F Mwalusanya J:
I INTRODUCTION
The two accused Mbushuu alias Dominic Mnyaroje (first accused) and Kalai s/o Sangula (second accused) were on 13 May 1994 convicted of murder contrary to s 196 of the Penal Code cap 16 by this Court. They were supposed to get a death G penalty by virtue of s 197 of the Penal Code, and the death penalty is to be by hanging as per s 26 of the Penal Code. Before the death penalty was imposed, counsel for the accused (on dock brief) Mr Rweyongeza raised a point to the effect that the death penalty is unconstitutional and so it should not be imposed. Three points were raised concerning the unconstitutionality of the death penalty - first H that it offends the right to dignity in the execution of a sentence provided for in article 13(6)(d) of the Constitution; secondly that the death penalty is a cruel, inhuman and degrading punishment and treatment prohibited by article 13(6)(e) of our Constitution; and thirdly that the death I
penalty offends the right to life as provided in article 14 of our Constitution. The A Attorney-General was duly served with summons to appear as required by s 17A(2) of the Law Reform (Fatal Accidents & Misc Provisions) Ordinance cap 360 as amended by Act 27 of 1991. And Mr Mwambe learned State Attorney duly appeared on behalf of the Attorney-General. B
At the outset I wish to point out some of the general principles that will guide me in arriving at my conclusion at the end of the day. First I take it that a constitution and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a C generous and purposive construction - see the decision of the Privy Council in AG of The Gambia v Momodue Jobe (1) at 700 as per Lord Diplock. The Privy Council repeated that doctrine in Minister of Home Affairs v Fisher (2) where Lord Wilberforce at 329 stated: D
`The way to construe a constitution on the Westminster model is to treat it not as if it were an Act of Parliament but as sui generis, calling for principles of interpretation of its own, suitable to its character, without necessary acceptance of all the presumptions that are relevant to legislation of private law. The Constitution calls for a generous interpretation avoiding what has been called the "austerity of tabulated legalism", suitable to give to individuals the full measure of the fundamental rights and freedoms referred to.' E
And in the same vein, as counsel for the petitioners Mr Rweyongeza has pointed out, the Court of Appeal of Tanzania in the case of Kututia Ole Pumbun & anor v F AG (3) stated at page 11 of the typed judgment (as per Kisanga JA) that; `Any law that seeks to limit fundamental rights of the individual must be construed strictly to make sure that it conforms with these requirements, otherwise the guaranteed rights under the Constitution may easily be rendered meaningless by the use of G the derogative or claw-back clauses of that very same Constitution.' And also relevant is the decision of the Tanzania Court of Appeal in AG v Lesinoi s/o Ndeinai (4) which it held that a constitutional provision should not be construed so as to defeat its evident purpose, but rather so as to give it effective operation. H
Connected to the above principles is the question of burden of proof. I think there are two situations. First on whom does the burden of proof lie to establish that there has been a violation of a basic human right? Secondly, once it has been established that there has been a violation of a basic human right, on whom does I
A the burden of proof lie to show that the violation has been saved by the Constitution? In the first situation the matter was put clearly by the Privy Council in the case of Riley & others v AG of Jamaica (5) at 480 that it was on the person attacking the death penalty to be unconstitutional to prove on a balance of B probabilities that it is a cruel, inhuman and degrading punishment. The Supreme Court of Zimbabwe in the case of Catholic Commission for Justice and Peace v AG & others (6), as per Gubbay CJ stated that: `I consider that the burden of proof that a fundamental right, of whatever nature, has been breached is on him who asserts it. In relation to article 15(1) of the Constitution the issue of whether an C individual has been subjected to torture or to inhuman or degrading punishment is essentially a matter of fact and ordinarily some evidence would have to be adduced to support the contention. The respondent is not obliged to do anything until a case is made out which requires to be met.' I accept that to be the correct Dposition even here in Tanzania. As regards the second situation the case decided by the Court of Appeal of Trinidad and Tobago of AG v Morgan (7) correctly stated on whom the burden lies where it stated; `Where an Act is passed into law and E that Act is one that restricts the rights and freedoms of an individual, in order to impugn such an Act, all that the individual is required to do is to show that one or more of his rights has been restricted. Having done so, because of the expressed constitutional policy, the burden is then shifted to the proponents of the Act to F show that the provisions of the Act restricting such rights and freedoms are reasonable restrictions. If the proponents of the Act fail to discharge this burden, then a Court of competent jurisdiction may pronounce against the validity of the impugned Act.'
I agree with that proposition of law. That means the petitioner has only an evidential burden of proof and the State has to prove on a balance of probabilities G that the violation of the basic human rights has been saved by the Constitution. That is exactly what was decided also by the Court of Appeal of Botswana in the case of The State v Petrus (8) at 722 as per Aguda JA. The decision of the Court of Appeal of St Christopher and Nevis in the case of AG v Edmund s/o Lawrence H (9) which suggests that the petitioner has to establish a prima facie case that the law impugned is unconstitutional before the onus shifts to the Republic, was in my view wrongly decided. The petitioner does not have to establish a prima facie case but just raise the matter (evidential burden) that a particular piece of legislation is ex-facie ultra vires the Constitution then the onus shifts to the Republic. It is just similar to the defence of I
intoxication in the case of murder, where the burden of proving that the accused A was capable of forming the intent necessary to constitute the offence of murder always remains on the prosecution, and such a burden is not discharged if the probability emerges from the evidence (either from the evidence of the prosecution or the accused) that the accused was incapable of forming the intent - see the B decision of the East African Court of Appeal in Kahekeya Buzoya v R (10). So similarly the petitioner has just to raise the fact that a particular piece of legislation violates a basic human right, and he does not have to establish a prima facie case before the burden of proof shifts to the Republic.
Finally I am of the considered view that international human rights instruments and C court decisions of other countries provide valuable information and guidance in interpreting the basic human rights in our Constitution and so a judge in my present situation should look to them and draw upon them in seeking a solution. As the Chief Justice of Zimbabwe Gubbay CJ has pointed out in (1990) D Commonwealth Law Bulletin vol 16 No 3 at 999: `A judicial decision has greater legitimacy and will command more respect if it accords with international norms that have been accepted by many countries, than if it is based upon the parochial experience or foibles of a particular judge or court.' E
And the Chief Justice of Tanzania Mr Justice Nyalali in the case of AG v Lesinoi s/o Ndeinai (4) at 222 states that when basic human rights are at stake or the question of interpretation of a constitutional provisions arises then: `On a matter of this nature it is always very helpful to consider what solutions to the problems F other courts in other countries have found, since basically human beings are the same though they may live under different conditions.' Suffice to state here that the Bangalore Principles (1988) pronounced by a distinguish Judicial Colloquim and later adopted at Harare (1989), Banjul (1990), Abuja (1991) and Balliol (1992) speak the same message above expounded. Let it be noted that Nyalali CJ G attended the Harare Judicial Colloquim, while Ramadhani JA attended the Balliol (Oxford, England) Judicial Colloquim.
II THE RIGHT TO DIGNITY AND THE RIGHT AGAINST CRUEL, INHUMAN AND DEGRADING PUNISHMENT AND TREATMENT H
The right to dignity under article 13(6)(d) and the right against cruel, inhuman and degrading punishment and or treatment under article 13(6)(e) will be discussed under one rubric. This is because the right to dignity referred to in that provision is concerned with the pre- I
A servation of dignity in the execution of a sentence. And it is my view that a person who has been subjected to a degrading treatment has also been deprived of his right to dignity.
I also wish to point out at the outset that a punishment is either inherently cruel, inhuman and degrading or the mode or manner of execution of the punishment is B cruel, inhuman and degrading. That much was pointed out by the Court of Appeal of Botswana in the case of The State v Petrus (8) and by the Supreme Court of Zimbabwe in the case of Ndlovu v The State (11). It is the case for the petitioners that the death penalty is both inherently a cruel, inhuman and degrading C punishment and that its mode or manner of execution is also cruel, inhuman and degrading. And it is my finding that the term `torture' used in our Constitution is the equivalent of the term `cruel' that I will hereinafter use.
D And it will be important to remember that concepts such as `cruel, inhuman, and degrading' are subject to evolving standards of decency. They are not immutable. And that is what we learn from the US Supreme Court in the cases of Trop v Dulles (12) at 101; and Estelle v Gamble (13) at 102. Thus punishment or treatment incompatible with the evolving standards of decency that mark the E progress of a maturing society or which involve the infliction of unnecessary suffering is repulsive. What might not have been regarded as inhuman decades ago may be revolting to the new sensitivities which emerge as civilization advances.
F (a) The death penalty is inherently cruel it was submitted on behalf of the two petitioners. It is said the process of execution by hanging is particularly gruesome. One leading doctor described the process as `slow, dirty, horrible, brutal, uncivilized and unspeakably barbaric'. The prisoner is dropped through a trapdoor, to eight and a half feet with a rope around his neck. The intention is to G break his neck so that he dies quickly. The length of the drop is determined on the basic of such factors as body weight and muscularity or fatness of the prisoner's neck. If the hangman gets it wrong and the prisoner is dropped too far, the prisoner's head can be decapitated or his face can be torn away. If the drop is too short then the neck will not be broken but instead the prisoner will die of H strangulation. There are many documented cases of botched hangings in various countries including Tanzania. There are a few cases in which hangings have been messed up and the prison guards have had to pull on the prisoner's legs to speed up his death or use a hammer to hit his head. The shock to the system causes the prisoner to lose control over his bowels and he will soil himself. I
In short the whole process is sordid and debasing. Not only is the process A generally sordid and debasing, but also it is generally brutalizing and thus defeats the very purpose it claims to be pursuing. The brutalizing effect of executions has been amply documented - see `Legal Homicide: Death as Punishment in America from 1864 to 1982' (1984) 2nd ed at 271-335 by William J Bowers and G B R Pierce; and the book `The effect of Executions is Brutalization, not Deterrence' (1988) by William J Bowers, Kenneth A Haas and James A Inciardi (editors).
It was argued for the petitioners that the State continues to perpetuate such cruelty under the protection of the law. This may legitimize the act in its legal sense, but certainly it does nothing to mitigate its barbarity. The act of killing in itself is C offensive: that it is done by the State does nothing to lesson its offensiveness. It is furthermore done in cold blood with utter cruelty. Now there are circumstances which lead up to the killing which are said to provoke it. But this is not provocation in the innate moral sense. When a private individual kills after having been D provoked, this is regarded as mitigating because, at the time of the killing, the killer's blood is heated and human passions aroused. When the State kills, its blood is cold, its detachment inhuman. Legitimizing State killings by law thus takes killing out of the arena of perverse human behaviour and elevates it into a principle. E In other words rather than killing being deemed as heinous in itself - the result of perversity - it becomes something which is acceptable if done by the right people at the right time. The gates are then opened for people to determine F whether they are the right people and whether the time is right. The heinous nature of murder becomes diluted in the public eye, the public becomes accustomed to brutality, brutality enters the prevailing moral ethos, becomes acceptable and regarded as an inevitable part of human society. A prominent American lawyer, GClarence Darrow, in his speeches `Attorney for the Damned' (1957) Simon & Schuster, New York at 92 states: `We teach people to kill and the State is the one that teaches them. If the State wishes that its citizens respect human life, then the State should stop killing. The greater the sanctity that the State pays to life, the greater the feeling of sanctity the individual has for life.' H
To dramatize it, consider its logical corollary. A woman is beaten and raped. The perpetrator is apprehended. A State rapist is then engaged to exact retribution on behalf of society. He first beats the rapist in an identical manner to that in which the woman was beaten and then proceeds to rape the rapist in as identical a fashion I
A as possible, once or however many counts are involved. The very analogy is distasteful. One may decide to create a raping machine operated by the State rapist to remove some of these distasteful aspects.
B It would nonetheless remain a punishment which should not be countenanced by society. The reason is clear. Rape in itself is brutal and abhorrent. It does not matter that it is done under the cloak of any law. To have an official State rapist is debasing and brutalizing to society. It gives an official stamp of approval to degradation. Yet somehow, murder, which is worse, is carried out under the cloak C of the law and is regarded as acceptable. Murder, like rape, is in itself brutal and must be condemned unequivocally for itself and not merely by reason of the fact that it was not done under the sanction of law. This is why state killing is debasing and brutalizing. It seeks to legitimize brutality; which can never be anything other than brutality. That was part of the argument on behalf of the two petitioners. D
Moreover it was argued on behalf of the petitioners that the State by conduct admits that the death penalty is sordid and debasing. In the past hangings were done publicly. When capital punishment was a public spectacle it became linked in E the minds of the public as part and parcel of the crime. It was as if the punishment was thought to equal, if not to exceed, in savagery, the crime itself, to accustom the spectators to a ferocity from which one wished to divert them. At the end of the day the tortured criminal became an object of pity or admiration if not a F hero by the spectators. The perception that the state was brutal had to be minimized. It was achieved by making the execution the most hidden part of the penal process. The actual execution is carried out under a seal of secrecy and executions are bureaucratically concealed. The concealment minimizes only and does not remove the debasement and brutalization. The concealment, it was G submitted, manifests the State's guilty conscience.
It has also been argued that if death penalty is to stay, then other better methods of killing than hanging have to be invoked or devised. There has been suggested the use of the electric chair or a lethal injection or gas chamber as used in the USA H . These methods are less cruel than hanging. The Supreme Court of Zimbabwe in the case of Chileya v State (14) was about to deliver a judgment to the effect that death penalty by hanging was cruel and debasing punishment, and so the State should devise a better method of killing.
However the Court was pre-empted by the government which I
passed an amendment to the Constitution to the effect that `hanging' was A constitutional. But why use `hanging' when there are other less cruel methods of killing?
(b) Then it is argued that the mode or manner of execution of the death penalty is objectionable on two grounds - the long delay in carrying out the execution and secondly, the horrible conditions under which the people on death row are kept. B
The first point about the long delay in carrying out the execution, it is argued causes untold mental anguish to the prisoners on death row. Capital punishment, it should be pointed out, is a euphemism for official killing by the State. However, C unlike most murders, the process leading up to the killing is a long drawn out one. From the time the person is sentenced to death he is immediately installed on death row in a blue uniform. He is kept in virtual solitary confinement in an individual cell which is so small that he can touch both walls with his arms outstretched - see s 71 of the Prisons Act 34 of 1967 and also regulation 21(2) D and regulation 33 of the Prisons (Prison Management) Regulations GN No 19 of 1968. The only reading material, if any, is the bible or other religious tracts. Every night all his clothes are taken away and he is kept naked in his cell until the next morning. The light in his cell is never turned off and he is kept under surveillance E by the guards. Some guards take delight in taunting the prisoners, constantly reminding them of their impending fate and telling them gruesome stories of executions which have gone wrong. From the time the High Court tells a murderer that he is to hang, in the Tanzanian context he will often wait in suspense for more F than four years before he is finally taken to the gallows. I was referred to an article in the Business Times newspaper by Mr Robert Rweyemamu (with a legal touch column) of 2 April 1993, and counsel for the petitioners Mr Rweyongeza said that it reveals aptly the long delays of carrying out executions in Tanzania. The G long agonizing wait before the final decision is taken and the shorter wait for the sentence to be carried out inevitably causes appreciable mental suffering. This pre-execution period has been referred to as a period in which the prisoner suffers a living death or hell on earth. He fearfully broods on his fate and suffers great anguish and uncertainty. H
This often leads to pronounced mental deterioration. Inordinate delay before execution thus constitutes a form of prolonged mental torture. For a detailed discussion of and reference to the literature on the mental effects upon prisoners on death row - see pp 12-15 of the cyclostyled copy of the judgment of the Supreme Court of I
A Zimbabwe in the case of Catholic Commission for Justice and Peace v AG and others (6).
Then there was the argument presented about the horrible condition in the condemned sections of all prisons in Tanzania. I was invited under s 59 and s 122 of the Evidence Act 6 of 1967 to take judicial notice of all the Prison Regulations B GN No 13 of 1968, GN No 18 of 1968 and GN No 19 of 1968 and the reports of the Visiting Justices to prison. For example the amount of diet and the amount of exercise allotted to the prisoner on a death row is at the discretion of the Principal Commissioner of Prisons and is generally minimal see regulation 33 of the GN No 19 of 1968. It is common knowledge that the prisoners are kept in tiny cells without C access to washing, and open air and they cannot exercise effectively. Because of poor preparation conditions the diet provided is extremely poor and the quantity small. In short the prisoners on death row are treated as non-persons whose rights are subject to the whim of the supervising administration at the prison concerned. For similar conditions of prison in Zimbabwe, the Supreme Court there D in the case of Conjwayo v Minister of Justice and Director of Prisons (30) held that these horrible conditions constituted a cruel, inhuman and degrading punishment.
E On concluding this part, it has been contended on behalf of the petitioners, that the emerging consensus of values in the civilized international community as evidenced by the UN human rights instruments, the decision of other courts and the writings of leading academics is that the death penalty is a cruel, inhuman and F degrading punishment. It was pointed out that article 6(6) of the International Covenant on Civil and Political Rights (1966) (which Tanzania has ratified) states: `Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant' which indicates that the G parties to the Covenant have agreed to eventually abolish the death penalty. And the UN Commission on Human Rights at its 1989 session in Genera agreed by consensus that the death penalty was a cruel, inhuman and degrading punishment, and agreed to forward to the UN General Assembly a draft Second H Optional Protocol to the International Covenant on Civil and Political Rights aimed at abolishing the death penalty. Indeed the Second Optional Protocol to the International Covenant on Civil and Political Rights was passed by the UN General Assembly in 1989 and many member states have started ratifying it, and no doubt Tanzania which has a great reputation of respecting human rights will I
soon ratify it. Amnesty International, vide its Declaration of Stockholm of 1977, with A delegates of about 200 from Africa, Asia, Europe, Middle East, North and South America and the Carribean Region, declared that the death penalty was an inhuman, degrading and cruel punishment. The Nyalali Commission in its authoritative Report Book III at 25 held that the death penalty was an inhuman and B cruel punishment and so should be abolished. Then we have the Council of Europe which in its Protocol 6 to the Convention for the Protection of Human Rights and Freedoms (1950) abolished the death penalty in 1983 for all member countries of the Council of Europe because they had found it to be a cruel and inhuman punishment. And the European Court of Human Rights in the Soering C case (15) held that the death penalty according to the evolving standards of Western Europe was a cruel and inhuman punishment. The following countries of the Commonwealth have abolished the death penalty: Namibia, The Gambia, D Kiribati, New Zealand, Solomon Islands, Tuvalu and Vanuatu, Australia and South Africa (soon to become a Commonwealth member). Some of the decisions of other countries which have declared the death penalty to be a cruel punishment are: USA in Furman v Georgia (16); India we have Javed Ahmed v The State of Maharashtra (17) and Madhu Mehta v Union of India (18); in West Indies we have De Freitas v Benny (19) and Riley v AG of Jamaica (5); and two cases from E Nigeria - Bello v AG of Oyo State (20) and Omwuka v The State (21) and from Zimbabwe the famous case cited above of The Catholic Commission for Justice and Peace v AG (6). F
The arguments for the Republic in reply were made by the State Attorney Mr Mwambe. Mr Mwambe conceded that the prisoners do suffer some torture in the process of hanging, but countered by stating that the torture the victims of murderers encounter is much more. And since the murderers are getting a just desert and what they deserve, then they cannot complain about the torture or loss of dignity, he submitted. G
Concerning the delay in carrying out the execution for years on end, Mr Mwambe submitted that it is not a torture but a blessing in disguise to the said prisoners. He said that in fact the prisoners are quite happy for the delay, as they are given many more years to live which they don't deserve. H
Concerning the horrible conditions in the death cells, all Mr Mwambe could say was that the prisoners are treated in accordance with what the Tanzanian's state of economy can afford. He could not tell if the conditions in prison are horrible or not. I
A And for the Republic it can be argued that the remedy to the above named complaints about torture in hanging, delay in execution and horrible conditions in the death cells, has been given in other countries, although Mr Mwambe was not aware of this. It could be contended that the solution to the complaints raised by B the prisoners is not the abolition of the death penalty, but to apply to court to give an order to the Government to rectify those matters. The Chief Justice of the then Southern Rhodesia Beadle CJ in the case of Dhlamini and others v Carter (22) said:
C `If during the course of time of serving a sentence of imprisonment a prisoner is subjected to inhuman or degrading treatment, the court, in the exercise of its powers given to it by the Constitution, would see that the treatment was stopped but that would not entitle this court to sit as a Court of Appeal, as it were, on the original sentence. The inhuman treatment complained of in the instant case is the delay in carrying out the sentence. If, as I have already D found, `treatment' is distinct from punishment and if the inhumanity of the treatment cannot taint the lawfulness of an otherwise lawful punishment, then the only remedy an accused who had been sentenced to death has, is to ask for an order that the delay should stop, something which no person sentenced to death is ever likely to do.' E
There is also another point in favour of the Republic to the effect there is no consensus of values in the so-called civilized society that the death penalty is a cruel, inhuman and degrading punishment. It has been pointed out that the F decisions of other courts in different countries are not uniform. For example in the USA many States retain the death penalty. In India in such cases as AG v Lachma Devi (23) and Bachan Singh v State of Punjab (24) the Supreme Court there held that the death penalty by hanging was not a cruel, inhuman and degrading punishment. And as long ago as 1961 the UN General Assembly in its Resolution G No 32 of 1961 declared that the death penalty was not unlawful but that it should be reserved for only very serious crimes like murder. Even article 6(2) of the International Covenant and Civil and Political Rights (1966) does not prohibit member countries imposing the death penalty for serious crimes like murder. What is more is that the UN Convention against Torture and other Cruel, Inhuman H or Degrading Treatment and or Punishment of 1987 did not prohibit the imposition of the death penalty if it is prescribed by law. That is why the majority of the 161 members of the UNO retain the death penalty - 100 countries retain it and only 35 countries have abolished it - see Amnesty Interna- I
tional Newsletter May 1989 at 3. And in the Commonwealth 46 countries out of 53 A retain the death penalty and only 7 have abolished it - see the Commonwealth Lawyer Journal of March 1993 at 71-76.
It has been submitted elsewhere that the argument that capital punishment has no place in a civilized society, presupposes that only one set of values (liberal B Western values) is `civilized'. They exclude the values of the Third World including countries of the East. In any case even in the West there is no unanimity about the desirability of abolishing capital punishment. In China and other countries of the East where Confucian values prevail (eg Singapore, Taiwan) capital punishment is C accepted without hesitation. The Western liberal values do not represent what is truly a `civilized society' but its admirers merely confuse it with technological advancement. It may be true to say that technology has advanced considerably in the last few decades, but it is highly debatable whether civilization has advanced much, if at all. Civilization in fact is going down particularly in the decadent West. D We see in the West a decline in values to the point where one wonders if most people have any beliefs or morals at all: an all-absorbing selfishness and lack of concern for others, crass materialism, an increasing disregard for the law, the E commission of crimes of a most revolting nature such as were unimaginable a few years ago, the apparent acceptance of sexual immorality and promiscuity as alternative lifestyles, proliferation of drugs, easy divorce and abortion, and devaluation of the family unit etc, the list is depressingly endless. Alongside these F signs of moral degeneration are the continuing tragedies of wars, refugees and increasing poverty. These are just the tip of an iceberg of the flaws in a modern society, and so the talk of the values of a `civilized society' is mere trash and ironical at best.
It was argued for the Republic that what should therefore be considered in G determining whether the death penalty is a cruel, inhuman and degrading punishment is not the values of a nebulous `civilized society' but the contemporary norms operative in Tanzania and the sensitivities of its people. The question should be whether capital punishment, with what it entails, is acceptable in a H Tanzanian society. The decisions of other courts in other countries and the writings of leading academics are questionable because they do not take into account the sensitivities of the people of Tanzania. Therefore the views of other courts and leading academics are very much out of touch with what an ordinary Tanzanian feels on the matter. If newspaper reports are anything to go by, it would be seen I
A that the majority of Tanzanians do not regard the death penalty as a cruel and degrading punishment. Although there has been no public opinion survey, it can be asserted with some confidence that the majority of the people of Tanzania are not against capital punishment and that the abolitionists are a minority group. In a democratic state like Tanzania, the views of the majority should be respected. B This is because for any system of justice to work, it must be credible in the eyes of the people of the country concerned. For this reason the court's and Parliament's attitudes should not be radically different from those of society as a whole. It is C very dangerous in fact to allow penal policy to jump too far ahead of the population, since it will result in the loss of public confidence in the criminal justice system and concomitantly to the alienation of the public from it. There is abundant evidence that members of the Tanzanian public often resort to mob justice in a situation in D which they feel that the criminal justice system and/or its agencies, lack the competence or the will to protect them against crimes. Therefore no civilized community should provoke such a situation in the name of a so-called `progressive' penal policy.
I will start my decision with the point raised that the remedy for the petitioner's EI complaints is for them to apply to court so that it may order the government to stop the ugly aspects of the death penalty like delay, horrible conditions of prison and hanging. The Republic's arguments rests on the decision of Beadle CJ in the case of South Rhodesia of Dhlamini & others v Carter (22). In my considered view the F views of Beadle CJ were aptly answered by Gubbay CJ in the later case of The Catholic Commission for Justice and Peace v AG of Zimbabwe (6). It was held in that latter case that when a prisoner who has been on death row for several years approaches the courts for relief he is not seeking to be put to death expeditiously G but rather he is saying that the long period he has spent on death row, coupled with the agony and anguish of death row endured for several years, plus the horrible conditions under which he is kept, is such as to render his execution at that particular time so cruel and inhuman as to offend the constitutional prohibition against cruel and inhuman punishment. Contrary to Beadle CJ's reasoning, he H would not be challenging the legality or appropriateness of the original sentence of death. He would be accepting the validity of that original sentence but merely arguing that the juxtaposition of the intervening delay and the prolonged anguish of death row, which has been appropriately referred to as a `living hell' is such as to render it particularly inhuman to execute him at that stage. In I
the case at hand there is no argument that the court is trying to act as an appellate A court in a case it had already passed a death sentence, as was the case in two cases cited from Zimbabwe, but those two cases emphasize one point relevant here, that the juxtaposition of the delay in carrying out the death penalty and horrible conditions under which the prisoners are kept are relevant matters in B determining whether a death penalty is a cruel, inhuman and degrading punishment. As Pannick in his book `Judicial Review of the Death Penalty' at 85 aptly puts it:
`Whether or not the death penalty is Constitutional per se, the pain and suffering it causes may C exceed constitutional limits when the agony caused by delay is added to the balance.'
And according to our Constitution in article 30(3) an aggrieved person `may without prejudice to any other action or remedy lawfully available to him in respect D of the same matter, institute proceedings for relief in the High Court to vindicate his basic human rights. Therefore even if the prisoners could apply to the High Court to order the government to rectify the ugly matters inherent within the death penalty, still they are not precluded from making a petition to vindicate their basic human rights that the death penalty is unconstitutional. E
That hanging is a cruel affair has not been challenged by the counsel for the Republic. All what Mr Mwambe learned State Attorney stated was that the torture that the hanged man gets is not comparable to the torture the victim of murder gets at the hands of the murderer. Well that begs the question or rather it is a tacit F admission that there is torture indeed in the process of hanging. An as amply demonstrated above, the government impliedly concedes that hanging is ugly and cruel and that is why they do it in secret so that the people should not witness such a cruel spectacle. It is my finding that the petitioners have managed to prove G on a balance of probabilities that hanging in carrying out the death penalty is a cruel, inhuman and degrading punishment.
Concerning the delay in carrying out the death penalty, there can be no doubt that it causes a lot of protracted mental anguish. Also the horrible conditions in the H death cells are only fit for a non-person. Learned State Attorney Mr Mwambe conceded that there is invariably a great deal of delay, the average may be up to five years. But he said that the delay is to the advantage of the prisoners as they are happy that they are not hanged sooner. I don't think the fact that the prisoners on death row do not wish I
A to be hanged sooner takes away the fact that there is acute mental anguish in the period they are waiting for their execution. If the article by Mr Robert Rweyemamu in the Business Times of 2 April 1993 is anything to go by, the delays are indeed inordinate and many are over ten years. I am entitled to take B judicial notice of that fact and by virtue of s 122 of the Evidence Act 6 of 1967 I am entitled to infer the existence of the above stated practice, regard being had to the common cause of natural events. The same applies to the horrible conditions obtaining in the death cells of condemned prisoners. As regards the horrible C conditions in the death cells it is common knowledge that the cells are small, dirty, over-crowded, very poor diet, little ventilation, no time for exercises, under watch for 24 hours, and medical facilities will only be available to these prisoners if the Prison Department is allocated enough funds to pay for their treatment - see Mzalendo Newspaper of 19 June 1994.
D So if the Prison Department has run short of funds (as is very common these days for every government department) that means the prisoners will not be treated as government hospitals demand payment for treatment of prisoners as well. Learned State Attorney Mr Mwambe stated that the horrible conditions in the E death cells and in the prisons as a whole are inevitable because of the poor state of the economy of this country. He said that the government cannot afford more than what it is doing. That is an admission of the horrible conditions in prison and the government is putting up a defence of poverty or lack of funds. It is my view that the defence of poverty can be offered elsewhere, but not when the basic F human rights of an individual are at stake.
There is the argument that this court in determining as to whether the death penalty is a cruel, inhuman and degrading punishment should concentrate on the contemporary norms operative in Tanzania and the sensitivities of its people instead of concentrating on the values of a nebulous `civilised society'. I agree, but G it is my view that even if one takes into account the sensitivities of the people of Tanzania, one cannot escape the conclusion that the death penalty, taken as a whole, is a cruel, inhuman and degrading punishment. The various ugly aspects of the death penalty as amply demonstrated above, are apt to move the heart of even the stone-hearted. The composition of the members of the Nyalali Commission H was quite representative, with a broad spectrum of the enlightened members of Tanzanian society, and they unanimously reached the conclusion that the death penalty was a cruel, inhuman and degrading punishment. I concede that there may be a majority I
of Tanzanians who support the death penalty blindly, and these are not enlightened A and are not initiated or aware of the ugly aspects of the death penalty. Apparently it is so because the death penalty is carried out in secrecy. The government must assume responsibility for ensuring that their citizens are placed in a position whereunder they are able to base their views about the death penalty on a rational B and properly informed assessment. It is clear that many people base their support for the penalty on an erroneous belief that capital punishment is the most effective deterrent punishment, and so the government has a duty to put the true facts before them instead of holding out to the public that the death penalty is an instant solution to violent crime. If many people, like members of the Nyalali C Commission see the death penalty as being morally insupportable and as having many negative effects, they would be expected to inform the public about their views and seek to influence public opinion in a more enlightened direction. The government should do the same. D
In fine I find that the petitioners have managed to prove on a balance of probabilities that the death penalty is a cruel, inhuman and degrading punishment and also that it offends the right to dignity in the course of executing the sentence. It is not just the final act of stringing up the prisoner which is an ugly matter; but the E protracted torment to which we subject the prisoner before finally dispatching him, makes the whole process even nastier.
III RIGHT TO LIFE F
The version in English of this basic human right reads: `Every person has a right to live and subject to law, to protection of his life by the society.' Counsel for the petitioners Mr Rweyongeza submitted that according to that wording the right to life is absolute and not governed by the claw-back clause of `subject to law'. He said G that what is subject to law is the right of an individual to the protection of his life by society. He invited me to accept his interpretation contending that it should be so because the right to life is the most fundamental right on which all other rights depend, and if life is extinguished then all other rights become meaningless. H
However, on my part I agree with Mr Mwambe learned State Attorney that the Swahili version of our Bill of Rights is the controlling version and not the English version, as amply pointed out by the Tanzania Court of Appeal in the case of Director of Public Prosecutions v Daudi Pete (25). The Swahili version reads: `Kila mtu I
A anayo haki ya kuishi na kupata kutoka kwa jamii hifadhi ya maisha yake, kwa mujibu wa sheria.' It is crystal clear from that wording in the Swahili version that both the right to life and the right to the protection of one's life by society, is subject to the claw-back clause `subject to law'. So it is my finding that the right to life is not absolute but subject to law. B
As amply indicated in Part I of this judgment, the petitioners have only an evidential burden to show that the right to life has been infringed. And that much they have succeeded to show. What remains then is for the Republic to prove on a balance of probabilities that the law prescribing the death penalty (the Penal Code cap 16) is a lawful law and that it is saved under article 30(2) of our Constitution. I reserve C for discussion that matter under Part IV of this judgment.
IV WHETHER THE LAW PRESCRIBING THE DEATH PENALTY IS LAWFUL LAW AND IS IN PUBLIC INTEREST UNDER ARTICLE 30(2) OF THE CONSTITUTION D
A. Whether the Death Penalty is in public interest under article 30(2) of the Constitution E
First we have the argument for the Republic that the death penalty has some deterrence effect. It is argued that the death penalty is necessary to protect society and that by executing some of the murderers we deter at least some potential F killers from committing murders. It cannot be disputed that the death penalty may have some deterrent effect. The vital question, however, is whether the death penalty has a deterrent effect significantly greater than the alternative sentence of life imprisonment or in other words, whether the death penalty protects society G more than life imprisonment. If the death sentence is not a superior deterrent then the same social purpose could be achieved by the use of life imprisonment. Over the years a large number of studies have been carried out. Some have compared the position before and after abolition of the death penalty in particular countries H and between different countries with and without the death penalty. Other methods have also been used to study the effects of capital punishment upon the incidence of murders. Mr Roger Hood, who is the Director of the Centre for Criminological Research at the University of Oxford, has examined carefully all these various studies and reaches the categorical conclusion that the research so far carried out has failed to provide I
scientific proof that executions have a greater deterrent effect than life A imprisonment - see R Hood The Question of the Death Penalty and the New Contributions of the Criminal Sciences to the Matter, a Report to the United Nations Committee on Crime Prevention and Control of 1988. Although some people intuitively believe that capital punishment must have a powerful deterrent effect, the following matters need to be borne in mind: B
(i) Most murders are committed on the spur of the moment in emotional circumstances. Clearly the death penalty has no effect on crimes of passion which are committed impulsively and without any thought being given to the penal consequences. C
(ii) Many murderers are mentally disturbed persons who will not have the mental capacity to be influenced in their conduct by the death penalty.
(iii) The relatively few planned and pre-meditated murders tend to be D perpetrated by criminals who are often supremely confident that they will escape detection and arrest.
Moreover, the deterrent effect of the death penalty is further diminished by the fact that we do not hang all our murderers but hang only a few and in private. There is E thus a low probability of death for murderers. In fact Mr Mwambe for the Republic greatly deprecated the practice of hanging the murderers in secret, and advocated public hangings which have a real deterrent effect. So in effect the Republic conceded that hangings in secret as done now have no desired deterrent effect. And it should be pointed out that the deterrent effect would be enhanced if F there was certainty that all murderers would be apprehended and every one would be executed without exception. The situation obtaining now is that many murderers are set free at the President's whims, under the guise of commuting G the sentence of death or pardon. To sum up, we can effectively protect our society against violent crime without employing the death penalty by using life imprisonment sentences.
It has also been argued on behalf of the petitioners, that there is a risk of executing H the innocent. The risk assumes greater proportions when one considers the fact that most poor persons do not obtain good legal representation; as they get lawyers on dock briefs who are paid only Shs 500/= (the equivalent of one US dollar!!!). As result of such poor remuneration the defence counsels do not exert enough effort in such cases. I
A The possibility of a judicial error, for whatever reason, assumes ever greater importance because the death penalty is irreversible, that is, once carried out that is the end of the matter, it cannot be corrected. And mind you convictions for murder in error (after the appeals) are not rare. Although the argument on the other B side is that there is no evidence that advocates who hold dock briefs conduct their cases poorly, I am of the considered view that the risk of executing the innocent is great under the present system because of the nature of legal representation offered. It is just human nature that it happens so.
C I have already indicated in Part II above that the present system of execution by hanging, long delays in carrying out the death penalty, and the horrible conditions in the death cells cause great torture and mental anguish and that being so it cannot be in public interest to continue using the death penalty. Instead of hanging D the government can change to the use of the electrical chair, or lethal injection or gas chamber which are less cruel. About the long delay in carrying out the sentence, the government should stop using the death penalty until such time that they have devised a better method of reducing the bureaucracy causing the delay. One cannot tell me that it is not possible to reduce the bureaucracy involved E because the Supreme Court of Zimbabwe in the case of The Catholic Commission for Justice and Peace v AG (6) offered a number of good suggestions to that effect. About the horrible conditions in the death cells, the defence of poverty of the government is not a good defence; and the logical F solution is for the government to suspend the death penalty law until such time that it will have enough funds to be able to treat the prisoners on death row as human beings.
Then there is the argument that the death penalty is in public interest because it shows in emphatic terms that the government denounces murder. It is argued that G murder is a crime of the utmost depravity and gravity and therefore it should be treated with the utmost severity when it comes to punishment. Society through the death penalty must denounce the taking of human life in the most emphatic manner possible and it is therefore right that society's extreme disapproval and indignation should be signified by imposing the ultimate penalty of death. By doing H so society reinforces and promotes public respect for life. Any lesser penalty would be inadequate as a punishment for the taking of innocent human life and the suffering which this causes the relatives and loved ones. It has been said even Christianity and Islamic Religion support the death penalty as something morally I
all right in order to protect society. The State quotes the Bible in Genesis 9:6; A Excodus 21: 12 and 14 and Deuteronomy 9:11 and 12. And for the Moslems the State quotes the Koran 5:36. However, in my judgment I find that in symbolic terms, the official murdering of killers can hardly be said to foster respect for the sanctity of life. It is contradictory to kill people to show that killing is wrong. Society B can still express its utter condemnation of the act of murder by imposing the most drastic sentence of life imprisonment. The effect upon the public of the death sentence is to brutalize rather than humanize. If we insist on killing murderers we are descending to the same level as the murderers and this debases society. As C the situation obtains now, the State is a teacher and when it kills, it teaches vengeance and hatred. Murderers are not to be loved, nor may they be disregarded. But in allowing them to live, society is saying that sanctity of life is all important. Although the Christian and Islamic Religions have no objection to the D death penalty as such, it is significant to note that they do not support the ugly aspects of the death penalty. For example the Catholic Church (see Newsweek of 30 November 1992 at 53) through Pope Paul II when releasing the new Universal Catechism stated that the death penalty is allowed by the church as a last resort E for the preservation of public order, provided it is carried out in a timely and compassionate manner. As amply demonstrated above the death penalty in Tanzania is not carried out in a timely and compassionate manner. Execution by hanging renders untold suffering; the delay in carrying out the sentence causes untold mental anguish; the horrible conditions in the death cells are meant for non-persons. That cannot be called death penalty in a timely and compassionate F manner. Any properly informed Christian or member of the Islamic religion, cannot support the death penalty under the present form and conditions in which it is carried out.
Then there is this argument that Government must be seen by society to be taking a tough line in relation to violent crime. If it abolishes the death penalty, it is said, this would be taken by persons inclined towards violent crime as a sign that G Government is going soft on crime and this may encourage people to commit violent crimes. However, in my judgment I find that the above argument does not carry much weight. The government is not becoming soft in the fight against crime by doing away with the death penalty. Long term imprisonment is an extremely H severe punishment. Indeed some would say that life imprisonment is far worse than death. I
A The cost of imprisonment is another argument presented on behalf of the government. The argument is that we should execute dangerous murderers rather than wasting large sums of public money in keeping these persons locked up in maximum security prisons. In my considered opinion, if we are talking about B expense, we should not forget that we are forced to spend large amounts to process through the elaborate system we have to decide whom we should execute. Clearly, it would be cheaper to kill murderers than to keep them locked up for long periods, but it is a morally unacceptable argument that we should kill criminals because it is cheaper to do so. Considerations of economy cannot justify C the taking of life. Moreover the imposition of a sentence of life imprisonment can help to assuage the survivors of the victims of murder in an effective way by way of compensation. Murderers imprisoned for life will be put to work whilst in prison and at least part of the profits generated by such work shall be used to pay compensation to the survivors. However, that cannot be achieved if the murderers are sentenced to death. D
Then we have the argument of retribution in favour of the Republic. This argument runs along those lines. As many people believe that murderers deserve to die, the law must satisfy the public's thirst for vengeance otherwise the law will fall into E disrepute. This is like saying that the law should string up murderers before the lynch mob does. But it may be argued that even if it is the case that the majority of the public do subscribe to some sort of an eye for an eye retaliation approach in F murder cases, a progressive government will not feel obliged to execute persons simply to satisfy some crude urge for vengeance. Rather it will assume the responsibility for informing the public and seek to influence their views in a more enlightened direction. Often vengeful sentiments stem from fear in the face of increasing rates of violent crime. The death penalty, however, is not an instant G solution to violent crime and the government should not hold it out as such. Retribution has no place in a civilized society, and negates the modern concepts of penology.
The other most important point which puts out law into disrepute and so not in H public interest is the fact that it is arbitrary in that people with mental cases (insane people) are also sentenced to death as if they were normal persons when they did a killing. In the case of Said s/o Mwamwindi v R (26) the accused was sentenced to death (and executed) despite the fact that a famous psychiatrist, one Dr Pendaeli, had testified that the accused had a mental disease called Catatonic Schizophrenia. The same thing happened in the case of I
R v Asha Mkwizu Hauli (27), where two prominent psychiatrists, Dr K F A Rugeiyamu and Dr W S Pendaeli (both consultant psychiatrists), testified that the accused was mentally sick. The same thing happened in Director of Public Prosecutions v Leganzo Nyanje (28) where the psychiatrists had confirmed that the accused was mentally sick of Paranoid Schizophrenia and yet he was B sentenced to death. In that case Mr Justice Mustafa gave a strong dissenting judgment. The majority of the Tanzania Court of Appeal conceded that the law was unjust and outdated and yet they washed their hands as Pontius Pilato did saying that they were impotent to change the law. The late Mwakasendo JA (as he then was) delivering the judgment of the court held: C
`We wish to state in conclusion that we are fully aware that many doctors with experience of mental diseases have at various times strongly attacked the supposed harshness or D unscientific nature of the present formulation of the law relating to the defence of insanity. These doctors have contended, we think quite rightly, that the present law is based on an "entirely obsolete and misleading conception of the nature of insanity, since insanity does not only, or primarily affect the cognitive or intellectual faculties, but affects the whole personality of the patient, including the will and the emotions". However, it is, our considered view that the E only sure and acceptable mode of alleviating the harshness of the present law is to change the law along the lines proposed by its many critics and not by ignoring its existence. Suffice here once again to draw the attention of Parliament to the urgent clamour for changing the law in this field to accord with present knowledge of medical science.' F
The same sentiments were expressed by the Tanzania Court of Appeal in the case of R v Agnes Doris Liundi (29) where it said `it is possible, indeed likely, that our law on the issue of insanity is antiquated and out of date. Parliament, in its G wisdom, may wish to amend this particular branch of the law and bring it into line with modern medical knowledge on the subject.' The law, I hold, ought to be amended to bring about the defence of diminished responsibility which entitles the H accused who is mentally sick not to be acquitted altogether but to be found guilty only of manslaughter. They did it in England in 1957 by the Homicide Act and in Uganda they did it in 1967. Our government has persistently refused to rectify the law so as to do away with the injustices caused the present law. The mentally sick who kill are dumped together as murderers as those who commit murder during robbery. Nobody I
A in his right senses can defend the present state of the law that it is in public interest. The present state of the law puts our criminal justice system into disrepute.
There is also the political perspective of the death penalty which indicates that the death penalty is not in the public interest. The State does not disclose the fact that B most poor persons kill during robbery because of the poor living conditions and the unequal distribution of the national cake. The grinding poverty and hunger lead to brutalization because the economy has been mismanaged by the government. Instead of the State revealing that the poor kill because of the poor living C conditions, but say because the killer is morally depraved. Why regard the murderer as inherently depraved? The State deliberately washes its hands of the socio-economic conditions it has created. In the institution of State killing, the public is invited to bury knowledge of the conditions which have led to the crime and concentrate on the individual. It is the individual that must be regarded as D depraved not a system founded on ruthless exploitation, economic mismanagement and enforced impoverishment. So, when one accepts State killing, one gives a tacit nod of approval to those who would turn their faces away from the conditions which engender the crime in the first instance. Thus economic E mismanagement by the State leading to impoverishment of the majority is legitimized. Thus the attack on the death penalty is raised to the level of an attack of the ruling clique, who want to maintain the status quo and the privileges which have been conferred upon them by the prevailing invidious economic system. In F order to appease the impoverished people, the State points an accusing finger at the murderers and orders them to be hanged. But in the long run the exploited and impoverished masses will realize who is the real enemy - whether the murderer or the system that has engendered the murderer? It is suggested that there is a G real element of hypocrisy and irony in continuous support of the death penalty by the State when it is the State itself that has largely contributed to the conditions that create murderers.
At the end of the day I find that the Republic has failed to prove on a balance of probabilities that the death penalty is in the public interest. The arguments H adumburated above clearly show that the death penalty under the present form and conditions is not in the public interest at all.
B. Whether the Law prescribing the death penalty is lawful law
The existing law that prescribes the death penalty is the Penal Code, cap 16. The Tanzania Court of Appeal in the case of Kukutia Ole I
Pumbun v AG (3), held that any law that restricts or abridges basic human rights A must fulfil two conditions in order to be regarded as a lawful law. First that law should meet the proportionality test, that is, the limitation imposed on the basic human right by such law must not be more than is reasonably necessary to achieve the legitimate object of the government. Secondly the law should not be B arbitrary - that is it should make adequate safeguards against arbitrary decisions, and provide effective controls against abuse by those in authority when using the law.
(i) As regards whether the present law meets the proportionality test, I am of C the considered view that it does not. If the object of the government is to protect society, I am of the view that that can be met by imposing the sentence of life imprisonment which will incapacitate the offender not to commit further crimes. As amply demonstrated above, the death penalty D has only minimal deterrent effect. Moreover the imposition of the death penalty negates the modern concepts of penology which are based on the theory that rehabilitation of the individual criminal is possible. Retribution as an object of punishment is uncouth and outdated and E negates modern concepts of penology. In short it is my finding that imposing the death penalty is more than reasonably necessary to achieve the object of protecting society. Life imprisonment can serve that purpose. The Government has failed to prove on a balance of probabilities (even allowing a margin of appreciation to the state) that the present law restricting the right to life is proportionate and closely tailored to the aim sought to be achieved.
(ii) It is also my considered view that the impugned law is arbitrary in that it does not have adequate safeguards against arbitrary decisions and does not provide effective control against abuse of power by those in authority when using the law. It is arbitrary in three aspects:
First the impugned law empowers the courts to sentence to death the real murderers and also persons who have killed because they are mentally sick (insane or those under diminished responsibility). The real murderers and the mentally sick are indiscriminately dumped together as murderers without distinction. I have amply demonstrated above about this phenomenon. The courts raise their hands in despair and state that they are impotent to do anything about this injustice because their hands are tied by the provisions of
A the law. So it is crystal clear that the impugned law is not `law' because it does not provide adequate safeguards against arbitrary decisions made by the courts. The law which allows the courts to dump together the mentally sick and real murderers is not good law.
Secondly when the impugned law (the Penal Code) is read together with B s 325(1), (2) and (3) of the Criminal Procedure Act 9 of 1985 you find that the President is empowered to commute the sentence or pardon the convict. This law is arbitrary in that it does not provide effective controls against abuse of power by the President. He is not bound by the recommendation of the convicting judge nor that of the Advisory C Committee. There are no checks or controls whatsoever in the exercise of that power and the decision depends on the President's whims and his idiosyncrasies. This type of law is similar to that of s 6 of the Government Proceedings Act 1967 which gave the Minister for Justice the power to D consent or not to sue the government at his discretion. The law was strongly condemned by the Tanzania Court of Appeal in the case of Kukutia Ole Pumbun v AG (3) and they declared it to be unconstitutional and so void. The same reasoning applies to the law now under discussion. It may be pointed out that the abuse of power by the President is not a far-fetched idea. It is common knowledge to the people E of Tanzania that one pilot Capt Aziz was pardoned from serving a prison sentence simply because the President felt that the said convict had an old mother who depended on him. But how many convicts have old mothers who depend on them and yet they have not been pardoned by the President? F
Thirdly there is no provision under the present law for appeal against the decision of the President. That is contrary to article 13(6)(a) of the Constitution. The decision of the President may be unreasonable, or it may be discriminatory as per article 13(4) and (5) of the Constitution and G yet the prisoner is not allowed to challenge that decision which affects the rights of a citizen. The mere fact that one is sentenced to death does not make him a non-person and a non-citizen who is not entitled to the basic human rights. I don't agree with Mr Mwambe learned State Attorney Hwho argued that the commutation of a sentence or a pardon is just a privilege and not a right to the prisoner. That the President should exercise his powers of commuting a sentence or pardoning a convict in accordance with the law and the Constitution is not a privilege but a constitutional right of the prisoner. The impugned law is simply not a lawful law.
It is my finding therefore that the death penalty is not in public I
interest and it is not a punishment which is prescribed by a lawful law. A The Republic has completely failed to prove on a balance of probabilities that the death penalty is in public interest and that the impugned law is a lawful law.
V CONCLUSION B
We live in a troubled world with many threats to the security and well-being of our society. In such an atmosphere there is often a tendency to advocate draconian measures to protect society against real and imagined ills. The necessity for such
