139. In S v. Makwanyane, the South African Constitutional Court summarised
the position as follows: “[T]he death sentence should only be imposed in
the most exceptional cases, where there is no reasonable prospect of
reformation and the objects of punishment would not be properly achieved
by any other sentence”.56 Further, in Mitcham and Others v. Director of
Public Prosecution, the Eastern Caribbean Court of Appeal held that “the
burden of proof at the sentencing hearing lies on the prosecution and the
standard of proof shall be beyond reasonable doubt.”57
140. The Court notes that in the instant Application, the mandatory imposition of
the death penalty deprived the trial court of the discretion to consider
whether the Applicant’s case fell within the classification of the rarest cases
for which a death penalty can lawfully be imposed. This is because, as
applied under the laws of the Respondent State, the death sentence is
automatic for murder and does not allow the judicial officer to consider
specifics of the offence. Given the above, the Court holds that the
Respondent State violated the Applicant’s right to life by failing to allow the
judicial officer to take into account the nature of the offence.
141. As far as the situation of the offender is concerned, this Court recalls that,
as it held in the above cited Rajabu judgment, the mandatory imposition of
the death penalty, as provided for in Section 197 of the Penal Code of the
Respondent State, falls short of the requirements of due process as it takes
away the discretionary power of a judicial officer to impose a sentence on
the basis of the individual circumstances of a convicted person.58 In
Marthine Christian Msuguri v. United Republic of Tanzania, the Court
examined whether the Applicant had suffered post traumatic disorder prior
to the commission of the offence and whether he suffered from insanity at
the time of commission.59 The Court recalls that, as established in its
Trinidad and Tobago, Merits, Reparations, and Costs, Judgment of June 21, 2002. Series C No. 94,
para. 106.
56 S v. Makwanyane, Case No. CCT/3/94, Judgement of 6 June 1995, para 46.
57 Mitcham & Ors v. DPP, Crim. App. Nos 10-12 of 2002, Eastern Caribbean Court of Appeal, para 2.
58 Rajabu and Others v. Tanzania (merits and reparations), supra, § 110.
59 Msuguri v. Tanzania (judgment), supra, §§ 66-72.
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