COURTS within the United Republic of Tanzania will continue to enforce the death sentence imposed to persons convicted of murder or treason. This followed the landmark judgment delivered by the High Court in Dar es Salaam yesterday after dismissing the constitutional petition lodged by upcoming Advocate Jebra Kambole.
Judges Ama Munisi, Elinaza Luvanda and Benhajj Masoud ruled in favour of the Attorney General (AG) that the issue on constitutionality of death penalty is res judicata.
Res judicata means “a matter that has been adjudicated by a competent court and therefore may not be pursued further by the same parties.” In the case of res judicata, the matter cannot be raised again, either in the same court or in a different court. A court will use res judicata to deny reconsideration of a matter.
In their well-researched judgment, the judges pointed out that the issue under litigation has already been decided by the Court of Appeal of Tanzania in 1995 in the case of Republic vs Mbushuu alias Dominic Mnyaroje and another.
In that case, one of the central issues for determination was whether the death penalty is one of the instances where due process of law would deny a person his right to life and its protection and contravened article 13(6)(d) and (e) of the Constitution.
The Court of Appeal had held that Article 13(6) (d) seeks to protect the dignity of a person in the execution of a punishment. Torture, inhuman punishments and degrading punishments are prohibited.
Punishments which are not prohibited, have to be executed in such a way as to protect the person’s dignity. It also held that, “The death penalty as provided for in s. 197 of the Penal Code was not arbitrary and was a measure reasonably necessary to protect society and is therefore saved by article 30(2) of the Constitution. It was therefore not unconstitutional.”
After delivery of the judgment, Advocate Frank Masawe, for the petitioner, said his client has not been satisfied by the High Court’s decision and they were waiting for copying of the necessary court documents so that they could appeal to the Court of Appeal for further adjudication.
He said that the High Court judges failed to grasp the concept of the petitioner’s case, which mainly centred on the mandatorily imposition of the death sentence.
He said that judges should be given opportunity to weigh circumstances leading to commission of offence before pronouncing sentence. Advocate Kambole had petitioned for nullification of the law on death sentence on claims that it is unconstitutional.
He was against section 197 of the Penal Code, which reads, “Any person convicted of murder shall be sentenced to death.” The death sentence in Tanzania is executed by hanging to death.
The law requires heads of state of countries in which the death sentence is still in practice to use their powers of signing death warrants, pardoning the convicts or ordering the sentence to be substituted and commuted for any other punishment.
There has been a heated debate among activists with some opposing and other supporting the sentence. Most supporters believe the death penalty is justifiable on some grounds. Among the reasons is that death sentence acts as a means of retribution, as a deterrent to others, as a prevention of the danger of re-offending and as a cheapest way of keeping inmates.
However, the Law Reform Commission of Tanzania is on record insisting that currently there is no justification to implement the call for abolition of such sentence. It is stated that the Commission conducted several researches on the same subject after which results showed that majority wanted the capital punishment to stay.
At some point in time, the then Court of Appeal Justice Angela Kileo, had been giving dissenting judgment against enforcement of the law on death sentence.
In an appeal involving a resident of Bukoba, Dominick Damian, who killed his mother on suspicious that she was bewitching him, the justice refused to agree with two other members of the bench, who endorsed the sentence passed against him by the High Court.
Justice Kileo was of the views that the life imprisonment sentence would have been proper to be imposed after the conviction of murder as she believed death sentence “is unconstitutional.” She noted that the death penalty was inherently an inhuman and degrading punishment and it is also so in its execution, offending Article 13 (6) (d) and © of the Constitution of United Republic of Tanzania.
According to her, death was one penalty which makes error irreversible and that chance of error was inescapable when based on human judgment. In Tanzania, she said, “we cannot boast to have a perfect investigation, prosecution and trial system. We may have condemned people to death who did not commit the crime.”
The justice pointed out that the death penalty is the premeditated and cold-blooded killing of a human being by the state. Justice Kileo further observed that such punishment violates the right to life as proclaimed in the Universal Declaration of Human Rights as well as the right to life which is protected in the country’s Constitution.
“I am of the humble view also that since we do not give life, then we have no right to take it, no matter what the other person has done. It is only God who gives life and it is Him alone who should take it,” she concluded.
Tanzania still retains death penalty in law, but has had a de facto moratorium on executions since 1994. Despite such move, the government remained undecided on the question of abolishing the death penalty.
For long time hundreds of prisoners convicted to death penalty have continued to be on death row waiting to be hanged. Human rights activists view this as mental and psychological torture inflicted to prisoners on death row.
International human rights instrument has guaranteed this right as the most sacrosanct in a number of treaties and international instruments, including the African Charter on Human and People’s Rights (ACHPR), 1981, the Universal Declaration of Human Rights.
He says that even the mother law, the Constitution of the United Republic of Tanzania, 1977, guarantees the right to life, yet such right to life continues to be violated through laws that impose the death penalty in Tanzania.
It is alleged that about twothirds of the world’s nations have abolished the death penalty either in law or in practice, but there are still many countries still performing executions.