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with Rule 112(2) of the African Commissions Rules of Procedure) on the measures taken to give effect to these recommendations. Done in Banjul, The Gambia, during the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights, 4 – 18 November 2015. 32 | P a g e

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Summary of the Complaint1
Articles alleged to have been violated2
The Procedure2
Provisional Measures7
The Law on Admissibility8
The Complainants’ Submissions on Admissibility8
The Respondent State’s Submissions on Admissibility9
The Commission’s Decision on Admissibility9
Merits11
Preliminary Objection by the Respondent State 11
The Complainants’ Submissions on the Merits12
That the Death Penalty is per se in Violation of Article 4 of the African Charter12
That the Death Penalty as Imposed in the Republic of Botswana is Arbitrary15
That the Death Penalty is Cruel and Inhuman in Violation of Article 5 of the African Charte17
That the Circumstances Surrounding the Republicof Botswana’s Implementation of the Death Penalty is Cruel and Inhuman18
That the Circumstances Surrounding the Republicof Botswana’s Implementation of the Death Penalty is Cruel and Inhuman18
That the Manner in which the Warrant is Served in the Republic of Botswana Acts to Deny the Prisoner the Protection of the African Commission on Human and Peoples’ Rights19
The Respondent State’s Submissions on the Merits20
Decision of the Commission onthe Merits20
Alleged Violation of Article 420
Alleged Violation of Article 526
Alleged Violation of Article 130

Communication 319/06 - Interights & Ditshwanelo v. Botswana

ACHPR Decision

Preview

Type of Document

Decision

Keywords

Death Sentence
Murder/Assassination
Right to Life

Case Head Notes: The Complainants allege that the Victim was accused of the murder of his girlfriend and her son in 2002, and was accordingly convicted and sentenced by the High Court of the Respondent State to fifteen years imprisonment for the murder of his girlfriend, and to death by hanging for the murder of her 6 year old son.

Country

Botswana

Outcome: Decided on Merits

Year Decided: Nov 18, 2015

Rights Alleged to be Violated (ACHPR Provisions)

ACHPR 1: General Obligations
ACHPR 4: Right to Life and Integrity
ACHPR 5: Cruel Inhuman and Degrading Treatment

Rights Violated (ACHPR Provisions)

ACHPR 1: General Obligations
ACHPR 5: Cruel Inhuman and Degrading Treatment

Rights Not Violated (ACHPR Provisions)

ACHPR 4: Right to Life and Integrity

Duration of Procedure

Mar 31, 2006 ~ Nov 18, 2015

Country Geolocation

Latitude: -22.328474

Longitude: 24.684866

Country Geolocation (linked ACHPR Decision): Botswana

Primary Documents

319_06 Interights & Ditshwanelo v. The Republic of Botswana.pdf
English
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African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right. Article 5Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

Treaty

African Charter on Human and Peoples' Rights

Article 1The Member States of the Organization of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Chapter and shall undertake to adopt legislative or other measures to give effect to them

Treaty

Rules of Procedure of the African Commission on Human and People's Rights

Rule 111 Review of the decision of the Commission on the meritsOnce the Commission has taken a 1. decision on the merits, it may, on its own initiative or upon the written request of one of the parties, review the decision. In determining whether to review 2. its decision on the merits, the Commission shall satisfy itself of the following:that the request is based upon a. the discovery of some fact of such a nature as to be a decisive factor, which fact was not known to the Commission and the party requesting the review, provided that such ignorance was not due to negligence;that the application for review b. is made within six months of the discovery of the new fact;any other compelling reason or c. situation that the Commission may deem appropriate or relevant to justify review of a Communication, with a view to ensure fairness, justice and respect for human and peoples’ rights.No application for review may be 3. made after three years from the date of the decision.

ACHPR Soft Law

1995 Rules of Procedure of the African Commission on Human and Peoples' Rights

4. However, the Commission shall decide in the issue of admissibility if the State party fails to send awritten response within three (3) months from the date of notification of the text of the communication.

Rules of Procedure

Rules of Procedure of the African Commission on Human and People's Rights

ule 117 Advisory Opinion The Commission may request to be heard by the Court upon being notified by the Court of a request for an Advisory Opinion pursuant to Article 4(1) of the Protocol.

ACHPR Soft Law

Rules of Procedure of the African Commission on Human and People's Rights

ACHPR Soft Law

African Charter on Human and Peoples' Rights

Treaty

2010 Rules of Procedure of the African Commission on Human and Peoples' Rights

Rule 103 Preliminary Objection1. A party who intends to raise a preliminary objection at the stage of admissibility or before theCommission takes a decision on the merits of the Communication, shall do so not latter than thirty (30)days after receiving notification to submit on admissibility or on the merits. The Commission shallcommunicate the objection to the other party within fifteen (15) days.2. A party who intends to respond to a preliminary objection raised by the other party shall submit a writtenresponse not later than thirty (30) days after the Secretary to the Commission has transmitted the objectionto that party.3. If no response to a preliminary objection is received within the stipulated period, the Commission shallproceed with the consideration of the preliminary objection on the basis of the available information.4. When the Commission receives a preliminary objection, it shall first of all determine this objection beforeany other question relating to the Communication.

Rules of Procedure

Rules of Procedure of the African Commission on Human and People's Rights

ule 117 Advisory Opinion The Commission may request to be heard by the Court upon being notified by the Court of a request for an Advisory Opinion pursuant to Article 4(1) of the Protocol.

ACHPR Soft Law

Rules of Procedure of the African Commission on Human and People's Rights

Rule 117 Advisory Opinion The Commission may request to be heard by the Court upon being notified by the Court of a request for an Advisory Opinion pursuant to Article 4(1) of the Protocol.

ACHPR Soft Law

1995 Rules of Procedure of the African Commission on Human and Peoples' Rights

2. A communication may be declared admissible if the State party concerned has been given theopportunity to submit the information and observations pursuant to paragraph 1 of this Rule.

Rules of Procedure

Rules of Procedure of the African Commission on Human and People's Rights

Rule 117 Advisory Opinion The Commission may request to be heard by the Court upon being notified by the Court of a request for an Advisory Opinion pursuant to Article 4(1) of the Protocol.

ACHPR Soft Law

1995 Rules of Procedure of the African Commission on Human and Peoples' Rights

Rules of Procedure

Rules of Procedure of the African Commission on Human and People's Rights

Rule 117 Advisory Opinion The Commission may request to be heard by the Court upon being notified by the Court of a request for an Advisory Opinion pursuant to Article 4(1) of the Protocol.

ACHPR Soft Law

1995 Rules of Procedure of the African Commission on Human and Peoples' Rights

2. A communication may be declared admissible if the State party concerned has been given theopportunity to submit the information and observations pursuant to paragraph 1 of this Rule

Rules of Procedure

African Charter on Human and Peoples' Rights

Article 56Communications relating to human and peoples' rights referred to in 55 received by the Commission, shall be considered if they: 1.Indicate their authors even if the latter request anonymity, 2.Are compatible with the Charter of the Organization of African Unity or with the present Charter, 3.Are not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organization of African Unity, 4.Are not based exclusively on news discriminated through the mass media, 5.Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged, 6.Are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter, and 7.Do not deal with cases which have been settled by these States involved in accordance with the principles of the Charter of the United Nations, or the Charter of the Organization of African Unity or the provisions of the present Charter.

Treaty

1995 Rules of Procedure of the African Commission on Human and Peoples' Rights

Rules of Procedure

Rules of Procedure of the African Commission on Human and People's Rights

ule 117 Advisory Opinion The Commission may request to be heard by the Court upon being notified by the Court of a request for an Advisory Opinion pursuant to Article 4(1) of the Protocol.

ACHPR Soft Law

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

African Charter on Human and Peoples' Rights

Article 5Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

1969 Vienna Convention on the Law of Treaties

Article 31, GENERAL RULE OF INTERPRETATION1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose

UN Document

European Convention on Human Rights

ARTICLE 3Prohibition of tortureNo one shall be subjected to torture or to inhuman or degrading treatment or punishment

Treaty

European Convention on Human Rights

ARTICLE 2Right to life1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:(a) in defence of any person from unlawful violence;(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

Treaty

224/98 Media Rights Agenda and Others v Nigeria

ACHPR Decision

242/01 Interights, Institute for Human Rights and Development in Africa, and Association Maurianienne des Droits de l'Homme v Mauritania

ACHPR Decision

Communication 155/96 - Social and Economic Rights Action Center (SERAC) & Center for Economic and Social Rights (CESR) v. Nigeria

ACHPR Decision

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

African Charter on Human and Peoples' Rights

Article 5 Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of ma n particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

Treaty

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

African Charter on Human and Peoples' Rights

Article 5 Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of ma n particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

Treaty

African Charter on Human and Peoples' Rights

Treaty

224/98 Media Rights Agenda and Others v Nigeria

ACHPR Decision

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

African Charter on Human and Peoples' Rights

Article 71.Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the right to defense, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal. 2.No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

International Covenant on Civil and Political Rights ICCPR

UN Document

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

African Charter on Human and Peoples' Rights

Treaty

International Covenant on Civil and Political Rights ICCPR

Article 61. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 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. 3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide. 4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases. 5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. 6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant

UN Document

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

International Covenant on Civil and Political Rights ICCPR

Article 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

UN Document

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

1988 Rules of Procedure of the African Commission on Human and Peoples' Rights

Rule 120 : Method of SuspensionThe Commission may suspend temporarily, the application of any Rule of the present Rules of Procedure,on condition that such a suspension shall not be incompatible with any applicable decision of theCommission or the Assembly or with any relevant provision of the Charter and that the proposal shall havebeen submitted 24 hours in advance. This condition may be set aside if no member opposes it. Such asuspension may take place only with a specific and precise object in view and should be limited to theduration necessary to achieve that aim.

Rules of Procedure

1995 Rules of Procedure of the African Commission on Human and Peoples' Rights

4. States parties from whom explanations or statements are sought within specified times shall be informedthat if they fail to comply within those times the Commission will act on the evidence before it.

Rules of Procedure

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

137/94-139/94-154/96-161/97 International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interrights (on behalf of Ken Saro-Wiwa Jnr) v Nigeria

ACHPR Decision

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

Communication 240/01 - Interights et al. (on behalf of Mariette Sonjaleen Bosch) v. Botswana

29.It should be noted here that it is for the courts of State Parties and not for the [African] Commission to evaluate the facts in a particular case and unless it is shown that the courts‟ evaluation of the facts were manifestly arbitrary or amounted to a denial of justice, the [African] Commission cannot substitute the decision of the courts with that of its own. It has not been shown that the courts evaluation of the evidence was in any way arbitrary or erroneous as to result in a failure of justice. The [African] Commission therefore finds that there is no basis for finding that the State Party violated its obligations underArticles 4and7.1

ACHPR Decision

245/02 Zimbabwe Human Rights NGO Forum v Zimbabwe

ACHPR Decision

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

Communication 277/2003 - Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v. Botswana

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.

ACHPR Decision

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

European Convention on Human Rights

ARTICLE 3Prohibition of tortureNo one shall be subjected to torture or to inhuman or degrading treatment or punishment

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

Communication 240/01 - Interights et al. (on behalf of Mariette Sonjaleen Bosch) v. Botswana

ACHPR Decision

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

Rules of Procedure of the African Commission on Human and People's Rights

ule 112 Follow-up on the recommendations of the CommissionAfter the consideration of the 1. Commission’s Activity Report by the Assembly, the Secretary shall notify the parties within thirty (30) days that they may disseminate the decision. In the event of a decision against a 2. State Party, the parties shall inform the Commission in writing, within one hundred and eighty (180) days of being informed of the decision in accordance with paragraph one, of all measures, if any, taken or being taken by the State Party to implement the decision of the Commission.Within ninety (90) days of receipt 3. of the State’s written response, the Commission may invite the State concerned to submit further information on the measures it has taken in response to its decision. Part Three : Protection Activities 42If no response is received from 4. the State, the Commission may send a reminder to the State Party concerned to submit its information within ninety (90) days from the date of the reminder.The Rapporteur for the 5. Communication, or any other member of the Commission designated for this purpose, shall monitor the measures taken by the State Party to give effect to the Commission’s recommendations on each Communication.The Rapporteur may make such 6. contacts and take such action as may be appropriate to fulfill his/her assignment including recommendations for further action by the Commission as may be necessary.At each Ordinary Session, the 7. Rapporteur shall present the reportduring the Public Session on the implementation of the Commission’s recommendations.The Commission shall draw the 8. attention of the Sub-Committee of the Permanent Representatives Committee and the Executive Council on the Implementation of the Decisions of the African Union, to any situations of non-compliance with the Commission’s decisions. The Commission shall include 9. information on any follow-up activities in its Activity Report

ACHPR Soft Law

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- ACHPR Soft Law9
- UN Document4
- ACHPR Decision1
- Rules of Procedure8
Cases Referenced2
- ACHPR Decision2
International cases/decisions6
- ACHPR Decision6
Location1
- Countries (Geolocation) 1

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