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.
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 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