only to the extent of the mandatory nature of the penalty. The Court holds
that a remedy is warranted in that respect.
160. The Court, therefore, orders the Respondent State to take all necessary
measures for the rehearing of the case on the sentencing of the Applicant
through a process that does not allow a mandatory imposition of the death
penalty, while upholding the full discretion of the judicial officer.
iii. Restitution and release
161. The Applicant prays for the Court to order the Respondent State to revoke
the death sentence imposed on him and remove him from death row.
162. The Applicant also prays the Court to order the Respondent State to release
him from prison. He submits that a retrial would be fraught with practical
difficulties given the passage of time since the alleged offence, therefore the
suitable remedy would be his release from prison.
163. On the prayer that the sentence be revoked, the Court has held that orders
such as vacating the death sentence are to be determined on a case-bycase basis having due consideration mainly to proportionality between the
measure sought and the extent of the violation established.78
164. In the present case, the Court has found that the provision for the mandatory
imposition of the death sentence in the Respondent State’s legal framework
violates the right to life protected in Article 4 of the charter. The Court,
therefore, orders the Respondent State to vacate the death penalty in the
case of the Applicant and remove him from death row pending the rehearing
ordered above.
78
Rajabu and Others v. Tanzania (merits and reparations), supra, § 156.
45
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