ARTICLES

Tanzania's death penalty debate: An epilogue on Republic v Mbushuu

Aniceth Gaitan^I; Bernhard Kuschnik^II

^IKongwa District Council Solicitor, Tanzania
^IILegal Clerk, Regional Court, Düsseldorf, Germany

SUMMARY

The imposition of the death sentence seems to be a common method of punishing grave offenders in Africa. In Tanzania, the most famous case involving capital punishment is Republic v Mbushuu, where the accused were convicted of murder and sentenced to death in 1994. Yet, there seems to be a new trend - among other things sparked by developments in international criminal justice - to work towards the abolishment of capital punishment. The article gives insights into legal and interdisciplinary considerations from an African-European perspective and calls for a progressive approach to the death penalty debate that works hand in hand with the legal understanding of the international community.

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* LLB (Mzumbe, Tanzania). This paper was presented to the Legal and Human Rights Centre (LHRC) in light of the hearing of 22 June 2009 regarding the petition of the LHRC and the Tanganyika Law Society to the High Court to press for the abolishment of the death penalty, filed on 10 October 2008.
** LLM (Aberdeen), PhD (Eberhard Karls); B_Kuschnik@gmx.de
1 R Skilbeck 'The death penalty in international law: Tools for abolition' paper presented at the Conference on the Application of the Death Penalty in Commonwealth Africa, Entebbe, Uganda, 10-11 May 2004;         [ Links ] see also Amnesty International 'The death penalty worldwide: Developments in 2003' http://www.amnesty.org/en/library/info/ACT50/007/2004/en (accessed 10 November 2009).         [ Links ]
2 L Chenwi Towards the abolition of the death penalty in Africa: A human rights perspective (2007) 29;         [ Links ] K Bojosi 'The death row phenomenon and the prohibition against torture and cruel, inhuman treatment' (2004) 4 African Human Rights Law Journal 303 304 n 5.         [ Links ]
3 Organic Law 31/2007 of 25 July 2007, Official Gazette Special No of 25 July 2007 (art.2); also see V Johnson 'Ruanda schafft die Todesstrafe ab' Die Tageszeitung 23 July 2007.         [ Links ]
4 See arts 23 & 77 International Criminal Court (ICC) Statute; art 19 SCSL Statute in conjunction with Rule 101; and ICTR and SCSL Rule 11 bis RPE.
5 See Prosecutor v Munyakazi, Decision on the Prosecutor's Request for Referral of Case to the Republic of Rwanda, Case ICTR-97-36-R11bis (28 May 2008).
6 A Boctor 'The abolition of the death penalty in Rwanda' (2009) 10 Human Rights Review 99 104.         [ Links ]
7 UN Human Rights Committee 'Rights panel concerned by clear breach of law in new Liberia Death penalty legislation', press release of 26 August 2008; http://www.unhchr.ch/huricane/huricane.nsf/view01/ 61384AE0E6D30F53C12574B10038C986?opendocument (accessed 16 September 2009).         [ Links ]
8 See Attorney-General v Susan Kigula & 417 Others Constitutional Appeal 3 of 2006 (21 January 2009), [2009] UGSC 6 (21 January 2009) http://www.saflii.org/ug/cases/UGSC/2009/6.html (accessed 10 November 2009); Uganda ratified the ICC Statute on 14 June 2002.
9 (1994) LRC 349. See also Mbushuu v Republic [1995] 1 LRC 216; (1994) TLR 154.
10 The term 'mirror theory' was introduced by W Ewald in his seminal work on comparative jurisprudence. See W Ewald 'Comparative jurisprudence (II): The logic of legal transplants' (1995) 43 American journal of Comparative Law 489 490.         [ Links ] In this regard, it is to be made clear that such a thing as the one and only mirror theory does not exist. Instead, there are different types of mirror theories. For greater clarity we shall use a simple example: According to mirror theorists, law is dependent upon a specific (social) value, which we shall call 'X' (X1 = geography, X2 = religion, X3 = 'Weltgeist', X4 = geography + religion, etc). Furthermore, the connection between law and value 'X' varies in strength according to the respective type of mirror theory. 'Strong mirror theorists', like Legrand, believe that law is always dependent upon 'X', or as Ewald elaborates, 'Law is nothing but X' with the result that 'Given the knowledge of X, it is possible to calculate the rules of law that will hold in the given society' (493). Also see Montesquieu De l'esprit des lois (1748) I 3 : '[.         [ Links ]..] les lois politiques et civiles de chaque nation [...] doivent être tellement propres au people pour lequel elles sont faites, que c'est un trés grand hazard si celles d'une nation peuvent convenir á une autre.' 'Weak mirror theorists', on the other hand, emphasise that 'Law and X are closely related' or, a knowledge of X is useful for understanding the rules of law that hold in a given society, but that law is not totally explicable in terms of X. Opponents of mirror theories, among others Watson, claim that law is mostly unconnected to culture as it is foremost applied by (legal) experts. However, Watson also admits that for particular areas of law, such as constitutional law, particularly the bill of rights and criminal law, the view whereby the non-detachment between law and culture exists, seems to be unfounded. See A Watson 'From legal transplants to legal formats' (1995) 43 American journal of Comparative Law 469 470.         [ Links ] The latter line of reasoning is a fortiori also applicable to death penalty debates.
11 Even though the national language of the Republic of Tanzania - until today - is Kiswahili, both Kiswahili and English remain official languages, thus having a direct effect on the interpretation of Tanzanian legal provisions, including the Constitution.
12 Mwalimu Julius Kambarage Nyerere became the first President of the United Republic of Tanzania; Sheikh Abed Aman Karume became the Vice-President of the United Republic of Tanzania. Sheikh Abed Aman Karume stayed in power until 1972 when he was assassinated by a close relative. Mwalimu Julius Kambarage Nyerere led the country until 1985.
13 Act 6, Cap 578.
14 Union matters include the Constitution of the United Republic of Tanzania; Foreign Affairs; Defence and Security; Police; emergency powers; citizenship; immigration; external borrowing and trade; service in the government of the United Republic of Tanzania; income tax payable by individuals and by corporations, customs duty and excise duty on goods manufactured in Tanzania collected by the customs department; harbour matters relating to air transport, posts and telecommunications; all matters concerning coinage currency for the purpose of legal tenders and all banking business; foreign exchange and exchange control; industrial licensing and statistics; higher education; mineral oil resources, including crude oil and natural gas; National Examinations Council of Tanzania and all matters connected with the functions of that Council; civil aviation; research; statistics; the Court of the Appeal of Tanzania; registration of political parties and other matters related to political parties. All these matters are entrusted to the Vice-President's office.
15 See arts 55(1) & 63(1) of the Zanzibar Constitution of 1984, which vest executive and legislative powers 'with respect to all matters in and for Zanzibar other than union matters' in the Revolutionary Government of Zanzibar, and the House of Representatives of Zanzibar respectively. The interaction between both Tanzanian and Zanzibarian governmental bodies is unclear even today, thus strengthening claims for an independent 'government of Tanganyika', even though the government of the United Republic of Tanzania strongly opposes this idea. In a speech representing the Nzega constituency when addressing parliament on 19 August 2008, Lukasi Seleli, member of parliament, categorically argued that, even though most of the Zanzibar population, including some of the ministers, claim that Zanzibar is known internationally as a complete independent country, Tanzanian 'mainlanders' were the ones to decide over union issues. Accordingly, at the end, Tanzania should go away from a bilateral governmental system (the Union Government and Revolutionary Government of Zanzibar) and resort to a single government (Government of United Republic of Tanzania). The said argument was also supported by Njelu Kasaka, the then member of parliament for Chunya and Lupa and leader of the G 55 Committee who advocated a three-government system in 1994 (Government of Tanganyika, Revolutionary Government of Zanzibar and Union Government). Kasaka contended that commitment is needed in order to keep the union alive, otherwise the beloved and cherished union will 'break irreparably'; Mtanzania newspaper, 20 August 2008, Viongozi wa Zanzibar wamkera Kasaka 1 4.
16 The United Republic of Tanzania, the Law Reform Commission of Tanzania, Final report on designated legislation in the Nyalali Commission Report; ch 3 (ii) 11 (1994).         [ Links ]
17 Sec 197 of Penal Act 6 of 2007 stipulates that '[a]ny person convicted of murder shall be sentenced to death'.
18 CM Peter (ed) Law and justice in Tanzania: Quarter a century of the Court of Appeal (2007) 69.
19 Given that under the Constitution the President may pardon any offender for any crime; and given that the Court of Appeals in Mbushuu linked the legality of the death penalty to its general acceptance within society, political and social justifications play an important role in the determination of the legality of the death penalty; see sec 4.2 below.
20 Law Commission of India 'Consultation paper on mode of execution of death sentence and incidental matters' cited in A Bahati J (Chairperson, Tanzania Law Reform Commission), 'The death penalty debate' (undated) http://www.doj.gov.za/alraesa/conferences/papers/ent_s4_bahati.pdf (accessed 10 November 2009); PH Filikunjombe 'Time to end the burden of waiting to execute death penalty' 18 July 2005; http://kurayangu.com/ipp/guardian/2005/07/18/44713.html (accessed 16 September 2009).
21 LP Shaidi 'The death penalty in Tanzania - Law and practice' (undated). 'This penalty [of capital punishment] has received ideological justification from the main religions, in our case Christianity and Islam. Many believers would not wish to question anything which they consider to have been sanctioned by their religion as taught by their religious leaders. In penological terms, capital punishment is a reflection of retributive justice, embodying the ancient maxim of 'an eye for an eye, a tooth for a tooth.' It is based on vengeance channelling public outrage into a legalised form of punishment. It is argued by its proponents that, in its absence, outraged people may be forced to seek vengeance through mob justice or individualised forms of revenge'; http://www.biicl.org/flles/2213_shaidi_death_penalty_tanzania.pdf (accessed 16 September 2009)
22 Issack s/o Nguvumali v Petro s/o Bikulako [1972] HCD 139; Kapasuu v Mwandilemo [1968] HCD 88.
23 Also see J Narloch Ritual murder and witchcraft in Southern Africa in relation to Unity Dow's 'The screaming of the innocent' (2007).
24 R v Palamba s/o Fundikira 14 EACA 96 (Tanganyika, 1947).
25 CM Peter & H Kijo-Bisimba justice and rule of law in Tanzania: Selected judgments of justice james L Mwalusanya and commentaries (2005) 60.
26 Comparably stated in the Holy Bible (In judiciis non est acceptio personarum habenda), Liber sextus 5:13 12.
27 Law Reform Commission of Tanzania 'Draft discussion paper on the review of capital punishment, corporal punishment and long term sentences in Tanzania' presented at the workshop held on 27 March 2008 in Dar es Salaam, 65 para 2.12; see also Prisons Headquarters, Ref.HQC.68/XIX/22 of June 2007.
28 Speech delivered by Kofi Annan; contained in Daily Press Briefing by the Office of the Spokesman for the Secretary-General, 20001218, United Nations, 18 December 2000, http://www.un.org/News/briefings/docs/2000/20001218.db121800.doc.html. (accessed 16 September 2009).
29 Until 1 August 2004 Tanzania had 391 prisoners waiting to be hanged; see Amnesty International's website http://www.amnesty.org/deathpenalty (accessed 2009); Amnesty International 2007 Annual Report Tanzania; http://www.amnestyusa.org/annualreport.php?id=ar&yr=2007&c=TZA (accessed 16 September 2009)
30 Amnesty International 2008 Annual Report Tanzania; http://www.amnestyusa.org/annualreport.php?id=ar&yr=2008&c=TZA (accessed 16 September 2009).
31 It was held in Mbushuu (n 9 above) 232 that there is no research available on why the death sentences were not carried out. See also International Federation for Human Rights (FIDH), Report 414/2 - April 2005, Tanzania: The death sentence institutionalised? (2005) 7.
32 Also note that one of the authors has elaborated on the related issue whether 'murder' - as a crime against humanity - necessarily requires an intentional commission under international criminal law; see B Kuschnik 'The legal findings of crimes against humanity in the Al-Dujail judgments of the Iraqi High Tribunal. A forerunner for the ICC?' (2008) 2 Chinese Journal of International Law (2008) 45 9 476.
33 Adopted by the UN General Assembly through Resolution 217A (III) of the UN, 10 December 1948.
34 Adopted by the UN General Assembly through Resolution 2200A (XXI) of 16 December 1966, and entered into force on 23 March 1976.
35 Adopted by the Organisation of African National Unity (OAU) Assembly of Heads of State and Government on 27 June 1981 at Banjul in The Gambia.
36 The right to dignity is provided for under arts 9(a) & (f) and 13(6)(d) of the Tanzanian Constitution. It is concerned with the observance of dignity in the execution of a sentence. The right to dignity and the right against cruel, inhuman and degrading punishment are provided for under art 13(6)(e) of the Tanzanian Constitution.
37 Arts 12 to 24 of the Tanzanian Constitution. The Zanzibar Constitution of 1984, through arts 13(1) and 13(2) respectively, states categorically that every person has the right to life and to the protection of his life from the society according to the law.
38 Chenwi (n 2 above) 83 n 131.
39 Shaidi (n 21 above) 2.
40 Adopted by the UN General Assembly through Resolution 3542, 9 December 1975.
41 356 US 86 (1958).
42 [1978] 2 EHRR 1.
43 This is a remarkable and highly encouraging line of reasoning by the Tanzanian courts, as it does not leave the decision of the Court blind to present conditions. The United States Supreme Court has taken an opposite view when considering the definition of torture under para 3(b)(1) of the Torture Victims Protection Act in regard to lawsuits under the US Alien Tort Claims Act; Filartiga v Pena-Irala 630 F2d (1980), 876 878 with Sosa v Alvarez - Machian et al, 542 US (2004) 692 ff.
44 Peter & Kijo-Bisimba (n 25 above) 252: 'The case of Mbushuu gave the judiciary an important opportunity to pronounce on this [capital] punishment. At the High Court level, the death penalty was declared to amount to torture, cruel, inhuman and degrading form of punishment and also unconstitutional. The position was not fully supported by the Court of Appeal which, while agreeing with the High Court that the death penalty contained some elements of torture, cruel, inhuman and degrading punishment still held that the right to life as contained in article 14 of the Constitution of the United Republic of Tanzania of 1977 was not absolute' (our emphasis). Also see the Kigula case in Uganda (n 8 above) 59; and the Bahati Report (n 20 above) 5.
45 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (10 December 1984) 23 International Legal Materials 1027, in modified version (1985) 24 International Legal Materials 535. Art 1 defines torture as 'any act which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as [...] intimidating or coercing him [or her] or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising from, inherent in or incidental to lawful sanctions'.
46 In this regard, see A Boulesbaa The UN Convention on Torture and the prospects for enforcement (1999) 31.
47 Art 2 of CAT reads: '(1) Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. (2) No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture. (3) An order from a superior officer or a public authority may not be invoked as a justification of torture' (our emphasis).
48 Al-Adsani v UK (judgment of 21 November 2001), ECHR Rep of Judgments and Decisions, 2001-XI, para 59; Chanhal v UK (judgment 15 November 1996), 1996-V, 1855, para 79; Aksoy v Turkey (judgment 18 December 1996) para 62; Soering v UK (judgment 7 July 1989), Series A No 161, 34, para 88; Filartiga v Peha-Irala 630 F 2d (1980) 876 882; Ireland v UK (judgment 18 January 1978), Series A No 25, 65 para 163; Pedro Pablo Camargo on behalf of Maria Fanny Suárez de Guerrero v Colombia (decision 31 March 1982) HRC Committee, Communication No 045/1979.
49 I Oh 'Islam and the reconsideration of human rights' University of Miami Paper Series (2005) 5. '[W]hile human rights norms remain the same across cultures at the core, these norms are blurry at the edges. [...] To illustrate, few societies, whether formerly colonized or colonising, would contest the right to freedom from torture (art 5 Universal Declaration), while many find the right to marry without restriction due to religion (art 16 Universal Declaration) disrespectful of traditional customs' (our emphasis); see further M Wagner 'The justification of torture: Some remarks on Alan M Dershowitz's 'Why terrorism works' (2003) 4 German Law journal 5 515; E de Wet 'The prohibition of torture as an international norm of jus cogens and its implications for national and customary law' (2004) 15 European journal of International Law 97.
50 Also see art 6(2) ICCPR and the General Comment of the Human Rights Committee 20(44) UN Doc CCPR/C/21/Rev/1/Add 3, para 6. It has been provided that '[t]he article [6] also refers generally to abolition in terms which strongly suggest (paras 2(2) and (6)) that abolition is desirable. [...] All measures of abolition should be considered as progress in the enjoyment of the right to life.' ICCPR has been ratified by 50 African states, among others, Tanzania. Also see W Schabas The abolition of death penalty in international law (2002) 192; Chenwi (n 2 above) 62: '[T]he trauvaux préparatoires and subsequent interpretations of article 6 provide strong evidence of a growing trend in favour of the abolishment of the death penalty.'
51 Schabas (n 49 above) 192.
52 See Schabas (n 49 above) where he states: 'Singapore again took the floor to affirm that "the debate in the conference clearly demonstrates that there is no international consensus on abolition of the death penalty". In fact, what the debate in the working group showed is that a relatively small number of states favoured retention of the death penalty and a very large number were opposed. This is a dramatic development when viewed from an historical perspective'(258) (our emphasis).
53 Schabas (n 49 above) further argues that '[t]he exclusion of the death penalty from the Rome Statute is a significant benchmark in the unquestionable trend towards universal abolition of capital punishment, although it shows that a few regions of the world continue to resist progress in this respect' (258). Also see European Union Annual Report on Human Rights, EU Memorandum on the Death Penalty, 11317/00 81.
54 Charter of Fundamental Rights of the European Union, 2000/C 364/1 (2000). As a matter of fact, the drafting of this provision was mainly influenced by the former German Federal President and President of the Convent drafting the Charter, Roman Herzog. Also see O Schachter 'Human dignity as a normative concept' (1983) 77 American Journal of International Law 848.
55 It is claimed here that the death penalty in whatever form (ie by hanging, gas chamber, lethal injection, use of electric chairs, etc) is a cruel and morbid method of punishment, and therefore not acceptable in any civilised society. Accordingly, in Soering v UK (judgment 7 July 1989), Series A No 161, 31, it was held that the death penalty, according to the evolving standards of Western Europe, was regarded as cruel and inhuman punishment.
56 Also see the position of the High Court in R v Mbushuu (n 9 above).
57 [1972] 408 US 238.
58 Compare sec 26 of the Tanzanian Penal Code with Lubasha Maderenya & Tegai Lebasha v Republic, High Court Mwanza, Criminal Sessions Case 143 (1977); also see CM Peter Human rights in Tanzania: Cases and materials (1997) 30.
59 See sec 197 of the Penal Code stating that 'if a woman convicted of an offence punishable with death is alleged to be pregnant, the court shall inquire into the fact and, if it is proved to the satisfaction of such court that she is pregnant the sentence to be passed shall be a sentence of imprisonment for life instead of a sentence of death'.
60 As stated by FIDH (n 31 above) 24, the issue of insanity and the imposition of the death penalty is rather complicated in Tanzanian law. According to outdated legal provisions, an insane offender may still be sentenced to death, if he cannot show that the illness was a conditio sine qua non for the commission of the crime. This reversion of the principle in dubio pro reo - coined as 'M'Nagthen Rules' - dates back to the case Rv M'Naghten (1843) 10 CL and F, 200. Also see Saidi Abdallah Mwamwindi v The Republic HCD No 212 (1972); Asha Mkwizu Hauli v The Republic, High Court of Tanzania at Dar es Salaam, Criminal Session Case 3 of (1984); and DPP v Leganzo Nyanje, Court of Appeal of Tanzania, Criminal Appeal 68 (1980); Agnes Doris Liundi v Republic, 46 TLR (1980). 'It is possible, indeed likely, that our law on the issue of insanity is antiquated and out of date. Parliament, in its wisdom, may wish to amend this particular branch of the law and bring it into line with modern medical knowledge on the subject.'
61 [1995] 1 LRC 216 232. Also see The Republic of Uganda in the Supreme Court of Uganda at Mengo, Constitutional Appeal 3 of 2006 (n 8 above) 35.
62 Bahati (n 20 above) 6.
63 [1993] TLR 22.
64 [1993] TLR 159.
65 Also note that, according to art 60 of the African Charter, in the interpretation of the Charter, the African Commission on Human and Peoples Rights shall draw inspiration from international law on human and people's rights. The African Charter also requires that the death penalty should only be imposed where substantive and procedural safeguards and restrictions on the imposition of the penalty are respected. See further M Nowak 'Is the death penalty an inhuman punishment?' in TS Orlin et al (eds) The jurisprudence of human rights law: A comparative interpretative approach (2000) 42.
66 NS Rodley The treatment of prisoners under international law (1999) 220.
67 The Willkür Formula is concretised in Germany by the so-called 'Katzenstein Formula', also called 'New Formula', stating that unequal treatment must be grounded on such form and quality as to justify the inequality; see BVerfGE 88 87 85 191.
68 [1995] TLR 232. The Court said: 'Whether or not legislation which derogates from a basic right of an individual is in public interest depends on first, its lawfulness, that is, it should not be arbitrary and second, on the proportionality test, that is, the limitation imposed should not be more than reasonably.'
69 The Supreme Court of Uganda adopted a similar interpretation in the Kigula case (n 8 above). The Court noted at 39 that '[i]n Tanzania the Court of Appeal in the Mbushuu [case] (supra) saved the death penalty under the general provisions on derogation from fundamental human rights. But in Uganda the Constitution specifically provides for it under a substantive article of the Constitution, ie article 22(1).'
70 F Selbmann The drafting of a law against discrimination on the grounds of racial or ethnic origin in Germany - Constraints in constitutional and European community law (2002) 3 4; J Kokott The burden of proof in comparative and international human rights law: Civil and common law approaches with special refence to the American and German legal systems (1997) 82.
71 In the South African case of S v Makwanyane & Mchunu 1995 3 SA 391, Chaskalson P, notwithstanding the Court of Appeal's Mbushuu decision above that was duly cited; de-emphasised the importance of public opinion in arriving at decisions on constitutional rights.
72 As above.
73 In support of this proposition, see the judgment of the High Court in Mbushuu (n 9 above).
74 See J Donohue & JJ Wolfers 'Uses and abuses of empirical evidence in the death penalty debate' (2006) 58 Stanford Law Review 791.
75 Bojosi (n 2 above) 303.
76 Associated Press 'Execution delayed one week after vein troubles' 15 September 2009 http://www.10tv.com/live/content/onnnews/stories/2009/09/15/execution_sched-uled.html?type=rss&cat=&sid=102&title=Execution+Preparations+Halted+Pending+Appeal (accessed 16 September 2009).
77 Donohue & Wolfers (n 73 above); J Choe 'Another look at the deterrent effect of death penalty' available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1353165 (accessed 16 September 2009).
78 See the survey of research on this subject conducted by Roger Hood for the UN in 1988 and updated in 2002, concluding that 'the statistics ... continue to point in the same direction is persuasive evidence that countries need not fear sudden and serious changes in the curve of crime if they reduce their reliance upon the death penalty'; R Hood The death penalty: A worldwide perspective (2002) 214.
79 FIDH (n 31 above) 5.
80 While art 4 of the United Republic of Tanzania Constitution categorically analyses the power and functions of each organ, the President is empowered to constitute and abolish any office in the service of the government of the United Republic of Tanzania (see art 36(1) of the Constitution of the United Republic of Tanzania). The President of the United Republic of Tanzania and the President of the Revolutionary Government of Zanzibar are also empowered to promote, to remove, to dismiss and to discipline such person in service of the government (see art 36(2) of the Tanzanian Constitution). The President also influences parliament in the following ways: He is empowered to appoint 10 members of parliament, and is empowered to dissolve parliament under the following circumstances: if the National Assembly refuses to approve a budget proposed by the government; if parliament fails to pass a bill which the President favours or if parliament insists on passing a bill that the President opposes; if parliament refuses to pass a motion considered of fundamental importance to government policies and the President considers that the way out is not to appoint another Prime Minister but to call a general election; having regard to the proportional representation of political parties in the National Assembly, the President considers that it is no longer legitimate for the government in power to continue in office and it is not feasible to form a new government.
81 To ensure independence, any judge is prohibited from joining any political party save only that he shall have the right to vote; art 113A of the Tanzanian Constitution of 1977 (as amended).
82 Art 109(2) of the Tanzanian Constitution of 1977 (as amended).
83 Art 118(2) of the Tanzanian Constitution of 1977 (as amended).
84 Art 118(3) of the Tanzanian Constitution of 1977 (as amended).
85 Art 113(2) of the Tanzanian Constitution of 1977 (as amended).
86 Art 112(1)(e) of the Tanzanian Constitution of 1977 (as amended).
87 Arts 108, 110, 112, 113 & 118 of the Tanzanian Constitution of 1977 (as amended).
88 Art 113(1)(a) of the Tanzanian Constitution of 1977 (as amended).
89 Arts 110(6), (7) & (8) and 120(5) of the Tanzanian Constitution of 1977 (as amended).
90 Arts 110(2) & (3) and 120(2) & (3) of the Tanzanian Constitution of 1977 (as amended).
91 See Shaidi (n 21 above) 3 where he states: 'The whole matter ... hinges on the goodwill of the President.'
92 SMZ v Machamo Khamisi Ali & 17 Others, Court of Appeal of Tanzania, Criminal Application 8 of 3 April 2000 (unreported). Machamo et al were charged with treason under sec 26 of the Penal Decree (Cap 13) of Zanzibar. The charge alleged that these persons 'by words and actions' intended and plotted to overthrow the government of Zanzibar and to remove from authority the President of the Revolutionary Government of Zanzibar. Before the High Court of Zanzibar, presided over by the then Deputy Chief Justice of Zanzibar, Tumaka, the accused persons raised a number of preliminary issues. One of these, which was the subject-matter of the Court of Appeal's ruling, stated that the offence of treason could not be committed or directed against the government of Zanzibar as it alleged in the indictment, since it is an offence against the Union only, ie United Republic of Tanzania. The Court of Appeal judges concurred with this objection and quashed the decision of the High Court of Zanzibar.
93 Christina John 'Police wanaongoza kwa rushwa Nipashe', 2 December 2003. Mrs John, then acting head of the Tanzania Prevention of Corruption Bureau, in the above presentation at the prevention of corruption workshop held in Dar es Salaam, reported that among all government departments, the police had the highest number of corruption allegations compared to the judiciary and the central government.
94 Speech by Omary Makungu (the then Minister of Constitution, Good Governance and Attorney-General of the Revolutionary Government of Zanzibar) on 1 October 2004; also see Peter (n 57 above) 27.
95 Bahati (n 20 above).
96 Press TV, 20/04/2007. An MP3 of the interview is available at: http://www.voanews.com/english/archive/2007-04/2007-04-30-voa2.cfm (accessed 16 September 2009).
97 From October and mid-December 2007, more than 20 Albinos were killed in Tanzania. Most of these killings took place in Mara, Arusha, Shinyanga, Mwanza and Kagera; see LRHC Newsletter, January 2008. Information obtained by LHRC's information officer in an interview with Mr Samwel Mluge, General Secretary of the Tanzania Albinos Association. The information was reinforced by Vicky Mtetema, BBC reporter, who on 22 July 2008 reproduced a recorded interview with two witchdoctors from Sengerema, Mwanza who allegedly purchased Albino organs for some time, and who verified that human body parts of Albinos such as legs, hair and hands may cost up to 2 million Tanzania shillings. Mwananchi newspaper of 16 August 2008 also reported that the business of Albino organ trade in Tanzania is now at the highest level ever as it is conducted across borders. According to this report, one Tanzanian was caught with an Albino's head when travelling from the Democratic Republic of Congo to Tanzania. In his interrogation, the person pointed out that he took the head to Tanzania as it is valued there as a precious and expensive commodity.
98 Speech by Omary Makungu (the former Minister of Constitution, Good Governance and Attorney-General of Revolutionary Government of Zanzibar) on 1 October 2004.
99 Government of the United Republic of Tanzania: Tume ya Rais ya Mfumo wa Chama Kimoja au Vyama Vingi vya Siasa, 1991, Part III.
100 The Tanzanian government declared in November 2008 that the proposal to abolish the death penalty would come at a wrong time, due to the aforementioned killing of Albinos; see http://english.nessunotocchicaino.it/archivio_news/200811.php7iddocumento =10321363&mover=0 (accessed 16 September 2009).
101 See L Philemon 'Rights activists seek end to death penalty' available at http://ip-216-69-164-44.ip.secureserver.net/ipp/guardian/2008/10/11/124311.html (accessed 16 September 2009).
102 See message from the LHRC on 15 September 2009; http://alpha.web2-netshine-hosting.co.uk/~lhrc/index.php?option=com_content&task=view&id=351&Itemid=52 (accessed 16 September 2009).