27. The Respondent State affirms that the Court of Appeal is the highest court of the land, adding
that this Court did find that the death penalty is provided for by Article 30(2) (c) of the Constitution and
that it is not a claw back clause.
th
28. The State further asserts that the 14 Constitutional Amendment (the Amendment) expunged
some of the so called ‘ claw back’ clauses, and that this Amendment did not oust the legislative
powers of the National assembly to enact laws. It also states that the Amendment did not oust the
powers of the Court to interpret the Constitution and other enactments of the National Assembly by
virtue of the rules of interpretation. According to the Respondent State therefore, the Amendment did
not in any way render the judgment of the Court of Appeal outdated, adding that Article 30 gives room
for the Court to interpret laws of the land as it did.
29. The Respondent State submits that the death penalty is still a lawful punishment in Tanzania,
and that the decision of the Court of Appeal will continue to be respected because it is the highest
Court in the land. It adds that, even though the State Party is bound by international instruments it has
ratified, domestic laws will still prevail to serve specific situations.
Complainants’ additional submissions on admissibility
30. In their additional submissions on admissibility, the Complainants reiterate the fact that they have
fulfilled all the requirements under Article 56 of the African Charter.
31. The Complainants submit that Article Article 56.1 has been fulfilled because a signed copy of the
list of the authors was attached to the Complaint brought before the African Commission.
32. They further submit that the requirement under Article 56.2 has also been met because the Court
th
of Appeals’ decision of 30 January 1995 constitutes a violation of Article 4 of the African Charter.
33. With respect to Article 56.3, the Complainants submit that it has been met because the
communication is not written in an insulting language.
34. They state that the communication is in line with Article 56.4 because it is not based exclusively
on news disseminated through the mass media, but rather on Court judgments and on the past and
present jurisprudence on the death penalty.
35. The Complainants state further that the requirement under Article 56.5 has been complied with,
because they have exhausted all local remedies. They elaborate on this by explaining that they took
the matter to the Appeal Court of Tanzania, which is the highest Court in the land, before bringing it to
the African Commission.
36. The Complainants further state that they have fulfilled Article 56.6 of the African Charter because
the communication was brought to the African Commission within a reasonable period of time, after
the Court of Appeal’s decision on the case.
37. Finally, the Complainants aver that the communication is in line with Article 56.7 because it has
not been submitted to any other international body for settlement.
Respondent State’s additional submissions on admissibility
38. The Respondent State made additional submissions on admissibility addressing the requirements
in Articles 56(2), 56(5)and 56(6) of the African Charter.
39. The Respondent State refutes the Complainants’ submission that they have fulfilled Article
56.2 of the African Charter. According to the Respondent State, the Complainants have not
demonstrated the extent to which the communication is in conformity with the provisions of the African
Charter.
40. They state that, apart from citing Article 4 which deals with the right to life, they have not
indicated any other provisions in relation to torture which is the basis of their communication. In the
absence of specific provisions related to torture, the Respondent State submits that the
communication is “wild, vague, and hence incompatible with the provisions of the Charter and it
violates Article 56(2)”.
41. With regard to Article 56.5, the Respondent State disputes the fact that local remedies have been
exhausted. It submits that the accused persons in the Mbushuu’ case were charged and convicted of