DPRU Q&As: Fulgence Massawe, Legal and Human Rights Centre (LHRC) Tanzania

In the first instalment of the DPRU's new Q&A series with death penalty litigators working in the Global South, DPRU Project Manager Daniel Cullen speaks to Fulgence Massawe, Director of Advocacy and Reforms at the Legal and Human Rights Centre (LHRC), about the death penalty in Tanzania and his experience of working on capital cases in the country.

Please could you tell us a little bit about the work of the Legal and Human Rights Centre?

The Legal and Human Rights Centre (LHRC) is an independent, non-partisan and non-profit human rights organization which seeks to promote internationally recognised human rights norms and standards in Tanzania. As part of its work, LHRC advocates for reforms to law and practice, including the abolition of death penalty. Capital punishment falls within the LHRC’s mandate because of the sanctity of human life, which should be protected by any means. 

How is the death penalty used in Tanzania?

In Tanzania, the offences punishable by death are murder and treason. The most common offence is murder. Official data shows that there are currently over 700 people on death row. The defendants are mostly poor people who cannot afford legal services and they depend on the pro bono legal representation provided by the judiciary. Tanzania is currently classed as an ‘abolitionist de facto’ state, as it has not carried out an execution since 1994.

What conditions do death sentenced prisoners live under in Tanzanian prisons?

Death row prisoners in Tanzania are kept in solitary confinement on a permanent basis. They are separated from the rest of the prisoners, and even wear different colour clothing: other prisoners wear orange, while death-sentenced prisoners wear blue. They are exempted from any of the activities other prisoners are involved in, from social activities like sports to (forced) labour activities.

Death row prisoners are very isolated, live within very restricted parameters, and are not supposed to go out anywhere. These kinds of living environments are a form of torture, and so these prisoners suffer from the psychological impacts of ‘death row phenomenon’ like others on death row elsewhere around the world do.

How does Tanzania’s ‘abolitionist de facto’ status impact the cases you work on?

When we go to court to challenge the death penalty, the courts do not take it seriously. Regardless of having the death penalty on our statute books, there are no executions taking place, unlike in other countries like Botswana, so judges think of death sentences as effectively the same as life sentences.

Our concern about the abolitionist de facto status is that capital punishment is left as a matter of political will, so executions can happen any time. For example, the previous President of Tanzania, John Magufuli, was not in favour of the death penalty and commuted a number of sentences. But the opposite can also happen, with someone coming into power who is in favour of carrying out executions, and there is nothing in law preventing this from happening. Politicians can also be subject to pressure to resume executions, such as in response to a public outcry about particularly heinous offences.

Have there been calls for the resumption of executions in Tanzania in recent years?

Yes, there was a particular point in time when killings of people with albinism were taking place in Tanzania, and the government was facing a lot of pressure to resume executions. This included calls for the execution of those accused of the murders from organisations representing people with albinism. However, in some instances, these killings were continuing even after arrests had been made and the suspects were imprisoned, indicating that the wrong people may have been arrested. This was a very difficult time for those of us advocating for abolition of the death penalty and highlights the danger of Tanzania’s current status without a clear position in law on the use of the death penalty.

Can you tell us about one of the most notable capital cases that you have dealt with?

I would highlight the case of Marthine Christian before the African Court (Marthine Christian Msuguri v Tanzania), in which the court held that i) the mandatory death penalty had violated the applicant’s right to life; ii) undue delay in the trial violated the applicant’s right to be tried within a reasonable time; and iii) undue delay in the applicant’s trial and the length of time he was confined on death row constituted cruel and inhuman treatment.

Tanzania, like Kenya, has previously commuted the sentences of some death row prisoners. What is your perspective on the use of commutations?

Commutations are often granted to commemorate Tanzania’s national holidays, such as Union Day on 26 April or Independence Day on 9 December. On these days, the President regularly grants clemency to a number of prisoners, including some death row prisoners, with their death sentences commuted to life sentences. For some, this can lead to their release depending on the length of their imprisonment.

Those who benefit from the commutations are generally elderly, sometimes over the age of 70, or unwell. The main problem is that the process through which clemency applications can be made is not very open or clear, and ultimately rests mainly on Presidential discretion.

What do you think are the prospects of abolition in Tanzania in the near future?

There is appetite for abolition in Tanzania, and I think the prospects are good. I think that we are moving forward thanks to some recent developments regarding the mandatory death penalty.

A July 2023 report from the Presidential Commission on Criminal Justice recommended the removal of the mandatory death penalty. This adds voice to our efforts towards abolition, especially considering that it comes from a Presidential Commission. The Commission has now formed a committee to work on the implementation of its recommendations.

Additionally, a series of judgments from the African Court on Human and Peoples’ Rights (including two in December 2023, Kakobeka v Tanzania and Bonge v Tanzania) have found the mandatory death penalty to be an arbitrary deprivation of the right to life. These decisions, which the government should uphold, can be another tool which can be used to persuade the government to reform the use of the death penalty.

How did you come to be working on capital cases?

During my second year in law school, around 2002, I met Joe Middleton KC, a British barrister working on death penalty cases, and later met Saul Lehrfreund and Parvais Jabbar of the Death Penalty Project. After this, in 2003 and 2004, I undertook an internship working on the death penalty. Through this experience, I realised the extent to which defendants in capital cases suffer from the lack of meaningful legal representation. Lawyers who may have no interest in the death penalty or murder cases, or are very junior, can be assigned to the case. If they do not take the time to know their client or to interview them, important defences can be missed at crucial stages of the case. Defence lawyers can meet their clients for the first time in the courtroom and might speak to them for only two or three minutes as the hearing starts. This problem derives from the lack of funding for lawyers in these cases: lawyers are assigned by the court, and paid very little, roughly US$ 50 to conduct a capital case from start to finish.

Which people or organisations have inspired you to keep doing this kind of work?

I am inspired to keep doing this work by staying in contact with others working towards abolition around the world. I am in touch with colleagues in Pakistan, Malaysia, the UK (including at the Death Penalty Project and Reprieve) and the US (including Professor Sandra Babcock and others at the Cornell Center on the Death Penalty Worldwide), who have been very helpful, as well as others across Africa, including in Kenya, Uganda, Malawi and Botswana. The Legal and Human Rights Centre is a member of the World Coalition against the Death Penalty, and I have learned a lot from attending the World Congress against the Death Penalty and Regional Congresses. These international abolitionist networks are very important, and being aware of developments in other countries can also help to shape our advocacy messages in Tanzania.

What advice would you give to aspiring lawyers who would like to work on capital cases? 

They should be ready to volunteer and serve the community, they should build their capacity and they should not take a case if they do not think they have enough knowledge in the area.

Fulgence Massawe is Director of Advocacy and Reforms at the Legal and Human Rights Centre (LHRC), which he joined in 2005. He frequently provides media commentary on civil and human rights issues in Tanzania in order to strengthen the country's legal landscape.