68. As this Court held in the matter of Ally Rajabu and Others v. United Republic
of Tanzania, imposition of the mandatory death penalty constitutes a
violation of the right to life under Article 4 of the Charter as it contravenes
the right to a fair trial.16 The Court recalls that its findings in the Rajabu
judgment made a general determination to the effect that encroachment on
the right to life is arbitrary in instances where the law takes away from the
sentencing authority any leeway to consider circumstances peculiar to the
Applicant or the commission of the offence.17 Notably, the Applicant in the
Rajabu matter did not actually advance the specific circumstances which
the sentencing judge failed to examine but only made a case of the
mandatory death penalty not comporting with the right to a fair trial for lack
of judicial discretion to consider circumstances peculiar not only to the
accused but also to the actual commission of the offence. This reasoning
was equally applied in Amini Juma v. Tanzania, which is a decision
subsequent to the Rajabu judgment but in respect of similar issues.18
69. The Court notes that, in the initial Application, the Applicant’s allegation was
that the sentencing court failed to consider the specific fact that he was
under the effect of some narcotic substance at the time of the offence.
However, submissions made in the amended pleadings tend to raise the
level of attenuating circumstances by demonstrating that the Applicant
specifically suffered permanent insanity, but also that the report on his state
of health was superficial, and other details were not taken into account by
the sentencing judge.
70. In view of the Applicant’s submissions as a whole, the issue at stake boils
down to the special circumstances of this case namely as to whether the
Applicant’s right to life was violated because domestic courts did not take
into account all aspects of the defence of insanity while sentencing him to
16
Ally Rajabu and Others v. United Republic of Tanzania (merits and reparations) (28 November 2019)
3 AfCLR 539, §§ 104-114. See also, Amini Juma v. United Republic of Tanzania, ACtHPR, Application
No. 024/2016, Judgment of 30 September 2021, §§ 120-131.
17 Ally Rajabu v. Tanzania, §§ 109-114.
18 Amini Juma v. Tanzania, §§ 116-131.
18