Wakilii

Kalonge v United Republic of Tanzania (Application No. 024-2018)

African Court on Human and Peoples' Rights · [2024] AfCHPR 28 · 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 conviction for murder and sentence to death by hanging in Tanzanian domestic courts
Decision
Mandatory death sentence vacated; Applicant to be removed from death row; case remitted for rehearing on sentencing with judicial discretion; Respondent State ordered to repeal mandatory death penalty and remove hanging as execution method

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Court held that Tanzania violated the Applicant's right to life by imposing a mandatory death sentence without judicial discretion, and violated his right to dignity by prescribing hanging as the method of execution. The Court dismissed claims of violations of equality, fair trial, family life, and freedom of movement. The Court ordered Tanzania to vacate the death sentence, remove the Applicant from death row, repeal the mandatory death penalty provision, remove hanging as an execution method, and conduct a rehearing on sentencing with judicial discretion.

Outcome

Mandatory death sentence vacated; Applicant to be removed from death row; case remitted for rehearing on sentencing with judicial discretion; Respondent State ordered to repeal mandatory death penalty and remove hanging as execution method

Facts

On 5 February 2008, Henry Mwakajila, a person with albinism, disappeared from Ilolo Village, Rungwe District, Mbeya Region, Tanzania. In May 2008, police arrested the Applicant and four others. The Applicant was found in possession of body parts later proven to belong to Henry Mwakajila. The Applicant and co-accused were charged with murder. On 30 June 2015, the High Court of Tanzania at Mbeya convicted the Applicant and three co-accused of murder and sentenced them to death by hanging; one co-accused was acquitted. The Applicant appealed. On 12 October 2017, the Court of Appeal affirmed the Applicant's conviction and sentence while acquitting two other appellants. The Applicant filed this application to the African Court on 28 September 2018, alleging violations of his rights under the African Charter.

Issues

  1. Whether the Applicant's conviction and sentence to death on the basis of insufficient evidence violated his rights to equality and equal protection of the law under Article 3 of the Charter.
  2. Whether the mandatory imposition of the death penalty violated the Applicant's right to life under Article 4 of the Charter.
  3. Whether the sentence to death by hanging violated the Applicant's right to dignity under Article 5 of the Charter.
  4. Whether the Applicant's right to a fair trial under Article 7 of the Charter was violated by conviction on insufficient evidence, reliance on DNA evidence, acquittal of co-appellants, and failure to permit representation by counsel of choice.
  5. Whether the Applicant's imprisonment violated his right to enjoy family life under Article 18 of the Charter.
  6. Whether the Applicant's imprisonment violated his right to freedom of movement under Article 12 of the Charter.

Orders

  • Objection to material jurisdiction dismissed.
  • Court has jurisdiction.
  • Objection to admissibility dismissed.
  • Application admissible.
  • Respondent State did not violate Applicant's right to equality and equal protection under Article 3 of the Charter.
  • Respondent State did not violate Applicant's right to fair trial under Article 7 of the Charter.
  • Respondent State did not violate Applicant's right to enjoy family life under Article 18 of the Charter.
  • Respondent State did not violate Applicant's right to free movement under Article 12 of the Charter.
  • Respondent State violated Applicant's right to life under Article 4 of the Charter due to mandatory imposition of death penalty.
  • Respondent State violated Applicant's right to dignity under Article 5 of the Charter by prescribing hanging as method of execution.
  • Applicant's claims for pecuniary reparations dismissed.
  • Applicant awarded Three Hundred Thousand Tanzania Shillings (TZS 300,000) for moral prejudice.
  • Respondent State to pay awarded sum free from tax within six months, failing which interest at Central Bank of Tanzania rate applies.
  • Applicant's prayer for quashing of conviction and release from prison dismissed.
  • Respondent State to revoke mandatory death sentence imposed on Applicant and remove him from death row.
  • Respondent State to remove mandatory imposition of death penalty from Penal Code within six months.
  • Respondent State to conduct rehearing on sentencing within one year through procedure upholding judicial discretion.
  • Respondent State to remove hanging as method of execution from its laws within six months.
  • Respondent State to publish judgment on Judiciary and Ministry websites within three months, accessible for at least one year.
  • Respondent State to submit implementation report within six months and every six months thereafter until full implementation.
  • Each party to bear its own costs.

Rules and key headnotes

Human Rights — Right to Life — Mandatory Death Penalty — Judicial Discretion
The mandatory imposition of the death penalty violates the right to life under Article 4 of the African Charter because it deprives judicial officers of discretion to consider the specific circumstances of individual cases and whether the case falls within the rarest of cases for which the death penalty may lawfully be imposed.
Human Rights — Right to Dignity — Method of Execution — Hanging
The implementation of the death penalty by hanging is inherently degrading and violates the right to dignity under Article 5 of the African Charter, which prohibits cruel, inhuman, and degrading punishment and treatment.
Human Rights — Fair Trial — Evidential Matters — Scope of Review by International Court
While the African Court does not exercise appellate jurisdiction over domestic court decisions, it retains authority to examine whether domestic proceedings conformed to international human rights standards, and will intervene where there is manifest irregularity resulting in a miscarriage of justice.
Human Rights — Reparations — Moral Prejudice — Presumption
Moral prejudice is presumed in cases where human rights violations are established, and the quantum of damages for moral prejudice is assessed based on equity, taking into account the circumstances of the case.
Criminal Law & Procedure — Evidence — Circumstantial Evidence — Presumption of Death
Where a person has not been seen or heard of by persons who would ordinarily be expected to have heard from them for a period of years, the presumption of death may be applied, and where an accused is found in possession of body parts of the missing person, the burden shifts to the accused to explain how they came to possess those parts.

Legislation cited (15)

  • African Charter on Human and Peoples' Rights Article 3
  • 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 12
  • African Charter on Human and Peoples' Rights Article 18
  • 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 27
  • 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)
  • Tanzania Evidence Act s.117
  • Tanzania Evidence Act s.34B
  • Tanzania Evidence Act s.240
  • Tanzania Penal Code s.197
  • Tanzania Criminal Procedure Act s.240
  • International Covenant on Civil and Political Rights Article 14

Cases cited (8)

  • Andrew Ambrose Cheusi v. United Republic of Tanzania (26 June 2020) 4 AfCLR 219
  • Kalebi Elisamehe v. United Republic of Tanzania (26 June 2020) 4 AfCLR 265
  • Gozbert Henrico v. United Republic of Tanzania (Application No. 056/2016)
  • Kenedy Ivan v. United Republic of Tanzania (28 September 2017) 2 AfCLR 65
  • Ally Rajabu and Others v. Tanzania
  • Alex Thomas v. United Republic of Tanzania (20 November 2015) 1 AfCLR 465
  • Tanganyika Law Society and Legal and Human Rights Centre v. United Republic of Tanzania (14 June 2013) 1 AfCLR 34
  • International Pen and others (on behalf of Ken Saro-wiwa) v. Nigeria (Communication 137/94, 139/94, 154/96, 161/97)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Kalonge v United Republic of Tanzania (Application No. 024-2018) [2024] AfCHPR 28 (13 November 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.