I. Parliamentary Roundtable on the abolition of the death penalty in Tanzania

The Roundtable, co-hosted on Sunday 3 May by the Parliament of Tanzania, sought to analyse the national and international legal frameworks on the death penalty as well as the particular situation of the death penalty in Tanzania and Uganda, its impact and challenges in view to identify the measures to overcome those obstacles. The Roundtable also aimed to highlight the role and contribution of Parliamentarians on the abolition of the death penalty, in order to reinforce the mobilization of Parliamentarians and decide on concrete initiatives to support the abolition process.

In the opening session, Hon. Dr. Pindi Chana, MP (Tanzania), Deputy Minister for Community Development, Gender and Children and Chair of PGA’s International Council, welcomed the participants and introduced PGA’s Parliamentary plafatform for the abolition of the death penalty. Dr. David Donat Cattin, PGA’s Secretary-General, reminded that PGA has worked for many years to serve the rights of the victims who are entitled to have access to justice and, in that process, PGA has learnt that justice is not revenge and retaliation, which is at the heart of the notion of the death penalty. Indeed, justice entails adequate penalties against persons convicted by a competent Court of a law with the main goal to ensuring attribution of criminal responsibility and the establishment of the truth and reparations for the victims, thereby contributing – in tandem with effective law-enforcement – to crime-prevention and solidarity within a given society. Ms. Luana Reale, Deputy Head of European Union (EU) Delegation in Tanzania recalled the strong and principled position of the EU against the death penalty viewed as a cruel, inhumane and irreversible punishment: This is why all 28 EU Member States have abolished it, and it is now a pre-condition for accession by new candidates for membership in the Union. The EU has adopted in April 2013 the EU guidelines on the death penalty to ensure the coherence of its position, which promotes best practices such as non-executions of members of vulnerable groups (the elderly, juvenile offenders, pregnant women), improvement of the conditions of imprisonment, right to have lawyer, etc. In addition, the EU firmly promotes the abolition of the death penalty, notably through international fora such as the Universal Periodic Review of the UN Human Rights Council, and is at the heart of an interregional alliance that co-sponsors the UN General Assembly Resolution on a moratorium on the use of the death penalty, while it provides strong support to civil society organisations to work on the abolition of the death penalty. Finally, Mr. Tom Bahame Nyanduga, Chair of the Commission for Human Rights and Good Governance of Tanzania, affirmed the Commission’s strong position in support of the abolition of the death penalty and highlighted its work to bring public awareness on this issue, as the lack of knowledge and misconceptions has largely led the public opinion to support the death penalty. He expressed his satisfaction to have the opportunity to exchange views with Lawmakers in the hope to reinforce the collaboration of the Commission with them and all relevant stakeholders on this issue.

The first session, under the chairmanship of Hon. Yusuph Nassir, MP (Tanzania), Chair of the PGA Tanzania Group, looked at the situation of the death penalty in Tanzania and Uganda, including the relevant legal frameworks, its impact of the death penalty and the challenges to abolition.                       

Hon. Fox Odoi, MP (Uganda), PGA member and Member of the Committee on Legal and Parliamentary Affairs [co-signatory of the Private Member Bill on abolition] gave a comprehensive overview of the legal framework of the death penalty in Uganda, explaining that the death penalty is contained in the criminal code and criminal procedural code and in the 1995 Constitution. Although there have been no executions since 2005, there are still 393 death row inmates. Recent jurisprudential developments have led Hon. Fox Odoi to co-sponsor an abolition bill with PGA Member Hon. Alice Alaso in September 2013: A few years ago, some lawyers and civil society organisations decided to challenge the constitutionality of the death penalty taking example of the process in Zimbabwe, which led the Supreme Court in 1993 to declare the unconstitutionality of the death penalty as it is a cruel and inhumane treatment. As a result of this landmark and pioneer decision on the African continent, the Parliament of Zimbabwe abolished definitely the death penalty. In its decision examining the constitutionality of the death penalty, the Supreme Court of Uganda declared the mandatory death penalty as unconstitutional as it violated the right to due process by denying a proper sentence hearing and by precluding appellate review of sentences, violating thus the separation of powers, as well as causing delays in executions and leading to imprisonment conditions that violated the constitution. The Court hence ordered the commutation of all death sentences of inmates who had been in death row for more than 3 years to life imprisonment (which means 20 years in Uganda), resulting in the release of of 6 death row inmates. In addition, the Court ordered that the Parliament should legislate to permanently guarantee the findings of its ruling. In this context, Hon. Fox Odoi introduced the bill in Parliament in 2013 to replace the death penalty every time it occurs by life imprisonment, but he regretted that no progress has been made since, as the bill has not been discussed yet.  

Hon. Dr. Pindi Chana, who is also the author of a private members’ bill to abolish the death penalty, recalled the origins of the death penalty in Tanzania, which was first introduced in 1896 by the German colonialists. At the independence in 1961 the Penal Code of India was adopted by the Tanzanian Government, which is still in force (though updated since) and contains the mandatory death penalty for murder and other offences resulting in death (article 197 read in light of article 196 and 200 of the Tanzania Penal Code). Under Tanzanian law, the method of execution is hanging (article 322 of the Criminal Procedure Code Act of Tanzania, Act no. 9 of 1985) and shall be carried in prison with the presence of prison officers, a medical officer and a religious minister (article 31 of the Prisons Act of Tanzania, Act No. 34 of 1967). Other offences are punishable by death under Tanzanian law such as treason (article 24 of the Tanzania Penal Code), mutiny by prison officers (article 87(3) of the Prisons Act of Tanzania) and some military-related offenses (see parts C.116 (5) and (6) of the National Defense Act No. 24, 1966). Moreover, the Zanzibar Penal Decree, Act No. 6 of 2004 contains several crimes punishable by death in the semi-autonomous region such as murder and other offenses resulting in death (articles 196 and 197), treason (article 28), entering the country to organise a counter-revolution (article 29) or even abortion in certain circumstances (article 217). Although, the Constitution recognizes the right to life in its article 14, the articles provides that the protection of this right by the society is “done in accordance with the law”. This last part has been recognised by some participants as problematic as it allows the restriction of this right by legislation, such as the one on the death penalty. They regretted the missed opportunity to change this provision in the new Constitution, which remains identical (in spite of the response of the Tanzanian government to the recommendations on the abolition of the death penalty made within the UPR, that this issue would be considered during the constitutional review process), as this provision has been used by the Court of Appeal to justify the constitutionality of the death penalty in the Mbushuu’s Case in 1994. Hon. Pindi Chana recalled however that the Minister of Justice and Constitutional Affairs, Mr. Mathias Chikawe, suggested the removal of the death penalty in the new Constitution to be replaced by life imprisonment and is still open promoting this possibility.

Judge Aloysius Mujulizi, the Chair of the Law Reform Commission of Tanzania, presented the report of the Commission, which has on two occasions recommended the abolition of the death penalty, reminding that the death penalty in Tanzania has no indigenous origin and thus does not have such a strong popular support as some claim and as supported by the fact that since 1994 no executions has been carried out. However, he regretted that this situation has led to the prolonged detention in death row of sentenced inmates who are held in suspense for years, constituting as such an inhumane and degrading situation. In addition, Judge Mujulizi highlighted as problematic the fact that the death penalty is mandatory in Tanzania, leaving thus to the judge no prerogative to decide on the most adequate penalty when it convicts a person of the offence of murder, which may often be re-characterized as manslaughter simply to avowing automatic application of the capital punishment. He called on the Parliamentarians to ask the Government, in particular the office of the Attorney General, to urgently present the report in Parliament so a public debate can take place on this issue.

Mr. Richard Shilamba, Executive Director of the Tanzanian Children Education Society (CHESO) and Coordinator of the national coalition for the abolition of the death penalty, affirmed that the impact of the death penalty has been negative in Tanzania as 238 persons have reportedly been hanged or 410 kept on death row for an indefinite amount of time (including 2 for more than 30 years), while it has neither deterred nor reduced incidences of crimes in Tanzania, which counted from January 2011 to December 2013, a high number of 11,880 reported murders. This statistics are confirmed by several studies of the United Nations, which have clearly stated “it is not prudent to accept the hypothesis that capital punishment deters murder to a marginally greater extent than does the threat and application of the supposedly lesser punishment of life imprisonment."  He also underlined the particular situation Tanzania, in which the death penalty has been used in several occasions by some people in power to intimidate, revenge, demand bribes and/or prosecute for murder innocent persons. He expressed his strong concern over the transfer of all juveniles between the age of 12 and 18 who are accused of murder from Juveniles’ Courts (which can not impose death penalty) to the High Court of Tanzania, leading thus to the risk of sentencing to death, taking also into account the pre-1994 practice of executions of persons who at the time of the crime were under the age of 18. This clearly violates Tanzania criminal law as well as several international treaties to which Tanzania is a party (The UN Convention on the Rights of the Child and the International Covenant on Civil and Political Rights - ICCPR -) prohibiting the imposition of death penalty to Juvenile offenders. In addition, on the side of the victims, it is worrisome that families of victims of murder cannot receive reparations as the criminal procedural code exempts the convicted persons of murder from giving compensation. This situation and possible execution of the persons convicted for murder deprives victims and their families of a possible source of compensation, while if they were kept alive and convicted to provide reparations (including through confiscation of properties), there could be a more effective deterrence vis-à-vis violent attacks, especially in light of the recent upsurge of killings of Albinos in Tanzania.

In all interventions and during the interactive discussion, all participants agreed that the death penalty is necessarily in contradiction with a democratic society that is founded on the respect and protection of Human Rights, in particular the right to life and human dignity, which is a cornerstone for the Rule of Law. In light of this and the margins of error made during investigations and sentencing, the death penalty, in particular when mandatory should not be maintained. The participants also concurred that many scientific studies have demonstrated that in States that have abolished the death penalty the crime-rates have not gone up. In particular, the participating parliamentarians called to move away from an idea of exclusively retributive justice to ensure a more restorative, re-educational justice, which has proved more efficient to reduce the crime-rate. Indeed, within the framework of a national justice system, it has been observed that it is not the severity of the penalty but the relative certainty and predictability in applying any proportionate penalty that renders a functioning criminal justice system a deterrent factor.

The participants thus recognized the importance to work in parallel to the abolition of the death penalty on the strengthening of the judicial system and on ensuring adequate access to justice and reparations for victims and their families. Indeed, the lack of support to victims and their families, as well as the lack of trust in the system as a whole (due to failures to provide justice and the truth in many situations) has led to brutal reactions of vengeance, which has been labelled in Uganda and Tanzania with the inherently contradictory term “mob-justice”. Mob-justice has also been identified as an argument used by some to oppose the abolition of the death penalty, as they argue that if the population does not see a person executed for a crime that this person may have committed, they will take the matter in their own hands. However, it was observed that it is rather the lack of effective access to justice and prompt investigations, caused by “broken institutions” (as powerfully denounced by the most senior Tanzanian MP who participated in the Round-table), coupled with high escape-rates from detention facilities that leads to mob-justice, and not the lack of severity or perceived severity of the penalty. It will thus be important to sensitize, educate and lead the population on this issue, as well as to work in a comprehensive manner to address this situation by reinforcing the Rule of Law and investing in independent and credible judicial and law-enforcement institutions, as implicitly recognized in the new “Sustainable Development Goals” under negotiation at the United Nations.

Participants also identified the myth of public opinion’s support of the death penalty as another argument used as an obstacle to abolition, which is often stemming from misleading polls/surveys and studies that do not let the population express an articulated opinion on the subject at stake. Participants questioned the reason why the excuse of the public opinion’s position has been advanced so much on the issue of the abolition of the death penalty, while on other matters, which can be even more unpopular like taxation, the opinion of the population has not been the driving element for decision-makers. In addition, the Ugandan parliamentarians noted that in Uganda, when they implemented the Rome Statute of the International Criminal Court, penalties foreseen for genocide, crimes against humanity and war crimes were not the death penalty, but life imprisonment (which is a paradox because a simple murder carries the death penalty) and yet, during the debates and after the adoption of the bill, there was no public uproar because the death penalty had not been retained for the most serious crimes of concern to the International Community as a whole. In fact, in all the countries where the death penalty has been abolished, even in spite of the supposed public support to it, there has never been any protest or demonstration to reintroduce it, as the recent Rwandan precedent demonstrates.

The argument of religion was also rejected as a real obstacle to abolition as all main religions recognize the right to life. In addition, in light of the situation of Tanzania and the significant role of the Muslim community, participating Parliamentarians of Muslim belief recalled that the Coram only allows for the death penalty in two circumstances, but with a standard of proof that is so high that even a fair judge would not be able to convict to death a person for such offenses. In addition, other countries that are predominantly Muslim, such as Senegal, have already abolished the death penalty, and this has not contributed to any increase of crimes.

Once again, to overcome this obstacle the leading role of Parliamentarians has been highlighted as representatives of the people and opinion leaders to sensitize the population in their constituencies.

The second panel focused on the Role and Contribution of Parliamentarians to the abolition of the death penalty.

Hon. Mustafa Akunay, MP (Tanzania), Member of the Committee on Constitutional Legal Affairs and Governance and PGA Member, presented the recently launched targeted campaigns of the PGA Platform for the abolition of the death penalty, including Tanzania, aimed at enhancing initiatives by key stakeholders in the abolition process, namely parliamentarians. He reminded the role of parliamentarians on the abolition process as they are at the heart of the legal and political arena having the possibility to take legislative initiatives and to present private motions to abolish the death penalty and any other related measures, as well as having the duty to inform and sensitize the population on this important issue. He concluded by recalling that a fair punishment in a Court of law should not be vindictive as the aim should rather be to rehabilitate in order to better prevent and deter.

Hon. Paul Mwiru, MP (Uganda), Committee on Legal and Parliamentary Affairs and new PGA Member, welcomed PGA Platform for the abolition of the death penalty. He affirmed that reforms related to Human Rights including the death penalty must be at the top of the legislative agenda and be discussed whatever the surrounding context is. To guarantee those rights they should be enshrined in the law, this is why Parliamentarians have such an important role with regard to the death penalty, which violates the most fundamental right of all, the right to life, and only its formal abolition will ensure that it can never be used again. Indeed, de facto moratorium like in Tanzania and Uganda are not enough as recent developments in Indonesia, Pakistan or Jordan show that as long as the law does not abolish the death penalty, Governments can always bring it back without any major legal obstacles. He called on parliamentarians to therefore make this issue a priority within their Parliament and use their legislative prerogatives to put an end to it. He also reminded the role of parliamentarians in addressing the arguments and misconceptions used to justify the death penalty and to sensitize, educate, inform the public leading it beyond vengeance and retaliation, which cannot be considered as justice. Furthermore, parliamentarians benefit from a privileged position towards the executive and can thus push the government to adopt measures towards the abolition, encouraging a policy-change regarding the death penalty, at domestic and international level, contributing thereby to the emergence of States’ practice, which, in turn, may lead to the formation of a customary international norm concerning abolition.

Mr. Harold Sungusia, Director of Advocacy and Reforms of the Tanzanian Legal and Human Rights Center (LHRC) presented the LHRC annual report, which every year calls for the abolition of the death penalty. He echoed the intervention of Hon. Paul Mwiru regarding the role of parliamentarians as representatives of the people who have to protect the people voting for them and who as law-makers, have the mandate to amend existing legislations that may violate human rights, such as the death penalty. He once again rejected the idea that public opinion is in favour of the death penalty, and recalled that in any case Parliamentarians as elected representatives of the people can and must take such reforms leading the way on human rights issues.

During the interactive debate, all participants recognized that the abolition of the death penalty enhances human dignity, as everyone has a right to life and therefore the abolition is at the heart of a society respectful of the Rule of Law. They also highlighted the necessity for parliamentarians to use their political and legislative prerogatives to raise awareness, inform and educate on this issue to overcome the obstacles and challenges identified and to take the necessary measures to definitely abolish it.

As a result, during the Strategic Discussion on priority topics and Agreement on Strategies and Actions, a set of action-points were suggested as the way forward, including:

1. Introduction of a private members’ bill (of PGA Members) abolishing the death penalty through relevant amendments to the criminal code and, if necessary, the criminal procedural code, with the technical assistance of PGA;
2. Creation of a caucus of relevant and interested parliamentarians in the National Assembly to support any action related to the abolition of the death penalty and to promote public debates within the Parliament as well as demarches with the government (also on the UNGA Resolution on a moratorium on the use of the death penalty);
3. Education and sensitization of the population through public debates in the constituencies, interventions in the media, etc.; and
4. Ratification of the Second Optional Protocol to the ICCPR (recognizing however that it is a prerogative of the Executive to negotiate treaties, sign them and eventually send them to Parliament for ratification).

II. Consultations on the abolition of the Death penalty in Tanzania

On Monday 4 May 2015, PGA conducted consultations with relevant stakeholders in Tanzania, in the framework of this field mission to Tanzania, to generate political will for the abolition of the death penalty in Tanzania and report of the outcomes of the 3 May’s Roundtable on abolition.

The PGA delegation consisted of Hon. Yusuph Nassir, MP (Tanzania), Chair of the PGA National Group in Tanzania, Hon. Pindi Chana, MP (Tanzania) Deputy Minister for Community Development, Gender and Children and Chair of PGA’s International Council, Hon. Fox Odoi, MP (Uganda), Hon. David Muhumuza, MP (Uganda), Hon. Paul Mwiru, MP (Uganda), Dr. David Donat Cattin, Secretary-General of PGA and Ms. Maïa Trujillo, Campaign Manager of the PGA Parliamentary Platform for the abolition of the death penalty. The delegation met with high-level representatives of the Judiciary and the Parliament of Tanzania, as well as with members of the diplomatic community, who all agreed on the importance of the respect of human rights and the Rule of Law and to engage in a debate on the abolition of the death penalty in Tanzania.

The PGA Delegation thus met with Ms. Nkasori Sarakikya, Assistant Director for Human Rights and Mr. Mark Mulwambo, Principal State Attorney in the General Attorney’s Chambers, who both expressed their support for the abolition of the death penalty while highlighting perceptions that have so far impeded such a development. They welcomed the Roundtable of the previous day as a first step to sensitize and raise awareness among Parliamentarians on this issue, which has recently been a front-page issue due to quest for justice of the victims of recent killings and attacks against the albino community in Tanzania. They received with interest the recommendation to ‘fast-track’ the process of the Law Reform Commission report (see above the presentation of the Chair of the Commission), which includes the recommendation to abolish the death penalty, which was presented to the Attorney General for relevant action. They encouraged parliamentary action on the abolition, and committed to continue their work of sensitization of the population, in particular the victims and their families, on this important issue. They agreed that reforms needed to accompany the abolition of the death penalty to ensure reparations/compensation of the victims and to reinforce the judicial system so that justice is effectively delivered and impunity/lack of trust towards the institutions does not lead the population to request the use of the death penalty, or worse to resort to mob justice.

The Clerk of the Parliament of Tanzania, Dr. Thomas D. Kashililah, received the PGA delegation on behalf of the Speaker. After Hon. Nassir shared with him the outcome of the Roundtable discussions, the Clerk recognized the importance of the work on the abolition of the death penalty, which addresses a crucial cultural and social problem in Tanzania: The need for justice to be delivered and the lack of education of the population on the necessity to move away from vengeance and retaliation to ensure a rules-based society. He therefore welcomed the Action-Points resulting from the Roundtable and emphasized the importance to gather as much support as possible from Parliamentarians, who should lead the discussions on this issue as the people’s representatives, and to engage more with the public to inform it on the misconceptions and misperceptions related to the death penalty.

The PGA delegation also met with the President of the High Court, Hon. Judge Shaban Ally Lila, who acknowledged that death penalty and its use in Tanzania have been problematic and debated on several occasions by the Judges of the High and Appeal Courts, as it is in the law and is even mandatory for some crimes. The practice has however shown that there is clearly a reluctance to execute in Tanzania in order to preserve and respect the right to life. This situation highlights the importance for Parliamentarians to take legislative measures to abolish the death penalty and in the meantime, if necessary, to take intermediate steps to ensure the reduction of crimes carrying the death penalty and to enhance the standards of its use.

Finally, the PGA delegation met with the diplomatic community at a reception kindly hosted by the Ambassador of Italy, H.E. Mr. Luigi Scotto, in honour of the Roundtable and the delegation of PGA, which notably gathered Ambassadors and other representatives of the Embassies of Belgium, Finland, Germany, Norway, Switzerland and The Netherlands, as well as the Head of the EU Delegation. They all welcomed PGA’s work on the abolition of the death penalty in Tanzania and committed to follow closely and support this crucial issue in the country.

III. Conclusion

The mission to Tanzania was successful as almost all the actors the PGA delegation met with gave their commitment to promote and support the abolition of the death penalty in Tanzania.

The Roundtable and consultations were held at a timely moment, as the issue of the recent killing of several albinos has complicated the debate in Tanzania on the abolition of the death penalty. However, all the stakeholders recognized that through an important advocacy and educational work as well as comprehensive reforms of the judicial system to ensure effective delivering of and access to justice, as well as adequate assistance and support to the victims (including their right to apply for reparations), a change of attitude could allow Tanzania to move smoothly away from the death penalty.

PGA will thus need to keep on working with all stakeholders to follow-up on those commitments and to build the ground for Tanzania to abolish promptly the death penalty. In addition, as a result of their involvement in the Roundtable and consultations, the Ugandan PGA Members renewed their will to work on a reinforced multiparty support to abolish the death penalty in Uganda.