Row convicts win big at Africa court

Dar es Salaam. The African Court for Human and Peoples’ Rights (AfCHPR) yesterday made the consequential order that Tanzania takes steps to expunge from its Penal Code the mandatory imposition of the death penalty in murder cases.

This order is to be implemented within one year of the notification of the judgment, according to a statement availed to The Citizen.

The directive was made yesterday when the court delivered an appellate judgment in the case of Ally Rajabu, Angaja Kazeni, Geofrey Stanley, Emmanuel Michael and Julius Petroare (all Tanzanians) against the United Republic of Tanzania. The applicants - who were handed capital punishment by a Tanzanian court for murder - are detained at the Arusha Central Prison.

Regarding the arbitrary nature of the imposition of the death penalty, the court relied on the jurisprudence of the African Commission on Human and Peoples’ Rights to establish three criteria for assessment on whether the ultimate penalty is imposed arbitrarily.

The criteria are: the sentence must be provided for by law; it must be imposed by a competent court; and, thirdly, it must abide by due process.

Having established that the death penalty is provided for in the Tanzanian Penal Code - and that both the High Court and the Court of Appeal were competent to impose the sentence - the Court then proceeded to examine whether the imposition as provided for was in abidance with due process.

“The Court found as a consequence that the mandatory provision and imposition of the death sentence under the respondent state’s Penal Code does not uphold fairness and due process as guaranteed under Article 7(1) of the Charter,” reads the statement in part.

Referring to a joint reading of Articles 1, 7(1) and 26 of the Charter, the Court said due process encompasses not only procedural rights, but also any rights related to the sentencing process - especially the discretion of courts to take into account the particular circumstances of the accused

Earlier, the Applicants had alleged that - by providing, in Section 197 of its Penal Code, for the mandatory imposition of the death penalty - the respondent state violated their right to life, which is guaranteed by Article 4 of the African Charter on Human and Peoples’ Rights.

However, the respondent state submitted that the provision for the death penalty in its laws is in line with international norms, which do not prohibit imposition of that sentence.

The applicants further alleged that their execution by hanging until dead as ordered by domestic courts violates their right to the dignity protected under Article 5 of the Charter.

On March 18, 2016, the Court issued an order for provisional measures in the matter enjoining the Respondent State (Tanzania) not to implement the death sentence until this Application is concluded on the merit.