. The prosecution presented eight witnesses and
produced three exhibits as evidence. On 14 November 2011, the High Court acquitted the
accused because the requirements of identification set by the Court of Appeal to prove a
case beyond reasonable doubt and warrant a conviction had not been met.
4.7
The State party refutes the claim that the evidence of the author was given little
weight because she could not see sufficiently. The author’s vision were never taken into
consideration by the prosecution, the defence or the judge. The identification of the accused
was tested against the principles and standards of identification of an accused person as
stipulated by the Court of Appeal. Further, the State party claims that it is inconceivable
that the prosecution, the judge and the assessors would have allowed a witness to testify
while under the influence of alcohol. The State party therefore considers that the author’s
allegations are ill-founded and unsubstantiated.
4.8
The decision by the High Court that the identification of the accused did not meet
the required standard (beyond reasonable doubt) was adopted taking into consideration all
factors, such as contradictions in the witness testimonies regarding whether a wick lamp
was in the author’s room, thus enabling her to identify the accused.
4.9
The High Court relied on landmark national jurisprudence, which has set out the
conditions for the identification of the accused to warrant a conviction. In Waziri Amani v.
The Republic (1980), the Court of Appeal held that evidence of visual identification was of
the weakest kind and most unreliable, and that no court should act on such evidence unless
all possibilities of mistaken identity were eliminated and the court was fully satisfied that
the evidence before it was absolutely watertight. 6
5
6
4
The State party does not specify the date on which the investigation was initiated.
The State party also refers to Makuru Jumanne and Mlokozi Misese v. The Republic, Criminal Appeal
No. 117 of 2005, and Issa s/o Mgara @ Shuka v. The Republic, Criminal Appeal No. 37 of 2005.