Tanzania: State Unhappy With Death Penalty Ruling

By Faustine Kapama

Zanzibar — THE Attorney General (AG), Prof Adelardus Kilangi has voiced misgivings against the judgment that the government should remove from its penal laws, the death sentence against murder

convicts.

He told the 'Daily News on Saturday' over the phone that Tanzania is governed by laws, the Constitution of the United Republic of Tanzania taking the lead.

"In our legal hierarchy, the Constitution is the supreme and controlling law. We are bound by our Constitution," the AG Prof Kilangi pointed out that what follows is the law enacted by the parliament and then case laws, whereas international laws come later. "Any decision that is given must be in conformity with our laws," he said.

The AG reserved more comments on the matter, saying he would provide a comprehensive reaction on nthe decision of the continental court after being supplied with the typed copy of the judgment in question.

Composed of ten justices, led by President Sylvain Oré, the Court on Thursday directed the government of Tanzania, as respondent state, to take necessary measures within one year to repeal the provision of Section 197 of the Penal Code, which provides such capital punishment.

"This court orders the respondent state to take necessary measures within one year from the date of notification of this judgment to remove the mandatory nature of imposition of the death sentence as it removes the discretion of the judicial officer," they declared.

The justices gave the orders when determining an application lodged by three convicts of murder, Ally Rajab, Angaja Kazeni, alias Oria, Geoffrey Stanley, alias Babu, Emmanuel Michael, alias Atuu, and Julius Michael, who are citizens of the United Republic of Tanzania.

They found that Section 197 of the Penal Code does not compel the convicted person to provide mitigating evidence and the trial court is left with no other option than to impose the death sentence to the convicted person.

"The Court found that mandatory imposition of the death penalty is automatic and its imposition does not permit consideration of mitigating factors; applies to accused persons blindly; takes away the discretion of judicial officer and does not observe proportionality between the facts and the penalty," they said.

In their landmark judgment, the justices also ordered the respondent to publish in the websites of the Judiciary and the Ministry of Justice and Constitutional Affairs, the judgment in question, which should remain accessible at least for one year from the date of notification of its existence.

The Court, during the closure of the four-week sitting of the 55th Ordinary Session held here, further directed the government to provide a report in six months' time, on the implementation of the judgment.

According to the justices, the mandatory imposition of the death sentence does not uphold fairness and due process as guaranteed under Article 7(1) of the Charter.

They noted that lack of mention of the death penalty in Article 4 of the Charter and the strongly worded provision for the right to life therein are to the effect that the failure of the mandatory death sentence to pass the test of fairness renders the penalty contrary to the right to life under Article 4 of the Charter.

"The mandatory death sentence for murder in Section 197 of the Tanzanian Penal Code constitutes an arbitrary deprivation of the right to life and therefore that the Respondent State has violated Article 4 of the Charter," the justices ruled.

The Court also found that methods of implementing the death penalty amount to torture, inhuman and degrading treatment, given the suffering inherent thereto.

They pointed out that due to the arbitrary nature of the mandatory imposition of the death penalty; Its execution by hanging is consequently and inevitably in violation of the right to dignity in respect of the prohibition of torture and inhuman and degrading treatment.

"The Court therefore found that the Respondent State has violated Article 5 of the Charter," the justices declared, adding that having enacted its Penal Code or amended it subsequent to the entry into force of the Charter, Tanzania was under the duty to bring the law in line with the Charter upon ratification.

They, however, rejected the request by the applicants for the court to be released from prison, as the violations of their rights as per Article 4 and 5 of the Charter had nothing to do with their applicability of their convictions.

Instead, the justices ordered for fresh sentencing hearing after the law amendments.

The justices noted that the applicants' sentencing is affected only to the extent of the mandatory nature of the penalty and, thus, directed the Respondent State to set aside the sentence and replace it with any other order that it will deem appropriate within its domestic processes.

The applicants were arrested in September 2006 in connection with the murder of Jamal Abdallah. On February 3, 2009, they were charged with the offence of murder at the High Court of Tanzania at Moshi.

After a full trial, they were found guilty, convicted and sentenced to death by hanging. The judgment was delivered on November 25, 2011.

The applicants appealed to the Court of Appeal which is the apex court in the Tanzanian judicial system. On March 25, 2013, the Court of Appeal upheld the Applicants' convictions and confirmed the death sentences.