OCTOBER 10, 2018.
Legal and Human Rights Centre as the leading human rights advocacy organisation in Tanzania joins the friends of human rights all over the world to mark the 16th Commemoration of the world day against the death penalty which is commemorated on October 10 each year. The day was designated since 2003 to reflect on the futility of the death sentence and call for the governments of the world to abolish the sentence in their legislations as part of initiative to promote and protect human rights particularly the right to life. The 2018 commemoration is marked with the theme “Living Conditions of the Death Row Inmates” focusing on raising awareness on the inhumane living conditions of people sentenced to death.
Legal and Human Rights Centre advocates for the promotion of the basic right to life in particular and human rights in general and it is because of that, LHRC has been tirelessly advocating for the abolition of the death penalty in Tanzania. At the recent time, on Tuesday October 9, 2018 LHRC has lodged a petition in the High Court of Tanzania, petition No. 22 of 2018 to challenge the mandatory death penalty, drawing reference from our neighbours in Kenya, Uganda and Malawi where death penalty has been abolished. Malawi abolished mandatory death penalty in a year 2007 through the case of Kafantayeni v. Attorney-Gen.,  MWHC 1, Uganda in the case of Susan Kigula and 416 Others vs Attorney General, 2009 and recently Kenya in the case of Francis Karioko Muruatetu & Wilson Thirimbu Mwangi Vs Republic Petition No 16 of 2015. This makes Tanzania the only country with mandatory death penalty in East Africa.
Despite the continuous initiative to call for the abolition of the death penalty and the country being in a state of moratorium, in Tanzania two offences are still punishable by death sentence. These offences are; murder under section 197 and treason 30 (3) (c) of the Penal Code Cap 16 R: E 2002.Under the Penal Code, death penalty is a mandatory sentence for conviction of murder. Judges have no discretion as to the sentence depending on the status of the crime committed. This is the biggest challenge facing the Judges when adjudicating murder cases, as they are left with no alternative but to impose death penalty notwithstanding of the manner to which the crime was committed. On the other hand, the government of the United Republic of Tanzania has refused to ratify “The Second Optional Protocol to the International Covenant on Civil and Political Rights of 1989” as recommended by Universal Periodic Review in 2016 for strengthening human rights protection in UN member countries.
Tanzania Human Right Report 2017, recorded 472 (452 males and 20 females) number of people convicted and sentenced to death punishment until 2015 in Tanzania. In the list 228 are waiting for the execution and 244 have pending appeal before the court of Appeal. LHRC is much concerned about the life of death row inmates in the prison all over the country. Many of them have stayed in prison for more than 20 years which is totally against principles of fair trial. Regardless of being in death row they are still human and they have the right to be treated with dignity as human being.
Legal and Human Rights Centre recognises positive initiative by the 5th President of Tanzania, Dr. John Pombe Magufuli who declared in public that he will not sign warrant for the execution of the death row inmates in his administration and pardoned 62 death row inmates for the first time in the history of Tanzania. Tanzania is thus in the state of defector moratorium, despite the fact that nothing significant has been done to change the law and policy to ensure that, the state of moratorium is made official or death penalty is abolished completely in our legal system. The question around the death penalty has remained to be controversial in the country. There are pockets of the society who support it and others who do not support it.
The last recorded public opinion on death penalty was recorded by the Constitutional Review Commission (CRC) during the collection of public opinion on Constitutional review process. The Commission recorded that, out of 2,735 respondents, 44.2% were of the view that death penalty should be abolished, whereas 33.9% were of a negative view, that death penalty should not be abolished. 8.1 % had the opinion that death penalty should remain as it is. Legal and Human Rights Centre recognises right to life as one of the fundamental right, upon which all other rights depend on it. It has thus to be protected by all means. This is why several international legal instruments provide for the right to life and its protection by the law, Tanzania should take significant measures to change the law and policy to reflect its status of moratorium towards abolition of the death penalty. Apart from the death penalty being against international human rights instruments LHRC has much other reason as to why death penalty should be abolished which includes the fact that;
1. Death penalty is inhuman and degrading punishment against Human rights. The sentence perpetuates the cycle of violence and may not alleviate the pain already suffered by the bereaved.
2. The death penalty is irreversible. Absolute judgments may lead to people paying for crimes they did not commit.
3. There is no credible evidence that, death penalty deters crime more effectively than a prison term.
4. Death penalty is disappearing; currently, 106 countries have turned their backs on the death penalty for good. Those that continue to execute are a tiny minority standing against a wave of opposition
5. It is a bias decision because most of the victims are people living in poverty, one of the most frequent causes of reversals in death penalty cases is ineffective assistance of legal counsel.
6. The punishment does neither provide the chance for the perpetrator to learn from their mistakes nor rehabilitation.
7. Room for errors in the legal system will expose innocent people in the risk of being executed. To execute an innocent person is morally reprehensible; this is a risk we cannot take.
LHRC believes that, death penalty is a violation of the right to life, the mother of all human rights; and no one should have the power to take the life of another person. Tanzania has already been considered as an abolitionist in practice. The country should thus move a step further by ensuring that death penalty is abolished all together from Tanzanian legislation.
LHRC recommends to the government to do the following in stepping the way towards abolition of the death penalty:
1. Officially declare that Tanzania has established the state of moratorium on execution of death penalty in line with UN Resolutions; Tanzania has been abstaining whenever they vote at UNGA and we call Tanzania to sign in favour of resolution in November, 2018.
2. Amend the country’s legislation to end compulsory sentencing of death penalty for the crime of murder and treason;
3. Exonerate those convicted and sentenced to death penalty, especially the ones who have spent longer periods in prisons.
4. Sign and ratify the Second Optional Protocol to the International Convention on Civil and Political Rights.
LHRC recommendations to other stakeholders:
1. Increase public sensitisation on the importance of the right to life;
2. Educate the public to capitalise on the constitutional review process for abolishment of the death penalty.
Issued on October 10, 2018 by;
Ms. Felista Mauya
Ag. Executive Director
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