Mail & Guardian
19 February 2025
Melusi Simelane
In November 2024, the African Court on Human and Peoples’ Rights, which sits in Arusha, reaffirmed the importance of the right to life and the need to protect individuals’ dignity, even those charged with serious crimes. The Lameck Bazil v the United Republic of Tanzania judgment highlights the court’s commitment to upholding human rights standards across the continent and the broader need to abolish the death penalty.
Bazil had sought the court to consider whether his rights under article 7(1) of the African Charter had been violated, arguing that contradictory evidence had led to his conviction without proving the case against him beyond a reasonable doubt. But the court dismissed these Article 7 claims, stating that the domestic processes had no manifest error or miscarriage of justice and complied with international standards.
Instead, the court focused on the mandatory imposition of the death penalty — by hanging, which it ruled violated the right to life and the right to dignity, as protected under articles 4 and 5 of the African Charter. The court noted that mandatory death penalties do not allow for judicial discretion, which is essential for ensuring fair and individualised sentencing. In this case, the court ordered Tanzania to repeal the mandatory death penalty and to rehear Bazil’s case with judicial discretion, underscoring the need for legal reforms to align with international human rights obligations.
The continent has been striving to eliminate colonial-era laws, such as the death penalty, and to promote the protection of fundamental human rights. In 2022, the African Commission on Human and Peoples’ Rights passed Resolution ACHPR/Res.544, which urges member states to abolish the death penalty. Additionally, the commission called on the African Union to adopt the Additional Protocol to the African Charter on the Abolition of the Death Penalty, which was drafted and adopted by the commission in 2015.
Zimbabwe is the latest member state to abolish the death penalty, with President Emmerson Mnangagwa signing the Death Penalty Abolition Bill into law in December 2024. This new law requires that more than 50 prisoners who are currently on death row be resentenced to life imprisonment or lesser terms. This shift from retribution to rehabilitation sets a commendable example that should be emulated internationally. It contributes to the evolving norms surrounding the death penalty and human rights within Africa and beyond.
While countries like Botswana maintain the death penalty, there are indications that the newly elected government under President Duma Boko — who has long opposed the death penalty — intends to review the criminal justice system. This raises hope for an eventual end to the death penalty, particularly in the Southern African Development Community countries.
By highlighting the incompatibility of the mandatory death penalty with human rights standards, the court’s decision in the Bazil case encourages African nations to reconsider their positions on capital punishment. The ruling also reaffirms previous decisions, declaring that sentencing someone to death by hanging violates Article 5 of the African Charter.
Eliminating hanging as a method of execution would further advance humane treatment, even for individuals convicted of serious crimes. This change aligns with the broader global trend towards the abolition of the death penalty and the adoption of more humane punishment methods, particularly under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
The CAT obligates state parties to prevent acts of torture and other forms of cruel, inhuman or degrading treatment within their jurisdictions. By deeming the mandatory death penalty and execution by hanging as violations of the right to life and dignity, the African Court’s decision reinforces the mandate of the CAT. This judgment highlights the necessity for African countries to ensure that their legal frameworks comply with international human rights treaties, including the CAT, thereby promoting more humane and just treatment for individuals within their justice systems.
Governments must reevaluate their penal codes to ensure compliance with the African Charter and other international human rights obligations. We need to progress toward the abolition of the death penalty or the implementation of alternative, more humane forms of punishment. I have previously argued for a human rights-based criminal justice system prioritising rehabilitation and humane treatment over retribution. The Bazil judgment is a potent reminder that pursuing justice must always be balanced with protecting fundamental human rights.
The importance of this judgment cannot be overstated, especially against the backdrop of rising crime levels in many African countries. It challenges the notion that the death penalty effectively deters crime and instead promotes a justice system that respects human dignity and the right to life. The court’s decision underscores the need for comprehensive legal reforms ensuring fair trials and the protection of human rights. This is crucial for building a justice system that punishes offenders and upholds the principles of fairness and humanity.
The Lameck Bazil judgment marks a pivotal step towards creating more humane and just legal systems in Africa. It reminds us of the importance of aligning national laws with international human rights standards and sets a transformative precedent for future legal reforms across the continent.
Melusi Simelane is the Civic Rights Cluster Programme manager at the Southern Africa Litigation Centre.
