ffi&l&,
4. This opinion will thus undertake to show the emptiness of the
so-called
mandatory death penalty distinction from other death sentences (1.) which
feeds the judgment of Rajabu and others; next, the fact will be examined that
the court could have acceded to a system of prohibition of capital punishment
in any form, as it is abundanfly suggested in our opinion, Article 4 of the African
Charter on Human and Peoples' Rights (ll.).
l.
5.
The emptiness of fhe distinction between the death penalty and the
so-ca I led co m p u I so ry senten ce
The Applicant told the court that "by not amending Article 1g7 of its penal
code, which provides for the mandatory death penatty in the event of murder,
the Respondent state has violated the right to life and is not respecting the
obligation to give effect to this right as guaranteed by the charter,,4. lt was
therefore for the Court to situate this infringement in its legal context: in addition
to the right to life, the application of the death penalty was in question. As in its
recent Eddie Johnson Dexter case, the mandatory death penalty regime was
the basis for the controversy between the Applicant and the Respondent state.
This distinction in this death sentence is neither operational nor justified in its
legal significance. lt is very relative.
6.
National legislators end up with an extensive criminal power over a subject that
is now regulated by international criminal law. lt is known that, formally, the
death penalty, as a criminal sanction, was a matter of internal public order. This
is a matter of the orders of the various states which determine their penal policy
and the hierarchy of the penalties inscribed in their codes. The concept of
reserved area, in all its meaning in international law, applied to those ,'cases
which are essentially within the national jurisdiction of a state', within the
4
ldem., F 14
3