TALKING POINT : How verdict on Bageni jump-started the Katiba debate

At a time when debate on the constitution is restarting ahead of the envisaged second phase of Tanzania’s constitution review process, the Court of Appeal has delivered its verdict in the appeal filed against the acquittal of former Dar es Salaam Regional Crime Officer Abdallah Zombe and three others.

While the court upheld the acquittal of Zombe and two other people, it sentenced Christopher Bageni (pictured), former head of criminal investigation in Kinondoni District, to death for ordering the murder of four people in Dar es Salaam in January 2006. Three traders from Ifakara District and a taxi driver were killed in cold blood in a forest in Mbezi Luis in the city.

Last week’s court verdict came at a time various sections of the citizenry were calling on the Fifth Phase government under President John Pombe Magufuli to restart the constitution review process and pave the way for inclusion of issues that did not find their way into the Proposed Constitution passed by the now-disbanded Constituent Assembly in 2014. One of the proposals that were rejected at the time, despite intense lobbying for its inclusion, was the outlawing of the death penalty.

At the moment, there is a very ambiguous constitutional regime on capital punishment. The Constitution of Tanzania of 1977 provides for the right to life in Article 14 but only in a weak and limited manner. On the other hand, the law provides for the death sentence, which is the punishment for two capital offences, namely murder and treason.

According to Section 197 of the Penal Code (Chapter 16), “Any person convicted of murder shall be sentenced to death.” This is a mandatory requirement that leaves the court with no option but to pass the death sentence upon the conviction of a person. Only two categories of people are exempted – women who are pregnant and persons under the age of majority, who face life imprisonment upon being convicted of murder or treason in line with Section 26 of the Penal Code.

Unfortunately, none of the above grounds suit Bageni as he is neither an expectant mother nor a minor.

While treason carries the death penalty in line with sections 39 and 40 of the Penal Code, there is a relief for “misprision of treason” under Section 41.

The ruling has deeply divided the nation. There are those who argue that the slain men had the right to life and that Bageni deserves to die by hanging since evidence of his involvement in the murder was overwhelming and irrefutable. They are of the view that the Court of Appeal has accurately construed the capital punishment statutes. On the other hand, there are advocates of the law as a corrective tool, arguing that death should not be punished with death.

These human rights activists argue that meting out capital punishment to Bageni amounts to committing another murder, albeit legally. As far as they are concerned, murder is a wrong that cannot be righted with murder. Furthermore, they contend that a person who commits murder should be helped to regret the act and commit not repeat it by being given another chance. This line of advocacy concludes that death should not be a statutory punishment. According to this line of thinking, Bageni deserves nothing more than life behind bars.

Unlike murder, there is no record of a person in Tanzania who has been sentenced to death for treason. All along, the courts have always interpreted the phrase used for treason as merely setting the maximum punishment for the offence, and that the death penalty is not mandatory. Unfortunately, the wording used to describe punishment for murder is expressly mandatory and authoritative. The Court of Appeal may have found itself limited to one option only, which is the death sentence.

I wish to join those who have put the death penalty under intense scrutiny. In the early 1990s, the Nyalali Commission recommended that capital punishment be abolished for being a “barbaric form of punishment and therefore unsupportable”. Several years later, Justice James Mwalusanya famously held that the death penalty was “inherently cruel, inhuman and degrading”.

Last week’s verdict by the Court of Appeal opened a Pandora’s box and the constitution review debate is once again sharply in focus. Let’s engage in it.

Deus Kibamba is trained in political Science,InternationalPolitics and InternationalLaw