th Chairperson of the African Commission to the President of Botswana on 27 March 2001 seeking a stay of execution. The letter was communicated by fax. 50. In its oral submissions during the 31st Ordinary Session, the Respondent State argued that the fax was never received by the President. However, in this particular case, the African Commission is not in possession of any proof that the fax was indeed received by the President of Botswana. 51. Article 1 obliges State Parties to observe the rights in the African Charter and to “adopt legislative or other measures to give effect to them”. The only instance that a State Party can be said to have 11 violated Article 1 is where the State does not enact the necessary legislative enactment . 52. However, it would be remiss for the African Commission to deliver its decision on this matter without acknowledging the evolution of international law and the trend towards abolition of the death nd penalty. This is illustrated by the UN General Assembly‟s adoption of the 2 Optional Protocol to the ICCPR and the general reluctance by those States that have retained capital punishment on their Statute books to exercise it in practice. The African Commission has also encouraged this trend by 12 adopting a Resolution Urging States to Envisage a Moratorium on the Death Penalty and therefore encourages all states party to the African Charter to take all measures to refrain from exercising the death penalty. Holding For the above reasons, the African Commission, Finds that the Republic of Botswana is not in violation of Articles 1, 4, 5 and 7(1) of the African 13 Charter; Strongly urges the Republic of Botswana to take all measures to comply with the Resolution Urging States to Envisage a Moratorium on the Death Penalty; Requests the Republic of Botswana to report back to the African Commission when it submits its report in terms of Article 62 of the African Charter on measures taken to comply with this recommendation. th th th Done at the 34 Ordinary Session held in Banjul, The Gambia from 6 to 20 November 2003. Footnotes 1. 200[0] Ed[ition] at page 18 10. Volume 1, Butterworths, 1975 11. See Young, James and Webster which discusses Article 1 of the European Convention which is similar to Article 1 of the [African] Charter th th 12. Adopted at the 26 Ordinary Session of the African Commission held from 1st to 15 November 1999, Kigali, Rwanda 13. Commissioner N. Barney Pityana asked to be recused from participating in consideration of this th communication at the 29 Ordinary Session of the African Commission and as such did not take part in all discussions relating to this matter. 2. Page 114, para. 11.238 3. See also [url=http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&sessionid=61710962]Hoang v France(1992) 16 EHRR 53[/url] 4. U.G.A. Huele, 1970, Belgium 5. U.G.A Huele, Digest of Case-Law Relating to the European Convention on Human Rights 1955-1967, Belgium, p. 140, para. 153 6. Guerra v Baptiste [1996] AC 397, p.418. 7. Executive independence and the Courts Presidentialism in Commonwealth Africa, B. O. Nwabueze, p.33. th 8. 5 edition, West Publishing Company, 1979 th 9. 5 edition, Sweet and Maxwell Limited, 1986.