Wakilii

Damian v United Republic of Tanzania (Application No. 048-2016)

African Court on Human and Peoples' Rights · [2024] AfCHPR 8 · 2024 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to the African Court on Human and Peoples' Rights following exhaustion of domestic remedies in Tanzania (High Court conviction and Court of Appeal dismissal)
Decision
Death sentence revoked and Applicant removed from death row pending rehearing on sentencing with judicial discretion; Respondent State ordered to amend laws to remove mandatory death penalty and hanging as method of execution

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Court on Human and Peoples' Rights held that Tanzania violated the Applicant's right to life by mandatorily imposing the death penalty without allowing judicial officers discretion to consider the nature of the offence and the circumstances of the offender, and violated his right to dignity by imposing death by hanging. The Court found no violation of the right to a fair trial regarding trial within a reasonable time, effective legal representation, calling of witnesses, presumption of innocence, or impartiality. The Court ordered Tanzania to revoke the death sentence, remove the Applicant from death row, amend its laws to remove the mandatory death penalty and hanging as a method of execution, and conduct a rehearing on sentencing with judicial discretion.

Outcome

Death sentence revoked and Applicant removed from death row pending rehearing on sentencing with judicial discretion; Respondent State ordered to amend laws to remove mandatory death penalty and hanging as method of execution

Facts

On 27 August 2007, Dominick Damian and his brother Daniel assaulted their mother, Astella Damian, with sticks at Kitwechenkula village in Karagwe District, Tanzania. The victim told her husband that her sons assaulted her and tried to set her on fire. She subsequently died from the assault. Dominick Damian was arrested the same day. On 14 December 2012, the High Court sitting at Bukoba convicted him of murder and sentenced him to death by hanging. The Court of Appeal dismissed his appeal on 17 March 2014. He filed a notice of motion for review which was pending when he filed his application before the African Court on 1 September 2016. At the time of filing, he was on death row at Butimba Central Prison, Mwanza.

Issues

  1. Whether the Applicant's right to be tried within a reasonable time under Article 7(1)(d) of the African Charter was violated by a pre-trial detention of five years and three months.
  2. Whether the Applicant's right to defence under Article 7(1)(c) of the African Charter was violated by the failure to provide effective legal representation.
  3. Whether the Applicant's right to defence under Article 7(1)(c) of the African Charter was violated by the failure to call additional witnesses.
  4. Whether the Applicant's right to be presumed innocent under Article 7(1)(b) of the African Charter was violated by reliance on insufficiently strong or credible evidence.
  5. Whether the Applicant's right to be tried by an impartial court or tribunal under Article 7(1)(d) of the African Charter was violated by the trial court's participation in cross-examination of witnesses.
  6. Whether the Applicant's right to life under Article 4 of the African Charter was violated by the mandatory imposition of the death penalty without consideration of the personal circumstances of the offender and the particular offence.
  7. Whether the Applicant's right to dignity under Article 5 of the African Charter was violated by sentencing him to death by hanging.

Orders

  • Respondent State violated the Applicant's right to life protected under Article 4 of the Charter in relation to the mandatory imposition of the death penalty by failing to allow judicial officers discretion to take into account the nature of the offence and the circumstances of the offender.
  • Respondent State violated the Applicant's right to dignity and not to be subjected to cruel, inhuman or degrading punishment and treatment protected under Article 5 of the Charter in relation to the imposition of the death penalty by hanging.
  • Respondent State did not violate the Applicant's right to a fair trial protected under Article 7(1)(b) of the Charter with regard to the right to be presumed innocent until proved guilty by a competent court or tribunal.
  • Respondent State did not violate the Applicant's right to defence protected under Article 7(1)(c) of the Charter with regard to the provision of effective legal representation and calling of additional witnesses.
  • Respondent State did not violate the Applicant's right to a fair trial protected under Article 7(1)(d) of the Charter with regard to the right to be tried by an impartial court or tribunal.
  • Respondent State did not violate the Applicant's right to a fair trial protected under Article 7(1)(d) of the Charter with regard to the right to be tried within a reasonable time.
  • Applicant awarded Tanzanian Shillings Three Hundred Thousand (TZS 300,000) as moral damages.
  • Respondent State to pay the sum awarded free from tax within six months from the date of notification of this Judgment, failing which it will be required to pay interest on arrears calculated on the basis of the applicable rate of the Central Bank of Tanzania throughout the period of delayed payment until the amount is fully paid.
  • Respondent State to revoke the death sentence imposed on the Applicant and remove him from death row.
  • Respondent State to take all necessary measures, within six months from the notification of this Judgment, to remove the mandatory imposition of the death penalty from its laws.
  • Respondent State to take all necessary measures, within six months from the notification of this Judgment, to remove 'hanging' from its laws as a method of execution of the death penalty.
  • Respondent State to take all necessary measures, within one year of the notification of this judgment, for the rehearing of the case on the sentencing of the Applicant through a procedure that does not allow the mandatory imposition of the death sentence and upholds the discretion of the judicial officer.
  • Respondent State to publish this judgment, within a period of three months from the date of notification, on the websites of the Judiciary, and the Ministry for Constitutional and Legal Affairs, and ensure that the text of the judgment is accessible for at least one year after the date of publication.
  • Respondent State to submit to the Court, within six months from the date of notification of this judgment, a report on the status of implementation of the decision set forth herein and thereafter, every six months until the Court considers that there has been full implementation thereof.
  • Each Party to bear its own costs.
  • Application for release denied.

Rules and key headnotes

Right to Life — Mandatory Death Penalty — Arbitrary Deprivation
The mandatory imposition of the death penalty is arbitrary and violates the right to life under Article 4 of the African Charter where it deprives the judicial officer of discretion to consider circumstances peculiar to the offence and the offender, including whether the case falls within the classification of the rarest of cases for which a death penalty can be lawfully imposed.
Right to Life — Death Penalty — Nature of Offence
The death penalty should exceptionally be reserved only for the most heinous of offences committed in seriously aggravating circumstances. The mandatory imposition of the death sentence is arbitrary where it deprives the judicial officer of the leeway to examine whether the seriousness of the offence warranted the sentence.
Right to Life — Death Penalty — Circumstances of Offender
A system of mandatory capital punishment deprives the complainant of the most fundamental right, the right to life, without considering whether this exceptional form of punishment is appropriate in the circumstances of his or her cause. Imposition of the death penalty should always involve the possibility for mitigation, including consideration of the offender's good character and lack of prior criminal history.
Right to Dignity — Death Penalty — Method of Execution
Hanging a person is inherently degrading and encroaches upon dignity in respect of the prohibition of torture and cruel, inhuman and degrading treatment under Article 5 of the African Charter. Methods of execution must exclude suffering or involve the least suffering possible in cases where the death penalty is permissible.
Fair Trial — Reasonable Time — Pre-Trial Detention
The reasonableness of the timeframe for trial depends on the specific circumstances of the case and should be determined on a case-by-case basis. In assessing reasonableness, the Court considers factors including whether the applicant is incarcerated, lay in law, indigent, the time required to reflect on the advisability of seizing the Court, and whether the applicant has pursued a review process.
Fair Trial — Right to Defence — Effective Legal Representation
The right to defence under Article 7(1)(c) of the African Charter requires that legal counsel should be effective even if provided by the State. For representation to qualify as effective, it should provide counsel with sufficient time and means to prepare an adequate defence at all stages right from the arrest of the individual, without any interference. It is the State's duty to provide adequate representation and intervene only when the representation is not adequate.
Fair Trial — Presumption of Innocence — Standard of Proof
Upholding the right to a fair trial requires that the imposition of a sentence in a criminal offence, and in particular a heavy prison sentence, should be based on strong and credible evidence. The principle that a criminal conviction should be established with certitude is a crucial principle in cases where the death penalty is imposed. While domestic courts enjoy a wide margin of appreciation in evaluating the probative value of evidence, international human rights courts retain jurisdiction to determine whether the assessment of evidence in national courts complies with relevant provisions of international human rights instruments.

Legislation cited (20)

  • African Charter on Human and Peoples' Rights Article 4
  • African Charter on Human and Peoples' Rights Article 5
  • African Charter on Human and Peoples' Rights Article 7
  • African Charter on Human and Peoples' Rights Article 56
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 3
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 6(2)
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 27
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 30
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 34(6)
  • Tanzanian Penal Code s.197
  • Tanzanian Criminal Procedure Act s.32(2)
  • Tanzanian Criminal Procedure Act s.231(3)
  • Tanzanian Criminal Procedure Act s.231(4)
  • Tanzanian Criminal Procedure Act s.244
  • Tanzanian Criminal Procedure Act s.245
  • Tanzanian Criminal Procedure Act s.248(1)
  • Tanzanian Criminal Procedure Act s.260(1)
  • Tanzanian Criminal Procedure Act s.284(1)
  • Tanzanian Criminal Procedure Act s.293(2)
  • International Covenant on Civil and Political Rights Article 6(2)

Cases cited (52)

  • Andrew Ambrose Cheusi v. United Republic of Tanzania (26 June 2020)
  • Matoke Mwita and Masero Mkami v. United Republic of Tanzania (Application No. 007/2016)
  • Marthine Christian Msuguri v. United Republic of Tanzania (Application No. 052/2016)
  • Kalebi Elisamehe v. Tanzania (26 June 2020)
  • Ernest Francis Mtingwi v. Republic of Malawi (15 March 2013)
  • Werema Wangoko Werema and Waisiri Wangoko Werema v. United Republic of Tanzania (7 December 2018)
  • Armand Guehi v. United Republic of Tanzania (7 December 2018)
  • Alex Thomas v. United Republic of Tanzania (20 November 2015)
  • Ingabire Victoire Umuhoza v. Republic of Rwanda (3 June 2016)
  • Wilfred Onyango Nganyi and Others v. United Republic of Tanzania
  • Benedicto Daniel Mallya v. United Republic of Tanzania (26 September 2019)
  • Amini Juma v. United Republic of Tanzania (Application No. 024/2016)
  • Diocles William v. United Republic of Tanzania (21 September 2018)
  • Christopher Jonas v. United Republic of Tanzania (28 September 2017)
  • Amir Ramadhani v. United Republic of Tanzania (11 May 2018)
  • Nguza Viking and Johnson Nguza v. United Republic of Tanzania (23 March 2018)
  • Igola Iguna v. United Republic of Tanzania (Application No. 020/2017)
  • John Lazaro v. United Republic of Tanzania (Application No. 003/2016)
  • Alfred Agbesi Woyome v. Republic of Ghana (Application No. 001/2017)
  • Michael Majuru v. Zimbabwe
  • Sébastien Germain Ajavon v. Republic of Benin (4 December 2020)
  • Mhina Zuberi v. United Republic of Tanzania (Application No. 054/2016)
  • Kennedy Ivan v. United Republic of Tanzania (28 March 2019)
  • Kijiji Isiaga v. United Republic of Tanzania (21 March 2018)
  • Wanjara and 4 Others v. United Republic of Tanzania (25 September 2020)
  • Niyonzima Augustine v. United Republic of Tanzania (Application No. 058/2016)
  • Fidèle Mulindahabi v. Republic of Rwanda
  • Makungu Misalaba v. United Republic of Tanzania (Application No. 033/2016)
  • Mapuji Mtogwashinge v. The Republic (Criminal Appeal No. 97 of 2015)
  • Ally Rajabu and Others v. United Republic of Tanzania (28 November 2019)
  • Ghati Mwita v. United Republic of Tanzania (Application No. 012/2019)
  • Boyce et al. v. Barbados (20 November 2007)
  • Hilaire, Constantine, and Benjamin et al. v. Trinidad and Tobago (21 June 2002)
  • S v. Makwanyane (Case No. CCT/3/94)
  • Mitcham and Others v. DPP (Criminal Appeal Nos. 10-12 of 2002)
  • Dial and Others v. Trinidad and Tobago (21 November 2022)
  • Kafantayeni and Others v. Attorney General (Constitutional Case No. 12 of 2005)
  • Attorney General v. Susan Kigula and 417 Others (Constitutional Appeal No. 03 of 2006)
  • Mutiso v. Republic (Criminal Appeal No. 17 of 2008)
  • XYZ v. Republic of Benin (27 November 2020)
  • Sébastien Germain Ajavon v. Republic of Benin (28 November 2019)
  • Norbert Zongo and Others v. Burkina Faso (5 June 2015)
  • Reverend Christopher R. Mtikila v. United Republic of Tanzania (13 June 2014)
  • Nguza Viking and Another v. United Republic of Tanzania (8 May 2020)
  • Kijiji Isiaga v. Republic of Tanzania (Application No. 011/2015)
  • Gozbert Henerico v. United Republic of Tanzania
  • Mgosi Mwita Makungu v. United Republic of Tanzania (7 December 2018)
  • Minani Evarist v. United Republic of Tanzania (21 September 2018)
  • Crospery Gabriel and Another v. United Republic of Tanzania (Application No. 050/2016)
  • Romward William v. United Republic of Tanzania (Application No. 030/2016)
  • Deogratius Nicholaus Jeshi v. United Republic of Tanzania (Application No. 017/2016)
  • African Commission on Human and Peoples' Rights v. The Republic of Libya (3 June 2016)

Full judgment

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Damian v United Republic of Tanzania (Application No. 048-2016) [2024] AfCHPR 8 (4 June 2024)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.