240/01 : Interights et al. (on behalf of Mariette Sonjaleen Bosch) / Botswana Summary of Facts 1. The communication is submitted by Edward Luke II of Luke and Associates, Saul Lehrfreund of Simons Muirhead and Burton (practising advocates based in the United Kingdom and Botswana) and Interights, a human rights NGO based in the United Kingdom on behalf of Mariette Sonjaleen Bosch who is of South African nationality. 2. Mrs Bosch was convicted of the murder of Maria Magdalena Wolmarans by the High Court of th Botswana on 13 December 1999 and sentenced to death. She appealed to the Court of Appeal of th Botswana, which dismissed her appeal on 30 January 2001. 3. The Complainant alleges that the judge who convicted Mrs Bosch wrongly directed himself that the burden of proof was on the accused “to prove on a balance of probabilities” that someone else was responsible for the killing and thereby reversing the presumption of innocence. That the Court of Appeal wrongly upheld the conviction despite recognising the fact that the judge had fundamentally erred by reversing the onus of proof. 4. The Complainant further alleges that her right to life has been violated by the imposition of the death penalty for what was alleged to be a crime of passion, in circumstances where there were clearly extenuating circumstances. 5. It is also alleged that Mrs Bosch is likely to suffer inhuman treatment and punishment because the execution will be carried out by the cruel method of death by hanging, which exposes the victim to unnecessary suffering, degradation and humiliation. Complaint 6. The Complainant alleges a violation of Articles Articles 4, 5 and 7.1 of the African Charter. Procedure th 7. The communication was received at the Secretariat of the [African] Commission 7 March 2001 by fax. th 8. On 12 March 2001, the Secretariat of the African Commission wrote to INTERIGHTS requesting for complete copies of the judgements of the High Court and Court of Appeal of Botswana. th 9. On 26 March 2001, the Secretariat of the [African] Commission received by courier the full text of th the judgement of the Court of Appeal of Botswana delivered on 30 January 2001 and expert affidavits relating to the manner and speed in which a person executed by hanging would meet their death. th 10. On 27 March 2001, the Chairman of [African] Commission wrote to the President of Botswana appealing for a stay of execution pending consideration of the communication by the [African] Commission. 11. The President of Botswana did not respond to the appeal but information received at the [African] Commission indicates that Mrs Bosch was executed by hanging on 31st March 2001. th 12. At its 29 Ordinary Session, the [African] Commission decided to be seized of the complaint and the parties to the communication were informed of this decision. th 13. At its 30 Ordinary Session held in Banjul, The Gambia, the [African] Commission heard oral submissions from the Complainants and declared the communication admissible. th 14. On 9 November 2001, the Secretariat informed the parties of the decision of the African Commission and requested them to transmit their written submissions on admissibility and on the merits to the Secretariat. 15. The African Commission continued the process of exchanging information between the parties. th th th 16. At its 34 Ordinary Session, held from 6 to 20 November 2003 in Banjul, The Gambia, the African Commission considered the communication and delivered its decision on the merits.

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