1994 TLR 146

146 T A N Z A N IA LAW R E P O R T S [1994] T.L.R A R E P U B L IC v M B U S H U U alias D O M IN IC M N Y A R O JE A N D KALAI S A N G U L A H IG H C O U R T O F T A N Z A N IA (Mwalusanya, J) C R IM IN A L SESSIONS C A SE N O 44 O F 1991 June 22, 1994 - D O D O M A q Constitutional Law - Death penalty - W hether or not offends the right to dignity - Article 1 3 (6 )(d ) o f the Constitution o f the Uni­ ted Republic o f Tanzania, 1977. Constitutional Law - Death penalty - Whether it is a cruel, inhuman and degrading punishment and treatment - Article 1 3 (6 )(e ) o f the p Constitution o f the United Republic o f Tanzania. Constitutional Law - Penal Code - Whether the provision prescribing death penalty is lawful law or necessary in the public interest - Article 3 0 (2 ) o f the Constitution o f the United Republic o f Tanza­ nia. £ Constitutional Law - Death penalty - Whether death penalty violates article 14 o f the Constitution o f the United Republic o f Tanzania which guarantees the right to life. Constitutional Law - Violation o f basic rights - Burden o f p r o o f - P ro o f on balance o f probabilities. » F Statutory interpretation - Constitutional provisions guaranteeing basic rights - Whether generous and purposive construction should be applied. The two accused were convicted of murder contrary to s 196 of the Penal G Code, by the High Court and they were to be sentenced to death. However before the sentence was pronounced a point was raised that the death penalty was unconstitutional and therefore it should not be imposed on the accuse^- Held: (i) Death penalty offends the right to the dignity of a person in the way the sentence is executed and therefore it offends article 13(6)(d) of the Constitution of the United Republic of Tanzania; (ii) Death penalty is inherently cruel, inhuman and a degrading punish­ ment and the process of execution by hanging is particularly grue­ some, generally sordid, debasing and generally brutalising, and it 1 offends article \7>(f>)(e) of the Constitution of the United Republic of Tanzania: R E P U B L IC v M B U S H U U & S A N G U L A (Mwalusanya, J.) 147 (iii) From the wording of article 14 on the right to life in the Swahili A version of the Constitution of the United Republic of Tanzania, which is the controlling version, both the right to life and the right to protection of one’s life by society is subject to the claw-back clause and is therefore not absolute; (iv) The petitioners have managed to prove on a balance of probabilities R that hanging, as the way of carrying out the death penalty, is a cruel, inhuman and degrading punishment; (v) The petitioners have only evidential burden to show that a right has been infringed and once they have succeeded to show that then it is for the state to prove on a balance of probabilities that the law being attacked as unconstitutional is lawful law and that it is saved by C article 30(2) of the Constitution of the United Republic of Tanzania and therefore it is in the public interest; (vi) The Republic has failed to prove on a balance of probabilities that the death penalty is in the public interest; (vii) For a law to be lawful it should meet the proportionality test and it ^ should not be arbitrary; the Government in this case has failed to prove on balance of probabilities that the present law restricting the right to life is proportionate and the carrying out of the sentence is not arbitrary; (viii) The provisions of the Penal Code on the death penalty do not have adequate safeguards against arbitrary decisions and do not provide E effective control against abuse of power by those in authority when using the law; (ix) Death penalty is contrary to article 1 3 ( 6 )^ of the Constitution of the United Republic of Tanzania because there is no appeal against the decision of the President not to commute the sentence even if it is p unreasonable or discriminatory; (x) In construction of provisions of the Constitution and in particular that part of it which protects and entrenches fundamental rights and/§- freedoms, a generous and purposive method should be applied^ Death penalty in its present form is unconstitutional. G Cases referred to to: ; (1) AG o f the Gambia v Momodue Jobe [1984] PC 689. (2) Minister o f Home Affairs v Fisher [1980] AC 319. . (3) Kukutia Ole Pumbun and Another v AG [1993] TLR 159. (4) AG v Lesinoi s/o Ndeinai [1980] TLR 214. u (5) Riley and Others v AG o f Jamaica [1982] 3 All ER 469. (6) Catholic Commission for Justice and Peace v AG and Others [1993] (1) ZLR 242. (7) AG v Morgan [1985] LRC (Const) 770. (8) The State v Petrus [1985] LRC (Const) 699. (9) AG v Edmund s/o Lawrence [1985] LRC (Const) 921. I (10) Kahekeya Buzova v R [1976] LRT n 16. 148 T A N Z A N IA LAW R E PO R T S [1994] T .L .R A (11) Ndlovu v The State [1988] LRC (Const) 442. (12) Trop v DulleS, 356 US 86. (13) Estelle v Gamble 429 US 97. (14) Chileya v State, Criminal Appeal No 64/1990. (15) Soering Case [1989] 11 EHRR 439. R (16) Furman v Georgia, 408 US 238. (17) Javed Ahmed v The State o f Maharashtra, AIR 1985 SC 251. (18) Madhu Mehta v Union o f India [1989] 3 SCR 775. (19) De Freitas v, Benny [1976] AC 239 (PC). (20) Bello v AG ofOy o State [1986] 5 NWLR 88828. (21) Omwuka v The state [1988] 1 NWLR 529. C (22) Dhlamini and Others v Carter [1968] 1 RLR 136. (23) AG v Lachma Devi [1986] LRC (Const) 1. (24) Bachan Singh v State o f Punjab [1983] 1 SCR 154. (25) Director o f Public Prosecution v Daudi Pete, [1993] TLR 22. (26) Said s/o Mwamwindi v R [1972] HCD 212. j-j (27) R v Asha Mkwizu Hauli, Dar es Salaam, High Court Criminal Ses­ sions Case No 3 of 1984 (unreported). (28) Director o f Public Prosecutions v Leganzo Nyanje, Criminal appeal No 68 of 1980 (unreported). (29) R v Agnes Doris Liundi [1980] TLR 46. (30) Conjwayo v Minister o f Justice and Director o f Prisons [1991] 1 ZLR E 105 (SC). Mwambe and Kifunda, for the Republic. Rweyongeza and Mpoki, for the accused. F Mwalusanya J: I. IN T R O D U C T IO N The two accused M bushuu alias D om inic M nyaroje (first accused) and Kalai s/o Sangula (second accused) were on 13 M ay 1994 con- G victed o f m urder contrary to s 196 o f the Penal Code cap 16 by this C ourt. They were supposed to get a death penalty by virtue o f s 197 o f the Penal C ode, and the death penalty is to be by hanging as per s 26 o f the Penal Code. Before the death penalty was im posed, coun­ sel for the accused (on dock brief) M r Rweyongeza raised a point to H the effect th a t the death penalty is unconstitutional and so it should not be im posed. Three points were raised concerning the unconsti­ tutionality o f the death penalty - first th at it offends the right to dignity in the execution o f a sentence provided for in article 13(6)(d) o f the C onstitution; secondly th at the death penalty is a cruel, inhum an and degrading punishm ent and treatm ent prohibited by article I3(6)(e) o f o u r C onstitution; and thirdly th at the death R E P U B L IC v M B U S H U U & S A N G U L A (Mwalusanya, J.) 149 penalty offends the right to life as provided in article 14 o f ou r A C onstitution. The A ttorney-G eneral was duly served with sum ­ m ons to appear as required by s 17A(2) o f the Law Reform (F atal A ccidents & Misc Provisions) O rdinance cap 360 as am ended by Act 27 o f 1991. And M r M wambe learned State A ttorney duly appeared on behalf o f the A ttorney-G eneral. B A t the outset I wish to point o ut some o f the general principles th at will guide me in arriving a t my conclusion a t the end o f the day. First I take it th at a constitution and in p articular th a t p art o f it which protects and entrenches fundam ental rights and freedom s to which all persons in the state are to be entitled, is to be given a C generous and purposive construction - see the decision o f the Privy Council in AG o f The Gambia v M omodue Jobe (1) a t 700 as per Lord Diplock. The Privy Council repeated th at doctrine in M inister o f Hom e A ffairs v Fisher (2) where Lord W ilberforce 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 g 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.’ And in the same vein, as counsel for the petitioners M r Rweyon- geza has pointed out, the C o u rt o f A ppeal o f T anzania in the case o f F Kututia Ole Pumbun & anor v AG (3) stated a t page 11 o f the typed judgm ent (as per K isanga JA ) that; ‘Any law th at seeks to limit fundam ental rights o f the individual m ust be cgnstrued-stricliy to m ake sure th a t it conform s with these requirem ents, otherwise the guaranteed rights under the C onstitution m ay easily be rendered G m eaningless by the use o f the derogative o r claw -back clauses o f that very same C on stitu tio n .’ And also relevant is the decision o f the T anzania C ourt o f A ppeal in AG v Lesinoi s/o Ndeinai (4) which it held th at a constitutional provision should not be construed so as to defeat its evident purpose, but rather so as to give it effective H operation. C onnected to the above principles is the question o f burden o f proof. I think there are two situations. First on whom does the burden q f p ro o f lie to establish th at there has been a violation o f a basic hum an right? Secondly, once it has been established th a t I there has been a violation o f a basic hum an right, on whom does 150 T A N Z A N IA LA W R E PO R T S [1994] T.L.R A the burden o f p ro o f lie to show that the violation has been saved by the C onstitution? In the first situation the m atter was put clearly by the Privy C ouncil in the case o f Riley & others v AG o f Jamaica (5) at 480 th at it was on the person attacking the death penalty to be unconstitutional to prove on a balance o f probabilities that it is a B cruel, inhum an and degrading punishm ent. The Suprem e C ourt of Zim babw e in the case o f Catholic Commission fo r Justice and Peace v AG & others (6 ), as per G ubbay C J stated that: ‘I consider that the burden o f p ro o f that a fundam ental right, o f whatever nature, has been breached is on him who asserts it. In relation to article 15(1) o f C the C onstitution the issue o f w hether an individual has been sub­ jected to tortu re or to inhum an or degrading punishm ent is essen­ tially a m atter o f fact and ordinarily som e evidence would have to be adduced to support the contention. The respondent is not ob­ liged to do anything until a case is m ade out which requires to be D m et.’ I accept th at to be the correct position even here in T anzania. As regards the second situation the case decided by the C ourt o f A ppeal o f T rinidad and T obago o f AG v Morgan (7) correctly stated on w hom the burden lies where it stated; ‘W here an A ct is passed into law and th a t Act is one th at restricts the rights and freedom s o f E an individual, in order to im pugn such an Act, all th at the indivi­ dual is required to do is to show th at one or m ore o f his rights has been restricted. Having done so, because o f the expressed constitu­ tional policy, the burden is then shifted to the proponents o f the Act to show th at the provisions o f the Act restricting such rights and F freedom s are reasonable restrictions. If the proponents o f the Act fail to discharge this burden, then a C o u rt o f com petent jurisdiction m ay pronounce against the validity o f the im pugned A ct.’ I agree w ith th at proposition o f law. T hat m eans the petitioner has only an evidential burden o f p ro o f and the State has to prove on G a balance o f probabilities that the violation o f the basic hum an rights has been saved 'by the C onstitution. T hat is exactly w hat was decided also by the C ourt o f A ppeal o f Botswana in the case o f The State v Petrus (8 ) at 722 as per A guda JA . The decision of the C o u rt o f A ppeal o f St C hristopher and Nevis in the case o f AG v H Edm und s/o Lawrence (9) which suggests that the petitioner has to establish a prim a fa cie case that the law im pugned is unconstitu­ tional before the onus shifts to the Republic, was in my view wrongly decided. The petitioner does not have to establish a prima fa cie case b u t ju st raise the m atter (evidential burden) th at a parti- I cular piece o f legislation is ex-facie ultra vires the C onstitution then the onus shifts to the Republic. It is ju st sim ilar to the defence o f R E P U B L IC v M B U S H U U & S A N G U L A (Mwalusanya, J.) 151 intoxication in the case o f m urder, where the burden o f proving that A the accused was capable o f form ing the intent necessary to consti­ tute the offence o f m urder always rem ains on the prosecution, and such a burden is not discharged if the probability emerges from the evidence (either from the evidence o f the prosecution or the ac­ cused) th at the accused was incapable o f form ing the intent - see B the decision o f the East A frican C ourt o f Appeal in Kahekeya Buzoya v R (10). So similarly the petitioner has ju st to raise the fact that a particular piece o f legislation violates a basic hum an right, and he does not have to establish a prim a facie case before the burden o f p ro o f shifts to the Republic. C Finally I am o f the considered view th at international hum an rights instrum ents and court decisions o f o th er countries provide valuable inform ation and guidance in interpreting the basic hum an rights in ou r C onstitution and so a judge in my present situation should look to them and draw upon them in seeking a solution. As D the C hief Justice o f Zim babw e G ubbay CJ has pointed out in (1990) Commonwealth Law Bulletin vol 16 N o 3 a t 999: ‘A judicial decision has greater legitimacy and will com m and m ore respect if it accords with international norm s that have been accepted by m any coun­ tries, than if it is based upon the parochial experience o r foibles o f a E p articular judge or c o u rt.’ * I And the C hief Justice o f T anzania M r Justice N yalali in the case o f AG v Lesinoi s/o Ndeinai (4) at 222 states th a t when basic hum an rights are at stake or the question o f interpretation o f a constitu­ tional provisions arises then: ‘O n a m atter o f this nature it is always F very helpful to consider w hat solutions to the problem s other courts in other countries have found, since basically hum an beings are the same though they m ay live under different conditions.’ Suffice to state here th at the Bangalore Principles (1988) pronounced by a distinguish Judicial Colloquim and later adopted at H arare g (1989), Banjul (1990), A buja (1991) and Balliol (1992) speak the same message above expounded. Let it be noted th at Nyalali CJ attended the H arare Judicial C olloquim , while R am adhani JA a t­ tended the Balliol (O xford, England) Judicial C olloquim . H II. T H E R IG H T T O D IG N IT Y A N D T H E R IG H T A G A IN S T C R U E L , IN H U M A N A N D D E G R A D IN G P U N IS H M E N T AND TREATM ENT The right to dignity under article 13(6)(d) and the right against cruel, inhum an and degrading punishm ent and o r treatm ent under I article I3(6)(e) will be discussed under one rubric. This is because 152 T A N Z A N IA LAW R E PO R TS [1994] T.L.R A the right to dignity referred to in th at provision is concerned with the preservation o f dignity in the execution o f a sentence. A nd it is my view th at a person w ho has been subjected to a degrading treatm ent has also been deprived o f his right to dignity. I also wish to point out at the outset that a punishm ent is either B inherently cruel, inhum an and degrading or the m ode o r m anner o f execution o f the punishm ent is cruel, inhum an and degrading. T hat m uch was pointed out by the C ourt o f Appeal o f Botswana in the case o f The State v Petrus (8 ) and by the Suprem e C ourt o f Zim ­ babw e in the case o f Ndlovu v The State (11). It is the case for the q petitioners that the death penalty is both inherently a cruel, inhu­ m an and degrading punishm ent and th at its m ode o r m anner of execution is also cruel, inhum an and degrading. A nd it is my find­ ing th at the term ‘to rtu re ’ used in our C onstitution is the equivalent o f the term ‘cruel’ that I will hereinafter use. D And it will be im portant to rem em ber that concepts such as ‘cruel, inhum an, and degrading’ are subject to evolving standards o f decency. They are not im m utable. A nd th a t is w hat we learn from the US Suprem e C o u rt in the cases o f Trop v Dulles (12) at 101; and Estelle v Gamble (13) at 102. Thus pnnishm ent nr_treatm ent incom - £ patible with the evolving standards o f decency th a t m ark the p ro ­ gress o f a m aturing society or which involve the infliction o f unnecessary suffering is repulsive. W hat m ight not have been re­ garded as inhum an decades ago may be revolting to the new sensi­ tivities which emerge as civilization advances. P (a ) The death penalty is inherently cruel it was subm itted on behalf o f the tw o petitioners. It is said the process o f execution by hanging is particularly gruesom e. 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 h alf feet w ith a rope around his neck. T he intention is to break his neck so th at he dies quickly. The length o f the drop is determ ined on the basic o f such factors as body weight and m uscularity or fatness o f the prisoner’s neck. If the hangm an gets it w rong and the prison­ er is dropped to o far, the prisoner’s head can be decapitated or his face can be to rn away. If the drop is too short then the neck will not H be broken but instead the prisoner will die o f strangulation. There are m any docum ented cases o f botched hangings in various coun­ tries including T anzania. 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 o r use a ham m er to hit his I head. T he shock to the system causes the prisoner to lose control over his bowels and he will soil himself. R E P U B L IC v M B U S H U U & S A N G U L A (Mwalusanya, J.) 153 In short the whole process is sordid and debasing. N o t only is the A process generally sordid and debasing, but also it is generally b rutal­ izing and thus defeats the very purpose it claims to be pursuing. The brutalizing effect o f executions has been am ply docum ented - see ‘Legal Homicide: Death as Punishment in America fro m 1864 to 1982' (1984) 2nd ed a t 271-335 by W illiam J Bowers and G R B Pierce; and the book 'The effect o f Executions is Brutalization, not Deterrence' (1988) by W illiam J Bowers, K enneth A H aas and Jam es A Inciardi (editors). It was argued for the petitioners th at the State continues to per­ petuate such cruelty under the protection o f the law. This m ay C legitimize the act in its legal sense, but certainly it does nothing to m itigate its barbarity. The act o f killing in itself is offensive: th at it is done by the State does nothing to lesson its offensiveness. It is furtherm ore done in cold blood with utter cruelty. N ow there are circum stances which lead up to the killing which are said to provoke D it. But this is not provocation in the innate m oral sense. W hen a private individual kills after having been provoked, this is regarded as m itigating because, a t the time o f the killing, the killer’s blood is heated and hum an passions aroused. W hen the State kills, its blood is cold, its detachm ent inhum an. Legitimizing State killings by law E thus takes killing o u t o f the arena o f perverse h u m an beh av io u r and elevates it into a principle. In other w ords rath er th an killing being deem ed as heinous in itself - the result o f perversity - it becomes som ething which is acceptable if done by the right people at the right time. The gates are then opened for people to determ ine F w hether they are the right people-and w hether the tim e is right. The heinous nature o f m urder becomes diluted in the public eye, the public becomes accustom ed to brutality, brutality enters the prevailing m oral ethos, becomes acceptable and regarded as an inevitable p a rt o f hum an society. A prom inent Am erican lawyer, G Clarence D arrow , in his speeches ''Attorney fo r the D am ned (1957) Simon & Schuster, New Y ork at 92 states: ‘W e teach people to kill and the State is the one th at teaches them. If the State wishes that its citizens respect hum an life, then the State should stop killing. The greater the sanctity th at the State pays to life, the greater the feeling H o f sanctity the individual has for life.’ T o dram atize it, consider its logical corollary. A w om an is beaten and raped. The perp etrato r is apprehended. A State rapist is then engaged to exact retribution on behalf o f society. He first beats the rapist in an identical m anner to that in which the w om an was beaten I and then proceeds to rape the rapist in as identical a fashion as 154 T A N Z A N IA LAW R E PO R T S [1994] T.L.R A possible, oncc or however m any counts are involved. The very analogy is distasteful. O ne m ay decide to create a raping m achine operated by the State rapist to rem ove some o f these distasteful aspects. It w ould nonetheless rem ain a punishm ent which should not be B countenanced by society. The reason is clear. R ape in itself is brutal and abhorrent. It does not m atter th at it is done under the cloak o f any law. To have an official State rapist is debasing and brutalizing to society. It gives an official stam p o f approval to degradation. Yet som ehow , m urder, which is worse, is carried out under the cloak o f C the law and is regarded as acceptable. M urder, like rape, is in itself brutal and m ust be condem ned unequivocally for itself and not merely by reason o f the fact that it was not done under the sanction o f law. This is why state killing is debasing and brutalizing. It seeks to legitimize brutality; which can never be anything other than D brutality. T hat was part o f the argum ent on behalf o f the two petitioners. M oreover it was argued on behalf o f the petitioners that the State by conduct adm its th a t the death penalty is sordid and debasing. In the past hangings were done publicly. W hen capital E punishm ent was a public spectacle it becam e linked in the m inds o f the public as p art and parcel o f the crime. It was as if the punishm ent was thought to equal, if not to exceed, in savagery, the crim e itself, to accustom the spectators to a ferocity from which one wished to divert them . A t the end o f the day the F tortured crim inal became an object o f pity or adm iration if not a hero by the spectators. The perception th at the state was brutal had to be m inimized. It was achieved by m aking the execution the m ost hidden p a rt o f the penal process. The actual execution is carried out under a seal o f secrecy and executions are bureaucra- G tically concealed. The concealm ent minimizes only a n d does not rem ove the debasem ent and brutalization. T he concealm ent, it was subm itted, m anifests the S tate's guilty conscience. It has also been argued that if death penalty is to stay, then other better m ethods o f killing than hanging have to be invoked o r de- H vised. T here has been suggested the use o f the electric chair or a lethal injection or gas cham ber as used in the USA. These m ethods are less cruel than hanging. T he Suprem e C ourt o f Zim babw e in the case o f Chileya v State (14) was ab o u t to deliver a judgm ent to the effect th at death penalty by hanging was cruel and debasing punish- I m ent, and so the State should devise a better m ethod o f killing. H ow ever the C o u rt was pre-em pted by the governm ent which R E P U B L IC v M B U S H U U & S A N G U L A (Mwalusanya, J.) 155 passed an am endm ent to the C onstitution to the effect that ‘hang- A ing’ was constitutional. But why use ‘hanging’ when there are other less cruel m ethods o f killing? (b) Then it is argued that the m ode or m anner o f execution o f the death penalty is objectionable on two grounds - the long delay in carrying out the execution and secondly, the horrible conditions B under which the people on death row are kept. The first point ab o u t the long delay in carrying out the execution, it is argued causes untold m ental anguish to the prisoners on death row. C apital punishm ent, it should be pointed out, is a euphem ism for official killing by the State. However, unlike m ost m urders, the C process leading up to the killing is a long draw n out one. F rom the time the person is sentenced to death he is im m ediately installed on death row in a blue uniform . He is kept in virtual solitary confine­ m ent in an individual cell which is so small th a t he can touch both walls with his arm s outstretched - see s 71 o f the Prisons Act 34 o f D 1967 and also regulation 21(2) and regulation 33 o f the Prisons (Prison M anagem ent) R egulations G N N o 19 o f 1968. The only reading m aterial, if any, is the bible o r other religious tracts. Every night all his clothes are taken away and he is kept naked in his cell until the next m orning. The light in his cell is never turned o ff and E he is kept under surveillance by the guards. Some guards take de­ light in taunting the prisoners, constantly rem inding them o f their im pending fate and telling them gruesom e stories o f executions which have gone wrong. From the time the High C ourt tells a m urderer th at he is to hang, in the T anzanian context he will often F wait in suspense for m ore than four years before he is finally taken to the gallows. I was referred to an article in the Business Times new spaper by M r R obert Rw eyem am u (with a legal touch colum n) o f 2 April 1993, and counsel for the petitioners M r Rweyongeza said th at it reveals aptly the long delays o f carrying out executions in G Tanzania. The long agonizing wait before the final decision is taken and the shorter wait for the sentence to be carried out inevitably causes appreciable m ental suffering. This pre-execution period has been referred to as a period in which the prisoner suffers a living death o r hell on earth. He fearfully broods on his fate and suffers H great anguish and uncertainty. This often leads to pronounced m ental deterioration. Inordinate delay before execution thus constitutes a form o f prolonged m ental torture. F o r a detailed discussion o f and reference to the literature on the m ental effects upon prisoners on death row - see pp 12-15 o f I the cyclostyled copy o f the judgm ent o f the Suprem e C ourt o f 156 T A N Z A N IA LAW R E P O R T S [1994] T.L.R A Zim babw e in the case o f Catholic Commission for Justice and Peace v AG and others (6 ) Then there was the argum ent presented about the horrible con­ dition in the condem ned sections o f all prisons in T anzania. I was invited under s 59 and s 122 o f the Evidence Act 6 o f 1967 to take B judicial notice o f all the Prison R egulations G N N o 13 o f 1968, G N N o 18 o f 1968 and G N N o 19 o f 1968 and the reports o f the Visiting Justices to prison. F o r exam ple the am ount o f diet and the am ount o f exercise allotted to the prisoner on a death row is at the discretion o f the Principal Com m issioner o f Prisons and is generally minimal C see regulation 33 o f the G N N o 19 o f 1968. It is com m on knowledge that the prisoners are kept in tiny cells w ithout access to washing, and open air and they cannot exercise cffcctivcly. Bccausc o f poor preparation conditions the diet provided is extremely p oor and the q uantity small. In short the prisoners on death row are treated as D non-persons whose rights are subject to the whim o f the supervising adm inistration at the prison concerned. F o r sim ilar conditions of prison in Zim babw e, the Suprem e C o u rt there in the case o f Con- jw ayo v M inister o f Justice and Director o f Prisons (30) held that these horrible conditions constituted a cruel, inhum an and degrad- E ' ing punishm ent. On concluding this part, it has been contended on behalf o f the petitioners, that the emerging consensus o f values in the civilized international com m unity as evidenced by the U N hum an rights instrum ents, the decision o f other courts and the writings o f leading F academ ics is th at the death penalty is a cruel, inhum an and degrad­ ing punishm ent. It was pointed o ut th at article 6( 6 ) o f the Interna­ tional C ovenant on Civil and Political Rights (1966) (which ' T anzania has ratified) states: ‘N othing in this article shall be in­ voked to delay or to prevent the abolition o f capital punishm ent G by any State Party to the present C ovenant’ which indicates that the parties to the C ovenant have agreed to eventually abolish the death penalty. And the U N Com m ission on H um an Rights a t its 1989 session in G enera agreed by consensus that the death penalty was a cruel, inhum an and degrading punishm ent, and agreed to H forw ard to the U N G eneral Assembly a draft Second O ptional Protocol to the International C ovenant on Civil and Political Rights aim ed at abolishing the death penalty. Indeed the Second O ptional Protocol to the International C ovenant on Civil and Po­ litical R ights was passed by the U N G eneral Assembly in 1989 and I m any m em ber states have started ratifying it, and no d o u b t T anza­ nia which has a great reputation o f respecting hum an rights will R E P U B L IC v M B U S H U U & S A N G U L A (Mwalusanya, J.) 157 soon ratify it. A m nesty International, vide its D eclaration o f Stock- A holm o f 1977, with delegates o f ab o u t 200 from A frica, Asia, E ur­ ope, M iddle East, N orth and South Am erica and the C arribean Region, declared that the death penalty was an inhum an, degrad­ ing and cruel punishm ent. J h e N yalali C om m ission in its a n t h n r i . tative R eport Book III at 25 held th at the .death. penalty^ was an B inhum an and f u r l p ^ n khm pnt and so should be abolished. Then we have the Council o f E urope which in its Protocol 6 to the C o n ­ vention for the Protection o f H um an Rights and Freedom s (1950) abolished the death penalty in 1983 for all m em ber countries o f the Council o f E urope because they had found it to be a cruel and C inhum an punishm ent. And the E uropean C ourt o f H um an Rights in the Soering case (15) held th at the death penalty according to the evolving standards o f W estern E urope was a cruel and inhum an punishm ent. The following countries o f the C om m onw ealth have abolished the death penalty: N am ibia, The G am bia, K iribati, New D Zealand, Solom on Islands, Tuvalu and V anuatu, A ustralia and South Africa (soon to become a C om m onw ealth m em ber). Some o f the decisions o f o ther countries which have declared the death penalty to be a cruel punishm ent are: USA in Furman v Georgia (16); India we have Javed Ahm ed v The State o f M aharashtra (17) E and M adhu M ehta v Union o f India (18); in W est Indies we have De Freitas v Benny (19) and Riley v AG o f Jamaica (5); and two cases from Nigeria - Bello v AG o f O yo State (20) and O m wuka v The State (21) and from Zim babw e the fam ous case cited above o f The Catholic Commission fo r Justice and Peace v AG (6 ). F The argum ents for the Republic in reply were m ade by the State A ttorney M r M wamhe. M r M wamhe conceded th at the prisoners do suffer some tortu re in the process o f hanging, but countered by stating th at the torture the victims o f m urderers encounter is m uch m ore. A nd since the m urderers are getting a just desert and w hat G they deserve, then they cannot com plain ab o u t the tortu re o r loss o f dignity, he subm itted. C oncerning the delay in carrying out the execution for years on end, M r M wam he subm itted th at it is not a tortu re but a blessing in disguise to the said prisoners. H e said that in fact the prisoners are H quite happy for the delay, as they are given m any m ore years to live which they d o n ’t deserve. Concerning the horrible conditions in the death cells, all M r M wamhe could say was that the prisoners are treated in accordance with w hat the T an zan ian ’s state o f econom y can afford. He could I not tell if the conditions in prison are horrible or not. 158 T A N Z A N IA LAW R E PO R T S [1994] T.L.R A A nd for the Republic it can be argued that the remedy to the above nam ed com plaints about tortu re in hanging, delay in execu­ tion and horrible conditions in the death cells, has been given in o ther countries, although M r M wambe was not aw are o f this. It could be contended that the solution to the com plaints raised by B the prisoners is not the abolition o f the death penalty, but to apply to court to give an order to the G overnm ent to rectify those m atters. The C hief Justice o f the then Southern Rhodesia Beadle CJ in the case o f 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 p inhuman treatment complained of in the instant case is the delay in carrying out the sentence. If, as I have already 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 E person sentenced to death is ever likely to do.’ There is also an o th er point in favour o f the Republic to the effect there is no consensus o f values in the so-called civilized society that the death penalty is a cruel, inhum an and degrading punishm ent. It F has been pointed o ut that the decisions o f other courts in different countries are not uniform . F o r exam ple in the USA m any States retain the death penalty. In India in such cases as AG v Lachma Devi (23) and Bachan Singh v S tate o f Punjab (24) the Supreme C ourt there held th at the death penalty by hanging was not a cruel, inhu- G m an and degrading punishm ent. A nd as long ago as 1961 the UN G eneral Assembly in its Resolution N o 32 o f 1961 declared that the death penalty was not unlawful but th at it should be reserved for only very serious crim es like m urder. Even article 6(2) o f the Inter­ national C ovenant and Civil and Political Rights (1966) does not H prohibit m em ber countries im posing the death penalty for serious crim es like m urder. W hat is m ore is that the U N Convention against T o rtu re and o ther Cruel, Inhum an or D egrading T reat­ m ent and o r Punishm ent o f 1987 did not prohibit the imposition o f the death penalty if it is prescribed by law. T hat is why the I m ajority o f the 161 m em bers o f the U N O retain the death penalty - 100 countries retain it and only 35 countries have abolished it R E P U B L IC v M B U S H U U & S A N G U L A (Mwalusanya, J.) 159 see Am nesty International Newsletter M ay 1989 at 3. And in the A C om m onw ealth 46 countries out o f 53 retain the death penalty and only 7 have abolished it - see the Commonwealth Lawyer Jour­ nal o f M arch 1993 at 71-76. It has been subm itted elsewhere th at the argum ent that capital punishm ent has no place in a civilized society, presupposes th at only B one set o f values (liberal W estern values) is ‘civilized’. They exclude the values o f the T hird W orld including countries o f the East. In any case even in the West there is no unanim ity about the desir­ ability o f abolishing capital punishm ent. In C hina and other coun­ tries o f the East where C onfucian values prevail (eg Singapore, C Taiw an) capital punishm ent is accepted w ithout hesitation. The W estern liberal values do not represent w hat is truly a ‘civilized society' but its adm irers merely confuse it with technological a d ­ vancem ent. It m ay be true to say that technology has advanced considerably in the last few decades, but it is highly debatable D w hether civilization has advanced m uch, if at all. Civilization in fact is going dow n particularly in the decadent W est. We see in the W est a decline in values to the point where one w onders if most people have any beliefs o r m orals at all: an all-absorbing selfishness and lack o f concern for others, crass m aterialism , an increasing E disregard for the law, the com m ission o f crim es o f a m ost revolting nature such as were unim aginable a few years ago, the apparent acceptance o f sexual im m orality and prom iscuity as alternative life­ styles, proliferation o f drugs, easy divorce and abortion, and deva­ luation o f the family unit etc, the list is depressingly endless. F Alongside these signs o f m oral degeneration are the continuing tragedies o f w ars, refugees and increasing poverty. These are just the tip o f an iceberg o f the flaws in a m odern society, and so the talk o f the values o f a ‘civilized society’ is m ere trash and ironical at best. It was argued for the Republic th at w hat should therefore be G considered in determ ining w hether the death penalty is a cruel, inhum an and degrading punishm ent is not the values o f a nebulous ‘civilized society’ but the contem porary norm s operative in T an za­ nia and the sensitivities o f its people. The question should be w hether capital punishm ent, with w hat it entails, is acceptable in a H Tanzanian society. The decisions o f o ther courts in other countries and the writings o f leading academ ics are questionable because they H nim t take into account the sensitivities o f the people o f Tanzania. Therefore the views o f other courts and leading academ ics are very m uch o ut o f touch with w hat an ordinary T anzanian feels on the I m atter. If new spaper reports are anything to go by, it would be seen 160 T A N Z A N IA LAW R E PO R T S [1994] T.L.R A th at the m ajority o f T anzanians do not regard the death penalty as a cruel and degrading punishm ent. A lthough there has been no public opinion survey, it can be asserted with some confidence th at the m ajority o f the people o f T anzania are not against capital punish­ m ent and th at the abolitionists are a m inority group. In a dem o- B cratic state like T anzania, the views o f the m ajority should be respected. This is because-fot any system o f justice to w ork, it m ust he credible in th e^ y e s o f the people o f the country concerned. F or this reason the c o u rt’s and P arliam ent’s attitudes should not be radically different from those o f society as a whole. It is very dan- C gerous in fact to allow penal policy to ju m p too far ahead o f the p opulation, since it will result in the loss o f public confidence in the crim inal justice system and concom itantly to the alienation o f the public from it. There is ab u n d an t evidence th at m em bers o f the T anzanian public often resort to m ob justice in a situation in which D they feel th a t the crim inal justice system a n d /o r its agencies, lack the com petence o r the will to protect them against crimes. Therefore no civilized com m unity should provoke such a situation in the nam e of a so-called ‘progressive’ penal policy. I will start my decision with the point raised th at the remedy for E the petitioner’s com plaints is for them to apply to court so th at it m ay order the governm ent to stop the ugly aspects o f the death penalty like delay, horrible conditions o f prison and hanging. The R epublic’s argum ents rests on the decision o f Beadle C J in the case o f South R hodesia o f Dhlamini & others v Carter (22). In my con- F sidered view the views o f Beadle CJ were aptly answered by G ubbay C J in the later case o f The Catholic Commission fo r Justice and Peace v AG o f Zim babwe ( 6). It was held in th at latter case that when a prisoner w ho has been on death row for several years a p ­ proaches the courts for relief he is not seeking to be put to death G expeditiously but rather he is saying th a t the long period he has spent on death row, coupled with the agony and anguish o f death row endured for several years, plus the horrible conditions under which he is kept, is such as to render his execution at th at particular time so cruel and inhum an as to offend the constitutional prohibi- H tion against cruel and inhum an punishm ent. C ontrary to Beadle C J’s reasoning, he would not be challenging the legality o r a p p ro ­ priateness o f the original sentence o f death. He would be accepting the validity o f th a t original sentence but merely arguing th at the juxtaposition o f the intervening delay and the prolonged anguish I o f death row , which has been appropriately referred to as a ‘living hell’ is such as to render it particularly inhum an to execute him at R E P U B L IC v M B U S H U U & S A N G U L A (Mwalusanya, J.) 161 that stage. In the c a s e at hand there is no argum ent that the co urt is A trying to act as an a p p e lla te court in a case it had already passed a death sentence, as w a s the case in two cases cited from Zim babw e, but those two cases em phasize one point relevant here, that the ju x taposition o f the delay in carrying out the death penalty and horrible conditions u n d e r which the prisoners are kept are relevant B m atters in d eterm in in g whether a death penalty is a cruel, inhum an and degrading p u n ish m en t. As Pannick in his book ‘Judicial Review o f the Death P enalty’ at 85 aptly puts it: ‘Whether or not the death penalty is Constitutional per se, the pain Q and suffering it causes may exceed constitutional limits when the agony caused by delay is added to the balance.' A nd according to o u r C onstitution in article 30(3) an aggrieved person ‘m ay w ithout prejudice to any other action or rem edy law- ^ fully available to h im in respect o f the same m atter, institute p ro ­ ceedings for relief in the High C ourt to vindicate his basic hum an rights. T herefore ev en if the prisoners could apply to the High C o u rt to order the governm ent to rectify the ugly m atters inherent w ithin the death p e n a lty , still they are not precluded from m aking a _ petition to vindicate th e ir basic hum an rights th at the death penalty is unconstitutional. T h a t hanging is a cruel affair has not been challenged by the counsel for the R epublic. All w hat M r M wam be learned State A t­ torney stated was th a t the tortu re th at the hanged m an gets is not com parable to the to rtu re the victim o f m urder gets at the hands o f the m urderer. Well th a t begs the question o r rather it is a tacit adm ission that there is tortu re indeed in the process o f hanging. An as am ply d em o n strated above, the governm ent impliedly con­ cedes th a t hanging is ugly and cruel and th at is why they do it in secret so that the p eo p le should not witness such a cruel spectacle. It G is my finding th a t th e petitioners have m anaged to prove on a balance o f probabilities that hanging in carrying out the death penalty is a cruel, in h u m an and degrading punishm ent. C oncerning the d elay in carrying out the d eath penalty, there can be no doubt th at it causes a lot o f protracted m ental anguish. Also H the horrible co n d itio n s in the death cells are only fit for a non­ person. Learned S ta te A ttorney M r M wam be conceded that there is invariably a great deal o f delay, the average may be up to five years. But he said th a t the delay is to the advantage o f the prisoners as they are happy th a t they are n ot hanged sooner. I d o n ’t think the I fact th at the p risoners on death row do n ot wish to be hanged 162 T A N Z A N IA LAW R E PO R TS [1994] T.L.R A sooner takes aw ay the fact that there is acute m ental anguish in the period they are w aiting for their execution. If the article by M r R obert Rw eyem am u in the Business Times o f 2 April 1993 is any­ thing to go by, the delays are indeed inordinate and m any are over ten years. I am entitled to take judicial notice o f th at fact and by B virtue o f s 122 o f the Evidence Act 6 of 1967 I am entitled to infer the existence o f the above stated practice, regard being had to the com m on cause o f natural events. The same applies to the horrible conditions obtaining in the death cells o f condem ned prisoners. As regards the horrible conditions in the death cells it is com m on C knowledge th at the cells are small, dirty, over-crow ded, very p oor diet, little ventilation, no tim e for exercises, under watch for 24 hours, and medical facilities will only be available to these prison­ ers if the Prison D epartm ent is allocated enough funds to pay for their treatm ent - see M zalendo Newspaper o f 19 June 1994. D So if the Prison D epartm ent has run short o f funds (as is very com m on these days for every governm ent departm ent) that m eans the prisoners will not be treated as governm ent hospitals dem and paym ent for treatm ent o f prisoners as well. Learned State A ttorney M r M wam be stated th at the horrible conditions in the death cells E and in the prisons as a whole are inevitable because o f the poor state o f the econom y o f this country. He said that the governm ent cannot afford m ore than w hat it is doing. T hat is an adm ission o f the horrible conditions in prison and the governm ent is putting up a defence o f poverty o r lack o f funds. It is my view th at the defence o f F poverty can be offered elsewhere, but n o t when the basic hum an rights o f an individual are at stake. There is the argum ent thSt this court in determ ining as to w hether the death penalty is a cruel, inhum an and degrading punishm ent should concentrate on the contem porary norm s operative in Tanza- G nia and the sensitivities o f its people instead o f concentrating on the values o f a nebulous ‘civilised society’. I agree, but it is my view th at even if one takes into account the sensitivities o f the people o f T anzania, one cannot escape the conclusion that the death pen­ alty, taken as a whole, is a cruel, inhum an and degrading punish- H m ent. The various ugly aspects o f the death penalty as am ply dem onstrated above, are apt to move the heart o f even the stone- hearted. The com position o f the m em bers o f the Nyalali C om m is­ sion was quite representative, with a broad spectrum o f the enligh­ tened m em bers o f T anzanian society, and they unanim ously reached I the conclusion th a t the d eath penalty was a cruel, inhum an and degrading punishm ent. I concede that there m ay be a m ajority o f R E P U B L IC v M B U S H U U & S A N G U L A (Mwalusanya, J.) 163 T anzanians who support the death penalty blindly, and these are A not enlightened and are not initiated o r aw are of the ugly aspects o f the death penalty. A pparently it is so because the death penalty is carried out in secrecy. The governm ent m ust assum e responsibility for ensuring th at their citizens are placed in a position w hereunder they are able to base their views a b o u t the death penalty on a B rational and properly inform ed assessment. It is clear th at m any people base their support for the penalty on an erroneous belief that capital punishm ent is the m ost effective deterrent punish­ m ent, and so the governm ent has a duty to put the true facts before them instead o f holding out to the public that the death penalty is C an instant solution to violent crime. If m any people, like m em bers o f the Nyalali C om m ission see the death penalty as being m orally insupportable and as having m any negatm T enects. they w ould T>e expecfecl "to inform the public about their views and seek to influ­ ence public opinion in a m ore enlightened direction. The govern- D m ent should do the same. In fine I find th at the petitioners have m anaged to prove on a balance o f probabilities that the death penalty is a cruel, inhum an and degrading punishm ent and also that it offends the right to dignity in the course o f executing the sentence. It is not ju st the E final act o f stringing up the prisoner which is an ugly m atter; but the protracted torm ent to which we subject the prisoner before finally dispatching him, m akes the whole process even nastier. Ill R IG H T T O L IF E F The version in English o f this basic hum an right reads: ‘Every person has a right to live and subject to law, to protection o f his life by the society.’ Counsel for the petitioners M r Rweyongeza subm itted that according to th at w ording the right to life is absolute and not governed by the claw -back clause o f ‘subject G to law'. He said th at w hat is subject to law is the right o f an individual to the protection o f his life by society. He invited me to accept his interpretation contending th at it should be so be­ cause the right to life is the m ost fundam ental right on which all other rights depend, and if life is extinguished then all o ther H rights become meaningless. However, on my part I agree with M r M wambe learned State A ttorney th at the Swahili version o f our Bill o f Rights is the con­ trolling version and not the English version, as am ply pointed out by the T anzania C o u rt o f Appeal in the case o f Director o f Public I Prosecutions v Daudi Pete (25). The Swahili version reads: ‘Kila m tu 164 T A N Z A N IA LAW R E PO R T S [1994] T.L.R A anayo haki ya kuishi na kupata kuto k a kwa jam ii hifadhi ya m aisha yake, kwa m ujibu wa sheria.’ It is crystal clear from that w ording in the Swahili version th at both the right to life and the right to the protection o f 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 B absolute but subject to law. As am ply indicated in P art I o f this judgm ent, the petitioners have only an evidential burden to show th at the right to life has been infringed. A nd th at m uch they have succeeded to show. W hat rem ains then is for the Republic to prove on a balance o f probabil- C ities th a t the law prescribing the death penalty (the Penal C ode cap 16) is a lawful law and that it is saved under article 30(2) o f our C onstitution. I reserve for discussion that m atter under Part IV o f this judgm ent. D IV W H E T H E R T H E LAW P R E S C R IB IN G T H E D E A T H P E N A L T Y IS L A W F U L LA W A N D IS IN PU B L IC IN T E R E S T U N D E R A R T IC L E 30(2) O F T H E C O N S T IT U T IO N E A. Whether the Death Penalty is in public interest under article 30(2) o f the Constitution First we have the argum ent for the R epublic th at the death pen­ alty has some deterrence effect. It is argued th a t the death penalty is necessary to protect society and th at by executing som e o f the F m urderers we deter at least some potential killers from com m itting m urders. It cannot be disputed th a t the death penalty m ay have some deterrent effect. The vital question, however, is w hether the death penalty has a deterrent effect significantly greater than the alternative sentence o f life im prisonm ent or in other w ords, G w hether the death penalty protects society m ore than life im prison­ m ent. If the death sentence is not a superior deterrent then the same social purpose could be achieved by the use o f life im prisonm ent. O ver the years a large num ber o f studies have been carried out. Some have com pared the position before and after abolition o f H the death penalty in particular countries and between different countries with and w ithout the death penalty. O ther m ethods have also been used to study the effects o f capital punishm ent upon the incidence o f m urders. M r Roger H ood, who is the D irector o f the C entre for Crim inological Research at the U niversity o f O xford, has I exam ined carefully all these various studies and reaches the catego­ rical conclusion that the research so far carried o ut has failed to R E P U B L IC v M B U S H U U & S A N G U L A (Mwalusanya, J.) 165 provide scientific p ro o f th at executions have a greater deterrent A effect than life im prisonm ent - see R H ood The Question o f the Death Penalty and the New Contributions o f the Criminal Sciences to the M atter, a Report to the United Nations Committee on Crime Prevention and Control o f 1988. A lthough som e people intuitively believe th at capital punishm ent m ust have a powerful deterrent B effect, the following m atters need to be borne in mind: (i) M ost m urders are com m itted on the spur o f the m om ent in em otional circum stances. Clearly the death penalty has no ef­ fect on crim es o f passion which are com m itted impulsively and C w ithout any thought being given to the penal consequences. (ii) M any m urderers are m entally disturbed persons who will not have the m ental capacity to be influenced in their conduct by the death penalty. (iii) The relatively few planned and pre-m editated m urders tend to D be perpetrated by crim inals who are often supremely confident th at they will escape detection and arrest. M oreover, the deterrent effect o f the death penalty is further dim inished by the fact th a t we do not hang all ou r m urderers b ut E hang only a few and in private. T here is thus a low probability o f death for m urderers. In fact M r M wambe for the Republic greatly deprecated the practice o f hanging the m urderers in secret, and advocated public hangings which have a real deterrent effect. So in effect the R epublic conceded that hangings in secret as done F now have no desired deterrent effect. A nd it should be pointed out th at the deterrent effect w ould be enhanced if there was cer­ tainty th a t all m urderers would be apprehended and every one would be executed w ithout exception. The situation obtaining now is that m any m urderers are set free a t the President’s whims, G under the guise o f com m uting the sentence o f death or pardon. To sum up, we can effectively protect our society against violent crim e w ithout em ploying the death penalty by using life im prisonm ent sentences. It has also been argued on behalf o f the petitioners, th a t there is a H risk o f executing the innocent. T he risk assum es greater proportions when one considers the fact th at m ost poor persons do not obtain good legal representation; as they get lawyers on dock briefs who are paid only Shs 5 0 0 /= (the equivalent o f one US dollar!!!). As result o f such p o o r rem uneration the defence counsels do not exert I enough effort in such cases. 166 T A N Z A N IA LAW R E PO R T S [1994] T.L.R A The possibility o f a judicial error, for whatever reason, assumes ever greater im portance because the death penalty is irreversible, th at is, once carried out that is the end o f the m atter, it cannot be corrected. And m ind you convictions for m urder in erro r (after the appeals) are not rare. A lthough the argum ent on the other side is B th at there is no evidence that advocates who hold dock briefs con­ duct their cases poorly, I am o f the considered view that the risk o f executing the innocent is great under the present system because o f the nature o f legal representation offered. It is just hum an nature that it happens so. C I have already indicated in Part II above that the present system o f execution by hanging, long delays in carrying out the death penalty, and the horrible conditions in the death cells cause great tortu re and m ental anguish and th at being so it cannot be in public interest to continue using the death penalty. Instead o f hanging the D governm ent can change to the use o f the electrical chair, o r lethal injection o r gas cham ber which are less cruel. A bout the long delay in carrying out the sentence, the governm ent should stop using the death penalty until such tim e that they have devised a better m ethod o f reducing the bureaucracy causing the delay. One cannot tell me E that it is not possible to reduce the bureaucracy involved because the Suprem e C o u rt of Zim babw e in the case o f The Catholic Com­ mission fo r Justice and Peace v AG ( 6 ) offered a num ber o f good suggestions to th at effect. A bout the horrible conditions in the death cells, the defence o f poverty o f the governm ent is not a good de- F fence; and the logical solution is for the governm ent to suspend the death penalty law until such tim e th at it will have enough funds to be able to treat the prisoners on death row as hum an beings. Then there is the argum ent th at the death penalty is in public interest because it shows in em phatic term s that the governm ent G denounces m urder. It is argued that m urder is a crim e o f the ut­ m ost depravity and gravity and therefore it should be treated with the utm ost severity when it comes to punishm ent. Society through the death penalty m ust denounce the taking o f hum an life in the m ost em phatic m anner possible and it is therefore right that socie- H ty’s extrem e disapproval and indignation should be signified by im posing the ultim ate penalty o f death. By doing so society rein­ forces and prom otes public respect for life. Any lesser penalty would be inadequate as a punishm ent for the taking o f innocent hum an life and the suffering which this causes the relatives and I loved ones. It has been said even C hristianity and Islamic Religion support the death penalty as som ething m orally all right in order to R E P U B L IC v M B U S H U U & S A N G U L A (Mwalusanya. J.) 167 jprotect society. The State quotes the Bible in Genesis 9:6; Excodus A 21: 12 and 14 and D euteronom y 9:11 and 12. A nd for the M oslems the State quotes the K oran 5:36. However, in my judgm ent I find that in symbolic term s, the official m urdering o f killers can hardly be said to foster respect for the sanctity o f life. It is contradictory to kill people to show that killing is wrong. Society can still express its B utter condem nation o f the act o f m urder by im posing the m ost drastic sentence o f life im prisonm ent. The effect upon the public o f the death sentence is to brutalize rather than hum anize. If we insist on killing m urderers we are descending to the sam e level as the m urderers and this debases society. As the situation obtains C now, the State is a teacher and when it kills, it teaches vengeance and hatred. M urderers are not to be loved, n o r m ay they be disre­ garded. But in allow ing them to live, society is saying that sanctity o f life is all im portant. A lthough the C hristian and Islamic Reli­ gions have no objection to the death penalty as such, it is signifl- D cant to note that they do not support the ugly aspects o f the death penalty. F or exam ple the C atholic C hurch (see Newsweek o f 30 N ovem ber 1992 a t 53) through Pope Paul II when releasing the fcnew Universal Catechism stated th a t the death penalty is allowed by the church as a last resort for the preservation o f public order, E provided it is carried out in a timely and com passionate m anner. As am ply dem onstrated above the death penalty in T anzania is not carried out in a tim ely and com passionate m anner. Execution by hanging renders untold suffering; the delay in carrying o u t the sentence causes untold m ental anguish; the horrible conditions in F the death cells are m eant for non-persons. T h at cannot be called death penalty in a timely and com passionate m anner. A ny properly inform ed C hristian o r m em ber o f the Islamic religion, cannot sup­ port the death penalty under the present form and conditions 'in which it is carried out. Then there is this argum ent that G overnm ent m ust 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 w ould be taken by per­ sons inclined tow ards violent crim e as a sign that G overnm ent is going soft on crim e and this m ay encourage people to com m it violent crimes. However, in my judgm ent I find th a t the above argum ent does not carry m uch weight. The governm ent is not be­ com ing soft in the fight against crim e by doing aw ay w ith the death penalty. Long term im prisonm ent is an extremely severe punish­ m ent. Indeed some w ould say th at life im prisonm ent is far worse than death. 168 T A N Z A N IA LAW R E P O R T S [1994] T.L.R A The cost o f im prisonm ent is an o th er argum ent presented on be­ h alf o f the governm ent. The argum ent is that we should execute dangerous m urderers rather than wasting large sums o f public m oney in keeping these persons locked up in m aximum security prisons. In my considered opinion, if we are talking about ex- B pense, we should not forget that we are forced to spend large am ounts to process through the elaborate system we have to decide whom we should execute. Clearly, it w ould be cheaper to kill m ur­ derers than to keep them locked up for long periods, but it is a m orally unacceptable argum ent that we should kill crim inals be- C cause it is cheaper to do so. C onsiderations o f econom y cannot justify the taking o f life. M oreover the im position o f a sentence o f life im prisonm ent can help to assuage the survivors o f the victims o f m urder in an effective way by way o f com pensation. M urderers im prisoned for life will be put to w ork whilst in prison and at least D part o f the profits generated by such work shall be used to pay com pensation to the survivors. However, that cannot be achieved if the m urderers are sentenced to death. Then we have the argum ent o f retribution in favour of the R e­ public. This argum ent runs along those lines. As m any people be- E lieve th at m urderers deserve to die, the law m ust satisfy the public’s thirst for vengeance otherwise the law will fall into disrepute. This is like saying that the law should string up m urderers before the lynch m ob does. But it m ay be argued that even if it is the case th at the m ajority o f the public do subscribe to some sort o f an eye for an eye F retaliation approach in m urder cases, a progressive governm ent will not feel obliged to execute persons simply to satisfy some crude urge for vengeance. R ather it will assum e the responsibility for inform ing the public and seek to influence their views in a m ore enlightened direction. O ften vengeful sentim ents stem from fear in the face o f G increasing rates o f violent crime. The death penalty, however, is not an instant solution to violent crim e and the governm ent should not hold it out as such. R etribution has no place in a civilized society, and negates the m odern concepts o f penology. The other m ost im portant point which puts o ut law into disrepute H and so not in public interest is the fact that it is arbitrary in that people with m ental cases (insane people) are also sentenced to death as if they were norm al persons when they did a killing. In the case o f Said s/o M wamwindi v R (26) the accused was sentenced to death (and executed) despite the fact that a fam ous psychiatrist, one D r I Pendaeli, had testified th at the accused had a m ental disease called C atatonic Schizophrenia. The same thing happened in the case o f R E P U B L IC v M B U S H U U & S A N G U L A (Mwalusanya, J.) 169 R v Asha Mkwizu Hauli (27), where two prom inent psychiatrists. D r A K F Rugeiyam u and D r W S Pendaeli (both consultant psychia­ trists), testified th at the accused was m entally sick. The same thing happened in Director o f Public Prosecutions v Leganzo Nyanje (28) where the psychiatrists had confirm ed th at the accused was m entally sick o f Paranoid Schizophrenia and yet he was sentenced to death. B In that case M r Justice M ustafa gave a strong dissenting judgm ent. The m ajority o f the T anzania C ourt o f A ppeal conceded that the law was unjust and outdated and yet they washed their hands as Pontius Pilato did saying that they were im potent to change the law. The late M w akasendo JA (as he then was) delivering the judgm ent C o f the court held: ‘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 unscientific nature of D 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 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 F this field to accord with present knowledge of medical science.’ The same sentim ents were expressed by the T anzania C o u rt o f Appeal in the case o f R v Agnes Doris Liundi (29) where it said ‘it is possible, indeed likely, th at ou r law on the issue o f insanity is anti- G quated and out o f date. Parliam ent, in its wisdom, m ay wish to am end this particular branch o f the law and bring it into line with m odern medical knowledge on the subject.’ The law, I hold, ought to be am ended to bring ab o u t the defence o f dim inished responsi­ bility which entitles the accused who is m entally sick not to be H acquitted altogether but to be found guilty only o f m anslaughter. They did it in England in 1957 by the H om icide Act and in U ganda they did it in 1967. O ur governm ent has persistently refused to rectify the law so as to do away with the injustices caused the present law. The m entally sick who kill are dum ped together as I m urderers as those who com m it m urder during robbery. N obody 170 T A N Z A N IA LA W R E PO R T S [1994] T.L.R A in his right senses can defend the present state o f the law that it is in public interest. The present state o f the law puts o u r crim inal justice system into disrepute. There is also the political perspective o f the death penalty which indicates th at the death penalty is not in the public interest. The B State does not disclose the fact th at m ost p o o r persons kill during robbery because o f the p oor living conditions and the unequal dis­ tribution o f the national cake. The grinding poverty and hunger lead to brutalization because the econom y has been m ism anaged by the governm ent. Instead o f the State revealing that the poor kill C because o f the p oor living conditions, but say because the killer is m orally depraved. W hy regard the m urderer as inherently de­ praved? The State deliberately washes its hands o f the socio-eco­ nom ic conditions it has created. In the institution o f State killing, the public is invited to bury knowledge o f the conditions which have £) led to the crim e and concentrate on the individual. It is the indivi­ dual th at m ust be regarded as depraved not a system founded on ruthless exploitation, econom ic m ism anagem ent and enforced im ­ poverishm ent. So, when one accepts State killing, one gives a tacit nod o f approval to those who would turn their faces away from the £ conditions which engender the crim e in the first instance. Thus econom ic m ism anagem ent by the State leading to im poverishm ent o f the m ajority is legitimized. T hus the attack on the death penalty is raised to the level o f an attack o f the ruling clique, who w ant to m aintain the status quo and the privileges which have been con- p ferred upon them by the prevailing invidious econom ic system. In order to appease the im poverished people, the State points an ac­ cusing finger a t the m urderers and orders them to be hanged. But in the long run the exploited and im poverished masses will realize who is the real enemy - w hether the m urderer o r the system th at has q engendered the m urderer? It is suggested that there is a real element o f hypocrisy and irony in continuous support o f the death penalty by the State when it is the State itself th a t has largely contributed to the conditions th at create m urderers. At the end o f the day I find th at the Republic has failed to prove on a balance o f probabilities th at the death penalty is in the public H interest. The argum ents adum burated 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 I The existing law th at prescribes the death penalty is the Penal Code, cap 16. The T anzania C o u rt o f Appeal in the case o f K ukutia Ole R E P U B L IC v M B U S H U U & S A N G U L A (Mwalusanya, J.) 171 Pumbun v AG (3), held that any law th at restricts o r abridges basic A hum an rights m ust fulfil two conditions in order to be regarded as a lawful law. First th at law should meet the proportionality test, that is, the lim itation im posed on the basic hum an right by such law m ust not be m ore than is reasonably necessary to achieve the legit* im ate object o f the governm ent. Secondly the law should not be B arbitrary - that is it should m ake adequate safeguards against arbi­ trary decisions, and provide effective controls against abuse by those in au thority when using the law. (i) As regards w hether the present law m eets the proportionality C test, I am o f the considered view that it does not. If the object o f the governm ent is to protect society, I am o f the view th at that can be met by im posing the sentence o f life im prisonm ent which will incapacitate the offender not to com m it further crimes. As am ply dem onstrated above, the death penalty has only m inim al D deterrent effect. M oreover the im position o f the death penalty negates the m odern concepts o f penology which are based on the theory th at rehabilitation o f the individual crim inal is pos­ sible. R etribution as an object o f p u nishm ent is uncouth and outdated and negates m odern concepts o f penology. In short it E is my finding th at im posing the death penalty is m ore than reasonably necessary to achieve the object o f protecting so­ ciety. Life im prisonm ent can serve that purpose. The G overn­ m ent has failed to prove on a balance o f probabilities (even allowing a m argin o f appreciation to the state) that the present law restricting the right to life is pro p o rtio n ate and closely tailored to the aim sought to be achieved. (ii) It is also my considered view th at the im pugned law is arbitrary in th at it does not have adequate safeguards against arbitrary decisions and does not provide effective control against abuse o f power by those in authority when using the law. It is arb i­ trary in three aspects: First the im pugned law em pow ers the courts to sentence to death the real m urderers and also persons who have killed because they are m entally sick (insane o r those under dim in­ ished responsibility). The real m urderers and the m entally sick are indiscrim inately dum ped together as m urderers w ithout distinction. I have am ply dem onstrated above ab o u t this phe­ nom enon. The courts raise their hands in despair and state that they are im potent to do anything ab o u t this injustice because their hands are tied by the provisions o f the law. So it is crystal 172 T A N Z A N IA LAW R E PO R T S [1994] T .L .R A clear th at the im pugned law is not ‘law’ because it does not provide adequate safeguards against arbitrary decisions m ade by the courts. The law which allows the courts to dum p to ­ gether the m entally sick and real m urderers is not good law. Secondly when the im pugned law (the Penal Code) is read B together with s 325(1), (2) and (3) o f the Crim inal Procedure Act 9 o f 1985 you find th at the President is em pow ered to com m ute the sentence or pardon the convict. T his law is a rb i­ trary in th at it does not provide effective controls against abuse o f pow er by the President. He is n ot hound by the recom m en- C dation o f the convicting judge nor th at o f the A dvisory C om ­ m ittee. T h ere are no checks o r controls w hatsoever in the exercise o f th at pow er an d the decision depends on the Presi­ d e n t’s whims and his idiosyncrasies. This type o f law is sim ilar to th at o f s 6 o f the G overnm ent Proceedings Act 1967 which D gave the M inister for Justice the power to consent or not to sue the governm ent at his discretion. The law was strongly c o n ­ dem ned by the T anzania C ourt o f A ppeal in the case o f Kuku- tia Ole Pumbun v AG (3) and they declared it to be unconstitutional and so void. The same reasoning applies to E the law now under discussion. It m ay be pointed out th at the abuse o f pow er by the President is not a far-fetched idea. It is com m on knowledge to the people o f T anzania th at one pilot C apt Aziz was pardoned from serving a prison sentence simply because the President felt th at the said convict had an old F m other who depended on him. But how m any convicts have old m others who depend on them and yet they have not been pardoned by the President? Thirdly there is no provision, under the present law for ijgpeal against the decision o f the President. T hat is contrary G to article 13(6)(a) o f the C onstitution. The decision o f the President m ay be unreasonable, or it m ay be discrim inatory as per article 13(4) and (5) o f the C onstitution and yet the prisoner is not allowed to challenge th at decision which affects the rights o f a citizen. The m ere fact th at one is sentenced to H death does not m ake him a non-person and a non-citizen who is not entitled to the basic hum an rights. I d o n ’t agree with M r M wam be learned State A ttorney w ho argued th at the com m utation o f a sentence o r a p ard o n is ju st a privilege and not a right to the prisoner. T hat the President should I exercise his powers o f com m uting a sentence o r pardoning a convict in accordance with the law and the C onstitution is not R E P U B L IC v M B U S H U U & S A N G U L A (Mwalusanya, J.) 173 a privilege but a constitutional right o f the prisoner. The A im pugned law is simply not a lawful law. It is my finding therefore th at the death penalty is not in public interest and it is not a punishm ent which is prescribed by a lawful law. The Republic has completely failed to prove on a balance o f probabilities th at the death penalty is in B public interest and th at the im pugned law is a lawful law. V C O N C L U S IO N We live in a troubled world with m any threats to the security and well-being o f ou r society. In such an atm osphere there is often a C tendency to advocate draconian m easures to protect society against real and im agined ills. The necessity for such m easures can fre­ quently appear plausible and the m ost well-intended citizens can be tem pted to advocate the principle th at ‘the end justifies the m eans’. Suffice it to say that the history o f the world is replete with D the disastrous consequences o f the law o f m an being replaced by the dictates o f expediency. A progressive governm ent will assum e the responsibility o f inform ing the public and seek to influence their views in a m ore enlightened direction, to the effect that the end does not justify the m eans^ E In the fine, I hold that the two petitioners have m anaged to prove on a balance o f probabilities that the death penalty is a cruel, inhu­ m an and degrading punishm ent and o r treatm ent and also that it offends the right to dignity o f m an in the process o f execution o f the sentence. A t the sam e time the Republic has failed to prove on a F balance o f probabilities that the im pugned law is in the public interest and th a t it is a lawful law under article 30(2) o f the C on­ stitution. It is therefore my finding th at the death penalty is uncon­ stitutional and so void as per article 64(5) o f the C onstitution. O rder accordingly. G