Tanzania May Retain Capital Punishment Despite Human Rights’ Pressure To Abolish It

Capital punishment, also called death penalty, has been debated in many parts of the world and at different times.

In Tanzania, there has been also a debate on whether to retain or abolish capital punishment as more people are becoming aware of the inalienable right to life and other fundamental freedoms that should be enjoyed by all humans, thanks to human rights activists and abolitionists.

According to the Tanzanian Penal Code, murder and treason are punishable by death [Penal Code, Cap 16 (Revised Edition 2002) sections 197 and 39(1)(b) respectively].

By the end of last year, Tanzania was among the 62 retentionist countries worldwide and among the 20 African countries believed to have not executed it for at least 10 years.  By January this year, 92 countries (more than two thirds of the countries in the world, according to Amnesty International) had abolished capital punishment in their jurisdictions.

Until this month, a total of 15 African countries have so far abolished capital punishment for all crimes. Among the recent abolitionists is Rwanda, which abolished capital punishment on July 25 last year.

The 1994-Rwandan genocide left over 1 million Rwandese massacred, while hundreds of thousands sought refuge from Tanzania and others from neighbouring countries. Despite that, Rwanda has opted to be abolitionist. However, Rwanda could have decided to be retentionist if people wanted a tit-for-tat approach. Gabon became abolitionist on September 14, 2007.

In May 2006, Tanzanian Attorney General’s Chambers in Dar es Salaam asked the Law Reform Commission to seek public opinion on this problematic punishment. Since then, the Law Reform Commission embarked on a public inquiry that involved a cross-section of the population in Tanzania Mainland and Zanzibar.

It is now finalising a report that will be presented to Justice and Constitutional Affairs Minister Mathias Chikawe, who will also hand it to the responsible authorities for careful scrutiny and action.

However, a weekly English paper reported last Sunday that a broad cross-section of opinion preferred retention of capital punishment to abolishing it.

The news was a major disappointment and a setback to Tanzanian human rights activists and abolitionists who have been relentlessly lobbying for abolition of capital punishment and other discriminatory and oppressive laws in the country.

They say the Law Reform Commission had taken a wrong public approach and so it was likely to get disappointing results. The right approach would be first to sensitise members of the public on the pros and cons of capital punishment in the context of global developments with a view to seeking well informed opinion rather than instinctive public reaction as is often the case in mob justice.

I, too, think what the Law Reform Commission has so far gathered is rather instinctive public reaction and not well informed public opinion about capital punishment. This is because when seeking public opinion about a certain problematic issue like capital punishment, the best way is to employ a participatory and informative approach rather than just filling in the questionnaire.

It is like when you ask people to give their opinion about and what they think of the right thing is to do if a thief is found stealing property from a house; they will certainly say, “Kill them for if you take them to the police station, you will see them free the following morning after they have bribed the police and they will make sure you grievously suffer if you happen to testify against them.”

Thus, structural corruption and mismanagement of national resources have made many people lose confidence in good governance, in public order institutions and in the administration of justice. So, whenever a crime occurs, instinctively people think the best way to deal with it is to take the law into their own hands – mob justice, which actually does more harm than justice.

We have witnessed some cruel mob justice incidents (instinctive reaction) where some suspects have been beaten and burnt to death simply because they stole a mobile phone, a chicken, a pair of shoes or someone jokingly shouted at them, “thief, thief” without really meaning it and were killed by the so-called an ‘angry mob’.

I firmly believe that, when people are sensitised to behave as a reasonable person would do, they will eventually find that instinctive reaction is not the best option to respond to a particular situation but a more reasonable response is.

So, when seeking public opinion, we should first know what we want to achieve: is it instinctive reaction that could fit well in revenge cases (a tit-for-tat situation) or well informed opinion?

In my opinion, it is the well informed opinion that can help us reach a more probable end result. Therefore, capital punishment is essentially cruel and inhumane to be practised by rational and civilised citizens.

The following six points illustrate better the point I am making. First, there is no justification whatsoever for executing capital punishment. Second, given apparent weaknesses in our criminal justice system, which basically shows that humans are corruptible and can err, then it is likely that innocent civilians and intended offenders will equally be executed wherever capital punishment is applied.

Third, since capital punishment befalls both innocent civilians and actual offenders alike, then civilized and well informed people cannot rationally approve it. Fourth, even what capital punishment is intended to achieve does not in practice achieve it.

Fifth, where a particular punishment affects both the innocent and offenders irrevocably and where it is possible to apply an alternative punishment where the aggrieved party is able to demand remedies for being wrongly punished, then the latter does more justice than the former, as it serves the purpose of 1) reforming the offender and 2) where the innocent party has wrongly been convicted then he or she can seek remedies.

Sixth, since capital punishment denies actual offenders opportunity to reform and when executed, it cannot be revoked and since the manner in which it is executed is itself inhumane and cruel, then it should be abolished and be replaced by a more reasonable punishment like life imprisonment.

In the context of Tanzania, the fact that the majority of interviewed people prefer capital punishment is not a sufficient justification for retaining it because numbers are never a ground for determining what is right or wrong, just or not just. For instance, if something is fundamentally wrong the majority number cannot make it right as equally the minority number cannot make what is right less right simply on the basis of being a small number. So, something will remain just or not just whether the majority or minority vote for it or not.

As there are other means of punishment we don’t have to cling to capital punishment, which is fundamentally against humanity and civilization.

To retain capital punishment implies to consciously allow innocent civilians to be executed in cases where evidence is cooked in favour of those in power or the affluent class. It is also to consciously deny our fellow humans an opportunity to reform and reintegrate into their own communities.