Mwalusanya, J.:
I. Introduction D
The two appellants Thomas s/o Mjengi and Ramadhani s/o Mussa whose appeals have been consolidated were charged and convicted of robbery with violence c/s 285 and 286 of the Penal Code Cap. 16. They were each sentenced to the prescribed minimum sentence of 30 years imprisonment and ten(sic) strokes of corporal punishment. They E are now appealing against conviction and sentence. Under s.3 of the Legal Aid (Criminal Proceedings) Act No. 21/1969 I granted legal aid to the two appellants so that an advocate paid for by the government could argue their appeals. One Mr. F Mbezi was assigned to prosecute the appeal on behalf of the appellants.
Counsel for the appellants Mr. Mbezi in his amended memorandum of appeal, raised three matters of constitutional importance and which are of public interests. The matters involve the interpretation of our Constitution with regard to the basic freedoms and G rights. The Senior State Attorney, Dodoma who is the representative of the Attorney General was duly served with the amended memorandum of appeal and was quite aware of the constitutional matters raised - and so s. 17A(2) of the cap. 360 as amended by Act No. 27/1991 was duly complied with. H
The three constitutional matters raised are:
First that the trial was a nullity because the indigent appellants were denied their right to free legal aid payable by the state nor were they informed of their right to engage counsel at their own expense; secondly that the mandatory Minimum Sentence of 30 I years imprisonment is an inhuman and degrading punishment and so
unconstitutional; Thirdly that corporal punishment is an inhuman and degrading A punishment and so unconstitutional. Besides those three constitutional matters, counsel Mr. Mbezi has also stated that the conviction was against the weight of evidence; and that the appellants were convicted of armed robbery an offence which is non-existence in the Penal Code and in any case they were convicted with an offence they had not B been charged with.
II. The Right to Legal Representation
On this point counsel for the appellants Mr. Mbezi based his argument on my recent C decision in the case of Khamisi Hamis Manywele v R. Dodoma H.C. Crim. Appeal No. 39/1990 (unreported), which I understand has gone to the Tanzania Court of Appeal, on appeal by the D.P.P. Therefore I will not spend much time discussing the genesis of the right to legal representation, as most of the points canvassed were D thoroughly documented in the Manywele case (supra).
Suffice here to briefly state what that right is all about. The right to legal representation stands on two legs: The constitutional right and the statutory right. E
The constitutional right to legal representation stands on two legs - first under Art. 13(6)(a) of our Constitution which provides for the right to be heard. There are three persuasive authorities which interpret the phrase 'fair hearing' in their Constitutions to include the right to legal representation paid for by the State for an indigent person F whose constitutional rights are at stake. First we have the case of Powell v Alabama (1932) 287 U.S. 45 decided by the U.S.A. Supreme Court. Then from Zimbabwe the Supreme Court there in the case of Dube & another v The State: Supreme Court Judgment No.2 12/1988. That case is defended by Hon. Mr. Justice A.R. Gubbay of G the Zimbabwe Supreme Court in his paper of 'Third Commonwealth Africa Judician Conference' in Lusaka, Zambia April 1990, Titled 'Judicial Review in the enjoyment of Human Rights' published in the Commonwealth Law Bulletin Vol. 16 No.3 of July 1990 from pp. 992 - 1001. The third persuasive authority is the decision of the H Supreme Court of the Republic of Ireland in the case of The State (Healy) v Donoghue (1976) IR.325. That decision is defended by the Hon. Mr. Justice John Kenny of the Supreme Court of the Republic of Ireland in his article 'A Bill of Rights' published in the Northern Ireland Legal Quarterly (1979) Vol.10 No.3 at p. 195. I
The second leg on which the constitutional right rests is on the right to personal A freedom under Art. (15(2) of our Constitution. That Article stipulates that no one shall be deprived of his personal liberty except by procedure established by law. In India in the case of Maneka Gandhi v Union of India (1978) 2 S.C.R. 248, interpreting a B similar provision, it was held by the Supreme Court there, that no procedure can be regarded as reasonable, fair and just which does not afford legal representation to an accused person who is placed in jeopardy of his life or personal liberty in a criminal proceedings. The above decision was in principle adopted by the Tanzania Court of C Appeal in the case, of D.P.P. v Daudi Pete: Crim. Appeal No. 28/1990 (unreported). The right to legal representation for the poor, includes the right to be informed of that right by the trial court, so decided the supreme Court of India in the Maneka Gandhi case (supra). The Hon. Mr. Justice Bhagwati, the former C.J. of India defends the D above case, in his article 'Human Rights as evolved by the jurisprudence of the Supreme Court of India published in the Commonwealth Law Bulletin Vol. 13 No. 1 of January 1987 at pp.230 - 245.
In fact the right to legal representation for the poor is recognized all over the world. It E is contained in the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1976), Art. 7(1) of the African Charter of Human and People's Rights (1981), and Art. 6(3) (1) of the European Convention on Human Rights (1950). Therefore the right to legal representation is accepted by the F community of nations as a birthright for every human being.
That is why I hold that the Statutory right to legal representation is contained in s. 310 of the C.P.A. No. 9/1985 as interpreted in the light of international human rights stands and norms as above adumburated. In short s. 310 of the C.P.A. should be interpreted to G mean that those who can afford to pay have a right to legal representation; and those who cannot afford to pay (i.e. who are poor) have an equal right to free legal aid paid for by the state, as provided in the Legal Aid (Criminal Proceedings) Act No. 21/1969. H that right includes the right to be informed of that right by the trial court. Perhaps it important to emphasize that, the above construction of s.310 of the C.P.A. is inevitable in the light of international human rights standards and norms. As Mr. Justice A.R. Gubbay of Zimbabwe Supreme Court states at p. 999 (in his article cited above): I
A In giving meaning to legislation on human rights expressed in general or even vague terms, where uncertain or incomplete, there is ample scope for a Judge to look to international developments and drawn upon them in seeking a solution. International human rights instruments and precedents ...... provide invaluable information and guidance. A judicial decision has greater legitimacy and will command more respect if it B accords with international norms that have been accepted by many countries, than if it is based upon the parochial experience or foibles of a particular Judge or Court.
That is one way of reaching at the conclusion that there exists a statutory right to legal C representation for the poor i.e. by way of seeking guidance from international human rights instruments.
The other way of establishing the statutory right to legal representation is the generous and purposive construction of S.310 of the C.P.A interpreted in the light of Act No. D 21/1969. Those provisions were enacted to inculcate in our heads that justice should not only be done, but should be seen to be done. It will be recalled that before the 1969 legislation, the right to legal representation for poor accused persons was restricted to capital offences (murder, treason and manslaughter). However after the 1969 Act, E the right to legal representation for poor accused persons was extended to cover non-capital offences like theft, causing grievous harm, robbery e.t.c. which are triable by the District Courts and R.M.'s Courts.
Counsel for the appellants Mr. Mbezi has exclaimed at the existing anomaly. He said F for offences like incest or written threats to murder, punishable with a maximum of not more 5 years and 7 years imprisonment respectively, the offenders are provided free legal aid by the State simply because the offences are triable by the High Court. However offenders charged with offences like armed robbery, punishable with a G minimum of 30 years imprisonment, are not provided with free legal aid, simply because the offender is charged in a subordinate court. That is unfortunate. It is submitted that the correct interpretation of the decision of the Tanzania Court of Appeal in the case of Laurent s/o Joseph v R. [1981] T.L.R. 351, is that in either case whether the H offence is trible by the High Court or subordinate court, the trial is a nullity if the indigent accused person was not provided with counsel, at least for all serious offences.
That a certifying authority under s.3 of the Legal Aid (Crim. Proceedings) Act No. I 21/1969 has a discretion to refuse or grant
legal aid to a poor accused person, is a myth. The E.A.C.A. in the case of Mohamed A s/o Salim v R: [1958] E.A. 202 which originated from Tanganyika, said at p. 203:
That in such a case (the certifying authority) should give the matter anxious consideration before deciding to refuse a certificate for legal aid on the ground of sufficiency of means; B that a reasonably liberal interpretation ought to be placed on the section and that in case of doubt the discretion should be exercised in the prisoners' favour.
I wish only to point out that s.3 of the Poor Prisons Defence Ordinance Cap.21 which C the above case was interpreting is in pari materia with our s. 3 of Act No. 21/1969. In fact Prof. James Read in his tours de force article 'The Advantage of Counsel' in the 'East African Law Journal' Vol. VIII NO. 4 (1971) concludes at p.294 that the certifying authority has no option but to grant legal aid if the accused is poor. He says: D
Although the decision in the Gales Hired v The King: [1944] A.C. 149 turned in part upon the mandatory nature of the legislative provision for legal aid in Somaliland, it has been E regarded as establishing a general principle - see for example, the remarks of E.A.C.A. in Samson v R. [1958] E.A.681 at p. 682 at p. 683 where they said: 'We do not think that anything turns upon the fact that appellants were entitled as of right to have an advocate assigned'. See also the judgment of Bennet J. of High Court of Uganda in Yusufu s/o F Gita v R. [1958] E.A. 211 at p. 213: 'Every accused has the undoubted right to be defended by counsel.
It is astonishing to learn that since 1969 the members of the Judiciary and the Bar G have with a calculated conspiracy of silence, buried their heads in the sand like ostriches, pretending that they are unaware of the above authorities of the E.A.C.A. Without shame they have glorified the right of these who can afford to be defended by H counsel, while quite obvious to the similar right of poor persons tried by subordinate courts. Such an anomalous practice can be seen in such cases as: D.P.P. v Rugaimkamu [1982] TLR 139; Alimasi Kalumbeta v R: [1982] T.L.R. 329; Joshwa s/o Nkonoki v R. [1978] L.R.T. n. 24, Mugema v R: [1967] E.A. 676. The I poor accused persons triable by the subordinate courts and Economic Crimes Courts have been completely forgotten. The judiciary and
members of the Bar are in the dock for having left the poor accused persons in the A cold for far too long since 1969.
Counsel for the Republic Mr. Kifunda was candid enough to concede that a poor accused person has a statutory right to be provided with free legal aid and to be informed of that right by the trial court. He said that that right stems from the B purposeful construction of s.310 of the C.P.A. as read in the light of s. 3 of the Act No. 21/1969. He said for all serious offences triable by the subordinate courts, poor accused persons have the right to free legal aid paid for by the state. He conceded that the trial in this case was a nullity, and said that he would pray for a retrial. C
However Mr. Kifunda would not go as far as stating that a poor accused person has a constitutional right to free legal aid. He said that so long as an accused person has failed to perform his duties to society by committing a crime, then he forfeits his rights to free legal aid as per Act 29(1) of our Constitution. It is the same point that prompted D Mr. Kifunda to appeal to the Tanzania Court of Appeal in the Manywele case (supra). The short answer to that argument is that it is faulty in that it presupposes that the poor accused person has already been found guilty. And I wonder if it makes any great difference if the right to free legal aid for poor accused persons is founded on a E statutory provision or a constitutional provision.
In the event I held that the trial was a nullity because these poor appellants were denied of their statutory and constitutional right to free legal aid, and were not informed of that F right by the trial court.
III. Mandatory Minimum Sentence of 30 years imprisonment whether an inhuman and degrading punishment G
Under Act.13(6)(e) of our Constitution, it is provided that, for the purposes of ensuring equality before the law, the state shall make provisions to the effect that no person shall be subjected to torture or to inhuman or degrading treatment.
The test as to whether a mandatory minimum sentence is inhuman and degrading is H the disproportionate test which is now universally recognised. Punishment which is so excessive, arbitrary, unusual or disproportionate to the offence as to shock the public conscience, that is the conscience of a reasonable man is prohibited. The provision encompasses a cardinal principle of human justice, namely that punishment should be I proportional to the offence for
which it is enacted. The said provision draws its meaning from the evolving standards A of decency that mark the progress of a maturing society. The disproportionate test was first propounded in the U.S.A. by the Supreme Court in the case of Weems v United States (1910) 217 U.S. 349 which was discussing the eighth Amendment of the U.S. B constitution. The matter was revisited in Tropp v Dulles (1958) 356 U.S. 86, L. Ed. 630 and later in the case of Furman v Georgia: (1972) 408 U.S. 238 and the case of Hart v Ceiner: (1973) 433 F. 2d. 136.
The above mentioned test was adopted by the supreme Court of Papua New Guinea C in Reference by the Marobe Provincial Government (1958) L.R.C. (Const.) 642. In there a bench of five judges sat to decide if the Summary Offences Act which provided for mandatory minimum sentences of 10 years and other mandatory minimum fine sentences were constitutional and not an inhuman and degrading punishment. Among D the five judges, three (Bredmeyer, Kaputin and McDermott JJJ.) agreed that the disproportionate test was the proper test in the circumstances. However the other two judges (Kidu C.J. and Kapi D.C.J.) did not agree that the disproportionate test ought to be invoked.
Two of the three judges who invoked the disproportionate test (i.e. Bredmeyer and E Kaputin JJ.) held that:
1. That the minimum penalties here, although high were not so excessive as to offend Act. 36 of the Constitution. They said that although the sentences were very severe, F they were not so disproportionate as to be regarded as excessive and unconscionable. They said the sentences reflected a legitimate need for strongly deterrent penalties, providing an index of contemporary community standards.
G 2. The minimum penalties do not infringe the constitution because the harshness of those penalties is tempered by s.138 of the District Court Act which allows for imposing lesser sentences if special reasons are shown as regards character, antecedents, age, health or mental condition of the accused or trivial nature of the H offence or to the extenuating circumstances under which the offence was committed.
On the other hand the third judge Mc Dermott J. invoking the disproportionate test I found that the minimum sentences prescribed
offended the constitution because each of them imposed a penalty which would be A wholly disproportionate to the offence in readily imaginable situations, as the impugned legislation treated all offences in each category as equally reprehensible up to an arbitrarily set level of punishment, preventing the court considering any of the usual factors relevant in sentencing individuals. B
More recently the Zimbabwe Supreme Court invoked the disproportionate test in the case of The State v Arab [1990] 1. Z.L.R. 253. It concerned the precious Stones Trade Act, 1978 which prescribed minimum sentences for those found dealing in precious stones illegally. The appellant was convicted of dealing in emeralds and was C sentenced to three years imprisonment, being the minimum sentence. The court found no special reasons which could make it pass a sentence lesser than the minimum. The Supreme Court held that the power of the trial court to consider and if appropriated find special reasons allowed for a sentence which was not necessarily disproportionate. D So the provision was held not to be unconstitutional. A disproportionate test had earlier been invoked by the Zimbabwe Supreme Court in Ncube, Tshuma and Ndhlovu v The State [1988] 2 S.A.L.R. 702(ZS) a case which concerned the constitutionality of the punishment of whipping. E
In Botswana, the Court of Appeal in the case of the State v Petrus [1985] L.R.C. (Const.) 699 agreed that the disproportionate test was the appropriate test to find out if any punishment prescribed by legislation was constitutional or not i.e. it was not cruel, inhuman and degrading punishment. F
The above discussion vindicates my earlier statement that the disproportionate test is universally recognised and accepted. I adopt it for use in Tanzania. It will be seen from the above discussion that the disproportionate test focuses on two factors which may render the punishment unconstitutional: First if the minimum sentence is arbitrarily G fixed. Secondly if the sentence is inherently excessive or unconscionable.
On the first point I am satisfied that the Minimum Sentences Act No. 1/1972 as amended by Act No. 10/1989 has fixed the minimum sentences arbitrarily. What the H challenged legislation here effectively does is treat all offences as equally reprehensible up to an arbitrarily set level of punishment. Thus all offences of armed robbery have a minimum sentence of 30 years, while simple robbery has a minimum of 15 years, attempted armed robbery a minimum level of punishment is simply not called for. This I crudely applied across - the board, approach denies to the person being punished
any consideration of the following factors: degree of participation, the age of the A offender, the offender's previous good record, the remorse and prevalence of the offence e.t.c. If the courts in Tanzania were allowed to pass a lesser sentence if special reasons are adduced, then that would have been alright and the legislation would have been constitutional as shown by the two cases cited above (Morobe case) from B Papua New Guinea and the Arab case from Zanzibar. In order for the Act No. 1/1972 to be Constitutional, s.6(1) of the Act should be amended such that special reasons should be allowed to be adduced for every convict and not only to those convicted on property not exceeding T.Shs. 100/=!!! Moreover the Minimum Sentences Act in C applying minimum terms of imprisonment carte-blanche preclude considerations being given to (a) probation (b) conditional discharge (c) suspended sentences (d) entering into recognizances etc. That much it has rendered the impugned legislation to be arbitrary and disproportionate. D
On the second point, I am of the considered view that the minimum sentence of 30 years imprisonment is disproportionate because it is excessive or unconscionable even for the offence of armed robbery. A punishment is 'excessive' if it makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the E purpose and needless imposition of pain and suffering. Brian Slattery in his book A Handbook on Sentencing in Tanzania (1972) E.A. Literature Bureau says at p. 27:
F Punishment for criminal offences is generally viewed as serving one or more of three main purposes: (a) deterrence, both of the criminal himself (special deterrence) and also of society at large (general deterrence), (b) the rehabilitation of the criminal; and (c) G restraint - the isolation of the hardened or dangerous criminal from society. These objectives are seen as constituting the ultimate justification for sentence imposed by a court in place of the more traditional view which simply holds that evil men deserve to be punished, which notion is sometimes called retribution or the notion of justice. H
The government takes rehabilitation as of top priority as shown in s.61 of the Prisons Act No. 34/1967 - wherein emphasis is laid on training of prisoners so that when the prisoner comes out he becomes a good citizen usefully self employed. Now the 30 I years imprisonment is self-defeating because that period is the life-expectancy
of a Tanzanian, on the average, and so the rehabilitation policy is not in place. It A appears the government on enacting those severe sentences had in mind only retribution and restraint of the offenders. But it should be remembered that restraint of offenders is reserved for recidivists only (hardened and dangerous criminals). And retribution as a sentencing policy is old fashioned and uncivilised as is espouses sadism? It will be B seen therefore that the punishment of 30 years minimum sentence, goes beyond legitimate penal objectives and does not bear a rational relationship to the accomplishment of penological goals which are of sufficient importance to justify its severity. The 30 years imprisonment is indeed purposeless and needless imposition of C pain and suffering, as the legislative purpose could be served by a less severe punishment.
Therefore to suggest that our Parliament had seriously addressed itself to the whole issue of sentencing is a premise which is obviously suspect. This is because it is both D simplistic and unrealistic to suggest that an increase in the severity of punishment by itself will have any significant impact on existing patterns of crime.
Where moral values are central to a problem such as crime, the legal system struggles E to achieve even incidental significance. The working of the criminal justice system can have little, if any, impact on complex sociological phenomena. Any discussion of crime and punishment inevitably overlooks, the heart of the dilemma. Really, what we have is a major problem involving education and policing. F
A sociological phenomenon cannot be effectively influenced by judicial band-aiding. Imposing harsh sentences indiscriminately is nothing other than Kangaroo justice. It just does not work and stands little chance of effectively influencing current crime rate. So G we cannot look for the courts alone, otherwise that would be a fundamental misunderstanding of the role of the courts. All that the justice seem can reasonably do at the present time is to maintain a predictable and reasonable response to the increasing crime rate, in terms of what most Tanzanians really and truly might be the H consequences of detection on conviction (moderate prison sentences). Any major change can only be effected at the political level, when, if ever, our legislators are encouraged to get serious about what has become a problem of grave national importance. It is my finding therefore that the minimum sentence of 30 years is I unconstitutional because it is inhuman. It is inhuman because it is
disproportionate and excessive - as it makes no measurable contribution to A acceptable goals of punishment; and goes beyond legitimate penal objectives. It bares no rational relationship to the accomplishment of pennological goals. As White J. said in the case of Furman v Georgia (supra) at p. 391 this punishment is with only marginal contributions to any discernible social or public purpose. A penalty with such B negligible returns to the State would be patently excessive and unusual and cruel punishment violative of the Eighth Amendment.
Therefore I don't agree with the State Attorney Mr. Kifunda that the sentence of 30 years imprisonment is proportionate to the offence of armed robbery. I subscribed to C the view canvassed by the defence counsel Mr. Mbezi that the sentence of 30 years is too severe to deserve to be termed inhuman and cruel. Mr. Mbezi also contended that under Art. 15(2) of our Constitution, Parliament is empowered to take away the personal freedom of an individual only by using law which is fair, reasonable and not D arbitrary. He said that the law on criminal procedure and evidence should be fair and reasonable; and that the law on sentencing should also be fair and reasonable. That he said is the full import of the case of D.P.P. v Daudi Pete Crim. Appeal No. 28 of E 1990 (CAT) which had cited the Indian case of Maneka Gandhi v Union of India (1978) 2 SCR 248. So he said that since a sentence of 30 years imprisonment is patently excessive, then it offends the doctrine expounded in the Daudi Pete case. At this stage, all I can say is that there is merit in the argument brought forth by the defence counsel. F
IV. Corporal Punishment - is it a torture or inhuman and degrading punishment?
Corporal punishment is one of the punishments permissible under s. 28 of the Penal G Code Cap. 16 and where imposed, it is to be inflicted in accordance with the Corporal Punishment ordinance Cap. 17 and the Corporal Punishment Order (G.N. 74/1930 and G.N. No. 76/1941) made thereunder. The independent government of Tanganyika H made corporal punishment mandatory for certain offences under the Minimum Sentences Act No. 29/1963. The Bill was greeted with enthusiasm by parliamentarians some of whom went even further than the government proposals suggesting more torture as part of punishing offenders - see L.P. Shaidi in his "Explaining Crime and Social I Control in Tanzania Mainland: An Historical Socio-economic Perspective", A Ph.D. Thesis submitted
to the University of Dar es Salaam in 1985, at pp. 323-331 where the author quotes A the Parliamentary Debate.
In 1972 mandatory corporal punishment was abolished by the Minimum sentences Act No. 1/1972 only to be brought back in 1989 by Act No. 10/1989. Once again the honourable members of Parliament shocked the nation by applauding the B re-introduction of corporal punishment. One member even suggested that such punishment should be administered in public (market place) and that women offenders should not be exempted - see the Daily News of 25/4/1989.
Defending the Bill against an objection of a lone parliamentarian on the ground that C corporal punishment might be contrary to the Bill of Rights, the Minister for Justice and Attorney General argued that bandits and robbers were breaching the rights of other citizens and therefore it was in the interest of the community at large that corporal punishment was being re-introduced. The Minister proffered his legal opinion that the D Constitutional validity of the proposed law would be covered under the derogation clause Art. 30 of the Constitution - see Radio Tanzania Report of the Parliamentary proceedings, excerpts broadcast live on 24/4/1989.
It appears to me that basically two different situations can render punishment to be E cruel, inhuman and degrading. First a punishment which is not inherently inhuman or degrading may become so by the mode of execution. Secondly that certain types of punishment are inherently or by their nature cruel, inhuman or degrading e.g. infliction of acute pain and suffering. I shall discuss these two situations seriation. F
As stated above the mode of executing of the punishment can render that punishment to be cruel and degrading. That was the decision of the full bench of five judges of the Court of Appeal of Botswana in the case of The State v Petrus & Anor: (1985) L.R.C. (Const.) 699. That court led by Maisels P. held that the manner of punishment G which was administered by repeated and delayed instalments of corporal punishment was ultra vires the constitution. The legislation there had provided that the convicted person should be given four strokes each quarter in the first and last years of his term H of imprisonment, and the prescribed penalties of imprisonment with corporal punishment were mandatory sentences. In the course of its decision, the Court of Appeal drew support from decisions of the European Court of Human Rights, the U.S. Supreme Court and to a strong dissenting opinion of the Privy Council in Riley & others I
v A.G. of Jamaica (1982) 3 All ER 469. In fact Hon. Mr. Justice Aguda said at A p.p. 727 - 728:
I am entirely in agreement with the submission of Mr. Hodes for the appellants that corporal punishment administered by instalments when tacked onto a term of B imprisonment, cannot but bring about aggravated torture upon the human being made subject to that sort of punishment. To describe such a type of punishment as degrading is perhaps the very least that can be said of it.
In fact that was the view of the State Attorney Mr.Kifunda in this case. Commenting C on the manner or mode of executing punishment as one of the causes of cruel punishment Mr. Justice Blackman of the U.S. Supreme Court in the case of Jackson & others v Bishop (1968) 404 F. 2d 571 said at pp. 579 - 580: D
There can be no argument that excessive whipping or an inappropriate manner of whipping or too great frequency of whipping or the use of studded or over long straps, all constitute cruel and unusual punishment. Corporal punishment generates hate toward E the keepers who punish and toward the system which permits it. It is degrading to the punisher and to the punished alike. This record cries out with testimony to this effect from the expert penologists, from the inmates and from their keepers. F
Now Tanzania like Botswana has a legislation which sanctions corporal punishment by instalments. The Minimum sentences Act No. 1/1972 as amended by Act No. 10/1989 introduced corporal punishment by instalments. The Corporal punishment Ord. Cap. G 17 is amended in s.12 whereof corporal punishment shall be inflicted in the instalments, each consisting of six strokes, the first instalment at the commencement of the term of imprisonment and the other immediately before the person in question is finally released. That is a horrible situation. H
It is noteworthy that postponed whipping or whipping by instalments was deemed as cruel as long ago as 1880 in apartheid South Africa. In the case of Queen v Nortje (1880) 1 EDC 231 the Eastern District Court of South Africa held that corporal punishment by instalments (part of the lashes to be inflicted at one end the reminder at I the expiration of the sentence) was illegal. The case of
Queen v Hans Windvogel and Anor [1881] 2 E.D.C. 98 is to the same effect. That A court fond it highly objectionable to sentence persons to lashes to be inflicted at the expiration of a sentence of hard labour. It is my finding therefore that corporal punishment in this case, is unconstitutional because it is cruel, inhuman and degrading as it is inflicted by instalments. B
The second situation I earlier alluded to, is as to whether corporal punishment is inherently and by its very nature is cruel, inhuman and degrading. The leading case in this regard is the decision of the European Court of Human Rights which was cited with approval both by the Zimbabwe Supreme Court and the Botswana Court of Appeal. C It is the case of Tyrer v U.K. (1978) 2 E.H.R.R.1, where a 15 year old boy was sentenced by a juvenile court in the Isle of Man to three strokes of the birch on conviction of assault. The Court found that, while the punishment in the instant case did not constitute torture, or inhuman punishment