66. On the second ground, i.e., imposing the death penalty outside the category
of cases to which it can be lawfully applied, the Applicant submits that for a
death sentence to be permissible, it is a necessary (but not sufficient)
condition that the offence belongs to those of the most serious nature and
that it is one of the rarest of the rare cases. Citing Article 6 of the ICCPR,
and the case of Moise v. The Queen,23 he contends, that “the death penalty
should be imposed only in the most exceptional and extreme cases of
murder”. He buttresses his argument by citing international human rights
jurisprudence from various Courts.24
67. The Applicant further argues that in this particular case, the alleged offence
does not fall within the narrow set of the “rarest” of cases for which the death
penalty can be lawfully applied. Furthermore, while the burden of proving
otherwise rests with the Respondent State, his circumstances illustrate that
he did not deserve the death penalty imposed upon him, so that his right to
life was violated. He concludes the deceased was not tortured , or subjected
to prolonged trauma or humiliated prior to his death. The Applicant further
asserts that the prosecution failed to provide any evidence that the victim’s
murder was premeditated. Therefore, he submits that there is no reason to
think that the Applicant would be a threat to society.
68. On the third ground, i.e., imposing the death penalty without a fair trial, the
Applicant avers that the African Commission has emphasised that “if, for
any reason, the criminal justice system of a state does not, at the time of
trial or conviction, meet the criteria for Article 7 of the Charter or if the
particular proceedings in which the penalty is imposed have not stringently
met the highest standards of fairness, then the subsequent application of
the death penalty will be considered a violation of the right to life”.25
23
Eastern Caribbean Court of Appeal, Judgment (15 July 2005), Crim App No. 8 of 2003, para 17.
Chisanga v. Zambia, Human Rights Committee, Communication No. 1132/2002, (Oct 18, 2005) § 7.4;
Republic v. Jamuson White (High Court of Malawi) (Criminal Case No 74 of 2008 (Unreported);
Trimmingham v. The Queen (Privy Council) paragraph 21; Kindler v. Canada, Communication No.
470/1991. 30 July 1993, § 14.3.
25 General Comment on Article 4, p. 7 and Int’l Pen and Others (on behalf of Saro-Wiwa) v. Nigeria,
African Commission on Human and People’s Rights, Communication Nos. 137/94, 154/96 and 161/97,
(Oct. 31, 1998), paragraph 90.
24
19