observations have been made either by the Complainant itself or by the Respondent State to contravene the decision arrived at. For these reasons, the Respondent State’s preliminary objection cannot stand and the Commission will therefore proceed with the Merits of this Communication. The Complainants’ Submissions on the Merits 39. The Complainants submits that: the death penalty is per se in violation of Article 4 of the African Charter; moreover, the imposition of the death penalty in the Respondent State’s jurisdiction is arbitrary and is therefore in violation of Article 4 of the African Charter; the death penalty is a cruel, inhuman or degrading in contravention of Articles 1 and 5 of the African Charter; the specific manner in which condemned persons in the Respondent State’s jurisdiction are executed in secret after clemency has been denied, without informing the family or legal representatives of the condemned person is cruel, inhuman or degrading treatment in violation of Article 5 of the African Charter; the manner in which the warrant of execution is served in the jurisdiction of the Respondent State acts to deny the prisoner the protection of the African Commission on Human on Peoples’ Rights in violation of Article 1 of the African Charter. That the Death Penalty is per se in Violation of Article 4 of the African Charter 40. The Complainants submit that a generous and purposive interpretation of Article 4 should find that the death penalty is inherently arbitrary and therefore per se a violation of the Charter. 41. The Complainants submit that national courts including in the South African case of S v. Mkwanyane & Anor4 , the Tanzanian case of The Republic v. Mbushuu & 4 (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391 (6 June 1995). 12 | P a g e