Tanzania's death penalty debate: An epilogue on Republic v Mbushuu

 Aniceth Gaitan
 LLB (Mzumbe, Tanzania)
 Kongwa District Council Solicitor, Tanzania

 Bernhard Kuschnik
 LLM (Aberdeen), PhD (Eberhard Karls)
 Legal Clerk, Regional Court, Düsseldorf, Germany
B_Kuschnik@gmx.de"> B_Kuschnik@gmx.de">This email address is being protected from spambots. You need JavaScript enabled to view it.

 Edition: AHRLJ Volume 9 No 2 2009
  Pages: 459 - 481
 Citation: (2009) 2 AHRLJ 459-481
 Download article in PDF

This paper was presented to the Legal and Human Rights Centre (LHRC) in light of the hearing of 22 June 2009 regarding the petition of the LHRC and the Tanganyika Law Society to the High Court to press for the abolishment of the death penalty, filed on 10 October 2008.

Summary

The imposition of the death sentence seems to be a common method of punishing grave offenders in Africa. In Tanzania, the most famous case involving capital punishment is Republic v Mbushuu, where the accused were convicted of murder and sentenced to death in 1994. Yet, there seems to be a new trend — among other things sparked by developments in international criminal justice — to work towards the abolishment of capital punishment. The article gives insights into legal and interdisciplinary considerations from an African–European perspective and calls for a progressive approach to the death penalty debate that works hand in hand with the legal understanding of the international community.

1.  Introduction

Whereas the death penalty is one of the oldest forms of punishment, the strengthening of human rights law after World War II has lead to a gradual global movement aimed at its abolition. [1]  In Africa, the death penalty has until recently been used widely. As at 2007, 13 African countries had decided in favour of its formal abolishment; 19 had abolished it de facto, among others Tanzania, [2]  and 21 still retained the death penalty. Nonetheless, there seem to be signs that Africa intends to get rid of the death penalty. Rwanda's recent abolition of the death penalty serves as an example. [3]  New tendencies in international criminal law policy, particularly the work of the International Criminal Tribunal for Rwanda (ICTR), started a process of thought that considers a stronger integration of norms of the international justice system into national systems as desirable. Yet, according to United Nations (UN) strategy, UN bodies such as the ICTR, or institutions which have affiliations with the UN, such as the Special Court for Sierra Leone (SCSL), are prohibited from using the death penalty when sentencing. [4]  In Rwanda, the abolition of capital punishment was particularly influenced — yet not solely dependent upon — the existence of (revised) Rule 11bis of the ICTR Rules of Procedure and Evidence (RPE), which regulates the transfer of indicted defendants in ICTR custody to third states. [5]  Boctor has recently concluded that, even though Rwanda may have faced pressure from the UN to abolish capital punishment in order to try such persons before local Rwandan courts, the original decision largely rested upon internal and free international considerations. [6]  Naturally, opinions on the legality and legitimacy of the death penalty in Africa nevertheless differ. One may point to Liberia's re-introduction of capital punishment legislation in 2008, despite having ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), thus committing itself to work towards the global abolishment of capital punishment. [7]  In Uganda, the death penalty was recently declared constitutional if the sentence is not imposed mandatorily, but 'passed by a competent court, in a fair trial and confirmed by the highest appellate court'. [8] 

This article argues that Tanzania should abolish capital punishment in the spirit of protection and promotion of human rights, and should strengthen the trend towards the abolition of this punishment for the rest of the African continent. In order to ascertain to what extent abolition is possible, Tanzanian and other arguments (pro and contra) are discussed and considered in perspective. A special focus has been on the Tanzanian landmark judgment, Republic v Mbushuu, [9]  which was rendered by the Court of Appeal in 1994 and which demonstrates an uncertain understanding of the death penalty issue in the Tanzanian legal system.

2.  Socio-historical influences

In order to comprehend the arguments brought forward in the Tanzanian death penalty debate, it is necessary to give a short introduction into the history and culture of the country, as the legal understanding of politicised law is highly influenced by social values (mirror theory). [10]  Tanzania — due to its colonial history — has two separate, yet uniting cultural heritages, those of Christianity and Islam, traditionalist and modern (liberal) beliefs, all of which influence the debate on the abolition of the death penalty.

Tanzania's mainland (Tanganyika) is a former colony of Germany and Britain. Germany ruled the country from 1884 to 1918; thereafter the British took over until 1961 when Tanganyika gained independence. [11]  Zanzibar was under an Arab colonial regime and gained independence on 10 December 1963. One month later, on 12 January 1964, a revolution overthrew the sultan governing Zanzibar. The two separate states (Zanzibar and Tanganyika) united on 26 April 1964 after union leaders [12]  of the two states met at Karimjee Hall in Dar es Salaam and drafted the 'articles of the Union'. Subsequently thereto, the name of the United Republic of Tanganyika and Zanzibar was changed to the United Republic of Tanzania. [13]

The union of Tanganyika and Zanzibar is considered peculiar in nature, as under the united Government of Tanzania, 'Tanganyika' disappeared while Zanzibar remained and has its own government, judiciary, president, and a house of representatives acting as the parliament of Zanzibar. Legal and policy matters are controlled by the two governments in accordance with its given powers. The government of the United Republic of Tanzania exercises authority over all union matters [14]  in the United Republic of Tanzania and all non-union matters on mainland Tanzania. The Revolutionary Government of Zanzibar has authority over all non-union matters on Zanzibar. [15]  Therefore, the abolishment of the death penalty lies in the hands of the government of the United Republic of Tanzania.

3.  The notion 'death penalty' from a Tanzanian perspective

The death penalty is carried out in Tanzania by sentencing the offender to suffer death by hanging. Its origins date back to colonial legislation which was passed to apply section 302 of the Indian Penal Code to the territory. Such legislation was replaced in 1921 by section 2 of the Punishment for Murder Ordinance 28 of the Tanganyika territory. [16]  In Tanzania, capital punishment is today imposed for the crime of murder [17]  in accordance with section 197 of the Penal Code, and for the crime of treason pursuant to sections 39 and 40. Even though Tanzania adopted the Penal Code that mirrored those of many former British colonies with a mandatory death penalty included as a sentence for heinous crimes such as murder, [18]  the (political and social) justification [19]  for capital punishment has regularly been linked to the maxim of jino kwa jino, [20]  which literally means 'a tooth for a tooth' and translates into 'he who kills a man must be put to death'. 

Jino kwa jino, 'an eye for an eye', sets the moral basis for the death penalty in Tanzania. [21]  Supporters argue that — even today — the maxim correlates with domestic cultural thinking and forms of civilisation from which it emerges as, in Tanzania, disputes are settled on a threefold basis: either by means of mediation and conciliation, 'drumming the scandal', or 'trial by ordeal'. [22]  'Trial by ordeal', in particular, is connected to jino kwa jino, thus providing proof that the death penalty in Tanzania is an established and justified form of punishment dating back to time immemorial, when it was applied to solve murder cases that were 'committed' by the use of witchcraft. [23]  In such cases — which appeared before the Tanzanian courts up until 1947 — the suspected offender was forced to take drugs popularly known as Mwavi. If the suspect died, the commission of murder was proven; if the suspect survived, he or she was regarded as innocent. [24]  Even though the use of Mwavi is considered an outdated concept to determine the guilt of the accused, traditional meta-physical beliefs are still deeply rooted in the Tanzanian understanding of criminal justice. In regard thereof, it is held that Christianity and Islam both support jino kwa jino. Christ was crucified for what was believed to be blasphemy, and convicted to protect society. In the book of Leviticus 24:17-21, it is explicitly stated that '[h]e who kills a man shall be put to death'. Comparable formulations can be found in Genesis 9:6; Exodus 21:12-14; 35:31-31; Matthew 26:52, 35:30-31; and Revelations 13:10. Islamic believers — including Tanzanian state officials — refer to the Holy Koran, particularly Surah 5:36. [25]  Due to the principle which jino kwa jino embodies — ius respicit aequitatem [26]  — it is claimed that the provisions of the Penal Code can be regarded as acceptable. If such an approach had been sound, sentencing to death by hanging in public would not create conflict either as, inter alia, crucifixion or stoning is stipulated in section 26(1) of the Holy Bible.

Even though jino kwa jino has continued to receive massive support in Tanzania's legal, and particularly political, thinking, the execution of death sentences were rather the exception than the rule. There were no hangings in Tanzania between the early 1970s and 1987 [27]  or between 1994 and the present date (though of course individuals are still regularly sentenced to death). [28]  In August 2007, all death sentences in Tanzania — estimated at about 400 at that time [29]  — were commuted to life imprisonment. [30]  Furthermore, in the majority of cases, the charge of 'murder' is commonly changed by the Tanzanian courts to 'manslaughter', as set forth in section 195 of the Tanzanian Penal Code which does not provide for capital punishment.

The reasons for non-enforcement are unclear. [31]  Explanations include pressure from human rights groups, Tanzanian obligations under international law, and the definition of 'malice' in the Tanzanian Penal Code, which includes recklessness, leading to the problem that regularly even unintentional homicide would amount to murder and thus have to be punished by the death sentence. [32]

4.  Municipal law regulating the death penalty

In order to comply with international legal instruments, particularly the Universal Declaration of Human Rights of 1948 (Universal Declaration), [33]  ICCPR [34]  and the African Charter on Human and Peoples' Rights of 1981 (African Charter), [35]  Tanzania decided to amend its Constitution in 1984 by an eighth constitutional amendment and to introduce a Bill of Rights. Rights mentioned include equality before the law, the right to dignity [36]  and the right to life, [37]  the latter provided for under article 14 of the Constitution.

In Mbushuu there was some argument as to the correct wording of article 14, since the English version of the Constitution held that '[e]very person has a right to life and subject to law, to protection of his life by the society', whereas the Kiswahili version made qualifications that such right may be restricted 'in accordance with the law'. The latter has now been included in the wording of article 14, stating that '[e]very person has a right to life and subject to law, to protection by the state according to the law'. [38]

In contrast, section 196 of the Tanzanian Penal Code holds: 'Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.' Section 197 of the Tanzanian Penal Code reads: 'Any person convicted of murder shall be sentenced to death.' Furthermore, the death sentence may be imposed for treason as set forth in sections 39 and 40, and the misconduct of commanders or any service man in the presence of the enemy in accordance with the First Schedule to the National Defence Act 24 of 1996 (even though the latter provisions have never been applied practically). Unlike the crime of treason, which gives interpretative freedom to impose the death penalty, the phrase 'shall be sentenced to death' within section 197 is taken as mandatory. [39]

Due to the incorporation of a Bill of Rights in the Constitution, one would expect that the law in existence, particularly sections 196 and 197 which allow for taking away the right to life, would have been abolished. This, however, never happened. Therefore, at first sight, Tanzania looks like 'a dog with two tails'; on the one hand ensuring the right to life and acting in accordance with international human rights standards, and on the other hand permitting the death penalty. The question, however, is more complex and connected to the problems of (i) how Tanzanian domestic law — including the Constitution and the Penal Code — is related to and influenced by international law; (ii) whether article 14 of the Constitution has a categorical effect and can be considered as a 'non–derogation clause', thus outlawing any levelling with other potentially contravening domestic law as well as international law; and (iii) whether there is sufficient public support to unequivocally decide on the abolishment of the death penalty in Tanzania. All three issues are discussed below.

4.1  International law and the right to life in relation to Tanzanian domestic law

Tanzania favours a dualist approach for the domestic application of international law, meaning that ratified treaties have to be incorporated into the domestic legal system to be relied upon in domestic courts. In regard to the legitimacy of capital punishment, the High Court and the Court of Appeal of Tanzania considered in Mbushuu whether a prohibition under national law existed on the grounds that it may amount to torture under international law, and therefore may violate article 13 of the Constitution of Tanzania, resulting in sections 196 and 197 of the Tanzanian Penal Code being unconstitutional. Article 13(6) reads: 'It is prohibited to torture a person, to subject a person to inhuman punishment or to degrading punishment.' In order to determine whether the death penalty violates article 13(6), the Court of Appeal considered the definition of torture as it is defined in article 1(1) of the Declaration on the Protection of all Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. [40]  Accordingly, torture means:

Firstly, the Court of Appeal claimed — by relying on Trop v Dulles [41]  and Tyrer v UK [42]  — that the concept of torture should be assessed by evolving standards of decency, meaning that it must be interpreted in present-day conditions as expressed by international law. [43]  The Court of Appeal then concurred with the comprehensive assessment of the High Court that, from the moment a death sentence is pronounced to the date of its execution, the offender may face severe mental pain and suffering. Due to its gravity of inherent cruelty, the Court of Appeal agreed with the High Court that the death penalty contains elements of torture. [44]

Certainly, torture does not include pain or suffering arising from, inherent in or accidental to, lawful functions. Therefore physical or severe pain or suffering brought about by the death penalty may not be unconstitutional. Moreover, the cited Declaration on the Protection of All Persons From Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the wording of article 1(1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 (CAT) present a limitation on the scope of such terms. [45]

However, even though the 'lawful sanction' restriction makes sense in abstracto when subsuming acts under the legal notion of torture, and even though it is disputable whether the imposition of the death penalty per se would fall under the aforementioned exception of the 'lawful sanction requirement', [46]  it is unclear why the Court of Appeal on the one hand held that the death penalty would amount to torture or cruel and inhuman treatment, yet on the other hand held that it must be legalised on grounds of the exception clause. One may wonder how the conclusion of the Court of Appeal, whereby the death penalty was cruel and inhuman, yet not unconstitutional, may be compatible with article 9(f) of the Tanzanian Constitution, which calls for a recourse to the Universal Declaration when interpreting the Bill of Rights. Particularly, in article 5 of the Declaration it is held: 'No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.'

Moreover, it is unfortunate that the Tanzanian Court of Appeal did not read articles 1 and 2 [47]  of CAT conjunctively. If the Court had considered a conjunctive reading of both articles, it would then have realised that, pursuant to article 2 of CAT, acts of torture may not be justified by any means, not even to prevent political instability, war or any other public act of emergency [48]  — let alone to justify it on grounds of 'lawful sanctions'. In this light, there was no room to justify torture, once it was (rightfully) declared that capital punishment would amount to torture or cruel, inhuman treatment. If the death penalty is labelled in such terms, it must amount to 'inhuman and degrading treatment per se'. [49]

Separate from the Mbushuu case, one may also argue (today) that, whereas it may have been reasonable in 1994 to declare the death penalty a legitimate practice, it is problematic to transfer such opinion to contemporary opinio juris in public international law. Even though the death penalty was not prohibited under customary international law in the last century, mostly due to the fact that article 6 of ICCPR and article 4 of the African Charter provided that '[n]o one shall be arbitrarily deprived of his life', but explicitly allowed for the death penalty in exceptional circumstances, [50]  there has been a major shift in state practice and opinio juris in the last decade. [51]  This can be seen by looking at the travaux préparatoires of the Statute of the International Criminal Court (ICC), which — as of 16 September 2009 — has been ratified by 110 countries, and signed by 139 countries. Surely, the fact that the ICC Statute excludes capital punishment may not lead to the presumption that all states that have ratified the ICC Statute would favour the abolition of the death penalty. Article 80 was included in the ICC Statute to counter this assumption. It is notable, however, that during the debate in Rome, most states opposed capital punishment, thus giving evidence of an emerging trend in favour of its abolition. [52]  One may therefore argue that nowadays there is wide agreement on the international stage that a reliance on article 6 of ICCPR to justify the death penalty has turned out to go foul on grounds of the maxims of jus posterius derogat priori and leges posteriors priores contrarias abrogant. [53]

Whereas the trend for abolishing the death penalty has recently gained strong international support, such understanding has a long European tradition, inter alia in Germany, on grounds of the idea that it violates human dignity. Here, the abolition of capital punishment is based on a 'three step ladder'. Step 1: Articles 1 to 19 of the German Constitution of 1949, covering the German Bill of Rights, explicitly recognise the right to human dignity, the right to life, and the maintenance of human rights. Article 1(1) declares: 'Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.' Article 1(2) holds: 'The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.' Article 2(2) declares: 'Every person shall have the right to life and physical integrity … These rights may be interfered with only pursuant to law.' Step 2: Article 102 explicitly recognises the abolishment of the death penalty by declaring: 'Capital punishment is abolished.' Step 3: Article 79(3) declares article 1 to be unchangeable by any means (the so-called 'eternity clause') by stating: 'Amendments to … the principles laid down in articles 1 and 20 shall be inadmissible.'

Due to the 'three steps' of the German Constitution, it is impossible to (re-) introduce the death penalty, even via an amendment of the Constitution. Despite the fact that articles 2 and 102 do not fall under the scope of article 79(3)'s eternity clause, and thus in theory leave open the door to allow for the death penalty, it is general opinion that an introduction would violate human dignity and fundamental human rights and, thus, article 1. Since article 1(2) is protected by the eternity clause and prohibits any levelling with other rights ('Human dignity shall be inviolable'), arguments for the introduction of the death penalty cannot be levelled against the preservation of human dignity. In the same light, article 79(3) itself cannot be changed (ie to then change article 1 to introduce capital punishment), as this would lead to argumentum ad absurdum of article 79(3)'s raison d'être, which has been written to ensure perpetuity. Similarly, the Charter of Fundamental Rights of the European Union declares in its article 1: 'The human dignity is inviolable. It must be respected and protected.' [54]  Article 1 of the Universal Declaration should be interpreted from this point of view when stating: 'We, the peoples of the United Nations, determined … to reaffirm faith in fundamental human rights, in the dignity and worth of the human person.'

The approach taken in Mbushuu to consider international human rights law when interpreting domestic Tanzanian law should be upheld and strengthened in the Tanzanian courts. Article 9(f) of the Constitution particularly calls for such inclusion by stating that 'human dignity is preserved and upheld in accordance with the spirit of the Universal Declaration of Human Rights'. Article 13(d) of the Constitution declares: 'For the purposes of preserving the right or equality of human beings, human dignity shall be protected in all activities pertaining to criminal investigations and process, and in any other matters for which a person is restrained, or in the execution of a sentence.' Article 13(e) holds: 'No person shall be subjected to torture or inhuman and degrading punishment or treatment.' 

Regarding the imposition of the death penalty, the Tanzanian Court of Appeal is invited to reconsider its position and declare that the protection of human dignity categorically [55]  prohibits the imposition of the death penalty. [56]  If nevertheless the Tanzanian Court of Appeal claims that the imposition of the death penalty does not violate the dignity of a person per se, at least international human rights law requires the punishment to take place in keeping with the fundamental respect for the intrinsic worth of human beings. It is thus illegal to impose capital punishment via hangings (Furman v Georgia) [57]  or shootings. Finally, the death penalty must not be executed against minors, [58]  pregnant women [59]  and the mentally ill. [60]

4.2  The right to life in Tanzanian constitutional context

In Mbushuu, the Court of Appeal ruled that the death penalty would amount to 'torture', finding that the death penalty as provided for under sections 196 and 197 of the Tanzanian Penal Code 'offends' article 13(6) lit (a) and (e) of the Constitution as it violates the inherent duty of the state to protect the right to life. Yet sections 196 and 197 were not considered to be unconstitutional due to the overriding principles incorporated in article 30(2) of the Tanzanian Constitution. [61] 

It has to be noted that the Tanzanian Constitution indeed allows civil rights to be weighed against public interests. Article 30(2) allows derogation on the following grounds:

As has been held by Bahati, [62]  the Tanzanian courts dealt with the interpretation of article 30(2) in two cases, Daudi Pete v AG [63]  and Kukutia Ole Pumbum v AG. [64]  In the latter case it was held:

In Mbushuu, the Court of Appeal labelled sections 196 and 197 as 'non-arbitrary', and therefore lawful and reasonably necessary in order not to violate the Constitution. Interestingly, the element of 'non-arbitrariness' is also included in article 6 of ICCPR. Despite the fact that article 6 of ICCPR and article 4 of the African Charter allow for the death penalty on a non-arbitrary basis, it seems doubtful whether such reasoning is applicable to strict constitutional context, [65]  if the Kukutia standard is applied seriously.

Clearly, 'arbitrary' can be understood in different ways: If considered in terms of article 6 of ICCPR, 'arbitrary' means 'illegally and unjustly'. [66]  From a normative point of view, such interpretation lacks substance. It is hardly imaginable that unjust treatment could be legal nevertheless, as the fulfilment of justice should be the outcome of law. Hence, 'arbitrary', if understood this way, is nothing but 'fairness', yet in this case — due to its vagueness — hardly a justifiable constitutional assessment factor to determine whether the taking away of life may be legitimate.

The Court of Appeal interpreted 'arbitrarily' — by relying on the findings of Kukutia and the Twentieth century dictionary — to mean 'not bound by rules, despotic, absolute; capricious; arising from accident rather than from rule', or, in more simple words one may say, acts of randomness. From this definition, and due to the fact that a person convicted of murder must have undergone a full trial and then, in practice, an appeal, the Court concluded that the process leading to the imposition of the death penalty can 'never be despotic'.

The Court thereafter noted that if the law does not provide for diminished responsibility and while that 'may be unfortunate', it is 'definitely not arbitrary because the court arrives at its decisions following rules and not accidentally'.  The Court then admitted that an innocent person may be executed in error, but even in such a case, it is not a matter of arbitrariness but rather of mistake or fraud. Responding to the defence attorney's concern about the role of the President in deciding whether to accept the recommendation of the Court, the Court of Appeal finally stated that the 'presidential pardon is outside the court process' and his decision whether to accept the recommendations or not 'cannot make matters any worse for the condemned prisoner'. In conclusion, section 197 'cannot be arbitrary because it merely provides punishment to a person convicted under the provisions of law'.

The findings of the Court of Appeal seem to be misleading. Firstly, it is circular to hold that the imposition of the death penalty could be justified by the system that is imposing the punishment. Secondly, there is a difference between the trial procedure and the enforcement of sentences. A trial can be fair in regard to due process and imposition of the verdict, yet unfair in regard to sentencing and execution. Particularly the non-imposition of death sentences, and the creation of the 'death row phenomenon', render any link between trial proceedings and execution in regard to the justification of the death penalty valueless. Thirdly, the principle of 'arbitrariness' has been interpreted too narrowly in a constitutional context to conform to the Kukutia standard. 'Arbitrary', from a legal perspective, is hardly comparable to a decision based on formal randomness, but represents an infringement of the maxim of 'equal treatment'. In this regard, 'equal treatment' is often described in such terms that the comparable must be treated comparably just as the non-comparable must be treated non-comparably ('Willkür [= arbitration] Formula'). [67]  A mere reliance on the formality of 'legal rules' to determine the randomness of an act — and thus constitutionality — cannot be convincing here, because in a constitutional context, it is questionable if the law itself is arbitrary.

The Court of Appeal (by at least formally applying the Kukutia standard) also reverted to a 'proportionality test' to assess whether the Constitution had been violated. [68]  Yet again, the Court of Appeal came to a rather unusual finding by holding that a violation of human dignity can be levelled against state interests on the basis of common public opinion. [69]  The Court of Appeal declared:

Article 30(2) of the Tanzanian Constitution displays the bifurcation structure of every civil right in constitutional context. Surely, no legal provision may contravene fundamental values of society, as constitutional civil rights serve as an objective value order (Objektive Werteordnung) for the society as a whole, creating indirect horizontal effects (mittelbare Drittwirkung) between the citizens throughout the socio-legal system. [70]  However, laws are created through legal processes and institutions — particularly parliament. If it was the 'opinion of society' to concretely decide over the constitutionality of a legal provision, one must be aware of the consequences, let alone that in casu the Court of Appeal did not cite any authority which would support its finding. [71]  In regard thereof, the Court's burden of proof [72]  would be vested in the fact that constitutional civil rights in a free society are predominantly defensive rights of the citizen against the government, thus requiring the state to base its intrusion on sound legal grounds, or refrain from such actions. [73]

Finally, one might wonder why the Court of Appeal considered international law, but then concluded that Tanzanian opinion should decide the case in singularis. Even if article 14 — as it is proclaimed by the Court — should 'lie in between the two sets' of international and domestic law, this is not adequately reflected by the outcome of the judgment as the Court of Appeal did not give sound justifications why the imposition of the death penalty should conform to international human rights law standards.

4.3  Interdisciplinary considerations in favour of the abolition of the death penalty in Tanzania

It is an assumption that the imposition of the death penalty is an effective and adequate measure for the reduction of crime. [74]  Firstly, the protection of society does not require the physical elimination of criminals, which makes capital punishment an action that is not necessary and, thus, lacks proportionality and reasonability.

Secondly, it seems questionable if capital punishment is an 'appropriate reward' for the detained as the delay in carrying out the sentences, in conjunction with the conditions under which the detained are incarcerated, is a breach of the right not to be subjected to degrading treatment. Waiting for the execution of the death penalty for long periods of time may amount to torture — even if the 'function' is lawful, as has been held in Republic v Mbushuu — due to the inhumanity of form and length while treating the detained (the so-called 'death row phenomenon' [75] ). The recent incidents at the (attempted) execution of Romell Broom in the Lucasville Prison in Ohio, USA, have showed that the procedure itself of putting a person to death may amount to horrible suffering. [76]

Thirdly, the ineffectiveness of the death penalty and other cruel punishment has been proven by a number of studies, conducted in different countries, which show that the death penalty does not contribute to a reduction in the crime rate. [77]

In Canada for example, the homicide rate per 100 000 people in 1975 (before the abolition of the death penalty for murder) was 3,09. The study carried out in 1980 after the abolition of death penalty showed that there was a decrease of the homicide rate per 100 000 to 2,41. Also, whereas in 2000, the United States of America had 5,5 homicides per 100 000 people, in Canada there was a rate of 1,8 per 100 000 people. [78]  One of the surveys conducted by Hood even concluded that the increase in homicides in those countries that uphold the death penalty, could be reduced by diminishing their reliance upon capital punishment. [79]  It is worthwhile to argue here that a criminal does not commit a capital crime by calculating the possible sanction, since the sentence will turn out to be grave, regardless whether the death penalty will be imposed or not. Moreover, many commissions of capital crimes are grounded on base motives, thus hardly dependent upon cool rationale. Due to the fact that the efficiency of the sanction is not yet felt, there is no reason as to why the death penalty should be upheld.

Finally, the political system in Tanzania creates room for abuse of power and arbitrariness, as the executive arm of the state has extreme influence over other organs and branches, [80]  including the judiciary. 

The Tanzanian Constitution guarantees the independence of judges. The Preamble of the Constitution calls for a judiciary 'which is independent and dispenses justice without fear or favour, thereby ensuring that all human rights are preserved and protected and that the duties of every person are faithfully discharged'. [81]  Also, chapter V of the Constitution displays the functioning of the judicial system in comprehensive terms.

It is interesting to note, however, that the President can influence the judiciary through the persons he appoints. He appoints the following: the principal judge and other judges of the High Court; [82] the Chief Justice of the Court of Appeal [83]  and other justices of the Court of Appeal after consultation with the Chief Justice; [84]  the Registrar of the Court of Appeal and his or her deputy; and the Registrar of the High Court and his or her deputy. [85]  The President also appoints two out of six members of the judicial service commission, [86]  which has the power to discipline as well as to remove judicial officers other than the Chief Justice and higher judges, [87]  and decides over the confirmation and promotion of such persons serving on the Commission. [88]  The President may play a certain role in the removal of judges [89]  and can elongate tenure of office of judges of the High Court and justices of the Court of Appeal beyond statutory requirements. [90]

Due to the President's decisive role in the selection and promotion of judges at the High Court and Court of Appeal level, he may put pressure on judicial independence in crucial issues, such as the constitutionality of the death penalty. It is important to realise that the President may also directly influence the outcome of court decisions, and thus render undesired decisions of the courts void. According to articles 45(1)(a) and (b) of the Constitution, the President may grant pardons to any person convicted by a court of law of any offence — including murder and treason — and may grant pardons for the execution of sentences for any offence — including capital punishment. Hence, the final question of whether a person must face the death penalty is dependent upon an arbitrary decision of the President, [91]  and not based on a fair and impartial process.

The accumulation of power of the President already seemed to have real effects on the independence of the judiciary. There have been occasional allegations that the executive influences the judiciary to press for death penalty indictments against (innocent) people opposing the government, particularly by instituting cases of treason against them. Particularly, there has been a case of this nature in Zanzibar, though the accused were not convicted. [92]  Also, the former President of Tanzania, Julius Kambarage Nyerere, expressed his concern that magistrates were giving — in his opinion — lesser sentences than he would like to have seen in relation to systemic criminal actions or civil unrest.

Finally, the issue of corruption has direct implications on the legitimacy of capital punishment. As corruption exists in the Tanzanian government, it hinders the impartial application of due process of the law (even) when the death penalty is to be imposed. [93] 

5.  The future

Due to legal and socio-cultural difficulties mentioned, Tanzania still has a long way to go to abolish the death penalty. Yet, Tanzania — despite all its problems — is a stabilising factor in the sub-Saharan region and has made serious efforts in regard to the promotion of human rights. Besides Tanzania's ratification of the African Charter on 10 February 1984, and ICCPR, it was a forerunner on the issue of refugee and diaspora treatment until the 1990s when the 'open door policy' was reversed.

It is argued here that Tanzania should revitalise this spirit by considering abolishing the death penalty. Indeed, after years of a lack of interest and despite current overweighing opinio juris that capital punishment should not be lifted, [94]  there have been recent efforts, mainly created by non-governmental organisations (NGOs) active in the country. In June 2007, a death penalty report was launched by LHRC-Tanzania, ZLSC-Zanzibar, CARER-Malawi and DITSWANELO-Botswana, aiming at the abolishment of the death penalty in the SADC region through research to examine the legal status and trends of the death penalty in the respective countries and by using the information acquired from the research to determine effective strategies for campaigning. Although the effects of this report are not yet felt by ordinary citizens in Tanzania, the truth is that it remains a remarkable development. After the presentation of the NGO report, the ball was handed back to the government of Tanzania. In 2007, a Law Reform Commission was set up to evaluate changes in the Tanzanian legal system. The outcome was positive: Judge Bahati, the President of the Commission, is in favour of abolishment. [95]  Furthermore, in an interview, Tanzania's Minister of Justice, Mary Nagu, declared that she would generally be open to its abolishment, if backed by the opinion of the people. [96]  Convincing the public in a country where Albinos are still killed due to their alleged 'magic white powers' [97]  will not be easy. However, there are grounds to believe that the majority of Tanzanians can be persuaded to abolish death penalty sentencing.

During a debate organised on World Day Against the Death Penalty (10 October 2004), almost all speakers except two were in favour of the abolition of capital punishment. [98]  A report that was conducted by the Nyalali Commission as long as 13 years ago revealed that a considerable number of Tanzanians did not favour capital punishment. [99]  Finally, Tanzanians gave attention to the practice of the ICTR, which has its seat in Arusha, Tanzania, and does not practise death penalty sentencing. It will be up to the Tanzanian government not to shy away from this mandate [100]  to carry out impartial research on the subject and to turn words into actions. The High Court could strengthen the movement to abolish to death penalty by (again) declaring it to be unconstitutional. The LHRC, the Tanganyika Law Society, the Tanzania Chapter of the Southern Africa Human Rights NGO Network, and the ZLSC filed a petition in the High Court in October 2008 to have the death penalty declared unconstitutional. [101]  As of 16 September 2009, the case awaits a trial date. [102]