United Republic of Tanzania: Visits & Communications

United Republic of Tanzania: Inquiry Concerning the Death Penalty

Violation alleged: Non-respect of international standards relating ot the imposition of capital punishment

Subject(s) of appeal: General

Character of reply: Largely satisfactory response

Observations of the Special Rapporteur

The Special Rapporteur appreciates the serious consideration and detailed response provided by the Government of the United Republic of Tanzania.  Its careful and constructive character merits a response in kind: 

(a) Mandatory nature of the death penalty for murder

The SR appreciates the Government’s explanation that a criminal conviction is based on a number of considerations in addition to proof that the accused committed a proscribed act (actus reus).  However, he would note that it is important to distinguish between the process for determining the accused’s culpability for a criminal offence and the process for determining his or her sentence.  There are considerations that are relevant to the sentence which might be irrelevant to the conviction.  These considerations include aspects of the accused’s personal circumstances that do not enter into the determination of mens rea (malice aforethought).  In order to guarantee that the imposition of the death penalty is not cruel or arbitrary, it is essential that judges be permitted to determine whether the death sentence is just in each particular case.

(b) Right to legal representation and to appeal

The SR accepts the Government’s assurances that the right to legal representation and to the review of one’s conviction and sentence is guaranteed in the statutes and constitution of the United Republic of Tanzania.  However, he would note that the existence of legal guarantees is consistent with allegations that these guarantees are not always respected in practice. 

(c) Right to seek pardon or commutation

The SR appreciates the detailed information provided by the Government on its process for considering whether to grant pardons.  He would observe, however, that despite its automaticity, this process falls short of what is required by Article 6(4) ICCPR and Safeguard No. 7 of the Safeguards guaranteeing protection of the rights of those facing the death penalty.  These international standards recognized that it is an individual right of the condemned person to seek a pardon.  This ensures that the condemned person will have the opportunity to invoke any personal circumstances or other considerations that might appear relevant to him or her.  In contrast, the process described in the letter means that only matters that came to the attention of the trial judge will be taken into account. 

(d) Transparency

The SR appreciates the Government’s commitment to provide statistics on the death penalty and appreciates that compiling such statistics may be time-consuming.  The SR would note that he did not intend to suggest that information on individual cases is not in the public domain; he would, however, suggest that maintaining and publishing aggregate statistics on the administration of the death penalty is an important safeguard of the right to life.  (See the SR’s report to the Commission concerning Transparency and the Imposition of the Death Penalty.)

The SR makes these observations in the hope that they will prove helpful to the Government in ensuring compliance with human rights standards and looks forward to further constructive dialogue in the future.

Allegation letter sent on 10 November 2005

In this connection, I would like to raise several concerns in relation to the application of capital punishment in your country.

To my knowledge, the last time the death penalty was executed in Tanzania dates back to 1995. I commend your Excellency’s Government for this ten year de facto moratorium. Under the Tanzanian Penal Code, however, the death sentence remains a mandatory penalty for murder. It can also be applied for treason. While there are no statistics published on the number of condemnations, I understand that individuals are still regularly sentenced to death.

I am of course aware of the fact that Tanzania is a State Party to the International Covenant on Civil and Political Rights (ICCPR), but not to the Second Optional Protocol thereto, aiming at the abolition of the death penalty. International law does therefore not preclude your Government from having recourse to capital punishment. However, I would like to remind your Excellency’s Government that under international law the death penalty must be regarded as an extreme exception to the fundamental right to life, and must as such be applied in the most restrictive manner. Therefore, it is crucial that all restrictions and fair trial standards pertaining to capital punishment contained in international human rights law are fully respected in proceedings relating to capital offences.

The Commission on Human Rights has consistently requested me and my predecessors as Special Rapporteur on extrajudicial, summary or arbitrary executions to monitor the implementation of all standards relating to the imposition of capital punishment.

The purpose of the present note is to raise four main concerns in relation to the question of the death penalty with the Government of Your Excellency: 1) the mandatory nature of the death penalty for murder; 2) the allegedly frequent violation of the right to legal representation in cases in which the death penalty is imposed; 3) the frequent denial of the right of appeal against a death sentence and of the right to seek pardon or commutation, and 4) the absence of public statistics on the number of death sentences issued each year.

The mandatory nature of the death penalty for murder

According to the information I have received, the death penalty in Tanzania is imposed as a mandatory sentence for murder. Making such a penalty mandatory and thereby eliminating the discretion of the court generally makes it impossible to take into account mitigating or extenuating circumstances and eliminates case by case determinations of an appropriate punishment in light of all the circumstances of the case. Whatever considerations might be appropriate in relation to other forms of mandatory sentencing, its use in the death penalty context raises fundamentally different issues because the right to life is at stake and once the sentence has been carried out it is irreversible.

In this connection, I would respectfully refer Your Excellency to paragraphs 63 and 64 of my last report to the Commission on Human Rights (E/CN.4/2005/7) in which, addressing the issue of mandatory sentence of death, I underlined that:  “It is appropriate, therefore, to note a recent judgment of the Privy Council in response to a ruling by the Court of Appeals of Barbados. The relevance of such a case in the present context is that it was decided on the basis of a careful review of international legal standards. The majority of the Court observed that the maintenance of the mandatory death penalty “will … not be consistent with the current interpretation of various human rights treaties to which Barbados is a party” (para. 63) ((Judgment of the Lords of the Judicial Committee of the Privy Council, Privy Council Appeal No. 99 of 2002, Judgment of 7 July 2004, para. 6).

I also stressed that: “On that issue, the minority judgment reached the same conclusion, but went into greater detail: “[T]he jurisprudence of the Human Rights Committee, the Inter-American Commission and the Inter-American Court has been wholly consistent in holding the mandatory death penalty to be inconsistent with the prohibition of cruel, inhuman or degrading treatment or punishment. … The appellants submitted that ‘No international human rights tribunal anywhere in the world has ever found a mandatory death penalty regime compatible with international human rights norms’, and this assertion has not been contradicted.”(Para. 64 of the report, quoting par. 81(3) of the Judgment).

Right to legal representation

I understand that legal representation for an accused individual is both a constitutional and a statutory right in Tanzania. However, I have been informed that in some instances defendants sentenced to death had very poor or no access to legal representation. There are reports of accused convicted of murder and sentenced to death by a High Court judge without being defended by legal counsel at all. Moreover, concerns have been expressed that indigent defendants facing the death penalty occasionally receive insufficient legal aid due to a lack of resources for legal aid. This leads to prisoners facing the death penalty not being legally represented and having to write their appeals by themselves.

In this connection, I would like to emphasize that “in capital punishment cases, the obligation of States parties to observe rigorously all the guarantees for a fair trial set out in Article 14 of the [ICCPR] admits of no exception” (Little v. Jamaica, communication no. 283/1988, Views of the Human Rights Committee of 19 November 1991, para. 10).

Right of appeal

The information I have received also points out that persons sentenced to death in Tanzania do not always in practice enjoy the right of appeal or review of their sentence. Indeed, concern has been expressed that the right to appeal is often undermined, apparently for different reasons, including delay by the courts in delivering judgments to prisoners, or even occasionally by a complete failure to do so; failure to set dates for appeal hearings or prisoners not being provided with updated information on the current developments in their appeal. Such shortcomings would render the application of the death penalty incompatible with Article 14(5) ICCPR providing that "[e]veryone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law."

I have also been informed that, under Tanzanian law, death row inmates do not have the right to apply for Presidential commutation or pardon. The President can only take the decision to review death sentence cases on his own motion. This would appear to be incompatible with Article 6(4) ICCPR stating that “[a]nyone sentenced to death shall have the right to seek pardon or commutation of the sentence” and with Safeguard No. 7 of the Safeguards guaranteeing protection of the rights of those facing the death penalty which provides that “anyone sentenced to the death penalty shall have the right to seek pardon or commutation of sentence; pardon or commutation of sentence may be granted in all cases of capital punishment”.

Transparency

Finally, I am concerned that statistics on the number of sentences of death are not made public in Tanzania. In this connection, I would respectfully refer the Your Excellency’s Government to my last Report to the Commission on Human Rights, E/CN.4/2005/7, para. 58, in which I have addressed the obligation to disclose the details of the application of the death penalty and explained how secrecy is incompatible with human rights standards in various respects. I would also refer Your Excellency to Commission on Human Rights Resolution 2005/59, OP 5(c) and (d).

Response of the Government of the United Republic of Tanzania dated 8 December 2005

The mandatory nature of the death penalty for murder:

Prof Philip Alston, the Special Rapporteur on extrajudicial, summary and arbitrary executions in his letter to the Government of United Republic of Tanzania raises four main concerns in relation to the death penalty in thee following sequence:

(a) the mandatory nature of the death penalty for murder;

(b) the allegedly frequent violation of the right to legal representation in cases in which death penalty is imposed;

(c) the frequent denial of the right of appeal against a death sentence and of the right to seek pardon or commutation, and

(d) the absence of public statistics on the number of the death sentences issued each year.

We have read and noted with interest the conclusion based on the source of information relied on by the rapporteur. We do appreciate his decision to seek and verify such information from the government. The right to be heard is universal.

Before proceeding any further, we do concede that our legal system provides for death penalty for the offence of murder and treason. We also agree with him that capital punishment is an extreme exception to the fundamental right to life. It must as such, be applied in the most restrictive manner. We do at this early stage, submit that the application of the penalty is restricted in the sense that the procedure for establishing the guilt of an accused is stringent and thorough enough to ensure a correct verdict. The applicable rules of evidence and principles established by courts in this area, the procedure, which includes trial by assessors, coupled with the fact that these offences are triable in the High Court presided by a judge, are sufficient safeguards against a wrong verdict. In addition, the Court of Appeal is well placed to correct any mistake that could be overlooked by the High Court.

The right to life is a constitutionally entrenched norm in Tanzania's legal system to the extent that it is one of the several pillars of the Constitution of United Republic of Tanzania, 1977. The Constitution contains a Bill of Rights. The Right to Life is recognized under Article 14 as follows:

“Every person has the right to life and to receive from the society the protection of his life, in accordance with law.”

The exception to the right to life must be in accordance with law and nothing else. The Court of Appeal, the highest court of the land, decided in Mhushuu @ Dominic Mnyaroje and Another V Republic (1995) T.L.R 97 that the right to life is not absolute but qualified. It noted that derogation from the basic rights of an individual is permissible under Article 30(2) of the Constitution. With these preliminary observations, our response to the allegations will follow.

1.  Mandatory nature of the death penalty

The offense of murder is stipulated in section 39 of the Penal Code for treason and other offenses against public order and in section 196 of the Penal Code as an offense against person. Under section 39, a person who is under allegiance to the United Republic murders or attempts to murder the President or levies war against the United Republic shall be guilty of treason and shall be liable on conviction to suffer death.

On the other band, section 196 of the Penal Code provides that “any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.” The punishment for this offense is stated in Section 197 as follows:

“Any person convicted of murder shall be sentenced to death: Provided that, if a woman convicted of an offence punishable with death is alleged to be pregnant, the court shall inquire into the fact and, if it-is proved to the satisfaction of such court that she is pregnant the sentence to passed on her shall be a sentence of imprisonment for life instead of a sentence of death.”

The trial of a person accused of murder is regulated by procedures and process that safeguard the right of an accused person. This norm flow from the Constitution itself, Article 13 of the Constitution states that all persons are equal before the law and are entitled, without discrimination, to protection and equality before the law. It further goes on to require state authority to make procedures which are appropriate or which take into account the following principles:

(a)  when the rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to a fair hearing and the right of appeal or other legal remedy against the decision of the court or of the other agency concerned;

(b)  no person charged with a criminal offence shall be treated as guilty of the offence until proved guilty of that offence;

(c)  for the purpose of preserving the right or equality of human beings, human dignity shall be protected in all activities pertaining to criminal investigations and process, and in any other matters for which a person is restrained, or in the execution of a sentence, and

(d)  no person shall be subjected to torture or inhuman or degrading punishment or treatment.

It is prudent to take these constitutional requirements down the lane; and see how they are enforced in relation to capital punishment, As depicted from section 196 of the Penal Code, once a judge is satisfied after trial, that the offence is proved, he has no discretion but to impose the sentence of death as provided for in section 197 of the Code. We do not agree with the observation made by the Special Rapporteur that “making such a penalty mandatory and thereby eliminating the discretion of the court generally makes it impossible to take into account mitigating or extenuating circumstances and eliminate case-by-case determinations of an appropriate punishment in light of all circumstances of the case.”

Determination of mitigating or extenuating circumstances is not excluded as the Special Rapporteur seems to think. The ingredients of murder are malice aforethought known technically as mens rea and actus reus which is the unlawful act. Malice aforethought as an ingredient of murder may, among others, be established by evidence proving that:

(a)  an intention to cause the death of, or to do grievous harm to any person, whether such person is the person actually killed or not;

(b)  knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifférence whether death or grievous bodily harm is caused or ot, or by a wish that it may not be caused;

Where malice aforethought is not proved, or is negated, the accused person will not be convicted of murder. Such a person may be convicted of maslaughter, a lesser offence that will attract a sentence of life imprisonment or custodial sentences of duration that a judge may discretionary determine taking into account mitigating facts or extenuating circumstances. It may also lead to an acquittal of the accused. Other circumstances that a judge may take into consideration are provocation, mistake of fact, insanity, intoxication, right of defence and other circumstances that are recognized as General Rules to Criminal Responsibility under Chapter IV of the Penal Code. It is incorrect to say that the judge has no discretion to consider mitigating or extenuating circumstances that reduces the offense of murder to a lesser offense or are capable of establishing a diminished responsibility on the part of the accused.

The purpose of a homicide trial is to determine the veracity of a charge laid against the accused person based on the particulars indicated in the charge sheet. In this process, the offense of murder must be proved beyond reasonable doubts. The onus of proof is not on the accused but on the prosecution. The standard of proof for murder is higher. The accused is only required to raise doubts. The accused person may raise various defences and if a trial judge is satisfied of them, have the effect of exonerating the accused criminal responsibility or may convict him with a lesser offence of manslaughter. Any one familiar with this procedure is aware that it is in the process of weighing evidence adduced before the trial judge including that of the accused' and hearing final submission from the prosecution side and the defence's advocate that a judge finally write a judgement. Once a judge makes a finding of fact and law, taking into account and considering all other circumstances that are in law relevant, then it cannot be said that he must have discretion to decide the case suo moto or ex aequo et bono in disregard of evidence and all other matters that he is in law enjoined to take into account. The judge has no discretion after he has arrived at the decision that the offense of murder is proved beyond reasonable doubt and that there are no extenuating circumstances in favour of the accused. The judgement is an out of inputs from the prosecution witnesses, defence witnesses, final submission of the State Attorney and defence Counsel, finding of facts of the Court Assessors and mitigating plea of the accused. Once there are complete, court will render a judgement and state whether the offence has been proved or not. It will give reasons for either decision including taking into account any mitigating or extenuating circumstances or evidence that it considers present in the case. This is not a mechanical process. The mandatory aspect of the punishment comes through a process that has considered a1l evidence, all statements of witnesses and defence including mitigating factors. Rule of law dictates that a decision or judgement arrived through this process must be implemented. The argument against mandatory sentence invites an opportunity for subjective decisions. This later position is defeative of and contrary to the nurtured principles of the rude of law.

We take note of the Privy Council decision on an appeal from Barbados. However, that decision is of a persuasive value only, it is not binding on us in Tanzania. Our position is that capital punishment is recognized by the Constitution, supported by laws promulgated therefrom as well as decisions of municipal courts as shown above.

2. Right to legal representation

The allegations made to the effect that there are instances where accused persons are represented by poor or have not access to legal representation are false. The information relied upon must be from a source alien to or that is ill informed of the legal system in Tanzania. The right to legal representation by a person charged with murder is both a constitutional and a statutory right. In Laurent Joseph Vs Republic [19881 T.L.R 351 the Court of Appeal of Tanzania nullified a judgement of the High Court which convicted an accused for the offence of murder while the later was not legally represented. The Court held that there was an undoubted right to free legal representation to the poor. In view of this decision, courts will not allow a trial involving murder to proceed without a defence counsel, either of his choice or the dock brief, one provided by the court and paid for by the state. We wish to bring to attention of the Rapporteur the existence in our statutory law the provisions of section 310 of the Criminal Proceedings Act, No. 9/1985 on this matter. The section provides that:

“Any person accused before any criminal court, other than a primary court may of right be defended by an advocate of the High Court under powers conferred by Article 26 of the Tanganyika Order in Council,1920 from time to time.”

In addition to the requirement of these provisions, section 3 of the Legal Aid (Criminal Proceedings) Act, 1969 also specifically provides for legal aid assistance to indigent accused persons for the preparation of briefs, conduct of their defence or appeal as the case may be. In construing the scope of the Act, the Court of appeal of Tanzania in Laurent Joseph (supra) determined that the obligation is an entrenched right. This right is more entrenched when it comes to capital offences.

The allegation relating to very poor representation given to accused person is a dimensional problem. First, the quality of defence counsel is a subjective and an impression matter. Advocates are legally qualified persons, otherwise one would not be enrolled to the Bar. The bench, that is, the court before which the advocate practice, usually checks this quality. Courts will not tolerate poor representation of clients. Secondly, advocats are bound by professional ethics off the Bar and thirdly, disciplinary action may be taken if it is proved that an advocate belittles dock briefs. We are not aware of such behaviour and we would know if there are any.

The question of indigent defendants receiving insufficient legal aid does not arise because the funds are not given to them or their advocates. Advocates use their own resources and are refunded after the conclusion of the case as well as paid fees. It is not true that prisoners write their appeals themselves. Once an accused person is assigned an advocate, it is his/her duty to discuss all of his/her wishes with the advocate. The appeal against conviction in murder cases is automatic and the advocate's obligation to process the appeal will continue until the appeal is determined.

3. Right to appeal

The right of appeal in capital offences is, without exception, automatic. Any information to the contrary is false. The source of this sacrosanct right flow from Article 13(6) of the Constitution of the United Republic. Further, section 323 of the Criminal Procedure Act requires the court to inform the accused of the right of appeal and of the period within which, if he wishes to appeal, his appeal "should be preferred. In respect to lack of information on development on their appeal, we find this allegation circular. We have already said prisoners convicted of murder have legal aid services provided for by the state. The obligation is on the advocate to brief his or her client on any development concerning the appeal.

As to delays in processing appeals, we concede that this happens but the government through judiciary is addressing the problem as a governance issue by providing financial resources to enable the Court of Appeal to hold more sessions, to ensure that High Court proceedings are typed and forwarded to the appellant's advocate timely in order to file appeals. The government is equally investing more in the Legal Sector by acquiring court buildings and establishing more High Court centres in order to bring justice close to the people. We have noted marked improvement in this area compared to the 1980’s and 1990’s and with undergoing reforms in the Legal Sector, delays are soon to be matter of the past.

The Special rapporteur has been informed that convicts or row inmates do not have the right to apply for Presidential pardon and further, that the President acts suo moto. This is not the position of law and practice. The process is triggered in the first place not by the President but by the judge who convicted the accused in the High Court. It is important to note, that the process begins immediately after the Court of Appeal upheld the sentence of the High Court on appeal. Section 325 of the Criminal Procedure Act provides for a procedure*.  We do invite the rapporteur to examine it to understand and appreciate the embedded procedure.

The President’s powers under the Criminal Procedure Act are constitutional powers given to him under Article 45 of the Constitution of the United Republic.² Since the provisions of the Constitution are not exhaustive on the issue, Parliament was given power to enact a legislation providing for the procedure to be followed by the President in the exercise of his powers under Article 45. There is legislation to that effect. The Presidential Affairs Act, Chapter 9 of the Laws of Tanzania (revised edition of 2002) establishes au Advisory Committee on the Prerogative of Mercy. The President constitutes the Committee and its members includes the Attorney-General, a Minister and other members not exceeding five and not less than three. The President chairs the meetings of the Advisory Committee.

Section 3(3) of the Presidential Affairs Act an obligation on the shoulders of the President to cause a written report of the case from the trial judge for every person convicted of murder to be submitted to the Committee, Application by the convicted person for presidential prerogative of mercy does not arise in this set up.

Administratively, the Committee has a Secretary who is a public servant. He is an officer who makes day to-day follow up actions in consultation with the Attorney General. These farts eluded the source of the Rapporteur's information. We submit that the facts and position availed to the Rapporteur is distorted, unreliable and does not reflect the correct position of the law and practice. It is easy to note that we have gone beyond Article 6(4) of ICCPR in that whether a convicted person desires to be pardoned or not his or her conviction will be reviewed by the Committee at no cost of his.

The concern of the Rapporteur for lack of transparency in statistical availability on death sentences is regrettable. Proceedings involving murder cases in Tanzania are conducted, as a matter of law, inan open court. The records are published in Law Reports of Tanzania series and are available in criminal registries of the High Court. All of that is in public domain and such an undertaking is incompatible with secrecy. We are therefore baffled with such an allegation. It is simply not true.

To recapitulate on this submission, the government of United Republic has procedural guarantees for the rights of a person accused and convicted of murder as we have demonstrated in this reply. The allegations on instances of denial of right of counsel in murder cases are wild and incorrect as are those touching on exercise of presidential prerogative of mercy.

The rapporteur has requested statistics on inmates on death row.We shall provide you with those statistics in due course. Unfortunately we are yet to computerize the records.