are buried in a grave inside the prison ground. In the present case, the Complainants contend that the mother of the prisoner and a representative of Ditshwanelo were denied access to the prisoner on 31 March 2006, a day before his execution which they learnt of via the radio. 59. The Complainants submit that the failure to inform the prisoner, his mother or his lawyer in advance of the scheduled execution constitutes inhuman treatment.22 Similarly, the failure to release the body to the family for burial constitutes a violation of Article 5 of the Charter. The Complainants refer to the case of Interights &Ors (On Behalf Of Bosch) v Botswana (supra) to argue that the secrecy of the execution did not allow the Victim to receive the comfort of intimate family members and spiritual advice before his death. That the Manner in which the Warrant is Served in the Republic of Botswana Acts to Deny the Prisoner the Protection of the African Commission on Human and Peoples' Rights 60. The Complainants submit that both the manner in which the warrant of execution is served (to the prisoner or family or legal representative) and the subsequent execution prevents the Complainants from finalising all available avenues for redress, in particular, the Complaints procedure under the African Charter. The Complainants submit that until the procedure for clemency has been exhausted, the prisoner is expected to wait for the exhaustion of local remedies. And therefore to inform the Prisoner about the denial of the Clemency application at the same time as issuing a warrant of execution prevents the prisoner from enjoying the protection of the Commission. The Respondent State's Submissions on the Merits 61. The Respondent State has failed to respond to the Commission's request for its submissions on the Merits of the Communication, within the stipulated time, despite several reminders. 62. In accordance with Rules 119(4) and 120 of the previous Rules of Procedure, the Commission will proceed and decide the matter on the Merits. Decision of the Commission on the Merits 63. The Commission reiterates from the onset that it did not receive submissions from the Respondent State on Merits and as such the following analysis relies principally on the submissions of the Complainants as well as the jurisprudence of the Commission. Alleged Violation of Article 4 64. One of the questions before the Commission is whether the death penalty as such - however executed - is compatible with the Charter. In dealing with this question, the Commission has in the past established in its decisions that the imposition of a sentence of death after an unfair trial - or a trial that does not meet the requirements of fairness set out in Article 7 of the Charter - is necessarily a violation of Article 4 of the Charter. Thus in Forum of Conscience v Sierra Leone23 the Commission ruled that: The right to life is the fulcrum of all other rights. It is the fountain through which all other rights flow, and any violation of this right without due process amounts to arbitrary deprivation of law. Having found above that the trial of the 24 soldiers constituted a breach of due process of law as guaranteed under Article 7(1)(a) of the Charter, the Commission consequently finds their execution an arbitrary deprivation of the right to life provided for in Article 4 of the Charter (para. 20). 65. The same reasoning was applied in the Ken Saro-Wiwa and others v. Nigeria, where the Commission found that: Given that the trial which ordered the executions itself violates Article 7, any subsequent implementation of sentences renders the resulting deprivation of life arbitrary and in violation of article 4. (Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr and Civil Liberties Organisation v Nigeria24 66. It would itself be arbitrary, given its previous decisions with respect to the death penalty, were the Commission suddenly to determine that the practice of the death penalty in Africa would in all cases be a 9