164.
While it is accepted that there is no rule of international law which prescribes
the circumstances under which the death penalty may be imposed, the African
Commission has cautioned that the death penalty should only be imposed after a
full consideration of not only the circumstances of the individual offence, but
also the circumstances of the individual offender.46
165.
The Complainants have made reference to the fact that the adoption of
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HP
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hanging as a method of executing the death penalty, and the failure of the Courts
in the Respondent State to have regard to the medical condition of Kobedi
violates Article 5 of the African Charter.
166.
By invoking Article 60 of the African Charter, the African Commission will
rely on the jurisprudence of the UN Human Rights Committee
47
to hold that
where a death sentence has been imposed, it must be carried out in such a way as
to cause the least possible physical and mental suffering. This approach was
applied in Ng v. Canada
48
wherein the UN Committee found that the particular
method of gas asphyxiation amounted to cruel, inhuman and degrading
treatment.
167.
The African Commission, therefore, believes that, the carrying out of a death
sentence using a particular method of execution may amount to cruel inhuman
or degrading treatment or punishment if the suffering caused in execution of the
sentence is excessive and goes beyond that is strictly necessary.
168.
The African Commission holds that under the African Charter, a parallel
obligation to prevent torture or ill-treatment derives from the undertaking given
46
47
Communication 240/01, Para. 31
Human Rights Committee, General Comment No. 20, Para. 6.
Communication No 469/1991, Human Rights Committee, 7 January 1994, UN doc. CCPR/C/49/D/469/1991, Para. 16.2 and
16.4.
48
45
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