Article/ Feature
11/October/2010
Death Penalty: Vengeance or Wild Justice?
By: Clarence KIPOBOTA (Advocate)*
Death Penalty is still retained in the Tanzanian penal laws, in particular the Penal Code, Cap. 16 and the National Defence Act, Cap. 192. The three offences, which are punishable by the death penalty in Tanzania, are murder (section 197 of the Penal Code), treason (sections 39 and 40 of the Penal Code) and misconduct of commanders or any service (military) man in the presence of an enemy (first schedule to the National Defence Act).
This penalty is executed by handing the person who is convicted until when he or she dies. But it is not applicable to pregnant women and children under eighteen. The justification for exonerating pregnant women from the rope is to hoard the life of innocent child who grows in the womb of the convicted mother. Either way, this does not bring much sense as long as it is retained for others even if they are guilty.
The current report by Legal and Human Rights Centre (LHRC) shows that, total of 137 countries (68.5 percent) had already abolished death penalty in 2009. That means, Tanzania remained to be one of only 63 countries (31.5 percent) around the world which still retained the death penalty in their statute books.
May be it is not appropriate to view country’s legal and human rights progress through what is happening around the world. But again, the global trend is vital for measuring country’s commitment to international human rights obligations. Hence, inevitable.
The world’s coalition against this penalty stages a move to call for abolishment. Some of the rights groups in Tanzania, mostly LHRC, SAHRiNGON-T, Zanzibar Legal Service Centre (ZLSC) and the Tanganyika Law Society (TLS) escalate the move on part of Tanzania.
The government and the public has picked the pace but with different sentiments and sides. One side is in favor and the other side is against the penalty. This article scribes for the later group.
Those who are in favor of the punishment collectively and generally state that, “capital” offences such us murder and treasons should be controlled by “capital” punishment. In other word, revenging.
As for those who are against it, advance the arguments that, it is inhuman, degrading, and none-deterrence kind of punishment. So to speak, it does not meet the essence of punishing the criminals.
Criminologists maintain that, essence of punishing a criminal including the killers should be either to deter other people from engaging in illegal acts; restitute or partially return the victim to the same status (status quo ante); rehabilitate the criminal to make him or her a better citizen afterwards; incapacitate or restraining his or her freedom and retribution (not revenge) in order to inflict pain to the wrong doer as part of reforming him or her.
Countries like Tanzania, which still revenge by sanctioning the killing of the killer, miss these points. In fact, fail even to justify the retention of this punishment in the statute books.
The rates of crimes steadily increase instead of decreasing. For instance, the statistical information suggests that, despite the executions of murderers between 1961 and 1995, the incidences of offences which are punishable by the death penalty were increasing and are still increasing from 46 convicts in 1961 to more than 2,000 in 2010.
The message here is that, root causes of the crimes as it is explained below, should be traced rather than ‘managing the crisis’ after the occurrence. That is, instead of controlling the crimes by punishing the criminals, the best way should be to prevent the crime.
This brings in another point to consider in detail. That is, whether the current Penal Code, Cap. 16 is controlling or preventing the crimes. May be this needs kind or in-depth survey plus reviewing whole package of criminal justice system of Tanzania. For instance, by considering current legal and institutional capacities of law enforcers to see whether it fits into current criminal trend. Of course, other socio-economic factors such as poverty and globalization could be taken into account.
The Legal Sector Reform Programme is doing its part, though in a rather small and less momentous speed. It might be facing some challenges which the government should rectify. Something could be done to make it more effective and appealing to the overgrowing challenges of the legal sector in Tanzania.
Until then, the poor majority of Tanzanians would possibly been convicted and hanged while they are innocent. This is important argument against death penalty because findings already show that, several innocent people find themselves in death row because they failed to make their defence.
When we talk of effective criminal justice system, we refer to issues like number of motivated police officers to carry out investigation, investigation mechanisms to proof the connectivity between the accused person and the crime, the detention and remand facilities for suspects, legal representation of experienced lawyers and so on.
Moreover, the unfriendly situation of police custody and prisons tends to incapacitate the suspects psychologically. At the time when they are aligned to answer their charges, they find themselves incapable of recalling key facts for their defence.
The number of Advocates in Tanzania, which is less than 1,300 for a population of 40 million people, is insufficient. Most of the practicing advocates are based in Dar es Salaam and Arusha. This means, most of the suspects are not represented. Therefore, for those who cannot make their defence because of those factors, face a danger of being convicted while they are innocent.
On the social part of argument, policy and legal makers should understand the fact that, in every society there are insolent and rude people who do not fear death. In fact, in other countries this situation is enrooted in the spirit of their rituals. Some of them even think that if someone kills another person for a certain purpose, he or she has done a holy forfeit. In this way, the death penalty to them is actually a sacrifice and blessing but not a punishment. If this is not observed, soon or later, we will have a nation in which killing is not a feared fate.
A common argument which whirls around is that if we say death penalty is injustice what about the justice of those who have been murdered. The response to this revolves around same arguments stated above. That is, execution of the killer does not bring back the life of the person killed or mitigate the suffering of the relatives of the victims.
May be the best way should be to confine the ‘killer’ in jail with hard productive community works such as construction of schools for street children, hospitals for women and elderly groups and so on. These ‘killers’ can feed and cloth for themselves through the work they are doing. Families of the victims can actually be restituted through the money obtained from the work done.
As I repeat once again, it is almost accepted that, we cannot manage to curb crimes entirely because of the nature of human being. The passion and desire cause people to commit crimes, sometimes without evil intention.
The criminologists suggest that cruelty like murder cases usually springs from certain social weaknesses. In fact, it is a society which prepares crimes and the criminal commit the same. The reasons as said above can be poverty. It can also be unjust or insufficient legal system or degrading of morals. It is time to think wide and outside the box as we move on with the Legal Sector Reform Programme in Tanzania.
Moreover, as pointed out earlier on, since Tanzania is part of what goes on at international level, especially its obligation to the international human rights treaties, it is high time now for the government to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights, which aims to abolish the death penalty.
Finally we should not that, while those (colonialists) who initiated in the statutes are busy doing away with it and most of them have actually abolished it, Tanzania and other several African countries are still tenaciously cuddle it.
It is therefore this call that Tanzania should join the world’s movement to abolish this penalty. Let us stop this wild justice as its time has gone.
* Clarence KIPOBOTA holds Bachelor of Laws Degree (LL.B (Hons)), Masters of Community Economic Development (Msc. CED) and Certificates in Human Rights and UN Treaty Monitoring Bodies. He is an Advocate of the High Court of Tanzania, currently working as Legal Consultant with LEGAL AND DEVELOPMENT CONSULTANTS LIMITED (LEDECO). He is also Human Rights Activist. Email: kipobota@yahoo.com Tel: +255 762776281/ +255 222700695.
