Court name
Court of Appeal of Tanzania

Mbushuu Alias Dominic Mnyaroje & Another vs Republic () [1995] TZCA 1 (30 January 1995);

Law report citations
1995 TLR 97 (TZCA)
Media neutral citation
[1995] TZCA 1

Ramadhani, JA: delivered the following considered judgment of the Court: C
The High Court of Tanzania At Dodoma (Mwalusanya, J) being satisfied beyond reasonable doubt that the two accused persons; Mbushuu alias Dominic Mnyaroje and Kalai Sangula, had killed with malice aforethought a herdsboy, Saidi s/o Jingu, D convicted them of murder as charged. After some submissions as to the constitutionality of the death sentence, the learned Trial Judge declared that sentence unconstitutional and committed each of the accused persons to life imprisonment.
The two accused persons have appealed against conviction and the Republic has E appealed against the sentence. We have consolidated the two appeals for obvious reasons. Since conviction comes first before sentence, we have regarded Mbushuu alias Dominic Mnyaroje as the first appellant and Kalai Sangula as the second appellant and the Republic is taken to be the respondent. F
One Naftali s/o Ngamaa (PW3), is a resident of Mkwese village, Manyoni District, and owned some cattle and goats. On the morning of 6 September 1984, together with his herdsboy, Saidi s/o Jingu, the deceased, he took his animals to drink water and then left them under the care of the deceased for grazing. PW3 returned home but the deceased never did, even as late as at 7.00 pm. G Suspecting that something was amiss, he raised an alarm and went out in search of the deceased and the animals without success. We may point out here that there is no evidence as to when the deceased was found fatally wounded.  However, PW3 and Athumani Mtinangi (PW4), then the ten cell leader of PW3 H   owned to have seen the deceased with a spear wound in the ribs. The deceased told them that some strangers had attacked him and got away with the animals he was herding. The lad could not make it to the hospital. He died on the way.
Almost a month later, PW3 and PW4 were told that some of the I

A   stolen animals were at Mkatika Village, Bahi, in Dodoma District. In the company of some policemen, the two witnesses went to the kraal of Mosi Masingisa (PW1) where they identified four cattle and eight goats out of the stolen animals. At the kraal there were also Mdachi Hongole (PW5) and Matonya Yohana (PW6).
B   PW1 told the court that the animals, six cattle and eight goats, were taken to his place by the two appellants and another person still at large called Moro s/o James. That was on 6 September 1984, the date the deceased was attacked and robbed. That was reiterated by PW6. PW1 also said that it was his first time to see the first appellant but that he had known the second appellant and Moro before C   that day. PW1 further told the court that there was no movement permit for the animals which were intended to be left at his kraal for tending. PW1 then took the appellants and Moro to the village chairman, Masangwai Mafuma (PW2), who D   allowed the animals to be left there provided that a movement permit was brought in due course. PW2 did not see the animals but he was just told that there was a bull and five cows. He did not mention the goats. PW1 also testified that the second appellant told him, as they were leaving, that the first appellant would E   return for the two bulls. A few days later, the first appellant and Moro went to PW1 and took the two bulls. The movement permit still had not been produced, but PW1 was told, when the two bulls were taken, that the second appellant would deliver the permit to him. PW2 was also aware that the two animals had been taken away.
F   According to PW2 and PW6, some time in October, 1984, PW3, PW4 and some policemen appeared at the kraal of PW1 searching for some stolen animals and that the four cattle and eight goats were identified as among the stolen animals. PW1 was arrested and charged with murder but the charges were later dropped and he was released. Also arrested were PW5 and PW6, and, like PW1, they were later released from custody. G
Both appellants denied involvement in the raid and the resulting murder. The first appellant claimed that he was a businessman at Saranda, Manyoni District, and that he had not gone to Mkatika Village on the fateful day. He further told the court that on 30 August 1984 he left Saranda for Dar es Salaam to attend to his sick H   child who later died. The first appellant said that he remained in Dar es Salaam and got back to Saranda on 6 October 1984. The first appellant was supported in his alibi by his brother-in-law, Joseph Lazaro (DW1), who had accompanied him to and from Dar es Salaam. I

The second appellant, too, claimed that he was at his residence at Dabiya Village A   on the fateful day. He further told the court that he was charged with the murder of another on 26 December 1989 and that he was convicted of manslaughter and was sentenced to fifteen years imprisonment. He claimed to be a victim of circumstances.
At already said, Mwalusanya, J believed PW1 and PW6 that it was the appellants B   who took some of the stolen animals to the kraal of PW1 where they were identified by PW3 and PW4. The learned Trial Judge found corroboration of that story in the testimony of PW2. Applying the doctrine of recent possession, the learned Trial Judge found the two appellants to have been among the persons who attacked and robbed the deceased. Thus he found the appellants guilty of murder as charged. C
Mr Rweyongeza, learned advocate, appeared for the appellants and had five grounds of appeal which, with respect, boil down to challenging the identification of the appellants. Mr Rweyongeza has sought to do that in three ways. D
First, Mr Rweyongeza submitted that the two identifying witnesses, PW1 and PW6 are not reliable. The learned advocate pointed out that both witnesses had been arrested for this incident though they were later released. So, he submitted, they E   had an interest to serve and that in order to save their skins they are willing to shove the baby into any other persons's hands. Mr Rweyongeza added that PW1 had actually been charged with the murder of the deceased.
Second, Mr Rweyongeza pointed out that when PW1 was asked by PW3 and F   PW4 as to how he got the animals, he mentioned one Lemmy as the person who had taken them to his place. However, in his testimony in court, the learned advocate said, PW1 mentioned the appellants as the persons who had taken the animals to his kraal. G
Third, the learned advocate said that PW2 cannot provide corroboration to PW1 and PW6, as the learned trial judge found, because of some discrepancies in his testimony. Mr Rweyongeza pointed out that PW2 did not mention goats as among the animals which were brought to PW1. Then, the learned advocate added, PW2 said that the animals belonged to Moro while PW1 named the second appellant as H   the owner. Apart from that, Mr Rweyongeza said, PW2 did not see the animals but was just told by PW1 that some animals had been brought to his place.
Lastly, Mr Rweyongeza argued, if the identification of the appellants is not watertight and as the alibis of the appellants have not I

A   been contradicted, then the appellants should be acquitted.
On behalf of the respondents Republic was Miss Korosso, learned State Attorney. She supported the conviction and submitted that the learned Trial Judge who saw and heard PW1 and PW6 believed them to be credible and that he cannot be B   faulted. She contended that the witnesses have no interest to serve. Besides, Miss Korosso added, PW1 and PW6 are corroborated by PW2 whose evidence to the fact that it were the appellants who sent the animals to PW1 is that of an independent witness.
C   The appeal stands or falls on the issue of identification. If they were properly identified as the persons who took the animals to PW1 then their alibis must fail and, on the basis of the doctrine of recent possession, they are the murderers. So, were they adequately identified?
D   We agree with Mr. Rweyongeza that the evidence of PW1 and PW6 has to be scrutinized carefully. The stolen animals were found in their possession and they had received them without the prerequisite movement permit. That made them suspects and hence their arrest. They would naturally want to distance themselves from the event. But worse still is the testimony of PW3 and PW4 that PW1 mentioned Lemmy as the person who had brought the animals to him. He E   claimed to have known the second appellant as a small boy. The second appellant himself acknowledges to have been born and brought up in Mkatika Village and that he is known to PW1. So, there is absolutely no question of PW1 mistaking Lemmy for the second appellant. Why did PW1 tell a lie at that first available F   opportunity? Whom was he protecting and why? To crown it all, if the so well-known second appellant was the culprit why did it take so long to arrest him? It has not been controverted that he was arrested, charged with and convicted of manslaughter in another case in 1985. So, all this time he was at large and it has G   never been claimed that the police were looking for him. The first appellant, too, was first arrested in 1985, he was discharged in 1988 and re-arrested in 1990. In fact on 16 July 1991 the first appellant was named by Mr Ndunguru, learned State Attorney, to be the first prosecution witness. Why was that if PW1 and PW6 had properly identified him on the fateful day of 6 September 1984, that is, seven years previously? H
We must admit that we have not been able to find answers to all the questions posed above. Hence the credibility of PW1 and PW6 is greatly in doubt.
Could PW2 provide corroboration? It is trite law that a court I

looks for corroboration when, in the light of all the evidence, a witness is worthy of belief. A
   The purpose of corroboration is not to give validity or credence to evidence which is efficient or suspect or incredible but only to confirm or support that which as evidence is sufficient and satisfactory and credible. B
That was said by our predecessor in Uganda v Shah & Two Others (1). Also in Aziz Abdallah v R (2) at p 10 we quoted with approval what was said by Lord Hailsham in DPP v Kilbourne (3) at p 745 that: C
   `If a witness's testimony fails of its own inanities the question of his needing or being capable of giving corroboration does not arise.'
Since PW1 and PW6 are not credible, then there cannot be corroboration from D PW2 or anybody. There is no need even to discuss the testimony of PW2
We may as well mention two matters very quickly. One, it is remarkable that not a single policeman was called to testify though evidence shows that a couple of them were involved in the investigation. That could make a court draw an adverse inference. Two, the learned Trial Judge said in his judgment: E
   `In any case the two accused have not challenged the contention that the four heads (sic) of cattle and eight goats are part of the cattle that were robbed from the deceased on 6 September 1984.' F
We think the appellants' behavior has been consistent with their testimony. Both of them have said that they do not know anything about the cattle raid. They were not at the scene of crime. They did not know the deceased or the animals he was G herding. So, how could they, then, with the same breath, say that the four head of cattle and the eight goats did not belong to the lot in the care of the deceased?
So, we find that the appellants were not properly identified as the persons who took the stolen animals to PW1. Therefore, the doctrine of recent possession H cannot be applied to them and connect them with the murder of the deceased. We, therefore, quash the conviction of murder and set aside the sentence of life imprisonment imposed of them.
But was that sentence of life imprisonment for murder proper? In other words, is the death sentence unconstitutional? I

A The learned Trial Judge found death sentence unconstitutional under art 64(5) of the Constitution of the United Republic of Tanzania 1977 after holding that:
   `the two petitioners have managed to prove on a balance of probabilities that the death penalty is cruel, inhuman and degrading punishment/treatment and also that it offends the right to B dignity of man in the process of execution of the sentence. At the same time the Republic has failed to prove on a balance of probabilities that the impugned law is in public interest and that it is a lawful law under art 30(2) of the Constitution. C
Before the learned Trial Judge, Mr Rweyongeza made three submissions and after a long deliberation covering 26 typed foolscap sheets the above quoted holding was arrived at. Mr Rweyongeza at the start argued that the death penalty is D contrary to art 13(6)(e) of the Constitution as its execution offends the right to dignity; second, it is a cruel, inhuman and degrading punishment contrary to art 13(6)(e); and lastly, that the death penalty violates the right to life as provided by art 14 of the Constitution.
F Before us Miss Korosso presented a memorandum of appeal containing three grounds. In the first ground the learned State Attorney seeks to fault the learned trial Judge in holding that Art. 14 of the Constitution guarantees absolute right to life and that s 197 of the Penal Code, which provides for the death penalty, breaches that guarantee.
G The learned State Attorney took quite some time on that. However, we do not think it necessary to go over her submission, as Mr Rweyongeza pointed out, the learned trial judge did not make that finding.
The learned judge, after referring to our decision in DPP v Daudi Pete (11) that the Kiswahili version of the Constitution is the authentic one, said:
   "The Swahili version reads: "Kila mtu anayo haki kuishi na kupata kutoka kwa jamii hifadhi ya maisha yake, kwa  H muyibu wa Sheria." It is crystal clear from that wording in the Swahili version that both the right to life and the right to the protection of ones life by the society, is subject to the clawback clause "subject to law". So it is my finding that the right to life is not absolute but subject to law."
So the learned trial judge held quite the opposite of what Miss Korosso understood him to have  I done. However, the learned State

Attorney was quick to reply that the subsequent pronouncements of the learned trial judge negated A   the above quoted finding. Miss Korosso did not cite any such pronouncement. We shall have so see what the learned Trial Judge said in that part of his judgment entitled whether the law prescribing the death penalty is lawful law. B
As her second ground of appeal Miss Korosso submitted that the learned Trial Judge erred in holding that art 13(6)(d) and (e) prohibited the mode of execution of C the death penalty by hanging as provided under s 26 of the Penal Code. Thus the learned State Attorney was saying that the death penalty is not cruel, inhuman and degrading punishment. She contended that all punishments, without exception, are cruel. She, however, conceded that there is some delay in the execution of the death penalty. However, she does not consider delay as a factor D making death penalty cruel and inhuman. On the contrary, she has submitted, any delay in the execution of the punishment kindles some hope in the condemned prisoner. Miss Korosso in support of her submission referred us to Barret Sutcliffe v Jamaica (4); Abolt v AG of Trinidad and Tobago (5) and a book by William A Schabas entitled The Abolition of the Death Penalty in International Law. E
Mr Rweyongeza was very categoric that death penalty is cruel, torturous and most inhuman and that it offends art 13(6)(e) of the Constitution. F
The learned Trial Judge dealt with the issue of the death penalty and whether it is cruel, inhuman and degrading at great length. He said that a punishment can be inherently cruel, inhuman and degrading or it can be so in the mode of its execution. The learned Trial Judge followed the decision of the Court of Appeal of Botswana in The State v Petrus (6) and also the decision of the Supreme Court of Zimbabwe in Ndlovu v The State (7). G
As for the death penalty, the learned Trial Judge upheld the submission on behalf of the present appellants that the cruelty, the inhumanity and the degradation are both inherent and in the mode of execution. He said that killing is per se offensive, H this is so whether done by private person or by the State. He went on to say that killing by the State is even more repugnant as there lacks the element of provocation which in many cases is the cause of killing by a private individual. So, the learned judge continued, State killing is in cold blood and, referring to Clarence Darrow in Attorney I

A for the Damned, (1957) Simon & Schuster, New York, at 92, the State teaches the public to kill.
The learned Trial Judge found the inevitable delay in executing death penalty to add insults to the injury and to cause prolonged mental torture. He cited the decision of the Supreme Court of Zimbabwe in Catholic Commission for Justice and Peace in B Zimbabwe v AG and others (8). Coupled to the delay, the learned judge found that the conditions obtained in the death cells are horrible and add to the anguish of the condemned prisoner. The mode of the execution of the death penalty, that is hanging, according to the learned judge, completes the sordid and the debasing C character of the penalty. The learned judge described the mode of execution at some length pointing out that at the end of the day the dead body of the prisoner is left in a mess and that there could not be a more inhuman and degrading sight.
D The learned judge remarked that the fact that the State executes in secret and without publicity is a clear acknowledgement of its guilty conscience that what it is doing is cruel, inhuman, degrading and that the punishment is despicable.
E As her third ground, Miss Korosso submitted that the learned Trial Judge erred in not finding that the death penalty is saved by art 30(2) of the Constitution.
Miss Korosso said that s 197 of the Penal Code, Cap 16, which provides for the death punishment for murder, is not arbitrary. She submitted that the penalty is imposed after due process of law, that is, after a full trial in which the burden of proof is on the prosecution and with a provision for appeal and eventually a F provision for seeking pardon from the President. Miss Korosso also pointed out that pregnant women and youths under the age of 18 years are exempted from the death penalty. The learned State Attorney cited Bacher Singh v State of Punjab (9) G as authority for the proposition that when life is taken away in due process of law then that action is not unconstitutional. She said that such provisions for the death penalty, as our s 197 of the Penal Code, which have existed before the provisions on human rights and fundamental freedoms were introduced in the constitutions H are specifically saved by the same constitutions. She said that this was so with art 3 of the Constitution of Trinidad and Tobago. She referred us to Michael de Freitas v George Ramoutar Benny (10).
As for international instruments, Miss Korosso submitted that the African Charter on Human and Peoples' Rights (hereinafter referred to as the African Charter) requires that the respect for life I

and the integrity of the person of an individual should not be deprived arbitrarily (art A 4). She also pointed out that art 2(1) of the European Convention on Human Rights and Fundamental Freedoms (hereinafter referred to as the European Convention) protects life and adds that none `shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law'. B
Miss Korosso also contended that the death penalty passes the proportionality test because it is in the public interest. The learned State Attorney said that she is aware of the moves toward the abolition of that penalty in some countries. However, she submitted that death penalty has proved to be a deterrent and that C some of the jurisdictions which abolished it, such as California, Guatemala, Mauritius, North Carolina and Texas, have swiftly reinstated it.
The learned State Attorney submitted further that there is the prerogative of mercy D which takes care of the appropriateness of the penalty in the peculiar circumstances of every individual case. She pointed out that in Tanzania there is a committee for advising on the exercise of the prerogative of mercy under the Presidential Affairs Act, Cap 502. All these measures, according to her, take care of the proportionality test. E
Miss Korosso contended that as death penalty is neither arbitrary nor in contravention of the proportionality test, then its derogation from the right to life is saved under art 30(2)(c).
Mr Rweyongeza admitted that there is due process of law when considering the F death penalty. However, he pointed out that the period from the end of the determination of an appeal by the Tanzania Court of Appeal, to the time of the execution of the penalty, is also part and parcel of the due process of law and that this portion of time is tainted with arbitrariness. He said so because, first, the G period is indeterminate and frequently tormentingly long. This he added, also offends the proportionality test. Then, Mr Rweyongeza said, there are no guidelines given on the usage of the prerogative of mercy. Therefore, he contended, the death penalty is not saved by art 30(2) of the Constitution. H
As for the first ground of appeal, we agree with Mr Rweyongeza that the learned Trial Judge categorically stated that the right to life under art 14 of the Constitution is not absolute. He struck out the provision for the death penalty not because it contravenes the absolute right to life but because of reasons which we shall deal with shortly. We do not agree with Miss Korosso that what the learned I

A judge said later negated that finding. This should suffice to dismiss the first ground of Miss Korosso. However, later on Mr Rweyongeza in effect submitted that the right to life under art 14 of the Constitution is absolute.
B Mr Rweyongeza submitted that art 14 merely prescribes the right to life and enjoins the law to protect that right. He pointed out that that article does not provide for the deprivation of life. He contrasted our art 14 with art 21 of the Constitution of India which provides:
C    `No person shall be deprived of his life or personal liberty except according to procedure established by law.'
Mr Rweyongeza contended that since art 14 does not provide for deprivation of Life, as art 21 of the Indian Constitution does, then any law which purports to take away that right, that is, a law providing for the death penalty, is unconstitutional. D
We have already decided in DPP v Daudi Pete (11), as the learned Trial Judge properly observed, that the Kiswahili version of the Constitution is the authentic one. Article 14 of that version provides as follows: E
   `Kila mtu anayo haki ya kuishi na kupata kutoka kwa jamii hifadhi ya maisha yake, kwa mujibu wa sheria.'
F The translation of that article in the English version is terribly misleading. As this judgment is in English there is a need for us to make our own translation of art 14 as follows:
   `Every person has a right to life and to receive from the society the protection of his life, in accordance with law.'
G Admittedly, our art 14 does not expressly provide for the deprivation of the right to life as does art 21 of the Constitution of India. Our research has shown that a number of other countries have formulations like that of art 21 of the Constitution of India. For example, art 13(1) of the Constitution of the Republic of Ghana, 1992 provides: H
   `No person shall be deprived of his life intentionally except in the exercise of the execution of a sentence of a court in respect of a criminal offence under the laws of Ghana of which he has been convicted.' I

Similar couching providing for deprivation of life is found in art 32 of the A Constitution of the People's Republic of Bangladesh, Fifth Amendment of the Constitution of the United States of America, art III(1) of the 1987 Constitution of the Republic of the Philippines and also, we may add, Article 52 of the Draft Constitution of the Republic of Uganda. B
We have also seen at least four international instruments on human rights which in addition to protecting the right to life expressly prohibit arbitrary deprivation of that right. Article 2(1) of the European Convention, as Miss Korosso properly pointed out, is very articulate: C
   `Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.' D
The International Covenant on Civil and Political Rights (hereinafter referred to as the International Covenant) provides in art 6(1) thus:
   `Every human being has the inherent right to life. This right shall be protected by law. No one E shall be arbitrarily deprived of his life.'
The African Charter in art 4 and art 4(1) of the American Convention on Human Rights (hereinafter referred to as the American Convention) provide very much like art 6(1) of the International Covenant. F
The result of our survey is that the international instruments declare the inherent and universal right to life, demand that right be protected by law and prohibit the arbitrary deprivation of that right. That means the right can be denied by due process of law. The six domestic constitutions which we have been able to obtain, G on the other hand, presume the existence of the inherent and universal right to life and its protection by law. The constitutions deal with when a person can be deprived of his life.
Article 14 of our Constitution lies in between the two sets. It declares the inherent H and universal right and its protection by the society but then subjects both the right and its protection, to law. That means there can be instances in which the due process of law will deny a person his right to life or its protection. This is why the learned Trial Judge found that the right to life under art 14 is not absolute but qualified, and here we agree with him. I

A The issue we have to determine is whether the death penalty is one of such instances where the due process of law will deny a person his right to life and its protection.
The first matter which we have to address ourselves is whether the death penalty contravenes art 13(6)(d) and (e).
The relevant part of art 13(6)(d) provides as follows: B
   `(6) kwa madhumuni ya kuhakikisha usawa mbele ya sheria, Mamlaka ya Nchi itaweka taratibu zinazofaa au zinazo-zingatia misingi kwamba  -
   (a)   ...
   (b)   ... C
   (c)   ...
   (d)   kwa ajili ya kuhifadhi haki ya usawa wa binadamu, heshima ya mtu itatunzwa ... katika kuhakikisha utekelezaji wa adhabu;'
D Very briefly we can say that art 13(6)(d) seeks to protect the dignity of a person in the execution of a punishment.
Paragraph (e) of clause (6) of art 13 provides as follows:
   `(e)   ni marufuku kwa mtu kuteswa, kuadhibiwa kinyama au kupewa adhabu zinazomtweza au kumdhalilisha.' E
Here again the English version is faulty and we propose to use the following translation:
   `(e)   it is prohibited to torture a person, to subject a person to inhuman punishment or to degrading punishment.' F
The total effect of the two above-quoted paragraphs is that three things are prohibited: torture, inhuman punishments and degrading punishments. In addition, the punishments which are not prohibited have to be executed in such a way as to protect the dignity of a person. Does the death penalty offend any of these? G
Torture has been defined by the United National General Assembly (UNGA) in its unanimously adopted `Declaration on the Protection of All Persons from being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or H Punishment' of 9 December, 1975 (Resolution 3542 (XXX)):
   `Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act I

   he has committed, or intimidating him or other persons. It does not include pain or suffering A arising only from, inherent in or accidental to, lawful sanctions ...' (Emphasis provided)
Forgetting for the moment, whether or not the death penalty is a lawful sanction, it is clear that any physical or severe mental pain or suffering brought about by the death penalty, does not constitute torture. We understand that a similar exception B is contained in the definition of torture in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment a copy of which we have not been able to obtain. C
There is no doubt that there is a lot of severe mental pain and suffering to a person under the sentence of death from the moment that sentence is pronounced to the date of its execution. It has been amply stated that this span of time is tormentingly too long. We do not share the sentiments of Miss Korosso that the delay is a blessing in disguise to the condemned prisoners. In the present world of D anesthesia, both local and general, and pain killers the mental state of the condemned prisoners cannot be anything but in much agony. It is quite common that the blood pressure of a patient awaiting operation shoots up even though the patient is not ordinarily hypertensive. This is because the possibility of death is E encapsulated in the pending operation, though the patient is fully aware that the operation is for his own good. How much so is it to a condemned prisoner who stands to gain nothing from hanging? Is this not torture? F
We humbly agree with the learned Trial Judge that concepts like torture, cruel, inhuman and degrading `are subject to evolving standards of decency'. We agree with the United States Supreme Court in Trop v Dulles (12) when it held that the Eight Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. We also share the feelings of the G European Court of Human Rights in Tyrer v United Kingdom (13) that the European Convention is a living instrument which must be interpreted in the light of present-day conditions. We add that human rights concepts and terms like torture, inhuman and degrading punishment or treatment, have to be interpreted in the light of present-day conditions. H
It is our opinion that death penalty has elements of torture. Whereas all punishments, as Miss Korosso submitted, might be cruel, it is the degree of cruelty that matters. As for the other aspects prohibited by art 13(6)(e) of inhuman and degrading pun- I

A ishments, we agree with the decisions of other jurisdictions that the death penalty offends these. One such decision is of the United States Supreme Court in Furman v Georgia (14) where Brennan, J said at 367 that the State, even as it punishes, must treat its members with respect for their intrinsic worth as human beings. He warned that members of the human race should not be treated as B non-humans, as objects to be toyed with and discarded.
To him, even the vilest criminal remained a human being possessed of common human dignity.
C The execution of the death penalty too, that is, hanging, is inhuman and degrading. We do not agree with the learned Trial Judge that hangings being conducted in private indicates the guilty conscience of the State. We are, however, of the opinion that the privacy surrounding executions is a recognition that hangings are inhuman and degrading and so are done in such a way as to give some semblance of dignity and respect to the prisoner. D
So, we agree with the learned Trial Judge that death penalty is inherently inhuman, cruel and degrading punishment and that it is also so in its execution and that it offends art 13(6)(d) and (e). But the crucial matter is: is it saved by art 30(2)?
That article provides: E
   `(2) It is hereby declared that no provision contained in this part of this Constitution, which stipulates the basic human rights, freedom and duties, shall be construed as invalidating any existing law or prohibiting the enactment of any law or the doing of any lawful act under such law, making provision for  - F
   (a)   ensuring that the rights and freedom of other or the public interest are not prejudiced by the misuse of the individual rights and freedom;
   (b)   ...
G    (c)   ensuring the execution of the judgment or order of a court given or made in any civil or criminal proceedings.'
This court has on two occasions dealt with art 30(2); in Daudi Pete v A--G (11) and also in Kukutia Ole Pumbun v A--G (15). In the latter case we said: H
   '  -  the Court in Pete's case laid down that a law which seeks to limit or derogate from the basic right of the individual on ground of public interest will be saved by art 30(2) of the Constitution only if it satisfies two essential requirements: First, such law must be lawful in the sense that it is not arbitrary. It should make adequate safeguards against arbitrary decisions, and provide effective controls against I

   abuse by those in authority when using the law. Secondly, the limitation imposed by such law A must not be more than is reasonably necessary to achieve the legitimate object. This is what is also known as the principle of proportionality. The principle requires that such law must not be drafted too widely so as to net everyone including even the untargeted members of the society. If the law which infringes a basic right does not meet both requirements, such law is not saved by art 30(2) of the Constitution, it is null and void. And any law that seeks to B limit fundamental rights of the individual must be construed strictly to make sure that it conforms with those requirements, otherwise the guaranteed rights under the Constitution may easily be rendered meaningless by the use of the derogative or clawback clauses of that very same Constitution.' C
We have found it necessary to quote at length what we have said because we feel that the learned Trial Judge seems not to have fully grasped its import. We have said that art 30(2) allows derogation from basic rights of the individual in public D interest. Whether or not legislation which derogates from a basic right of an individual is in public interest depends on first, its lawfulness, that is, it should not be arbitrary and second, on the proportionality test, that is, the limitation imposed should not be more than reasonably necessary.
The learned Trial Judge dealt with art 30(2) in Part IV of his judgment entitled in E capitals: `WHETHER THE LAW PRESCRIBING THE DEATH PENALTY IS LAWFUL LAW AND IS IN PUBLIC INTEREST UNDER ART 30(2) OF THE CONSTITUTION'. The lawfulness of the law prescribing the death penalty F according to Kukutia, is one ingredient of whether it is in the public interest and is not an additional matter to public interest. Then, the learned Trial Judge divided his Part IV of the judgment into `A: Whether the death penalty is in public interest under art 30(2) of the Constitution' and `B: Whether the Law Prescribing the death penalty is lawful law.' The two sub-headings should have been on arbitrariness and proportionality. G
Is s 197 of the Penal Code, the one providing for death penalty, lawful law, that is, not arbitrary?
The learned Trial Judge found s 197 to be arbitrary on two grounds. First, the state H of our criminal law is such that `real murders and mentally sick are indiscriminately dumped together as murderers without distinction'. The learned Trial Judge gave three cases in which `famous psychiatrists' or `prominent psychiatrists' testified to the mental disease of the accused persons, yet they were sentenced to death. He cited Said Mwamwindi v R (16) the disease I

A being catatonic schizophrenia; R v Asha Mkwizu Hauli (17), and DPP v Lenganzo Nyanje (18) where the respondent had paranoid schizophrenia. The learned Trial Judge categorically indicated that Mwamwindi was executed but he did not do so with respect to Asha and Nyanje.
B Then the learned Trial Judge complained of the requirement under s 325 of the Criminal Procedure Act, 1985 whereby in the case of the death penalty, the court record is sent to the President for the exercise of pardon. The learned Trial Judge said the procedure is arbitrary as the President is neither bound to follow the recommendations of the judge who tried the case nor of the advisory committee. C
In Kukutia we went on to explain what we meant by arbitrary. We said that the law under investigation `should make adequate safeguards against arbitrary decisions, and provide effective controls against abuse by those in authority when using the law'. D
Chambers 20th Century Dictionary defines arbitrary as `not bound by rules: despotic, absolute: Capricious: arising from accident rather than from rule'.
Does s 197 of the Penal Code fall under that definition? That section provides: E
   `Any person convicted of murder shall be sentenced to death'
There then follows a proviso which exempts pregnant women. So, only those F persons convicted or murder are subjected to death under this section. (We may add that also those convicted of treason are subjected to death under s 39 of the Penal Code).
We agree with Miss Korosso that for a person to be convicted of murder he must have undergone a full trial by the High Court sitting with assessors and with the assistance of a prosecuting State Attorney and a defence counsel. Then, by G practice, there is an automatic appeal to this court. That can never be despotic.
Our law is that it is the court which makes decisions and all others, however qualified in their callings, give evidence and offer opinions which the court, for stated reasons, may or may not accept as factual and rely upon. Insanity is defined in s 13 of the Penal Code and anything short of that will not benefit an H accused person. Our law does not provide for diminished responsibility. That may be unfortunate but definitely not arbitrary because the court arrives at its decisions following rules and not accidentally.
It is possible that an innocent person may be executed in error. I

But that will not be arbitrary. Either both the trial court and the appeal court were A genuinely mistaken or fraud was committed on them. But our law provides safeguards, for instance, in the case of doubt then the accused person should be benefit.
The Presidential pardon is outside the court process and helps to put a human touch on the rigors of the law. Admittedly, the President is not bound by the B recommendations of either the Trial Judge or the advisory committee but that does not enable him to abuse the law for he cannot make matters any worse for the condemned prisoner.
In fact s 197 cannot be arbitrary because it merely provides punishment to a C person convicted under other provisions of law.
Is the death penalty in conformity with the principle of proportionality? Is the limitation imposed not more than is reasonably necessary to achieve the legitimate object? Maybe, but what is the legitimate object? D
Section 197 provides for death to a person who has been proved to have killed another or others, with malice aforethought, that is, without any excuse recognized by law. So, the legitimate object of the law is to protect the society from such killings. Article 14 gives members of the society a right to life and requires the E society to protect this right. So, the society has the constitutional duty to ensure that its law abiding members are not deprived of this right. The society cannot provide personal body-guards for indefinite periods even to individuals whose lives may be threatened, and that is not expected of the society to do. So, the society cannot make it difficult or prevent one person killing another. The society can only F discharge its duty of protecting the right to life by deterring persons from killing others. Tanzania, like many other societies, has decided to do so through the death penalty.
There is a question of retribution. But that to our minds is between the murderer G and the relatives of the victim. For the purposes of the society to perform its duty under art 14 deterrence is the legitimate object.
Is the death penalty more than necessary to deter from killing others? H
We know that in certain jurisdictions death penalty has been held not to be necessary either to deter the commission of capital crimes or to protect society (Furman v Georgia referred to supra). However, it is our decided opinion that what measures are necessary to deter the commission of capital crimes or to protect society are matters for decision by every individual in society. I

A We agree with the learned Trial Judge in the third principle which guided him in deciding this case that court decisions of other countries provide valuable information and guidance in interpreting the basic human rights in our Constitution. That is what we have done following Furham v Georgia in finding that death penalty is inhuman, cruel and degrading punishment. But when it comes to what is B reasonably necessary to protect our society we have to be extra careful with judicial decisions of other jurisdictions.
In societies where owning a firearm is almost as simple as owning a penknife, the death penalty might not be necessary to protect the public. But in societies like C ours, where people go to the extent of sacrificing dear sleep to join vigilante groups, popularly known as Sungusungu, in order to protect life and property, the death penalty may still be reasonably necessary.
We can do no better than quote the learned Trial Judge himself on this matter. He said: D
   `I concede that there may be a majority of Tanzanians who support the death penalty blindly, and these are not enlightened and not initiated or aware of the ugly aspects of the death penalty. Apparently it is so because the death penalty is carried out in secrecy. The E government must assume responsibility for ensuring that their citizens are placed in a position whereunder they are able to base their views about the death penalty on a rational and properly informed assessment. It is clear that many people base their support for the penalty on an erroneous belief that capital punishment is the most effective deterrent F punishment, and so the government has a duty to put the true facts before them instead of holding out to the public that the death penalty is an instant solution to violent crime. If many people, like members of the Myajali Commission see the death penalty as being morally insupportable and as having many negative effects, they would be expected to inform the public about their views and seek to influence public opinion in a more enlightened direction. The government should do the same.' G
Three things come out of the above quoted passage. One, the death penalty has H ugly aspects and is morally insupportable. Two, the death penalty is not the most effective punishment. Lastly, most people support it out of ignorance of the first two matters and ought to be enlightened.
As for the first matter, there is no question. We have already made a finding that the death penalty is cruel, inhuman and degrading. There is no conclusive proof one way or the other regarding the I

second matter that the death penalty is not the most effective punishment. It is A common knowledge that after Said Mwamwindi was executed in early 1970s there were no more hangings until the present administration came into power in 1985. Why were executions resumed? No research on this has been conducted in Tanzania. As for influencing public opinion against the death penalty, all we can say is that that is perfectly legitimate in a democracy. B
But the crucial question is whether or not the death penalty is reasonably necessary to protect the right to life. For this we say it is society which decides. The learned Trial Judge in the above quoted passage acknowledges that presently society deems the death penalty as reasonably necessary. C
So, we find that though the death penalty as provided by s 197 of the Penal Code Offends art 13(6)(a) and (e) it is not arbitrary, hence a lawful law, and it is reasonably necessary and it is thus saved by art 30(2). Therefore it is not unconstitutional. D
We may observe here that we are aware of the drive to abolish the death penalty worldwide. But that has to be done, as the learned Trial Judge has aptly put it, by deliberate moves `to influence public opinion in a more enlightened direction'. For the present, even international instruments still provide for the death penalty. E
It may not be out of place to quote Paul Sieghart in The International Law of Human Rights (Oxford University Press) 1983 at p 130.
   `As human rights can only attach to living human beings, one might expect the right to life itself F to be in some sense primary, since none of the other rights would have any value or utility without it. But the international instruments do not in fact accord it any formal primacy: on the contrary ... contain qualifications rendering the right less than absolute, and allowing human life to be deliberately terminated in certain specified cases ... The right to life thus stands in G marked contrast to some of the other rights protected by the same instruments: for example, the freedom from torture and other ill-treatment ... and the freedom from slavery and servitude ... are both absolute, and subject to no exceptions of any kind. It may therefore be said that international human rights law assigns a higher value to the quality of living as a process, than to the existence of life as a state ... the law tends to regard acute or prolonged suffering (at all H events in cases where it is inflicted by others, and so it is potentially avoidable) as a greater evil than death, which is ultimately unavoidable for everyone.
Before we finish, we commend the learned Trial Judge for his I

A unexcelled industry in his exploration of the human rights literature. However, we would also like to point out that the style he has used in writing the judgment, dividing it into parts and sections, with headings and sub-headings, is unusual. That style is more suited for a thesis than for a judgment.
B Both appeals are allowed. The conviction or murder is quashed and the sentence of life imprisonment is set aside. The striking out of the death penalty is also quashed and that penalty is declared constitutional. C