i. Imposing the mandatory death penalty without considering the circumstances of the offender and the offence; ii. Imposing the death penalty outside the category of cases to which it can be lawfully applied; and iii. Imposing the death penalty without a fair trial. 64. On the first ground, the Applicant asserts that the Respondent State imposed the mandatory death penalty, which violates Article 4 of the ICCPR and Article 6 of the Charter. He contends that the mandatory death penalty erases the presumption in favour of life, erases the distinction between the categories of murder and violates the right to an individualised sentencing process. He submits that in all cases involving the possible application of the death penalty, the personal circumstances of the offender and the particular circumstances of the offence, including its specific and aggravating or mitigating elements, must be considered by the sentencing Court, as underlined by the United Nations Human Rights Committee. According to the Applicant, the domestic courts must be given discretion on whether or not to impose the death penalty.19 65. The Applicant cites the jurisprudence of the Inter-American Court,20 national jurisprudence from the Uganda Supreme Court21 and the High Court of Malawi,22 where the mitigating factors were considered. He contends that the circumstances in the present case make it abundantly clear that the death penalty is not warranted because the prosecutor failed to demonstrate the Applicant’s intent to murder and did not take into account his good character and demonstrable capacity to rehabilitate as well as other social mitigating factors. 19 Luboto v. Zambia, Human Rights Committee, Communication No. 390/1990, (Oct 31, 1995) paragraph 7.2; Chisanga v. Zambia, Human Rights Committee, Communication No. 1132/2002, (Oct 18, 2005), § 7.4; Larranga v. Philipines, Human Rights Committee, Communication No. 1421/2005, (July 24, 2006) paragraph 7.2; Carpo v. Philipines, Human Rights Committee, Communication No. 1077/2002, (9 May 2003), § 8.3. 20 Boyce v. Barbados, Inter-American Court of Human Rights, Judgment of 20 November 2007, Paragraph 50-53 21 Attorney General v. Kigula, §§ 63-64. 22 Kafantayeni v. Attorney General, (High Court), No 12 of 2005 (27 April 2007; Republic v. Keke (High Court) No 404 of 2010 (June 18, 2013). 18