offiI",,r
on 28 November 2019. without opposing the operative part, it is nevertheless
necessary, on my part, to say that it would have been clearer for the court to
take a more straightforward line in its motives. while invalidating Tanzania's
provisions on the mandatory death penalty, it left this useless ,,chiaroscuro" on
the law applicable to the death penalty irt Africa. lt missed an opportunity to
strengthen international law on this point. This assessment of the law on the
death penalty, by distinction of category of crimes or offenses, is no longer, de
jure,likely to be supported. This court, the Human Rights court, should
align
itself with the evolution of international law.
2. An application was presented to the c;xtirf;iArusha
on 26 March 2015 by
Messrs. Ally Rajabu, Angaja Kazeni alias'oria, Geofrey stanley alias Babu,
Emmanuel Michael alias Atuu and Julius Petro, Tanzanian nationals sentenced
to death for murder. The question of its admissibility and that of jurisdiction did
not embarrass the Court, which setfled them without difficultyl. However, on
the merits, what remained was to take a clear position on the question of
mandatory sentence which was the sentence confirmed by the national judges.
3.
The problem arises from the interpretation of,g 10g of the judgment which reads
as follows: "the court notes that Article 4 of the charter, while not prohibiting
the death penalty, is essentially devoted to the right to life
considered
"inviolable" and aims to guarantee "the integrity" and therefore the sanctity of
human life. The court further notes that Article 4 of the charter makes no
mention of the death penalty"z. Howevqr, evgn though it is said, the prohibitive
legal elements of punishment are now legion on the international level3. lt is up
to the judge to give them the desired effect.
1
ArcHP4 Mauer of Rajobu and others v. (Jnited Republic ofranzania, g December 2019, 14-53.
$
ldem., $ lO8.
3 Resolution (NRES/441128)
is titled *Elaboration ofa Second optional Protocol to the lnternational Covenant on
Civil and Political Rights, aiming at the Abolition of the Death Penalty" was voted on 5 January t 990(A/44lpv.g2,
2
p.8-9).
2