MBUSHUU alias DOMINIC MNYAROJE AND ANOTHER v REPUBLIC 1995 TLR 97

Facts

The High Court of Tanzania at Dodoma convicted the appellants of the offence of murder but sentenced each of them to life imprisonment, instead of the mandatory death sentence, on the ground that the death penalty was unconstitutional. The High Court grounded its conviction on evidence of identification given by two witnesses and corroborated by another witness. The appellants appealed against conviction attacking the Court's basing the conviction on the evidence of identification which they argued was deficient, suspect and incredible, and not meriting of any corroboration. The respondent cross-appealed against the sentence of life imprisonment and the decision that the death penalty was unconstitutional. 

Held: 

 (i) Courts look for corroboration when, in the light of all the evidence, a witness is worthy of belief. The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm or support that which as evidence is sufficient and satisfactory and credible. 

 (ii) Since PW1 and PW2 are not credible then there cannot be corroboration from PW2 or anybody.

 (iii) Since the identification of the appellants was done by witnesses whose evidence was deficient, suspect or incredible the appellants were not properly identified as the persons who took the stolen animals to PW1.

 (iv) The doctrine of recent possession could not be applied to the appellants and connect them with the murder of the deceased.

 (v) The death penalty is inherently inhuman, cruel and degrading punishment and it is also so in its execution and it offends art 13(6)(d) and (e) of the Constitution of the United Republic of Tanzania; 

(vi) Whether or not legislation which derogates from a basic right of an individual is in the public interest depends on first, its lawfulness, that is, it should not be arbitrary and second, on the proportionality test, that is, the limitation imposed should not be more than is 

reasonably necessary.

(vii) Though the death penalty as provided by s 197 of the Penal Code, Cap 16, offends art 13(6)(d) and (e) of the Constitution, it is not arbitrary, hence a lawful law and it is reasonably necessary and it is thus saved by art 30(2) of the Constitution; the death penalty is, therefore, not unconstitutional.