- Jul 24, 2018
Mahakama ya AfCHPR imeeleza kuwa Tanzania inapaswa kufuata Mabakubaliano ya Mkataba wa Afrika wa Haki za Binadamu na Watu ulioanzisha Mahakama hiyo kwa kuondoa Adhabu za Utesaji, Ukatili, Unyama na Udhalilishaji.
Pia, Jopo la Majaji 11 limeagiza Mamlaka za Tanzania kuwasilisha Ripoti kuhusu utekelezaji wa amri hiyo kila baada ya miezi 6 hadi pale Mahakama itakaporidhishwa na utekelezaji kamili wa katazo hilo.
Majaji waliokaa Jijini Arusha ili kupitia Rufaa ya Mtanzania Yassin Rashid Maige aliyehukumiwa mwaka 2003 kutumikia Kifungo cha Miaka 30 na Viboko 12 kwa Wizi wa kutumia Silaha, waliamua kuwa Mahakama za Tanzania zilikiuka Haki ya Utu ya Maige kwa kuamuru achapwe Viboko 12 kama sehemu ya adhabu yake.
Ikumbukwe, Rufaa ya Maige ilitupiliwa mbali na Mahakama Kuu hivyo aliamua kuwasilisha ombi lake katika Mahakama ya Afrika Juni 2017 ambapo (AfCHPR) imezitaka Mamlaka za Tanzania kumlipa Maige Tsh. 300,000 kama Fidia ya kuchapwa Viboko.
The African Court on Human and Peoples’ Rights has ordered Tanzania to remove corporal punishment from its laws to bring them in line with the Charter establishing the court.
In its September 5 ruling on an appeal by Yassin Rashid Maige against his 30-year sentence for armed robbery, the court sitting in Arusha concluded that Tanzanian courts had violated Maige’s right to dignity by sentencing him to be caned 12 times as part of his punishment.
It said provisions for corporal punishment in Tanzania's Penal Code, Criminal Procedure Code, Corporal Punishment Act and other laws need to be amended "in order to make them compliant with the prohibition of torture, cruel, inhuman or degrading treatment or punishment in Article 5 of the African Charter on Human and Peoples’ Rights."
The 11-judge panel ordered Tanzanian authorities to submit a report on the status of implementation of the order every six months "until the court considers that there has been full implementation."
Tanzania's history of opposition to corporal punishment as a disciplinary measure has been mainly confined to its application in schools due to frequent incidents of teachers and even local government officials using it to brutally punish pupils, often in front of their peers, for behavioural offences.
Notable instances in this regard include one in 2021 where a 13-year-old primary school student in Kagera region died after being beaten by one of his teachers for allegedly stealing from another teacher's purse.
In October 2019, current Dar es Salaam Regional Commissioner Albert Chalamila caused a big public stir when he flogged 14 secondary school students in public for reportedly causing a fire that razed two dormitories at their boarding school in Mbeya region where he was posted as RC at the time.
The students allegedly torched the dormitories in retaliation to having their mobile phones confiscated by the school administration. While Chalamila's action was roundly castigated by children's rights advocates across the country, it gained him a commendation from then President John Magufuli.
In its September 5 ruling on a specific case of armed robbery, the African court did not distinguish between corporal punishment in schools and across the board including as a penalty for serious criminal offences.
According to the court, the absence of "limitation provisions" in Article 5 of the Charter "entails that its prohibition of cruel, inhuman and degrading treatment or punishment is absolute and must also be extended to provide the widest possible protection against abuse be it physical or mental."
Maige has been serving his sentence at Uyui Central Prison in Tabora since September 2003 when he was convicted for the 1999 robbery of a house in Urambo district, Tabora region. Gunshots were fired during the robbery, but nobody injured by the bullets.
The Urambo district court found him and one other suspect guilty of the offence and sentenced each to 30 years in prison and 12 strokes of the cane. Although both convicts appealed to the High Court, Maige's appeal was dismissed while his colleague was upheld leading to early release from gaol.
A further appeal to the Court of Appeal was also dismissed in April 2013. Maige then filed his application to the African court in June 2017.
In its ruling, the African court noted that although the district court had imposed both the prison and caning sentence, which was subsequently upheld by both the High Court and the Court of Appeal, there was no record of whether the caning sentence "was actually carried out".
The court cited Article 13(6) (e) of the Tanzanian constitution which "proscribes torture, inhuman or degrading treatment or punishment" and the country's Corporal Punishment Act "which is meant to regulate the infliction of corporal punishment".
It also referred to Tanzania's Penal Code "which generally recognises corporal punishment as a legitimate form of punishment" for offences such as rape and Criminal Procedure Act "which also includes corporal punishment among the permissible punishments that a court can mete out".
Along with the order for abolishment of corporal punishment, the court also directed Tanzanian authorities to pay Maige Tsh300,000 ($119) in compensation for "moral prejudice" as a result of the caning and his right to free legal representation being denied during the domestic court proceedings.
But it dismissed Maige's claim that the violations were serious enough to justify his jail sentence being curtailed or his early release.