system relies to a great degree on inexperienced and underpaid young attorneys. The Complainants therefore submit that to the extent that the pro deo system relies on inexperienced and underpaid attorneys whereas wealthier defendants can engage experienced and competent lawyers means that the decision whether or not to impose the death penalty is arbitrary. 53. The Complainants also submits that the mandatory imposition of the death penalty where there are no extenuating circumstances is arbitrary. In support of this submission the Complainant refers the Commission to the UN Human Rights Committee decision in Rolando v. Philippines14 where it was held inter alia that the mandatory and automatic imposition of the death penalty violates Article 6 of the ICCPR. 54. Complainants submit that Section 203 (2) of the Penal Code of Botswana does not allow the trial Court to consider the personal circumstances of the accused as mitigating factors in deciding whether or not to impose the death sentence. They contended that the imposition of the death penalty without reference to the personal circumstances of the accused would be arbitrary as it fails to ensure the protection of due process rights. The Complainants refer to the Unreported Eastern Caribbean Court of Appeal case of Spence v. The Queen,15 where it was held that the Court must have the discretion to take into account the individual circumstances of an accused in determining whether the death penalty should be imposed or not. Failure to do so, the Complainants contend, would result in the death penalty amounting to an arbitrary deprivation of life. The above position has been reiterated in several other jurisdictions including in American cases of Furman v. Georgia16 and Gregg v. Georgia17 as well as the Uganda Supreme Court case of Ag v. Susan Kigula &Ors18 . That the Death Penalty is Cruel and Inhuman in Violation of Article 5 of the African Charter 55. The Complainants submit that the death penalty is cruel and inhuman treatment because it undermines the sanctity of human life and is against the modern judicial attitude of substituting the death penalty with other forms of punishment such as life imprisonment, as is the case in South Africa and Rwanda. They contend that the majority of countries in the world are abolitionist in law or practice and also refers to the UN General Assembly Resolutions calling for a worldwide moratorium on executions of the death penalty. 56. The Complainants also submit that national and international judicial and quasi-judicial forums have held that the death penalty constitutes cruel, inhuman and degrading treatment. In Ng v. Canada,19 the UN Human Rights Committee held that the execution of a sentence of death may be considered to constitute cruel and inhuman treatment within the meaning of Article 7 × No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. of the Covenant. In Interights &Ors (on behalf of Bosch) v. Botswana,20 , the Commission concluded by encouraging all state parties to take all measures to refrain from exercising the death penalty. The complainants also rely on the case of S v. Makwanyane among others to emphasize the point above on various points. 57. The Complainants aver that the victim's execution by the unnecessarily painful method of hanging constituted a cruel, inhuman and degrading form of punishment. This averment is supported by the Complainants contention that the process of being blindfolded and pinioned, hanged by the neck, made to defecate and urinate and/or being subjected to a long drawn-out, extremely painful, and gruesome death amounts to inhuman and degrading treatment contrary Article 5 of the African Charter. In further support of this averment, reference is made to UN Human Rights Committee 21 recommendation that where the death penalty is applied by a State party for the most serious crimes, it must be carried out in such a way as to cause the least possible physical and mental suffering. That the Circumstances Surrounding the Republic of Botswana's Implementation of the Death Penalty is Cruel and Inhuman 58. The Complainants submit that section 26(1) of the Botswana's Penal Code prescribes death by hanging and that section 18 of the Prison Act requires that a prisoner should be given the death warrant at least 24 hours before execution. In Botswana, the Complainants submit that a warrant is usually given a few hours before the execution and that the body of the prisoner is usually not given back to the family instead they 8