international treaties on human rights and the death penalty:
International Covenant on Civil and Political Rights
Convention on the Rights of the Child
Statute of the International Criminal Court (which excludes the death penalty)
Tanzania still retains the death penalty as one of the punishments under the Penal Code and the National Defence Act. There are three offences punishable by the death sentence: murder, treason and misconduct of commanders or any military service man in the presence of an enemy. The provision of death penalty for conviction of murder is a mandatory sentence.
The death penalty is only passed by the High Court. Free legal aid service is provided to accused persons facing charges that attract death penalty to ensure that in the process of trial the accused is legally represented. A person sentenced to death by the High Court has an automatic right of appeal to the Court of Appeal which is the highest Court in Tanzania. Once a death sentence is passed and confirmed by the Court of Appeal there is an Advisory Committee on the prerogative of mercy which advises the President with regard to the execution of the sentence. In advising the President, the Committee considers the views of the relatives of both the victim and the convict, including the convict’s own petition for mercy to the Committee. In addition to the Committee, also the sentencing Court is requested to submit a written report on the case to the President. These mechanisms mostly provide a safeguard against arbitrary execution of the death penalty.
In Tanzania there is an ongoing Constitutional Review process. According to the final draft for the proposed new constitution, approved by the Constituent Assembly (CA) in October 2014, “Every one has the right to life and to the protection of his life by the State and the society in accordance with the law.” Nevertheless, the death penalty remains as a constitutional provision. In September 2013, then Minister of Justice and Constitution Affairs Mathias Chikawe proposed that the death penalty be removed in the new Constitution. He said life imprisonment should be an alternative to enable criminals to change their behaviour. Though the government was scheduled to conduct a nationwide referendum on the proposed constitution in April 2015, the National Election Commission (NEC) that month announced an indefinite delay of the poll, citing an inability to register citizens using a new biometric system in time for the vote.
No execution has been recorded in the country over the past two decades. The de facto moratorium is exercised under the President’s prerogative. Since 1994, hundreds of death sentences were commuted to life imprisonment by the President.
Records collected by the Legal and Human Rights Center (LHRC) show that since independence in 1961, 238 people (232 men and 6 women) were executed after being convicted of murder. The last executions were carried out in 1994, when 21 men were hanged.
According to information obtained from Tanzania Prison Services by the LHRC, in 2015 there were a total of 472 people under sentence of death (452 men and 20 women) and 410 in 2014. Out of these 472 convicts, 228 were awaiting the execution of their sentence after completion of legal requirements. The remaining 244 prisoners were still waiting for their appeal to be heard and determined. In 2016 there were 465 death row inmates according the Ministry of Justice. LHRC, commenting the declaration by the President not to sign death warrants, made a reference to 491 people on death row.
On 11 September 2017, Tanzanian President John Magufuli has stated clearly that he cannot assent to an execution of the death penalty which is legal in the East African country.
He spoke during the swearing in of Chief Justice Ibrahim Hamis Juma in Dar es Salaam, that he cannot make that “difficult decision” on the execution of convicted murderers, in reference to the 491 – 20 of whom are women – on death row. “I am aware of the difficulties in implementing such sentences, so I am telling the courts not to submit to me the list of names of the prisoners who are in line to be hanged to death […] I am told there are many people waiting to be executed, but please don’t bring the list of those people to me. As politicians, we are not happy about carrying out such death sentences,” he said.
According to the Legal Aid Clinic of LHRC, the presidential support will enable lawyers to challenge the mandatory death penalty before the High Court. Even though it is impossible to know with certainty how judges will react to the President’ statement, the judiciary will probably concur with the executive branch according to local observers. Indeed, because judges are appointed by the President, a strong dissent from the judiciary seems unlikely. “Now is the right time to engage with the Attorney General and to advocate for mass commutation. The signature of the United Nations Moratorium on the Death Penalty would be a first step” said Fulgence TM, head of the Clinic.
The President Magufuli made the declaration after the Parliamentary Committee on Constitution and Legal Affairs has advised the government, on 4 April 2017, to review death penalty laws to allow death row prisoners who have been in prison for a long time to have their sentences commuted to life imprisonment. The Committee Chairman, Mr Rashid Shangazi, said that the review of the laws should also consider putting time limit for execution of the punishment and allow it to automatically change to life imprisonment if not implemented.
On 9 December 2017, President John Magufuli pardoned some 61 death row inmates. He also pardoned other 8,157 prisoners who were convicted of various offences.
The "war on terror"
According to Dr Magufuli, those who were jailed for criminal offences will not be part of the president's clemency. The President granted mercy as he addressed the nation during celebrations to mark the 56th independence anniversary of Tanganyika at Jamhuri Stadium in Dodoma on December 9. "Some of those prisoners who have been charged for death sentence are aged above 80 years. They have been in prison for over 45 years. In accordance with Section 45 of the Constitution, I want them to be released today," he said. Tanzania has over 39,000 prisoners, out of whom 2,000 are female and 37,000 are male, according to Dr Magufuli.
On 6 November 2017, the Office of the Director of Public Prosecutions (DPP) in Tanzania announced the death sentence on 34 people accused of killing albinos in the country. According Beatrice Mpembo, a DPP lawyer, the convictions stemmed from the killings that occurred between 2006 and 2016.
In 2017, at least 4 men were sentenced to death.
On 20 May 2016, with the publication on the Gazette of the United Republic of Tanzania No.21. Vol.97, entered into effect the Prevention of Terrorism Act (CAP 19) as amended through the Written Laws (Miscellaneous Amendment) Act, No. 2 of 2016. Death penalty was added as a penalty for terrorism where the act causes death, referring to section 197 of the Penal Code, CAP 16, which provides for death penalty.The death penalty on women
In Tanzania there would be 20 women on death row out of a total of 491. Since the indepenedence, 6 women have been sent to the gallows out of a total of 238 executed for murder. United Nations
On 9 May 2016, Tanzania was reviewed under the Universal Periodic Review (UPR) at the UN Human Rights Council. It did not support recommendations to establish an official moratorium on executions, abolish the death penalty and ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), aiming at the abolition of the death penalty. The delegation said the death penalty was a lawful sanction. It added that measures, including mandatory representation and fair trial guarantees, were in place to protect the rights of suspects charged with capital offences. No position could be offered on the issue of a moratorium on the death penalty, as that was a policy issue.
On 19 December 2016, Tanzania abstained from the Resolution on a Moratorium on the Use of the Death Penalty at the UN General Assembly such as in 2007, 2008, 2010, 2012 and 2014.