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Ensure African States Don’t Flout Court Judgment Striking Down Mandatory Death Penalty Laws

Date: May 5, 2021
Country: All Africa
Type: Post
Issues: Death Penalty , International Advocacy

It has been more than a year since the African Court on Human and Peoples’ Rights (the African Court) delivered a judgment upholding the right to life of five Tanzanian nationals who had been arbitrarily sentenced to death, but the Tanzanian Government has yet to give effect to the decision.

In 2011, Ally Rajabu and his co-defendants were convicted of murder and per the Tanzanian Penal Code, a judge mandatorily sentenced them to death. When the Court of Appeal (apex court in Tanzania) denied their appeal, they applied to the African Court to quash their conviction and commute their sentence. Remarkably, they filed the application pro se—representing themselves. The Court subsequently appointed an attorney to represent them pro bono.

The African Court dismissed the request to overturn the convictions as doing so could infringe upon the jurisdiction of the national courts. Regarding the death sentences, however, the African Court held that a mandatory death penalty which prohibited the court from considering mitigating factors like the defendant’s social history and the proportionality between the facts and the sentence arbitrarily deprived the defendants of their right to life. Hence, the Court reasoned, Tanzanian authorities should set aside those death sentences. The Court gave Tanzania six months to give effect to the judgment and determine appropriate alternative sentences for Mr. Rajabu and his co-defendants.

In December 2020, The Advocates of Human Rights submitted a List of Issues report to the Human Rights Committee (the Committee), observing that Tanzania has wavered in its support for the death penalty. Though the country has a moratorium on executions since 1994, Tanzanian courts continue to sentence people to death. The legislation calling for the mandatory imposition of the death penalty disregards due process requirements. Therefore, the African Court’s judgment marked a vital step in protecting human rights in Tanzania.

Despite this progress, the Tanzanian Government has suggested that it might disregard the judgment. Officials have suggested that the Tanzanian Constitution takes precedence over international judgments. And in a move with wide-sweeping implications, Tanzania recently ended the right of individuals and NGOs to directly file cases against the Tanzanian Government in the African Court. This move could fetter Tanzanians’ access to an important human rights mechanism. The Advocates hopes the Committee will press Tanzania on its stance on the death penalty and its implementation of the African Court’s decision in its upcoming periodic review. The Advocates is also collaborating with three Tanzanian-based partners to prepare a joint stakeholder report on death penalty issues for the country’s November 2021 Universal Periodic Review.

The significance of the African Court judgment extends beyond Tanzania, to the entire African continent. 13 African countries retain a mandatory death penalty for many crimes. Amongst them, Botswana, Somalia, and Sudan have arbitrarily imposed the death penalty and carried out executions. These continuing executions under mandatory death penalty regimes are an unfortunate development, undermining the authority of the African Court decision.

Such irreverence from parties to the African Charter on Human and Peoples’ Rights makes it even more essential for the Committee to ask Tanzania to address the issue of the death penalty and for delegates to the Human Rights Council to press Tanzania for compliance in the upcoming UPR. An international spotlight on the issue will ensure progress toward respect for human rights not only in Tanzania, but also in the legal justice systems of the entire African continent.

READ MORE:

What comes after withdrawing from the African Court of Human and Peoples’ Rights?

We Can't Change Death Penalty – Tanzanian High Court

A Court in Crisis: African States’ Increasing Resistance to Africa’s Human Rights Court

By Akshaya Mohan, undergraduate ‘Law with International Relations’ student at the University of Surrey and legal intern in The Advocates’ International Justice Program