146. With regard to the Applicant’s prayer of restoration of liberty, the Court
recalls its jurisprudence in the case of Gozbert Henerico v. United Republic
of Tanzania where it held that:
The Court can only order a release if an Applicant sufficiently
demonstrates or if the Court by itself establishes from its findings that
the Applicant’s arrest or conviction is based entirely on arbitrary
considerations and that his continued detention would occasion a
miscarriage of justice.77
147. In the instant case, the Court notes that the violations did not impact on the
Applicant’s guilt and conviction. The sentencing is affected only to the extent
of the mandatory nature of the death penalty and its execution by hanging.78
148. In the light foregoing, the Court holds that the order for release of the
Applicant is not warranted. Consequently, the prayer is dismissed.
149. Having dismissed the prayer for release, and in light of its findings and
orders relating to the mandatory imposition of the death sentence, this Court
considers that an alternative measure is warranted to give effect to the said
findings and orders. The Court, therefore, orders the Respondent State to
take all necessary measures, within one year of the notification of this
judgment, for the rehearing of the case on the sentencing of the Applicant
through a procedure that does not allow the mandatory imposition of the
death sentence, and which upholds the discretion of the judicial officer. 79
77 Henerico v. Tanzania (merits and reparations), supra, § 202; Mgosi Mwita Makungu v. United Republic
of Tanzania (merits) (7 December 2018) 2 AfCLR 550, § 84; Minani Evarist v. United Republic of
Tanzania (merits and reparations) (21 September 2018) 2 AfCLR 402, § 82 and Juma v. Tanzania
(judgment), supra, § 165.
78 Nzigiyimana Zabron v. United Republic of Tanzania, Application 051/2016, ACtHPR, Judgment of 4
June 2024 (merits and reparations) § 55.
79 Rajabu and Others v. Tanzania, supra, § 171 (xvi); Juma v. Tanzania, supra, § 174 (xvii); Henerico
v. Tanzania, supra, § 217 (xvi); Mwita v. Tanzania, supra, § 184 (xviii).
40