The African Court on Human and People’s Rights Finds Tanzania’s Mandatory Death Penalty for Murder to be Against the Charter of the United Nations

By: Penelope Boettiger
Impunity News Staff Writer

TANZANIA – On December 1, 2022 the African Court on Human and People’s Rights (ACtHPR) released its judgment regarding alleged violations in Tanzania of the right to life, the right to a fair trial, the right to be tried without undue delay, the right to effective representation, the right to dignity and to be free from cruel inhuman or degrading treatment following Defendant spending more than six years in pre-trial detention and held in twelve years (and counting) on death row following a mandatory death row sentence. In Marthine Christian Msuguri v. United Republic of Tanzania the Court found in favor of Defendant in all but his effective counsel claim, which was dismissed.

In Tanzania, the death penalty is, per penal code, imposed by hanging. Photo courtesy of BBC News

Concerning his right to life violation, which is protected under Article 4 of the Charter of the United Nations, of which Tanzania is a signatory, the Court found the mandatory death penalty under Article 197 of the Tanzanian Penal Code for the crime of murder violates the right to fair trial and violates the required individualized sentencing which takes into account circumstances of the crime and the Defendant as possible mitigating factors. Ignoring questions of insanity and generalized mental health status in particular violate the required judicial sentencing discretion.

Defendant was held in pre-trial detention for over six years before his trial, which violates his right to be tried without undue delay. The case at hand was not a complex case, did not require a great deal of investigation, and Defendant in no way contributed to the delay. With no explanation for such extensive delays, the Court found Defendant’s rights under Article 7(1)(d) of the Charter were violated. Regarding Defendant’s contention of degrading treatment, the Court found such delays, with the death penalty a likely outcome, would plainly result in the psychological suffering that in and of itself is inhuman and degrading under Article 5 of the Charter. Similarly, the length of his detention – more than twelve years to date – following being sentenced to death also violates this right. This psychological harm is compounded by the certainty of the death penalty in a situation where the mandatory death penalty is not legally in line with the Charter.

The Court here awarded pecuniary damages, reiterated its order to repeal the mandatory death sentence, for which it had been ordered in at least three previous cases. The Court also required the sentence be vacated and reconsidered under a process which does not impose the mandatory death sentence.

In Tanzania there are two offenses which carry mandatory death sentences: murder and treason. Under section 197 of the Penal Code, any non-pregnant person over 18 “shall be sentenced to death.” While the death penalty has been carried out in Tanzania since 1994, making it what is termed an “abolitionist in practice,” new death sentences continue to be handed down. Currently there are approximately 500 people on death row in Tanzania, thereby de facto violating the rights outlined above in Msuguri. The abolishment of not only the mandatory death penalty for murder, but for the death penalty at all, continues to rise in the African continent with Equatorial Guinea poised to be the latest to remove the death penalty from its criminal code at the end of this year. While the President of Tanzania commuted the death penalty for 256 inmates on death row in 2020, sparking international human rights hope that they too would be moving away from the psychological torture associated with indefinite time on death row, this has not panned out. In fact, in 2019 the High Court of Tanzania upheld the death penalty, so while in Msuguri mandatory death sentence and conditions surrounding it were found to be contrary to the Charter and violative of human rights, for now the death penalty and the mandatory death penalty for murder stand. The world waits to see how Tanzania will respond to the ACtHPR’s decision and what, if any, changes to its penal code Tanzania will make.

U.S. Department of State – Country Reports on Human Rights Practices: Tanzania – 2020

Leonard Shaidi – The Death Penalty in Tanzania: Law and Practice – 2019

ACtHPR – The Matter of Marthine Christian Msuguri v. United Republic of Tanzania – 1 Dec. 2022

Daily News – Legal experts advise on abolition of death penalty – 17 Sept. 2022

The Death Penalty Project – The Conversation: ‘Why has Kenya not abolished the death penalty? Habit and inertia’ – 21 Sept. 2022

Anadolu Agency – Tanzania commutes death sentences of 256 convicts – 12 Sept. 2022

Author: Jorge Estacio