Controversy over death penalty

Human rights activists march to protest against executions in various parts of the world. PHOTO | AGENCIES 

By Mwassa Jingi

In Summary

Ironically, death penalty is presumed to be saved by Article 30 of the same Constitution. Although death penalty has not been enshrined in our Constitution before and after independence, it has been part of our criminal laws all the time.

Dar es Salaam. For the first time in the history and development of Constitutions in Tanzania, a final Draft Constitution has included in it the death penalty and how it can be executed by the Head of State. All Constitutions before and after independence have never included in their Articles a crime of murder or any other crime, whose penalty is death. Surprisingly, the final Draft Constitution is now carrying in it a controversial death penalty for crimes which are still punishable by death like murder and treason, the only crimes punishable by death in Tanzania.

Nevertheless, death penalty is not novel on this planet; it is one of the oldest punishments initiated by God Himself as we are told by religious books like the Bible. The book of Exodus in chapter 20 enlists 10 Commandments given by God to Moses for his people the Israelis and one of those Commandments is that “you shall not murder”, and those who murdered fellow human beings were punished by death (Exodus 21:12-17). Since then part of the modern world has retained the crime of murder and its capital punishment to date although many countries have already abolished it.

The controversy of death penalty is firstly justified by the fact that every person has the right to live and thus, neither state nor an individual has the right to take away a person’s life, and secondly, death penalty is inhuman and degrading to human dignity in the way it is executed. In our current Constitution of 1977, the right to live is enshrined in Article 14 as one of the human rights, which are constitutionally protected. Article 13(6)(e) prohibits inhuman punishments and torture to be subjected to any person regardless of the crime he or she is convicted of.

Ironically, death penalty is presumed to be saved by Article 30 of the same Constitution. Although death penalty has not been enshrined in our Constitution before and after independence, it has been part of our criminal laws all the time. The Penal Code (Cap 16) in sections 196 and 197 provides for the crime of murder and its death penalty respectively. On the other hand, The Criminal Procedure Act, 1985, in section 322 provides for the procedure in which execution must be done by hanging. This section of the law is against the Constitution, which prohibits any person to be punished through torture and inhuman manner.

From the current existing controversy of death penalty in our country and worldwide, no one ever anticipated that death penalty would be enshrined in the Draft Constitution which is subject to the Constituent Assembly for deliberation and possibly it might become our parent law soon this year. Article 72 of the final Draft Constitution prescribes the duties and responsibilities of the president as the head of State, in which one of those responsibilities (Article 72 (1)(k) is to approve or sign for the execution of death penalty. Article 86 (1)(b) of the final Draft Constitution gives the president a free hand, even to change death penalty into life imprisonment. We are told here in Tanzania that there are about 400 inmates on death row. All these circumstances continue to retain the death penalty controversy in Tanzania for no good reason.

Practically, for almost 20 years now no execution has been approved by the president. While the first two presidents, Mwalimu Julius Nyerere and Ali Hassan Mwinyi approved the execution of those convicted of murder, President Benjamin Mkapa completed his tenure of office without executing anybody. Incumbent President, Jakaya Kikwete is likely to follow on his predecessor’s footsteps. With these both de facto and de jure situations surrounding both our current Constitution and criminal justice, there is no legitimate ground to incorporate death penalty in the prospective Constitution.

Rather, the Drafters of the final Constitution document should propose life imprisonment instead of death penalty. Let’s hope the Constituent Assembly will change this.

Why didn’t Mkapa approve any execution? Probably, he felt guilty and unjustified to take away the lives of his fellow human beings although they were legally convicted. Probably, President Kikwete feels the same. With this trend, which now and then will slowly become precedent, no president in the future will feel comfortable to approve any execution. This situation by itself is an ample signal to the framers of the Constitution not to include death penalty in the proposed Constitution. It would be better for death penalty to remain out of the Constitution while all efforts are made to get it out of the law books. Because of the long time standing controversy of death penalty and fierce campaigns made by abolitionists worldwide, many countries have decided to abolish capital punishment for all crimes. Almost all European and South American countries have already abolished it. Some African countries have also abolished this inhuman punishment. However, giant nations like China, India, Japan, Indonesia and several states of the US still retain death penalty in their laws and thus slow down the abolitionists’ efforts. The only reason for retention of death penalty in our law books is to deter murder-minded persons. Surprisingly, it has failed, because the number of murderers has been rising since time immemorial. Here in Tanzania, we are witnessing our beloved Tanzanians killing their fellow human beings everyday for different reasons. This by itself is evidence that death penalty has failed to act as a deterrent as expected by the legislature.

The author is a Dar es Salaam based lawyer/journalist. He can be reached at mwassajingi@yahoo.com, 0756 440 175.