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ANTI-DEATH PENALTY NEWSLETTER

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					ANTI-DEATH


 PENALTY


NEWSLETTER
           Welcome!
    What special edition
    on the death
    penalty is all about?

    I
       welcome you all to this SAHRiNGON -
       Tanzania Chapter’s special newsletter edi-
       tion on the Death Penalty. This particular
    publication aims specifically to highlight issues
    as well as efforts being made by different
    stakeholders to turn capital punishment his-
    tory in the southern Africa region and world
    over, at large.

      Tanzania is among countries retaining the
    death penalty, as one of punishments under
    the Penal Code and the National Defence
    Act. Offences punishable by the death sen-
    tence are murder, treason and misconduct of
    commanders or any military service man in
    the presence of an enemy.

       As spelt out clearly in our vision and mis-
    sion statement, we envision a world in which
    human rights are enjoyed fully by every one
    and strive to promote and protect them
    through capacity building, lobbying, advocacy,
    mobilization for collective action, coordina-
    tion and monitoring their implementation.

       We, SAHRiNGON - Tanzania Chapter, as a
    non-governmental and non- partisan network
    organization established to ensure govern-
    ment implementation of its commitments
    under human rights instruments and other
    international instruments for realization of
    social development in the country, are
    obliged to do all we can to ensure that the         Martina Kabisama
    death penalty is deleted in Tanzania ’s law
    books.

       We are campaigning against the death
    penalty because of two main reasons: First,
    Tanzania is essentially defector-abolitionist;
    and second, the penalty has failed to deter
    crimes more effectively than other punish-
    ments due to extreme psychological suffer-
    ing it inflicts on the death row inmates.

      Please, welcome again and enjoy reading
    the stuff.

    Martina Kabisama,
    National Coordinator,
    SAHRiNGON – Tanzania Chapter


1
SAHRiNGON
in a nutshell

S
     AHRINGON was established
     in February 1997 in the Repub-
     lic of South Africa at a human
rights conference for NGOs hosted
by the Lawyers Committee for
Human Rights. It was established to
provide a platform for discussion
and advocacy on the challenges fac-
ing human rights and development
in South African countries.

   The Conference was a culmina-
tion of the 1996 series of consulta-
tive meetings on a need for
establishment of a regional human
rights NGO's network convened by
DITSHWANELO, the Botswana
Centre for Human Rights. In 1998,
members of SAHRINGON reached
an agreement during their Annual
General Meeting in Lusaka , Zambia
that each country establishes its
own chapter.

   SAHRINGON - Tanzania Chap-
ter was established in 1998, and
performed its activities hosted by
one of its members, the Legal and
Human Rights Centre (LHRC).The
Chapter obtained registration in
2004 under the Tanzania Compa-
nies Law and on the same year it
became independent with its own
office and staff.

   The Chapter has close ties with
domestic and international human
rights organizations. They include,
the National Policy Forum (NPF),
Coalition For International Crimi-
nal Court, British Institute on Inter-
national Criminal Court, AIDS and
Rights Alliance for Southern Africa
(ARASA), African Commission on
Human and Peoples Rights, Social
Watch and the UNHCR-Tanzania.




                                         2
                     The battle against
                     death penalty is on!

                     I
                       Dear readers,

                       T'S great pleasure and honour welcoming
                       you to our special newsletter on the death
                       penalty. My duty is to consisely brief you on
                     the newsletter content, which I hope will help
                     a great deal to update and enlighten you on
                     various issues surrounding the global campaign
                     against capital punishment.

                        The first part of this newsletter dwells on
                     the death penalty sustained campaign trail,
                     which is still on. On this part, we highlight in
                     detail the pertinent issues as well as spell out
                     clearly the agenda for calling the punishmentoff.
                     It also gives you a timeline in narration form,
                     detailing; when, how, why and who started the
                     campaign in Tanzania and internationally.

                        On the second part, different view points
                     about the death penalty are presented. Here,
                     different stakeholders in the campaign trail,
                     even those who give alternative opinions, are
                     given chance to argue their case.

                       We bring you all these, plus lots of photo-
                     graphs as well as other illustations. I have done
    Armando Swenya   what I was supposed to do - that's opening up
                     the door for you with this candid brief on the
                     content of this rare newsletter edition on the
                     death penalty. I am signing off with optimism
                     that you will find the stuff in here informative,
                     educative and above all, interesting!

                        Thank you very much for your attention, and
                     I wish you all the best!

                     Candid, Armando Swenya, Advocate
                     SAHRiNGON Tanzania Chapter




3
                              The campaign trail
Adopt alternatives to death
penalty, SADC states urged
C
       IVIL Society Organizations (CSOs) from the         research on other forms of punishment to replace it.
       Southern Africa Development Community
       (SADC) convened at the Giraffe Ocean View             The document called for specific forms of pun-
Hotel in Dar es Salaam ,Tanzaniaa in April, 2010 for a    ishment that takes the interest and benefits of the
consultative meeting on the abolition of the death        victims of crime and the traditional African forms of
penalty that was organized by the SAHRiNGON -             restitution.“SADC member states yet to abolish the
Tanzania Chapter.                                         death penalty should furthermore work with civil
                                                          societies to carry out sensitisation campaigns on the
   It was a unique event to, as well, bring envoys and    detriments of the punishment, while at the same
SADC member countries all at once to ponder ways          time making sure they take steps to change their
to abolish the infamous death penalty.The first day of    legislations to abolish it,” read the communiqué, in
the meeting began at a higher pace with representa-       part.
tives sharing their diverse experiences on the issue.
                                                             It added that the countries should also introduce
  Participants from Zimbabwe , Botswana , and Tan-        necessary changes to the penal and procedural codes,
zania made impressive presentations which left the        including abolishing mandatory death sentences and
anti death penalty campaigners with a lot to ponder       giving courts the ability to hand out sentences alter-
through.                                                  native to capital punishment.

  In a final communiqué released at the end of the           The communiqué also calls upon the SADC coun-
meeting, SADC member countries retaining the death        tries to assert diplomatic pressure by other members
penalty in their law books were advised to conduct        of the community to introduce the required changes.




Mathew Mwaimu, chief guest at the event reads a speech on behalf of the Justice and Constitutional Affairs Minister
in Tanzania.
                                                                                                         4
Read full texts of the communiqué below:
T
       HE Members of the Southern Africa Human           penalty a violation of international human rights law;
       Rights NGO Network (SAHRiNGON) held a
       Consultative Meeting in Dar es Salaam Tanza-        Noting the suffering and the uncertainty which
nia under the auspices of the Tanzanian Chapter be-      people on death row undergo; and
tween 21st and 22nd April, 2010 to deliberate on
Abolition of the Death Penalty in the Southern             Taking into account the arbitrary, unfair and dis-
African Development Community (SADC) coun-               criminatory manner in which death penalty is gen-
tries.                                                   erally applied and the fact that, contrary to common
                                                         belief, death penalty is not an effective deterrent;
   The meeting brought together civil society organ-
isations and experts from Tanzania , Botswana ,         To adopt a resolution encouraging the
Namibia , Mauritius , South Africa , Uganda , Rwanda member states:
, Zimbabwe , Malawi , Mauritius , Zambia and beyond.
                                                        1. To take all necessary steps to abolish death
   After two days of extensive and ex- penalty and in the meantime;
haustive deliberations, the meeting made
the following recommendations:                          2.To adhere to the call for a moratorium set out
                                                     in the Resolution Urging States to Envisage a Mora-
    I: To the SADC Summit of Heads of State and torium on the Death Penalty, adopted by the African
Government                                           Commission on Human and Peoples’ Rights at its
                                                     26th ordinary session in November 1999;
   In light of the obligation under Article 4 of the
SADC Treaty to act always in accordance with            3. To provide humane conditions for persons on
human rights and the rule of law;                    the death row; and
   Considering the UN General Assembly’s adoption           4.To ensure that all safeguards set out in interna-
in 1989 of the 2nd Optional Protocol to the Inter-       tionally and nationally binding law are scrupulously
national Covenant on Civil and Political Rights          adhered to in all cases where death penalty is de-
(ICCPR) of 1966 which, when ratified, makes death        manded by the state.




Anti- death penalty campaigners from SADC member countries light candles as a symbol of life.
       5
A participant from the Swedish embassy in Tanzania makes a point during the event


 II: To the Governments of the SADC                     have not        yet    Abolished       the    Death
Member States                                           Penalty:

   In light of their obligation under Article 4 of the      To take all necessary steps to abolish
SADC Treaty to act in accordance with human rights death penalty and other state sponsored
and the rule of law and their obligations under the taking of life, including:
African Charter on Human and Peoples’ Rights, 1981
in particular Article 4 on the right to life, and Article   1. Working with civil society to carry out sensiti-
5 on the right to dignity and the freedom from cruel, sation campaigns on the detriments of death penalty;
inhuman or degrading punishment and treatment;
                                                            2. Doing research on forms of punishments alter-
   Considering the UN General Assembly’s adoption native to death penalty, specifically forms that takes
of the 2nd Optional Protocol to the ICCPR which, the interest and benefits of the victims of crime and
when ratified, makes death penalty a violation of in- the traditional African forms of restitution into ac-
ternational human rights law; and                         count;
  Taking into account the arbitrary, unfair and dis- 3. Taking steps to ratify the 2nd Optional Proto-
criminatory manner in which death penalty is gen- col to the ICCPPR, and
erally applied;
                                                     4.Taking steps to change the relevant parts of leg-
  To the SADC Member States which islation to abolish death penalty; and

                                                                                                     6
 To the SADC Member States which have
Abolished the Death Penalty                                   1. To strictly adhere to the call for a moratorium
                                                           set out in the Resolution Urging States to envisage a
  1. To assert diplomatic pressure on their fellow         Moratorium on the Death Penalty, adopted by the
SADC member states to carry out what is set out            African Commission on Human and Peoples’ Rights
above, and                                                 at its 26th ordinary session in November 1999, and

   2.To take up the issue of death penalty in interna-        2. To ensure that all safeguards set out in interna-
tional fora, such as the SADC; and                         tionally and nationally binding law when using the
                                                           death penalty are scrupulously adhered to, including:
   Until death penalty has been abolished, considering
the due process guarantees contained in various in-          a) Making the necessary changes to the penal and
ternational binding legal instruments, such as Article 7   procedural codes, including abolishing mandatory
of the African Charter on Peoples and Human Rights         death sentences and giving courts the ability to hand
and Article 6 of the ICCPR and the Safeguards guar-        out sentences alternative to death penalty,
anteeing protection of the rights of those facing the
death penalty, adopted by UN Economic and Social              b) Educating the legal profession, including judges,
Council resolution 1984/50 of 25 May 1984, and             prosecutors and defence lawyers on the various due
                                                           process guarantees and safeguards set out in interna-
   In light of the fact that the due process guarantees    tional and national law, and
and safeguards mentioned above are routinely flouted
in the SADC states, thus increasing the elements of ar-      c) Securing sufficient and well-qualified legal aid and
bitrariness, inequality and the possibility of error in-   assistance for persons risking death penalty by setting
herent in enforcement of death penalty.                    sufficient funds aside, especially to ensure that poor,
                                                           vulnerable and generally disadvantaged persons are
  To the SADC Member States which have not yet             not more likely to get death penalty than other per-
Abolished the Death Penalty                                sons; and




A gesture of concern during the presentations

       7
SAHRINGON Tanzania Chapter National Coordinator Martina Kabisama says ‘Karibu’ (Welcome note) to the guests.
  III: To Civil Society in the SADC States                   all campaigns pertaining to human rights;

  In light of the above-mentioned reasons to abolish            3.To work with institutes of learning to carry out
death penalty;                                               further research in matters pertaining to death
                                                             penalty, such as the deterrent effect of various types
   Considering the necessity for increased knowledge         of punishment, alternatives to death penalty, costs of
among the population to enable the population to             ensuring the necessary procedural and other safe-
make up their mind on death penalty on a informed            guards when handing out death sentences, and the
basis and the necessity to give the national and re-         precise extent and reach of the demands set out in
gional decision makers a better basis to enact the rec-      international public law pertaining to death penalty;
ommendations above; and
                                                                4.To litigate against the death penalty by instituting
  Acknowledging the unique ability for Civil Society         public interest matters before the relevant national
to work across borders and reach even the remotest           courts as well as international tribunals to oppose the
corners of the SADC member states:                           imposition of the death penalty and questioning its
                                                             constitutionality given the existence of the guarantee
   1.To carry out coordinated sensitisation campaigns        of the right to life;
on the detriments of death penalty, designed to reach
even the remotest corners of the SADC member                    5.To carry out advocacy targeting local, national and
states and involving all parts of civil society, including   international decision makers within both the legisla-
human rights and other NGOs, women’s organisa-               tive, the executive and the judiciary to take the steps
tions, trade unions, law and other professional asso-        set out above under recommendations 1, 2 and 3; and
ciations, religious and spiritual communities,
traditional leaders, the media and other relevant              6.To involve National Human Rights Institutions, in
groups and in this regard to consider the benefits of        the countries where such institutions exist, in the
national and regional networking and information             work and initiatives set out above.
sharing;
                                                               Dar es Salaam, Tanzania
  2.To consider including the issue of death penalty in        22nd April, 2010
                                                                                                            8
LHRC calls for deletion of death penalty
I
  N the Tanzania ’s Human Rights
  Report, 2009, which was re-                                                          Quoting the Amnesty Inter-
  leased in April this year, the                                                   national report of 2009, it said
Legal and Human Rights Center                                                      the global trend shows decrease
(LHRC), which is a member of                                                       in the usage of the death penalty,
SAHRiNGON - Tanzania Chapter,                                                      especially execution of convicts
calls for abolition of the death                                                   on the death row. By 2007 (lat-
penalty in country’s law books,                                                    est available information), more
arguing it’s ineffective and hasn’t                                                than two third of the world’s
been enforced for many years.                                                      countries had abolished the
                                                                                   death penalty in law and prac-
   “It is ineffective because it has                                               tice.
not deterred crimes more effec-
tively than other punishments.                                                        It noted that there were 93
Besides, the death penalty is a                                                     countries, which had abolished
cruel, inhuman and degrading                                                        the death penalty for all crimes;
punishment. On the other hand,                                                      9 countries had abolished for all
waiting on death row inflicts ex-                                                   crimes except extraordinary
tremely psychological suffering                                                     crimes such as those commit-
and the execution itself is a                                                       ted in times of war; and 35
physical and mental assault,”                                                       countries were de facto aboli-
reads, part of the report.            Francis Kiwanga, Executive Director for the tionists, meaning that death
                                     Legal and Human Rights Centre in Tanzania penalty was still provided for in
   According to the report,                                                         the law, but no executions were
records show that since independence in 1961, there made for at least ten years. Tanzania falls in the last
have been 238 (232 men and 6 women) who were ex- category.
ecuted after being convicted of murder. However, the
last execution was carried out in 1994, whereby 21             In other words, there were 137 countries (68.5
men were hanged. There have been no executions percent) which had bolished the death penalty by
since 1995.The number of executions between 1961 2009, the report said. Tanzania remained among 63
and 1995 amounted                                                                                 countries      (31.5
to 9.3 percent of                                                                                  percent) around
death row prison-             “It is ineffective because it has                                    the world which
ers who were                                                                                       still retained the
hanged.                  not deterred crimes more effectively death penalty in
   The         LHRC
                         than other punishments. Besides, the their Besides,                       books.
                                                                                                               statute

stated in the re-        death penalty is a cruel, inhuman and Tanzania has not
port that the sta-
tistical information
                         degrading punishment. On the other ratified Optional                      ond
                                                                                                             the Sec-

suggests that de-        hand, waiting on death row inflicts Protocol to the
spite the execu-
tions that were
                         extremely psychological suffering and ICovenantt i o nonl                  nterna          a

done        between      the execution itself is a physical and Civil and Political
1961 and 1995, in-         mental assault,”                                                        Rights, whose
cidents of offences                                                                                aim is abolishing
punishable by the                                                                                  the          death
death penalty were                                                                                penalty.
still on the rise, from
46 convicts in 1961 to 2,562 in 2007. Basing on these          Similarly, there are other international instruments
statistics, the Center insisted in its report that, the which call for abolition of the death penalty. For in-
death penalty is ineffective to curb capital crimes.        stance, the United Nations General Assembly Reso-
                                                            lution 62/149 of 18th December, 2007 calls upon all
   It cited a long anti-death penalty band wagon that states that still retain the death penalty to progres-
continued all over the world in 2009 for the same rea- sively restrict its application, to reduce the number of
son that the imposition of the penalty is violating the offences for which it is imposed and to establish a
right to life, which is not derogative by any reason.       moratorium on executions with a view to abolish it.




       9
Petition against
death penalty
still pending

T
       HE High Court of Tanzania on Feb-
       ruary 24, 2010 adjourned the
       mentioning of the petition against
the death penalty filed by the
SAHRINGON – Tanzania Chapter, Legal
and Human Rights Centre (LHRC) and
the Tanganyika Law Society (TLS) to
June, this year.

   Three judges were assigned to preside
over the case. However, one of them
was given other duties at the Commer-
cial Court, and authorities were yet to
find a judge to fill the gap, according to
an officer in charge of strategic litiga-
tions with the LHRC from the High
Court in Dar es Salaam.

  The petition was filed by the three or-
ganizations in October, 2008, seeking the
abolition of capital punishment on
grounds that it denies one’s right to life.
Alternatively, they suggested those found
guilty should be sentenced to life in
prison.

  The government responded to the
petition by calling upon the court to
take note of the decision previously
made by the Court of Appeal of Tanzania
before it considers the matter before
Lugaziya, Sheikh and Makaramba JJJ.




                                              10
Anti- death penalty in pictures




Anti- death penalty campaigners pose for a group photo in Dar es Salaam


It was a busy session with the media, experience
sharing and a traditional dance in Tanzania as
depicted in pics below.




      11
12
13
14
Clerics condemn
capital punishment
R
       ELIGIOUS leaders from the Evangel-
      ical Lutheran Church in Tanzania
      (ELCT) on January 7, this year issued
a statement calling upon the government to
abolish the death penalty due to the later
denying one’s life.

  The statement came shortly after they
had a joint meeting with anti-death penalty
campaigners from the SAHRiNGON - Tan-
zania Chapter.

  The move came ahead of the 4th Con-
gress Against the Death Penalty as well as a
month before the hearing of the petition
against death penalty filed by the
SAHRiNGON.

  The feminist organizations petitioned
capital punishment, as part of efforts to
push the government to scrap the death
penalty on account that it denies one’s right   Clerics ponder on the infamous death penalty in 2010. They later on
to life.                                        issued a strong statement.




      15
Thousands participate in
anti-death penalty demo in Dar
T
      housands of ac-
      tivists and well
      wishers in Octo-
ber, 2009 turned out
for a peaceful march in
Dar es Salaam to mark
the Anti- Death Penalty
Day.

  The event was
graced by the former
Chief Justice (CJ) and
activist Judge Barnabas
Samatha, EU country
representative     Tim
Clarke, South African
envoy to Tanzania and
the Swedish ambassa-
dor.

  The numerous plac-
ards, the drama, and
the testimony from a
convict who had been Retired Judge Justice Barnabas Samantha (L) unveils a report during the Anti- Death Penalty
on a death row for a Day in 2010.
couple years were                                      ment of the Death Penalty.”
enough to convince people that the punishment did
more harm than good to man kind.                          In his remarks, former CJ Judge Barnabas Samatha
                                                       said: “The world has embarked on a crusade to abol-
  The event was organized by the SAHRiNGON - ish the Death Penalty. Let the government give the
Tanzania Chapter with its theme being “It is easy to mandate to judges to decide over an alternative pun-
hang an innocent person. Let us fight for the abolish- ishment to someone who commits murder in case
                                                                                           they (government)
                                                                                           feel they can not
                                                                                           take part in the
                                                                                           crusade to scrap
                                                                                           it.”

                                                                                              The former CJ
                                                                                            used one of the
                                                                                            most famous quo-
                                                                                            tations from a fa-
                                                                                            mous        French
                                                                                            Writer      Nicolas
                                                                                            Chamfort,      who
                                                                                            wrote: “It was only
                                                                                            this morning that
                                                                                            we convicted three
                                                                                            people to death.
                                                                                            Two of them de-
                                                                                            served it.”

                                                                                             He called upon
                                                                                           the government to
                                                                                           make public rec-
                                                                                           ommendations by
                                                                                           the Law Reform
                                                                                           Commission      of
Anti- death penalty campaigners depict placards with a strong message on October 10, 2009. Tanzania (LRCT)

                                                                                                     16
     Death penalty
     ‘a waste of
     resources’
        Human rights activists in Tan-
     zania speaking in Dar es Salaam
     on the 20th of April, 2010
     under the umbrella of
     SAHRiNGON, appealed to the
     Tanzanian government to abol-
     ish the death penalty, saying it
     was “a waste of resources.”

        They argued that with
     records showing an estimated
     260 people on death row be-
     tween 1986 and 2007, time was             “It is a morally
     ripe for the government to            unacceptable argument
     strike off capital punishment
     and put to work those on               that we should kill
     death row so that they could         criminals because it is
     generate income from which
     profit will be paid to survivors        cheaper to do so.
     of their criminal acts.                  Considerations of
       They said according to a sur-      economy cannot justify
     vey conducted by the Law Re-           the taking of life.”
     form Commission of Tanzania,
     the government has from 1986
     to 2007 been hesitating to ex-
     ecute capital punishment lead-
     ing to congestion of the
     convicts in jails.

        SAHRiNGON National Co-
     ordinator Martina Kabisama
     said apart from violating human
     rights, “executing persons in
     death row is more expensive
     than just incurring their life im-
     prisonment basic needs.”

        She added:“It is a morally un-
     acceptable argument that we
     should kill criminals because it
     is cheaper to do so. Consider-
     ations of economy cannot jus-
     tify the taking of life.”




17
‘Death sentence very controversial’
H
        OME Affairs Deputy
        Minister Hamisi Ka-                                                        She said during the Third
        gasheki, who is the min-                                                 Phase Government of Presi-
istry’s     second-in-command                                                    dent Benjamin Mkapa, 100
person in the ministry, told the                                                 death sentences were com-
parliament in 2009 that the                                                      muted while the incumbent
longest duration an inmate has                                                   President, Jakaya Kikwete had
had to stay on death row was                                                     so far commuted 75 death sen-
22 years.                                                                        tences.

   He however insisted that the                                                     Kabisama said that about 95
death sentence was a very con-                                                   countries in the world had
troversial issue, and that the last                                              abolished capital punishments
time a person was hanged in the                                                  while a number of Southern
country was in 1994.                                                             African Development Coun-
                                                                                 tries (SADC) had also done so.
   “Killing someone is a serious                                                 She mentioned them as Angola
issue, keeping prisoners on                                                      , Mauritius , Mozambique ,
death row amounted to psy-                                                       Namibia and South Africa .
chological torture as inmates
lived a life of uncertainty,” Ka-                                                   Those who have not abol-
gasheki said.                                                                    ished the death penalty include
                                                                                 Tanzania , Botswana , Demo-
   Last year, the government,                                                    cratic Republic of Congo,
through its Constitutional and                                                   Lesotho , Madagascar , Malawi ,
Justice    Minister    Mathias                                                   Seychelles , Swaziland , Zambia
Chikawe, said it was collecting       Home Affairs Deputy Minister in Tanzania   and Zimbabwe , she said.
views on whether to abolish the                  Hamisi Kagasheki
death penalty.                                                                    She said that though re-
                                                          searchers and the public have been recommending
   According to the SAHRiNGON - Tanzania Chap-            abolishment of the death punishment, it was still in
ter National Coordinator Martina Kabisama, available      the statute books despite the country signing differ-
statistics showed that since independence, a total of     ent international human rights protocols including the
238 people convicted to death had been executed.          International Convention on Civil and Political Rights.




The current President of Tanzania president Jakaya Kik-
wete who has commuted 75 sentences of inmates on            President Benjamin Mkapa commuted 100 sentences of
death row into life imprisonment ones.                      inmates on death row into life imprisonment.

                                                                                                      18
     Lobbyists want
     death penalty
     turned history
     A
            CTIVISTS, who attended
            the 4th World Congress
            against the Death Penalty in
     February, 2010 in Geneva ,
     Switzerland , called upon countries
     yet to abolish capital punishment,
     but don’t hang people anymore, in-
     cluding Tanzania , to officially strike
     the penalty off their books of leg-
     islations.

        They argued time was ripe for
     the countries they described as ‘de
     facto,’ which still retain the death
                                                     “We call upon
     penalty, but haven’t executed any-               abolitionist
     one for years, to get rid of the
     penalty officially by enacting rele-          organizations and
     vant legislations endorsing the cur-
     rent practice.                            actors…to unite their
        “We reconfirm that the death
                                                     strength and
     penalty may in no circumstances                determination in
     be regarded as an appropriate re-
     sponse to the violence and ten-                  creating and
     sions which permeate through our
     societies, taking into account the           developing national
     emotional burden they create, par-
     ticularly in the context of terror-
                                                      and regional
     ism,” read the declaration, in part.        coalitions with the
        It further called upon the inter-          aim to promote
     national and regional organizations,
     to support the universal abolition         locally, the universal
     of the death penalty, including the
     adoption of resolutions calling for
                                                abolition of capital
     a moratorium on executions, by                  punishment.”
     supporting educational activities
     and increased cooperation with
     abolitionist NGOs that act locally.

        “We call upon abolitionist or-
     ganizations and actors…to unite
     their strength and determination
     in creating and developing national
     and regional coalitions with the
     aim to promote locally, the univer-
     sal abolition of capital punish-
     ment,” said the lobbyists in their
     declaration.




19
UN urges Dar
to abolish
death penalty

T
      HE     United    Nations
      Human Rights Committee
      in September 2009 called
on the Tanzanian government to
seriously consider abolishing
death penalty.The UN body also
appealed for the protection of
the rights of detainees on the
death row.

   The call is part of the recom-
mendations by the UN body
which were released after the
ninety-sixth session in response
to a periodical report on the im-
plementation of the Interna-
tional Covenant on Economic,
Social and Cultural Rights sub-
mitted on August 25, 2009.

  The UN appeal coincided
with a report on the implemen-
tation of the International
Covenant on Civil and Political
Rights in Tanzania submitted to
the UN body by three local or-
ganizations. The organizations
are; SAHRiNGON, the Tan-
ganyika Law Society and the
Legal and Human Rights Centre.

   In their report, the organiza-
tions stressed that data pre-
sented by the government in its
report indicate that Tanzania is a
de facto abolitionist.

   However, the report said that
the government has simply not
respected its obligation under       UN Secretary General Ban Ki-moon
article 6(6) of the Covenant and
that it has not performed its ob-
ligation to observe the conclud-
ing recommendations of the
Human Rights Committee in re-
spect of its previous report on
article 6 of the Covenant.

  The three organisations said
that the government should be
urged to abolish death penalty
by drawing examples from
neighboring    countries    of
Rwanda , Mozambique , South
Africa and Angola


                                                                        20
           “There are several
      African countries which
      have passed through great
     upheavals, civil wars and yet
      have been brave enough to
     abolish death penalty from
             their laws.”

          State body
          against death
          penalty

          T
                HE organizations and
                the UN body were not
                alone in the campaign
          against the death penalty, as
          similar recommendations
          were made by the Law Re-
          form Commission of Tanzania
          (LRCT).

             In its report, the LRCT
          said: “There are several
          African countries which have
          passed through great up-
          heavals, civil wars and yet
          have been brave enough to
          abolish death penalty from
          their laws.”

             The Commission encour-
          aged the government to em-
          ulate these countries and
          accede to the Second Op-
          tional Protocol to the Inter-
          national Covenant on Civil
          and Political Rights by com-
          pletely abolishing the death
          penalty.

            Tanzania is one of the 25
          countries in the world which
          continue to retain the death
          penalty in their legislations.
          However there have been no
          executions in Tanzania since
          1994.




21
Call to initiate death penalty dialogue
M
        EMBERS of Parlia-                                                          debate is going on in Tanza-
        ment, diplomats and                                                        nia and many other coun-
        activists in October,
2009 appealed to the gov-
                                         “In fact, the                             tries on whether to retain
                                                                                   it”.
ernment to initiate and co-         South African court
ordinate a national dialogue                                                           SAHRiNGON lawyer
on whether Tanzania should           used arguments by                              Armando Swenya said they
retain capital punishment.             Tanzanian Judge                              had been campaigning to
                                                                                    ensure that the govern-
  They made the call at a
two-day forum held in Dar
                                    James L. Mwalusanya                             ment abolishes the death
                                                                                    penalty, adding: “We once
es Salaam ahead of the              on a case in our own                            tabled a shadow report at
commemoration of the                                                                the Geneva offices of the
World and European Day               country to declare                             United Nations and the
Against the Death penalty.            the death penalty                             UN called on the (Tanzan-
                                                                                    ian) government to abolish
   Kyela legislator Harrison
Mwakyembe was the chief
                                      unconstitutional,”                            the sentence as soon as
                                                                                    practicable.”
guest at the forum, whose
thrust was on the pros and                                                  A facilitator of the work-
cons of the death penalty. Other MPs at the func- shop, advocate Clarence Kipobota, said that Tanzania
tion, which SAHRiNGON organised include, Juma has learnt enough lessons from several countries
Kilimbah, Josephine Genzabuke and Lucy Mayenga. that have abolished the death penalty and should fol-
                                                  low suit.
   Addressing the forum, Dr Mwakyembe said: “We
need a national dialogue                                                    He gave the example of
to see whether we have                                                  South Africa , where civil so-
reached a point of abolish-                                             ciety organisations success-
ing the law on capital pun-                                             fully      persuaded       the
ishment or we need more                                                 Constitutional Court into
time before we come to a                                                abolishing capital punishment
conclusion.”                                                            in 2005.

   The MP, who is also a                                                           “In fact, the South African
journalist and a lawyer,                                                         court used arguments by Tan-
noted that there was an                                                          zanian Judge James L. Mwalu-
obvious contradiction in                                                         sanya on a case in our own
the laws of Tanzania be-                                                         country to declare the death
cause the Constitution                                                           penalty unconstitutional,” he
stipulates that the right to                                                     noted.
life is inviolable while also
providing for the death                                                            Kipobota explained that
penalty.                                                                        Tanzanians have not been
                                                                                very effective in arguing their
  “This is a contradiction.                                                     case against the death
But it is understood that                                                       penalty “primarily because
the government has hardly                                                       rights activists, civil service
ever been willing to fully                                                      organisations and other “al-
execute capital punish-                                                         lies” were yet to rally to-
ment since independ-                                                            gether and thus come up
ence,” he pointed out,                                                          with a stronger voice that
adding that the president       Kyela Legislator in Harrison Mwakyembe, an anti would make the goal more
has all the powers to           death penalty campaigner in Tanzania            achievable.
commute the death sen-
tence.                                                    He also noted that there was also inadequate po-
                                                      litical will on part of the government, adding: “We
   Dr Mwakyembe explained that it is commonly should learn from the achievements of Malawi ’s con-
presumed that the death penalty is a flagrant viola- sultative meetings which have been bringing together
tion of basic human rights “and that is precisely why government officials and the representatives of the
it has been scrapped in many countries and heated judiciary in deliberating on the matter.”

                                                                                                     22
                                                     EU supports
                                                     Dar’s anti-death
                                                     penalty drive
                                                     T
                                                           HE European Union (EU) in
                                                           October 2009 also expressed
                                                           support to ongoing campaigns
                                                     by local, regional and international
                                                     feminist organisations against capital
                                                     punishment. It described the drive,
                                                     as part of a universal crusade seek-
                                                     ing to ensure that the death penalty
                                                     is abolished across the globe.

                                                        The EU said in a statement issued
                                                     in Dar es Salaam that it remained a
                                                     leading activist in efforts to achieve
                                                     universal abolition of the death
                                                     penalty.

                                                        “Despite international efforts, fig-
                                                     ures of death penalty application
                                                     worldwide remain high. In 2008, at
                                                     least 2,390 people were executed in
                                                     25 countries,” read the statement, in
                                                     part, noting that the situation made
                                                     initiatives at multilateral level all the
                                                     more important.

                                                         Highlighting efforts being made by
                                                     the EU, the statement said the abo-
                                                     lition of the death penalty was one
      EU Country Representative in Tanzania Tim      of the thematic priorities in the Eu-
     Clarke, one of the most closest allies in the   ropean Instrument for Democracy
             anti- death penalty crusade.            and Human Rights with over 30
                                                     projects supported so far world-
                                                     wide.


                  “Despite international
                efforts, figures of death
             penalty application worldwide
             remain high. In 2008, at least
             2,390 people were executed in
                     25 countries,”




23
Different view points on death penalty
Govt: Wrong time to scrap death penalty

T
      HE Tanzanian govern-                                                           good report in February this
      ment in August 2009                                                            year but we are still contem-
      said that it is not yet                                                        plating it. We however have
time to abolish the death                                                            until next year in February
penalty owing to the current                                                         before we send it to the gov-
rise in planned murders                                                              ernment paper and that is
such as those of albinos.                                                            when we will send the re-
                                                                                     port for the House to de-
   Constitutional and Justice                                                        cide. Members of Parliament
Minister Mathias Chikawe                                                             will be the ones to decide
made the remarks in Dar es                                                           what to do with it,” said
Salaam during an exclusive                                                           Chikawe.
interview with The Guardian
newspaper.                                                                              Asked whether there was
                                                                                     a chance that the House will
   “Time has not come for                                                            enact a law to abolish the
us to abolish the death                                                              death penalty, Chikawe said
penalty as a government, but                                                         “It is up to them to decide.
we will get there.We are not                                                         We just have to wait and see
ready to abolish the penalty                                                         what they decide then.”
at this moment owing to a
rise in the number of mur-
der cases with intent such as
the killings of Albinos. If we
abolish the death penalty
now, more people will kill
others without fear. Let peo-
ple know that there is a high
price to pay in case they
take someone’s life deliber-       Constitutional and Justice Minister in Tanzania
ately,” said Chikawe.                            Mathias Chikawe

   His remarks came amid con-
cerns by activists in the country,
most of whom are calling for an             “Time has not come for us to
end to the death penalty, arguing      abolish the death penalty as a gov-
that it denied one the right to life
as stipulated in the Universal Dec-    ernment, but we will get there. We
laration of Human Rights.
                                       a r e n o t r e a d y to a b ol i s h th e
   Earlier in the month, the Legal
and Human Rights Centre re-            penalty at this moment owing to a
leased its bi-annual Human Rights      r i s e i n th e n u m b e r of m u r d e r
Report saying the government
had failed to take notable steps to    ca s e s w i th i n t e n t s u ch a s th e
adhere to the April 2009’s recom-
mendations by the Law Reform           killings of Albinos. If we abolish
Commission of Tanzania (LRCT)
which calls for abolition of the       the death penalty now, more peo-
death penalty.                         ple will kill others without fear.
  Commenting on the report,            Let people know that there is a
Minister Chikawe said his ministry
had received the report from the       high price to pay in case they take
LRCT but was still studying it.
                                         someone’s life deli berately,”
  “The LRCT handed us a very

                                                                                                       24
Don calls for caution in death
penalty abolition debate

U
         NIVERSITY of Dar es                                                       lost confidence in the judicial
         Salaam don Dr. Khoti Ka-          “Public opinion                         process, and to such people the
         manga in April 2010 ad-                                                   death penalty is their way of set-
vised the government to move             is not the most                           tling scores,” stressed the don.
cautiously in collecting public
opinions on the abolition or                  profound                               “Public opinion is not the
otherwise of the death penalty          knowledgeable way                          most profound knowledgeable
because the process might in-                                                      way and is not an answer in
volve people who have lost faith            and is not an                          dealing with capital punishment.
in the legal system while others                                                   Each time we collect views we
are illiterate.                           answer in dealing                        have to be careful."
    He raised the alarm at a                with capital                              An anti-death penalty activist
SADC consultative workshop              punishment. Each                           from Zimbabwe , Cousin Zilala,
against the death penalty organ-                                                   said the death penalty was
ized by the SAHRINGON–Tan-               time we collect                           prone to a lot of errors, adding
zania Chapter. Kamanga’s call                                                      that condoning it amounted to
came in the wake of Justice and       views we have to be                          the society lowering itself to the
Constitutional Affairs minister                                                    level of murderers.
Mathias Chikawe's statement                    careful."
that the government would not                                                           Justice and Constitutional Af-
succumb to external                                                                       fairs Minister Mathias
pressure to abolish or                                                                    Chikawe said abolition of
maintaining capital pun-                                                                  capital punishment should
ishment.                                                                                  be a gradual process calling
                                                                                          for caution and people’s in-
   “Public opinion is not                                                                 volvement so that it comes
the most profound                                                                         at the appropriate time.
knowledgeable way and is
not an answer in dealing                                                                     “The government of the
with capital punishment.                                                                  United Republic of Tanzania
Each time we collect                                                                      derives its legitimacy from
views we have to be care-                                                                 the people of Tanzania ,
ful.                                                                                      hence there is no way we
                                                                                          can succumb to external
  We should be very                                                                       pressure, so far as capital
much aware of the fact                                                                    punishment is concerned,
that we are dealing with a                                                                without involving our peo-
public living in abject                                                                   ple in the process,” he said.
poverty and which has




                                    An anti- death penalty campaigner in Tanzania Dr.
                                                   Khoti Khamanga




      25
Life Imprisonment is the alternative to
the death penalty in Namibia Challenges
T
      HE abolishment of the death penalty is founded          Article 8 stipulates that:
      in the Namibian Constitution                            (1)     The dignity of all persons shall be inviolable.
                                                              (2)      (a) any judicial proceedings or in other
   Before Namibia’s its independence on 21 March           proceedings before any organ of the State, and during
1990, death by hanging was sanctioned by the former        the enforcement of a penalty, respect for human dig-
South African apartheid government in Namibia, in          nity shall be guaranteed,
that the death penalty was a competent sentence for            (b)      No person shall be subject to torture or
serious crimes such as treason, murder and rape prior      to cruel, inhuman or degrading treatment or punish-
to independence. The death penalty was also imposed        ment."
for challenges against colonialism.
   It was as MP Nora Schimming Chase called it “used       Article 18 prescribes that:
to liquidate political opponents” during the apartheid      "Administrative bodies and administrative officials
era. In Namibia the death penalty was executed by       shall act fairly and
means of hanging.Whenever an accused person faced       reasonably and
trial in the High Court of Namibia, the public would    comply with the                “Since the
refer to it as hanging. This was how terrified people   requirements              death penalty is
were of the death penalty prior to independence.        imposed upon
   When our founding mothers and fathers wrote the      such bodies and          prohibited by the
Constitution, they took a major step forward in terms   officials by com-        Constitution, no
of progressive policies by abolishing the death penalty.mon law and any          State sanctioned
The result is that our Constitution is both clear and   relevant legisla-
inviolable on the issue of the abolition of the death   tion, and per-            executions have
penalty. Namibia also adopted a policy on national      sons aggrieved              taken place in
reconciliation.                                         by the exercise           Namibia for the
                                                        of such acts and        past twenty years
   The relevant constitutional provisions               decisions shall
   Article 1 (6) of the Namibian Constitution provides have the right to         of independence.”
that the Constitution shall be the Supreme Law of seek redress be-
Namibia.This means that all the other laws be it com- fore a competent
mon law, statutory law and customary law are subject Court or Tribunal."
to the Constitution, should                                 Article 25 of the Namibian Constitution provides
there be a conflict in                                  that the Legislature shall make no laws and the Exec-
laws the Constitution                   "No             utive shall take no action which abolishes or abridges
prevails                                                the fundamental rights and freedoms conferred in
   Chapter 3 of the               person shall          Chapter 3 and any law or action in contravention
Constitution,        which      be deprived of          thereof shall be invalid to the extent of such contra-
contains the Bill of personal liberty                   vention.
Rights, defines a number             except                Finally, Article 144 of the Namibian Constitution
of "fundamental rights                                  provides that the general rules of public international
and freedoms" to be re-           according to          law and international agreements binding upon
spected and upheld. In-           procedures            Namibia under this Constitution shall form part of the
cluded in these rights             established          law of Namibia.
and freedoms are the                                       Since the death penalty is prohibited by the Con-
protection to the right             by law."            stitution, no State sanctioned executions have taken
to life in article 6, right                             place in Namibia for the past twenty years of inde-
to liberty in article 7, re-                            pendence. However we have life imprisonment as an
spect for human dignity 8 and administrative justice alternative to the death penalty subject to the provi-
in article 18.                                          sions of the CPA OF 2004 and the Prisons Act of
   Article 6 of the Constitution states that:           1998.
   "The right to life shall be respected and protected.     Life Imprisonment as an alternative to
No law may prescribe death as a competent sentence. the death penalty
No Court or Tribunal shall have the power to impose        Since the death penalty has been abolished in
a sentence of death upon any person. No executions Namibia, life imprisonment is the alternative sentence
shall take place in Namibia."                           prescribed. Life imprisonment with or without the
   Article 7 which deals with the protection of liberty prospect of parole or probation or remission of sen-
provides that:                                          tence may be imposed on a person who is convicted
   "No person shall be deprived of personal liberty of treason, murder, rape and robbery in terms of the
except according to procedures established by law." Criminal Procedure Act of 2004 as amended.


                                                                                                          26
  According to Section 309 of the CPA                      mission of sentence; or
                                                             (ii) when committed in circumstances other than
   A sentence of life imprisonment may be imposed          above, sentence that person to life imprisonment with
by the High Court only.                                    the prospect of parole or probation or remission of
   Life imprisonment is imposed in circumstances           sentence after having served a period of imprison-
where the offence is so grave that even if there is lit-   ment of not less than 20 years;
tle risk of repetition it merits such a severe sentence
and where the public require protection and must              (c) rape -
have protection even though the gravity of the offence        (i) when committed in the circumstances where the
may not be so serious because there is a very real risk    victim was raped more than once, by more than one
of repetition..."                                          person, rapist had a previous rape conviction, victim
                                                           is a child raped by person in position of trust, men-
  How is the life sentence imposed?                        tally ill, vulnerable due to physical disability, the ac-
                                                           cused used a fire arm or caused physical or mental
  The High Court, must in respect of a person who          harm, sentence that person to life imprisonment
has been convicted of-                                     ,without the prospect of parole or probation or re-
                                                           mission of sentence; or
  (a) treason-                                                (ii) when committed in circumstances other than
  (i) when committed in the circumstances that             above, sentence that person to life imprisonment with
caused death or grievous bodily harm to another per-       the prospect of parole or probation or remission of
son or serious damage to property, sentence that per-      sentence after having served a period of imprison-
son to life imprisonment without the prospect of           ment of not less than 15 years;
parole or probation or remission of sentence;
  So the Caprivi treason accused are likely to get life  (d) robbery
without the prospect of parole                           (i) when committed in the circumstances ( use of
  (ii) when committed in circumstances other than     firearm or dangerous weapon, caused grievous bodily
above, sentence that person to life imprisonment with harm, involves taking of motor vehicle , sentence that
the prospect of parole or probation or remission of   person to life imprisonment without the prospect of
sentence after having served a period of imprison-    parole or probation or remission of sentence; or
ment of not less than 25 years;                          (ii) when committed in circumstances other than
                                                      above, sentence that person to life imprisonment with
   (b) murder-                                        the prospect of parole or probation or remission of
   (i) when committed in the circumstances where it sentence after having served a period of imprison-
was (premeditated, witness was a law enforcement of- ment of not less than 15 years.
ficer, witness to crime, victim death caused by rape,    The question as to whether the imposition of a sen-
robbery) , sentence that person to life imprisonment tence of life imprisonment per se is unconstitutional
without the prospect of parole or probation or re- in Namibia, in the sense that it violates article 8 (re-




      27
Activists pay attention to the presentations during the gathering.
spect for human dignity) was also raised in Namibia        and enhance his dignity and enrich his prospects of
   A: The Prisons Act of 1998, expressly identifies the    liberation from what is undoubtedly a humiliating and
treatment of convicted prisoners with the object of        punishing condition but not a condition inherently or
their reformation and rehabilitation as a function of      inevitably irreversible.
the Prison Service. It further provides a mechanism
for the appointment of an institutional committee             The Supreme Court ruled that life imprisonment is
with the duty to make recommendations pertaining           not unconstitutional as long as an inmate has hope for
to the training and treatment of prisoners upon            parole or other forms of release. It may very well be
whom a life sentence has been imposed. Also it cre-        that even if the sentence of life imprisonment is not
ates machinery for the appointment of a release            per se unconstitutional its imposition in an particular
board which may make recommendations for the re-           case may indeed be unconstitutional if the circum-
lease of prisoners on probation and inter alia em-         stances of that case justify the conclusion that it is so
powers the President of Namibia acting on the              grossly disproportionate to the severity of the crime
recommendation of the release boards to authorise          committed that it constitutes cruel, inhuman or de-
the release of prisoners sentenced to life.                grading punishment in the circumstances or imper-
                                                           missibly invades the dignity of the accused.
   It therefore cannot properly be said that a person
sentenced to life imprisonment is effectively aban-          Pros of life imprisonment versus the
doned as a 'thing' without any residual dignity and        death penalty
without affording such prisoner any hope of ever es-         Life imprisonment does not terminate the life of
caping from a condition of helpless and perpetual in-      the imprisoned. It invades his liberty.
carceration for the rest of his or her natural life. The
hope of release is inherent in the statutory mecha-          The prisoner has hope for parole and
nisms. The realization of that hope depends not only       other forms of release.
on the efforts of the prison authorities but also on         The prison institutions also have the duty in the
the sentenced offender himself. He can, by his own re-     case of prisoners sentenced to life imprisonment,
sponses to the rehabilitatory efforts of the authori-        to strive towards their resocialization,
ties, by the development and expansion of his own            to preserve their ability to cope with life and
potential and his dignity and by the reconstruction and      to counteract the negative effects of incarceration
realization of his own potential and personality, retain   and destructive personality changes which go with it.
                                                                                                         28
Activists hold candles as a symbolism of respect for the right to life.
   The essence of human dignity is only attacked if the    Unemployment and poverty are some of the fac-
prisoner, notwithstanding his personal development, tors contributing to increased crime rates – yes but
must abandon any hope of ever regaining his freedom. what contributes to unemployment, educational sys-
                                                         tems that do not address the needs of society, how do
   Challenges                                            you maintain an educational system that fails 90% of
   Increase in serious crime rates i.e. rape and mur- its learners every year, where do you expect them to
der, caused repeated calls for the reintroduction of go and what should they do with their lifes.
the debate on the death penalty in the Namibian Na-
tional Assembly as the way to stop the increase in           Life imprisonment is expensive for the taxpayer
crime. LAC position is that the death penalty will not   and the budget allocation for prisons is low in respect
reduce crime. There is a need to try and establish of correctional services and rehabilitation.
what the root causes of crime are and alcohol abuse
is certainly one of them in Namibia.                       Prisons are overcrowded and are not conducive for
                                                         prisoners sentenced to life imprisonment particularly
   Namibia increase in GBV leading to death because those living with HIV. LAC report shows that sex does
of the way boys and girls are socialized at home and take place in prison, whether forced or consensual.
in the community at a very young age i.e. we tell our Namibian prisons do not distribute condoms to pris-
boys -women are not equal to men, this has an im- oners because sodomy is a crime, despite the public
pact on how men perceive of women in society in fu- health benefits that exist to distributing condoms in
ture , in that it explains why they resort to GBV in the prisons.
form of murder as a way to make themselves felt or
when they experience opposition from women. How              In a nutshell implementation remains a challenge
we raise our children has an impact on how they deal for our government, in as much as we have a very pro-
with anger, children should know from an early age gressive legal framework that guarantees the right to
that men and women are equal and have the same life and prohibits the death penalty, and legislative
rights.                                                  mechanisms , implementation is often a challenge -
                                                         rehabilitation is costly and require government to in-

      29
vest resources, question is whether our governments       tenuating circumstances, and if you would be able to
are prepared to invest in prisons, and society in gen-    avoid it one or the other way, I do not think you
eral because at some point the prisoners will leave       would readily impose the death penalty. He is per-
prison to rejoin their communities.                       sonally glad that the death penalty has been abol-
                                                          ished”.
   Conclusion
   In Namibia, while the Constitution prohibits the         Recommendations
death penalty, Since independence Namibia only had
thirty six (36) cases of life imprisonment. The Presi-       Embark on a massive educational and awareness
dent regularly does presidential pardons.                 creation campaign on the nature of the death penalty,
                                                          rights violated by the practice, it benefits and disad-
  It is important to note that in this modern era         vantages, for the legal profession and the public in
there are other alternative methods such as life im-      general. Compile detailed briefs and affidavits for the
prisonment that could be applied and with which one       court, do proper research for the court as a way of
could get the same results without taking life away.      educating the court on the issue.

  The former Chief Justice of Namibia, Justice Stry-          Identify MP who are anti death penalty or affected
dom had this to say about the death penalty on his         by the issue, educate them and let them buy into the
retirement:                                                issue and let them address these issues in various par-
                                                           liamentary standing committees as a way of sensitiz-
   “Before independence he was unlucky enough to ing their peers so that together they can advocate for
have to impose the death sentence a couple of times. abolishing the death penalty
It is not an easy thing to do. The moment you walk
into that case you feel the atmosphere of tension- that       To the extent possible, move towards entrenching
this is going to result into something. It is really not a the Bill of Rights and do away with those claw back
decision that you take easily. You really look for ex- clauses.




                                                                                                       30

				
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