A/HRC/WGAD/2020/38

GE.20-12521(E)



Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-eighth session, 24–28 August 2020

Opinion No. 38/2020 concerning Tito Elia Magoti (United Republic of

Tanzania)*

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights. In its resolution 1997/50, the Commission extended and

clarified the mandate of the Working Group. Pursuant to General Assembly resolution

60/251 and Human Rights Council decision 1/102, the Council assumed the mandate of the

Commission. The Council most recently extended the mandate of the Working Group for a

three-year period in its resolution 42/22.

2.

In accordance with its methods of work (A/HRC/36/38), on 12 March 2020 the

Working Group transmitted to the Government of the United Republic of Tanzania a

communication concerning Tito Elia Magoti. The Government has not replied to the

communication. The State is a party to the International Covenant on Civil and Political

Rights.

3.

The Working Group regards deprivation of liberty as arbitrary in the following cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or

her sentence or despite an amnesty law applicable to him or her) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,

26 and 27 of the Covenant (category II);

(c)

When the total or partial non-observance of the international norms relating

to the right to a fair trial, established in the Universal Declaration of Human Rights and in

the relevant international instruments accepted by the States concerned, is of such gravity

as to give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or

remedy (category IV);

(e)

When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation,

* Seong-Phil Hong did not participate in the discussion of the present case.

United Nations

A/HRC/WGAD/2020/38

General Assembly

Distr.: General

25 September 2020

Original: English

A/HRC/WGAD/2020/38

2

disability, or any other status, that aims towards or can result in ignoring the equality of

human beings (category V).

Submissions

Communication from the source

4.

Tito Elia Magoti is a citizen of the United Republic of Tanzania born in 1993. He is

a lawyer employed as Programme Officer for Mass Education by the Legal and Human

Rights Centre, an organization based in the United Republic of Tanzania that works to

empower the public and promote, reinforce and safeguard human rights and good

governance in the country.

a.

Arrest and detention

5.

According to the source, on 20 December 2019, Mr. Magoti was reportedly

abducted in Dar es Salaam, United Republic of Tanzania, by four unidentified men. He was

handcuffed and driven away in a civilian vehicle. Prior to his abduction, Mr. Magoti had

reportedly received a text message from his colleague, who had been used by the police to

lure him to the place of the event.

6.

The source explains that immediately after his abduction, a number of human rights

organizations searched for him in various police stations but were unable to locate him. In

the evening of 20 December 2019, the Dar es Salaam Special Zone Police Commander

issued a press release indicating that Mr. Magoti was in police custody with several other

individuals. No mention was made of where he was being detained or of the charges that he

was facing. Despite the authorities acknowledging that they were holding Mr. Magoti in

detention, his family, employer and legal representation were not informed of his

whereabouts, nor were they allowed to speak to him. The uncertainty of Mr. Magoti’s

whereabouts was heightened by the contradictory statement by the Kinondoni Regional

Police Commander – Kinondoni being the district in which Mr. Magoti was arrested –

alleging that he had no knowledge of Mr. Magoti’s arrest.

7.

On 23 December 2019, an urgent petition was filed against the Dar es Salaam

Special Zone Police Commander and the Attorney General demanding the release of Mr.

Magoti, whose whereabouts and charges had yet to be revealed. On 24 December 2019, Mr.

Magoti, along with one of his colleagues, who was also arrested, was brought before Kisutu

Resident Magistrates’ Court in Dar es Salaam. The petition was then withdrawn.

8.

Mr. Magoti was first transferred to Tazara police station and then to Mbweni station.

During this transfer, he was blindfolded.

9.

The source explains that Mr. Magoti was questioned by the police on his use of

social media and on his association with certain citizens who have publicly criticized the

Government.

10.

Mr. Magoti has been charged on the following counts: (a) leading organized crime,

under paragraph 4 (1) (a) of the First Schedule to and sections 57 (1) and 60 (2) of the

Economic and Organized Crime Control Act (Cap. 200, R.E. 2002), as amended; (b)

possessing a computer program designed for the purpose of committing an offence, under

section 10 (1) (a) of the Cybercrimes Act (Act No. 14 of 2015), read together with

paragraph 36 of the First Schedule, and sections 57 (1) and 60 (2) of the Economic and

Organized Crime Control Act, as amended; (c) money-laundering, under sections 12 (d)

and 13 (a) of the Anti-Money-Laundering Act, 2006, read together with paragraph 22 of the

First Schedule, and sections 57 (1) and 60 (2) of the Economic and Organized Crime

Control Act, as amended. The source explains that the charges against him preclude him

from applying for bail.

11.

Mr. Magoti is currently being detained at Segerea Remand Prison.

b.

Legal analysis

12.

The source submits that Mr. Magoti’s detention constitutes arbitrary deprivation of

his liberty under categories I, II, III and V, as developed below, except for category V.

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i.

Category I

13.

The source argues that Mr. Magoti was arrested without a warrant. He was

handcuffed, blindfolded and forced into a civilian vehicle in a manner that was tantamount

to an abduction. Moreover, according to the source, Mr. Magoti was not immediately

informed of the reasons for his arrest nor was he promptly informed of the charges he was

facing, in violation of his due process rights.

14.

The source also contends that Mr. Magoti was held for four days in detention, where

he was interrogated without being granted access to a lawyer or his family. The police also

failed to bring Mr. Magoti before a court of law within the 24-hour period prescribed by the

national legislation or as soon as was practicable. Furthermore, the source argues that the

use of a blindfold on Mr. Magoti was cruel and inhuman.

15.

The source also claims that Mr. Magoti’s arrest fits a pattern whereby the authorities

have failed to follow due process procedures.

ii.

Category II

16.

As a general matter, the source reports that the Government has come under

criticism for its increasing restriction of human rights defenders, civil society, journalists,

bloggers, opposition politicians and their supporters, the media and other dissenting voices

in the United Republic of Tanzania.

17.

The source argues that the allegations against Mr. Magoti are in retaliation for the

exercise of his right to freedom of expression. In particular, during Mr. Magoti’s detention,

he was reportedly questioned on his use of social media and his association with another

media owner and activist and an opposition politician. These individuals are reportedly

vocal critics of the Government, and are all currently facing various forms of retaliation for

demanding government accountability and transparency.

18.

The source points out that Mr. Magoti is a lawyer who has in his professional and

personal capacity worked to promote human rights in the United Republic of Tanzania and

has publicly engaged in matters of public interest. The source concludes that prosecuting an

individual for engaging in matters of public interest and associating with citizens of similar

views is in violation of international law, particularly the rights to freedom of expression,

political participation and freedom of association.

iii.

Category III

19.

According to the source, Mr. Magoti was arrested on 20 December 2019. He was not

informed, at the time of his arrest, of the reasons for his arrest. He was detained for four

days before he was eventually brought to court on 24 December 2019, when, for the first

time, he was informed of the charges against him. The source recalls the provisions of

article 9 (2) and (3) of the Covenant and recalls that the Human Rights Committee has

explained that delays should not exceed a few days from the time of arrest and that 48 hours

is ordinarily sufficient.

20.

The source argues that while Mr. Magoti was eventually informed of the charges

against him, the charge sheet fails to meet international standards. Article 14 (3) (a) of the

Covenant provides that in the determination of a criminal charge, an accused person is

entitled to “be informed promptly and in detail in a language which he understands of the

nature and cause of the charge against him”. The source claims that there is clearly

insufficient information on the facts to support the allegations against Mr. Magoti.

According to the facts giving rise to the charge of “leading organized crime”, on diverse

dates between February 2019 and December 2019 in Dar es Salaam, Mr. Magoti organized

a criminal racket, which involved the possession of a computer program for the commission

of an offence, thereby acquiring the sum of 17,354,535 Tanzanian shillings. No information

is given on the nature of the computer program, the offence that was committed using the

computer program or the way in which the computer program was used to acquire the

alleged sum. As such, Mr. Magoti lacks adequate information about the scope of the case

against him, which severely undermines his ability to prepare for trial.

21.

Moreover, the source claims that during the four days that Mr. Magoti was detained,

he was denied access to his lawyer while he was interrogated. According to the source, this

denial violates article 14 of the Covenant. During this time, he was not afforded an

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opportunity to notify his family of his arrest or his place of detention. He was also

blindfolded and transferred from police station to police station. The source therefore

argues that the United Republic of Tanzania has violated Mr. Magoti’s rights.

22.

According to the source, section 148 (5) of the Criminal Procedure Act provides that

a police officer in charge of a police station, or a court before whom an accused person is

brought or appears, cannot admit that person to bail if that person is charged with certain

crimes, including money-laundering contrary to Anti-Money-Laundering Act. This

provision thus provides for a blanket denial of bail for certain crimes and, as such, Mr.

Magoti is not entitled to bail and he remains in detention pending the finalization of his

case. The source claims that section 148 (5) (a) of the Criminal Procedure Act and the

resulting denial of Mr. Magoti’s right to apply for bail is a violation of his due process

rights as guaranteed under articles 9 and 10 of the Universal Declaration of Human Rights,

articles 9 and 14 of the Covenant and principles 38 and 39 of the Body of Principles for the

Protection of All Persons under Any Form of Detention or Imprisonment.

23.

Furthermore, the source reports that those charged with non-bailable offences can

spend years in pretrial detention in the United Republic of Tanzania. According to the

source, the prosecution of Mr. Magoti is in retaliation for his public criticism of the

Government and the charges against him are deliberately aimed at keeping him in

prolonged pretrial detention. The source explains that following Mr. Magoti’s appearance

in court on 24 December 2019, his case was postponed to 7 January 2020. The case was

postponed an additional three times, as follows, because the prosecution claimed that it was

still carrying out its investigations. Once the prosecution had indicated that the

investigations had reached a satisfactory stage, it requested that the hearing be moved to 21

January 2020. However, on that date, the prosecution requested a further postponement on

the basis that although the investigations had reached a satisfactory stage, they were not

complete. After listening to opposing arguments from both the prosecution and the defence,

the presiding magistrate postponed the matter to 5 February 2020. On 5 February 2020, the

matter was again postponed to 19 February 2020.

24.

The source concludes that the detention of Mr. Magoti without the right to bail is a

violation of regional and international standards and thus arbitrary. The source also fears

that Mr. Magoti will be held in prolonged pretrial detention as a form of extrajudicial

punishment.

25.

With regard to the postponement of hearings, the source argues that while the actual

length of time between charges and trial are relatively short, the repeated delays are

contrary to the spirit of the general rule concerning the right to a speedy trial, and that any

delays must be in the interests of justice and kept to a necessary minimum. The prosecution

has thus far requested a postponement on three occasions on the basis that investigations

are still under way. These requests were made despite the fact that the dates of 7 and 21

January and 5 February 2020 were scheduled with the prosecution’s knowledge. On each

occasion, Mr. Magoti and his counsel appeared in court prepared to proceed. The source

contends that the police arrested Mr. Magoti in order to conduct investigations, which is

contrary to best practice. The right to a speedy trial is intended not only to avoid keeping

individuals too long in a state of uncertainty about their fate, but also, if a person is held in

detention during the period of the trial, to ensure that such deprivation of liberty does not

last longer than necessary in the circumstances of the specific case. Given that Mr. Magoti

has been charged with an offence that automatically denies him the right to bail, it is in the

interests of justice that this matter not be subject to undue delays.

Response from the Government

26.

On 12 March 2020, the Working Group transmitted the allegations from the source

to the Government through its regular communications procedure. The Working Group

requested the Government to provide, by 11 May 2020, detailed information about the

current situation of Mr. Magoti and any comments on the source’s allegations. Moreover,

the Working Group called upon the Government to ensure Mr. Magoti’s physical and

mental integrity.

27.

The Working Group regrets that it received no response from the Government, nor a

request for an extension of the time limit for its reply, as provided for in the Working

Group’s methods of work.

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Discussion

28.

In the absence of a response from the Government, the Working Group has decided

to render the present opinion, in conformity with paragraph 15 of its methods of work.

29.

The Working Group has in its jurisprudence established the ways in which it deals

with evidentiary issues. If the source has established a prima facie case for breach of

international requirements constituting arbitrary detention, the burden of proof should be

understood to rest upon the Government if it wishes to refute the allegations (A/HRC/19/57,

para. 68). In the present case, the Government has chosen not to challenge the prima facie

credible allegations made by the source.

30.

The source has made a number of allegations with regard to the detention of Mr.

Magoti and has argued that it falls under categories I, II, III and V. The Working Group

will consider each of these categories in turn.

Category I

31.

The Working Group will consider whether there have been violations under category

I, which concerns deprivation of liberty with no legal basis.

32.

The source argues that the arrest of Mr. Magoti had no legal basis since he was not

presented with an arrest warrant at the time of his arrest or promptly informed of the

charges against him, and because he was kept in detention for four days without being

brought before a court or being granted access to a lawyer. The Working Group notes that

the Government chose not to reply to these submissions, although it had the opportunity to

do so.

33.

The Working Group recalls that, pursuant to article 9 (1) of the Covenant, no one

may be deprived of liberty except on such grounds and in accordance with such procedure

as are established by law. As the Working Group has stated,1 in order for a deprivation of

liberty to have a legal basis, it is not sufficient for there to be a law authorizing the arrest.

The authorities must invoke that legal basis and apply it to the circumstances of the case

through an arrest warrant. In the present case, Mr. Magoti was abducted by four

unidentified men, handcuffed and taken into police custody. The police commander then

issued a press statement about his custody. In the absence of any explanation from the

Government as to the procedure for bringing him into custody, the Working Group

considers that the police is complicit in this de facto abduction. The Working Group

concludes that Mr. Magoti was not presented with a warrant, and that the procedure for a

lawful arrest was not followed, in violation of article 9 (1) of the Covenant and articles 3

and 9 of the Universal Declaration of Human Rights.

34.

Moreover, the Working Group considers that an arrest is arbitrary when carried out

without informing the arrested person, at the time of the arrest, of the reasons for the arrest,

and when the person is not promptly informed of the charges, as required by article 9 (2) of

the Covenant.2 Based on the information provided by the source, which was not contested

by the Government, Mr. Magoti was not informed at the time of his arrest of the reasons for

his arrest, nor was he promptly informed of the charges that he faced, in violation of article

9 (2) of the Covenant and articles 3 and 9 of the Universal Declaration of Human Rights.

35.

Pursuant to article 9 (3) of the Covenant, anyone arrested or detained on a criminal

charge must be brought promptly before a judge. As the Human Rights Committee has

stated, 48 hours is ordinarily sufficient to transport the individual and to prepare for the

judicial hearing following arrest, and any longer delay must remain absolutely exceptional

and be justified under the circumstances.3 The Working Group further notes with concern

that Mr. Magoti was brought before a judge only after an urgent petition was filed,

seemingly by Mr. Magoti’s legal representatives, against the Dar es Salaam Special Zone

Police Commander and the Attorney General demanding his release. In the absence of any

justification for the delay in the present case, the Working Group finds that the Government

1 For example, opinions No. 9/2019, para. 29, and No. 52/2019, para. 21.

2 For example, opinions No. 10/2015, para. 34, and No. 46/2019, para. 51.

3 Human Rights Committee, general comment No. 35 (2014) on liberty and security of person, para. 33.

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violated article 9 (3) of the Covenant by failing to bring Mr. Magoti before a judge until 24

December 2019 despite his arrest having been on 20 December 2019.

36.

The Working Group notes that in order to establish that detention is legal, anyone

detained has the right to challenge the lawfulness of the detention before a court, as

envisaged by article 9 (4) of the Covenant. The Working Group wishes to recall that,

according to the United Nations Basic Principles and Guidelines on Remedies and

Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before

a Court, the right to challenge the lawfulness of detention before a court is a self-standing

human right, which is essential to preserve legality in a democratic society (A/HRC/30/37,

paras. 2–3). This right, which is in fact a peremptory norm of international law, applies to

all forms of deprivation of liberty (ibid., para. 11), including not only detention for

purposes of criminal proceedings, but also situations of detention under administrative and

other fields of law, including military detention, security detention, detention under

counter-terrorism measures, involuntary confinement in medical or psychiatric facilities,

migration detention, detention for extradition, arbitrary arrests, house arrest, solitary

confinement, detention for vagrancy or drug addiction, and detention of children for

educational purposes (ibid., annex, para. 47 (a)). It also applies irrespective of the place of

detention or the legal terminology used in the legislation, and any form of deprivation of

liberty on any ground must be subject to effective oversight and control by the judiciary

(ibid., annex, para. 47 (b)).

37.

The Working Group notes that while the authorities acknowledged having Mr.

Magoti in custody, he was denied contact with the outside world and in particular his

family and lawyer. It thus appears from the information submitted by the source that Mr.

Magoti was held incommunicado for four days from 20 December 2019 to 24 December

2019. The Working Group has consistently found that holding persons incommunicado

violates their right to challenge the lawfulness of detention before a court under article 9 (3)

and (4) of the Covenant.4 The Working Group considers that judicial oversight of the

deprivation of liberty is a fundamental safeguard of personal liberty and is essential in

ensuring that detention has a legal basis.

38.

The Working Group concludes that Mr. Magoti’s arrest and detention lacks a legal

basis and is arbitrary under category I.

Category II

39.

The source reports that Mr. Magoti was detained for the peaceful exercise of his

rights to freedom of expression, political participation and freedom of association.

40.

The source submits, and the Government has not challenged, that Mr. Magoti is a

lawyer who has worked to promote human rights in the United Republic of Tanzania and

has publicly engaged in matters of public interest. The source submits that Mr. Magoti was

prosecuted for engaging in matters of public interest and associating with citizens who have

expressed views critical of the Government.

41.

The Working Group recalls that article 19 (2) of the Covenant provides that

everyone has the right to freedom of expression, and that this right includes freedom to seek,

receive and impart information and ideas of all kinds, regardless of frontiers, either orally,

in writing or in print, in the form of art, or through any other media of the individual’s

choice. This right includes political discourse, commentary on public affairs, discussion of

human rights, and journalism. 5 This provision protects the holding and expression of

opinions, including those which are critical of, or not in line with, government policy.6

42.

The permitted restrictions on that right may relate either to respect of the rights or

reputations of others or to the protection of national security, public order or public health

or morals. The Human Rights Committee has stipulated that restrictions are not allowed on

grounds not specified in article 19 (3), even if such grounds would justify restrictions to

4 For example, opinions No. 45/2017, para. 29; No. 79/2017, para. 49; and No. 52/2019, para. 23. See

also Human Rights Committee, general comment No. 35, para. 35.

5 Human Rights Committee, general comment No. 34 (2011) on the freedoms of opinion and

expression, para. 11.

6 Opinions No. 79/2017, para. 55, and No. 8/2019, para. 55.

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other rights protected in the Covenant. Restrictions must be applied only for those purposes

for which they were prescribed and must be directly related to the specific need on which

they are predicated.7 Moreover, article 19 (3) may never be invoked as a justification for the

muzzling of any advocacy of multi-party democracy, democratic tenets and human rights.8

It should be noted that article 22 of the Covenant permits restrictions to the right of

association on the same three grounds.

43.

The source reported that Mr. Magoti was questioned by the police on his use of

social media and on his association with individuals critical of the Government. The

Working Group notes that this line of questioning appears to bear no connection with the

charges with which Mr. Magoti is charged under the Economic and Organized Crime

Control Act, the Cybercrimes Act and the Anti-Money-Laundering Act.

44.

Moreover, the Working Group considers that Mr. Magoti’s criticism through his use

of social media and journalism concerned matters of public interest. Mr. Magoti was

therefore detained for exercising his right to take part in the conduct of public affairs under

article 21 (1) of the Universal Declaration of Human Rights and article 25 (a) of the

Covenant.

45.

According to the Declaration on the Right and Responsibility of Individuals, Groups

and Organs of Society to Promote and Protect Universally Recognized Human Rights and

Fundamental Freedoms, everyone has the right, individually and in association with others,

to promote and to strive for the protection and realization of human rights, and to draw

public attention to the observance of human rights. Mr. Magoti was detained for the

exercise of his rights under that Declaration. Detaining individuals on the basis of their

activities as human rights defenders violates their right to equality before the law and to

equal protection of the law under article 7 of the Universal Declaration of Human Rights

and article 26 of the Covenant.

46.

In the absence of a rebuttal from the Government, the Working Group considers that

a prima facie case has been established that Mr. Magoti’s arrest and detention arose from

the exercise of Mr. Magoti’s rights under articles 19, 21, 25 and 26 of the Covenant and

articles 7, 19, 20 and 21 of the Universal Declaration of Human Rights, and is therefore

arbitrary under category II.

Category III

47.

Given its finding that the deprivation of liberty of Mr. Magoti is arbitrary under

category II, the Working Group wishes to emphasize that no criminal trial against Mr.

Magoti should take place. However, Mr. Magoti remains detained and the source has

submitted that Mr. Magoti’s fair trial rights have been violated, rendering his detention

arbitrary under category III.

48.

The source further submits that Mr. Magoti’s charge sheet does not meet

international standards as it contains insufficient information on the charges faced by Mr.

Magoti and on the facts to support the allegations against him, hindering his ability to

prepare for trial. Article 14 (3) (a) of the Covenant provides that in the determination of a

criminal charge, an accused person is entitled to be informed promptly and in detail in a

language which he or she understands of the nature and cause of the charge. The Human

Rights Committee has observed that in order to fulfil the requirements of article 14 (3) (a),

the information provided to the person must indicate both the law and the alleged general

facts on which the charge is based. 9 In the absence of detailed information about the

charges against Mr. Magoti from the Government, the Working Group concludes that it

appears that the charges are unclear and insufficiently substantiated, which has hindered Mr.

Magoti’s ability to defend himself, in violation of article 14 (3) (a) of the Covenant.

49.

The Working Group is also of the view that the authorities failed to respect Mr.

Magoti’s right to legal assistance, which is inherent in the right to liberty and security of

person and in the right to a fair and public hearing by a competent, independent and

7 Human Rights Committee, general comment No. 34, para. 22.

8 Ibid., para. 23.

9 Human Rights Committee, general comment No. 32 (2007) on right to equality before courts and

tribunals and to a fair trial, para. 31.

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impartial tribunal established by law. Indeed, during the four days that Mr. Magoti was

detained incommunicado, he was interrogated in the absence of his lawyer. The Working

Group recalls that, in accordance with the United Nations Basic Principles and Guidelines

on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring

Proceedings Before a Court, persons deprived of their liberty have the right to legal

assistance by counsel of their choice, at any time during their detention, including

immediately after the moment of apprehension. The Working Group therefore finds a

violation of article 10 of the Universal Declaration of Human Rights, article 14 (3) (b) and

(d) of the Covenant and principle 18 (1) and (3) of the Body of Principles. Further, Mr.

Magoti ought to have been able to notify members of his family of his arrest, and thus the

Working Group finds a violation of principle 16 (1) of the Body of Principles.

50.

According to the source, Mr. Magoti is precluded from obtaining bail as he is

charged with offences under the Anti-Money-Laundering Act 2006, and section 148 (5) of

the Criminal Procedure Act provides that a police officer in charge of a police station, or a

court before whom an accused person is brought or appears, cannot admit that person to

bail if that person is charged with certain crimes, including money-laundering contrary to

Anti-Money-Laundering Act.

51.

In its jurisprudence, the Working Group has repeatedly confirmed that mandatory

pretrial detention – in the present case, for an offence that is non-bailable under section 148

(5) of the Criminal Procedure Act – is in violation of a State’s obligations under

international human rights law.10 In particular, non-bailable offences are in violation of the

requirement under article 9 (3) of the Covenant that pretrial detention be an exceptional

measure rather than the rule. 11 Such non-bailable offences are also in violation of the

requirement that pretrial detention be based on an individualized determination that it is

reasonable and necessary taking into account all the circumstances, for such purposes as to

prevent flight, interference with evidence or the recurrence of crime. 12 As the Human

Rights Committee has stated, pretrial detention should not be mandatory for all defendants

charged with a particular crime, without regard to individual circumstances.13

52.

The Working Group considers that non-bailable offences also deprive a detainee of

the right to seek alternatives to detention, in violation of the right to be presumed innocent

under article 11 (1) of the Universal Declaration of Human Rights and article 14 (2) of the

Covenant. The imposition of mandatory pretrial detention for certain offences reverses the

presumption of innocence, so that those subject to ongoing criminal proceedings are

automatically detained without a balanced consideration of non-custodial alternatives to

detention. Moreover, mandatory pretrial detention deprives judicial authorities of one of

their essential functions as members of an independent and impartial tribunal, namely

assessing the necessity and proportionality of detention in each case.

53.

While the reasonableness of any delay in bringing the case to trial has to be assessed

in the circumstances of each case, taking into account its complexity and other relevant

factors, the Working Group considers that the excessive delay in the present case from the

time of arrest to trial is in violation of article 11 (1) of the Universal Declaration of Human

Rights, articles 9 (3) and 14 (3) (c) of the Covenant and principle 38 of the Body of

Principles. The Working Group considers that the imperatives of a speedy trial are even

more compelling when a person is charged with a non-bailable offence. In this instance, Mr.

Magoti has been held in custody without the possibility of bail for over eight months, since

his arrest on 20 December 2019. The source reports that his trial has been postponed at the

prosecution’s request on at least three occasions on the basis that investigations are

continuing. There is no sign that his criminal trial will take place soon, and the Government

has chosen not to provide the Working Group with information justifying the delay.

Moreover, given the findings under category II that Mr. Magoti was exercising his rights to

freedom of expression and freedom of association, this adds to the gravity of the conclusion

that the deprivation of liberty was too long, as he should not have been held under arrest at

10 For example, opinions No. 24/2015, paras. 36–40; No. 61/2018, paras. 47–48; and No. 8/2020, para.

77.

11 See also principles 38 and 39 of the Body of Principles.

12 Human Rights Committee, general comment No. 35, para. 38.

13 Ibid.

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all.14 Accordingly, the Working Group finds that the Government has neither tried nor

released Mr. Magoti within a reasonable time, in violation of article 11 (1) of the Universal

Declaration of Human Rights and articles 9 (3) and 14 (3) (c) of the Covenant.

54.

The Working Group concludes that this violation of the right to a fair trial was of

such gravity as to give Mr. Magoti’s pretrial detention an arbitrary character under category

III.

Category V

55.

The Working Group will now examine whether Mr. Magoti’s deprivation of liberty

constitutes illegal discrimination under international law and whether it therefore falls

under category V.

56.

The Working Group accepts that Mr. Magoti is a lawyer who has worked to promote

human rights in the United Republic of Tanzania and has publicly engaged in matters of

public interest.

57.

The Working Group has already established, in the discussion above concerning

category II, that Mr. Magoti’s arrest and detention appear to have resulted from the

peaceful exercise of his rights under international law. When it is established that

deprivation of liberty has resulted from the active exercise of civil and political rights, there

is a strong presumption that the deprivation of liberty constitutes a violation of international

law on the grounds of discrimination based on political or other views.15

58.

The Working Group is of the view that the limited information received from the

source tends to support the view that Mr. Magoti was targeted because of his political or

other views or his status as a human rights defender. In particular, the Working Group

recalls that Mr. Magoti was interrogated by the authorities on his use of social media and

his association with citizens who have been publicly critical of the Government. The

Working Group notes that according to the source, two of the individuals with whom Mr.

Magoti associates are vocal critics of the Government and are also currently facing various

forms of retaliation for calling for greater governmental accountability and transparency.

59.

In the absence of a rebuttal from the Government, the Working Group concludes

that a prima facie case has been established that Mr. Magoti was deprived of his liberty on

discriminatory grounds, that is, on the basis of his political or other views or his work as a

human rights defender, in contravention of articles 2 and 7 of the Universal Declaration of

Human Rights and articles 2 (1) and 26 of the Covenant. His deprivation of liberty

therefore falls under category V.

60.

The source argues that the use of a blindfold on Mr. Magoti was cruel and inhuman.

Moreover, the Working Group notes that the abduction must have been extremely stressful

and recalls that incommunicado detention creates conditions that lead to the violation of the

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment.16 With regard to these allegations and in accordance with paragraph 33 (a) of

its methods of work, the Working Group refers the present case to the Special Rapporteur

on torture and other cruel, inhuman or degrading treatment or punishment.

Disposition

61.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Tito Elia Magoti, being in contravention of articles 2, 3,

7, 9, 10, 11, 19, 20 and 21 of the Universal Declaration of Human Rights and

articles 2, 9, 14, 19, 21, 25 and 26 of the International Covenant on Civil and

Political Rights, is arbitrary and falls within categories I, II, III and V.

62.

The Working Group requests the Government of the United Republic of Tanzania to

take the steps necessary to remedy the situation of Mr. Magoti without delay and bring it

14 Opinions No. 15/2020, para. 71, and No. 16/2020, para. 77.

15 For example, opinions No. 88/2017, para. 43, and No. 13/2018, para. 34.

16 See A/54/44, para 182 (a), and the UN Special Rapporteur on Torture has consistently argued that use

of incommunicado detention is unlawful (A/54/426, para. 42; A/HRC/13/39/Add.5, para. 15.6).

A/HRC/WGAD/2020/38

10

into conformity with the relevant international norms, including those set out in the

Universal Declaration of Human Rights and the International Covenant on Civil and

Political Rights.

63.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to release Mr. Magoti immediately and accord him

an enforceable right to compensation and other reparations, in accordance with

international law. In the current context of the global coronavirus disease (COVID-19)

pandemic and the threat that it poses in places of detention, the Working Group calls upon

the Government to take urgent action to ensure the immediate release of Mr. Magoti.

64.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.

Magoti and to take appropriate measures against those responsible for the violation of his

rights.

65.

In accordance with paragraph 33 (a) of its methods of work, the Working Group

refers the present case to the Special Rapporteur on torture and other cruel, inhuman or

degrading treatment or punishment, for appropriate action.

66.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

67.

In accordance with paragraph 20 of its methods of work, the Working Group

requests the source and the Government to provide it with information on action taken in

follow-up to the recommendations made in the present opinion, including:

(a)

Whether Mr. Magoti has been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Magoti;

(c)

Whether an investigation has been conducted into the violation of Mr.

Magoti’s rights and, if so, the outcome of the investigation;

(d)

Whether any legislative amendments or changes in practice have been made

to harmonize the laws and practices of the United Republic of Tanzania with its

international obligations in line with the present opinion;

(e)

Whether any other action has been taken to implement the present opinion.

68.

The Government is invited to inform the Working Group of any difficulties it may

have encountered in implementing the recommendations made in the present opinion and

whether further technical assistance is required, for example through a visit by the Working

Group.

69.

The Working Group requests the source and the Government to provide the above-

mentioned information within six months of the date of transmission of the present opinion.

However, the Working Group reserves the right to take its own action in follow-up to the

opinion if new concerns in relation to the case are brought to its attention. Such action

would enable the Working Group to inform the Human Rights Council of progress made in

implementing its recommendations, as well as any failure to take action.

70.

The Working Group recalls that the Human Rights Council has encouraged all

States to cooperate with the Working Group and has requested them to take account of its

views and, where necessary, to take appropriate steps to remedy the situation of persons

arbitrarily deprived of their liberty, and to inform the Working Group of the steps they have

taken.17

[Adopted on 24 August 2020]

17 Human Rights Council resolution 42/22, paras. 3 and 7.