Mwalusanya J:
I INTRODUCTION
The two accused Mbushuu alias Dominic Mnyaroje (first accused) and Kalai s/o Sangula (second accused) were on 13 May 1994 convicted of murder contrary to s 196 of the Penal Code cap 16 by this Court. They were supposed to get a death G penalty by virtue of s 197 of the Penal Code, and the death penalty is to be by hanging as per s 26 of the Penal Code. Before the death penalty was imposed, counsel for the accused (on dock brief) Mr Rweyongeza raised a point to the effect that the death penalty is unconstitutional and so it should not be imposed. Three points were raised concerning the unconstitutionality of the death penalty - first H that it offends the right to dignity in the execution of a sentence provided for in article 13(6)(d) of the Constitution; secondly that the death penalty is a cruel, inhuman and degrading punishment and treatment prohibited by article 13(6)(e) of our Constitution; and thirdly that the death I
penalty offends the right to life as provided in article 14 of our Constitution. The A Attorney-General was duly served with summons to appear as required by s 17A(2) of the Law Reform (Fatal Accidents & Misc Provisions) Ordinance cap 360 as amended by Act 27 of 1991. And Mr Mwambe learned State Attorney duly appeared on behalf of the Attorney-General. B
At the outset I wish to point out some of the general principles that will guide me in arriving at my conclusion at the end of the day. First I take it that a constitution and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a C generous and purposive construction - see the decision of the Privy Council in AG of The Gambia v Momodue Jobe (1) at 700 as per Lord Diplock. The Privy Council repeated that doctrine in Minister of Home Affairs v Fisher (2) where Lord Wilberforce at 329 stated: D
`The way to construe a constitution on the Westminster model is to treat it not as if it were an Act of Parliament but as sui generis, calling for principles of interpretation of its own, suitable to its character, without necessary acceptance of all the presumptions that are relevant to legislation of private law. The Constitution calls for a generous interpretation avoiding what has been called the "austerity of tabulated legalism", suitable to give to individuals the full measure of the fundamental rights and freedoms referred to.' E
And in the same vein, as counsel for the petitioners Mr Rweyongeza has pointed out, the Court of Appeal of Tanzania in the case of Kututia Ole Pumbun & anor v F AG (3) stated at page 11 of the typed judgment (as per Kisanga JA) that; `Any law that seeks to limit fundamental rights of the individual must be construed strictly to make sure that it conforms with these requirements, otherwise the guaranteed rights under the Constitution may easily be rendered meaningless by the use of G the derogative or claw-back clauses of that very same Constitution.' And also relevant is the decision of the Tanzania Court of Appeal in AG v Lesinoi s/o Ndeinai (4) which it held that a constitutional provision should not be construed so as to defeat its evident purpose, but rather so as to give it effective operation. H
Connected to the above principles is the question of burden of proof. I think there are two situations. First on whom does the burden of proof lie to establish that there has been a violation of a basic human right? Secondly, once it has been established that there has been a violation of a basic human right, on whom does I
A the burden of proof lie to show that the violation has been saved by the Constitution? In the first situation the matter was put clearly by the Privy Council in the case of Riley & others v AG of Jamaica (5) at 480 that it was on the person attacking the death penalty to be unconstitutional to prove on a balance of B probabilities that it is a cruel, inhuman and degrading punishment. The Supreme Court of Zimbabwe in the case of Catholic Commission for Justice and Peace v AG & others (6), as per Gubbay CJ stated that: `I consider that the burden of proof that a fundamental right, of whatever nature, has been breached is on him who asserts it. In relation to article 15(1) of the Constitution the issue of whether an C individual has been subjected to torture or to inhuman or degrading punishment is essentially a matter of fact and ordinarily some evidence would have to be adduced to support the contention. The respondent is not obliged to do anything until a case is made out which requires to be met.' I accept that to be the correct Dposition even here in Tanzania. As regards the second situation the case decided by the Court of Appeal of Trinidad and Tobago of AG v Morgan (7) correctly stated on whom the burden lies where it stated; `Where an Act is passed into law and E that Act is one that restricts the rights and freedoms of an individual, in order to impugn such an Act, all that the individual is required to do is to show that one or more of his rights has been restricted. Having done so, because of the expressed constitutional policy, the burden is then shifted to the proponents of the Act to F show that the provisions of the Act restricting such rights and freedoms are reasonable restrictions. If the proponents of the Act fail to discharge this burden, then a Court of competent jurisdiction may pronounce against the validity of the impugned Act.'
I agree with that proposition of law. That means the petitioner has only an evidential burden of proof and the State has to prove on a balance of probabilities G that the violation of the basic human rights has been saved by the Constitution. That is exactly what was decided also by the Court of Appeal of Botswana in the case of The State v Petrus (8) at 722 as per Aguda JA. The decision of the Court of Appeal of St Christopher and Nevis in the case of AG v Edmund s/o Lawrence H (9) which suggests that the petitioner has to establish a prima facie case that the law impugned is unconstitutional before the onus shifts to the Republic, was in my view wrongly decided. The petitioner does not have to establish a prima facie case but just raise the matter (evidential burden) that a particular piece of legislation is ex-facie ultra vires the Constitution then the onus shifts to the Republic. It is just similar to the defence of I
intoxication in the case of murder, where the burden of proving that the accused A was capable of forming the intent necessary to constitute the offence of murder always remains on the prosecution, and such a burden is not discharged if the probability emerges from the evidence (either from the evidence of the prosecution or the accused) that the accused was incapable of forming the intent - see the B decision of the East African Court of Appeal in Kahekeya Buzoya v R (10). So similarly the petitioner has just to raise the fact that a particular piece of legislation violates a basic human right, and he does not have to establish a prima facie case before the burden of proof shifts to the Republic.
Finally I am of the considered view that international human rights instruments and C court decisions of other countries provide valuable information and guidance in interpreting the basic human rights in our Constitution and so a judge in my present situation should look to them and draw upon them in seeking a solution. As the Chief Justice of Zimbabwe Gubbay CJ has pointed out in (1990) D Commonwealth Law Bulletin vol 16 No 3 at 999: `A judicial decision has greater legitimacy and will command more respect if it 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.' E
And the Chief Justice of Tanzania Mr Justice Nyalali in the case of AG v Lesinoi s/o Ndeinai (4) at 222 states that when basic human rights are at stake or the question of interpretation of a constitutional provisions arises then: `On a matter of this nature it is always very helpful to consider what solutions to the problems F other courts in other countries have found, since basically human beings are the same though they may live under different conditions.' Suffice to state here that the Bangalore Principles (1988) pronounced by a distinguish Judicial Colloquim and later adopted at Harare (1989), Banjul (1990), Abuja (1991) and Balliol (1992) speak the same message above expounded. Let it be noted that Nyalali CJ G attended the Harare Judicial Colloquim, while Ramadhani JA attended the Balliol (Oxford, England) Judicial Colloquim.
II THE RIGHT TO DIGNITY AND THE RIGHT AGAINST CRUEL, INHUMAN AND DEGRADING PUNISHMENT AND TREATMENT H
The right to dignity under article 13(6)(d) and the right against cruel, inhuman and degrading punishment and or treatment under article 13(6)(e) will be discussed under one rubric. This is because the right to dignity referred to in that provision is concerned with the pre- I
A servation of dignity in the execution of a sentence. And it is my view that a person who has been subjected to a degrading treatment has also been deprived of his right to dignity.
I also wish to point out at the outset that a punishment is either inherently cruel, inhuman and degrading or the mode or manner of execution of the punishment is B cruel, inhuman and degrading. That much was pointed out by the Court of Appeal of Botswana in the case of The State v Petrus (8) and by the Supreme Court of Zimbabwe in the case of Ndlovu v The State (11). It is the case for the petitioners that the death penalty is both inherently a cruel, inhuman and degrading C punishment and that its mode or manner of execution is also cruel, inhuman and degrading. And it is my finding that the term `torture' used in our Constitution is the equivalent of the term `cruel' that I will hereinafter use.
D And it will be important to remember that concepts such as `cruel, inhuman, and degrading' are subject to evolving standards of decency. They are not immutable. And that is what we learn from the US Supreme Court in the cases of Trop v Dulles (12) at 101; and Estelle v Gamble (13) at 102. Thus punishment or treatment incompatible with the evolving standards of decency that mark the E progress of a maturing society or which involve the infliction of unnecessary suffering is repulsive. What might not have been regarded as inhuman decades ago may be revolting to the new sensitivities which emerge as civilization advances.
F (a) The death penalty is inherently cruel it was submitted on behalf of the two petitioners. It is said the process of execution by hanging is particularly gruesome. One leading doctor described the process as `slow, dirty, horrible, brutal, uncivilized and unspeakably barbaric'. The prisoner is dropped through a trapdoor, to eight and a half feet with a rope around his neck. The intention is to G break his neck so that he dies quickly. The length of the drop is determined on the basic of such factors as body weight and muscularity or fatness of the prisoner's neck. If the hangman gets it wrong and the prisoner is dropped too far, the prisoner's head can be decapitated or his face can be torn away. If the drop is too short then the neck will not be broken but instead the prisoner will die of H strangulation. There are many documented cases of botched hangings in various countries including Tanzania. There are a few cases in which hangings have been messed up and the prison guards have had to pull on the prisoner's legs to speed up his death or use a hammer to hit his head. The shock to the system causes the prisoner to lose control over his bowels and he will soil himself. I
In short the whole process is sordid and debasing. Not only is the process A generally sordid and debasing, but also it is generally brutalizing and thus defeats the very purpose it claims to be pursuing. The brutalizing effect of executions has been amply documented - see `Legal Homicide: Death as Punishment in America from 1864 to 1982' (1984) 2nd ed at 271-335 by William J Bowers and G B R Pierce; and the book `The effect of Executions is Brutalization, not Deterrence' (1988) by William J Bowers, Kenneth A Haas and James A Inciardi (editors).
It was argued for the petitioners that the State continues to perpetuate such cruelty under the protection of the law. This may legitimize the act in its legal sense, but certainly it does nothing to mitigate its barbarity. The act of killing in itself is C offensive: that it is done by the State does nothing to lesson its offensiveness. It is furthermore done in cold blood with utter cruelty. Now there are circumstances which lead up to the killing which are said to provoke it. But this is not provocation in the innate moral sense. When a private individual kills after having been D provoked, this is regarded as mitigating because, at the time of the killing, the killer's blood is heated and human passions aroused. When the State kills, its blood is cold, its detachment inhuman. Legitimizing State killings by law thus takes killing out of the arena of perverse human behaviour and elevates it into a principle. E In other words rather than killing being deemed as heinous in itself - the result of perversity - it becomes something which is acceptable if done by the right people at the right time. The gates are then opened for people to determine F whether they are the right people and whether the time is right. The heinous nature of murder becomes diluted in the public eye, the public becomes accustomed to brutality, brutality enters the prevailing moral ethos, becomes acceptable and regarded as an inevitable part of human society. A prominent American lawyer, GClarence Darrow, in his speeches `Attorney for the Damned' (1957) Simon & Schuster, New York at 92 states: `We teach people to kill and the State is the one that teaches them. If the State wishes that its citizens respect human life, then the State should stop killing. The greater the sanctity that the State pays to life, the greater the feeling of sanctity the individual has for life.' H
To dramatize it, consider its logical corollary. A woman is beaten and raped. The perpetrator is apprehended. A State rapist is then engaged to exact retribution on behalf of society. He first beats the rapist in an identical manner to that in which the woman was beaten and then proceeds to rape the rapist in as identical a fashion I
A as possible, once or however many counts are involved. The very analogy is distasteful. One may decide to create a raping machine operated by the State rapist to remove some of these distasteful aspects.
B It would nonetheless remain a punishment which should not be countenanced by society. The reason is clear. Rape in itself is brutal and abhorrent. It does not matter that it is done under the cloak of any law. To have an official State rapist is debasing and brutalizing to society. It gives an official stamp of approval to degradation. Yet somehow, murder, which is worse, is carried out under the cloak C of the law and is regarded as acceptable. Murder, like rape, is in itself brutal and must be condemned unequivocally for itself and not merely by reason of the fact that it was not done under the sanction of law. This is why state killing is debasing and brutalizing. It seeks to legitimize brutality; which can never be anything other than brutality. That was part of the argument on behalf of the two petitioners. D
Moreover it was argued on behalf of the petitioners that the State by conduct admits that the death penalty is sordid and debasing. In the past hangings were done publicly. When capital punishment was a public spectacle it became linked in E the minds of the public as part and parcel of the crime. It was as if the punishment was thought to equal, if not to exceed, in savagery, the crime itself, to accustom the spectators to a ferocity from which one wished to divert them. At the end of the day the tortured criminal became an object of pity or admiration if not a F hero by the spectators. The perception that the state was brutal had to be minimized. It was achieved by making the execution the most hidden part of the penal process. The actual execution is carried out under a seal of secrecy and executions are bureaucratically concealed. The concealment minimizes only and does not remove the debasement and brutalization. The concealment, it was G submitted, manifests the State's guilty conscience.
It has also been argued that if death penalty is to stay, then other better methods of killing than hanging have to be invoked or devised. There has been suggested the use of the electric chair or a lethal injection or gas chamber as used in the USA H . These methods are less cruel than hanging. The Supreme Court of Zimbabwe in the case of Chileya v State (14) was about to deliver a judgment to the effect that death penalty by hanging was cruel and debasing punishment, and so the State should devise a better method of killing.
However the Court was pre-empted by the government which I
passed an amendment to the Constitution to the effect that `hanging' was A constitutional. But why use `hanging' when there are other less cruel methods of killing?
(b) Then it is argued that the mode or manner of execution of the death penalty is objectionable on two grounds - the long delay in carrying out the execution and secondly, the horrible conditions under which the people on death row are kept. B
The first point about the long delay in carrying out the execution, it is argued causes untold mental anguish to the prisoners on death row. Capital punishment, it should be pointed out, is a euphemism for official killing by the State. However, C unlike most murders, the process leading up to the killing is a long drawn out one. From the time the person is sentenced to death he is immediately installed on death row in a blue uniform. He is kept in virtual solitary confinement in an individual cell which is so small that he can touch both walls with his arms outstretched - see s 71 of the Prisons Act 34 of 1967 and also regulation 21(2) D and regulation 33 of the Prisons (Prison Management) Regulations GN No 19 of 1968. The only reading material, if any, is the bible or other religious tracts. Every night all his clothes are taken away and he is kept naked in his cell until the next morning. The light in his cell is never turned off and he is kept under surveillance E by the guards. Some guards take delight in taunting the prisoners, constantly reminding them of their impending fate and telling them gruesome stories of executions which have gone wrong. From the time the High Court tells a murderer that he is to hang, in the Tanzanian context he will often wait in suspense for more F than four years before he is finally taken to the gallows. I was referred to an article in the Business Times newspaper by Mr Robert Rweyemamu (with a legal touch column) of 2 April 1993, and counsel for the petitioners Mr Rweyongeza said that it reveals aptly the long delays of carrying out executions in Tanzania. The G long agonizing wait before the final decision is taken and the shorter wait for the sentence to be carried out inevitably causes appreciable mental suffering. This pre-execution period has been referred to as a period in which the prisoner suffers a living death or hell on earth. He fearfully broods on his fate and suffers great anguish and uncertainty. H
This often leads to pronounced mental deterioration. Inordinate delay before execution thus constitutes a form of prolonged mental torture. For a detailed discussion of and reference to the literature on the mental effects upon prisoners on death row - see pp 12-15 of the cyclostyled copy of the judgment of the Supreme Court of I
A Zimbabwe in the case of Catholic Commission for Justice and Peace v AG and others (6).
Then there was the argument presented about the horrible condition in the condemned sections of all prisons in Tanzania. I was invited under s 59 and s 122 of the Evidence Act 6 of 1967 to take judicial notice of all the Prison Regulations B GN No 13 of 1968, GN No 18 of 1968 and GN No 19 of 1968 and the reports of the Visiting Justices to prison. For example the amount of diet and the amount of exercise allotted to the prisoner on a death row is at the discretion of the Principal Commissioner of Prisons and is generally minimal see regulation 33 of the GN No 19 of 1968. It is common knowledge that the prisoners are kept in tiny cells without C access to washing, and open air and they cannot exercise effectively. Because of poor preparation conditions the diet provided is extremely poor and the quantity small. In short the prisoners on death row are treated as non-persons whose rights are subject to the whim of the supervising administration at the prison concerned. For similar conditions of prison in Zimbabwe, the Supreme Court there D in the case of Conjwayo v Minister of Justice and Director of Prisons (30) held that these horrible conditions constituted a cruel, inhuman and degrading punishment.
E On concluding this part, it has been contended on behalf of the petitioners, that the emerging consensus of values in the civilized international community as evidenced by the UN human rights instruments, the decision of other courts and the writings of leading academics is that the death penalty is a cruel, inhuman and F degrading punishment. It was pointed out that article 6(6) of the International Covenant on Civil and Political Rights (1966) (which Tanzania has ratified) states: `Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant' which indicates that the G parties to the Covenant have agreed to eventually abolish the death penalty. And the UN Commission on Human Rights at its 1989 session in Genera agreed by consensus that the death penalty was a cruel, inhuman and degrading punishment, and agreed to forward to the UN General Assembly a draft Second H Optional Protocol to the International Covenant on Civil and Political Rights aimed at abolishing the death penalty. Indeed the Second Optional Protocol to the International Covenant on Civil and Political Rights was passed by the UN General Assembly in 1989 and many member states have started ratifying it, and no doubt Tanzania which has a great reputation of respecting human rights will I
soon ratify it. Amnesty International, vide its Declaration of Stockholm of 1977, with A delegates of about 200 from Africa, Asia, Europe, Middle East, North and South America and the Carribean Region, declared that the death penalty was an inhuman, degrading and cruel punishment. The Nyalali Commission in its authoritative Report Book III at 25 held that the death penalty was an inhuman and B cruel punishment and so should be abolished. Then we have the Council of Europe which in its Protocol 6 to the Convention for the Protection of Human Rights and Freedoms (1950) abolished the death penalty in 1983 for all member countries of the Council of Europe because they had found it to be a cruel and inhuman punishment. And the European Court of Human Rights in the Soering C case (15) held that the death penalty according to the evolving standards of Western Europe was a cruel and inhuman punishment. The following countries of the Commonwealth have abolished the death penalty: Namibia, The Gambia, D Kiribati, New Zealand, Solomon Islands, Tuvalu and Vanuatu, Australia and South Africa (soon to become a Commonwealth member). Some of the decisions of other countries which have declared the death penalty to be a cruel punishment are: USA in Furman v Georgia (16); India we have Javed Ahmed v The State of Maharashtra (17) and Madhu Mehta v Union of India (18); in West Indies we have De Freitas v Benny (19) and Riley v AG of Jamaica (5); and two cases from E Nigeria - Bello v AG of Oyo State (20) and Omwuka v The State (21) and from Zimbabwe the famous case cited above of The Catholic Commission for Justice and Peace v AG (6). F
The arguments for the Republic in reply were made by the State Attorney Mr Mwambe. Mr Mwambe conceded that the prisoners do suffer some torture in the process of hanging, but countered by stating that the torture the victims of murderers encounter is much more. And since the murderers are getting a just desert and what they deserve, then they cannot complain about the torture or loss of dignity, he submitted. G
Concerning the delay in carrying out the execution for years on end, Mr Mwambe submitted that it is not a torture but a blessing in disguise to the said prisoners. He said that in fact the prisoners are quite happy for the delay, as they are given many more years to live which they don't deserve. H
Concerning the horrible conditions in the death cells, all Mr Mwambe could say was that the prisoners are treated in accordance with what the Tanzanian's state of economy can afford. He could not tell if the conditions in prison are horrible or not. I
A And for the Republic it can be argued that the remedy to the above named complaints about torture in hanging, delay in execution and horrible conditions in the death cells, has been given in other countries, although Mr Mwambe was not aware of this. It could be contended that the solution to the complaints raised by B the prisoners is not the abolition of the death penalty, but to apply to court to give an order to the Government to rectify those matters. The Chief Justice of the then Southern Rhodesia Beadle CJ in the case of Dhlamini and others v Carter (22) said:
C `If during the course of time of serving a sentence of imprisonment a prisoner is subjected to inhuman or degrading treatment, the court, in the exercise of its powers given to it by the Constitution, would see that the treatment was stopped but that would not entitle this court to sit as a Court of Appeal, as it were, on the original sentence. The inhuman treatment complained of in the instant case is the delay in carrying out the sentence. If, as I have already D found, `treatment' is distinct from punishment and if the inhumanity of the treatment cannot taint the lawfulness of an otherwise lawful punishment, then the only remedy an accused who had been sentenced to death has, is to ask for an order that the delay should stop, something which no person sentenced to death is ever likely to do.' E
There is also another point in favour of the Republic to the effect there is no consensus of values in the so-called civilized society that the death penalty is a cruel, inhuman and degrading punishment. It has been pointed out that the F decisions of other courts in different countries are not uniform. For example in the USA many States retain the death penalty. In India in such cases as AG v Lachma Devi (23) and Bachan Singh v State of Punjab (24) the Supreme Court there held that the death penalty by hanging was not a cruel, inhuman and degrading punishment. And as long ago as 1961 the UN General Assembly in its Resolution G No 32 of 1961 declared that the death penalty was not unlawful but that it should be reserved for only very serious crimes like murder. Even article 6(2) of the International Covenant and Civil and Political Rights (1966) does not prohibit member countries imposing the death penalty for serious crimes like murder. What is more is that the UN Convention against Torture and other Cruel, Inhuman H or Degrading Treatment and or Punishment of 1987 did not prohibit the imposition of the death penalty if it is prescribed by law. That is why the majority of the 161 members of the UNO retain the death penalty - 100 countries retain it and only 35 countries have abolished it - see Amnesty Interna- I
tional Newsletter May 1989 at 3. And in the Commonwealth 46 countries out of 53 A retain the death penalty and only 7 have abolished it - see the Commonwealth Lawyer Journal of March 1993 at 71-76.
It has been submitted elsewhere that the argument that capital punishment has no place in a civilized society, presupposes that only one set of values (liberal B Western values) is `civilized'. They exclude the values of the Third World including countries of the East. In any case even in the West there is no unanimity about the desirability of abolishing capital punishment. In China and other countries of the East where Confucian values prevail (eg Singapore, Taiwan) capital punishment is C accepted without hesitation. The Western liberal values do not represent what is truly a `civilized society' but its admirers merely confuse it with technological advancement. It may be true to say that technology has advanced considerably in the last few decades, but it is highly debatable whether civilization has advanced much, if at all. Civilization in fact is going down particularly in the decadent West. D We see in the West a decline in values to the point where one wonders if most people have any beliefs or morals at all: an all-absorbing selfishness and lack of concern for others, crass materialism, an increasing disregard for the law, the E commission of crimes of a most revolting nature such as were unimaginable a few years ago, the apparent acceptance of sexual immorality and promiscuity as alternative lifestyles, proliferation of drugs, easy divorce and abortion, and devaluation of the family unit etc, the list is depressingly endless. Alongside these F signs of moral degeneration are the continuing tragedies of wars, refugees and increasing poverty. These are just the tip of an iceberg of the flaws in a modern society, and so the talk of the values of a `civilized society' is mere trash and ironical at best.
It was argued for the Republic that what should therefore be considered in G determining whether the death penalty is a cruel, inhuman and degrading punishment is not the values of a nebulous `civilized society' but the contemporary norms operative in Tanzania and the sensitivities of its people. The question should be whether capital punishment, with what it entails, is acceptable in a H Tanzanian society. The decisions of other courts in other countries and the writings of leading academics are questionable because they do not take into account the sensitivities of the people of Tanzania. Therefore the views of other courts and leading academics are very much out of touch with what an ordinary Tanzanian feels on the matter. If newspaper reports are anything to go by, it would be seen I
A that the majority of Tanzanians do not regard the death penalty as a cruel and degrading punishment. Although there has been no public opinion survey, it can be asserted with some confidence that the majority of the people of Tanzania are not against capital punishment and that the abolitionists are a minority group. In a democratic state like Tanzania, the views of the majority should be respected. B This is because for any system of justice to work, it must be credible in the eyes of the people of the country concerned. For this reason the court's and Parliament's attitudes should not be radically different from those of society as a whole. It is C very dangerous in fact to allow penal policy to jump too far ahead of the population, since it will result in the loss of public confidence in the criminal justice system and concomitantly to the alienation of the public from it. There is abundant evidence that members of the Tanzanian public often resort to mob justice in a situation in D which they feel that the criminal justice system and/or its agencies, lack the competence or the will to protect them against crimes. Therefore no civilized community should provoke such a situation in the name of a so-called `progressive' penal policy.
I will start my decision with the point raised that the remedy for the petitioner's EI complaints is for them to apply to court so that it may order the government to stop the ugly aspects of the death penalty like delay, horrible conditions of prison and hanging. The Republic's arguments rests on the decision of Beadle CJ in the case of South Rhodesia of Dhlamini & others v Carter (22). In my considered view the F views of Beadle CJ were aptly answered by Gubbay CJ in the later case of The Catholic Commission for Justice and Peace v AG of Zimbabwe (6). It w