We can’t change death penalty - Tanzanian high court

A full bench of three high court judges has re-affirmed that the mandatory death penalty in Tanzania is constitutionally valid. No new factors had been given to the court to indicate that anything had changed since the last time the issue was considered by the judiciary, said the judges, so they could not vary the previous decisions or rehear the issue ‘on the same facts’. But, they said, the issue could be taken to the highest court via review if the petitioners felt strongly about the matter.

Read the judgment

Perhaps the most interesting sentence in the whole judgment is a quotation that comes from a 1995 Court of Appeal decision. The court wrote, ‘We may observe here that we are aware of the drive to abolish the death penalty worldwide. But that has to be done, as the learned Trial Judge has aptly put it, by deliberate moves ‘to influence public opinion in a more enlightened direction’.’

Almost 25 years later has there been any deliberate move to influence public opinion in Tanzania towards what both the high court and the court of appeal described as a ‘more enlightened direction’? One such step came, ironically enough, from the country’s President, John Magufuli. During the swearing in of Ibrahim Mahis Juma as Chief Justice in 2017, the President said in as many words that he would not sign off on executions.

On that occasion he said he could not make this ‘difficult decision’ to execute people on death row. He added, ‘I am aware of the difficulties in implementing such sentences, so I am telling the courts not to submit to me the list of names of the prisoners who are in line to be hanged ….  I am told there are many people waiting to be executed, but please don’t bring the list of those people to me. As politicians, we are not happy about carrying out such death sentences.’

Those were clearly remarks that would have tended to ‘influence public opinion in a more enlightened direction’. But neither the president, nor the courts, have moved forward since then.

The latest effort to challenge the death penalty came from Tanzanian legal practitioner and human rights activist, Jebra Kambole. He asked that the Penal Code provisions for the mandatory death penalty be declared unconstitutional. He also asked that the death penalty provision should be ‘immediately expunged’ and that the Attorney General make it a priority to prepare guidelines for resentencing. Meanwhile, those already convicted under the death penalty law should have the right to appear before the courts and give evidence in mitigation before being re-sentenced.

In the view of the court there appeared to be a slip up in the papers because it was not clear that Kambole wanted the ‘mandatory’ nature of the death penalty to be scrapped, rather than the death penalty itself. But ultimately this did not matter, said the judges, because the two issues were inextricably intertwined.

Counsel for Kambole said that while the highest court had previously found the death penalty itself constitutional, that court had not considered the constitutionality of the ‘mandatory imposition of the death sentence’.

In this latest case the three judges in no way grappled with the problem of the mandatory nature of the death penalty, merely finding they were bound by the earlier decisions of the Court of Appeal which found capital punishment was indeed constitutional.

As to the examples of other countries that had retreated from ‘mandatory’ imposition of the death penalty, they were airily dismissed as being ‘only of persuasive value’ to the court and were not considered at all in the judgment. Interesting, given that foreign decisions were dismissed as of no help on this issue, to find that the judges were later ‘inspired and guided’ by decisions of the Supreme Court of India on another question, favourable to the Attorney General this time, on ‘the doctrine of res judicata as it applies in public interest litigation cases’.

If the judges had been prepared to look a little closer to home than India on an issue that favoured the applicant, they might have allowed themselves to be ‘inspired and guided’ by the Supreme Court of Kenya for example. They would have found that while that court made no decision on the constitutionality of the death penalty itself, the judges were not prepared to countenance law that deprived judicial officers of their ‘judicial discretion’, particularly in matters of life and death.

They would also have found that the Kenyan apex court said, about the compulsory nature of the penal code provisions on the death penalty: ‘The mandatory nature deprives the courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases.’

Consider the sentences that judges in many jurisdictions have found appropriate in murder cases even in countries where capital punishment is still retained. They range from the death penalty to fewer than 10 years on occasion, making it clear that there are indeed mitigating factors that could influence sentence if judges were not obliged to impose the ultimate punishment for every murder conviction.

Given the check on judicial discretion that goes with the mandatory death penalty, some interesting questions have to be asked. Will Kambole take up the offer by the three high court judges? Are his views on capital punishment and the result of this most recent case strong enough to motivate him to ask that the Court of Appeal review the issue of a mandatory death penalty – even the death penalty itself?

While those difficult - and expensive - questions are considered, the untenable stalemate position continues: More than 500 prisoners sit on death row, their numbers constantly growing. While the President refuses to sign anyone’s death warrant, the courts continue to send more and more to join the waiting list for the non-existent hangman’s noose – and parliament does nothing.