Law Admissibility 17. The admissibility of communications brought pursuant to Article 55 of the Charter is governed by the conditions stipulated in Article 56 of the African Charter. This Article lays down seven (7) conditions, which generally must be fulfilled by a Complainant for a communication to be declared admissible. 18. The Complainants submit that they have fulfilled all the conditions of Article 56 of the African Charter. They argue that Mrs Bosch was convicted of the murder of Maria Magdalena Wolmarans by th the High Court of Botswana on 13 December 1999 and sentenced to death. She appealed to the th th Court of Appeal of Botswana, which dismissed her appeal on 30 January 2001. On 7 March 2001, 35 days after the Court of Appeal of Botswana had handed down its decision dismissing Mrs Bosch‟s appeal, the Complainant[s] filed this communication with the African Commission. They submit that this matter has not been submitted for examination under any other procedure of international investigation or settlement. The Complainants also state that all local remedies were exhausted and the complaint was filed with the African Commission within a reasonable time from the time local remedies were exhausted. Therefore the African Commission should declare the communication admissible. 19. In their response, the Respondent State concedes that all local remedies in this matter were exhausted, as the Court of Appeal is the last and final court in Botswana. 20. The [African] Commission notes that the Respondent State and the Complainants agree that all domestic remedies were exhausted and thus declares the communication admissible. Merits 21. Three issues relating to alleged violations of the African Charter were originally raised on behalf of the [A]pplicant. A fourth issue, namely whether or not there was a violation of Articles 1, 4 and 7.1 in declining to respect the indication of provisional measures was added when consolidated submissions were made. Two further issues were added in the document entitled „Note of Applicant‟s Submissions‟ circulated at the 31st Session bringing the total number of issues to six. One of the six issues namely “whether the methods of execution in Botswana, by hanging, breached 5 of the African Charter” was abandoned during the hearing of the matter at the African Commission‟s 31st Ordinary Session. Each of the remaining issues will be dealt with in turn. Alleged Violation of the Right to Fair Trial 22. With regard to the alleged violation of the right to fair trial under Article 7.1.b of the African Charter, the issue is whether the misdirection by the trial judge in regard to the onus of proof was so fatal as to negate the right to fair trial in the circumstances of this case. Simply put, does a misdirection per se vitiate the holding of a fair trial in violation of Article 7 of the African Charter and of necessity leads to the quashing of a conviction with capital consequences. 23. In this regard, it was submitted that the placing of the burden of proof on the Applicant was a violation of a fundamental right such as would negate the holding of a fair trial and that the Court of Appeal wrongly held that this did not result in a miscarriage of justice. 24. In dealing with this issue it is important to recognise that there is no general rule or international norm stating that any misdirection per se vitiates a verdict of guilt. As pointed out by the State Party, what is generally accepted in several countries particularly common law countries is the rule that a misdirection will vitiate a verdict of guilt only where such misdirection either on its own or “cumulatively is or are of such a nature as to result in a failure of justice”. The legal position is aptly stated in 1 Archbold, Criminal Pleading and Practice as follows”. “The very basic and fundamental function of the courts of justice is to ensure that no substantial miscarriage of justice is allowed through the operation of the judicial process. The courts cannot be

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