165. With respect to the prayer for release, the Court recalls its position in
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.79
166. The Court notes that the violations found in the present judgment do not
impact on the Applicant’s guilt and conviction, and the sentencing is affected
only to the extent of the mandatory nature of the penalty. The commission
of the offence as adjudicated by domestic courts has thus remained
unaffected in the proceedings before this Court. Further, the order made
above for a rehearing of the Applicant’s case on sentencing demand that he
remains in custody pending the said proceedings. The prayer for release is
consequently declined.
iv. Publication of the Judgment
167. Though the Applicant did not make any request for publication of this
judgment, pursuant to Article 27 of the Protocol and its inherent powers, the
Court will consider this measure. In its previous judgments, the Court has
suo motu ordered the publication of its judgments after taking into account
the circumstances of the cases.80
168. The Court observes that, in the present Application, the violation of the right
to life by the provision on the mandatory imposition of the death penalty
goes beyond the individual case of the Applicant. The Court notes that
threats to life associated with the mandatory death penalty remain alive in
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.
80 Mwita v. Tanzania (judgment), ibid, §§ 175-176; Rajabu and Others v. Tanzania (merits and
reparations), supra, § 165 and Henerico v. Tanzania (merits and reparations), supra, §§ 208-210.
79
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