47. The Complainants submit that the interpretation of the word ‘arbitrarily’ as being
synonymous with the absence of fair trial guarantees is unneccesary since Article
7 of the African Charter has already provided for the same and hence submit that
the S v. Mkwanyane & Anor approach should be adopted. The Complainants
also highlight a decision of the Hungarian Constitutional Court, where it was
held that the death penalty violated Article 54 of the Hungarian Constitution, in
which no limitation clause was provided.11
48. The Complainants submit that the application of the death penalty, in general
and in Botswana in particular, is inherently arbitrary and unequal because it is
per se dependent on the discretion of the judge with other antecedent problems
such as underfunded or non-existent legal aid and the reliance on junior lawyers
for pro deo representation in capital cases. Under these circumstances, the
imposition of the death penalty cannot escape the fact that it is not unfair or
unequal.
49. The Complainants submit that there exists an unambiguous protection of the
right to life under the African Charter and that any intention to limit this right
through the death penalty would have been expressly stated as is the case under
Article 6(2) of the International Covenant on Civil and Political Rights (ICCPR).
That the Death Penalty as Imposed in the Republic of Botswana is Arbitrary
50. The Complainants submit that should the Commission hold that the prohibition
of the arbitrary deprivation of life in Article 4 of the African Charter permits the
imposition of the death penalty, the clemency procedure is arbitrary since it is a
discretionary power of the Executive exercised by the President which is not
subject to judicial review process.
51. The Complainants also submit that the death penalty is arbitrary in Botswana
since executions are often enforced after trials in which the accused persons are
11
Ruling 23/1990 (X31) AB, Constitutional Court of Hungary, Judgment of 24 October 1990, Magyar Kozlony
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