68. It is the submission of the Complainants that the application of the death penalty in Botswana is in inherently arbitrary and unequal because it is dependent on an underfunded or non-existent legal aid scheme which relies on junior lawyers for pro deo representation in capital cases. 69. As to the right to counsel and legal aid, it is worth noting that it is the responsibility of State Parties to ensure that legal assistance is available in capital cases and this is so even if the unavailability of private counsel is to some degree attributable to the victim, and even if the provision of legal assistance would entail an adjournment of proceedings. A competent, capacitated and committed defence team is indispensible to a fair, proper and efficient investigation and trial. This is true both in terms of the perceptions of fairness, and in terms of attaining individualised justice that is fair in substance (not just in form). 70. The Commission observes that the pro deo system in Botswana, as in most African Countries, is criticised for being handled by lawyers who lack the requisite skills, resources and commitment to handle such serious matters, which could result in a miscarriage of justice.25 To buttress their submissions, the Complainants relied on number cases, including the case of the United States v. Burns26 and South African case S v. Makwanyane and Anor.27 71. This notwithstanding, it is the view of this Commission that while this may be the case, the Complainants have not shown that the pro deo attorney assigned to the victim in this present case was a young and in-experienced counsel, and therefore lacked the requisite skills, resources and commitment. Consequently, the Commission cannot rely on their submission. 25 Page 14 of Complainants Submission 26 27 State v Makwanyane and Another, [1995] ZACC 3, 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) 22 | P a g e