The International League Against Arbitrary Detention urges the Government of the United Republic of Tanzania to take all the necessary actions to implement the Opinion No. 3/2022 of the United Nations Working Group on Arbitrary Detention concerning Mr. Freeman Mbowe starting with his immediate release and according him an enforceable right to compensation and other reparations, in accordance with international law.
Read the full WGAD Opinion concerning Mr. Freeman Mbowe (United Republic of Tanzania): Opinion No. 3/2022.
ARRESTED AND AUTOMATICALLY DETAINED WITHOUT ANY LEGAL BASIS
The Working Group found that Mr. Freeman Mbowe was arrested on 21 July 2021 without a warrant and without being informed of the reason for his arrest, in a manner inconsistent with the national laws of the United Republic of Tanzania, in violation of articles 3 and 9 of the Universal Declaration of Human Rights, article 9 (1) of the International Covenant on Civil and Political Rights.
Mr. Freeman Mbowe was charged with conspiracy to commit terrorist acts and indirectly funding terrorist acts, pursuant to section 4 (1) and (3) (i) (i), section 27 (c) and section 13 of the Prevention of Terrorism Act No. 21 of 2002, read together with sections 57 (1) and 60 (2) of the Economic and Organized Crime Control Act, which are non-bailable offenses, meaning that he had to remained in custody pending further court appearances based on.
The Working Group found that the automatic detention of Mr. Freeman Mbowe with no individualized determination of the risk of flight, interference with the evidence or recurrence of the crime, and no consideration of less intrusive alternatives such as bail, electronic bracelets or other conditions, in accordance with the principle of necessity and proportionality, rendered the detention if Mr. Freeman Mbowe devoid of legal basis.
DETAINED INCOMMUNICADO AND HELD OUTSIDE THE PROTECTION OF THE LAW
Mr. Freeman Mbowe was held incommunicado for five days after his arrest, between 21 and 26 July 2021, with no access to his family or legal representation.
The Working Group recalled that holding persons incommunicado violates their right to be promptly brought before a judge or other officer authorized by law under article 9 (3) of the International Covenant on Civil and Political Rights and to challenge the lawfulness of their detention before a court under article 9 (4) of the International Covenant on Civil and Political Rights; judicial oversight of detention being a fundamental safeguard of personal liberty and essential in ensuring that detention has a legal basis. The Working Group found that Mr Freeman Mbowe was denied these rights and was held outside the protection of the law for the first five days of his detention, in violation of article 6 of the Universal Declaration of Human Rights and article 26 of the International Covenant on Civil and Political Rights.
ARRESTED AND DETAINED AS A RESULT OF HIS EXERCISE OF THE RIGHT TO FREEDOM OF SPEECH, ASSEMBLY AND TO TAKE PART TO PUBLIC AFFAIRS
Mr. Freeman Mbowe’s arrest in July 2021 came amidst increased discussions among Tanzanian citizens regarding constitutional reform and was a result of his advocacy for such reform as the leader of Chadema. The day preceding Mr. Freeman Mbowe’s arrest, Tanzanian authorities prohibited any unnecessary gatherings due to the COVID-19 pandemic in a calculated attempt to thwart opposition meetings.
The Working Group considered that Mr. Freeman Mbowe’s conduct fell within the right to freedom of opinion and expression as well as within the right to take part in the conduct of public affairs and to peaceful assembly and association. In reaching this conclusion, the Working Group noted that Mr. Mbowe was arrested alongside 15 other Chadema members, ahead of a planned meeting on constitutional reform. The Working Group also noted that Mr. Freeman Mbowe had been arrested in the past, based on the exercise of his fundamental freedoms as a member for the opposition Chadema party, and that Mr. Freeman Mbowe’s arrests fit a pattern of arresting critical voices.
Therefore, the Working Group concluded that Mr. Freeman Mbowe’s detention resulted from the peaceful exercise of his rights to freedom of opinion and expression and to peaceful assembly and association, as well as his right to take part in the conduct of public affairs, in violation of articles 19, 20 and 21 of the Universal Declaration of Human Rights and articles 19, 21, 22 and 25 of the International Covenant on Civil and Political Rights. His detention was therefore arbitrary under category II, and no trial should have taken place in this matter.
DENIAL OF RIGHT TO ACCESS COUNSEL AND TO A FAIR TRIAL
The Working Group found that the authorities violated Mr. Freeman Mbowe’s right to access counsel immediately after he was arrested, and subsequently during his questioning and first court appearance and that such violations substantially undermined and compromised Mr. Freeman Mbowe’s capacity to defend himself in any subsequent judicial proceedings.
The Working Group thus concluded that the detention of Mr. Freeman Mbowe violated his rights to a fair trial and due process and that such violations were of such gravity as to render his detention arbitrary under Category III.
A PATTERN OF DISCRIMINATORY PERSECUTIONS BASED ON POLITICAL OPINIONS
The Working Group considered that Mr. Freeman Mbowe was targeted because of his peaceful activities, including voicing his opposition against the Government. The Working Group also noted that Mr. Freeman Mbowe was discriminated against on the basis of his political views, in violation of his right to equality before the law and equal protection of the law under articles 2 and 7 of the Universal Declaration of Human Rights and articles 2 (1) and 26 of the International Covenant on Civil and Political Rights.
Hence, the Working Group found that Mr. Freeman Mbowe was deprived of his liberty on discriminatory grounds, that is, owing to his political or other opinion with regard to seeking to launch a campaign on constitutional reform. His deprivation of liberty violated articles 2 and 7 of the Universal Declaration of Human Rights and articles 2 (1) and 26 of the International Covenant on Civil and Political Rights, and was therefore arbitrary under category V.
CONCLUSIONS OF THE UN WORKING GROUP AGAINST ARBITRARY DETENTION
In light of the foregoing, the United Nations Working Group on Arbitrary Detention considered that the detention of Mr Freeman Mbowe is arbitrary and falls under categories I, II, III and V because the deprivation of liberty of Mr Freeman Mbowe was in contravention of articles 2, 3, 6, 7, 8, 9, 11, 19, 20 and 21 of the Universal Declaration of Human Rights and articles 2, 9, 14, 19, 21, 22, 25 and 26 of the International Covenant on Civil and Political Rights.
The United Nations Working Group on Arbitrary Detention recommended that the Government of the United Republic of Tanzania to take the steps necessary to remedy the situation of Mr. Freeman Mbowe without delay and bring it into conformity with the relevant international norms, starting to release Mr. Freeman Mbowe unconditionally and accord him an enforceable right to compensation and other reparations, in accordance with international law.
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