chrizant john vs republic 2016 tzca 654 24 february 2016

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: KILEO. J.A.. MJASIRI. 3.A. And MMILLA. J.A.^ CRIMINAL APPEAL NO. 313 OF 2015 CHRIZANT JOHN.....................................................................................APPELLANT VERSUS THE REPUBLIC.....................................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Bukoba) (Matoqolo, dated the 26th June, 2015 in Criminal Session CaseNo. 55 of 2014 JUDGMENT OF KILEO. J. A. (Dissenting on Sentenced 18th &24th February, 2016 KILEO, 3.A.: I have had the occasion to read the judgment of my brother Mmilla, J. A. I am in complete agreement to the decision reached with regard to conviction. There was unimpeachable evidence that the appellant killed the deceased who was his step mother. The killing followed a finding by the District Land and Housing Tribunal which had ruled in favour of the deceased in a land matter involving the appellant's siblings. This enraged the appellant who decided to take a shortcut by taking the law into his own hands by bringing to an end the deceased's life. What I do not endorse is the death penalty. On a number of dissenting judgments on sentence I have explained why I have taken that stand. One such decision is Abdi Adam @ Chakuu vs. Republic - Criminal Appeal No. 157 of 2009. I have not changed my position. This Court, in Mbushuu alias Dominic Mnyange and Another v R, [1995] TLR 97, held that the death penalty is inherently an inhuman, and degrading punishment and it is also so in its execution and it offends Article 13 (6) (d) and(c) of the Constitution of the United Republic of Tanzania. In my opinion the death penalty not only violates article 13 (6) (d) and (c) of the Constitution of the United Republic but it also violates the right to life which is enshrined in the Universal Declaration of Human Rights to which Tanzania is a signatory. It is provided for in article 14 of our Constitution. The death penalty is one sentence that is irreversible once it has been executed. US District Judge Michael Adrian Ponsor once said: "A le g a l system relying on the death penalty w ill inevitably execute innocent people , not too often, one hopes, but undoubtedly som etim es. M istakes w ill be made because it is sim ply not possible to do som ething th at perfectly, a ll the tim e. A ny honest proponent o f cap ital punishm ent m ust face th is fa ct." (Quoted from Pierre Pradervand's: Messages of Life from Death Row) Our criminal justice system cannot boast of being without flaws just as there are flaws even in more advanced jurisdictions. Former Missouri Supreme Court Chief Justice Charles B. Blackmarhad this to say: "The thought o f executing an innocent person is repulsive. This is so even though the accused person m ay be a habitual crim inal g u ilty o f num erous crim es against persons and property. Yet few have the benefit o f d ilig en t service... the process is so fa ta lly flaw ed th at the only solution lie s in abolishing cap ital punishm ent. M ost nations with which we share a common heritage have already taken th is step. The relatives o f the victim have the rig h t to dem and sw ift and sure punishm ent, bu t they do n ot have the rig h t to dem and death when the process is so severely flaw ed" {P\ene Pradrvand, supra). As I pointed out also in my previous dissenting judgments the death penalty which is obviously the gravest of the penalties as of now in our 3 cases like theft may sometimes have up to three levels of appeal it is^even more imperative to~'refram from imposing the death penalty tfearfng in mind the possibility of error which may result in the taking of an innocent life. In view of the above considerations and other considerations as stated inAbdi Adam @ Chakuu vs. R epublic, supra, I would not uphold the death penalty. I would substitute therewith a life sentence. Dated at Bukoba this 23rdday of February 2016. E. A. KILEO JUSTICE OF APPEAL I certify that this is a tr of the original. E.FTOSSI DEPUTY REGISTRAR COURT OFvAfrPEAL