The death penalty (capital punishment) is abolished in many African countries and applied under exceptional circumstances in 16 of the 30 African countries where it is retained. However, Tanzania still sentences convicted murderers to death, as allowed under Section 197 of the Penal Code of Tanzania. The African Court on Human and Peoples’ Rights (the African Court) has recently affirmed that this is both a legal and human rights concern.

The global abolishment of capital punishment is due to its violation of the most fundamental human rights. In 1984 Tanzania ratified the African Charter on Human and Peoples’ Rights (the African Charter) which reflects the country’s commitment and involvement in the African human rights framework. The African Charter’s Resolutions and Protocol accentuate the necessity of protecting the right to life and advancing to abolishing capital punishment in Africa. Furthermore, the Tanzanian Constitution makes provision for the right to life, stating that “every person has the right to live and to the protection of his life by the society in accordance with the law.”

In the recent February 2024 judgment in Crospery Gabriel & another v United Republic of Tanzania,  the African Court ordered Tanzania to review and report on its Penal Code within six months and publish within three months the rehearing of the cases of two death row applicants without the presupposition of capital punishment. This case reinforces the African Charter as a legal instrument which promotes and protects fundamental human rights and basic freedoms in Africa by contributing to the abolishment of capital punishment.

The Tanzanian death row inmates (the applicants) in this case were two of the four accused individuals whose actions led to the death of a seven-year-old child when they forcefully entered a family home and inflicted certain family members with machete injuries. They were arrested and charged with murder by the Bukoba High Court. In 2014, the applicants were convicted of the offence of murder and sentenced to death by hanging by the High Court. The applicants then filed a memorandum in 2016 complaining of violations of fundamental rights and justice to the African Court against the United Republic of Tanzania under the African Charter, namely, the rights to non-discrimination (Article 2), equality (Article 3), life (Article 4), human dignity (Article 5), and to a fair trial (Article 7).

In this judgment, as in its prior judgment in Rajabu v Tanzania, the Court ordered Tanzania to “undertake all necessary measures to repeal from the Penal Code the provision for the mandatory imposition of the death sentence.” Similarly, the Court in another recent judgment, Lazaro v Tanzania, found that the imposition of capital punishment by hanging is “inherently degrading”. This apparent irreconcilability of capital punishment to the African Charter is sufficient for legislative changes. As Judge Dumisa Buhle Ntsebeza in his judgment declaration reiterated, capital punishment by hanging is undebatably a human rights offence and compromises “the fundamental principles of human dignity, justice, and equality.”

Since Tanzania is now governed by the rule of law, the numerous decisions by the African Court that call for Tanzania to do away with this colonial relic that is capital punishment are calls for Tanzania to adhere to its own Constitution. The argument that, as an African country, it would be impossible for Tanzania to get rid of capital punishment does not hold much weight in light of the fact that more African countries continue to abolish capital punishment. For example, Zambia in 2022 amended the Penal Code Bill Number 25 by replacing the death sentence with life imprisonment. Zimbabwe in February 2024 also restricted the scope of capital punishment, but international and regional human rights standards require abolishing capital punishment in all circumstances, thus the Zimbabwean amendment is not exemplary.

Despite the de facto moratorium on executions since 1994, the Tanzanian courts persist in sentencing people to death, and in Kambole v the Attorney General of Tanzania in 2019 the High Court of Tanzania ruled to uphold the death penalty. The judgment of the African Court serves as a reminder to Tanzania of its commitment to reinforce human rights and urges the Tanzanian government to make necessary amendments to do away with the inhumane injustice that is capital punishment.