Wakilii

Rajabu and Others v Tanzania (Application No. 007-2015)

African Court on Human and Peoples' Rights · [2019] AfCHPR 52 · 2019 Petition Granted 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 of appeal)
Decision
Violations of Articles 1, 4, and 5 of the African Charter found. Applicants awarded moral damages. Matter remitted to domestic courts for resentencing without mandatory death penalty. Respondent State ordered to amend legislation.

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's mandatory imposition of the death penalty for murder under Section 197 of the Penal Code violates the right to life (Article 4) and the right to dignity (Article 5) of the African Charter. The mandatory nature of the sentence deprives courts of discretion to consider individual circumstances and mitigating factors, rendering it arbitrary and in breach of due process. The Court ordered Tanzania to repeal the mandatory death penalty provision and to rehear the Applicants' sentencing through a procedure that upholds judicial discretion. The Court found no violation of the right to a fair trial regarding trial delays, evidentiary assessment, or judicial competence.

Outcome

Violations of Articles 1, 4, and 5 of the African Charter found. Applicants awarded moral damages. Matter remitted to domestic courts for resentencing without mandatory death penalty. Respondent State ordered to amend legislation.

Facts

On 12 September 2006, the five Applicants were arrested in Tanzania for the murder of Jamal Abdallah. They were charged on 24 June 2008 and convicted by the High Court on 25 November 2011, receiving mandatory death sentences under Section 197 of the Penal Code. The Court of Appeal dismissed their appeal on 22 March 2013. The Applicants filed an application for review with the Court of Appeal on 24 March 2013, which remained pending when they filed the present application to the African Court on 26 March 2015. The review was eventually dismissed on 24 May 2017. The Applicants challenged the mandatory nature of the death penalty, the trial process, and delays in the review proceedings.

Issues

  1. Whether the Applicants' right to be tried within a reasonable time was violated by the delay in completing the review process before the Court of Appeal.
  2. Whether the Applicants' right to be heard was violated due to alleged variances in prosecution witness testimony and the manner in which preliminary investigations were conducted.
  3. Whether the Applicants' right to be heard by a competent court was violated because the preliminary hearing and trial were conducted by different judges.
  4. Whether the mandatory imposition of the death penalty under Section 197 of the Penal Code of Tanzania violates the right to life guaranteed under Article 4 of the African Charter.
  5. Whether the execution of the death penalty by hanging violates the right to dignity and the prohibition of cruel, inhuman and degrading treatment under Article 5 of the African Charter.
  6. Whether Tanzania violated Article 1 of the African Charter by failing to amend Section 197 of the Penal Code to remove the mandatory imposition of the death penalty.

Orders

  • Respondent State violated Article 4 of the African Charter (right to life) in relation to the mandatory imposition of the death penalty.
  • Respondent State violated Article 5 of the African Charter (right to dignity) in relation to execution by hanging of a mandatory death sentence.
  • Respondent State violated Article 1 of the African Charter by failing to amend Section 197 of the Penal Code.
  • Respondent State did not violate Article 7(1) (right to be heard), Article 7(1)(a) (right to be tried by a competent court), or Article 7(1)(d) (right to be tried within a reasonable time).
  • Respondent State ordered to pay Tanzanian Shillings Four Million (Tsh 4,000,000) to each Applicant for moral damage.
  • Payment to be made within six months from notification of judgment, failing which interest at the Bank of Tanzania rate applies.
  • Respondent State ordered to take all necessary measures within one year to remove the mandatory imposition of the death penalty from the Penal Code.
  • Respondent State ordered to take all necessary measures within one year for rehearing of the Applicants' sentencing through a procedure that does not allow mandatory imposition of the death sentence and upholds full judicial discretion.
  • Respondent State ordered to publish the judgment on the websites of the Judiciary and the Ministry for Constitutional and Legal Affairs within three months, accessible for at least one year.
  • Respondent State ordered to submit implementation reports to the Court every six months until full implementation.
  • Each party to bear its own costs.

Rules and key headnotes

Right to Life — Mandatory Death Penalty — Arbitrary Deprivation of Life
The mandatory imposition of the death penalty for murder, which removes judicial discretion to consider individual circumstances and mitigating factors, constitutes an arbitrary deprivation of life in violation of Article 4 of the African Charter on Human and Peoples' Rights.
Right to Dignity — Cruel, Inhuman and Degrading Treatment — Execution by Hanging
Where a death sentence has been imposed in a mandatory manner in violation of the right to life, the execution of that sentence by hanging inevitably encroaches upon dignity and violates the prohibition of torture and cruel, inhuman and degrading treatment under Article 5 of the African Charter.
Fair Trial — Due Process — Judicial Discretion in Sentencing
Due process under Articles 7(1) and 26 of the African Charter extends to the sentencing process and requires that any penalty be imposed by a tribunal that retains full discretion in determining matters of fact and law, including the proportionality between the facts and the penalty to be imposed.
State Obligations — Legislative Measures — Article 1 of the African Charter
A State Party violates Article 1 of the African Charter when it fails to adopt legislative measures to remove from its laws provisions that violate substantive rights guaranteed by the Charter, particularly where the State had the opportunity to do so through legislative amendments enacted after the Charter came into force.
Fair Trial — Right to be Heard — Standard of Proof Beyond Reasonable Doubt
Upholding the right to have one's cause heard requires that in criminal matters, conviction and sentencing be based on a case proven beyond reasonable doubt, with this standard applying with greater relevance where a severe penalty such as the death sentence is being imposed.
Appellate Jurisdiction — Review of Domestic Court Decisions — International Human Rights Standards
While the African Court does not exercise appellate jurisdiction to uphold or reverse judgments of domestic courts, it retains the power to assess whether the manner in which domestic courts handled proceedings was in line with international human rights standards, particularly to ensure that evaluation of facts and evidence was not manifestly arbitrary or did not result in a miscarriage of justice.
Right to be Tried Within a Reasonable Time — Factors for Assessment
In assessing whether justice was dispensed within a reasonable time under Article 7(1)(d) of the African Charter, relevant factors include the complexity of the matter, the behaviour of the parties, and the conduct of judicial authorities who bear a duty of due diligence in circumstances where severe penalties apply.

Legislation cited (22)

  • African Charter on Human and Peoples' Rights Article 1
  • 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(1)
  • African Charter on Human and Peoples' Rights Article 7(1)(a)
  • African Charter on Human and Peoples' Rights Article 7(1)(d)
  • African Charter on Human and Peoples' Rights Article 26
  • African Charter on Human and Peoples' Rights Article 56
  • African Charter on Human and Peoples' Rights Article 60
  • 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(1)
  • 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)
  • International Covenant on Civil and Political Rights Article 6
  • International Covenant on Civil and Political Rights Article 14
  • Penal Code of Tanzania Section 196
  • Penal Code of Tanzania Section 197
  • Criminal Procedure Act of Tanzania Section 192(5)
  • Criminal Procedure Act of Tanzania Section 235(1)
  • Criminal Procedure Act of Tanzania Section 388
  • Evidence Act of Tanzania Section 110
  • Basic Rights and Duties Enforcement Act Cap 3 RE 2002

Cases cited (44)

  • Ernest Francis Mtingwi v Republic of Malawi (Admissibility) (2013) 1 AfCLR 190
  • Alex Thomas v United Republic of Tanzania (Merits) (2015) 1 AfCLR 465
  • Armand Guehi v United Republic of Tanzania (Application No. 001/2015)
  • Nguza Viking and Johnson Nguza v United Republic of Tanzania (Application No. 006/2015)
  • Werema Wangoko Werema and Another v United Republic of Tanzania (Application No. 024/2015)
  • Mohamed Abubakari v United Republic of Tanzania (Merits) (2016) 1 AfCLR 599
  • Peter Joseph Chacha v United Republic of Tanzania (Merits) (2014) 1 AfCLR 398
  • Christopher Jonas v United Republic of Tanzania (Application No. 011/2015)
  • Kennedy Owino Onyachi and Charles John Mwanini Njoka v United Republic of Tanzania (Application No. 003/2015)
  • Michael Majuru v. Zimbabwe
  • Norbert Zongo and Others v Burkina Faso (Preliminary Objections) (2013) 1 AfCLR 197
  • Wilfred Onyango Nganyi and Others v United Republic of Tanzania (Merits) (2016) 1 AfCLR 507
  • Norbert Zongo and Others v Burkina Faso (Merits) (2014) 1 AfCLR 219
  • Anudo Ochieng Anudo v United Republic of Tanzania (Application No. 012/2015)
  • Oscar Josiah v United Republic of Tanzania (Application No. 053/2016)
  • Kijiji Isiaga v United Republic of Tanzania (Application No. 032/2015)
  • Interights and Others (on behalf of Bosch) v. Botswana
  • International Pen and Others (Ken Saro-Wiwa) v Nigeria, Communications 137/94, 139/94, 154/96, 161/97 (2000) AHRLR 212 (ACHPR 1998)
  • Forum of Conscience v Sierra Leone, Communication 223/98 (2000) 293 (ACHPR 2000)
  • Eversley Thompson v. St. Vincent & the Grenadines, Comm. No. 806/1998, U.N. Doc. CCPR/C/70/D/806/1998 (2000) (U.N.H.C.R.)
  • Hilaire, Constantine & Benjamin v. Trinidad & Tobago, Inter-Am. Ct. H.R. (ser. C) No. 94 (June 21, 2002)
  • Boyce & Joseph v. Barbados, Inter-Am. Ct. H.R. (ser. C) No. 169 (Nov. 20, 2007)
  • Francis Karioko Muruatetu & Another v Republic [2017] eKLR
  • Mutiso v. Republic, Crim. App. No. 17 of 2008 at 8, 24, 35 (July 30, 2010) (Kenya Ct. App.)
  • Kafantayeni v Attorney General [2007] MWHC 1
  • Attorney General v Kigula [2009] UGSC 6
  • Jabari v. Turkey, Judgment, Merits, App No 40035/98, ECHR 2000-VIII
  • Chitat Ng v. Canada, Comm. No. 469/1991, 49th Sess., U.N. Doc. CCPR/C/49/D/469/1991 (Nov. 5 1993), H.R. Comm.
  • Soering v. United Kingdom Judgment of 7 July 1989, Series A, Vol. 161
  • Norbert Zongo and Others v Burkina Faso (Reparations) (2015) 1 AfCLR 258
  • Lohé Issa Konaté v Burkina Faso (Reparations) (2016) 1 AfCLR 346
  • Reverend Christopher R. Mtikila v. Tanzania (Reparations)
  • Lucien Ikili Rashidi v United Republic of Tanzania (Application No. 009/2015)
  • Ingabire Victoire Umuhoza v Republic of Rwanda (Application No. 003/2014)
  • Loayza-Tamayo v. Peru, Merits, IACHR Series C No 33 [1997]
  • Del Rio Prada v. Spain, 42750/09 - Grand Chamber Judgment, [2013] ECHR 1004
  • Annette Pagnoulle (on behalf of Abdoulaye Mazou) v Cameroun (2000) AHRLR 57 (ACHPR 1997)
  • Communication No. 796/1998, Lloyd Reece v. Jamaica, Views under Article 5(4) of the Optional Protocol, 21 July 2003, U.N. Doc. CCPR/C/78/D/796/1998
  • Wilfred Onyango Nganyi and Others v Tanzania (Reparations) (Application No. 006/2013)
  • Minani Evarist v United Republic of Tanzania (Application No. 027/2015)
  • Diocles William v United Republic of Tanzania (Application No. 016/2016)
  • Dexter Eddie Johnson v Republic of Ghana (Application No. 016/2017)
  • Jean Claude Roger Gombert v Republic of Côte d'Ivoire (Application No. 038/2016)
  • Mgosi Mwita Makungu v United Republic of Tanzania (Application No. 006/2016)

Full judgment

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Rajabu and Others v Tanzania (Application No. 007-2015) [2019] AfCHPR 52 (28 November 2019)
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.