violation of Article 4. However, given the evolution of international human rights law and jurisprudence, and State practice, and cognisant of the progressive work undertaken by the Commission's own Working Group on Death Penalty, Extra-Judicial, Summary or Arbitrary Killings in Africa, the Commission considers it increasingly difficult to envisage a case in which the death penalty can be found to have been applied in a way that is not in some way arbitrary. As a result it is difficult to conceive that, if called upon in future to do so, that the Commission will find that the death penalty, however it is executed, is any longer compatible with the African Charter. 67. In the present Communication, the Complainants wish to rely on three grounds upon which the imposition of the death penalty could be argued to have been arbitrary as follows: (i) the system of (pro deo) legal aid available to the defendant left him with inadequate legal representation and therefore no guarantee of a fair trial; (ii) the range of possible "extenuating circumstances" available to the trial judge rendered the sentence arbitrary; and (iii) the clemency system is arbitrary. 68. It is the submission of the Complainants that the application of the death penalty in Botswana is in inherently arbitrary and unequal because it is dependent on an underfunded or non-existent legal aid scheme which relies on junior lawyers for pro deo representation in capital cases. 69. As to the right to counsel and legal aid, it is worth noting that it is the responsibility of State Parties to ensure that legal assistance is available in capital cases and this is so even if the unavailability of private counsel is to some degree attributable to the victim, and even if the provision of legal assistance would entail an adjournment of proceedings. A competent, capacitated and committed defence team is indispensible to a fair, proper and efficient investigation and trial. This is true both in terms of the perceptions of fairness, and in terms of attaining individualised justice that is fair in substance (not just in form). 70. The Commission observes that the pro deo system in Botswana, as in most African Countries, is criticised for being handled by lawyers who lack the requisite skills, resources and commitment to handle such serious matters, which could result in a miscarriage of justice.25 To buttress their submissions, the Complainants relied on number cases, including the case of the United States v. Burns26 and South African case S v. Makwanyane and Anor.27 71. This notwithstanding, it is the view of this Commission that while this may be the case, the Complainants have not shown that the pro deo attorney assigned to the victim in this present case was a young and in-experienced counsel, and therefore lacked the requisite skills, resources and commitment. Consequently, the Commission cannot rely on their submission. 72. On the pro deo system, the Commission notes that, if the system or the use of inexperienced young defence lawyers had been so fundamental to the trial of Mr. Ping, so as to cause a miscarriage of justice and a violation of his fair trial rights, such miscarriage of justice ought to have formed a ground of appeal in the Court of Appeal. However from the evidences before this Commission including the judgements of the High Court and that of the Court of Appeal of the Respondent State, the Complainants did not mention that due process was not respected with regards to the pro deo system in the trial of Mr. Ping, as a result of which his trial was negatively affected. The Commission further notes that the issue of pro deo representation never arose at the Court of Appeal. 73. The Commission further holds the view that it is responsibility of the Courts of State Parties and not that of the Commission to evaluate the facts in a particular case submitted before such Courts, and unless it is shown that the Courts' evaluation of the facts are manifestly arbitrary or amounted to a denial of justice, the Commission cannot substitute the decision of the Courts with that of its own. It has not been shown that the Courts' evaluation of the evidence put before them was in anyway arbitrary or erroneous, as to result in a failure of justice in Mr Ping's case.28 74. The Commission finally holds the view that in the absence of the Respondent State's submissions, it is the duty of the Complainant to lead copious and cogent evidence to support each and every allegation of fact contained in their complaint. Relying on mere suspicion, no matter how strong the suspicion may be, 10