A. Alleged violation of the right to life
60. The Applicant alleges that the Respondent State violated her right to life by
imposing the death penalty outside the category of cases to which it can
lawfully be applied and also by imposing the death penalty without
considering the circumstances of the offender and offence.
i.
Imposition of the death penalty
61. The Applicant refers to jurisprudence from various jurisdictions to support
her submission that death sentences should be imposed for the most
serious offences, the most gruesome, the most extreme, “the rarest of the
rare” and “the worst of the worst”.19 The Applicant submits that a court
should consider that the nature of the offence must be interpreted with a
restrictive lens and pertinently, the offence should be assessed against
other murder cases and not with ordinary “civilised” behaviour. According to
the Applicant, the Respondent State did not apply this high threshold when
imposing the death penalty on her thereby violating her right to life.
*
62. In response, the Respondent State submits that the death penalty is a lawful
sentence for the offence of murder as provided for under Section 197 of its
Penal Code and this sentence has been upheld by its Court of Appeal.
Further, the Respondent State argues that “looking at the wording of Article
4 of the African Charter, death penalty is permitted provided that it is carried
out in accordance with the law.” Specifically in relation to the Applicant, the
Respondent State submits that her death sentence is lawful because “the
facts constituting her offence are ‘worst of the worst’ as the murder was
premeditated” and “was carried out through setting the deceased on fire.”
19
Human Rights Committee (HRC), Communication 1421/2005, Larranaga v. Philippines, Views
adopted on July 24,2006, § 7.2; Republic v. Jamuson White, Criminal Case No. 74 of 2008 (unreported),
High Court of Malawi; Trimmingham v. The Queen [2009] UKPC 25, § 21; and HRC Communication
No. 4701/1991, Kindler v. Canada, Views adopted on July 30, 1993, §14.3.
18