20120229 TZCA Arusha

IN THE COURT 'OF APPEAL OF TANZANIA ATARUSHA (CORAM: MUNUO, J.A., KILEO, J.A., And MANDIA, J.A.l . ! ; ,, ,, CRIMINAL APPEALNO. ·. ·; ~- '·:: ;/" . ,. 158 OF 2009 TUMAINI DAUDI IKERA ......................................................... APPELLANT VERSUS THE REPUBLIC •••••••••••••••••••••••• ~ ••••••• ;:••••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Moshi} (Mchome l.l dated the 6th ;day of April, 2009 ,;,~. in~- , I/,:;; ::;i· Criminal Sessions No. 29 of 2009 JUDGMENT OF KILEO, l~ A. (Dissenting on Sentence) \! i::• . i PHlrFi ,, 1-ti(: 27th February & 02nd March, 2012 ' 1 ;, ;;: 'si'· · KILEO, J.A.: I have read the draft judgment prepared by my learned sister Lady Justice Munuo, J. A. I am in full ·agreement with the conclusion reached with regard to the conviction of the appellant. There was ample evidence . 11. •. •• ;\. tendered at the trial linking t;~~ qppellant Tumaini Daudi Ikera to the murder of his father Daudi Ikera Mkwizu. Apart from the fact that the 1 place where he had buried the headless body of the deceased. The evidence against him raised no doubt ~s to his guilt. It is the sentence of death ~hic.h I,am inclined not to uphold. In Abdi Adam @ Chakuu vs. Republic- Criminal Appeal No 157 of 2009 I gave a dissenting decisiqn 1with, regard to the death penalty. My . 't ,, \ stand in this case is the same a'sr·jfi thaf 'case and I will take the liberty to reproduce here what I stated in that cas,e.: J: "As for the sentence of death imposed on the appellant, I would not however endorse it because I -am of the settled mind that it is unconstitutional. ,! : ,. t' _ . :i~f .. 1} · , This Court, in Mbushuu alias. Dominic Mnyange and Another v R, [1995] TLR 97, though it did not find the death penalty to be unconstitutional, nevertheless it_ l)eld th,~t the penalty is inherently an ;it~; i,l'-: , l;"i ;;¥( ·, . inhuman, and degrading punishment and it is also so in its execution and it offends Articl~. 13 (6) (d) and (c) of the Constitution of the United Republi~ of Tanzania. ' ' ' 2 :~ }._!- •;.·,, Fc:lt :L .~1~;·&~k ~; ~~-~t,· ~: ' •. ,;, 1:r~ I ' t? ,,,, ' ' 0 What concerns me most though is the fact that once the penalty has been executed, it cannot be rev~rsed. Admittedly, we are human beings, .,\.:.·, i.' .,· we are not perfect and as such;:is~}m,~tiw,~s we may err. That is why we have a system whereby in certain situations ':! a person can appeal from the ! ' Primary Court ·1evel to the Court of Appeal. Such a person has three levels of appeal - i.e. District Court, High .Court and Court of Appeal. It is not so with the person charged and convicted of murder. This person has just one level of appeal in this count,ry- from High Court or Resident Magistrate tf~ ':. :1;· ,, ,\ '.: with Extended Jurisdiction to the Court of Appeal. 1'.-. ' . Death is one penalty whic~:, :make.~ error irreversible and the chance ,f:'f10r· r:' ·Jf[\ i·. . of error is inescapable when based on ,human judgment. An English jurist, 1 ,·.:· ,, ,,.:l ·, William Blackstone once said, ''Better /hat ten guilty persons escape than I • \ that one innocent suffer. " That we can sometimes err is borne out through reviews that have been conducted of our decision$;~n the}past. •'••' I• :,,.' Professionals in the justice system know that innocent people have been executed ,.1' 3 As earlier pointed out, if a sente~ce of death is executed, a review (if circumstances so dictate) of the decision, which resulted in the carrying out of the execution will not be of any use to the person concerned or to the state and the community concer;,~ed. Jf1anything there will be regrets that could have been avoided .. An article posted on CBC he~is by Neil Macdonald on 13 February : ~1•.·./. ~r-,<· -~\- ._ ~~!'Pi · 2012 underscores my conviction that death penalty is not proper because we may kill convicts who could otherwise be innocent. He had this to say in his article on 'The death penalty debate America isn't having': 'Add to that the fact that according to the Death Penalty Information • :'t'.' Centre, Texas has releaset-i-1211y~h from death row since 1973, usually after prisoners' advocates discovered new evidence of their innocence, much of it resul~i(Jg lro(l1 DNA testing. f \,!~\I ·••.}·., i t :·:~:-~ . ,,;, .• ,~fti '. To be clear: Texas intended to.put 12 innocent men to death. Nationwide, over the same period,: the number is 140~ Also, in the United Kingdom, Timothy Evans, was tried and executed in 1950 for the murder of his baby daughter Geraldine. An official inquiry }:. {e '' 4 ': .1 .' ,. f. ~:~• i:,: ~if/'' . ,,.., '?~') conducted 16 years later determined that it was Evans's fellow tenant, serial killer John Reginald Halliday ,Chri,stie, who was responsible for the (. f 1~'.',;1 t ; ~:, ,. murder. Christie also admitted tOth~·nib'rder of Evans's wife as well as five other women and his own wife. Christie •may have murdered other women, judging by evidence found in his possession at the time of his arrest, but it was never pursued by the police. ·Evans was pardoned posthumously following this, in 1966. The case prompted the abolition of capital ' . 7·~ punishment in the UK in 196.5. t:t-::. #t, Harry Foggie, Chief Justice of VI Judicial Circuit, Florida once said: t ''In my own experience, . 'l<iJow, .Qf four persons convicted of first '., ·--\1, ,' 1"•.q; 01 _ degree murder and sentenced _to· death who were later found to be innocent" I Illinois Governor Gorge Ryan appointed a 14 member Commission on capital punishment to examine Illinois death penalty. He declared the nation's first moratorium on executions. The governor commented that his ,. 1 state's death penalty was fraug~t\,vith ~~ror, noting: "The Illinois capital punish'!'ent system is so fraught with error and has come so close to thefq(ffrnat~ nightmare: the state's taking of ~~ I; . .:.--~ j j ~ 1'1;.~;.J ': innocent life" 1 ,•. • 5 (Obtained from reprieve.org website) ' In Tanzania we cannot boast to ,have a perfect investigation, prosecution and trial system. We may have condemned people to death who did not commit the crim~. ~t{ ; . , .i1' Another aspect of the death penalty, which concerns me, is the fact that this is the only penalty whgri~e .d.o to the culprit according to what . . ' ,~· ., .' -~~",1' ; he did - i.e. "an eye for an eye". In my humble opinion we are reducing ourselves to the level of the accused, it is like saying: "he killed and we must also kill him" - Yet we do not. do likewise for those who rob, steal, rape etc. We do not do to them what they did . . .,• The death . penalty is the ptemeditated \ . !.' and cold-blooded killing of a human being by the state. As stated in The Mbushuu case -supra, it is a cruel, inhuman and degrading punishment. /'". it ' ' . 1,JUJf.. .,·,;,,, .· tr . ·r:·,; '' •' .,:/, l 'j It violates the right to life as proclaimed in the Universal Declaration of Human Rights as well as the right to life which is protected in our Constitution- see Article 14. Further to that I am of the humble view also that since we do not give life, then we have no right to take it, no matter 6 I. '· tf., , d/\·· what the other person has done. It is only God who gives life and it is Him alone who should take it. } Another point is the fact that death is certain for each one of us - so what kind of punishment is a death penalty anyway? In my opinion life imprisonment would be more appropriate in the circumstances of the case and it is the one I would have irnp,ose~b :. ; ' j ~ th DATED at ARUSHA this 29 day of February, 2012 E. A. KILEO \ JUSTICE OF.APPEAL I ' I certify that this is a true copy of the original. . .-.,,_1.:.~./ .r.:,.~Jt .. ~· 1 .. '-\..,, -~ ' '. 4 -~; .,. ,. .! • I' .r 7