Complainants’ Submissions on the Merits 113. The Complainants submit that the compulsory requirement under Botswana law for the Courts to impose the death penalty for murder, where no extenuating circumstances are shown; the adoption of the doctrine of “functus officio” by the Court of Appeal of the Respondent State with regards to the trial of Kobedi; the clemency petition process and the use of hanging as a method of execution of AC HP R Kobedi violates Articles 2,3,4,5 and 7 of the African Charter. Alleged Violation of Articles 2 and 3 (Right not to be Discriminated and Right to Equality before the law) 114. The Complainants argue that the compulsory requirement under Botswana legislation that a Court must impose the death penalty for murder, absent only extenuating circumstance limits the factors that can be taken into consideration in respect of sentencing. They submit that the exclusion of considerations such as rehabilitation or such other factors personal to the victim violates Articles 2 and 3 of the African Charter. They submit that the distinction between taking into account extenuating circumstances and not taking into account mitigating factors is both arbitrary and discriminative. Alleged Violation of Article 4 (Right to Life) 115. The Complainants argue that because the imposition of the death penalty is qualitatively different from any other sentence or sanction that may be imposed by a Court of Law, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case. The Complainants rely on the decision of the Inter-American Commission on Human Rights in Downer & Tracey v. Jamaica to argue the fact that the death 28