The Death Penalty Debate
by
Hon Justice Anthony Bahati,
Chairman, Tanzania Law Reform Commission
The Death Penalty has been a mode of punishment since time immemorial. The arguments for and against have not changed much over the years. Crimes as well as the mode of punishment correlate to the culture and form of civilization from which they emerge1
Christ was crucified on the cross by Jews for what was believed to be a crime of blasphemy.
Capital punishment is mentioned in the Holy Bible many times. In the book of Leviticus 24: 17-21, it is said, “He who kills a man shall be put to death.” the “eye for an eye” principle applies here. Genesis 9:6 states, “Whoever sheds the blood of man, by man shall his blood be shed.” Exodus 21:12-14 states: “whoever strikes a man so that he dies shall be put to death. But if he did not lie in wait for him, but God let him fall into his hand, then I will appoint for you a place to which he may flee. But if a man wilfully attacks another to kill him treacherously, you shall take him from my altar that he may die.” Nu
acg是什么意思mbers 35:30-31 reads: “If anyone kills a person, the murderer shall be put to death on the evidence of witness; but no person shall be put to death on the testimony of one witness. Moreover you will accept no ransom for the life of a murderer, who is guilty of murder, but he shall be put to death”. Mathew 26:52 reads: “Then Jesus said to him, ‘put your sword back into its place; for all who take the sword will perish by the sword’. Finally in Revelation 13:10 it is provided, “If anyone is
1 Consultation paper on Mode of Executive of Death Sentence and Incidental Matters: Law Commission of India
to be taken captive, to captivity he goes; if anyone slays with the sword, with the sword must he be slain”.同声翻译
The following cas discuss the concepts of ‘human dignity’ and “right to life” and the justification or otherwi of the death penalty. There is first the ca of Republic v Mbushuu and another2 which was decided by the High Court of Tanzania and went on appeal to the Court of Appeal of Tanzania3. In that ca Mwalusanya J. held thus:
(i) Death penalty offends the right to dignity of a person in the way the
ntence is executed and therefore it offends article 13(6) (d) of the Constitution of the United Republic of Tanzania
(ii) Death penalty is inherently cruel, inhuman and a degrading punishment and the process of execution by hanging is particularly gruesome, generally sordid, debasing and generally brutalizing, and it offends article 13(6) (e) of the Constitution of the United Republic of Tanzania.
(iii) Both the right to life and the right to protection of one’s life by society is subject to the claw-back clau and is therefore not absolute according to Article 14 of the Constitution of the United Republic of Tanzania.
(iv) For a law to be lawful it should meet the proportionality test and it should not be arbitrary.
(v) The provisions of the Penal Code on the death penalty do not have adequate safeguards against arbitrary decisions and do not provide effective control against abu of power by tho in authority when using the law.
resign(iv) Death penalty is contrary to article 13(6) (a) of the Constitution of the United Republic of Tanzania becau there is no appeal against the
山木英语
2 1994 TLR 146
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3 1995 TLR 97
decision of the President not to commute the ntence even if it is unreasonable or discriminatory.
辞典(vii)In construction of provisions of the Constitution and in particular that part of it which protects and entrenches fundamental rights and
freedoms, a generous and purposive method should be applied
The learned Judge found the death penalty in its prent form to be unconstitutional. He went on to ntence the accud to life imprisonment.
The Court of Appeal on appeal by the Republic against ntence of life imprisonment instead of the mandatory death penalty discuss the grounds of appeal at great length. The Court stated that the international instruments declare the inherent and universal right to life, demand that right be protected by law and prohibit the arbitrary deprivation of that right. The Court said that it meant that the right can be denied by due process of law. The court went on to state that the six domestic constitutions which the court examined such as the Constitution of the Republic of Ghana, the Indian
Constitution, Uganda Draft Constitution, and the Constitution of the People’s Republic of Bangladesh, presume the existence of the inherent and universal right to life and its protection by law. The constitutions deal with when a person can be deprived of his life.余下
Article 14 of the Constitution of the United Republic of Tanzania lies in between the two ts, the court noted. The article declares the inherent and universal right and its protection by the society but then subjects both the right and its protection to law, the court obrves. That means there can be instances in which the due process of law will deny a person his right to life or its protection. The right to life under article 14 is not absolute but qualified, the court concluded.
The issue which the Court of Appeal had to determine was whether the death penalty is one of such instances where the due process will deny a person his right to life and its protection.
Does the death penalty contravene article 13 (6) (d) and (e)? This is what the Court of Appeal had to address first. The Court obrved that Article 13 (6) (d) eks to protect the dignity of a person in the execution of a punishment. Article 13 (6) (e) states:-
“It is prohibited to torture a person, to subject a person to inhuman punishment or to degrading punishment”.
莎拉 佩林Paragraphs (d) and (e) of Article 13 (6) prohibit three things: torture, inhuman punishments and degrading punishments, the court obrved. Does the death penalty offend any of the? The Court of Appeal first considered the definition of “torture” as defined by the United Nations General Asmbly (UNGA) in its unanimously adopted ‘Declaration on the Protection of All Persons from being subjected to Torture and other cruel, inhuman or Degrading Treatment or Punishment’ of 9 December ,1975 ( Resolution 3542 (XXX) which states: ‘Torture means any act by which vere pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purpo as obtaining from him or a third person information or confession, punishing him for an act he has committed or intimidating him or other persons. It does not include pain or suffering arising only from, inherent in or accidental to, lawful sanctions’.
The Court found that any physical or vere mental pain or suffering brought about by the death penalty, does not constitute torture.
The Court noted that there is a lot of vere mental pain and suffering to a person under the ntence of death from the moment that ntence is pronounced to the date of its execution.
The Court also noted that concepts like ‘torture, cruel, inhuman and degrading’ are subject to evolvin
g standards of decency, and held that the European Convention is a living instrument which must be interpreted in the light of prent-day conditions as expresd by the European Court of Human Rights in Tyrer v United Kingdom4. The Court added that human rights concepts and terms like torture, inhuman and degrading punishment or treatment, have to be interpreted in the light of prent-day conditions.
The Court went on to hold that death penalty has elements of torture. It noted however that all punishments might be cruel, but it is the degree of cruelty that matters. As for the other aspects prohibited by article 13 (6) (e) of inhuman and degrading punishments, the court agreed with decisions of other jurisdictions that the death penalty offends the provisions. It agreed with the decision of the United States Supreme Court in Furman v Georgia (1972) US 238 that the State, even as it punishes, must treat its members with respect for their intrinsic worth as human beings. The Court was of the opinion that hangings being conducted in private do not indicate the guilty conscience of the state, but that the privacy surrounding executions is a recognition that hangings are inhuman and degrading and so are done in such a way as to give some mblance of dignity and respect to the prisoner.
4 2 EHRRI
The Court agreed with the trial Judge that the death penalty is inherently inhuman, cruel and degrading punishment and that it is also so in its execution and that it offends article 13 (6) (d) and (e).
The Court asked the crucial question of whether the death penalty is saved by Article 30 (2) of the Constitution.
Article 30(2) provides:
“it is hereby declared that no provision contained in this part of this constitution, which stipulated the basic human rights, freedom and duties, shall be construed as invalidating any existing law or prohibiting the enactment of any law or the doing of any lawful act under such law, making provision for-
marines
(a)Ensuring that the rights and freedom of other or the public interest are
not prejudiced by the misu of the individual rights and freedom.
(b)Ensuring the execution of the judgment or order of a court given or
made in any civil or criminal proceedings”.
The Court of Appeal on two occasions dealt with article 30 (2) in Daudi Pete V.
A. G5 and Kukutia Ole Pumbun v. A.G.6 in Kukutia Ole Pumbun, the Court of Appeal said:
‘the court in Pete’s ca laid down that a law which eks to limit or derogate from the basic right of the individual on ground of public interest will be saved by article 30(2) of the Constitution only if it satisfies two esntial requirements; First, such law must be lawful in the n that it is not arbitrary. It should make adequate safeguards against arbitrary decisions, and provide effective control
安徽二本大学5 [1993] TLR 22
6 [1993] TLR 159
