Mixed views over African court’s fresh order on death penalty

The case dates back to 1991 when Mr Chalula, a Tanzanian national, was convicted of murder and sentenced to death by the High Court of Tanzania sitting in Sumbawanga.

He appealed to the African Court, arguing that Tanzania violated his rights under the African Charter on Human and Peoples’ Rights.

The court found that the mandatory nature of the death penalty violated his right to life and that execution by hanging infringed on his dignity.

It ordered Tanzania to retry Chalula in a process that does not impose the mandatory death penalty, to remove hanging from its criminal code, and to report back on implementation within six months.

This came at a time when, on June 4, 2024, the African Court once again ordered the Government of Tanzania to abolish the mandatory death penalty in its laws, giving it six months from that date to implement the order.

The Court issued this directive following an appeal filed before it by an inmate sentenced to death, Dominick Damian, against the United Republic of Tanzania.

In its judgment, the Court ordered the Government to vacate the death sentence imposed on Dominick, who has been awaiting execution at Butimba Prison in Mwanza Region. However, to date, the order has not been implemented.

Tanzania, a signatory to the African Court, has a mixed record when it comes to implementing its decisions. Legal experts say this latest ruling puts the government at a crossroads.

A legal scholar, Dr Emmanuel Ndyali, says that while the African Court offers a place of refuge for those seeking justice beyond national jurisdictions, its effectiveness is hampered by governments that ignore its rulings.

“We have seen cases in the past where Tanzania and other African countries disregard the court’s decisions. The question now is whether the government will break from that pattern and implement these orders,” he says.

Several African nations, including Benin, Rwanda, and Côte d'Ivoire, have withdrawn from the court’s jurisdiction after rulings that challenged their legal frameworks.

In 2019, Tanzania also attempted to limit the court’s reach by restricting individual access to it, raising concerns about its commitment to justice.

Will this case be different?

Some legal minds remain hopeful that Tanzania will adhere to the ruling. Constitutional lawyer Sarah Mwakapango believes that the directive to remove the mandatory death penalty aligns with global human rights trends and could be an opportunity for Tanzania to reform its justice system.

“This ruling is not just about one man’s case. It’s an invitation for Tanzania to re-evaluate its stance on capital punishment,” Ms Mwakapango explains. “Many countries have moved away from the death penalty, and Tanzania has not executed anyone in decades. This could be the first step toward abolishing it altogether.”

The last execution in Tanzania was carried out in 1994 under President Ali Hassan Mwinyi’s administration. Since then, successive presidents have declined to sign execution orders, effectively imposing a moratorium on capital punishment.

However, the African Court's ruling comes at a time when there is a proposal from the Criminal Justice Commission, aimed at improving the country's criminal justice institutions, to amend the law regarding the death penalty. This proposal also awaits government implementation.

The commission, established by President Samia Suluhu Hassan and led by Retired Chief Justice Mohamed Chande, recommended in its report submitted to the President in July 2023 that the law prescribing the death penalty be amended. The commission proposed that the Penal Code, Chapter 16, be revised so that the death penalty is not the only punishment for murder but rather that sentencing should depend on the circumstances of the crime.

It also recommended that if the death penalty is not approved by the President within three years, the sentence should automatically be converted to life imprisonment.

Human rights organisations argue that Tanzania should seize this moment to eliminate the death penalty entirely.

“The death penalty is cruel, inhumane, and irreversible,” says a human rights activist, Mr Andrew Kiwelu. “With this ruling, Tanzania has a chance to officially remove it from the law books and prevent future injustices.”