By: Rachel Wallisky

Impunity Watch News Staff Writer

DODOMA, Tanzania — Of the nine new judgments the African Court on Human and Peoples’ Rights (AfCHPR) issued during its opening ceremony on November 7, 2023, three are appeals of capital sentences imposed in the United Republic of Tanzania. Arguments for these cases were all heard by the AfCHPR during its September 2023 term.

Background

In Tanzania, a person convicted of murder or treason must be sentenced to death with few exceptions. While murder convictions are relatively rare, courts in Tanzania have interpreted the law to say that a capital sentence is mandatory for these cases. Tanzania has taken an abolitionist stance on the death penalty, having not carried out an execution since 1994. However, the law mandating capital punishment is still codified in statute and many are sentenced to death. Most murder sentences are commuted to life imprisonment. The AfCHPR has held in the past that mandatory death penalty statutes violates the right to life as guaranteed under Article 4 of the African Charter on Human and Peoples’ Rights (the Charter). Additionally, Article 6 of the International Covenant on Civil and Political Rights (ICCPR) condemns mandatory capital punishment.

The Cases

The first case, John Lazaro v. United Republic of Tanzania, is an appeal from the murder conviction of Mr. Lazaro, a Tanzanian national. Mr. Lazaro argued that several of his rights were violated during his trial by the domestic courts, including his right to life under Article 4 and right to dignity under Article 5 of the Charter. The Court agreed that Mr. Lazaro’s right to life under Article 4 had been violated by the mandatory imposition of the death penalty, and his right to dignity under Article 5 had been violated due to the method of execution prescribed by the domestic courts, namely hanging.

The second case, Makungu Misalaba v. United Republic of Tanania, is an appeal from the murder conviction of Mr. Misalaba, a Tanzanian national. Mr. Misalaba was granted a presidential pardon, and his capital sentences was commuted to life imprisonment. Mr. Misalaba stated several of his rights were violated during his trial by the domestic courts, despite his pardon, including his right to life and right to dignity under Article 4 and Article 5 of the Charter, respectively. The Court agreed that Mr. Misalaba’s right to life was violated but disagreed that his Article 5 rights were violated, awarding him with TZS 500,000 in moral damages.

The third case, Chrizant John v. United Republic of Tanania, is an appeal from the murder conviction of Mr. John, a Tanzanian national. Mr. John also argued his Article 4 and 5 rRight to Life and Right to Dignity, among other rights, were violated during his trial by domestic courts. Uniquely, Mr. John called upon the Court to order Tanzania to remove the mandatory death sentence provision for the offense of murder. The Court agreed that Mr. John’s Article 4 and 5 rights were violated and ordered Tanzania to pay TZS 500,000 in moral damages.

The Dissenting Opinion

The dissenting opinion was written by Judge Blaise Tchikaya regarding all three cases. Judge Tchikaya criticizes the court for “retreat[ing]” from the AfCHPR’s power to interpret the law. He argues that the court should have taken the initiative to state that the death penalty is contrary to Articles 4 and 5 of the Charter and States should take measures to remove it from their national legislation.

Additionally, Judge Tchikaya argues these decisions are contradictory. In the Chrizant John judgment, Judge Tchikaya criticizes the Court for finding that Mr. John’s Article 7 right to be heard was not violated because the right requires the sentence imposed to be “legally unobjectionable.” Because the death penalty is not a “legally unobjectionable” sentence, Judge Tchikaya finds Mr. John’s Article 7 rights to have been violated. In the Makungu Misalaba judgment, Judge Tchikaya argues that the majority contradicted itself by finding that Mr. Misalaba’s Article 5 right to dignity was not violated while at the same time finding his Article 4 right to life was violated, because to sentence someone to death is to violate both Article 4 and Article 5 of the Charter. For similar reasons, Judge Tchikaya argues the John Lazaro judgment is subject to the same criticisms.

For further information, please see:

AfCHPR – Dissenting Opinion of Judge Blaise Tchikaya, John Lazaro v. United Republic of Tanzania, Makungu Misalaba v. United Republic of Tanzania, Chrizant John v. United Republic of Tanzania – 7 Nov. 2023

AfCHR – Judgment on Merits and Reparations, Makungu Misalaba v. United Republic of Tanzania – 7 Nov. 2023

AfCHR – Judgment on Merits and Reparations, Chrizant John v. United Republic of Tanzania – 7 Nov. 2023

AfCHR – Judgment on Merits and Reparations, John Lazaro v. United Republic of Tanzania – 7 Nov. 2023

Amnesty International – Case on death-row detainees challenging mandatory death penalty – 25 June 2023

Parlementarians for Global Action – Tanzania and the Death Penalty

By: Paola Andrea Suárez Luján

Impunity Watch Staff Writer

ARUSHA, Tanzania – Family members of Tunisian prisoners Rached Ghannouchi, Noureddine Bhiri, Ghazi Chaouachi, Said Ferjani, and the son of the deceased member of the Ennahda Party Ridha Bouzayene have asked the African Court on Human and People’s Rights to order the Tunisian government to provide the detainees “unimpeded access to their lawyers and to doctors of their choice” and to “provide particulars of the legal and factual grounds” of their detention and prosecution. They have also requested the suspension of the conviction of Rached Ghannouchi and the release of the prisoners.

The Court granted the request of the families to allow the detainees access to lawyers and doctors of their choice, as well as access to complete and adequate information regarding the basis for their detention. However, the Court refused to review the merits of the arrest or to order the release of the detainees at this stage of the proceedings.

Rached Ghannouchi, at 81 years old, is the leader of the Ennahda Party, the largest political party in the Republic of Tunisia. He was convicted on the charges of glorifying terrorism and conspiring against state security after he affirmed in the funeral eulogy of Farhat Al-Abbar, a former Ennahdha member and Al-Jazeera Correspondent, that the deceased “did not fear poverty, ruler or tyrant”. Amnesty International has declared that “the sentencing of Rashed Ghannouchi shows a growing crackdown on human rights and opposition and a deeply worrying pattern”. Ghannouchi is but one of over 40 opposing political targets who have been detained due to political charges against the Tunisian government.

The accusations came after Tunisian President Kais Saied’s self-coup in 2021, when he fired the prime minister, assumed all executive power, suspended the parliament, and dissolved the government. President Kais Seid’s strategy includes the arbitrary imposition of travel bans on political opposition, members of parliament, civilians, and journalists, and trials in violation of the right to freedom of expression under Decree-law 54. President Saied has also obtained the power to dissolve the Supreme Judicial Council formed in 2016 under Decree-law 22 and established a temporary one himself, with members of his choosing. Under Decree-Law 35, President Saied can also object to any judge’s appointment, promotion, transfer, or dismissal; he can fire judges directly and the government can assume disciplinary procedures against judges.

Ghannouchi and other detainees have undertaken hunger strikes in protest of what they consider a “judicial sham” and a violation of their right to a fair trial. As the number of human rights violations and political persecution increases, the detainees’ families have moved to continue their pleas to the International Criminal Court, in their hope that the Court will investigate the actions of the Tunisian government and order the release of their relatives.

For further information, please see:

AfCHPR – The Matter of Moadh Kheriki Ghannouchi and Others v. Republic of Tunisia – 28 Aug. 2023

Agencia Anadolu – Tunisie : Ghannouchi demeure libre après avoir été entendu par le pôle judiciaire de lutte contre le terrorismo – 21 Feb. 2023

Amnesty International – Human Rights Under Assault Two Years After President Saied’s Power Grap

Amnesty International – Tunisia: Drop trumped-up charges against arbitrarily detained political dissidents – 10 Oct. 2023

Amnesty International – Tunisia: President must lift arbitrary travel bans – 26 Aug. 2021

Associated Press – Families of imprisoned Tunisian dissidents head to the International Criminal Court – 25 Oct. 2023

Carnegie Endowment for International Peace – One Year Later, Tunisia’s President Has Reversed Nearly a Decade of Democratic Gains – 22 July 2022

Le Monde – Tunisia: Opposition party leader Rached Ghannouchi sentenced to a year in prison – 15 May 2023