consequently finds their execution an arbitrary deprivation of the right to life provided for in Article 4 of the Charter” (para. 20). 65. The same reasoning was applied in the Ken Saro-Wiwa and others v. Nigeria, where the Commission found that: Given that the trial which ordered the executions itself violates Article 7, any subsequent implementation of sentences renders the resulting deprivation of life arbitrary and in violation of article 4.” (Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr and Civil Liberties Organisation v Nigeria24 66. It would itself be arbitrary, given its previous decisions with respect to the death penalty, were the Commission suddenly to determine that the practice of the death penalty in Africa would in all cases be a violation of Article 4. However, given the “evolution of international human rights law and jurisprudence, and State practice”, and cognisant of the progressive work undertaken by the Commission’s own Working Group on Death Penalty, Extra-Judicial, Summary or Arbitrary Killings in Africa, the Commission considers it increasingly difficult to envisage a case in which the death penalty can be found to have been applied in a way that is not in some way arbitrary. As a result it is difficult to conceive that, if called upon in future to do so, that the Commission will find that the death penalty, however it is executed, is any longer compatible with the African Charter. 67. In the present Communication, the Complainants wish to rely on three grounds upon which the imposition of the death penalty could be argued to have been arbitrary as follows: (i) the system of (pro deo) legal aid available to the defendant left him with inadequate legal representation and therefore no guarantee of a fair trial; (ii) the range of possible “extenuating circumstances” available to the trial judge rendered the sentence arbitrary; and (iii) the clemency system is arbitrary. 137/94, 139/94, 154/96 and 161/970, para. 103) (See also the series of communications heard with Malawi African Association v Mauritania 54/91 at para. 120.) 24 21 | P a g e