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.

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The first time I heard the death penalty passed in court was a moment I have never forgotten. And even though I witnessed courts pronouncing that sentence a number of times in the years that followed, the shock of the actual words was something that always hit me.

This week I have been wondering how reporters in Tanzania manage. Three months ago, the high court found against a group of human rights activists who had applied for the death penalty to be declared unconstitutional. According to the high court, there was not enough new evidence to challenge the death penalty.

Although the implication of the ruling is that the death penalty will continue to be lawful, it is understood that the decision could be taken on appeal. It is now 25 years since the last execution was carried out in Tanzania, and the country’s President John Magufuli, despite his reputation for intolerance of criticism, has said he should not be asked to agree to execute any prisoner. He did not want to have to make this ‘difficult decision’, he said.

But even a small sample of criminal trials and appeals will show that Tanzanian judges continue to pronounce the death penalty as though it was actually real. This is largely because the penal code requires that the death penalty should be passed in the case of people convicted of murder. Treason and terrorism along with certain military punishments also attract capital punishment.

A number of trials finalised over the last month have added to the population of death row, none more spectacularly than the witchcraft trial of nine accused, completed a fortnight ago by Judge Elvin Mugeta. In dramatic words, the judge began his decision by recalling that the central characters in the case had been Fidelis Pelagia, a 19 year old woman, and her mother Maliciana Gerald, both of whom had been tortured in mob justice. The younger woman, who suffered extensive burns, had suffered the additional torture of seeing her mother burnt to death on allegations of witchcraft.

Some members of their community alleged the older woman had bewitched ‘Byera’, the wife of ‘Moses’, whose nephew had later formed part of the mob that attacked the mother and daughter.

Early one morning Pelagia and Gerald went out to the family farm. Several people sought them out and took the mother and daughter to the house of Moses, where they found Byera lying naked. She stood up and claimed that Gerald had bewitched her. The two women were then dragged back to their own home, being assaulted all the way.

In their home the kitchen was burnt and the older woman was taken to the farmlands where she was burnt to death. As the judge put it, the killers then went away leaving Pelagia ‘alone, staring at the dead, burned body of her mother’.

The younger woman, who suffered serious burn wounds at the hands of the mob after they dropped melting plastic bottles on her body, was able to phone some local officials to tell them what had happened.

Nine were ultimately arrested. Though the mob had been much bigger, the others were never found or arrested.

Legally, perhaps the most unusual feature of this case is that the two assessors found the accused not guilty. But the judge said he disagreed with them, saying they had ‘misapprehended the evidence’ and erred in their conclusion.

The judge then trawled through all the evidence again, paying particular attention to the issues raised by the assessors and explaining why he could not agree. He also spent time discussing one of the accused who had been a minor at the time of his alleged involvement in the murder. Despite his age at the time, however, he was identified at the person who set Gerald alight, using petrol and a bicycle tyre.

Judge Mugeta found the evidence against one of the accused insufficient to convict her, but declared all the rest were guilty. The accused who had been a minor at the time had been in custody since 2016. ‘This is enough punishment. I hereby discharge him without any order,’ said the judge.

As for the rest: they ‘are hereby sentenced to suffer death by hanging’.

October 10 is marked each year as ‘World Day against the death penalty’. According to the Legal and Human Rights Centre, a Tanzanian NGO that strongly advocates an end to capital punishment, there were almost 500 people on death row in 2017 at the time Magufuli expressed his reluctance to be involved in activating the death penalty against anyone sentenced to capital punishment. In response to his comments, top officials of the Legal and Human Rights Centre said that, in view of his concerns about the issue of the death penalty, Magufuli should use his influence to make changes in the law. This would ‘relieve judges and magistrates’ of the difficulties they constantly face in deciding on death penalty rulings.

But despite Magufuli’s comments, and calls that he act to change the law – something he has not done – the number of cases in which the death penalty has been passed, continues to grow. In September alone, for example, high court decisions added at least another eight to the list.

  • ‘A matter of justice’, Legalbrief, 8 October 2019