THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM
(CORAM: MAKAME, J.A., RAMADHANI, J.A., And LUBUVA, J.A.)
CRIMINAL APPEAL NO. 142 OF 1994
BETWEEN
1.

MBUSHUU @ DOMINIC MNYAROJE .... APPELLANTS

AND
2.

KALAI SANGULA

THE REPUBLIC ....................... RESPONDENT

(Appeal from the conviction of the

High Court of Tanzania at Dodoma)
(Mwalusanya, J.)
dated the 13th day of May, 1994
Criminal Sessions Case No. 44 of 1991

JUDGMENT OF THE COURT

RAMADHANI, J.A.:
The High Court of Tanzania at Dodoma (MWALUSANYA, J.) being satisfied beyond
reasonable doubt that the two accused persons; Mbushuu @ Dominio Mnyaroje and Kalai
Sangula, had killed with malice aforethought a herdsboy, Said s/o Jingu, convicted them of
murder as charged. After some submissions as to the constitutionality of the death sentence, the

learned trial judge declared that sentence unconstitutional and committed each of the accused
persons to life imprisonment.
The two accused persons have appealed against conviction and the Republic has appealed
against the sentence. We have consolidated the two appeals for obvious reasons. Since
conviction comes first before sentence, we have regarded Mbushuu Dominic Mnyaroje as the
first appellant and Kalai Sangula as the second appellant and the Republic is taken to be the
respondent.
One Naftali s/o Ngamaa (PW.3), is a resident of Mkwese village, Manyoni District, and owned
some cattle and goats. In the morning of 6/9/1984, together with his herdsboy, Saidi s/o Jingu,
the deceased, he took his animals to drink water and then left them under the care of the
deceased for grazing. PW.3 returned home but the deceased never did, even as late as at 7.00
p.m. Suspecting that something was amiss, he raised an alarm and went out in search of the
deceased and the animals without success. We may point out here that there is no evidence as to
when the deceased was found fatally wounded. However, PW.3 and Athumani Mtinangi
(PW.4), then the ten cell leader of PW.3, owned to have seen the deceased with a spear wound
in the ribs. The deceased told them that some strangers had attacked him and got away with the
animals he was herding. The lad could not make it to the hospital. He died on the way.
Almost a month later, PW.3 and PW.4 were told that some of the stolen animals were at
Mkatika Village, Bahi, in Dodoma District. In the company of some policemen, the two
witnesses went to the kraal of Mosi Masingisa (PW.1) where they identified four cattle and
eight goats out of the stolen animals. At the kraal there were also Mdachi Hongole (PW.5) and
Matonya Yohana (PW.6).
PW.1 told the court that the animals, six cattle and eight goats, were taken to his place by the
two appellants and another person still at large called Moro s/o James. That was on 6/9/84, the
date the deceased was attacked and robbed. That was reiterated by PW.6. PW.1 also said that it
was his first time to see the first appellant but that he had known the second appellant and Moro
before that day. PW.1 further told the court that there was no movement permit for the animals
which were intended to be left at his kraal for tending. PW.1 then took the appellants and Moro
to the village Chairman, Masangwai Mafuma (PW.2), who allowed the animals to be left there
provided that a movement permit was brought in due course. PW.2 did not see the animals but
he was just told that there was a bull and five cows. He did not mention the goats. PW.1 also
testified that the second appellant told him, as they were leaving, that the first appellant would
return for the two bulls. A few days later, the first appellant and Moro went to PW.1 and took

the two bulls. The movement permit still had not been produced but PW.1 was told, when the
two bulls were taken, the second appellant would deliver the permit to him PW.2 was also
aware that the two animals had been taken away.
According to PW.2 and PW.6, sometime in October, 1984, PW.3, PW.4 and some policemen
appeared at the kraal of PW.1 searching for some stolen animals and that the four cattle and
eight goats were identified as among the stolen animals. PW.1 was arrested and charged with
murder but the charges were later dropped and he was released. Also arrested were PW.5 and
PW.6, and, like PW.1, they were later released from custody.
Both appellants denied involvement in the raid and the resulting murder. The first appellant
claimed that he was a businessman at Saranda, Manyoni District, and that he had never gone to
Mkatika Village on the fateful day. He further told the court that on 30/8/1984 he left Saranda
for Dar es Salaam to attend to his sick child who later died. The first appellant said that he
remained in Dar es Salaam and got back to Saranda on 6/10/1984. The first appellance was
supported in his alibi by his brother-in-law, Joseph Lazaro (DW.1), who had accompanied him
to and from Dar es Salaam.
The second appellant, too, claimed that he was at his residence at Dabiya Village on the fateful
day. He further told the court that he was charged with the murder of another person on
26/12/1989 and that he was convicted of manslaughter and was sentenced to fifteen years
imprisonment. He claimed to be a victim of circumstances.
As already said, MWALUSANYA, J. believed PW. 1 and PW. 6 that it were the appellants who
took some of the stolen animals to the kraal of PW.1 where they were identified by PW. 3 and
PW. 4. The learned trial judge found corroboration of that story in the testimony of PW. 2.
Applying the doctrine of recent possession, the learned trial judge found the two appellants to
have been among the persons who attacked and robbed the deceased. Thus he found the
appellants guilty of murder as charged.
Mr. Rweyongeza, learned advocate, appeared for the appellants and had five grounds of appeal
which, with respect, boil down to challenging the identification of the appellants. Mr.
Rweyongeza has sought to do that in three ways.
First, Mr. Rweyongeza submitted that the two identifying witnesses, PW.1 and PW.6, are not
reliable. The learned advocate pointed out that both witnesses had been arrested for this
incident though they were later released. So, he submitted, they had an interest to serve and that

in order to save their skins they are willing to shove the baby into any other person's hands. Mr.
Rweyongeza added that PW.1 had actually been charged with the murder of the deceased.
Second, Mr. Rweyongeza pointed out that when PW.1 was asked by PW.3 and PW.4 as to how
he got the animals, he mentioned one Lemmy as the person who had taken them to his place.
However, in his testimony in court, the learned advocate said, PW.1 mentioned the appellants
as the persons who had taken the animals to his kraal.
Third, the learned advocate said that PW. 2 cannot provide corroboration to PW. 1 and PW. 6,
as the learned trial judge found, because of some discrepancies in his testimony. Mr.
Rweyongeza pointed out that PW. 2 did not mention goats as among the animals which were
brought to PW. 1. Then, the learned advocate added, PW.2 said that the animals belonged to
Moro while PW.1 named the second appellant as the owner. Apart from that, Mr. Rweyongeza
said, PW. 2 did not see the animals but was just told by PW. 1 that some animals had been
brought to his place.
Lastly, Mr. Rweyongeza argued, if the identification of the appellants is not watertight and as
the alibis of the appellants have not been contradicted, then the appellants should be acquitted.
On behalf of the respondent/Republic was Miss Korosso, learned State Attorney. She supported
the conviction and submitted that the learned trial judge who saw and heard PW. 1 and PW. 6
believed them to be credible and that he cannot be faulted. She contended that the witnesses
have no interest to serve. Besides, Miss Korosso added, PW.1 and PW.6 are corroborated by
PW.2 whose evidence to the fact that it were the appellants who sent the animals to PW.1 is
that of an independent witness.
The appeal stands or falls on the issue of identification. If they were properly identified as the
persons who took the animals to PW.1 then their alibis must fail and, on the basis of the
doctrine of recent possession, they are the murderers. So, were they adequately identified?
We agree with Mr. Rweyongeza that the evidence of PW. 1 and PW. 6 has to be scrutinised
carefully. The stolen animals were found in their possession and they had received them
without the prerequisite movement permit. That made them suspects and hence their arrest.
They would naturally want to distance themselves from the event. But worse still is the
testimony of PW. 3 and PW. 4 that PW. 1 mentioned Lemmy as the person who had taken the
animals to him. He claimed to have known the second appellant as a small boy. The second
appellant himself acknowledges to have been born and brought up in Mkatika Village and that
he is known to PW. 1. So, there is absolutely no question of PW.1 mistaking Lemmy for the

second appellant. Why did PW. 1 tell a lie at that first available opportunity? Whom was he
protecting and why?
To crown it all, if the so well-known second appellant was the culprit why did it take so long to
arrest him? It has not been controverted that he was arrested, charged with and convicted of
manslaughter in another case in 1985. So, all this time he was at large and it has never been
claimed that the police were looking for him. The first appellant, too, was first arrested in 1985,
he was discharged in 1988 and re-arrested in 1990. In fact on 16/7/1991 the first appellant was
named by Mr. Ndunguru, learned State Attorney, to be the first prosecution witness. Why was
that if PW.1 and PW.6 had properly identified him on the fateful day of 6/9/1984, that is, seven
years previously?
We must admit that we have not been able to find answers to all the questions posed above.
Hence the credibility of PW. 1 and PW. 6 is greatly in doubt.
Could PW. 2 provide corroboration? It is trite law that a court looks for corroboration when, in
the light of all evidence, a witness is worthy of belief.
"The purpose of corroboration is not to give validity or credence to evidence which is deficient
or suspect or incredible but only to confirm or support that which as evidence is sufficient and
satisfactory and credible."
That was said by our predecessor in Uganda v. Shah & Two Others [1966] E.A. 30. Also in
Aziz Abdallah v. R. Criminal Appeal No. 100/1990 (unreported) at p. 10 we quoted with
approval what was said by Lord Hailsham in D.P.P. v. Kilbourne [1973] A.C. 729 at 745 that:
"If a witness's testimony fails of its own inanities the question of his needing
or being capable of giving corroboration does not arise."
Since PW.1 and PW.6 are not credible, then there cannot be corroboration from PW. 2 or
anybody. There is no need even to discuss the testimony of PW. 2.
We may as well mention two matters very quickly. One, it is remarkable that not a single
policeman was called to testify though evidence shows that a couple of them were involved in
the investigation. That could make a Court draw an adverse inference. Two, the learned trial
judge said in his judgment:
"In any case the two accused have not challenged the contention that the
four heads (sic) of cattle and eight goats are part of the cattle that were
robbed from the deceased on 6/9/1984."

We think the appellant's behaviour has been consistent with their testimony. Both of them have
said that they do not know anything about the cattle raid. They were not at the scene of crime.
They did not know the deceased or the animals he was herding. So, how could they, then, with
the same breath, say that the four head of cattle and the eight goats did not belong to the lot in
the care of the deceased?
So, we find that the appellants were not properly identified as the persons who took the stolen
animals to PW. 1. Therefore, the doctrine of recent possession cannot be applied to them and
connect them with the murder of the deceased. We, therefore, quash the conviction of murder
and set aside the sentence of life imprisonment imposed of them.
But was that sentence of life imprisonment for murder, proper? In other words, is the death
sentence unconstitutional?
The learned trial judge death sentence unconstitutional under Article 64(5) of the Constitution
of the United Republic of Tanzania 1977 after holding that:
"the two petitioners have managed to prove on a balance of probabilities
that the death penalty is cruel, inhuman and degrading punishment/treatment
and also that it offends the right to dignity of man in the process of
execution of the sentence. At the same time the Republic has failed to prove
on a balance of probabilities that the impugned law is in public interest and
that it is a lawful law under Article 30(2) of the Constitution."
Before the learned trial judge, Mr. Rweyongeza made three submissions and after a long
deliberation covering 26 typed foolscap sheets the above quoted holding was arrived at. Mr.
Rweyongeza at the start argued that the death penalty is contrary to Art. 13(6)(e) of the
Constitution as its execution offends the right to dignity; second, it is a cruel, inhuman and
degrading punishment contrary to Art. 13(6)(e); and lastly, that the death penalty violates the
right to life as provided by Art. 14 of the Constitution.
Before us Miss Korosso presented a memorandum of appeal containing three grounds. In the
first ground the learned trial judge in holding that Art. 14 of the Constitution guarantees
absolute right to life and that S. 197 of the Penal Code, which provides for the death penalty,
breaches that guarantee.
The learned State Attorney took quite some time on that. However, we do not think it necessary
to go over her submission, as Mr. Rweyongeza pointed out, the learned trial judge did not make
that finding.

The learned judge, after referring to our decision in D.P.P. v. Daudi Pete, Criminal Appeal No.
28 of 1990 (unreported) that the Kiswahili version of the Constitution is the authentic one, said:
"The Swahili version reads: `Kila mtu anayo haki ya kuishi na kupata
kutoka kwa jamii hifadhi ya maisha yake, kwa mujibu wa Sheria.' It is
crystal clear from that wording in the Swahili version that both the right to
life and the right to the protection of ones life by the society, is subject to
the claw-back clause `subject to law.' So it is my finding that the right to life
is not absolute but subject to law."
So, the learned trial judge held quite the opposite of what Miss Korosso understood him to have
done. However, the learned State Attorney was quick to reply that the subsequent
pronouncements of the learned trial judge negated the above quoted finding. Miss Korosso did
not cite any such pronouncement. We shall have to see what the learned trial judge said in that
part of his judgment titled whether the law prescribing the death penalty is lawful law.
As her second ground of appeal Miss Korosso submitted that the learned trial judge erred in
holding that (60(d) and (e) prohibited the mode of execution of death penalty by hanging as
provided under S.26 of the Penal Code. Thus the learned Senior State Attorney was saying that
the death penalty is not cruel, inhuman and degrading punishment. She contended that all
punishments, without exception, are cruel. She, however, conceded that there is some delay in
the execution of the death penalty. However, she does not consider delay as a factor making
death penalty cruel and inhuman. On the contrary, she has submitted, any delay in the execution
of the punishment kindles some hope in the condemned prisoner. Miss Korosso in support of
her submission referred us to Barret Sutcliffe v. Jamaica, UN Doc. CCPR/6/E 44/D/R 988 S.3.4
and 3.5.; Abott v. A.G. of Trinidad and Tobago (1979) 1 W.L.R. 1342 and a book by William
A. Schabas titled The Abolition of the Death Penalty in International Law.
Mr. Rweyongeza was very categorical that death penalty is cruel, torturous and most inhuman
and that it offends Art. 13(6)(e) of the Constitution.
The learned trial judge dealt with the issue of the death penalty and whether it is cruel, inhuman
and degrading at great length. He said that a punishment can be inherently cruel, inhuman and
degrading or it can be so in the mode of its execution. The learned trial judge followed the
decision of the Court of Appeal of Botswana in The State v. Petrus [1985] L.R.C. (Const.) 699
and also the decision of the Supreme Court of Zimbabwe in Ndlovu v. The State [1988] L.R.C.
(Const.) 442.

As for the death penalty, the learned trial judge upheld the submission on behalf of the present
appellants that the cruelty, the inhumanity and the degradation are both inherent and in the
mode of execution. He said that killing is per se offensive, this is so whether done by private
person or by the State. He went on to say that killing by the State is even more repugnant as
there lacks the element of provocation which in many cases is the cause of killing by a private
individual. So, the learned judge continued, State killing is in cold blood and, referring to
Clarence Darrow in Attorney for the Damned, (1957) Simon & Schuster, Insp.; New York, at p.
92, the State teaches the public to kill.
The learned trial judge found the inevitable delay in executing death penalty to add insults to
the injury and to cause prolonged mental torture. He cited the decision of the Supreme Court of
Zimbabwe in Catholic Commission for Justice and Peace in Zimbabwe v. A.G. and Others Case
No. 73 of 1993 (unreported). Coupled to the delay, the learned judge found that the conditions
obtained in the death cells are horrible and add to the anguish of the condemned prisoner. The
mode of the execution of the death penalty, that is hanging, according to the learned judge,
completes the sordid and the debasing character of the penalty. The learned judge described the
mode of execution at some length pointing out that at the end of the day the dead body of the
prisoner is left in a mess and that there could not be a more inhuman and degrading sight.
The learned judge remarked that the fact that the State executes in secret and without publicity
is a clear acknowledgment of its guilty conscience that what it is doing is cruel, inhuman,
degrading and that the punishment is despicable.
As her third ground, Miss Korosso submitted that the learned trial judge erred in not finding
that the death penalty is saved by Art. 30(2) of the Constitution.
Miss Korosso said that S. 197 of the Penal Code, Cap. 16, which provides for the death
punishment for murder, is not arbitrary. She submitted that the penalty is imposed after due
process of law, that is, after a full trial in which the burden of proof is on the prosecution and
with a provision for appeal and eventually a provision for seeking pardon from the President.
Miss Korosso also pointed out that pregnant women and youths under the age of 18 years are
exempted from the death penalty. The learned State Attorney cited Bacher Singh v. State of
Punjab (1933) ISCR 154 as authority for the proposition that when life is taken away in due
process of law then that action is not unconstitutional. She said that such provisions for the
death penalty, as our S.197 of the Penal Code, which have existed before the provisions on
human rights and fundamental freedoms were introduced in the constitutions are specifically
saved by the same constitutions. She said that this was so with Art. 3 of the Constitution of

Trinidad and Tobago. She referred us to Michael de Freitas v. George Ramoutar Benny [1976]
A.C. 239.
As for international instruments, Miss Korosso submitted that the African Charter on Human
and Peoples' Rights (hereinafter referred to as the African Charter) requires that the respect for
life and the integrity of the person of an individual should not be deprived arbitrarily (Art.4).
She also pointed out that Art. 2(1) of the European Convention on Human Rights and
Fundamental Freedoms (hereinafter referred to as the European Convention) protects life and
adds that none "shall be deprived of his life intentionally save in the execution of a sentence of
a court following his conviction of a crime for which this penalty is provided by law."
Miss Korosso also contended that the death penalty passes the proportionality test because it is
in the public interest. The learned State Attorney said that she is aware of the moves toward the
abolition of that penalty in some countries. However, she submitted that death penalty has
proved to be a deterrent and that some of the jurisdictions which abolished it, such as
California, Guatemala, Mauritius, North Carolina and Texas, have swiftly reinstated it.
The learned State Attorney submitted further that there is the prerogative of mercy which takes
care of the appropriateness of the penalty in the peculiar circumstances of every individual case.
She pointed out that in Tanzania there is a committee for advising on the exercise of the
prerogative of mercy under the Presidential Affairs Act, Cap. 502. All these measures,
according to her, take care of the proportionality test.
Miss Korosso contended that as death penalty is neither arbitrary nor in contravention of the
proportionality test, then its derogation from the right to life is saved under Art. 30 (2)(c).
Mr. Rweyongeza admitted that there is due process of law when considering death penalty.
However, he pointed out that the period from the end of the determination of an appeal by the
Tanzania Court of Appeal, to the time of the execution of the penalty, is also part and parcel of
the due process of law and that this portion of time is tainted with arbitrariness. He said so
because, first, the period is indeterminate and frequently tormentingly long. This he added, also
offends the proportionality test. Then, Mr. Rweyongeza said, there are no guidelines given on
the usage of the prerogative of mercy. Therefore, he contended, the death penalty is not saved
by Art. 30(2) of the Constitution.
As for the first ground of appeal, we agree with Mr. Rweyongeza that the learned trial judge
categorically states that the right to life under Art. 14 of the Constitution is not absolute. He
struck out the provision for the death penalty not because it contravenes the absolute right to

life but because of reasons which we shall deal with shortly. We do not agree with Miss
Korosso that what the learned judge said later negated that finding. This should suffice to
dismiss the first ground of Miss Korosso. However, later on Mr. Rweyongeza in effect
submitted that the right to life under Art. 14 of the Constitution is absolute.
Mr. Rweyongeza submitted that Art. 14 merely prescribes the right to life and enjoins the law
to protect that right. He pointed out that that article does not provide for the deprivation of life.
He contrasted our Art. 14 with Art. 21 of the Constitution of India which provides:
"No person shall be deprived of his life or personal liberty except according
to procedure established by law."
Mr. Rweyongeza contended that since Art. 14 does not provide for deprivation of life, as Art.
21 of the Indian Constitution does, then any law which purports to take away that right, that is,
a law providing for the death penalty, is unconstitutional.
We have already decided in Daudi Pete v. A-G., as the learned trial judge properly observed,
that the Kiswahili version of the Constitution is the authentic one. Art. 14 of that version
provides as follows:
"Kila mtu anayo haki ya kuishi na kupata kutoka kwa jamii hifadhi ya
maisha yake, kwa mujibu wa sheria."
The translation of that article in the English version is terribly misleading. As this judgment is
in English there is a need for us to make our own translation of Art. 14 as follows:"Every person has a right to life and to receive from the society the
protection of his life, in accordance with law."
Admittedly, our Art. 14 does not expressly provide for the deprivation of the right to life as
does Art. 21 of the Constitution of India. Our research has shown that a number of other
countries have formulations like that of Art. 21 of the Constitution of India. For example, Art.
13 (1) of the Constitution of the Republic of Ghana, 1992 provides:
"No person shall be deprived of his life intentionally except in the exercise
of the execution of a sentence of a court in respect of a criminal offence
under the laws of Ghana of which he has been convicted."
Similar couching providing for deprivation of life is found in Art. 32 of the Constitution of the
People's Republic of Bangladesh, Fifth Amendment of the Constitution of the United States of

America, Art. III(1) of the 1987 Constitution of the Republic of the Philippines and also, we
may add, Art. 52 of the Draft Constitution of the Republic of Uganda.
We have also seen at least four international instruments on human rights which in addition to
protecting the right to life expressly prohibit arbitrary deprivation of that right. Art. 291) of the
European Convention, as Miss Korosso properly pointed out, is very articulate:
"Everyone's right to life shall be protected by law. No one shall be deprived
of his life intentionally save in the execution of a sentence of a court
following his conviction of a crime for which this penalty is provided by
law."
The International Covenant on Civil and Political Rights (hereinafter referred to as the
International Covenant) provides in Art. 6(1) thus:
"Every human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life."
The African Charter in Art. 4 and Art. 4(1) of the American Convention on Human Rights
(hereinafter referred to as the American Convention) provide very much like Art. 6(1) of the
International Covenant.
The result of our survey is that the international instruments declare the inherent and universal
right to life, demand that right to be protected by law and prohibit the arbitrary deprivation of
that right. That means the right can be denied by due process of law. The six domestic
constitutions which we have been able to obtain, on the other hand, presume the existence of
the inherent and universal right to life and its protection by law. The constitutions deal with
when a person can be deprived his life.
Art. 14 of our Constitution lies in between the two sets. It declares the inherent and universal
right and its protection by the society but then subjects both the right and its protection, to law.
That means there can be instances in which the due process of law will deny a person his right
to life or its protection. This is why the learned trial judge found that the right to life under Art.
14 is not absolute but qualified, and here, we agree with him.
The issue we have to determine is whether the death penalty is one of such instances where the
due process of law will deny a person his right to life and its protection.
The first matter which we have to address ourselves is whether the death penalty contravenes
Art. 13(6)(d) and (e).

The relevant parts of Art. 13(6)(d) provides follows:

"(6) kwa madhumuni ya kuhakikisha usawa mbele ya sheria, Mamlaka ya
Nchi itaweka taratibu zinazofaa au zinazozingatia misingi kwamba (a) ....
(b) ....
(c) ....
(d)

kwa ajili ya kuhifadhi haki ya usawa wa binadamu, heshima ya mtu

itatunzwa ... katika kuhakikisha utekelezaji wa adhabu;"

Very briefly we can say that Art. 13(6)(d) seeks to protect the dignity of a person in the
execution of a punishment.
Paragraph (e) of clause (6) of Art. 13 provides as follows:
"(e) ni marufuku kwa mtu kuteswa, kuadhibiwa kinyama au kupewa
adhabu zinazomtweza au kumdhalilisha."
Here again the English version is faulty and we propose to use the following translation:
"(e) it is prohibited to torture a person, to subject a person to inhuman
punishment or to degrading punishment."
The total effect of the two above-quoted paragraphs is that three things are prohibited: torture,
inhuman punishments and degrading punishments. In addition, the punishments which are not
prohibited have to be executed in such a way as to protect the dignity of a person. Does the
death penalty offend any of these?
Torture has been defined by the United Nations General Assembly (UNGA) in its unanimously
adopted "Declaration on the Protection of All Persons from being subjected to Torture and
Other Cruel, Inhuman of Degrading Treatment or Punishment" of 9th December, 1975
(resolution 3452 (XXX):
"Torture means any act by which severe pain or suffering, whether physical
or mental, is intentionally inflicted by or at the instigation of a public
official on a person for such purposes as obtaining from him or a third
person information or confession, punishing him for an act he has
committed, or intimidating him or other persons. It does not include pain or

suffering arising only from, inherent in or accidental to, lawful sanctions ..."
(emphasis provided)
Forgetting for the moment, whether or not the death penalty is a lawful sanction, it is clear that
any physical or severe mental pain or suffering brought about by the death penalty, does not
constitute torture. We understand that a similar exception is contained in the definition of
torture in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment a copy of which we have not been able to obtain.
There is no doubt that there is a lot of severe mental pain and suffering to a person under the
sentence of death from the moment that sentence is pronounced to the date of its execution. It
has been amply stated that this span of time is tormentingly too long. We do not share the
sentiments of Miss Korosso that the delay is a blessing in disguise to the condemned prisoners.
In the present world of anaesthesia, both local and general, and pain anything but in much
agony. It is quite common that the blood pressure of a patient awaiting operation shoots up even
though the patient is not ordinarily hypertensive. This is because the possibility of death is
encapsulated in the pending operation, though the patient is fully aware that the operation is for
his own good. How much so is it to a condemned prisoner who stands to gain nothing from
hanging? Is this not torture?
We humbly agree with the learned trial judge that concepts like torture, cruel, inhuman and
degrading "are subject to evolving standards of decency." We agree with the United States
Supreme Court in Trop v. Dulles 356 VS 86 when it held that the Eighth Amendment must
draw its meaning from the evolving standards of decency that mark the progress of a maturing
society. We also share the feelings of the European Court of Human Rights in Tyrer v. United
Kingdom, 2 EHRR 1 that the European Convention is a living instrument which must be
interpreted in the light of present-day conditions. We add that human rights concepts and terms
like torture, inhuman and degrading punishment or treatment, have to be interpreted in the light
of present-day conditions.
It is our opinion that death penalty has elements of torture. Whereas all punishments, as Miss
Korosso submitted, might be cruel, it is the degree of cruelty that matters. As for the other
aspects prohibited by Art. 13(6)(e) of inhuman and degrading punishments, we agree with the
decisions of other jurisdictions that the death penalty offends these. One such decision is of the
United States Supreme Court in Furman v. Georgia (1972) 408 US 238 where BRENNAN, J.
said at p. 367 that the State, even as it punishes, must treat its member with respect for their
intrinsic worth as human beings. He warned that members of the human race should not be

treated as non-humans, as objects to be toyed with and discarded. To him, even the vilest
criminal remained a human being possessed of common human dignity.
The execution of the death penalty too, that is, hanging, is inhuman and degrading. We do not
agree with the learned trial judge that hangings being conducted in private indicates the guilty
conscience of the State. We are, however, of the opinion that the privacy surrounding
executions is a recognition that hangings are inhuman and degrading and so are done in such a
way as to give some semblance of dignity and respect to the prisoner.
So, we agree with the learned trial judge that death penalty is inherently inhuman, cruel and
degrading punishment and that it is also so in its execution and that it offends Art. 13(6)(d) and
(e). But the crucial matter is: is it saved by Art. 30(2)?
That article provides:
"(2) It is hereby declared that no provision contained in this part of this
Constitution, which stipulates the basic human rights, freedom and
duties, shall be construed as invalidating any existing law or prohibiting
the enactment of any law or the doing of any lawful act under such law,
making provision for (a)

ensuring that the rights and freedom of other or the public interest
are not prejudiced by the misuse of the individual rights and
freedom;

(b)

...

(c)

ensuring the execution of the judgment or order of a court given

or made in any civil or criminal proceedings;"

This Court has on two occasions dealt with Art. 30 (2); in Daudi Pete v. A-G and also in
Kukutia Ole Pumbun v. A-G. In the latter case we said:
"... the Court in Pete's case laid down that a law which seeks to limit or
derogate from the basic right of the individual on ground of public interest
will be saved by Article 30(2) of the Constitution only if it satisfies two
essential requirements: First, such law must be lawful in the sense that it is
not arbitrary. It should make adequate safeguards against arbitrary
decisions, and provide effective controls against abuse by those in authority
when using the law. Secondly, the limitation imposed by such law must not

be more than is reasonably necessary to achieve the legitimate object. This

is what is also known as the principle requires that such law must not be
drafted too widely so as to net everyone including even the untargeted
members of the society. If the law which infringes a basic right does not
meet both requirements, such law is not saved by Article 30(2) of the
Constitution, it is null and void. And any law that seeks to limit fundamental
rights of the individual must be construed strictly to make sure that it
conforms with those requirements, otherwise the guaranteed rights under the
Constitution may easily be rendered meaningless by the use of the
derogative or claw-back clauses of that very same Constitution."
We have found it necessary to quote at length what we have said because we feel that the
learned trial judge seems not to have fully grasped its import. We have said that Art. 30(2)
allows derogation from basic rights of the individual in public interest. Whether or not a
legislation which derogates from a basic right of an individual is in public interest depends on
first, its lawfulness, that is, it should not be arbitrary and second, on the proportionality test, that
is, the limitation imposed should not be more than reasonably necessary.
The learned trial judge dealt with Art. 30(2) in Part IV of his judgment titles in capitals:
"WHETHER THE LAW PRESCRIBING THE DEATH PENALTY IS LAWFUL LAW AND
IS IN PUBLIC INTEREST UNDER ARTICLE 30(2) OF THE CONSTITUTION". The
lawfulness of the law prescribing the death penalty according to Kukutia, is one ingredient of
whether it is in the public interest and is not an additional matter to public interest. Then, the
learned trial judge divided his Part IV of the judgment into "A: Whether the death penalty is in
public interest under Article 30(2) of the Constitution" and "B: Whether the Law Prescribing
the death penalty is lawful law." The two sub-headings should have been on arbitrariness and
proportionality.
Is section 197 of the Penal Code, the one providing for death penalty, lawful law, that is, not
arbitrary?
The learned trial judge found section 197 to be arbitrary on two grounds. First, the state of our
criminal law is such that "real murderers and mentally sick are indiscriminately dumped
together as murderers without distinction". The learned trial judge gave three cases in which
"famous psychiatrist" or "prominent psychiatrists" testified to the mental disease of the accused
persons, yet they were sentenced to death. He cited Said Mwamwindi v. R. (1972) H.C.D. n.
212 - the disease being catatonic schizophrenia; R. v. Asha Mkwizu Dauli, Cr. Sessions Case

No. 3 of 1984 (DSM); and D.P.P. v. Lenganzo Nyanje, Cr. Appeal No. 68 of 1980 where the
respondent had paranoid schizophrenia. The learned trial judge categorically indicated that
Mwamwindi was executed but he did not so with respect to Asha and Nyanje.
Then the learned trial judge complained of the requirement under section 325 of the Criminal
Procedure Act, 1985 whereby in the case of the death penalty, the court record is sent to the
President for the exercise of pardon. The learned trial judge said the procedure is arbitrary as
the President is neither bound to follow the recommendations of the judge who tried the case
nor of the advisory committee.
In Kukutia we went on to explain what we meant by arbitrary. We said that the law under
investigation "should make adequate safeguards against arbitrary decisions, and provide
effective controls against abuse by those in authority when using the law".
Chambers 20th Century Dictionary defines arbitrary as "not bound by rules: despotic, absolute:
Capricious: arising from accident rather than from rule".
Does section 197 of the Penal Code fall under that definition? That section provides:
"Any person convicted of murder shall be sentenced to death:"
There then follows a proviso which exempts pregnant women. So, only those persons convicted
of murder are subjected to death under this section. (We may add that also those convicted of
treason are subjected to death under section 39 of the Penal Code).
We agree with Miss Korosso that for a person to be convicted of murder he must have
undergone a full trial by the High Court sitting with assessors and with the assistance of a
prosecuting State Attorney and a defence counsel. Then, by practice, there is an automatic
appeal to this Court. That can never be despotic.
Our law is that it is the court which makes decisions and all others, however qualified in their
callings, give evidence and offer opinions which the court, for stated reasons, mayor may not
accept as factual and rely upon. Insanity is defined in S. 13 of the Penal Code and anything
short of that will not benefit an accused person. Our law does not provide for diminished
responsibility. That may be unfortunate but definitely not arbitrary because the court arrives at
its decisions following rules and not accidentally.
It is possible that an innocent person may be executed in error. But that will not be arbitrary.
Either both the trial court and the appeal court were genuinely mistaken or fraud was committed

on them. But our law provides safeguards, for instance, in the case of doubt then the accused
person should benefit.
The Presidential pardon is outside the court process and helps to put a human touch on the
rigours of the law. Admittedly, the President is not bound by the recommendations of either the
trial judge or the advisory committee but that does not enable him to abuse the law for he
cannot make matters any worse for the condemned prisoner.
In fact S.197 cannot be arbitrary because it merely provides punishment to a person convicted
under other provisions of law.
Is the death penalty in conformity with the principle of proportionally? Is the limitation
imposed not more than is reasonably necessary to achieve the legitimate object? May be, what
is the legitimate object?
Section 197 provides for the death punishment to a person who has been proved to have killed
another or others, with malice aforethought, that is, without any excuse recognised by law. So,
the legitimate object of the law is to protect the society from such killings. Art. 14 gives
members of the society a right to life and requires the society to protect this right. So, the
society has the constitutional duty to ensure that its law abiding members are not deprived of
this right. The society cannot provide personal body-guards for indefinite periods even to
individuals whose lives maybe threatened, and that is not expected of the society to do. (X v.
Ireland (6040/73) CD 44, 121). So, the society cannot make it difficult or prevent one person
killing another. The society can only discharge its duty of protecting the right to life by
deterring persons from killing others. Tanzania, like many other societies, have decided to do so
through the death penalty.
There is a question of retribution. But that to our minds is between the murderer and the
relatives of the victims. For the purpose of the society to perform its duty under Art. 14
deterrence is the legitimate object.
Is the death penalty more than necessary to deter from killing others?
We know that in certain jurisdictions death penalty has been held not to be necessary either to
deter the commission of capital crimes or to protect society (Furman v. Georgia referred to
supra). However, it is our decided opinion that what measures are necessary to deter the
commission of capital crimes or to protect society are matters for decision by every individual
society.

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

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

inflicted by others, and so it is potentially avoidable) as a greater evil than

death, which is ultimately unavoidable for everyone."
Before we finish, we commend the learned trial judge for his unexcelled industry in his
exploration of the human rights literature. However, we would also like to point out that the
style he has used in writing the judgment, dividing it into parts and sections, with headings and
sub-headings, is unusual. That style is more suited for a thesis than for a judgment.
Both appeals are allowed. The conviction of murder is quashed and the sentence of life
imprisonment is set aside. The striking out of the death penalty is also quashed and that penalty
is declared constitutional.
DATED at DAR ES SALAAM this 30th day of January, 1995.

L. M. MAKAME
JUSTICE OF APPEAL

A.S.L. RAMADHANI
JUSTICE OF APPEAL

D. Z. LUBUVA
JUSTICE OF APPEAL

I certify that this is a true copy of the original

(B. M. LUANDA)
SENIOR DEPUTY REGISTRAR