User:EDWIN MUGAMBILA

What is the legality of Death penality?

Edwin Mugambila The saying, “A tooth for a tooth and an eye for an eye” vividly captures the popular belief that there should be a compensating measure for every wrong done. It originates from the Code of Hammurabi, king of Babylon in the period 1792-1750 BC. The code has it that a person who has injured another person should be similarly injured in retribution though these days this has translated into the victim receiving compensation equal to the value of the injury. In Kiswahili, they say “Unamwaga ugali, Namwaga mboga”. In Tanzania, you kill and you get killed in return in the name of the law.

But does this really help cure the problem? What, then, is the difference between the killer and the one who kills the killer? As far I am concerned, they are both killers. Tanzania hangs people convicted of capital offenses. This form of punishment is irrevocable. The person is gone forever and we cannot do anything about it if we were to later discover that the sentence was a judicial mistake. Ultimately, it does not help the victim of the first killing or reduce crime rates.

Tanzania continues to retain the death penalty under The Penal Code and The National Defence Act. The actual number of inmates executed and on death row is not clear. However, an official statement from the minister for justice and constitutional affairs indicates that the third phase government under Benjamin Mkapa commuted all death sentences to life imprisonment towards the end of his presidential tenure running from 1995 to 2005.

Tanzania is considered as a de facto abolitionist country and is ranked 54 in terms of the death penalty. According to Amnesty International, there were 95 countries as of December 2009 that had abolished the death penalty for all crimes and more than two-thirds of the countries of the world had done so in law or in practice by December 2010.

Among the countries retaining it, only 18 are known to have carried out executions in 2009, killing a total of 714 people. Thirty five countries were de facto abolitionists, meaning the death penalty is still provided for in the law. In Africa, only 16 countries have so far abolished the death penalty.

Tanzania has yet to sign the Second Optional Protocol to the International Covenant on Civil and Political Rights, adopted and proclaimed by General Assembly resolution 44/128 of 15 December 1989, which is aimed at abolishing the death penalty.

Article 1 of this protocol categorically states that no one within the jurisdiction of a state party to the protocol shall be executed. Each state party is urged to undertake all necessary measures to abolish the death penalty within its jurisdiction.

But several people have been sentenced to death since we ushered in the fourth phase government. Some examples:

In 2006, the Morogoro Zonal High Court sentenced three people to death for murder of taxi driver. The conviction came five years after the case was opened. Another man was sentenced to death after he was found guilty of poisoning his sister to death.

On 18 March, 2006, it was reported that the High Court of Tanzania in Bukoba convicted one Bahati Makenya of Rwesero to be hanged after he was found guilty of murder.

On 10 May, 2006, the High Court in Dar es Salaam sentenced Bernard Kimaro to death for the murder of his wife Rukia Abdallah in Kigamboni, Dar es Salaam.

And in 2007, four men were sentenced to death for murdering Eleutherius Kapinga, a prominent Dar es Salaam advocate. Upon learning of the conviction, widow Esterina Kapinga told the media that she wanted them jailed for life instead.

A Legal and Human Rights Centre report indicates that, from 2008 to 2010,  resistance to abolishing the death sentence rose.

Current trend The Law Reform Commission of Tanzania report on capital punishment indicates that there were no executions between 1978 and 1987 and also between 1995 until now. The record indicates that Tanzania has executed 238 people (six females and 232 males) for murder. During the third phase government, President Benjamin Mkapa commuted 100 death sentences to life imprisonment. His successor has so far commuted 75 death sentences into life imprisonment.

The move towards abolition of death penalty in Tanzania suffered a blow this year when courts continued to impose death sentences for murder convictions. The government of Tanzania has been unnecessarily reluctant to officially abolish the death penalty under the pretext that the majority of Tanzanians still want it.

In the past seven years, numerous groups have conducted campaigns, debates, surveys, litigation, advocacy and public discussions on the death penalty. Their opposition is based on the argument that the sentence violates the right to life and that it is cruel, inhuman and degrading treatment.

One time Chief Justice of Tanzania Francis Nyalali had this to say: “Death penalty is inherently cruel, inhuman and a degrading punishment and the process of execution by hanging is particularly gruesome, generally sordid, debasing and generally brutalising and it offends article 13(6) (e) of the Constitution of the United Republic of Tanzania.” The death penalty is ineffective at deterring crimes compared to other punishments and a life sentence would probably work better.

The Universal Declaration of Human Rights declares the right to life in absolute terms when it states that everyone has the right to life, liberty and security. Article 5 of the Declaration of Human Rights further declares that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

The same position is taken in the conclusions of the International Covenant on Civil and Political Rights’ human rights committee of 2009, which argues that lack of sufficient information on the length of time that convicted persons have spent on death row in Tanzania, their treatment in detention, and the procedures in place for the commutation of death sentences amount to a form of inhuman and degrading treatment or even torture.

However, the Legal and Human Rights Centre has started a discussion on the death penalty. While speaking at a press conference recently, the executive director of the centre, Dr Helen Kijo Bisimba, pointed out that the death penalty runs counter to Article 14 of Tanzania’s supreme law and also it violates international resolutions.