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Republic vs Mbushuu Alias Dominic

Mnyaroje & Kalai Sangula [1994]
TZHC 7 (22 June 1994)
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Citation

Republic vs Mbushuu Alias Dominic Mnyaroje & Kalai Sangula

[1994] TZHC 7 (22 June 1994) Copy

Media Neutral Citation

[1994] TZHC 7 Copy

Court

High Court of Tanzania

Law report citations

1994 TLR 146 (TZHC) Copy

Judges

Mwalusanya, J.

Judgment date

22 June 1994

Language

English

Type

Judgment
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Mwalusanya J:
I INTRODUCTION
The two accused Mbushuu alias Dominic Mnyaroje (first
accused) and Kalai s/o Sangula (second accused) were on 13
May 1994 convicted of murder contrary to s 196 of the Penal
Code cap 16 by this Court. They were supposed to get a death
G penalty by virtue of s 197 of the Penal Code, and the death
penalty is to be by hanging as per s 26 of the Penal Code.
Before the death penalty was imposed, counsel for the accused
(on dock brief) Mr Rweyongeza raised a point to the effect that
the death penalty is unconstitutional and so it should not be
imposed. Three points were raised concerning the
unconstitutionality of the death penalty - first H that it offends
the right to dignity in the execution of a sentence provided for
in article 13(6)(d) of the Constitution; secondly that the death
penalty is a cruel, inhuman and degrading punishment and
treatment prohibited by article 13(6)(e) of our Constitution; and
thirdly that the death I

penalty offends the right to life as provided in article 14 of our

Constitution. The A Attorney-General was duly served with
summons to appear as required by s 17A(2) of the Law Reform
(Fatal Accidents & Misc Provisions) Ordinance cap 360 as
amended by Act 27 of 1991. And Mr Mwambe learned State
Attorney duly appeared on behalf of the Attorney-General. B
At the outset I wish to point out some of the general principles
that will guide me in arriving at my conclusion at the end of the
day. First I take it that a constitution and in particular that part
of it which protects and entrenches fundamental rights and
freedoms to which all persons in the state are to be entitled, is
to be given a C generous and purposive construction - see the
decision of the Privy Council in AG of The Gambia v Momodue
Jobe (1) at 700 as per Lord Diplock. The Privy Council repeated
that doctrine in Minister of Home Affairs v Fisher (2) where Lord
Wilberforce at 329 stated: D
`The way to construe a constitution on the Westminster model
is to treat it not as if it were an Act of Parliament but as sui
generis, calling for principles of interpretation of its own,
suitable to its character, without necessary acceptance of all
the presumptions that are relevant to legislation of private law.
The Constitution calls for a generous interpretation avoiding
what has been called the "austerity of tabulated legalism",
suitable to give to individuals the full measure of the
fundamental rights and freedoms referred to.' E
And in the same vein, as counsel for the petitioners Mr
Rweyongeza has pointed out, the Court of Appeal of Tanzania
in the case of Kututia Ole Pumbun & anor v F AG (3) stated at
page 11 of the typed judgment (as per Kisanga JA) that; `Any
law that seeks to limit fundamental rights of the individual must
be construed strictly to make sure that it conforms with these
requirements, otherwise the guaranteed rights under the
Constitution may easily be rendered meaningless by the use of
G the derogative or claw-back clauses of that very same
Constitution.' And also relevant is the decision of the Tanzania
Court of Appeal in AG v Lesinoi s/o Ndeinai (4) which it held that
a constitutional provision should not be construed so as to
defeat its evident purpose, but rather so as to give it effective
operation. H
Connected to the above principles is the question of burden of
proof. I think there are two situations. First on whom does the
burden of proof lie to establish that there has been a violation
of a basic human right? Secondly, once it has been established
that there has been a violation of a basic human right, on
whom does I

A the burden of proof lie to show that the violation has been
saved by the Constitution? In the first situation the matter was
put clearly by the Privy Council in the case of Riley & others v
AG of Jamaica (5) at 480 that it was on the person attacking the
death penalty to be unconstitutional to prove on a balance of B
probabilities that it is a cruel, inhuman and degrading
punishment. The Supreme Court of Zimbabwe in the case of
Catholic Commission for Justice and Peace v AG & others (6), as
per Gubbay CJ stated that: `I consider that the burden of proof
that a fundamental right, of whatever nature, has been
breached is on him who asserts it. In relation to article 15(1) of
the Constitution the issue of whether an C individual has been
subjected to torture or to inhuman or degrading punishment is
essentially a matter of fact and ordinarily some evidence would
have to be adduced to support the contention. The respondent
is not obliged to do anything until a case is made out which
requires to be met.' I accept that to be the correct Dposition
even here in Tanzania. As regards the second situation the case
decided by the Court of Appeal of Trinidad and Tobago of AG v
Morgan (7) correctly stated on whom the burden lies where it
stated; `Where an Act is passed into law and E that Act is one
that restricts the rights and freedoms of an individual, in order
to impugn such an Act, all that the individual is required to do is
to show that one or more of his rights has been restricted.
Having done so, because of the expressed constitutional policy,
the burden is then shifted to the proponents of the Act to F
show that the provisions of the Act restricting such rights and
freedoms are reasonable restrictions. If the proponents of the
Act fail to discharge this burden, then a Court of competent
jurisdiction may pronounce against the validity of the impugned
Act.'
I agree with that proposition of law. That means the petitioner
has only an evidential burden of proof and the State has to
prove on a balance of probabilities G that the violation of the
basic human rights has been saved by the Constitution. That is
exactly what was decided also by the Court of Appeal of
Botswana in the case of The State v Petrus (8) at 722 as per
Aguda JA. The decision of the Court of Appeal of St Christopher
and Nevis in the case of AG v Edmund s/o Lawrence H (9) which
suggests that the petitioner has to establish a prima facie case
that the law impugned is unconstitutional before the onus shifts
to the Republic, was in my view wrongly decided. The petitioner
does not have to establish a prima facie case but just raise the
matter (evidential burden) that a particular piece of legislation
is ex-facie ultra vires the Constitution then the onus shifts to
the Republic. It is just similar to the defence of I
intoxication in the case of murder, where the burden of proving
that the accused A was capable of forming the intent necessary
to constitute the offence of murder always remains on the
prosecution, and such a burden is not discharged if the
probability emerges from the evidence (either from the
evidence of the prosecution or the accused) that the accused
was incapable of forming the intent - see the B decision of the
East African Court of Appeal in Kahekeya Buzoya v R (10). So
similarly the petitioner has just to raise the fact that a
particular piece of legislation violates a basic human right, and
he does not have to establish a prima facie case before the
burden of proof shifts to the Republic.
Finally I am of the considered view that international human
rights instruments and C court decisions of other countries
provide valuable information and guidance in interpreting the
basic human rights in our Constitution and so a judge in my
present situation should look to them and draw upon them in
seeking a solution. As the Chief Justice of Zimbabwe Gubbay CJ
has pointed out in (1990) D Commonwealth Law Bulletin vol 16
No 3 at 999: `A judicial decision has greater legitimacy and will
command more respect if it accords with international norms
that have been accepted by many countries, than if it is based
upon the parochial experience or foibles of a particular judge or
court.' E
And the Chief Justice of Tanzania Mr Justice Nyalali in the case
of AG v Lesinoi s/o Ndeinai (4) at 222 states that when basic
human rights are at stake or the question of interpretation of a
constitutional provisions arises then: `On a matter of this
nature it is always very helpful to consider what solutions to the
problems F other courts in other countries have found, since
basically human beings are the same though they may live
under different conditions.' Suffice to state here that the
Bangalore Principles (1988) pronounced by a distinguish
Judicial Colloquim and later adopted at Harare (1989), Banjul
(1990), Abuja (1991) and Balliol (1992) speak the same
message above expounded. Let it be noted that Nyalali CJ G
attended the Harare Judicial Colloquim, while Ramadhani JA
attended the Balliol (Oxford, England) Judicial Colloquim.
II THE RIGHT TO DIGNITY AND THE RIGHT AGAINST CRUEL,
INHUMAN AND DEGRADING PUNISHMENT AND TREATMENT H
The right to dignity under article 13(6)(d) and the right against
cruel, inhuman and degrading punishment and or treatment
under article 13(6)(e) will be discussed under one rubric. This is
because the right to dignity referred to in that provision is
concerned with the pre- I

A servation of dignity in the execution of a sentence. And it is

my view that a person who has been subjected to a degrading
treatment has also been deprived of his right to dignity.
I also wish to point out at the outset that a punishment is either
inherently cruel, inhuman and degrading or the mode or
manner of execution of the punishment is B cruel, inhuman and
degrading. That much was pointed out by the Court of Appeal
of Botswana in the case of The State v Petrus (8) and by the
Supreme Court of Zimbabwe in the case of Ndlovu v The State
(11). It is the case for the petitioners that the death penalty is
both inherently a cruel, inhuman and degrading C punishment
and that its mode or manner of execution is also cruel,
inhuman and degrading. And it is my finding that the term
`torture' used in our Constitution is the equivalent of the term
`cruel' that I will hereinafter use.
D And it will be important to remember that concepts such as
`cruel, inhuman, and degrading' are subject to evolving
standards of decency. They are not immutable. And that is
what we learn from the US Supreme Court in the cases of Trop
v Dulles (12) at 101; and Estelle v Gamble (13) at 102. Thus
punishment or treatment incompatible with the evolving
standards of decency that mark the E progress of a maturing
society or which involve the infliction of unnecessary suffering
is repulsive. What might not have been regarded as inhuman
decades ago may be revolting to the new sensitivities which
emerge as civilization advances.
F (a) The death penalty is inherently cruel it was submitted on
behalf of the two petitioners. It is said the process of execution
by hanging is particularly gruesome. One leading doctor
described the process as `slow, dirty, horrible, brutal,
uncivilized and unspeakably barbaric'. The prisoner is dropped
through a trapdoor, to eight and a half feet with a rope around
his neck. The intention is to G break his neck so that he dies
quickly. The length of the drop is determined on the basic of
such factors as body weight and muscularity or fatness of the
prisoner's neck. If the hangman gets it wrong and the prisoner
is dropped too far, the prisoner's head can be decapitated or
his face can be torn away. If the drop is too short then the neck
will not be broken but instead the prisoner will die of H
strangulation. There are many documented cases of botched
hangings in various countries including Tanzania. There are a
few cases in which hangings have been messed up and the
prison guards have had to pull on the prisoner's legs to speed
up his death or use a hammer to hit his head. The shock to the
system causes the prisoner to lose control over his bowels and
he will soil himself. I

In short the whole process is sordid and debasing. Not only is

the process A generally sordid and debasing, but also it is
generally brutalizing and thus defeats the very purpose it
claims to be pursuing. The brutalizing effect of executions has
been amply documented - see `Legal Homicide: Death as
Punishment in America from 1864 to 1982' (1984) 2nd ed at
271-335 by William J Bowers and G B R Pierce; and the book
`The effect of Executions is Brutalization, not Deterrence'
(1988) by William J Bowers, Kenneth A Haas and James A
Inciardi (editors).
It was argued for the petitioners that the State continues to
perpetuate such cruelty under the protection of the law. This
may legitimize the act in its legal sense, but certainly it does
nothing to mitigate its barbarity. The act of killing in itself is C
offensive: that it is done by the State does nothing to lesson its
offensiveness. It is furthermore done in cold blood with utter
cruelty. Now there are circumstances which lead up to the
killing which are said to provoke it. But this is not provocation
in the innate moral sense. When a private individual kills after
having been D provoked, this is regarded as mitigating
because, at the time of the killing, the killer's blood is heated
and human passions aroused. When the State kills, its blood is
cold, its detachment inhuman. Legitimizing State killings by law
thus takes killing out of the arena of perverse human behaviour
and elevates it into a principle. E In other words rather than
killing being deemed as heinous in itself - the result of
perversity - it becomes something which is acceptable if done
by the right people at the right time. The gates are then
opened for people to determine F whether they are the right
people and whether the time is right. The heinous nature of
murder becomes diluted in the public eye, the public becomes
accustomed to brutality, brutality enters the prevailing moral
ethos, becomes acceptable and regarded as an inevitable part
of human society. A prominent American lawyer, GClarence
Darrow, in his speeches `Attorney for the Damned' (1957)
Simon & Schuster, New York at 92 states: `We teach people to
kill and the State is the one that teaches them. If the State
wishes that its citizens respect human life, then the State
should stop killing. The greater the sanctity that the State pays
to life, the greater the feeling of sanctity the individual has for
life.' H
To dramatize it, consider its logical corollary. A woman is
beaten and raped. The perpetrator is apprehended. A State
rapist is then engaged to exact retribution on behalf of society.
He first beats the rapist in an identical manner to that in which
the woman was beaten and then proceeds to rape the rapist in
as identical a fashion I

A as possible, once or however many counts are involved. The

very analogy is distasteful. One may decide to create a raping
machine operated by the State rapist to remove some of these
distasteful aspects.
B It would nonetheless remain a punishment which should not
be countenanced by society. The reason is clear. Rape in itself
is brutal and abhorrent. It does not matter that it is done under
the cloak of any law. To have an official State rapist is debasing
and brutalizing to society. It gives an official stamp of approval
to degradation. Yet somehow, murder, which is worse, is
carried out under the cloak C of the law and is regarded as
acceptable. Murder, like rape, is in itself brutal and must be
condemned unequivocally for itself and not merely by reason of
the fact that it was not done under the sanction of law. This is
why state killing is debasing and brutalizing. It seeks to
legitimize brutality; which can never be anything other than
brutality. That was part of the argument on behalf of the two
petitioners. D
Moreover it was argued on behalf of the petitioners that the
State by conduct admits that the death penalty is sordid and
debasing. In the past hangings were done publicly. When
capital punishment was a public spectacle it became linked in E
the minds of the public as part and parcel of the crime. It was
as if the punishment was thought to equal, if not to exceed, in
savagery, the crime itself, to accustom the spectators to a
ferocity from which one wished to divert them. At the end of
the day the tortured criminal became an object of pity or
admiration if not a F hero by the spectators. The perception
that the state was brutal had to be minimized. It was achieved
by making the execution the most hidden part of the penal
process. The actual execution is carried out under a seal of
secrecy and executions are bureaucratically concealed. The
concealment minimizes only and does not remove the
debasement and brutalization. The concealment, it was G
submitted, manifests the State's guilty conscience.
It has also been argued that if death penalty is to stay, then
other better methods of killing than hanging have to be invoked
or devised. There has been suggested the use of the electric
chair or a lethal injection or gas chamber as used in the USA H .
These methods are less cruel than hanging. The Supreme Court
of Zimbabwe in the case of Chileya v State (14) was about to
deliver a judgment to the effect that death penalty by hanging
was cruel and debasing punishment, and so the State should
devise a better method of killing.
However the Court was pre-empted by the government which I

passed an amendment to the Constitution to the effect that

`hanging' was A constitutional. But why use `hanging' when
there are other less cruel methods of killing?
(b) Then it is argued that the mode or manner of execution of
the death penalty is objectionable on two grounds - the long
delay in carrying out the execution and secondly, the horrible
conditions under which the people on death row are kept. B
The first point about the long delay in carrying out the
execution, it is argued causes untold mental anguish to the
prisoners on death row. Capital punishment, it should be
pointed out, is a euphemism for official killing by the State.
However, C unlike most murders, the process leading up to the
killing is a long drawn out one. From the time the person is
sentenced to death he is immediately installed on death row in
a blue uniform. He is kept in virtual solitary confinement in an
individual cell which is so small that he can touch both walls
with his arms outstretched - see s 71 of the Prisons Act 34 of
1967 and also regulation 21(2) D and regulation 33 of the
Prisons (Prison Management) Regulations GN No 19 of 1968.
The only reading material, if any, is the bible or other religious
tracts. Every night all his clothes are taken away and he is kept
naked in his cell until the next morning. The light in his cell is
never turned off and he is kept under surveillance E by the
guards. Some guards take delight in taunting the prisoners,
constantly reminding them of their impending fate and telling
them gruesome stories of executions which have gone wrong.
From the time the High Court tells a murderer that he is to
hang, in the Tanzanian context he will often wait in suspense
for more F than four years before he is finally taken to the
gallows. I was referred to an article in the Business Times
newspaper by Mr Robert Rweyemamu (with a legal touch
column) of 2 April 1993, and counsel for the petitioners Mr
Rweyongeza said that it reveals aptly the long delays of
carrying out executions in Tanzania. The G long agonizing wait
before the final decision is taken and the shorter wait for the
sentence to be carried out inevitably causes appreciable
mental suffering. This pre-execution period has been referred
to as a period in which the prisoner suffers a living death or hell
on earth. He fearfully broods on his fate and suffers great
anguish and uncertainty. H
This often leads to pronounced mental deterioration. Inordinate
delay before execution thus constitutes a form of prolonged
mental torture. For a detailed discussion of and reference to
the literature on the mental effects upon prisoners on death
row - see pp 12-15 of the cyclostyled copy of the judgment of
the Supreme Court of I

A Zimbabwe in the case of Catholic Commission for Justice and

Peace v AG and others (6).
Then there was the argument presented about the horrible
condition in the condemned sections of all prisons in Tanzania. I
was invited under s 59 and s 122 of the Evidence Act 6 of
1967 to take judicial notice of all the Prison Regulations B GN
No 13 of 1968, GN No 18 of 1968 and GN No 19 of 1968 and
the reports of the Visiting Justices to prison. For example the
amount of diet and the amount of exercise allotted to the
prisoner on a death row is at the discretion of the Principal
Commissioner of Prisons and is generally minimal see
regulation 33 of the GN No 19 of 1968. It is common knowledge
that the prisoners are kept in tiny cells without C access to
washing, and open air and they cannot exercise effectively.
Because of poor preparation conditions the diet provided is
extremely poor and the quantity small. In short the prisoners on
death row are treated as non-persons whose rights are subject
to the whim of the supervising administration at the prison
concerned. For similar conditions of prison in Zimbabwe, the
Supreme Court there D in the case of Conjwayo v Minister of
Justice and Director of Prisons (30) held that these horrible
conditions constituted a cruel, inhuman and degrading
punishment.
E On concluding this part, it has been contended on behalf of
the petitioners, that the emerging consensus of values in the
civilized international community as evidenced by the UN
human rights instruments, the decision of other courts and the
writings of leading academics is that the death penalty is a
cruel, inhuman and F degrading punishment. It was pointed out
that article 6(6) of the International Covenant on Civil and
Political Rights (1966) (which Tanzania has ratified) states:
`Nothing in this article shall be invoked to delay or to prevent
the abolition of capital punishment by any State Party to the
present Covenant' which indicates that the G parties to the
Covenant have agreed to eventually abolish the death penalty.
And the UN Commission on Human Rights at its 1989 session in
Genera agreed by consensus that the death penalty was a
cruel, inhuman and degrading punishment, and agreed to
forward to the UN General Assembly a draft Second H Optional
Protocol to the International Covenant on Civil and Political
Rights aimed at abolishing the death penalty. Indeed the
Second Optional Protocol to the International Covenant on Civil
and Political Rights was passed by the UN General Assembly in
1989 and many member states have started ratifying it, and no
doubt Tanzania which has a great reputation of respecting
human rights will I

soon ratify it. Amnesty International, vide its Declaration of

Stockholm of 1977, with A delegates of about 200 from Africa,
Asia, Europe, Middle East, North and South America and the
Carribean Region, declared that the death penalty was an
inhuman, degrading and cruel punishment. The Nyalali
Commission in its authoritative Report Book III at 25 held that
the death penalty was an inhuman and B cruel punishment and
so should be abolished. Then we have the Council of Europe
which in its Protocol 6 to the Convention for the Protection of
Human Rights and Freedoms (1950) abolished the death
penalty in 1983 for all member countries of the Council of
Europe because they had found it to be a cruel and inhuman
punishment. And the European Court of Human Rights in the
Soering C case (15) held that the death penalty according to
the evolving standards of Western Europe was a cruel and
inhuman punishment. The following countries of the
Commonwealth have abolished the death penalty: Namibia,
The Gambia, D Kiribati, New Zealand, Solomon Islands, Tuvalu
and Vanuatu, Australia and South Africa (soon to become a
Commonwealth member). Some of the decisions of other
countries which have declared the death penalty to be a cruel
punishment are: USA in Furman v Georgia (16); India we have
Javed Ahmed v The State of Maharashtra (17) and Madhu
Mehta v Union of India (18); in West Indies we have De Freitas v
Benny (19) and Riley v AG of Jamaica (5); and two cases from E
Nigeria - Bello v AG of Oyo State (20) and Omwuka v The State
(21) and from Zimbabwe the famous case cited above of The
Catholic Commission for Justice and Peace v AG (6). F
The arguments for the Republic in reply were made by the
State Attorney Mr Mwambe. Mr Mwambe conceded that the
prisoners do suffer some torture in the process of hanging, but
countered by stating that the torture the victims of murderers
encounter is much more. And since the murderers are getting a
just desert and what they deserve, then they cannot complain
about the torture or loss of dignity, he submitted. G
Concerning the delay in carrying out the execution for years on
end, Mr Mwambe submitted that it is not a torture but a
blessing in disguise to the said prisoners. He said that in fact
the prisoners are quite happy for the delay, as they are given
many more years to live which they don't deserve. H
Concerning the horrible conditions in the death cells, all Mr
Mwambe could say was that the prisoners are treated in
accordance with what the Tanzanian's state of economy can
afford. He could not tell if the conditions in prison are horrible
or not. I

A And for the Republic it can be argued that the remedy to the
above named complaints about torture in hanging, delay in
execution and horrible conditions in the death cells, has been
given in other countries, although Mr Mwambe was not aware
of this. It could be contended that the solution to the
complaints raised by B the prisoners is not the abolition of the
death penalty, but to apply to court to give an order to the
Government to rectify those matters. The Chief Justice of the
then Southern Rhodesia Beadle CJ in the case of Dhlamini and
others v Carter (22) said:
C `If during the course of time of serving a sentence of
imprisonment a prisoner is subjected to inhuman or degrading
treatment, the court, in the exercise of its powers given to it by
the Constitution, would see that the treatment was stopped but
that would not entitle this court to sit as a Court of Appeal, as it
were, on the original sentence. The inhuman treatment
complained of in the instant case is the delay in carrying out
the sentence. If, as I have already D found, `treatment' is
distinct from punishment and if the inhumanity of the
treatment cannot taint the lawfulness of an otherwise lawful
punishment, then the only remedy an accused who had been
sentenced to death has, is to ask for an order that the delay
should stop, something which no person sentenced to death is
ever likely to do.' E
There is also another point in favour of the Republic to the
effect there is no consensus of values in the so-called civilized
society that the death penalty is a cruel, inhuman and
degrading punishment. It has been pointed out that the F
decisions of other courts in different countries are not uniform.
For example in the USA many States retain the death penalty.
In India in such cases as AG v Lachma Devi (23) and Bachan
Singh v State of Punjab (24) the Supreme Court there held that
the death penalty by hanging was not a cruel, inhuman and
degrading punishment. And as long ago as 1961 the UN
General Assembly in its Resolution G No 32 of 1961 declared
that the death penalty was not unlawful but that it should be
reserved for only very serious crimes like murder. Even article
6(2) of the International Covenant and Civil and Political Rights
(1966) does not prohibit member countries imposing the death
penalty for serious crimes like murder. What is more is that the
UN Convention against Torture and other Cruel, Inhuman H or
Degrading Treatment and or Punishment of 1987 did not
prohibit the imposition of the death penalty if it is prescribed by
law. That is why the majority of the 161 members of the UNO
retain the death penalty - 100 countries retain it and only 35
countries have abolished it - see Amnesty Interna- I

tional Newsletter May 1989 at 3. And in the Commonwealth 46

countries out of 53 A retain the death penalty and only 7 have
abolished it - see the Commonwealth Lawyer Journal of March
1993 at 71-76.
It has been submitted elsewhere that the argument that capital
punishment has no place in a civilized society, presupposes
that only one set of values (liberal B Western values) is
`civilized'. They exclude the values of the Third World including
countries of the East. In any case even in the West there is no
unanimity about the desirability of abolishing capital
punishment. In China and other countries of the East where
Confucian values prevail (eg Singapore, Taiwan) capital
punishment is C accepted without hesitation. The Western
liberal values do not represent what is truly a `civilized society'
but its admirers merely confuse it with technological
advancement. It may be true to say that technology has
advanced considerably in the last few decades, but it is highly
debatable whether civilization has advanced much, if at all.
Civilization in fact is going down particularly in the decadent
West. D We see in the West a decline in values to the point
where one wonders if most people have any beliefs or morals
at all: an all-absorbing selfishness and lack of concern for
others, crass materialism, an increasing disregard for the law,
the E commission of crimes of a most revolting nature such as
were unimaginable a few years ago, the apparent acceptance
of sexual immorality and promiscuity as alternative lifestyles,
proliferation of drugs, easy divorce and abortion, and
devaluation of the family unit etc, the list is depressingly
endless. Alongside these F signs of moral degeneration are the
continuing tragedies of wars, refugees and increasing poverty.
These are just the tip of an iceberg of the flaws in a modern
society, and so the talk of the values of a `civilized society' is
mere trash and ironical at best.
It was argued for the Republic that what should therefore be
considered in G determining whether the death penalty is a
cruel, inhuman and degrading punishment is not the values of a
nebulous `civilized society' but the contemporary norms
operative in Tanzania and the sensitivities of its people. The
question should be whether capital punishment, with what it
entails, is acceptable in a H Tanzanian society. The decisions of
other courts in other countries and the writings of leading
academics are questionable because they do not take into
account the sensitivities of the people of Tanzania. Therefore
the views of other courts and leading academics are very much
out of touch with what an ordinary Tanzanian feels on the
matter. If newspaper reports are anything to go by, it would be
seen I

A that the majority of Tanzanians do not regard the death

penalty as a cruel and degrading punishment. Although there
has been no public opinion survey, it can be asserted with
some confidence that the majority of the people of Tanzania
are not against capital punishment and that the abolitionists
are a minority group. In a democratic state like Tanzania, the
views of the majority should be respected. B This is because for
any system of justice to work, it must be credible in the eyes of
the people of the country concerned. For this reason the court's
and Parliament's attitudes should not be radically different from
those of society as a whole. It is C very dangerous in fact to
allow penal policy to jump too far ahead of the population,
since it will result in the loss of public confidence in the criminal
justice system and concomitantly to the alienation of the public
from it. There is abundant evidence that members of the
Tanzanian public often resort to mob justice in a situation in D
which they feel that the criminal justice system and/or its
agencies, lack the competence or the will to protect them
against crimes. Therefore no civilized community should
provoke such a situation in the name of a so-called
`progressive' penal policy.
I will start my decision with the point raised that the remedy for
the petitioner's EI complaints is for them to apply to court so
that it may order the government to stop the ugly aspects of
the death penalty like delay, horrible conditions of prison and
hanging. The Republic's arguments rests on the decision of
Beadle CJ in the case of South Rhodesia of Dhlamini & others v
Carter (22). In my considered view the F views of Beadle CJ
were aptly answered by Gubbay CJ in the later case of The
Catholic Commission for Justice and Peace v AG of Zimbabwe
(6). It w

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