THOMAS MJENGI v REPUBLIC 1992 TLR 157 (HC)

THOMAS MJENGI v REPUBLIC 1992 TLR 157 (HC)

Court High Court of Tanzania - Domoma

Judge Mwalusanya J

23 June, 1992

Flynote

Legal Representation - Legal Aid - Denial of right to legal aid paid for by the state -

Right B to be informed of the right to legal representation by the trial court.

Criminal Practice and Procedure - Sentencing - Power of subordinate courts in

sentencing - Mandatory minimum sentence of 30 years imprisonment

unconstitutional - Corporal C punishment unconstitutional - The disproportionate

test.

Constitutional Law - Derogation clause - Interpretation and applicability.

Criminal Law - Armed Robbery - An offence under section 285 and 286 of the Penal

Code. D

-Headnote

In an appeal against conviction and sentence the judge found that the subordinate

trial court erred in not informing the appellants of their right to free legal aid paid for

by the state and that the subordinate trial court had no power to sentence the

appellants to a E term of imprisonment of a period exceeding eight years. The judge

also found that the mandatory minimum sentence of 30 years imprisonment and

corporal punishment were unconstitutional and were not saved by the derogation

clause in the constitution. The judge also found that the offence of armed robbery

exists in the Penal Code. F

Held: (i) The trial is a nullity because the appellants who are indigent were denied of

their statutory and constitutional right to legal representation paid for by the state; G

(ii) the trial was also a nullity because the appellants were not informed of

their right to have legal representation;

(iii) as regards sentence, the final magistrate had no power to pass a sentence

of over eight years imprisonment;

H (iv) the mandatory minimum sentence of 30 years imprisonment under the

minimum sentences Act No. 1 of 1972 as amended by Act No. 10 of 1989 is

unconstitutional and void because it is an inhuman and degrading punishment;

(v) the mandatory minimum sentence of 122 strokes of corporal punishment is

unconstitutional and void as it is an inhuman I

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MWALUSANY J

and degrading punishment prohibited by article 13(b)(e) of the Constitution. The A

proper test whether a punishment is inhuman and degrading is the disproportionate

test;

(vi) a derogation clause should not be interpreted as entitling the government

to impose vague or arbitrary limitations on basic human rights; but that limitation

should B be reasonable and only be invoked when there exists adequate safeguards

and effective remedies against abuse;

(vii) armed robbery is provided for in sections 285 and 286 of the Penal Code.

It is committed where the offender is armed with any dangerous or offensive weapon

or instrument. C

[zJDz]Judgment

Mwalusanya, J.:

I. Introduction D

The two appellants Thomas s/o Mjengi and Ramadhani s/o Mussa whose appeals have

been consolidated were charged and convicted of robbery with violence c/s 285 and

286 of the Penal Code Cap. 16. They were each sentenced to the prescribed minimum

sentence of 30 years imprisonment and ten(sic) strokes of corporal punishment. They

E are now appealing against conviction and sentence. Under s.3 of the Legal Aid

(Criminal Proceedings) Act No. 21/1969 I granted legal aid to the two appellants so

that an advocate paid for by the government could argue their appeals. One Mr. F

Mbezi was assigned to prosecute the appeal on behalf of the appellants.

Counsel for the appellants Mr. Mbezi in his amended memorandum of appeal, raised

three matters of constitutional importance and which are of public interests. The

matters involve the interpretation of our Constitution with regard to the basic

freedoms and G rights. The Senior State Attorney, Dodoma who is the representative

of the Attorney General was duly served with the amended memorandum of appeal

and was quite aware of the constitutional matters raised - and so s. 17A(2) of the cap.

360 as amended by Act No. 27/1991 was duly complied with. H

The three constitutional matters raised are:

First that the trial was a nullity because the indigent appellants were denied their

right to free legal aid payable by the state nor were they informed of their right to

engage counsel at their own expense; secondly that the mandatory Minimum

Sentence of 30 I years imprisonment is an inhuman and degrading punishment and

so

1992 TLR p159

MWALUSANY J

unconstitutional; Thirdly that corporal punishment is an inhuman and degrading A

punishment and so unconstitutional. Besides those three constitutional matters,

counsel Mr. Mbezi has also stated that the conviction was against the weight of

evidence; and that the appellants were convicted of armed robbery an offence which

is non-existence in the Penal Code and in any case they were convicted with an

offence they had not B been charged with.

II. The Right to Legal Representation

On this point counsel for the appellants Mr. Mbezi based his argument on my recent

C decision in the case of Khamisi Hamis Manywele v R. Dodoma H.C. Crim. Appeal

No. 39/1990 (unreported), which I understand has gone to the Tanzania Court of

Appeal, on appeal by the D.P.P. Therefore I will not spend much time discussing the

genesis of the right to legal representation, as most of the points canvassed were D

thoroughly documented in the Manywele case (supra).

Suffice here to briefly state what that right is all about. The right to legal

representation stands on two legs: The constitutional right and the statutory right. E

The constitutional right to legal representation stands on two legs - first under Art.

13(6)(a) of our Constitution which provides for the right to be heard. There are three

persuasive authorities which interpret the phrase 'fair hearing' in their Constitutions

to include the right to legal representation paid for by the State for an indigent person

F whose constitutional rights are at stake. First we have the case of Powell v Alabama

(1932) 287 U.S. 45 decided by the U.S.A. Supreme Court. Then from Zimbabwe the

Supreme Court there in the case of Dube & another v The State: Supreme Court

Judgment No.2 12/1988. That case is defended by Hon. Mr. Justice A.R. Gubbay of G

the Zimbabwe Supreme Court in his paper of 'Third Commonwealth Africa Judician

Conference' in Lusaka, Zambia April 1990, Titled 'Judicial Review in the enjoyment

of Human Rights' published in the Commonwealth Law Bulletin Vol. 16 No.3 of July

1990 from pp. 992 - 1001. The third persuasive authority is the decision of the H

Supreme Court of the Republic of Ireland in the case of The State (Healy) v Donoghue

(1976) IR.325. That decision is defended by the Hon. Mr. Justice John Kenny of the

Supreme Court of the Republic of Ireland in his article 'A Bill of Rights' published in

the Northern Ireland Legal Quarterly (1979) Vol.10 No.3 at p. 195. I

1992 TLR p160

MWALUSANY J

The second leg on which the constitutional right rests is on the right to personal A

freedom under Art. (15(2) of our Constitution. That Article stipulates that no one

shall be deprived of his personal liberty except by procedure established by law. In

India in the case of Maneka Gandhi v Union of India (1978) 2 S.C.R. 248, interpreting

a B similar provision, it was held by the Supreme Court there, that no procedure can

be regarded as reasonable, fair and just which does not afford legal representation to

an accused person who is placed in jeopardy of his life or personal liberty in a

criminal proceedings. The above decision was in principle adopted by the Tanzania

Court of C Appeal in the case, of D.P.P. v Daudi Pete: Crim. Appeal No. 28/1990

(unreported). The right to legal representation for the poor, includes the right to be

informed of that right by the trial court, so decided the supreme Court of India in the

Maneka Gandhi case (supra). The Hon. Mr. Justice Bhagwati, the former C.J. of India

defends the D above case, in his article 'Human Rights as evolved by the

jurisprudence of the Supreme Court of India published in the Commonwealth Law

Bulletin Vol. 13 No. 1 of January 1987 at pp.230 - 245.

In fact the right to legal representation for the poor is recognized all over the world.

It E is contained in the Universal Declaration of Human Rights (1948), the

International Covenant on Civil and Political Rights (1976), Art. 7(1) of the African

Charter of Human and People's Rights (1981), and Art. 6(3) (1) of the European

Convention on Human Rights (1950). Therefore the right to legal representation is

accepted by the F community of nations as a birthright for every human being.

That is why I hold that the Statutory right to legal representation is contained in s.

310 of the C.P.A. No. 9/1985 as interpreted in the light of international human rights

stands and norms as above adumburated. In short s. 310 of the C.P.A. should be

interpreted to G mean that those who can afford to pay have a right to legal

representation; and those who cannot afford to pay (i.e. who are poor) have an equal

right to free legal aid paid for by the state, as provided in the Legal Aid (Criminal

Proceedings) Act No. 21/1969. H that right includes the right to be informed of that

right by the trial court. Perhaps it important to emphasize that, the above

construction of s.310 of the C.P.A. is inevitable in the light of international human

rights standards and norms. As Mr. Justice A.R. Gubbay of Zimbabwe Supreme Court

states at p. 999 (in his article cited above): I

1992 TLR p161

MWALUSANY J

A In giving meaning to legislation on human rights expressed in general or even

vague terms, where uncertain or incomplete, there is ample scope for a Judge to look

to international developments and drawn upon them in seeking a solution.

International human rights instruments and precedents ...... provide invaluable

information and guidance. A judicial decision has greater legitimacy and will

command more respect if it B accords with international norms that have been

accepted by many countries, than if it is based upon the parochial experience or

foibles of a particular Judge or Court.

That is one way of reaching at the conclusion that there exists a statutory right to

legal C representation for the poor i.e. by way of seeking guidance from

international human rights instruments.

The other way of establishing the statutory right to legal representation is the

generous and purposive construction of S.310 of the C.P.A interpreted in the light of

Act No. D 21/1969. Those provisions were enacted to inculcate in our heads that

justice should not only be done, but should be seen to be done. It will be recalled that

before the 1969 legislation, the right to legal representation for poor accused persons

was restricted to capital offences (murder, treason and manslaughter). However after

the 1969 Act, E the right to legal representation for poor accused persons was

extended to cover non-capital offences like theft, causing grievous harm, robbery

e.t.c. which are triable by the District Courts and R.M.'s Courts.

Counsel for the appellants Mr. Mbezi has exclaimed at the existing anomaly. He said

F for offences like incest or written threats to murder, punishable with a maximum

of not more 5 years and 7 years imprisonment respectively, the offenders are provided

free legal aid by the State simply because the offences are triable by the High Court.

However offenders charged with offences like armed robbery, punishable with a G

minimum of 30 years imprisonment, are not provided with free legal aid, simply

because the offender is charged in a subordinate court. That is unfortunate. It is

submitted that the correct interpretation of the decision of the Tanzania Court of

Appeal in the case of Laurent s/o Joseph v R. [1981] T.L.R. 351, is that in either case

whether the H offence is trible by the High Court or subordinate court, the trial is a

nullity if the indigent accused person was not provided with counsel, at least for all

serious offences.

That a certifying authority under s.3 of the Legal Aid (Crim. Proceedings) Act No. I

21/1969 has a discretion to refuse or grant

1992 TLR p162

MWALUSANY J

legal aid to a poor accused person, is a myth. The E.A.C.A. in the case of Mohamed A

s/o Salim v R: [1958] E.A. 202 which originated from Tanganyika, said at p. 203:

That in such a case (the certifying authority) should give the matter anxious

consideration before deciding to refuse a certificate for legal aid on the ground of

sufficiency of means; B that a reasonably liberal interpretation ought to be placed on

the section and that in case of doubt the discretion should be exercised in the

prisoners' favour.

I wish only to point out that s.3 of the Poor Prisons Defence Ordinance Cap.21 which

C the above case was interpreting is in pari materia with our s. 3 of Act No. 21/1969.

In fact Prof. James Read in his tours de force article 'The Advantage of Counsel' in the

'East African Law Journal' Vol. VIII NO. 4 (1971) concludes at p.294 that the

certifying authority has no option but to grant legal aid if the accused is poor. He says:

D

Although the decision in the Gales Hired v The King: [1944] A.C. 149 turned

in part upon the mandatory nature of the legislative provision for legal aid in

Somaliland, it has been E regarded as establishing a general principle - see for

example, the remarks of E.A.C.A. in Samson v R. [1958] E.A.681 at p. 682 at p. 683

where they said: 'We do not think that anything turns upon the fact that appellants

were entitled as of right to have an advocate assigned'. See also the judgment of

Bennet J. of High Court of Uganda in Yusufu s/o F Gita v R. [1958] E.A. 211 at p.

213: 'Every accused has the undoubted right to be defended by counsel.

It is astonishing to learn that since 1969 the members of the Judiciary and the Bar G

have with a calculated conspiracy of silence, buried their heads in the sand like

ostriches, pretending that they are unaware of the above authorities of the E.A.C.A.

Without shame they have glorified the right of these who can afford to be defended

by H counsel, while quite obvious to the similar right of poor persons tried by

subordinate courts. Such an anomalous practice can be seen in such cases as: D.P.P. v

Rugaimkamu [1982] TLR 139; Alimasi Kalumbeta v R: [1982] T.L.R. 329; Joshwa s/o

Nkonoki v R. [1978] L.R.T. n. 24, Mugema v R: [1967] E.A. 676. The I poor accused

persons triable by the subordinate courts and Economic Crimes Courts have been

completely forgotten. The judiciary and

1992 TLR p163

MWALUSANY J

members of the Bar are in the dock for having left the poor accused persons in the A

cold for far too long since 1969.

Counsel for the Republic Mr. Kifunda was candid enough to concede that a poor

accused person has a statutory right to be provided with free legal aid and to be

informed of that right by the trial court. He said that that right stems from the B

purposeful construction of s.310 of the C.P.A. as read in the light of s. 3 of the Act No.

21/1969. He said for all serious offences triable by the subordinate courts, poor

accused persons have the right to free legal aid paid for by the state. He conceded that

the trial in this case was a nullity, and said that he would pray for a retrial. C

However Mr. Kifunda would not go as far as stating that a poor accused person has a

constitutional right to free legal aid. He said that so long as an accused person has

failed to perform his duties to society by committing a crime, then he forfeits his

rights to free legal aid as per Act 29(1) of our Constitution. It is the same point that

prompted D Mr. Kifunda to appeal to the Tanzania Court of Appeal in the Manywele

case (supra). The short answer to that argument is that it is faulty in that it

presupposes that the poor accused person has already been found guilty. And I

wonder if it makes any great difference if the right to free legal aid for poor accused

persons is founded on a E statutory provision or a constitutional provision.

In the event I held that the trial was a nullity because these poor appellants were

denied of their statutory and constitutional right to free legal aid, and were not

informed of that F right by the trial court.

III. Mandatory Minimum Sentence of 30 years imprisonment whether an

inhuman and degrading punishment G

Under Act.13(6)(e) of our Constitution, it is provided that, for the purposes of

ensuring equality before the law, the state shall make provisions to the effect that no

person shall be subjected to torture or to inhuman or degrading treatment.

The test as to whether a mandatory minimum sentence is inhuman and degrading is

H the disproportionate test which is now universally recognised. Punishment which

is so excessive, arbitrary, unusual or disproportionate to the offence as to shock the

public conscience, that is the conscience of a reasonable man is prohibited. The

provision encompasses a cardinal principle of human justice, namely that punishment

should be I proportional to the offence for

1992 TLR p164

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which it is enacted. The said provision draws its meaning from the evolving standards

A of decency that mark the progress of a maturing society. The disproportionate test

was first propounded in the U.S.A. by the Supreme Court in the case of Weems v

United States (1910) 217 U.S. 349 which was discussing the eighth Amendment of the

U.S. B constitution. The matter was revisited in Tropp v Dulles (1958) 356 U.S. 86, L.

Ed. 630 and later in the case of Furman v Georgia: (1972) 408 U.S. 238 and the case of

Hart v Ceiner: (1973) 433 F. 2d. 136.

The above mentioned test was adopted by the supreme Court of Papua New Guinea

C in Reference by the Marobe Provincial Government (1958) L.R.C. (Const.) 642. In

there a bench of five judges sat to decide if the Summary Offences Act which

provided for mandatory minimum sentences of 10 years and other mandatory

minimum fine sentences were constitutional and not an inhuman and degrading

punishment. Among D the five judges, three (Bredmeyer, Kaputin and McDermott

JJJ.) agreed that the disproportionate test was the proper test in the circumstances.

However the other two judges (Kidu C.J. and Kapi D.C.J.) did not agree that the

disproportionate test ought to be invoked.

Two of the three judges who invoked the disproportionate test (i.e. Bredmeyer and E

Kaputin JJ.) held that:

1. That the minimum penalties here, although high were not so excessive

as to offend Act. 36 of the Constitution. They said that although the sentences were

very severe, F they were not so disproportionate as to be regarded as excessive and

unconscionable. They said the sentences reflected a legitimate need for strongly

deterrent penalties, providing an index of contemporary community standards.

G 2. The minimum penalties do not infringe the constitution because the

harshness of those penalties is tempered by s.138 of the District Court Act which

allows for imposing lesser sentences if special reasons are shown as regards character,

antecedents, age, health or mental condition of the accused or trivial nature of the H

offence or to the extenuating circumstances under which the offence was committed.

On the other hand the third judge Mc Dermott J. invoking the disproportionate test I

found that the minimum sentences prescribed

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offended the constitution because each of them imposed a penalty which would be A

wholly disproportionate to the offence in readily imaginable situations, as the

impugned legislation treated all offences in each category as equally reprehensible up

to an arbitrarily set level of punishment, preventing the court considering any of the

usual factors relevant in sentencing individuals. B

More recently the Zimbabwe Supreme Court invoked the disproportionate test in the

case of The State v Arab [1990] 1. Z.L.R. 253. It concerned the precious Stones Trade

Act, 1978 which prescribed minimum sentences for those found dealing in precious

stones illegally. The appellant was convicted of dealing in emeralds and was C

sentenced to three years imprisonment, being the minimum sentence. The court

found no special reasons which could make it pass a sentence lesser than the

minimum. The Supreme Court held that the power of the trial court to consider and if

appropriated find special reasons allowed for a sentence which was not necessarily

disproportionate. D So the provision was held not to be unconstitutional. A

disproportionate test had earlier been invoked by the Zimbabwe Supreme Court in

Ncube, Tshuma and Ndhlovu v The State [1988] 2 S.A.L.R. 702(ZS) a case which

concerned the constitutionality of the punishment of whipping. E

In Botswana, the Court of Appeal in the case of the State v Petrus [1985] L.R.C.

(Const.) 699 agreed that the disproportionate test was the appropriate test to find out

if any punishment prescribed by legislation was constitutional or not i.e. it was not

cruel, inhuman and degrading punishment. F

The above discussion vindicates my earlier statement that the disproportionate test is

universally recognised and accepted. I adopt it for use in Tanzania. It will be seen

from the above discussion that the disproportionate test focuses on two factors which

may render the punishment unconstitutional: First if the minimum sentence is

arbitrarily G fixed. Secondly if the sentence is inherently excessive or

unconscionable.

On the first point I am satisfied that the Minimum Sentences Act No. 1/1972 as

amended by Act No. 10/1989 has fixed the minimum sentences arbitrarily. What the

H challenged legislation here effectively does is treat all offences as equally

reprehensible up to an arbitrarily set level of punishment. Thus all offences of armed

robbery have a minimum sentence of 30 years, while simple robbery has a minimum

of 15 years, attempted armed robbery a minimum level of punishment is simply not

called for. This I crudely applied across - the board, approach denies to the person

being punished

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any consideration of the following factors: degree of participation, the age of the A

offender, the offender's previous good record, the remorse and prevalence of the

offence e.t.c. If the courts in Tanzania were allowed to pass a lesser sentence if special

reasons are adduced, then that would have been alright and the legislation would

have been constitutional as shown by the two cases cited above (Morobe case) from B

Papua New Guinea and the Arab case from Zanzibar. In order for the Act No. 1/1972

to be Constitutional, s.6(1) of the Act should be amended such that special reasons

should be allowed to be adduced for every convict and not only to those convicted on

property not exceeding T.Shs. 100/=!!! Moreover the Minimum Sentences Act in C

applying minimum terms of imprisonment carte-blanche preclude considerations

being given to (a) probation (b) conditional discharge (c) suspended sentences (d)

entering into recognizances etc. That much it has rendered the impugned legislation

to be arbitrary and disproportionate. D

On the second point, I am of the considered view that the minimum sentence of 30

years imprisonment is disproportionate because it is excessive or unconscionable even

for the offence of armed robbery. A punishment is 'excessive' if it makes no

measurable contribution to acceptable goals of punishment and hence is nothing

more than the E purpose and needless imposition of pain and suffering. Brian

Slattery in his book A Handbook on Sentencing in Tanzania (1972) E.A. Literature

Bureau says at p. 27:

F Punishment for criminal offences is generally viewed as serving one or more

of three main purposes: (a) deterrence, both of the criminal himself (special

deterrence) and also of society at large (general deterrence), (b) the rehabilitation of

the criminal; and (c) G restraint - the isolation of the hardened or dangerous

criminal from society. These objectives are seen as constituting the ultimate

justification for sentence imposed by a court in place of the more traditional view

which simply holds that evil men deserve to be punished, which notion is sometimes

called retribution or the notion of justice. H

The government takes rehabilitation as of top priority as shown in s.61 of the Prisons

Act No. 34/1967 - wherein emphasis is laid on training of prisoners so that when the

prisoner comes out he becomes a good citizen usefully self employed. Now the 30 I

years imprisonment is self-defeating because that period is the life-expectancy

1992 TLR p167

MWALUSANY J

of a Tanzanian, on the average, and so the rehabilitation policy is not in place. It A

appears the government on enacting those severe sentences had in mind only

retribution and restraint of the offenders. But it should be remembered that restraint

of offenders is reserved for recidivists only (hardened and dangerous criminals). And

retribution as a sentencing policy is old fashioned and uncivilised as is espouses

sadism? It will be B seen therefore that the punishment of 30 years minimum

sentence, goes beyond legitimate penal objectives and does not bear a rational

relationship to the accomplishment of penological goals which are of sufficient

importance to justify its severity. The 30 years imprisonment is indeed purposeless

and needless imposition of C pain and suffering, as the legislative purpose could be

served by a less severe punishment.

Therefore to suggest that our Parliament had seriously addressed itself to the whole

issue of sentencing is a premise which is obviously suspect. This is because it is both

D simplistic and unrealistic to suggest that an increase in the severity of punishment

by itself will have any significant impact on existing patterns of crime.

Where moral values are central to a problem such as crime, the legal system struggles

E to achieve even incidental significance. The working of the criminal justice system

can have little, if any, impact on complex sociological phenomena. Any discussion of

crime and punishment inevitably overlooks, the heart of the dilemma. Really, what

we have is a major problem involving education and policing. F

A sociological phenomenon cannot be effectively influenced by judicial band-aiding.

Imposing harsh sentences indiscriminately is nothing other than Kangaroo justice. It

just does not work and stands little chance of effectively influencing current crime

rate. So G we cannot look for the courts alone, otherwise that would be a

fundamental misunderstanding of the role of the courts. All that the justice seem can

reasonably do at the present time is to maintain a predictable and reasonable response

to the increasing crime rate, in terms of what most Tanzanians really and truly might

be the H consequences of detection on conviction (moderate prison sentences). Any

major change can only be effected at the political level, when, if ever, our legislators

are encouraged to get serious about what has become a problem of grave national

importance. It is my finding therefore that the minimum sentence of 30 years is I

unconstitutional because it is inhuman. It is inhuman because it is

1992 TLR p168

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disproportionate and excessive - as it makes no measurable contribution to A

acceptable goals of punishment; and goes beyond legitimate penal objectives. It bares

no rational relationship to the accomplishment of pennological goals. As White J. said

in the case of Furman v Georgia (supra) at p. 391 this punishment is with only

marginal contributions to any discernible social or public purpose. A penalty with

such B negligible returns to the State would be patently excessive and unusual and

cruel punishment violative of the Eighth Amendment.

Therefore I don't agree with the State Attorney Mr. Kifunda that the sentence of 30

years imprisonment is proportionate to the offence of armed robbery. I subscribed to

C the view canvassed by the defence counsel Mr. Mbezi that the sentence of 30 years

is too severe to deserve to be termed inhuman and cruel. Mr. Mbezi also contended

that under Art. 15(2) of our Constitution, Parliament is empowered to take away the

personal freedom of an individual only by using law which is fair, reasonable and not

D arbitrary. He said that the law on criminal procedure and evidence should be fair

and reasonable; and that the law on sentencing should also be fair and reasonable.

That he said is the full import of the case of D.P.P. v Daudi Pete Crim. Appeal No. 28

of E 1990 (CAT) which had cited the Indian case of Maneka Gandhi v Union of India

(1978) 2 SCR 248. So he said that since a sentence of 30 years imprisonment is

patently excessive, then it offends the doctrine expounded in the Daudi Pete case. At

this stage, all I can say is that there is merit in the argument brought forth by the

defence counsel. F

IV. Corporal Punishment - is it a torture or inhuman and degrading punishment?

Corporal punishment is one of the punishments permissible under s. 28 of the Penal

G Code Cap. 16 and where imposed, it is to be inflicted in accordance with the

Corporal Punishment ordinance Cap. 17 and the Corporal Punishment Order (G.N.

74/1930 and G.N. No. 76/1941) made thereunder. The independent government of

Tanganyika H made corporal punishment mandatory for certain offences under the

Minimum Sentences Act No. 29/1963. The Bill was greeted with enthusiasm by

parliamentarians some of whom went even further than the government proposals

suggesting more torture as part of punishing offenders - see L.P. Shaidi in his

"Explaining Crime and Social I Control in Tanzania Mainland: An Historical Socioeconomic

Perspective", A Ph.D. Thesis submitted

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to the University of Dar es Salaam in 1985, at pp. 323-331 where the author quotes A

the Parliamentary Debate.

In 1972 mandatory corporal punishment was abolished by the Minimum sentences

Act No. 1/1972 only to be brought back in 1989 by Act No. 10/1989. Once again the

honourable members of Parliament shocked the nation by applauding the B reintroduction

of corporal punishment. One member even suggested that such

punishment should be administered in public (market place) and that women

offenders should not be exempted - see the Daily News of 25/4/1989.

Defending the Bill against an objection of a lone parliamentarian on the ground that

C corporal punishment might be contrary to the Bill of Rights, the Minister for

Justice and Attorney General argued that bandits and robbers were breaching the

rights of other citizens and therefore it was in the interest of the community at large

that corporal punishment was being re-introduced. The Minister proffered his legal

opinion that the D Constitutional validity of the proposed law would be covered

under the derogation clause Art. 30 of the Constitution - see Radio Tanzania Report

of the Parliamentary proceedings, excerpts broadcast live on 24/4/1989.

It appears to me that basically two different situations can render punishment to be E

cruel, inhuman and degrading. First a punishment which is not inherently inhuman

or degrading may become so by the mode of execution. Secondly that certain types of

punishment are inherently or by their nature cruel, inhuman or degrading e.g.

infliction of acute pain and suffering. I shall discuss these two situations seriation. F

As stated above the mode of executing of the punishment can render that punishment

to be cruel and degrading. That was the decision of the full bench of five judges of the

Court of Appeal of Botswana in the case of The State v Petrus & Anor: (1985) L.R.C.

(Const.) 699. That court led by Maisels P. held that the manner of punishment G

which was administered by repeated and delayed instalments of corporal punishment

was ultra vires the constitution. The legislation there had provided that the convicted

person should be given four strokes each quarter in the first and last years of his term

H of imprisonment, and the prescribed penalties of imprisonment with corporal

punishment were mandatory sentences. In the course of its decision, the Court of

Appeal drew support from decisions of the European Court of Human Rights, the U.S.

Supreme Court and to a strong dissenting opinion of the Privy Council in Riley &

others I

1992 TLR p170

MWALUSANY J

v A.G. of Jamaica (1982) 3 All ER 469. In fact Hon. Mr. Justice Aguda said at A p.p.

727 - 728:

I am entirely in agreement with the submission of Mr. Hodes for the

appellants that corporal punishment administered by instalments when tacked onto a

term of B imprisonment, cannot but bring about aggravated torture upon the human

being made subject to that sort of punishment. To describe such a type of punishment

as degrading is perhaps the very least that can be said of it.

In fact that was the view of the State Attorney Mr.Kifunda in this case. Commenting

C on the manner or mode of executing punishment as one of the causes of cruel

punishment Mr. Justice Blackman of the U.S. Supreme Court in the case of Jackson &

others v Bishop (1968) 404 F. 2d 571 said at pp. 579 - 580: D

There can be no argument that excessive whipping or an inappropriate

manner of whipping or too great frequency of whipping or the use of studded or over

long straps, all constitute cruel and unusual punishment. Corporal punishment

generates hate toward E the keepers who punish and toward the system which

permits it. It is degrading to the punisher and to the punished alike. This record cries

out with testimony to this effect from the expert penologists, from the inmates and

from their keepers. F

Now Tanzania like Botswana has a legislation which sanctions corporal punishment

by instalments. The Minimum sentences Act No. 1/1972 as amended by Act No.

10/1989 introduced corporal punishment by instalments. The Corporal punishment

Ord. Cap. G 17 is amended in s.12 whereof corporal punishment shall be inflicted in

the instalments, each consisting of six strokes, the first instalment at the

commencement of the term of imprisonment and the other immediately before the

person in question is finally released. That is a horrible situation. H

It is noteworthy that postponed whipping or whipping by instalments was deemed as

cruel as long ago as 1880 in apartheid South Africa. In the case of Queen v Nortje

(1880) 1 EDC 231 the Eastern District Court of South Africa held that corporal

punishment by instalments (part of the lashes to be inflicted at one end the reminder

at I the expiration of the sentence) was illegal. The case of

1992 TLR p171

MWALUSANY J

Queen v Hans Windvogel and Anor [1881] 2 E.D.C. 98 is to the same effect. That A

court fond it highly objectionable to sentence persons to lashes to be inflicted at the

expiration of a sentence of hard labour. It is my finding therefore that corporal

punishment in this case, is unconstitutional because it is cruel, inhuman and

degrading as it is inflicted by instalments. B

The second situation I earlier alluded to, is as to whether corporal punishment is

inherently and by its very nature is cruel, inhuman and degrading. The leading case

in this regard is the decision of the European Court of Human Rights which was cited

with approval both by the Zimbabwe Supreme Court and the Botswana Court of

Appeal. C It is the case of Tyrer v U.K. (1978) 2 E.H.R.R.1, where a 15 year old boy

was sentenced by a juvenile court in the Isle of Man to three strokes of the birch on

conviction of assault. The Court found that, while the punishment in the instant case

did not constitute torture, or inhuman punishment, it did amount to degrading

punishment D and therefore was in violation of Act 3 of the European Convention

which is identical to our Act. 13 (16)(e) of our constitution. The substantive

paragraph in the judgment deserves to be quoted in extenso, they said at p. 11:

E The very nature of judicial corporal punishment is that it involves one human

being inflicting physical violence on another human being. Furthermore, it is

institutionalised violence, that is in the present case violence permitted by the law,

ordered by the judicial authorities of the State and carried out by the police

authorities of the state. Thus, F although the applicant did not suffer any severe or

long-lasting physical effects, his punishment whereby he was treated as an object in

the power of the authorities - Constituted an assault on precisely that which it is one

of the main purposes of Act. 3 to G protect, namely a person's dignity and physical

integrity. Neither can it be excluded that the punishment may have had adverse

psychological effects. The institutionalised character of this violence is further

compounded by the whole aura of official procedure attending the punishment and

by the fact that those inflicting it were total strangers to the offender. H

The aura of official procedure attaining corporal punishment that the European Court

refers to with apparent disgust is even mere disgusting in Tanzania under the

Corporal punishment order which provides: I

1992 TLR p172

MWALUSANY J

A 2. A sentence of corporal punishment shall be inflicted upon adults upon

the bare buttocks with a light rattan cane which is free from knots. Such cane shall be

not less than half an inch and not more than five-eights of an inch in diameter and

shall not exceed Forth-two inches in length.

B 4. During the infliction of a sentence of corporal punishment the person

undergoing punishment shall be so secured that he cannot, by reason of the

movement of his body, cause the strokes to fall upon any other part of his body then

upon which they C are to be inflicted in accordance with this Order.

If as in this case, one has to use a value judgment, it seems to me that the corporal

punishment incapably falls within the definition of inhuman and degrading

punishment. D

In the case decided by the Supreme Court of Zimbabwe Ncube, Tshuma & Ndhlovu v

The state (1988) L.R.C. (Const.) 442 after reviewing the position in Zimbabwe, South

Africa, U.K., Canada, Australia and The United States Mr. Justice Gubbay concluded

that: E

Fortunately on the few occasions where the issue of whether whipping is

Constitutionally defensible has been judicially considered, it appears to have resulted

in little difference of opinion, whether imposed upon an adult person or a juvenile

offender the punishment F in the main has been branded as both cruel and

degrading.

Mr. Justice Gubbay described the penalty of whipping as:

G ... not only inherently brutal and cruel. It is relentless in its severity and

contrary to the traditional humanity practised by almost the whole of the civilised

world, being incompatible with the evolving standards of decency. H

The approach to constitutional interpretation adopted by the Zimbabwe Supreme

Court and Botswana Court of Appeal has been in Bangalore, India in February 1988.

The Bangalore Principles which that meeting adopted, recognised and affirmed the

relevance and importance of: I

1992 TLR p173

MWALUSANY J

A ... a growing tendency for national courts to have regard to these international

norms for the purpose of deciding cases where the domestic law - whether

constitutional, statute or common law - is uncertain or incomplete.

That view was reiterated by the Commonwealth Judges in the Harare declaration of

B Human Rights (Harare principles - Judicial Colloquium in Harare, Zimbabwe 19-

22nd April 1989) and also in the Banjul Affirmation (Judicial Colloquium in Banjul,

The Gambia 7th to 9th November, 1990).

It is gratifying to note that the Nyalali Commission (1992) (The Presidential C

Commission on whether Tanzania should adopt a one-party or multi-party system) in

its Report, Book Three at p. 10. holds the view that corporal punishment is inherently

cruel, inhuman and degrading and contrary to Art. 13(6)(3) of our Constitution. Such

a considered view from eminent Tanzanians should weigh highly on this court. There

D can be no doubt that corporal punishment is against the dignity of man as

stipulated in Art. 9(1)(a) of our Constitution which is part of the Fundamental

Objectives and Directive Principles of State Policy. The Zimbabwe Supreme Court in

the Ncube case (supra) on the same theme said: E

The raison d'etre underlying section 15(1) is nothing less than the dignity of

man. It is a provision that embodies broad and idealistic notions of dignity, humanity

and decency, against which penal measures should be evaluated. It guarantees that

the power of the F State to punish is exercised within the limits of civilised

standards. Punishments which are incompatible with the evolving standards of

decency that mark the progress of maturing society or which involve the unnecessary

and wanton infliction of pain, are repugnant. Thus a penalty that was permissible at

one time in own nation's history is G not necessarily permissible today. What might

not have been regarded as inhuman or degrading decades ago may be revolting to the

new sensitivities which emerge as civilisation advances. H

Those decisions on the unconstitutionality of corporal punishment are examples of

the prudent application of international human rights norms to domestic human

rights law. They identify with evolving standards of decency and humanity. Tanzania

cannot be left behind in that boat. I

1992 TLR p174

MWALUSANY J

Therefore when the Attorney - General suggests above that corporal punishment is A

constitutional because it is saved by the derogation clause in Act. 30(2)(b) of our

Constitution, it beats my comprehension. Act. 30(2)(b) states that a legislation which

infringes the constitution is valid if it is wholly for ensuring the interests of defence,

public B safety, and public order. However as pointed out by the Tanzania Court of

Appeal in the case of the D.P.P. v Daudi Pete Criminal Appeal No. 28 of 1990, any

derogation clause must meet the proportionality test or reasonableness test. It should

be given a restricted but purposive construction, so that the basic rights of the citizens

are not C marginalised nor completely emasculated by the derogation clause. For the

derogation clause to apply to a given situation it must be shown that it is required by

a compelling social need and that it is so framed as not to limit the right in question

more than is necessary to achieve a legitimate objective. For example in the Daudi

Pete case D (supra) it was found that the legislation denying accused persons bail

was too broad as to take away the basic right to freedom to all and sundry. Equally

here the derogation clause cannot be interpreted so broadly so as to cover every cruel,

inhuman and degrading punishment. A derogation clause should not be interpreted as

entitling the E government to impose vague or arbitrary limitations on basic human

rights; but that limitation should be reasonable and only be invoked when there exists

adequate safeguards and effective remedies against abuse. In other words a derogation

provision has to be construed narrowly. I do not conceive it to be the duty of this

court to construe any of the provisions of the Constitution as to defeat the obvious

ends the F Constitution was designed to serve. As the Tanzania Court of Appeal

observed in the case of A.G. v Lesinoi s/o Ndeinai & Others: [1980] T.L.R. 214. 'A

Constitutional provision should not be construed so as to defeat its evident purpose,

but rather so as G to give it effective operation'. I may point out that Prof. Issa G.

Shivji is of the same view that the derogation clause does not save corporal

punishment from being unconstitutional see his paper 'State Coercion and Freedom in

Tanzania' a Monograph by the Institute of Southern African Studies, National

University of Lesotho (1989) at P.22. H

In conclusion I hold that corporal punishment not only is it inherently inhuman and

degrading, and so unconstitutional; but in addition international statements of human

rights indicate that such type of punishment has become simply unacceptable in a

civilized and democratic society. The weight of international opinion is against

corporal I punishment. It is up to us to remain an island on ourselves.

1992 TLR p175

MWALUSANY J

V. Miscellaneous Matters A

Under this head, I will have to consider as to whether the offence of armed robbery

exists, secondly as to whether the trial court had power to impose the sentence that

was awarded and finally review the evidence on record. B

On the first plaint Mr. Mbezi argued that the offence of armed robbery is not

contained in the Penal Code Cap. 16. He said that the trial magistrate was wrong to

sentence the two appellants for an offence which they were not charged with nor

convicted of. In fact that is the same view that was canvassed before Mushi J. in the

case of Ibrahim C Hassani & another v R. Tanga High Court Criminal Appeal No. 92

& 107/1990 that argument found favour with Mr. Justice Mushi who quashed the

sentences. I understand the D.P.P. is appealing to the Tanzania Court of Appeal.

However my considered view is that the offence of armed robbery is there in the

Penal Code in sections 285 and D 286. This comes about if the court invokes a

generous and purposeful construction on the Penal Code and the Minimum Sentences

Act. Armed robbery is committed under sections 285 and 286 where the offender is

armed with any dangerous or offensive weapon or instrument. that is what

Parliament intended to curb. Therefore Mr. E Mbezi's argument fails.

The next point is as to whether the trial magistrate had power to impose a 30 year

prison sentence. It will be recalled that under section 170 (1) of the Criminal

Procedure Act. No. 9/1995 a subordinate court may not pass a sentence of

imprisonment F exceeding eight years for any offence falling under the Minimum

Sentences Act No. 1/1972. However section 170 (4) of the criminal Procedure Act

states:

G The provisions of subsection (1) shall be without prejudice to the provisions of

any written law authorizing a subordinate court to impose in relation to any offence

specified in such written law, a sentence in excess of the sentences provided for in

that subsection. H

That provision was a subject of interpretation by Msumi J. in Abdarahman Abdallah

Magosso v R. Dar es Salaam (High Court) Criminal Appeal No. 36/1990. In the

judgment delivered on 19/9/1991 Msumi J. held that since the provisions in the Penal

Code did not confer on the subordinate courts extended power of sentencing, then it

I was illegal for the subordinate courts to pass a sentence of

1992 TLR p176

MWALUSANY J

over eight years for scheduled offences. I agree with that view. What the trial A

magistrate should have done was to commit the accused to the High Court for

sentencing. The trial magistrate had no power to impose the 30 year prison sentence.

It behoves me to review the evidence on record, in case I am wrong on the above B

thesis about the constitutionality of the trial. The case involves the identification of

the culprits at the scene of the crime. There was a torch at the scene of the crime. The

culprits are village-mates and so the faces were quite familiar. The bandits spent a

considerable long time demanding to be shown the money. The husband and wife C

purported to have had identified the culprits. The appellants offered an alibi. The trial

magistrate warned himself of the danger of convicting the culprits on evidence of

identification which is not water-tight. In my considered view the convictions were

proper. The case was proved beyond any reasonable doubt. D

VI. Conclusion

The trial is a nullity because the appellants who are indigent were denied of their

statutory and constitutional right to legal representation paid for by the State. The

trial E was also a nullity because the appellants were not informed of their right to

have legal representation. As regards sentence, the trial magistrate had no power to

pass a sentence over eight years imprisonment. In any case the mandatory minimum

sentence of 30 years imprisonment under the Minimum Sentences Act. No. 1/1972 as

F amended by Act No. 10/1989 is unconstitutional and void because it is an inhuman

and degrading punishment. The mandatory minimum sentence of 12 strokes of

corporal punishment (not 10 strokes as the trial magistrate imposed) is also

unconstitutional and void as it is an inhuman and degrading punishment, prohibited

by Art. 13(6)(3) of our G Constitution.

Should I order a retrial? The appellants have been in prison now 2 1/2 years. I think

this is a fit case where I have to leave it to the D.P.P. to decide whether appellants

should be retried or not. Thus I leave it to the D.P.P. to decide. H

Consequently the appeal is allowed. The convictions are quashed and sentences are

set aside. The appellants should be released forthwith, unless held for any other

offence.

I Order accordingly.

1992 TLR p177

A