146. The Court notes that its finding of a violation in the present Application only
pertains to the non-compliance with the Charter of the mandatory death
penalty as well as the means chosen by the Respondent State for executing
convicts. Without minimising the gravity of the violations, the Court
considers that the nature of the violations does not reveal any
circumstances that signifies that the Applicant’s imprisonment amounts to a
miscarriage of justice or an arbitrary decision. The Applicant also failed to
elaborate on specific and compelling circumstances to justify the order for
his release. The prayer for release is, therefore, not warranted, and the
Court consequently dismisses the same.51
147. While the Applicant’s prayer for release is not warranted, he was sentenced
to death under a regime which did not accord the domestic Courts discretion
on the sentence. Given that the Court had found the mandatory sentencing
regime to be inconsistent with the Charter, it is necessary for it to make an
order dealing with this sentencing regime.
148. In connection to the Applicant’s prayers, the Court recalls that it has held
that orders such as vacating the death sentence are to be determined on a
case-by case basis having due consideration mainly to proportionality
between the measure sought and the extent of the violation established.52
In the instant Application, given that the provision for the mandatory
imposition of the death sentence in the Respondent State’s legal framework
violates the right to life protected in Article 4 of the Charter, the Court,
therefore, orders the Respondent State to vacate the Applicant’s death
penalty and remove him from death row.
ii. Rehearing
149. Although the Applicant did do not make any prayer for re-hearing of his
case, the Court considers that it is in the interests of justice to make an order
51
Stephen John Rutakikirwa v. United Republic of Tanzania, ACtHPR, Application No. 013/2016,
Judgment of 24 March 2022 (merits and reparations), § 88.
52 Rajabu and others v. Tanzania, supra, § 156.
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