Tanzania’s bail laws have been brought into line with the country’s constitution, following an application by a member of the legal profession. But in the aftermath of the decision there’s confusion and concern, mostly related to the appeal noted by the government the day after judgment was delivered this week. The high court judgment by three judges deals with the problem that the law makes certain offences ‘unbailable’. How does this square with judicial discretion, the petitioner asked.
Our lead story this week is the most extraordinary tale of one man’s devotion to judicial independence. It is about a judge in Thailand who decided on death rather than dishonouring his oath of office. But, like the two other stories, it is also about the death penalty.
Judge Khanakorn Pianchana had found he should acquit the accused on trial before him. Before he could deliver his judgment, however, the chief judge ordered him to change his verdict: Instead of acquittal, three of the accused were to be sentenced to death; the other two to life imprisonment. Had he agreed to this, not only would he have violated his oath of office in obedience to political demands, he would also have sent three people to death row, unconvinced that they were guilty.
A full bench of three high court judges has re-affirmed that the mandatory death penalty in Tanzania is constitutionally valid. No new factors had been given to the court to indicate that anything had changed since the last time the issue was considered by the judiciary, said the judges, so they could not vary the previous decisions or rehear the issue ‘on the same facts’. But, they said, the issue could be taken to the highest court via review if the petitioners felt strongly about the matter.
A recent witchcraft trial in Tanzania has led to a further seven people being added to the well over 500 convicts believed to be on death row. The case illustrates the difficult position in which Tanzanian courts find themselves: the death penalty is still applicable to murder and a few other serious offences and just three months ago the high court declared it was unable to change the law in relation to the death penalty. This despite the country’s president, John Magufuli, declaring that he would be unable to sign the documents required for anyone to be actually executed. He would find it just too difficult to do so, he said. So, while capital punishment has not been carried out for the last 25 years, the courts continue to pass the death penalty, and the numbers of condemned prisoners continues to grow.
When prominent Tanzanian legal counsel, Fatma Karume, argued a recent case in the high court of Tanzania, she could not have anticipated the full outcome. Sure, she lost the case, but this is something all lawyers must assume may happen at any time and in any case. But how could she have known she would also raise the anger of her court opponents and the presiding judge? Citing argument by opposing counsel that her argument had been rude and ‘inappropriate’, the judge decided to suspend Karume – immediate past president of the Tanganyika Law Society – from practice. He also ordered the registrar of the high court to refer a ‘professional misconduct matter’ to the advocate’s disciplinary committee.