44. The Complainants make reference to the South African case of S v Mkwanyane & Anor where the death penalty was found to be a violation of the right to life under section 9 of the South African Interim Constitution. The Complainants note that Section 9 of the South African Interim Constitution offers ‘absolute unqualified’ protection to the right to life while the African Charter prohibits the deprivation of life ‘arbitrarily.’ There is however a general limitation clause in the South African Constitution. 45. The Complainants submit that there is no general limitation clause in the African Charter and that all limitations are contained in the Articles themselves. They also referred to the Media Rights Agenda and Others v. Nigeria that ‘a limitation may never have a consequence that the right itself becomes illusory.’ Therefore the interpretation of the African Charter should be exercised to ensure that the rights are realised as this is the overall purpose of the African Charter. Consequently, the word ‘arbitrarily’ should not be interpreted so as to limit the protection of Article 4 so as to make the right to life illusory. According to the Complainants, in S v Mkwanyane & Anor, the Judges observed that the death penalty would not be a reasonable limitation on the right to life because the application of the death penalty is inherently arbitrary. 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. 14 | P a g e