46. The Complainants submit that there are circumstances in which life may lawfully be taken, for example acts of self-defence, and that such deprivations of life would not be arbitrary. In this case, the state could legislate to determine the circumstances which an individual could kill, for instance, in self-defence. However, the Complainants submit, the same cannot be true of the death penalty, which is inherently arbitrary. In other words, it is impossible to apply the death penalty other than in an unequal and unfair manner. This is particularly significant given the finality of the death penalty itself. 47. The Complainants submit that the interpretation of the word 'arbitrarily' as being synonymous with the absence of fair trial guarantees is unneccesary since Article 7 of the African Charter has already provided for the same and hence submit that the S v. Mkwanyane &Anor approach should be adopted. The Complainants also highlight a decision of the Hungarian Constitutional Court, where it was held that the death penalty violated Article 54 of the Hungarian Constitution, in which no limitation clause was provided.11 48. The Complainants submit that the application of the death penalty, in general and in Botswana in particular, is inherently arbitrary and unequal because it is per se dependent on the discretion of the judge with other antecedent problems such as underfunded or non-existent legal aid and the reliance on junior lawyers for pro deo representation in capital cases. Under these circumstances, the imposition of the death penalty cannot escape the fact that it is not unfair or unequal. 49. The Complainants submit that there exists an unambiguous protection of the right to life under the African Charter and that any intention to limit this right through the death penalty would have been expressly stated as is the case under Article 6(2) × In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court. of the [url=http://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf,International Covenant on Civil and Political Rights (ICCPR)[/url]. That the Death Penalty as Imposed in the Republic of Botswana is Arbitrary 50. The Complainants submit that should the Commission hold that the prohibition of the arbitrary deprivation of life in Article 4 of the African Charter permits the imposition of the death penalty, the clemency procedure is arbitrary since it is a discretionary power of the Executive exercised by the President which is not subject to judicial review process. 51. The Complainants also submit that the death penalty is arbitrary in Botswana since executions are often enforced after trials in which the accused persons are represented by junior and inexperienced lawyers. The Complainants submit that since many people are poor in Botswana they cannot afford legal representation and therefore rely on the pro deo system of legal representation which often results in miscarriages of justice, as illustrated by Maauwe and Motswella v. the State.12 The many weaknesses of the pro deo system were made clear in the appeal case, Ditshwanelo v. Attorney General.13 The Complainants submit that the pro deo counsel appointed by the Registrar in the above case failed to effectively represent the accused person leading to his conviction and sentence to death. Based on the inadequate legal assistance during the trial at the court below, the convicts repeatedly requested for new lawyers when the matter went on appeal, but the Registrar refused to act on these requests. They submitted that it took the intervention of a Ditshwanelo appointed counsel for an order of stay of execution to be issued. Subsequently, a mistrial was subsequently ordered. Without the intervention of Ditshwanelo, the Complainants submit that the two accused persons would have been executed. 52. The Complainants submit that the poor quality of legal representation for capital offence cases in Botswana has attracted concerns from the United Nations Human Rights Committee. As such the Complainants submit that it is not sufficient to simply assign lawyers to capital offence cases as the pro deo 7