jebra kambole vs attorney general of the united republic of tanzania 2019 tzhc 6 18 july 2019

TN THE HIGH COURT OF TANZANIA (MAIN REGISTRY) AT P A R ES SALAAM (C O RA M : M U N ISI, J., M ASOUD, J. AND LUVANDA, J.) M ISC E L L A N E O U S C IV IL CAUSE NO. 22 O F 2018 JE B R A K A M B O L E ................................................................................ P E T IT IO N E R VERSUS TH E ATTORNEY GENERAL OF T H E U N ITED R E P U B L IC O F TA N ZA N IA ................................. R ESPO N D EN T R U L IN G M asoud, J. The petitioner challenges the constitutionality of the provision of section 197 of the Penal Code [cap. 16 R.E 2002]. He holds a view that the impugned provision which provides for death penalty upon conviction o f the offence o f m urder offends the provisions of articles 12 (2), 13(1 )(2)(6)(a), (d)(e), 14 and 29(1 )&(2) o f the Constitution o f the United Republic o f Tanzania (herein after the Constitution). The petitioner therefore urges this court to declare that the impugned provision is unconstitutional. The petitioner also urges this court to order that persons who have already been convicted o f the offence o f murder be recalled for re-sentencing and l given the right to appear before the High Court and be heard on mitigation before a fresh sentence is imposed. In addition, the petitioner asks this court to immediately expunge the provision o f section 197 o f the Penal Code (supra) from the statutes book and proceed to order the Government to amendment the law and prepare guidelines for resentencing as a matter of priority. At the outset, we take notice o f the fact that the substantive prayer in this petition is crafted in the following manner: ...this Honourable Court may be pleased to declare that; (a) The provision o f section 197 o f the Penal Code, Cap. 16 (R.E 2002) is unconstitutional fo r offending the provisions o f Articles 12(2), 13(1) (2) (6)(a), (d), (e), 14 and 29(1) and (2) o f the Constitution o f the United Republic o f Tanzania o f 1977 as amended. All the above prayers are premised on the grounds which are couched in the following words: (i) The mandatory imposition o f the death penalty under s. 197 o f the Penal Code Cap. 16 [RE 2002] is unconstitutional fo r the following grounds: (a) Gives rise to the denial o f a fa ir trial because the convicts are not allowed to make mitigation and also the court is denied o f the right to make proper analysis and assessment before sentencing the convict thus it is in violation o f article 13(6) (a) o f the Constitution ..... (b) The provision o f section 197 o f the Penal Code....is unconstitutional fo r offending the provisions o f Article 2 13(6)(a) o f the Constitution... as amended as it denies the court an opportunity to exercise its discretion in sentencing. (c)The punishment is in violation o f the right to non­ discrimination as provided fo r under article 13(1) o f the Constitution ... . as while other convicts are allowed to mitigate, the convict o f murder are not afforded with the opportunity fo r mitigation (sic). (d)The punishment is in violation o f the right to appeal as provided fo r under article 13(6)(a) o f the Constitution...as the convict has no right to appeal against the sentence. (e)The punishment violates the right to recognition and respect fo r dignity under article 12(2) o f the Constitution ... (f)The punishment violates the right to protection o f human dignity in the criminal process and the execution o f a sentence under Article I3(6)(d) o f the Constitution.... (g)The punishment constitutes inhuman or degrading punishment or treatment fo r violation o f Article I3(6)(e) o f the Constitution ... ; and (h)Thepunishment violates the right to life under Article 14 o f the Constitution.... The petition and its supporting affidavit provide brief facts o f the case. We can only allude to a few o f the facts which are relevant in determining the controversy before us. The petitioner describes him self as a patriotic and conscious Tanzanian citizen who is concerned with human rights. He is aggrieved by the provisions of section 197 o f the Penal Code (supra) which provides for mandatory imposition o f death penalty once an accused person is convicted o f the offence o f murder 3 although the circumstances leading to the offence of murder vary from one person or incident to another. He alleges that the provision takes away the discretion o f the court to award alternative or lesser sentence to a convict of murder according to the circumstances o f a case. The petitioner goes on to assert that the impugned provision denies such a convict the right to mitigation for a lesser offence. As a result, the provision discriminates the convict o f murder against convicts o f other offences, although the convict has the right for a fair trial, the right to be heard on mitigation and the right to appeal against the conviction and sentence. The respondent opposed the petition by filing a reply to the petition together with a counter affidavit sworn by Erigh Rumisha, learned State Attorney. Opposing the petition, the respondent states in a nutshell that the law provides for a death penalty to a person who is proved to have unlawfully killed another or others with malice aforethought. The respondent states that every offence in the relevant law has its own punishment which differs from one offence to another depending on the seriousness o f the respective offence. The respondent agrees with the petitioner that circumstances leading to the offence o f murder vary from one person or incident to another. The respondent however holds the view that variation of such circumstances informs the offences of murder and manslaughter in the Penal Code (supra) and the different punishments that they attract. As far as the offence o f murder is concerned, the respondent is o f the view that the death penalty is reasonably necessary and duly saved by the Constitution. The respondent also averred that the punishment acts as deterrence and is instrumental in protecting victims o f vicious killings and innocent people. The impugned provision is therefore not discriminatory as alleged by the petitioner. With regards to fair trial, the respondent maintains that the right is available to all persons accused of murder without distinction whatsoever as enshrined under article 13(6)(a) o f the Constitution. Although the Constitution provides for basic rights o f an individual, the same are according to the respondent not absolute as they are subject to other laws o f the land. In essence, the respondent disputes that the impugned provision of law is unconstitutional as alleged by the petitioner. O f significance, the respondent states that the constitutionality o f the mandatory imposition o f death penalty to a convict o f the offence o f murder had already been duly determined by this court and the Court o f Appeal o f Tanzania. The present petition is therefore according to the respondent res judicata. The respondent therefore calls upon this court to dismiss the petition with costs. Before we move any further, we must pause and remark that the foregoing complaint by the petitioner about the constitutionality o f the impugned provision and the response o f the respondent in the reply to the petition and the counter affidavit, raise the following issues for our determination. The first issue is whether the impugned provision is unconstitutional for offending the provisions o f articles 12(2), 13(l),(2),(6)(a),(d),(e), 14, and 29(1) and (2) o f the Constitution. And the second issue is whether the constitutionality o f the impugned provision which provides for mandatory imposition o f death penalty upon conviction o f the offence o f murder had already been determined by this court and the Court o f Appeal of Tanzania. And if the latter is in the affirmative, whether the said decisions have any legal effect on the present case. By consent, the petition was argued by way o f filing written submissions. The petitioner was represented by Fulgence Massawe, learned counsel from Legal and Human Rights Centre who also filed written submissions for the petitioner. Ms Mercy Kyamba, learned Principal State Attorney, filed written submission in reply to those filed by the petitioner. 6 Having looked at the said written submissions on the record, we formed an opinion that they amplify matters stated by the parties in the petition and affidavit in support and reply to the petition together with the counter-affidavit respectively. We are equally o f a clear view that although the petitioner’s substantive prayer is the constitutionality o f section 197 of the Penal Code, (supra) which provide for death penalty, the submissions by the counsel for the petitioner suggest that the petition is only about the constitutionality o f the mandatory imposition o f death penalty under section 197 of the Penal Code (supra) and not per se the constitutionality o f the death penalty provided under section 197 of the Penal Code (supra). It appears to us that the gist o f the submissions o f the petitioner’s counsel is that challenging constitutionality o f death penalty set out under section 197 of the Penal Code (supra) is not the same as challenging the constitutionality o f the mandatory imposition o f death penalty under section 197 of the penal Code (supra). Mindful o f the above observation from the submissions o f the petitioner’s counsel, it is not surprising that the submission o f the respondent’s counsel stressed that there is no clear line o f distinction between challenging constitutionality o f death sentence provided for under section 197 o f the Penal Code (supra) and challenging the mandatory imposition o f the death penalty for murder under the same provision o f law. The respondent’s learned Principal State Attorney is thus o f a considered 7 view that the two prayers are interrelated or are more or less the same. We understood the learned Principal State Attorney as saying that the two prayers are one and the same and one cannot be looked at in isolation o f the other. On our part, we saw it fit to confine ourselves to the submissions that relate to the issues that we formulated above; starting with the second issue; on whether the constitutionality of the impugned provision which provides for mandatory imposition o f the death penalty upon conviction o f the offence o f murder had already been determined by this court and the Court o f Appeal o f Tanzania. And if the issue is in the affirmative, whether the said decision/s has/have any legal effect on the present case. A number o f authorities were referred to us to buttress respective arguments of the learned counsel for both parties that relate to the issue at stake. One of such authorities was the case o f Mbushuu alias Dominic Mnyaroje and another vs Republic [1995] TLR 97. The argument o f the counsel for the petitioner in relation to this authority is that although the Court o f Appeal found the death penalty itself to be constitutional, the Court did not look at the constitutionality o f the mandatory imposition o f death sentence under section 197 of the Penal Code (supra). Had the Court addressed the issue, it would have concluded that the penalty is not saved by article 30(2) o f the Constitution. Reliance was further made on other foreign decisions which are only o f persuasive value to this court. 8 With regard to the decision of this court in Tcte Mwantenga Kafunja vs The Attorney General Misc. Civil Cause No. 21 of 2014 (unreported), the learned counsel for the petitioner seems to reiterate his argument in relation to Mbushuu’s case (supra). He maintains that Tete Mwantenga Kafunja (supra) did not deal with the issue o f mandatory death sentence as such, as the case was disposed o f on preliminary points of objection and was not therefore decided on merit. The decision in Tete Mwantenga Kafunja (supra) is therefore in his view o f no relevance to the present cause as was also the decision in M bushuu’s case (supra). On the part o f the learned Principal State Attorney for the respondent, an opposing stance was maintained. Having argued that there is no clear line o f distinction between challenging constitutionality of death sentence provided for under section 197 o f the Penal Code (supra) and challenging the mandatory imposition o f the death penalty for murder under the same provision o f law as already pointed out above, she proceeded to submit that the main issue in this cause had previously been determined by this court in Tete Mwantenga Kafunja (supra) and by the Court o f Appeal in M bushuu’s case (supra) and Kachukura Nshekanabo @ Kakobeka v Republic Criminal Appeal No. 314 o f 2015 (unreported). 9 It was thus argued by the learned Principal State Attorney that in all the above cited cases, it was held that death penalty as provided under section 197 o f the Penal Code (supra) was reasonably necessary and was neither arbitrary nor unconstitutional. On the strength of the above cases, we were invited to hold that the present cause was res judicata. To fortify the submission, it was brought to our attention that Tete Mwantenga Kafunja (supra) and the present cause were all brought in this court by the same person albeit in different fashions. It is not without significance to point out that when the matter came before us on 2/4/2019 in the presence of Mr. Fulgence Massawe for the petitioner and Ms Alesia Mbuya, learned Principal State Attorney for the respondent, we invited the counsel to address the court on 12/4/2019 on whether the petition was different from Tete Mwantenga Kafunja (supra). When the court was addressed on the issue, the learned counsel for the petitioner insisted that the two cases were different. But the counsel for the respondent was o f a strong view that the two cases are similar. We are alive that the Court o f Appeal o f Tanzania made a determination on the constitutionality o f the death penalty provided under section 197 o f the Penal Code (supra). This fact is not disputed by learned counsel for the petitioner and 10 respondent. In the case o f Mbushuu (supra) which was referred to us by the learned counsel, the Court o f Appeal at page 117 held: - ....the crucial question is whether or not the death penalty is reasonably necessary to protect the right to life. For this we say it is society which decides. The learned Trial Judge ....... acknowledges that presently society deems the death penalty as reasonably necessary. So, we fin d that though the death penalty as provided by s. 197 o f the Penal Code offends art. 13(6) (a) and (e), it is not arbitrary, hence a lawful law, and it is reasonably necessary and it is thus saved by art 30(2). Therefore it is not unconstitutional. We may observe here that we are aware o f the drive to abolish the death penalty worldwide. But that has to be done, as the learned Trial Judge has aptly pu t it, by deliberate moves 'to influence public opinion in a more enlightened direction’. For the present, even international instruments still provide fo r the death penalty. Expounding on the provision o f section 197 o f the Penal Code (supra), the Court of Appeal at page 114 held that: ..only those persons convicted o f murder are subjected to death penalty .....fo r a person to be convicted o f murder he must have undergone a fu ll trial by the High Court sitting with assessors and with the assistance o f a prosecuting State Attorney and a defence counsel. Then, by practice, there is an automatic appeal to this court. That can never be despotic. ” ii The Court at page 115 further stated that: Section 197 provides fo r death to a person who has been proved to have killed another or others, with malice aforethought, that is, without any excuse recognized by law. So, the legitimate object o f the law is to protect the society from such killings. In view o f the foregoing, we cannot overemphasize that the Court o f Appeal was referring to the mandatory imposition o f death sentence to murder convicts when it considered the death penalty as the only punishment available to a convict of murder and made determination on its constitutionality. In relation to the above authority, we have pondered on the construction of the provision of section 197 of the Penal Code (supra) which provides that “a person convicted o f murder shall be sentenced, to death.'’'’ We have crucially taken note that the provision remains the same in the present statutes book as was then when it was considered by the Court o f Appeal in M bushuu’s case (supra). Our reading o f the above quoted provision o f section 197 o f the Penal Code (supra) brought our attention to the following features that characterize the impugned provision. One, the provision relates only to the offence o f murder. Two, the provision imposes death penalty to an accused person who is convicted o f murder. And three, the provision is couched in mandatory terms which point to the requirement for mandatory imposition o f the death penalty following conviction of 12 murder. To our understanding, the mandatory imposition o f death penalty to a convict of murder is one o f the conspicuous features of the impugned provision of the law which underlines the issue of constitutionality o f the sentence. We are, at this juncture, o f a settled view that consideration o f the constitutionality o f the death penalty under section 197 o f the Penal Code (supra) necessarily entails consideration o f the element o f the law on the mandatory imposition o f the death sentence to a convict o f murder as was in Mbushuu’s ease (supra). We say so because the element o f the mandatory imposition o f the death penalty under the impugned provision of the law has been a conspicuous feature o f the impugned provision since the Court o f Appeal determined the constitutionality o f the death penalty in M bushuu’s case (supra). We are increasingly persuaded that the constitutionality of death penalty under the impugned provision cannot be looked at in isolation o f the element of mandatory imposition of the death penalty. As we mentioned earlier, the impugned provision has never been changed ever since the decision o f the Court o f Appeal in M bushuu’s case (supra). In fact, the position o f the Court o f Appeal in M bushuu’s case (supra) was recently reaffirmed by the Court o f Appeal in the case o f Kachukura Nshekanabo @ Kakobeka v Republic (supra) whose details we need not to reproduce here. It only suffices to say that in this case the appellant, who was a murder convict facing 13 a death penalty, challenged the sentence in the Court of Appeal on ground that it was unconstitutional. The Court of Appeal in the said decision relied solely on M bushuu’s case (supra) and held that the law is now settled in Tanzania that death penalty is constitutional. The court therefore declined to delve into the debate on the constitutionality o f the sentence once gain. We are aware o f the position o f this court in the case o f Tete Mwantenga Kafunja (supra) in which the petitioner’s substantive prayer was on the constitutionality of mandatory imposition o f the death sentence upon conviction o f the offence of murder. This court was in this case (i.e Tete Mwantenga Kafunja) faced with the same issue as is in the present instance. Having considered the payer in relation to M bushuu’s case (supra), this court in Tete Mwantenga Kafunja (supra) reasoned and held that it is fully bound by M bushuu’s case (supra) by virtue o f the doctrine o f stare decisis. Notably, this court was satisfied that the decision o f the Court o f Appeal in M bushuu’s case (supra) is substantially on the same point as was the case o f Tete Mwantenga Kafunja (supra) which was then before it although the issue in M bushuu’s case was raised suo motu by the trial judge. The court went further at page 9 o f its ruling to state that: Having gone through M bushuu’s judgement, we have noted that the Court o f Appeal before arriving at the holding above did deliberate lengthily on the constitutionality o f the death penalty provided under section 197 o f the Penal Code. The petitioners substantive prayer is (a) That, section 197 o f the Penal Code.... Provides fo r the mandatory imposition o f the death sentence upon conviction o f the offence o f murder without giving the convicted person right to mitigate fo r the lesser sentence which contravenes the provisions o f Articles 13(l)(6)(a) o f the Constitution ...... In our view the ...prayer fby the Petitioner / is substantially the same as one addressed by the Court o f Appeal in M bushuu’s case. In that resard , we are not in any way persuaded by the argument that the present petition is different merely because it wasfin M bushuu’s easel raised suo motu by the Court fo f Appeal]. Being bound by the above finding o f the Court o f Appeal, however craftily this petition drafted to differentiate it from the holding set forth by the Court o f Appeal, we are inclined to agree....that the point at issue is one and the same. [Emphasis is ours]. In relation to the matter which is now before us and the authorities that we have considered, we fully subscribe ourselves to the foregoing position o f this court in the case of Tete Mwantenga Kafunja (supra). We are minded that the substantive prayer in the present petition was that the provision o f section 197 o f the Penal Code (supra) is unconstitutional for offending the provisions o f articles 12(2), 13(2), (6) (a), (d), (c), 14 and 29(1) and (2) o f the Constitution. Clearly, the specific complaint on the constitutionality o f the mandatory imposition o f death sentence was not specified in the substantive prayer. Even if the petitioner’s prayer was specifically on the mandatory imposition o f the death sentence as argued by the petitioner’s counsel, we are of a decided opinion that our position would still be the same because of what we have already found herein above. In fact, what we have found above supports the argument o f the learned Principal State Attorney that there is no clear line o f distinction between challenging constitutionality o f death sentence provided for under section 197 of the Penal Code (supra) and challenging the mandatory imposition of the death penalty for murder under the same provision o f law. Consequently, the two prayers are just one and the same in view of our analysis o f the elements o f the impugned provision in relation to the authorities o f this court and the Court o f Appeal which we considered herein above. In so far as we are concerned, we agree with learned Principal State Attorney that this court is in this matter bound by the decision of the Court o f Appeal in M bushuu’s case (supra). We are in this conclusion inspired and guided by the decisions o f the Supreme Court o f India in Forward Construction Co. & Others vs Prabhat Mandal Andheri & Others [1986] AIR 391 and The State of Karnataka & another vs All Indian Manufacturers Organisation and Others, AIR 2006 SC 186 which were favourably relied upon by this court in the case of Fikiri Liganga and another vs The Attorney General and Another Misc. Civil Cause No. 5 o f 2017 (unreported) in relation to the applicability of the doctrine of 16 res judicata in public interest litigation cases. In the All Indian Manufacturers Organisation’s case (supra), when considering the doctrine o f res judicata as it applies in public interest litigation cases the Supreme Court of India stated: ....in public interest litigation, the petitioner is not agitating his individual rights but represents the public at large. As long as the litigation is bonafide, a judgement in previous public interest litigation would be a judgment in rem. It binds the public at large and bars any member o f the public from coming forward before the court and raising any connected issue or an issue, which had been raised/should have been raised on an earlier occasion by way o f a public interest litigation.... Consistent with the above authorities, we wish to emphasize all the same that our conclusion would remain the same even if the prayer on which the issue o f the constitutionality o f the impugned provision is based is crafted as one challenging the mandatory imposition o f death penalty. On a different note, we have closely scrutinized the petitioner’s pleadings to ascertain whether there are any new developments or facts pursuant to the determination in the M bushuu’s case. We have found nothing new pleaded. In the absence o f any new material or change o f circumstances, we are o f the respectful view that, this matter is res judicata and it is not open for this court to rehear it on the same facts. The petitioner is at liberty to move the Court o f Appeal through review if he strongly feels that M bushuu’s case was determined wrongly. 17 In the event and for the reasons herein above stated, we are inclined to, as we hereby do so, answer the issue that occupied our minds in the affirmative with the consequence that disposes o f the matter. Accordingly, the petition is dismissed for lack o f merits without orders as to costs because this is a public interest litigation case. We order accordingly. v )z l. fj- ,' J C 7 <\/\AAAAAj ■1 - ■ L‘" ■ ■ a . A. MUri [SI JUDGE 18/07/2Q19 <v__ B. S. MASOUD JUDGE ^ 1 02/2019 18