Death penalty ‘here to stay’

RODGERS LUHWAGO

THE Law Reform Commission of Tanzania has responded to an outcry by human rights bodies on abolition of the death penalty, insisting that currently there is no justification to implement such a call.

The Commission’s Executive Secretary, Mr Casmir Kyuki, told the ‘Sunday News’ that in recent years, the Commission conducted several researches on the same subject after which results showed that majority wanted the capital punishment to stay.

“I don’t think we, at the Law Reform Commission of Tanzania, have any reason to initiate the process of writing a law to abolish death penalty, because researches conducted show that people want the verdict to stay,” Mr Kyuki insisted.

He added: “If my memory serves me right, we have about three reports compiled from researches conducted on the same subject. In all the reports, majority of Tanzanians called for upholding of the sentence.”

Mr Kyuki said individuals who insisted on the abolition of capital punishment ought to take note that they were dealing with people’s lives, adding that one of the key roles of the State was to ensure life was protected.

“The law states clearly that if one is proven beyond reasonable doubt of committing murder, he/she should also be subjected to death penalty. However, commuting the sentence is again vested in the powers of the President,” he explained.

“The President, under the powers vested upon him by the constitution, can let inmates on death row serve life imprisonment sentences or thirty years instead of signing execution warrant,” he observed.

Touching on the statement by President John Magufuli recently that he will not sign execution warrant for any inmate on death row, Mr Kyuki said ‘it doesn’t mean that the President can indeed not sign it.”

He said the Commission has, at different occasions, gone an extra mile to explain about the country’s position on death penalty to the international human rights bodies.

Tanzania is yet to sign and ratify the “2nd Optional Protocol to the International Covenant of Civil and Political Rights of 1989” which pushes countries to abolish death penalty.

The Commission is an independent institution established under the Law Reform Commission Act, 1980 to constantly keep under review all laws of the country with the view to attaining a systematic development of the laws through reform.

Recently, human rights bodies called for abolition of the penalty as it was against the fundamental right - the right to live. The call to abolish the capital punishment comes at a time when the number of inmates sentenced to death in the country keeps soaring.

This month alone the High Court, Sumbawanga Zone, sentenced nine people, six of whom being relatives, to death after convicting them of various offences.

According to data obtained by the Legal and Human Rights Centre (LHRC) from Tanzania Prison Services on July 10, 2015, there were 472 individuals under death sentence, of which 452 are men while 20 are women. No other recent data have been made public to date.

Legal and Human Rights Centre (LHRC) Executive Director, Dr Hellen Kijo-Bisimba, spoke to the ‘Sunday News’, insisting that Head of State had powers to scrap the death penalty.

Dr Bisimba said given the fact that Tanzania was yet to sign and ratify the 2nd Optional Protocol to the International Covenant of Civil and Political Rights of 1989, the President had mandate to order the Attorney General (AG) to draft a Bill for enacting a law to scrap capital punishment. The protocol was created on December 15, 1989 and entered into force on July 11, 1991.

As of September 2016, the Optional Protocol had 83 states parties. The protocol commits its members to the abolition of the death penalty within their borders, though Article 2.1 allows parties to make a reservation allowing execution ‘in time of war.’

According to Dr Bisimba, issuance of death penalty by judges, according to the country’s Penal Code, was unavoidable, as long as one was proven guilty beyond reasonable doubt to have committed murder.

“The problem with our Penal Code is that it does not give discretional powers to the judges to give alternative punishment to an accused proven beyond reasonable doubt to have committed murder,” she said.

“She added: “ I think we can have a law that requires individuals convicted of murder to serve let’s say life imprisonment or even 30 years in prison instead of taking their life away.”

Dr Bisimba said if the President finds that drafting the Bill to have a law that provides for alternative punishment for those convicted of murder is a long process, he can issue a decree instead.

About three weeks ago, President Magufuli said he would not sign execution warrants for any inmates on death row by hanging after being convicted of various serious crimes.

He made the remarks at State House while swearing-in the newly appointed Chief Justice (CJ), Prof Ibrahim Juma.

“I am aware of the difficulties in implementing such sentences, so I have directed the court not to submit names of prisoners who are in line to be hanged to death,” President was quoted as saying.

The LHRC, in one of its documents, cites the 2015 Tanzania Human Rights Report, saying death penalty violates the rights to life which is fundamental right.

The rights body states that though death penalty is part of the country’s laws, there have not been any executions since 1994.The right to life is provided for under Article 14 of the Constitution.

However, the protection of the right is not absolute, as this right under article 14 can be subjected to other laws,” the LHCR states.

The rights body further says in the Tanzanian laws it is stipulated as a mandatory sentence for cases of murder and treason under the Penal Code sections 39 and 197.