counsel vitiated the entire proceedings and amounted to a breach of the fair trial procedure provided for in Article 7 of the African Charter. 128. The Complainants also submitted that this fresh evidence was not only critical to the determination of Kobedi‟s guilt, and the question whether the death sentence was the most appropriate sentence in the circumstance, but that the refusal by the Court of Appeal of the Respondent State to receive or test the AC HP R said objective, material and compelling evidence also violated Kobedi‟s fair trial rights guaranteed under Article 7 of the African Charter. 129. The Complainants submit that the test adopted by the Botswana Court of Appeal which required the victim to prove beyond all reasonable doubt on affidavit that the new evidence would upset the conviction, instead of the balance of probability test is overly broad. It is further submitted by the Complainants that under the due process guarantees, the State ought to present evidence in rebuttal of the expert testimony presented in favor of Kobedi and that if the State had even presented such contrary expert evidence, there would still have been a need for an expert conference to determine if the experts can resolve points of departure, failing which the evidence should be tested. It is further argued by the Complainants that the non-compliance with this procedure amounted to a violation of the fair trial rights of the victim protected under Article 7 of the African Charter. 130. The Complainants contends that by relying on the evidence of an unqualified forensic expert and by refusing to receive and test the evidence of a qualified forensic expert to determine the source and direction of the bullet which struck Sgt. Goepamang, amounts to a fundamental miscarriage of justice and thus a violation of Article 7 of the African Charter. 33