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Lameck Bazil v. Tanz. (Afr. Ct. H.P.R.)

Published online by Cambridge University Press:  30 December 2025

Salvatore Caserta  and
Mikael Rask Madsen
Salvatore Caserta
Affiliation:
Salvatore Caserta is Associate Professor at iCourts, Faculty of Law, University of Copenhagen, Denmark
Mikael Rask Madsen
Affiliation:
Mikael Rask Madsen is Professor of Law and Director of iCourts, Faculty of Law, University of Copenhagen, Denmark
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Extract

In the judgment Lameck Bazil v. United Republic of Tanzania, the African Court on Human and Peoples’ Rights (ACtHPR) dealt with the application of the death penalty in Tanzania.1

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International Legal Documents
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International Legal Materials , Volume 64 , Issue 6 , December 2025 , pp. 1413 - 1431
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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (https://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution and reproduction, provided the original article is properly cited.
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© The Author(s), 2025. Published by Cambridge University Press on behalf of American Society of International Law

Case Summary and Facts

In the judgment Lameck Bazil v. United Republic of Tanzania, the African Court on Human and Peoples’ Rights (ACtHPR) dealt with the application of the death penalty in Tanzania.Footnote 1

Lameck Bazil and his now deceased father-in-law were convicted of murder and sentenced to death by hanging by the Tanzanian High Court on October 27, 2016, a decision upheld by the Court of Appeal of Tanzania on September 4, 2018 (¶¶ 3–5). At the ACtHPR, Bazil challenged the fairness of his trial, alleging violations of Article 7 of the African Charter on Human and Peoples’ Rights (ACHPR) due to inconsistencies in witness testimonies and insufficient proof of guilt (¶ 6). Tanzania failed to respond substantively to the application despite multiple notices, prompting the Court to deliver the judgment in default (¶¶ 7–10 and 13-18).Footnote 2

Legal Issues and Judicial Findings

The Court did not find that Tanzania had violated Bazil’s right to a fair trial under Article 7. For the Court, evidence showed that domestic judicial authorities had sufficiently considered and addressed evidentiary discrepancies in the case, and the case did not constitute a miscarriage of justice (¶¶ 46–54).

Yet, the Court found Tanzania in violation of Articles 4 and 5 of the ACHPR, which respectively protect the right to life and the right to dignity. On Article 4, the Court ruled that the imposition of the mandatory the death penalty is an infringement of the right to life, as judicial discretion was absent from the sentencing decision (¶¶ 55–56). On Article 5, the Court ruled that the execution method—death by hanging—was inherently degrading (¶¶ 57–58).

Finally, the Court ordered remedial measures, which included repealing the mandatory death penalty provisions in Tanzanian law, vacating Bazil’s death sentence, resentencing Bazil with judicial discretion, and removing hanging as an execution method (¶¶ 65–69).

Historical Roots of the Death Penalty for Murder in Africa

The mandatory death penalty for murder has historically been part of penal systems across Africa. In many postcolonial states, including Tanzania, legal regimes were inherited from British colonial rule and maintained the mandatory death sentence for murder.Footnote 3 The retention of the death penalty for murder was justified on grounds of deterrence, retribution, and protection of society. Attitudes toward capital punishment have often been shaped by deeply ingrained beliefs about its moral and utilitarian efficacy.Footnote 4

Nevertheless, international human rights law has gradually moved to view the death penalty—especially when mandatory—as incompatible with the right to life and dignity.Footnote 5 Key global institutions, such as the United Nations Human Rights Committee, have stated that the death penalty cannot be reconciled with full respect for the right to life and that its abolition is necessary for the enhancement of human dignity and the development of human rights.Footnote 6 Since 2007, the United Nations General Assembly has adopted a series of resolutions calling for a moratorium on the use of the death penalty. Most recently, A/RES/79/179, adopted in December 2024, asked states to establish a moratorium on executions with a view to abolishing the death penalty.

In Africa, these shifts are reflected in emerging jurisprudence from national and international courts as well as in a gradual decline in executions.Footnote 7 For instance, in 1999 the African Commission on Human and Peoples’ Rights (ACmHPR) called for the abolition of the death penalty, citing its incompatibility with the ACHPR.Footnote 8 Yet, despite these important developments, several African states continue to retain and apply capital punishment. In this light, Bazil comes at a critical historical juncture.

Comparative Analysis

Bazil follows established precedents within the Court itself, such as Ally Rajabu and Others v. Tanzania,Footnote 9 where the Court criticized the mandatory death penalty for its rigidity and violation of fundamental rights under Articles 4 and 5 of the ACHPR.

The ruling further reflects global trends in jurisprudence. With regard to the mandatory nature of the death penalty, a leading precedent was set by the Privy Council in its decision Reyes v. The Queen,Footnote 10 where it was established that judicial discretion is crucial to avoid arbitrary deprivation of life. Similarly important is Boyce & Joseph v. Barbados,Footnote 11 in which the Privy Council argued that the mandatory death sentences constitute inhuman and degrading treatment and violate the right to a fair trial.Footnote 12

The Caribbean Court of Justice (CCJ) has also touched upon similar matters. For instance, in The Attorney General of Barbados v. Jeffrey Joseph and Lennox Ricardo Boyce,Footnote 13 the Court addressed the issue of mandatory death sentences under Barbadian law, holding that the Constitution of Barbados allowed for the death penalty, but required individualized sentencing (¶ 88). The Court further emphasized that the state must balance societal retribution with the preservation of constitutional guarantees of fair trial and due process (¶ 93).Footnote 14

Beyond the Caribbean region, Bazil reflects rulings such as Mithu v. State of Punjab,Footnote 15 where mandatory death sentences were declared unconstitutional (¶ 22) by the Supreme Court of India. Likewise, the Supreme Court of Kenya in Francis Karioko Muruatetu & Another v. Republic ruled against mandatory death sentences for similar reasons.Footnote 16 Finally, in Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago, the Inter-American Court of Human Rights also ruled against mandatory death penalties for the same reasons.Footnote 17

As to execution methods, the ACtHPR’s condemnation of hanging resonates with existing jurisprudence. Broadly, Bazil could be said to echo the European Court of Human Rights’ landmark decision in Soering v. UK, where the Court ruled that extraditing a person to face execution in the United States, combined with the mental suffering of prolonged death row incarceration, would breach Article 3 of the European Convention on Human Rights (¶ 104).Footnote 18

Bazil also resonates with the principles established by the Privy Council in Pratt & Morgan v. Attorney General of Jamaica, where the court determined that prolonged periods on death row constituted cruel, inhuman, and degrading treatment.Footnote 19

African State Practice

In recent years, several African nations have taken decisive steps toward ending the death penalty in law or in practice—for example, Rwanda in 2007 and Burundi in 2009. Sierra Leone and the Central African Republic have recently repealed capital punishment from their penal codes.Footnote 20

South Africa’s Constitutional Court famously declared the death penalty unconstitutional in S v. Makwanyane and Another,Footnote 21 a decision that continues to be cited as a globally leading authority on the incompatibility of capital punishment with human rights.

In contrast, countries such as Egypt, Nigeria, Botswana, and Tanzania retain the death penalty and continue to sentence individuals to death. While actual executions are rare, the legal retention of capital punishment creates uncertainty and fear. In Nigeria, several hundred inmates remain on death row, and execution warrants have occasionally been signed. Botswana remains one of few African countries that regularly carries out executions.

Reform efforts are also evident in some countries. Following the Muruatetu decision cited above, Kenya’s judiciary initiated sentencing reviews for prisoners previously subjected to mandatory death sentences.Footnote 22 Malawi’s judiciary has overseen a landmark resentencing project following a 2007 decision invalidating mandatory capital punishment.Footnote 23 In Uganda, jurisprudence has been moving away from the automatic imposition of the death penalty,Footnote 24 but the 2023 Anti-Homosexuality Act introduced the death penalty for the crime of “aggravated homosexuality.”Footnote 25

Conclusion

The Bazil judgment is a critical reaffirmation of the foundational principles of human dignity and judicial discretion. Its insistence on individualized sentencing not only challenges the arbitrariness of the mandatory death penalty, but also reasserts the judiciary’s role as a safeguard against punitive excesses. Despite this, Bazil—like the rest of the ACtHPR’s jurisprudence on the death penalty to date—remains narrowly framed around the illegality of the mandatory death penalty and the degrading nature of execution by hanging. What remains to be established is a wholesale prohibition of capital punishment under the ACHPR. In this regard, in November 2024 the Pan African Lawyers Union submitted a request for an advisory opinion at the Court asking whether the death penalty per se violates the Charter. In this sense, Bazil may well be remembered not just for what it decided, but for paving the road toward the Court’s eventual abolition of the death penalty in Africa—a move that would be legally groundbreaking, but politically fraught, especially given Tanzania’s open hostility toward the Court and the entrenched resistance of other retentionist states.

Lameck Bazil v. Tanz. (Afr. Ct. H.P.R.)

* This text was reproduced and reformatted from the text available on the African Court of Human and Peoples’ Rights website (visited October 2, 2025), https://www.african-court.org/cpmt/details-case/0272018.

THE MATTER OF

LAMECK BAZIL V.

UNITED REPUBLIC OF TANZANIA

APPLICATION NO. 027/2018

JUDGMENT

13 NOVEMBER 2024

TABLE OF CONTENTS

TABLE OF CONTENTS ………. 1417

I. THE PARTIES ….….…. 1418

II. SUBJECT MATTER OF THE APPLICATION ….……. 1419

A. Facts of the matter ……1419

B. Alleged violations ………. 1419

III. SUMMARY OF THE PROCEDURE BEFORE THE COURT ………. 1419

VI. PRAYERS OF THE PARTIES ………. 1419

V. THE DEFAULT OF THE RESPONDENT STATE ………. 1419

VI. JURISDICTION .………. 1420

VII. ADMISSIBILITY ………. 1420

VIII. MERITS ………. 1421

A. Alleged violation of the right to have one’s cause heard ………. 1422

B. Violation of the right to life ………. 1422

C. Violation of the right to dignity ………. 1422

IX. REPARATIONS ………. 1423

X. COSTS ….….…. 1423

XI. OPERATIVE PART ………. 1424

The Court composed of: Modibo SACKO, Vice President, Rafaâ BEN ACHOUR, Suzanne MENGUE, Tujilane R. CHIZUMILA, Chafika BENSAOULA, Blaise TCHIKAYA, Stella I. ANUKAM, Dumisa B. NTSEBEZA, Dennis D. ADJEI, Duncan GASWAGA – Judges; and Robert ENO, Registrar.

In accordance with Article 22 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (hereinafter referred to as “the Protocol”) and Rule 9(2) of the Rules of Court (hereinafter referred to as “the Rules”),Footnote 1 Justice Imani D. ABOUD, President of the Court, and a national of Tanzania, did not hear the Application.

In the matter of

Lameck BAZIL

Represented by Advocate Godfrey Canuti MPANDIKIZI, Executive Director, Tanzania Anti Human Trafficking and Legal Initiative.

Versus

UNITED REPUBLIC OF TANZANIA

Represented by:

  1. i. Dr Boniphace Nalija LUHENDE, Solicitor General, Office of the Solicitor General;

  2. ii. Ms Sarah Duncan MWAIPOPO, Deputy Solicitor General, Office of the Solicitor General; and

  3. iii. Mr Hangi M. CHANG’A, Deputy Director, Constitution, Human Rights and Election petitions, Office of the Solicitor General.

After deliberation,

Renders this Judgment:

I. THE PARTIES

  1. 1. Lameck Bazil (hereinafter referred to as “the Applicant”), is a Tanzanian national who, at the time of filing the Application, was incarcerated at Bukoba Central Prison, Bukoba, having been convicted of murder and sentenced to death. He alleges violation of his right to a fair trial during proceedings before the domestic courts.

  2. 2. The Application is filed against the United Republic of Tanzania (hereinafter referred to as “the Respondent State”), which became a Party to the African Charter on Human and Peoples’ Rights (hereinafter referred to as “the Charter”) on 21 October 1986 and to the Protocol on 10 February 2006. Furthermore, the Respondent State, on 29 March 2010, deposited the Declaration prescribed under Article 34(6) of the Protocol (hereinafter referred to as “the Declaration”), through which it accepted the jurisdiction of the Court to receive Applications from individuals and Non-Governmental Organisations. On 21 November 2019, the Respondent State deposited with the Chairperson of the African Union Commission, an instrument withdrawing its Declaration. The Court held that this withdrawal has no bearing on pending and new cases filed before the withdrawal came into effect one year after its deposit, in this case, on 22 November 2020.Footnote 2

II. SUBJECT MATTER OF THE APPLICATION

A. Facts of the matter

  1. 3. It emerges from the record that, on 21 September 2008, the Applicant and his father-in-law, Pancras Minago (now deceased), killed the latter’s neighbour, Ms Magdalena Andrew, who was a person with albinism, by using a machete. Subsequently, they were arrested, and charged with murder on 26 November 2015.

  2. 4. On 27 October 2016, the Applicant and his father-in-law, were convicted of murder by the High Court of Tanzania sitting at Bukoba and sentenced to death by hanging.

  3. 5. Dissatisfied with the conviction and sentence, the Applicant on 31 July 2017, filed an appeal to the Court of Appeal of Tanzania, which dismissed the same on 4 September 2018 for lack of merit.

B. Alleged violations

  1. 6. The Applicant alleges the violation of his right to a fair trial in that, there were contradictions in the evidence submitted by the prosecution witnesses and that the prosecution failed to prove its case beyond a reasonable doubt.

III. SUMMARY OF THE PROCEDURE BEFORE THE COURT

  1. 7. The Application was filed at the Registry on 22 October 2018, and served on the Respondent State on 16 January 2019 for its Response within 60 days of receipt.

  2. 8. On 11 February 2019, the Respondent State notified the Court that it would be represented by the Solicitor General but it did not file a Response to the Application.

  3. 9. The Respondent State’s time to file its Response was extended on 9 July 2020, 23 February 2021 and 28 July 2021. Furthermore, on 10 August 2022, the Respondent State was reminded to file its Response within 30 days, failing which, the Court would proceed to deliver a judgment in default in accordance with Rule 63(1) of the Rules. The preceding notwithstanding, the Respondent State has failed to file a Response.

  4. 10. Pleadings were closed on 19 April 2024 and the Parties were notified thereof.

IV. PRAYERS OF THE PARTIES

  1. 11. The Applicant prays the Court to:

    1. i. Quash his conviction and sentence;

    2. ii. Order his release from prison; and

    3. iii. [Grant him] costs.

  2. 12. The Respondent State did not participate in the proceedings and, therefore, did not make any prayers.

V. THE DEFAULT OF THE RESPONDENT STATE

  1. 13. Rule 63(1) of the Rules stipulates that:

    Whenever a party does not appear before the Court, or fails to defend its case within the period prescribed by the Court, the Court may, on the Application of the other party, or on its own motion, enter a decision in default after it has satisfied itself that the defaulting party has been duly served with the Application and all other documents pertinent to the proceedings.

  2. 14. The Court notes that Rule 63(1) sets out three conditions for a decision in default: i) the notification to the defaulting party of all the documents on record ii) the default of a party; and iii) Application by the other party for a decision in default or the Court on its own motion decides to enter a decision in default.

  3. 15. On the first condition, the Court notes from the record that, the Registry served the Respondent State with the Application on 16 January 2019 notified the Respondent State of all the pleadings filed by the Applicant. The Court observes from the record, the proof of delivery of those notifications. The Court therefore finds that the first condition is met.

  4. 16. With respect to the second condition, the Court observes that the Respondent State was granted 60 days to file its Response. However, it failed to do so. The Registry also sent reminders to the Respondent State on 9 July 2020, 23 February 2021, 28 July 2021 and 10 August 2022 granting it each time 30 days to file its Response but it failed to do so. The Court thus finds that the Respondent State has defaulted in defending the case.

  5. 17. With respect to the last condition, the Applicant having not requested for a default judgment, the Court renders the decision suo motu for the proper administration of justice.

  6. 18. The required conditions having been fulfilled, the Court renders this decision in default.Footnote 3

VI. JURISDICTION

  1. 19. The Court notes that Article 3 of the Protocol provides as follows:

    1. a. The jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and Application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned.

    2. b. In the event of a dispute as to whether the Court has jurisdiction, the Court shall decide.

  2. 20. The Court further notes that pursuant to Rule 49(1) of the Rules it “…shall conduct preliminarily examination of its jurisdiction…in accordance with the Charter, the Protocol and these Rules.”

  3. 21. The Court notes that there is no contention with regard to its jurisdiction. Nevertheless, it must satisfy itself that it has jurisdiction to hear the Application.

  4. 22. The Court notes, with respect to its personal jurisdiction that, as earlier stated in paragraph 2 of this Judgment, the Respondent State is a party to the Protocol and on 29 March 2010, it deposited the Declaration with the African Union Commission. Subsequently, on 21 November 2019, it deposited an instrument withdrawing its Declaration.

  5. 23. The Court recalls its jurisprudence that, the withdrawal of a Declaration does not apply retroactively and only takes effect one year after the date of deposit of the notice of such withdrawal, in this case, on 22 November 2020.Footnote 4 This Application having been filed before the Respondent State’s withdrawal came into effect, is thus not affected by it. Consequently, the Court finds that it has personal jurisdiction.

  6. 24. With respect to material jurisdiction, the Court reiterates, as it has consistently held in accordance with Article 3(1) of the Protocol, that it has jurisdiction to consider any Application filed before it, provided that the alleged violations are of rights guaranteed in the Charter, the Protocol or any other human rights instruments ratified by the Respondent State.Footnote 5

  7. 25. In the instant case, the Applicant alleges the violation of the right to a fair trial which is protected under Article 7 of the Charter, to which the Respondent State is a party. The Court thus finds that it has material jurisdiction.

  8. 26. With regard to temporal jurisdiction, the Court notes that the alleged violations happened between 2015 and 2018. Therefore, the alleged violations occurred after the Respondent State had ratified the Protocol on 10 February 2006. Accordingly, the Court finds that it has temporal jurisdiction.

  9. 27. The Court also notes that it has territorial jurisdiction as the alleged violations occurred in the Respondent State’s territory.

  10. 28. In light of the foregoing, the Court holds that it has jurisdiction to hear this Application.

VII. ADMISSIBILITY

  1. 29. Article 6(2) of the Protocol provides that “the Court shall rule on the admissibility of cases taking into account the provisions of article 56 of the Charter.”

  2. 30. Pursuant to Rule 50(1) of the Rules, “[t]he Court shall ascertain the admissibility of an Application filed before it in accordance with Article 56 of the Charter, Article 6(2) of the Protocol and these Rules.”

  3. 31. Rule 50(2) of the Rules, which in substance restates the provisions of Article 56 of the Charter, provides as follows:

    Applications filed before the Court shall comply with all of the following conditions:

    1. a. Indicate their authors even if the latter request anonymity;

    2. b. Are compatible with the Constitutive Act of the African Union and with the Charter;

    3. c. Are not written in disparaging or insulting language directed against the State concerned and its institutions or the African Union;

    4. d. Are not based exclusively on news disseminated through the mass media;

    5. e. Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged;

    6. f. Are submitted within a reasonable time from the date local remedies were exhausted or from the date set by the Court as being the commencement of the time limit within which it shall be seized with the matter; and

    7. g. Do not deal with cases which have been settled by those States involved in accordance with the principles of the Charter of the United Nations, or the Constitutive Act of the African Union, or the provisions of the Charter.

  4. 32. The Court notes that the conditions of admissibility set out in Rule 50(2) of the Rules are not in contention between the Parties, as the Respondent State did not to take part in the proceedings. However, pursuant to Rule 50(1) of the Rules, the Court is required to determine if the Application fulfils all the admissibility requirements as set out in Rule 50(2).

  5. 33. From the record, the Court notes that, the Applicant has been identified by name in fulfilment of Rule 50(2)(a) of the Rules.

  6. 34. The Court also notes that the Applicant’s claims seek to protect his rights guaranteed under the Charter. It further notes that one of the objectives of the Constitutive Act of the African Union, as stated in Article 3(h) thereof, is the promotion and protection of human and peoples’ rights. Furthermore, nothing on file indicates that the Application is incompatible with the Constitutive Act of the African Union. It therefore holds that the requirement of Rule 50(2)(b) of the Rules is met.

  7. 35. The Court further finds that the language used in the Application is not disparaging or insulting to the Respondent State and its institutions or to the African Union, in fulfilment of Rule 50(2)(c) of the Rules.

  8. 36. The Court also observes that the Application is not based exclusively on news disseminated through mass media as it is founded on record of the proceedings of the national courts in fulfilment with Rule 50(2)(d) of the Rules.

  9. 37. With regard to Rule 50(2)(e) of the Rules on the exhaustion of local remedies, the Court reiterates its case law that “the local remedies that must be exhausted by the Applicants are ordinary judicial remedies”,Footnote 6 unless they are manifestly unavailable, ineffective and insufficient or the proceedings are unduly prolonged.Footnote 7

  10. 38. It emerges from the record that the Applicant having been convicted of murder at the High Court on 27 October 2016, appealed to the Court of Appeal of Tanzania, the highest judicial organ of the Respondent State, which on 4 September 2018, dismissed his appeal. Consequently, the Applicant exhausted all the available domestic remedies and the Application complies with Rule 50(2)(e) of the Rules.

  11. 39. Regarding, the requirement that an Application be filed within a reasonable time, Rule 50(2)(f) of the Rules, which in substance restates Article 56(6) of the Charter, stipulates that, an Application should be filed within: “a reasonable time from the date local remedies were exhausted or from the date set by the Court as being the commencement of the time limit within which it shall be seized with the matter.”

  12. 40. As the Court has established in its constant jurisprudence, the reasonableness of the period for seizure of the Court depends on the particular circumstances of each case and must be determined on a case-by-case basis.Footnote 8

  13. 41. In the instance case, the Application was filed on 22 October 2018, that is, one month and 18 days after the Court of Appeal rendered its decision on 4 September 2018. Consequently, the Court finds the period of one month and 18 days to be manifestly reasonable.

  14. 42. Furthermore, the Court finds that the Application does not concern a case which has already been settled by the Parties in accordance with the principles of the Charter of the United Nations, the Constitutive Act of the African Union, the provisions of the Charter or of any legal instrument of the African Union in accordance with Rule 50(2)(g) of the Rules.

  15. 43. The Court, therefore, finds that all the admissibility conditions have been fulfilled and, the Application is admissible.

VIII. MERITS

  1. 44. The Applicant alleges the violation of the right to have one’s cause heard in that, there were contradictions in the evidence filed by the Prosecution Witnesses and that the Prosecution failed to prove its case beyond a reasonable doubt. The Court will consider this allegation.

  2. 45. Furthermore, the Court notes from the record that the Applicant was mandatorily sentenced to death by hanging under a law that the Court has previously held, does not allow the judicial officer any discretion in violation of Articles 4 and 5 of the Charter.Footnote 9 The Court will therefore consider whether the circumstances of the present Application requires findings similar to those in its case-law on the issues of violation of the right to life, protected under Article 4 of the Charter; and violation of the right to dignity, guaranteed in Article 5 of the Charter.

A. Alleged violation of the right to have one’s cause heard

  1. 46. The Applicant contends that the testimonies of the prosecution witnesses were inconsistent and contradicted each other, and thus, lacked the credibility to establish his guilt beyond a reasonable doubt.

  2. 47. He avers that his conviction was based on hearsay and false testimonies. Furthermore, that the Court of Appeal noted the contradictions in the prosecution witness statements but did not reverse the decision of the High Court. Consequently, he submits that he was denied justice in the national courts.

    ***

  3. 48. Article 7(1) of the Charter provides that: “[e]very individual shall have the right to have his cause heard…”

  4. 49. The Court notes in line with its established jurisprudence “… that “a fair trial requires that the imposition of a sentence in a criminal offence, and in particular a heavy prison sentence, should be based on strong and credible evidence. That is the purport of the right to the presumption of innocence also enshrined in Article 7 of the Charter.”Footnote 10

  5. 50. Even though the Applicant raised concerns regarding the handling of evidence and the discrepancies in the testimonies of the prosecution witnesses; from the record, the Court of Appeal noted that they could not interfere with the findings of the trial Court unless there was “misdirection” as the trial court was better placed to decide on matters of evidence.

  6. 51. Furthermore, the Court of Appeal found that even though there were some slight inconsistencies in the testimonies of the prosecution witnesses in relation to the words uttered by the Applicant, the substance of their testimonies were consistent, that the Applicant had used derogatory words towards the victim, a person with albinism, to the effect that the villagers could generate wealth from the sale of her body parts and, he subsequently killed her by using a machete.

  7. 52. The Court further notes that the Applicant was represented by counsel during the trial and on appeal, indicating that he was given the opportunity to defend himself. Additionally, the Court of Appeal, addressed each point raised by the Applicant’s counsel, and relied on DNA evidence, corroborated by eyewitness testimony, to establish the guilt of the Applicant. The Court of Appeal therefore concluded that that the evidence adduced by the prosecution was credible and proved beyond a reasonable doubt that the Applicant killed the victim.

  8. 53. In light of the foregoing, the Court finds that the manner in which the domestic proceedings were conducted does not disclose any manifest error or miscarriage of justice.

  9. 54. Accordingly, the Court dismisses the Applicant’s allegation and holds that the Respondent State did not violate his right to have his cause heard, protected under Article 7 of the Charter.

B. Violation of the right to life

  1. 55. As earlier noted, the Applicant did not make any submissions on the right to life. The Court notes, however, from the record that he was mandatorily sentenced to death under a law that does not allow any discretion to the judicial officer. The Court, in these circumstances, reiterates its finding in its previous decisions that the mandatory imposition of the death penalty is a violation of the right to life under Article 4 of the Charter.Footnote 11

  2. 56. The Court, therefore, holds that the Respondent State has violated the Applicant’s right to life protected under Article 4 of the Charter due to the mandatory nature of the death penalty imposed on him.

C. Violation of the right to dignity

  1. 57. Although the Applicant did not make any submissions on the right to dignity, the Court also notes that he was sentenced to death by hanging. The Court, reiterates its established jurisprudence that the execution of the death penalty by hanging constitutes a violation of the right to dignity under Article 5 of the Charter.Footnote 12

  2. 58. Consequently, the Court holds that the Respondent State violated the Applicant’s right to inherent dignity protected under Article 5 of the Charter in relation to the method of execution of the death penalty, as meted out against the Applicant, that is, by hanging.

IX. REPARATIONS

  1. 59. The Applicant prays the Court to grant him reparations for the violations he suffered, including quashing his conviction and sentence and ordering his release.

  2. 60. The Respondent State did not reply.

    ***

  3. 61. Article 27(1) of the Protocol provides that:

    If the Court finds that there has been violation of a human or peoples’ rights, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation.

  4. 62. The Court recalls its jurisprudence according to which, “to examine and assess Applications for reparation of prejudices resulting from human rights violations, it takes into account the principle according to which the State found guilty of an internationally wrongful act is required to make full reparation for the damage caused to the victim.”Footnote 13

  5. 63. Having found that the Respondent State did not violate the right to have one’s cause heard alleged by the Applicant, the Court dismisses the Applicant’s prayers for reparations.

  6. 64. The Court recalls however, that it found suo motu that the Respondent State violated the Applicant’s rights to life under Article 4 of the Charter in relation to the mandatory imposition of the death penalty and the right to inherent dignity, guaranteed under Article 5 of the Charter, in relation to the method of execution of the death penalty, as meted out against the Applicant, that is, by hanging.

  7. 65. The Court, therefore, orders the Respondent State to take all necessary measures to repeal, within six months of the notification of this Judgment, the provision for the mandatory imposition of the death sentence from its laws.Footnote 14

  8. 66. The Court further orders the Respondent State to take all necessary measures, within one year of the notification of this Judgment, to vacate the sentence, remove the Applicant from death-row and rehear his case on sentencing through a procedure that allows judicial discretion.Footnote 15

  9. 67. Regarding the Court’s finding that the method of execution of the death penalty by hanging is inherently degrading,Footnote 16 the Court orders the Respondent State to undertake all necessary measures to remove “hanging” from its laws as the method of execution of the death sentence, within six months of the notification of this Judgment.Footnote 17

  10. 68. The Court further observes that, for reasons now firmly established in its practice,Footnote 18 and in the peculiar circumstances of this case, publication of this judgment is necessary. Given the current state of law in the Respondent State, threats to life associated with the mandatory death penalty persist in the Respondent State. The Court has not received any indication that necessary measures have been taken for the law to be amended and aligned with the Respondent State’s international human rights obligations. The Court thus finds it appropriate to order publication of this judgment within a period of three months from the date of notification.

  11. 69. With regard to implementation and reporting, the Court considers that, for the same reasons stated above, its findings on the publication of this Judgment apply to implementation and reporting. The Court therefore deems it proper to order the Respondent State to report on the steps taken to implement this Judgment within six months from the date of notification thereof.

X. COSTS

  1. 70. The Applicant prays the Court to order the Respondent State to bear costs.

    ***

  2. 71. The Court notes that Rule 32(2) of its Rules provides that “unless otherwise decided by the Court, each party shall bear its own costs, if any.”

  3. 72. The Court sees no reason to depart from the above provision and decides that each Party shall bear its own costs.

XI. OPERATIVE PART

  1. 73. For these reasons,

    THE COURT,

    On jurisdiction

    Unanimously and in default,

    1. i. Declares that it has jurisdiction.

    On admissibility

    1. ii. Declares the Application admissible.

    On merits Unanimously,

    1. iii. Holds that the Respondent State did not violate the Applicant’s right to have his cause heard, protected under Article 7(1) of the Charter with regards to his conviction;

    By a majority of Eight Judges for, and Two Judges against, Justices Blaise TCHIKAYA and Dumisa NTSEBEZA dissenting on the issue of the death penalty,

    1. iv. Holds that the Respondent State violated the Applicant’s right to life protected under Article 4 of the Charter in relation to the mandatory imposition of the death penalty; and

    2. v. Holds that the Respondent State violated the Applicant’s right to inherent dignity protected under Article 5 of the Charter in relation to the method of execution of the death penalty.

    Unanimously,

    On reparations

    1. vi. Dismisses the Applicant’s prayers for reparations;

    2. vii. Orders the Respondent State to take all necessary measures to remove within six months of the notification of this Judgment the mandatory death penalty from its laws;

    3. viii. Orders the Respondent State to take all necessary measures within one year of the notification of this Judgment, to vacate the sentence, remove the Applicant from death-row and rehear his case on sentencing through a procedure that allows judicial discretion;

    4. ix. Orders the Respondent State to take all necessary measures within six months of the notification of this Judgment to remove “hanging” from its laws as the method of execution of the death sentence;

    5. x. Orders the Respondent State to publish this Judgment, within a period of three months from the date of notification, on the websites of the Judiciary, and the Ministry for Constitutional and Legal Affairs, and ensure that the text of the judgment is accessible for at least one year after the date of publication;

    6. xi. Orders the Respondent State to submit to it, within six months from the date of notification of this judgment, a report on the status of execution of the orders set forth herein and thereafter, every six months until the Court considers that there has been full implementation thereof.

    On costs

    1. xii. Orders each that each Party shall bear its own costs.

Signed:

Modibo SACKO, Vice President;

Rafaâ BEN ACHOUR, Judge;

Suzanne MENGUE, Judge;

Tujilane R. CHIZUMILA, Judge;

Chafika BENSAOULA, Judge;

Blaise TCHIKAYA, Judge;

Stella I. ANUKAM, Judge;

Dumisa B. NTSEBEZA, Judge;

Dennis D. ADJEI, Judge;

Duncan GASWAGA, Judge;

and Robert ENO, Registrar.

In accordance with Article 28(7) of the Protocol, and Rules 70(3) of the Rules, the Declarations of Justice Blaise TCHIKAYA and Justice Dumisa NTSEBEZA are appended to this Judgment.

Done at Arusha, this Thirteenth Day of November in the Year Two Thousand and Twenty-Four in English and French, the English text being authoritative.

Cour Africaine des droits de L’homme et des peuples African court on human and peoples’ rights

Declaration by Judge Blaise Tchikaya

in the

Matters of

Gerald Koroso Kalonge v. Tanzania (Application No. 024/2018) Kija Nestory Jinyamu v. Tanzania (Application No. 015/2018) Lameck Bazil v. Tanzania (Application No. 027/2018)

Rashidi Romani Nyerere v Tanzania (Application No. 023/2018)

(13 November 2024)

  1. 1. Once again, at its 74th session, the African Court on Human and Peoples’ Rights heard four cases relating to the death penalty and, again and again, arose the issue of the international regime that the Court applies to this criminal sanction. The majority of my honourable colleagues confirmed the Court’s former conservative jurisprudence.Footnote 1

  2. 2. I pen this Declaration having, regrettably, elected to disagree with the majority decision.Footnote 2

  3. 3. The four Applicants claim that they were not afforded the enjoyment a fundamental right, namely, the right to a fair trial in domestic courts.Footnote 3 This was not taken into account. All four were sentenced to death for murder. Kija Nestory Jinyamu was incarcerated in Uyui Central Prison, awaiting execution of the death sentence imposed on him. In the case of Rashidi Romani Nyerere, he was at Ruanda Central Prison awaiting execution of the death sentence.

  4. 4. The same Respondent State charged Gerald Koroso Kalonge with murder, on 30 June 2015.Footnote 4 Lameck Bazil was also sentenced to death, together with his father-in-law, Pancras Minago, for murder. They murdered Ms Magdalena Andrew, a person with albinism and neighbour of the Applicant’s father-in-law. Both were subsequently arrested and charged.Footnote 5

  5. 5. It is noteworthy that all four Applicants, Lameck Bazil,Footnote 6 Kija Nestory,Footnote 7 and Gerald Koloso Kalonge Footnote 8 and Rashidi Romani Nyerere,Footnote 9 were sentenced to death by hanging. It emerges from the record that, in addition to challenging the sentence of the death penalty, there was an issue on the use of hanging as a means of enforcing the sentence.

  6. 6. We raise, firstly, the recurring question of the death penalty (I.); and secondly, aspects relating to hanging, which the Court has already accepted as anachronistic and rejected. The rather paradoxical content of this last point will be highlighted. We therefore contend in this Declaration that this paradox, namely, the perplexing fact that the Court repudiates hanging while at the same time not rejecting the death penalty in all its aspects, should be brought to an end. In effect, we posit that one cannot reject hanging without a complete ban on the death penalty (II.).

I. The death penalty should be declared null and void in all four cases

  1. 7. What we seek to do in this section is to share with all those liable to capital punishment the evolutions and developments of the current abolitionist regime.Footnote 10 That the death penalty is obsolete should be a universal principle, as it is in international human rights law.Footnote 11

  2. 8. We know that the practice of beheading people for their crimes is a step backwards in civilisation. As Susan Kigula says:Footnote 12

    “The use of the death penalty by states is a sign of weakness and inability to manage crime and the problems of society. States must find solutions to crime”.Footnote 13

  3. 9. It has been said that customary law and international conventions repudiate the death penalty as a criminal sanction. However, in line with its jurisprudence, the Court considered that Mr Kija Nestory Jinyamu was sentenced by the national judge in disregard of a fundamental right, namely the freedom that a judge must have. It follows that failure to uphold the freedom of a judge constitutes a major violation of the rights of individuals.

  4. 10. In Gerald Koroso Kalonge, the Court clearly relied on recognised principles to criticise the fact of a judge being deprived of his discretion to impose a sentence:

    “(…) The Court observes … that, the mandatory imposition of the death penalty as provided for in Section 197 of the Penal Code of Tanzania does not permit a convicted person to present mitigating evidence and therefore applies to all convicts without regard to the circumstances in which the offence was committed. Secondly, in all cases of murder, the trial court is left with no other option but to impose the death sentence. The court is thus deprived of the discretion, which must inhere in every independent tribunal to consider both the facts and the applicability of the law, especially how proportionality should apply between the facts and the penalty to be imposed. ln the same vein, the trial court lacks discretion to take into account specific and crucial circumstances such as the participation of each individual offender in the crime”.Footnote 14

  5. 11. However, it fails to carry the argument to its logical conclusion by disapproving of the right of the Respondent State to take the lives of those in its care.

  6. 12. The Court’s position is as ambivalent as ever with regard to the preservation of life, which is undermined by the death penalty. It confirms this in the Lameck Bazil case, observing that:

    “the applicant was sentenced to the mandatory death penalty under a law which set aside the judge’s discretion. In such circumstances, the Court reiterates, in accordance with its settled case-law, that the application of the mandatory death penalty constitutes a violation of the right to life protected by Article 4 of the Charter”.Footnote 15

  7. 13. I have previously declared my rejection of the death penalty:

    “The Court, while asking Tanzania to review its legislation on a category of death penalty - the mandatory death penalty – is refusing to direct its decision to condemn the death penalty. It allows islands of tolerance to persist”.Footnote 16

  8. 14. Therein lies the difficulty of the jurisprudence handed down by the Court on the question of the death penalty, which the four cases under discussion illustrate in the same manner. Indeed, it appears that since the 2019 case of Rajabu et al, the majority of the Court has not reconsidered its position. It is regrettable that it does not declare the death penalty, in its entirety and in all its forms, as contrary to human rights.

  9. 15. It is paradoxical that as recently as 13 November 2024,Footnote 17 the Court rendered these four decisions, Gerald K. Kalonge, Kija N. Jinyamu, Lameck Bazil and Rashidi Romani Nyerere, that left intact the old legal regime of the death penalty, thereby ultimately validating it.Footnote 18 This is because the old regime only repudiates the mandatory nature of the death penalty and not the death penalty per se.

  10. 16. Moreover, the death penalty undoubtedly entails lengthy procedures, anguish and torment that rob individuals of all humanity. This constitutes cruel treatment. The unfortunate defendants, Gerald K. Kalonge, Kija N. Jinyamu, Lameck Bazil and Rashidi Romani Nyerere, are still suffering this iniquitous punishment. The Respondent State has opted to put on hold, or perhaps never to enforcement the sentence. In application of the law, it must be declared that this death penalty is unacceptable and should be banned from legal systems. Human rights courts, such as this Court, should work towards this goal. Thus, the death penalty should have been declared obsolete in all four cases. The Court could have promoted other sanctions that are just as effective.

  11. 17. The complete abolition of the death penalty should repudiate imposition of both mandatory death penalty and the death penalty imposed by the judge in the free exercise of his functions. In § 153 of the Kalonge judgment, the Court states:

    “In the present judgment the Court has again established that the mandatory imposition of the death penalty violates the right to life guaranteed under Article 4 of the Charter. It, therefore, holds that the said sentence ought to be removed from the statutes of the Respondent State (…)”.Footnote 19

  12. 18. While this may come across as a rejection of the death penalty, it is in fact only a partial rejection. The death penalty in its non-mandatory form is still valid in principle.

  13. 19. If the Court finds hanging degrading and disapproves of it as a means of carrying out the death penalty, it should ban the death penalty in its entirety in the first place. There is a paradox here that calls for some elaboration.

II. Putting an end to a paradox: the rejection of hanging cannot be dissociated from the total ban on the death penalty

  1. 20. If hanging is contrary to current law, then there are consequences to be drawn. The Court cannot cling to its 2019 position, as conveyed in the majority position.Footnote 20 There will be a kind of paradox in the sense that the denunciation of hanging, or even of torture, cannot be meaningful without a complete ban on the death penalty.

  2. 21. All four cases involved hanging as a method of punishment. It has been said that all methods of execution of the death penalty, without exception, are cruel: the bullet in the head, stoning, the electric chair, lethal injection, asphyxiation, and so is hanging. All these methods of execution border on torture, which is already banned in modern legal civilisations.

  3. 22. However, the Court seems to have come to this conclusion, which it enunciates in the operative part of the four judgments, in particular in the Kalonge judgment, as follows:

    “Orders the Respondent State to take all necessary measures, within six months of notification of this judgment, to remove “hanging” from its laws as a method of execution of the death penalty”.Footnote 21

  4. 23. The Court condemns the methods used to carry out the death penalty. It equates them to torture. It holds them to be cruel, inhuman and degrading treatment, given the intense suffering inherent in them. The Court underscores that:

    “execution by hanging is inherently degrading”Footnote 22

  5. 24. In Amini Juma v. Tanzania, Footnote 23 the Court highlights one of the key points of international human rights law on the rejection of hanging:

    “Furthermore, having found that the mandatory imposition of the death sentence violates the right to life due to its arbitrary nature, this Court finds the method of implementation of that sentence, that is, hanging, inevitably encroaches upon the dignity of a person in respect of the prohibition of torture, cruel, inhuman and degrading treatment”.Footnote 24

  6. 25. It has to be said again that the majority position hardly lends itself to understanding. It is not defensible as long as it leaves the death penalty in place. Hanging is only possible through the death penalty. The majority position of the Court has chosen a very questionable approach: by rejecting only the mandatory nature of the death penalty, it preserves the right to life without rejecting the death penalty in principle.

  7. 26. These four judgments show that, in order to clarify its jurisprudence, the Court should draw a rigorous consequence from its rejection of hanging; it should ban the death penalty in its entirety. These judgments once again open a door to outlawing the death penalty.

  8. 27. It is worth bearing in mind that the German playwright Bertolt Brecht, fighting against the new forms of barbarism, said these famous words:

    “The people have been vindicated, but we mustn’t sing victory, it’s still too early: the womb is still fertile, from which the foul beast has sprung”.Footnote 25

  9. 28. This profound rejection expressed by the playwright testifies to the horror that accompanies the abuse of human beings, while also demonstrating the need to safeguard the sanctity of humanism. Lethal injection, decapitation, electrocution, gassing or hanging of human offenders or criminalsFootnote 26 does not remove the feeling of an excessive approach to the treatment of offences, even when pronounced by a judicial decision. This undoubtedly explains why some countries, as in this case, have legislation that authorises this punishment but refrains from carrying it out.

  10. 29. We felt compelled, against the grain of the majority opinion, to issue this Declaration on the judgments in Gerald Koroso Kalonge v. Tanzania (Application No. 024/2018); Kija Nestory Jinyamu v. Tanzania (Application No. 015/2018), Lameck Bazil v. Tanzania (Application No. 027/2018) and Rashidi Romani Nyerere v Tanzania (Application No. 023/2018) handed down on 13 November 2024. This is to express once again our constant disapproval of the failure to reject the death penalty completely.

Blaise Tchikaya, Judge

Done at Arusha, this Thirteenth Day of November Two Thousand and Twenty-four, the French version being authoritative.

African court on human and peoples’ rights declaration by judge Dumisa buhle NTSEBEZA

IN THE MATTER OF APPLICATION NO. 027/2018

LAMECK BAZIL V.

UNITED REPUBLIC OF TANZANIA JUDGMENT OF 13 NOVEMBER 2024

Pursuant to Rule 70(3) of the Rules of Court, read together with Article 28(7) of the Protocol, I declare that I disagree with the majority in their judgment on capital punishment on the following bases:

  1. 1. Capital Punishment is not only a clear violation of Article 5 of the African Charter on Human and Peoples’ Rights in relation to the method of execution by hanging as implemented by the Respondent State. It, in and of itself, violates Article 5 of the Charter because it is an inherently cruel, degrading and inhuman treatment or punishment.

  2. 2. Its imposition has a potential for error.

  3. 3. It is irreversible.

  4. 4. It has no demonstrable deterrent effect.

  5. 5. Its discriminatory application undermines the fundamental principles of human rights, justice and equality.

Signed:

Judge Dumisa Buhle NTSEBEZA

Done at Arusha, this Thirteenth Day of November in the year Two Thousand and Twenty-Four, the English text being authoritative.

Footnotes

This research was funded by the Danish National Research Foundation Grant no. DNRF105 and conducted under the auspices of the Danish National Research Foundation’s Centre of Excellence for International Courts.

1 Rule 8(2), Rules of Court, 2 June 2010.

2 Andrew Ambrose Cheusi v. United Republic of Tanzania (judgment) (26 June 2020) 4 AfCLR 219, §§ 37-39.

3 African Commission on Human and Peoples’ Rights v. Libya (merits) (3 June 2016) 1 AfCLR 153 §§ 38-42; Robert Richard v. United Republic of Tanzania, ACtHPR (merits and reparations) (2 December 2021) 5 AfCLR 822 § 16.

4 Cheusi v. Tanzania (merits and reparations) supra, §§ 37-39.

5 Alex Thomas v. United Republic of Tanzania (merits) (20 November 2015) 1 AfCLR 465, § 45; Kennedy Owino Onyachi and Charles John Mwanini Njoka v. United Republic of Tanzania (merits) (28 September 2017) 2 AfCLR 65, §§ 34-36; Jibu Amir alias Mussa and Said Ally Mangaya v. United Republic of Tanzania (merits and reparations) (28 November 2019) 3 AfCLR 629, § 18; Abdallah Sospeter Mabomba v. United Republic of Tanzania, ACtHPR, Application No. 017/2017, Judgment of 22 September 2022, § 21.

6 Mohamed Abubakari v. Tanzania (merits) (3 June 2016) 1 AfCLR 599 § 64. See also Alex Thomas v. Tanzania (merits) (20 November 2015) 1 AfCLR 465, § 64; and Wilfred Onyango Nganyi and 9 Others v. Tanzania (merits) (18 March 2016) 1 AfCLR 507, § 95.

7 Lohé Issa Konaté v. Burkina Faso (merits) (5 December 2014) 1 AfCLR 314, § 77. See also Peter Joseph Chacha v. Tanzania (admissibility) (28 March 2014) 1 AfCLR 398, § 40.

8 Anudo Ochieng Anudo v. United Republic of Tanzania (merits) (22 March 2018) 2 AfCLR 248, § 57; Shija Juma v. United Republic of Tanzania, ACtHPR, Application No. 028/2016, Judgment of 13 June 2024.

9 See also Deogratius Nicolaus Jeshi v. United Republic of Tanzania, ACtHPR, Application No. 017/2016, Judgment of 13 February 2024 (Merits and Reparations), §§ 109-112.

10 Abubakari v. Tanzania (merits), supra, § 174; Diocles Williams v. United Republic of Tanzania (merits and reparations) (21 September 2018) 2 AfCLR 426, § 72. Majid Goa v. United Republic of Tanzania (merits and reparations) (2019) 3 AfCLR 498, § 72.

11 Ally Rajabu and Others v. United Republic of Tanzania (merits and reparations) (28 November 2019) 3 AfCLR 539, §§ 104-114; Amini Juma v. United Republic of Tanzania (merits and reparations) (30 September 2021) 5 AfCLR 431, §§ 120-131; Gozbert Henerico v. United Republic of Tanzania, ACtHPR, Application no. 056/2016, Judgment of 10 January 2022 (merits and reparations), § 160; Romward William v. United Republic of Tanzania, ACtHPR, Application no. 030/2016, Judgment of 13 February 2024 (merits and reparations), §§ 59-65.

12 Rajabu and Others v. Tanzania, Footnote ibid , §§ 119-120; Henerico v. Tanzania, ibid, §§ 169-170; Juma v. Tanzania, ibid, §§ 135-136.

13 Abubakari v. Tanzania (merits), supra, § 242(ix) and Ingabire Victoire Umuhoza v. Republic of Rwanda (reparations) (7 December 2018) 2 AfCLR 202, § 19.

14 Rajabu and Others v. Tanzania, Footnote ibid , § 163; Juma v. Tanzania, ibid, § 170; Henerico v. Tanzania, ibid, § 207; Ghati Mwita v. United Republic of Tanzania, ACtHPR, Application no. 012/2019 Judgment of 1 December 2022 (merits and reparations), § 166.

15 Rajabu and Others v. Tanzania, Footnote ibid , § 171 (xvi); Juma v. Tanzania, ibid, § 174 (xvii); Henerico v. Tanzania, ibid, § 217 (xvi); Mwita v. Tanzania, ibid, § 184 (xviii).

16 Rajabu and Others v. Tanzania, Footnote ibid , § 118.

17 Chrizant John v. United Republic of Tanzania, ACtHPR, Application no. 049/2016, Judgment of 7 November 2023 (merits and reparations) § 155.

18 See Legal and Human Rights Centre and Tanzania Human Rights Defenders’ Coalition v. United Republic of Tanzania, ACtHPR, Application no. 039/2020, Judgment of 13 June 2023 (merits and reparations), §§ 180-182. Lucien Ikili Rashidi v. United Republic of Tanzania (merits and Reparations) (28 March 2019) 3 AfCLR 13, § 151-153. Rajabu and Others v. Tanzania, Footnote ibid , §§ 164-167.

1 AfCHPR, Ally Rajabu and Others v. Tanzania, 28 November 2019.

2 Although the Respondent State has not carried out the death penalty for some time now, it should be emphasised that this penalty, even if not carried out, only offers the condemned person an inhuman and dehumanising prospect, no matter how convinced they may be of their guilt.

3 ACtHPR, Kija Nestory Jinyamu, 13 November 2024: As the Respondent State did not make any submissions, the Court rendered a decision on its own motion in line with its jurisprudence: African Commission on Human and Peoples’ Rights v. Libya, 1 AfCLR Libya, 2016, 153, §§ 38 to 42; AfCHPR, Fidèle Mulindahabi v. Rwanda, Judgment, 26 June 2020, § 30; AfCHPR, Yusuph Said v. Tanzania, Judgment, 21 September 2021, § 17; AfCHPR, Robert Richard v. Tanzania, Judgment, 2 December 2021, §§ 17 to 18.

4 It should be noted that the Applicant requested the Court to “order the Respondent State to release him and grant him compensation in so far as he was unlawfully sentenced to death by hanging”, Judgment, § 12.

5 The Applicant and his father-in-law were convicted of murder by the High Court of Tanzania on 27 October 2016. They were sentenced to death by hanging, Judgment, § 4.

6 ACtHPR, Lameck Bazil v. Tanzania, 13 November 2024, § 4.

7 On 21 September 2007, the High Court found Kija Nestory guilty of triple murder and sentenced him to death by hanging. see ACtHPR, Kija Nestory, 13 November 2024, § 3.

8 On 30 June 2015, the High Court of Tanzania found the Applicant and three of his co-accused guilty of the murder and sentenced them to death by hanging, ACtHPR, Gerald Koroso Kalonge v. Tanzania, 13 November 2024, § 3.

9 On 1 October 2013, the High Court of Tanzania found the Applicant guilty of murder and sentenced him to death by hanging ACtHPR, Rashidi Romani Nyerere v. Tanzania, 13 November 2024, § 4.

10 ACHPR (African Commission on Human and Peoples’ Rights), Study on the issue of the death penalty in Africa, 10 April 2012, p. 54.

11 Arlettaz (J.) et Bonnet (J.) (sous la direction), L’objectivation du contentieux des droits et libertés fondamentaux - Du juge des droits au juge du droit, Actes du colloque du 12 décembre 2014, Pédone, 2015, 202 p.

12 Susan Kigula was sentenced to death by hanging in Uganda for a murder in 2002. She had consistently maintained her innocence. The death penalty was automatically imposed for crime in her country. Now a human rights activist, she challenged the constitutionality of the mandatory death penalty before the Supreme Court and won her case. The mandatory death penalty was thus abolished in Uganda. Ms Kigula was released in 2016.

13 See Kigula (S.), in, Handbook of Playdog Advocacy for the Abolition of the Death Penalty in Africa, 2019, Amnesty International Ltd Peter Benenson House, 2019, p. 17.

14 AfCHPR, Ally Rajabu and Others v. Tanzania, 28 November 2019 § 109; of the same Court, Amini Juma v. Tanzania, 30 September 2021, § 120 to 131.

15 ACtHPR, Lameck Bazil v. Tanzania, 13 November 2024, § 55; See also ACtHPR, Gozbert Henerico v. Tanzania, judgment of 10 January 2022, § 160; of the same Court, Romward William v. Tanzania, 13 February 2024, § 59 to 65.

16 See Dissenting Opinion, Rajabu and Others v. Tanzania, 2019 § 28.

17 See Statement by Judge Tchikaya (B.) in the Romward William v. Tanzania; Deogratius Nicholaus Jeshi v. Tanzania; Crospery Gabriel and Ernest Mutakyawa v. Tanzania judgments of 13 February 2024.

18 It was written in 2019 that: “the mandatory death penalty is only an embodiment of the initial death penalty; it constitutes an arbitrary deprivation of life and 2) It is not compatible with the requirements of international human right law”, see Dissenting Opinion under AfCHPR, Rajabu et al… 8 December 2019, § 9.

19 Idem, § 151.

20 AfCHPR, Amini Juma v. Tanzania, 30 September 2021, §§ 120 to 131; Gozbert Henerico v. United Republic of Tanzania, 10 January 2022 § 160; Romward William v. Tanzania, 13 February 2024 §§ 59 to 65.

21 ACtHPR, Judgment Gerald Koroso Kalonge v. Tanzania, operative paragraph xviii; see also United Nations General Assembly, Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/67/279, para. 40, 9 August 2012; and ACtHPR, Deogratius Nicholaus Jeshi v. Tanzania, 13 February 2024, operative paragraph viii.

22 AfCHPR, Rajabu and others v. Tanzania, supra, §§ 118 and 119.

23 AfCHPR, Amini Juma v. Tanzania, 30 September 2021, § 120.

24 op. cit, § 136.

25 Brecht (B.), The Resistible Rise of Arturo Ui, 1941.

26 Monestier (M.), Peines de mort: Histoires et techniques des exécutions capitales des origines à nos jours (Goeau-Brissonnière J.-Yves, Pref.), Ed. Cherche-Midi, 1994, 301 p.

References

Notes

1 Lameck Bazil v. Tanz., No. 027/2018, Decision, Afr. Ct. H.P.R. (Nov. 13, 2024), https://www.african-court.org/cpmt/details-case/0272018.

2 See, on default judgments, Adamantia Rachovitsa, The Judicial Function of the African Court on Human and Peoples Rights in Default Judgments: The Developments Set Forth in the Léon Mugesera Case 6 Afr. H. Rts. Y.B. 343 (2022).

3 Andrew Novak, The Abolition of the Mandatory Death Penalty in Africa: A Comparative Constitutional Analysis 22 Ind. Int’l & Compar. L. Rev. 267 (2012).

4 Roger Hood & Carolyn Hoyle, The Death Penalty: A Worldwide Perspective (5th ed. Oxford Univ. Press 2015).

5 Ben Jones, Death Penalty Abolition, the Right to Life, and Necessity, 24 Hum. Rts. Rev., 77 (2022).

6 U. N. Hum. Rts. Comm., General Comment No. 36 on Article 6 of the ICCPR (Right to Life), U.N. Doc. CCPR/C/GC/36 (2018).

7 Andrew Novak, The Global Decline of the Mandatory Death Penalty: Constitutional Jurisprudence and Legislative Reform in Africa, Asia, and the Caribbean (2016).

8 Afr. Comm’n on Hum. & Peoples’ Rts., Res. 42 (XXVI) 99, Resolution Urging States to Envisage a Moratorium on Death Penalty (Nov. 15, 1999).

9 Rajabu v. Tanz., No. 007/2015, Decision, Afr. Ct. H.P.R., (Nov. 28, 2019), https://www.african-court.org/cpmt/details-case/0072015.

10 Reyes v. Queen, [2002] UKPC 11.

11 Boyce v. Barbados, [2004] UKPC 32,

12 Salvatore Caserta and Mikael Madsen, When the Sun, the Moon and the Stars Align: Litigating LGBTQIA+ Rights and the Death Penalty in East Africa and the Caribbean, 35 Eur. J. Int’l L. 727 (2024).

13 Att’y Gen. of Barbados v. Joseph, [2006] CCJ 3 (AJ).

14 Salvatore Caserta and Mikael Madsen, Between Community Law and Common Law: The Rise of the Caribbean Court of Justice at the Intersection of Regional Integration and Post-Colonial Legacies, 79 L. & Contemp. Probs. 89 (2016).

15 Mithu v. State of Punjab, 2 SCR 690 (India Sup. Ct. 1983).

16 Muruatetu v. Republic, [2017] eKLR (Kenya Sup. Ct.).

17 Hilaire v. Trinidad &Tobago, Inter-Am. Ct. H.R., (ser. C) No. 94 (2002).

18 Soering v. U.K., 161 Eur. H.R. (ser. A) (1989).

19 Pratt v. Att’y Gen. of Jamaica, [1993] UKPC 1.

20 See Amnesty Int’l., Countries, https://www.amnesty.org/en/countries.

21 S v. Makwanyane 1995 (3) SA 391, Const. Court of S. Afr. (June 6, 1995).

22 Carolyn Hoyle, The Death Penalty in Kenya: A Punishment that Has Died Out in Practice (2022).

23 Esther Gumboh, The Death Penalty in Malawi: An Assessment against Regional and International Human-Rights Standards 33 S. Afr. Pub. L. (2018).

24 Matovu Namutale, Towards the Abolition of the Death Penalty in Uganda: An Analysis of the Implications of the Susan Kugula Case (2011).

25 Dann Okoth, Uganda’s Anti-Gay Law Sparks Global Concerns, SciDev.Net (2023).