277/2003-Spilg and Mack & DITSHWANELO (on behalf of
Lehlohonolo Bernard Kobedi) v. Botswana
Summary of Facts
1.
The Communication is submitted by Brain Spilg an advocate in South Africa
and Unoda Mack, an Attorney with Mack Bahuma & Moncho based in
Botswana. The authors of the Communication are appointed pro deo1
deceased.
2.
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representatives for Mr. Lehlohonolo Bernard Kobedi (hereinafter Kobedi), now
The Complainants allege that on the 14 October 1998, Kobedi was convicted
and sentenced to death by the High Court of Botswana for murder of a Sergeant
of the Police force of Botswana – Sgt. Kebotsetswe Goepamang on 22 May 1993.
According to the Complainants, it is alleged that Sgt. Kebotsetswe
3.
Goepamang died as a result of a bullet wound, received during the course of a
police manhunt on the 22 May 1993 from Kobedi who had escaped from custody.
The Complainants however maintained that the shot had been fired by another
policeman and not by Kobedi. They claim that he had been wrongly charged
with the murder of Sgt. Kebotsetswe Goepamang.
4.
The Complainants submit that Sgt. Goepamang had been shot by a high
velocity firearm, AK 47, a type used by the police force and not a low velocity
firearm such as found in possession of the accused/victim which was a
Kalashnikov 9mm. It is further submitted by the Complainants that were it not
for gross medical mismanagement by the hospitals and medical staff treating
1
Counsel appointed at the instruction of the Court and whose legal cost is paid by the state due to the
indigence of the accused/victim.
1
sergeant Goepamang, he would not have died from injuries. The Complainants
state that during the trial, crucial ballistic analysis and expert medical evidence
was adduced which revealed a contradiction in the initial ballistic analysis relied
upon by the Court to convict Kobedi. They claim that there was gross medical
negligence towards Sgt.Goepamang during his time in hospital.
5.
However, the Complainants allege that the Court refused to receive or test the
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said objective, material and compelling evidence thereby violating Articles 4, 5
and 7 of the African Charter on Human and Peoples‟ Rights (hereinafter the
African Charter). They claimed that this evidence was critical to proving the
innocence of Kobedi and to addressing the question whether the death sentence
was the most appropriate punishment.
6.
The Complainants also submit that the compulsory requirement under
Botswana legislation for Court to impose a death sentence for murder where no
extenuating circumstances are shown violates Article 2,3,4,5 and 7 of the African
Charter.
7.
Furthermore, the Complainants submit that Kobedi was living under fear of
the imposition of the death sentence for over a decade since he was first arrested
and was on death row since September 1998. The complainants allege that the
long delay in trying Kobedi also exposed him to unnecessary cruel, inhuman and
degrading treatment for the reason that he had lived for an unconscionable
amount of time awaiting the imposition of a death sentence.
8.
It is also allege by the Complainants that Kobedi was likely to suffer
unnecessary inhuman treatment and punishment not only because the execution
will be carried out by the cruel method of death by hanging, but also because he
2
was aware that his medical ailment would have caused him greater and more
prolonged agony during the execution than if he were medically fit.
9.
Kobedi was executed before the African Commission on Human and Peoples‟
Rights (hereinafter the African Commission or the Commission) could initiate an
appeal for Provisional Measures.
From the foregoing, the Complainants request the African Commission to:
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10.
a.
Hold that there has been a violation of Articles 2, 3, 4, 5 and 7
of the African Charter by the Respondent State.
b. Urge the Respondent State not to impose the death sentence on
the victim and not to carry out the death sentence by the method
of hanging.
c.
Adopt such further or other recommendations and procedures as
to protect the victim‟s rights under the African Charter.
Complaint
11.
The Complainants alleges a violation of Article 2,3,4,5 and 7 of the African
Charter.
Procedure
12.
The Communication was received at the Secretariat of the African
Commission on 18 July 2003.
13.
On 21 July 2003, the Secretariat of the African Commission wrote to the
Complainants acknowledging receipt of the Communication and requesting
information as to the veracity of the information received at the Secretariat of the
3
African Commission that Kobedi had been executed on the 18 July 2003. There
was no response from the Complainants in this regard.
14.
At its 34th Ordinary Session held from 6 to 20 November 2003 in Banjul, The
Gambia, the African Commission decided to be seized of the matter.
15.
On 7 November 2003, the Secretariat of the African Commission received a
letter from the Complainants in response to its letter of 21 July 2003 which tried
16.
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to confirm the execution of Kobedi.
On 14 November 2003, the Secretariat of the African Commission received a
letter from the Complainants indicating that DITSHWANELO, a human right
NGO based in Botswana was an interested party in this Communication and is
therefore authorized to access any information relating to the Communication.
17.
On 4 December 2003, the parties to the Communication were informed
accordingly and requested to forward their written submissions on Admissibility
of the Communication within 3 months.
18.
By Email dated 4 March 2004, the Complainants forwarded a copy of their
submissions on Admissibility of the Communication. Annexes to the
submissions were transmitted by fax on the same day.
19.
On 8 March 2004, the Secretariat of the African Commission acknowledged
receipt of the Complainants submissions and forwarded a copy of the said
submissions to the Responsible State by DHL courier service.
20.
By Note Verbale dated 25 May 2004, the Secretariat received a preliminary
response from the Respondent State on the Admissibility of the Communication.
It also requested the African Commission to defer consideration of the
Communication to the next Session in order to enable it to submit supplementary
4
arguments
after
obtaining
the
original
Complaint
submitted
by
the
Complainants.
21.
At its 35th Ordinary Session held in Banjul, The Gambia from 21 May to 4 June
2004, the African Commission considered the request for deferment from the
Respondent State and decided to defer consideration of the Communication on
the Admissibility to the 36th Ordinary Session so as to allow the Respondent State
22.
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to forward exhaustive written submissions on Admissibility.
By Note Verbale dated 15 June 2004, the Respondent State was notified of the
African Commission‟s decision and a copy of the Communication as well as the
Complainants‟ submissions on Admissibility were also transmitted to the
Respondent State.
23.
By letter dated 15 June 2004, the Complainants were also notified of the
decision of the African Commission.
24.
By Note Verbale of 16 September 2004 the Secretariat of the African
Commission reminded the Respondent State to submit all its arguments on
Admissibility.
25.
At the 36th Ordinary Session held in Dakar, Senegal from 23 November to 7
December 2004, the African Commission heard oral submissions from the
Respondent State only and deferred its decision on the matter pending a
response from the Complainants on the observations made by the Respondent
State regarding the issue of the Complainants‟ locus standi.
26.
By Note Verbale dated 13 December 2004, the Respondent state was notified
of the decision of the African Commission. By letter of same date the Secretariat
of the African Commission by DHL courier service forwarded the preliminary
5
submission of the State on the question of locus standi and its decision to defer
consideration on Admissibility pending the Complainants‟ response on the
Respondent State‟s submissions on locus standi.
27.
On the 12 January 2005, the Complainants acknowledged receipt of the
Secretariat‟s letter of 13 December 2004 and indicated that a proper response
28.
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would be sent in due course.
By the letter dated 28 February 2005, the Secretariat reminded the
Complainants to submit their observations on the question of locus standi before
13 March 2005 and informed them that the African Commission would consider
the Admissibility of the Communication at its 37th Ordinary Session.
29.
On 29 April 2005, the Secretariat of the African Commission received the
Complainants‟ response to the Respondent State‟s observation on locus standi.
30.
At its 37th Ordinary Session held in Banjul from 27 April to 11 May 2005, the
African Commission deferred consideration of the Communication pending the
finalization of a study on the question of locus standi and legal interest within the
context of its Communication Procedure.
31.
By Note Verbale dated 10 June 2005, the Respondent State was notified of the
decision of the African Commission and by the letter of the same date the
Complainants were also notified of the African Commission‟s decision.
32.
During the 38th Ordinary Session, the African Commission considered the
Communication in light of the objections raised by the Respondent State
regarding the issue of locus standi of the Complainants and decided to declare the
Communication Admissible.
6
33.
By Note Verbale and letter dated 15 December 2006, the Respondent State
and the Complainants were notified of the African Commission‟s decision.
34.
At its 39th Ordinary Session held in May 2006, the African Commission
considered the Communication, and decided to defer further consideration
thereon to its 40th Ordinary Session.
At its 40th Ordinary Session, the African Commission further considered the
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35.
Communication and deferred further consideration to its 41st Ordinary Session.
36.
By Note Verbale and a letter dated 9 February 2007, the parties were
reminded of the African Commission‟s decision on Admissibility and were
requested to submit their arguments on the Merits by 8 April 2007, for the
African Commission‟s consideration at its 41st Ordinary Session.
37.
By Note Verbale and a letter dated 27 April 2007, the African Commission
reminded the parties of its request for their arguments on the Merits and
requested them to make their submissions latest by 10 May 2007.
38.
At its 41st Ordinary Session, the African Commission considered the
Communication and deferred further consideration to its 42nd Ordinary Session
to allow both parties submit on the Merits.
39.
By Note Verbale and a letter dated 10 July 2007, both parties were notified of
the African Commission‟s decision.
40.
By Note Verbale and a letter dated 11 September 2007, the African
Commission reminded both parties to submit their arguments on the Merits.
7
41.
By Email of 3 October 2007, the Secretariat received the submissions on the
Merits from the Complainants.
42.
By Note Verbale dated 17 October 2007, the African Commission forwarded
the Complainants‟ submissions to the Respondent State and by a letter of the
same date acknowledged receipt of the Complainant‟s submission on the Merits.
By Note Verbale of 22 October 2007, the Respondent State acknowledged
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43.
receipt of the Complainants‟ submissions on the Merits, but informed the African
Commission that the submissions were received after the deadline had passed
and requested that the Communication be deferred to the 43rd Ordinary Session
to give it time to submit its own arguments on the Merits.
44.
By Note Verbale of 29 October 2007, the Secretariat of the African
Commission acknowledged receipt of the Respondent State‟s Note Verbale and
informed the Respondent State that a decision on its request will be made by the
African Commission during its 42nd Ordinary Session.
45.
At its 42nd Ordinary Session, the African Commission considered the
Communication and deferred its decision to the 43rd Ordinary Session to allow
the Respondent State to submit its arguments on the Merits.
46.
On 13 May 2008, the Secretariat of the African Commission received the
Respondent State‟s submissions on the Merits.
47.
At its 43rd Ordinary Session, the African Commission considered the
Communication and decided to defer further considerations to the 44th Ordinary
Session to allow the Complainants to be served with the Respondent State‟s
submissions on the Merits.
8
48.
By a letter dated 17 June 2008, the Complainants were notified and served
with a copy of the Respondent State‟s submission on the Merits.
49.
At its 44th Ordinary Session, the African Commission considered the
Communication and decided to defer further consideration of same to its 45 th
Ordinary Session to allow the Complainants to respond to the Respondent State‟s
50.
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submissions on the Merits.
By Note Verbale and a letter dated the 5 January 2009, both parties were
informed of this decision and the Complainants were requested to send their
response before 5 March 2009.
51.
At its 45th Ordinary Session, the African Commission considered the
Communication and deferred further consideration, thereon, to its 46th Ordinary
Session to allow the African Commission to prepare a decision on the Merits.
52.
At its 46th Ordinary Session, the African Commission considered the
Communication and again deferred its decision on the Merits to its 47th Ordinary
Session.
53.
By Note Verbale and a letter dated 14 December 2009, the Secretariat of the
African Commission notified both parties of its decision.
54.
At its 47th Ordinary Session, the African Commission considered the
Communication and decided to defer its decision on the Merits to its 48th
Ordinary Session.
9
55.
At its 48th Ordinary Session, the African Commission considered the
Communication and decided to defer its decision on the Merits to its 49 th
Ordinary Session.
56.
At its 49th Ordinary Session, the African Commission considered the
Communication and decided to defer decision on the merit to the 50th Ordinary
Session, and by a note verbale and a letter dated 16 August 2011, both the
57.
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Complainant and the Respondents were informed of the Commission‟s decision.
At its 50th Ordinary Session, the African commission considered the decision
on the merits and made comments. The Commission requested the Secretariat to
incorporate its comments on the Communication and present it to the 10 th Extraordinary Session for revision and adoption.
58.
At its 10th Extra-ordinary Session held from 12 to 16 December 2011, in Banjul,
The
Gambia,
the
African
Commission
considered
and
adopted
the
Communication on Merit.
Submissions on Locus Standi
Respondent State’s Submissions on Locus Standi
59.
The African Commission was seized of this Communication at its 34 th
Ordinary Session held in Banjul, The Gambia from 6 to 20 November 2003.
60.
In its preliminary submissions, the Respondents State argues that the
Communication should be declared inadmissible on the ground that the authors
lacked locus standi to submit or assume authorship of the Communication. The
Respondent State argues that both Unoda Mack, a national of Botswana, and
Brain Spilg SC, a national of South Africa were briefed as pro deo to argue the
10
appeal of Kobedi before the Botswana Court of Appeal at the instance of the
Registrar of the High Court of Botswana. The Respondent State argues that
though Kobedi accepted to have them as his legal representatives, they were not,
as it were, the personal choice of Mr. Kobedi.
61.
The Respondent State submits that the Communication dated 11 July 2003
and addressed to the African Commission was signed by Kobedi. However, it
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argues that paragraph 15 of the Complainants written submissions on
Admissibility sent by Email on 4 March 2004 lists the two lawyers as the authors
of the Communication. The Respondents State assert that the said written
submissions, do not, indicate to the African Commission the legal interest that
Messrs Brain Spilg SC and Unoda Mack, jointly and severally, have in the
Communication such that they should assume authorship of it, and the basis and
source of that legal interest. The Respondent State argues that, instead, what
Brain Spilg SC and Unoda Mack attempt to do in paragraph 3-14 of the
submissions on Admissibility is to make a case for the African Commission to
hear a matter originated by the deceased.
62.
The Respondent State adds that Brain Spilg SC is a national of a foreign
country, and as such, the only connection he has with Botswana is in relation to
the privilege accorded him by Botswana to appear before her Courts. The
Respondent State therefore questions whether Brain Spilg SC has any legitimate
legal interest in the affairs of the country?
63.
The Respondent State further argues that neither the laws of Botswana nor
international laws incorporate the actio popularis doctrine. Consequently, Messrs
Brain Spilg SC and Unoda Mack must demonstrate a sufficient legal interest in
the Communication for them to possess locus standi to author it. The Respondent
State contends that in adhering to the African Charter, it did not understand that
11
it was giving strangers the carte blanche to occupy Botswana and utilize its
resources in dealing with Communications of this nature.
64.
Accordingly, the Respondent State submits that although the Communication
was originally and properly before the African Commission, it does not have an
author to pursue it, as Brain Spilg SC and Unoda Mack do not have the
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competency to pursue the matter on behalf of Kobedi who is now deceased.
Complainants’ Submissions on Locus Standi
65.
In response to the Respondent State‟s submissions, the Complainants
confirmed they were appointed by the Registrar of the High Court of Botswana
to represent Kobedi during the proceedings before the Botswana Courts. They
argue that Brain Spilg SC has practiced Law in Botswana since 1982, and in spite
of the changes in the law affecting practice by non-resident practitioners, Brain
Spilg SC had continued to receive instructions from the Government of Botswana
and its parastatal bodies, ordinary corporations and individuals. The
Complainants said the facts that advocate Brain Spilg SC is not a citizen of
Botswana is irrelevant to the authorship of this Communication because it is not
a requirement under the African Commission‟s Communication procedure.
Indeed the Complainants states that the Victim (Kobedi), as well as other accused
persons whose capital cases have not been finally disposed of, are non-citizens of
Botswana.
66.
On the question of lack of interest, the Complainants aver that the
information on the Communication Procedures prepared by the Secretariat of the
African Commission does not require the author to indicate their legal interest
when submitting a Communication. They argue that by requiring Complainants
12
to indicate their legal interest, the Respondent State challenges the very purpose
and function for which the African Commission was established.
67.
Additionally, the Complainants argue that Article 56 of the African Charter
which governs the Admissibility of a Communication lists only seven
Admissibility requirements, and that „legal interest‟ or „citizenship of the
Complainant‟ are not included in that list. They argue further that Article 56
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provides a minimum threshold requirement, which is intended to encourage,
rather than stifle the submission of allegations of human rights violations before
the African Commission. Furthermore, stated that Article 56 assist the African
Commission to ensure that vexatious Communications are sifted out, and allow
issue-driven Communications to be entertained by it,.
68.
Regarding the Respondent State‟s argument that actio popularis is not part of
their domestic law, the Complainants submit that this assertion is irrelevant
because the Respondent State did not sign a domestic document, but sign an
international human rights document, which by its very nature is intended to
have remedial consequences. This requires signatory States to submit themselves
to scrutiny by the African Commission in respect of the alleged violations of
human and peoples‟ rights.
69.
In conclusion, the Complainants assert that by requiring the Complainants to
demonstrate direct legal interest in a Communication would be restrictive and
„impermissibly narrow which will fail to have regard to the accepted
constitutional norms and the express provisions of the African Charter‟.
Furthermore, the Complainants submit that such an approach would also fail to
take into account the function and purpose of the African Commission.
Consequently, it is the Complainants‟ prayers that a generous and purposive
13
construction be given to Article 56 in order to give effect to the spirit of the
African Charter.
70.
The thrust of the Respondent State‟s submissions is that though originally
properly before the African Commission, the Communication is now without an
author to pursue it as a result of Kobedi‟s execution. Accordingly, the
Communication should be declared Inadmissible because the present authors
71.
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pursuing the matter are without a mandate cum locus standi.
The objection raised by the Respondent State raises the issue of whether or
not the Complainants‟ in this Communication have locus standi before the African
Commission, that is, whether Messrs Brain Spilg SC and Unoda Mack have any
legal interest in the matter so as to assume authorship of it on Kobedi‟s behalf.
This issue also interrogates the principle of actio popularis within the context of the
African Charter.
African Commission’s Ruling on the Preliminary Determination on Locus Standi
72.
Having looked at the Admissibility requirement under Article 56 and bearing
in mind the objections raised by the Respondent State on the locus standi of the
Complainants, the African Commission decides as follows:
73.
The African Commission notes that neither the African Charter nor its Rules
of Procedure makes provisions on the locus standi of parties before it. In fact,
the only Charter provision that could bear any relevance to the issue of locus
standi is Article 56(1) of the African Charter. This provision relates to authors of
a Communication submitted before the African Commission and provides:
“Communications relating to Human and Peoples‟ Rights referred to
in
Article 55 received by the Commission shall be considered if they:
14
(1) indicate their authors even if the later request anonymity; …. “
It is very clear that Article 56(1) simply requires that the Communication
74.
indicate its author(s), even if they would like to remain anonymous. This
provision does not specify which parties have standings before the African
Commission. Indeed nowhere is it stated within the African Charter or African
Commission‟s Rules that there should be a link between the author of a
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Communication and the victim of a human rights violation.
75.
In fact, the African Commission has interpreted the relevant Article 56(1) of
the African Charter, and also addressed the question of locus standi before it in
the Consolidated case of Communication 54/91, 61/91, 98/93, 164/97, to 196/97,
210/98.2 In this case, the African Commission held that:
“Article 56(1) of the Charter demands that anyone submitting Communications to
the Commission relating to human and peoples‟ rights must reveal their identity.
They do not necessarily have to be victims of such violations or members of their
families. This characteristic of the African Charter reflects „sensitivity to the practical
difficulties that individuals can face in countries where human rights are violated.
The national or internationals channels of remedy may not be accessible to the victims
themselves or may be dangerous to pursue.”3 There is therefore no requirement of
legal interest for the authorship of a Communication.4
76. Consequently, the African Commission has, through its practice and
jurisprudence, adopted a generous access to its Complaint Procedure. It has
adopted the actio popularis principle, allowing everyone the legal interest and
capacity to file a Communication, for its consideration. For this purpose, nonvictim individuals, groups and NGOs constantly submit Communications to the
2
Malawi African Association, Amnesty International, Ms Sarr Diop, Union Interafricaine des Droits de l’Homme and
RADDHO, Collectif des Veuves et Ayants-droit, Association Mauritaneinne des Droit de l’Homme/ Mauritania.
3
Ibid.
4
See also, WOAT/OMCT v Zaire [Communication No. 25/89, 47/90, 56/91, 100/93]
15
African Commission. More so, the African Commission, has, through its
Guidelines on the Submission of Communications5, encouraged the submission
of Communications on behalf of victims of human rights violations, especially
those who are unable to represent themselves.
77.
In Communication 155/966, for example, the African Commission
endorsed the actio popularis doctrine when it “thank(ed) the two human rights
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NGOs who brought the matter under its purview: the Social and Economic
Rights Action Center (Nigeria) and the Center for Economic and Social Rights
(USA). Such is the demonstration of the usefulness to the African Commission
and individuals of actio popularis, which is wisely allowed under the African
Charter.” The actio popularis doctrine allows persons interested in the protection
of human rights in Africa to seize the African Commission on behalf of persons
who for one reason or the other, cannot do so on their own.
78.
The rationale for this broad approach to locus standi is in view of the fact that
the African Commission, mandated to promote and protect human and peoples‟
rights in Africa7, bears in mind the fact that in some instances, individuals in
Africa whose rights are violated, may be faced with practical difficulties that may
preclude them from pursuing national or international legal remedies on their
own behalf. The African Commission has therefore adopted the practice of
entertaining Communications from persons who are interested in protecting
human rights on the continent. These may be the victims themselves or civil
society organizations acting on behalf of victims of the alleged violations. 8 This
5
African Commission on Human and Peoples’ Rights Information Sheet No. 2.
Communication 155/96 – The Social and Economic Rights Action Center and the Center for Economic and Social
Rights/Nigeria, 15th Annual Activity Report of the African Commission on Human and Peoples’ Rights 2001-2002, at
Para. 49.
7
See Article 30 of the African Charter on Human and Peoples’ Rights.
8
See for instance Communication 137/94, 156/96, 161/97 – International PEN, Constitutional Rights Project, Civil
Liberties Project and INTERIGHTS (on behalf of Ken Saro-Wiwa Jnr) /Nigeria.
6
16
actio popularis principle has been confirmed in various subsequent decisions of
the Africa Commission.9
79.
Also in relation to the requirement of citizenship, the African Commission
has made it clear through its jurisprudence that the person or NGO filing the
Communication need not be a national or be registered in the territory of the
Respondent State. An endless list of examples of this would include the many
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cases submitted to the African Commission by individuals and NGOs of nonAfrican origin. 10
80.
The African Commission, therefore, notes that the foregoing was its approach
to locus standi when it became seized of the present Communication, and is still
its current approach to the issue. Accordingly, the African Commission would
address this Communication in light of its broad approach to locus standi at the
time it became seized of this Communication.
81.
The African Commission further disagrees with the Respondent State‟s
assertion that neither the laws of Botswana nor international law incorporates the
actio popularis doctrine, and notes that this is a common practice within regional
and international human rights systems which is aimed at conferring legal
standing to certain groups who will not be required to have a sufficient interest
in a case or to maintain the impairment of a right. To this effect, different bodies
had setup different criteria with regards to accessibility to their complaint
mechanisms. The African Commission notes that, the European human rights
system11 and the UN Human Rights Committee,12 generally requires that the
9
Communications No. 64/92, 68/92, 78/92, Kristan Achutcan on Behalf of Aleke Banda, Amnesty
International on behalf of Orton and Vera Chirwa v. Malawi; Communications No. 54/91, 61/91, 98/93,
164-169/97, 210/98, Malawi African Association and others v. Mauritania .
10
See for instance Communication 31/89, Maria Baes/Zaire, instituted by a Danish national and
Communication 235/2000 – Curtis Doebbler/ Sudan instituted by an American citizen.
11
See Article 34 of the European Convention on Human Rights
17
person submitting a case to be a victim of the violation. But there are exceptions
to this rule, where non-victims may bring a complaint on behalf of the victim(s).13
On the other hand, the American Convention of Human Rights permits any
person or group of persons, or any non-governmental entity legally recognized
in one or more Member States of the Organization to submit a matter before the
Inter-American Commission.14 The practice of the African Commission though
somewhat similar to the actio popularis position under the Inter-American system,
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is even wider as it places no restriction as to who can bring a Communication
before it. As long as the conditions under Article 56 of the African Charter are
met by the person standing before it, the African Commission will enter the
Communication. The rationale for the Commission‟s comparative broader
approach to the issue of locus standi has been associated with the peculiarity of
the African situation, and the perceived generous intent of the African Charter.15
82.
From
the
foregoing,
the
African
Commission
will
entertain
the
Communication brought by Messrs Brain Spilg SC and Unoda Mack, being nonvictims, with no legal interest, because its jurisprudence makes it clear that there
is no requirement of „legal interest‟ for authorship of a Communication.16
83.
The African Commission holds the fact that Mr. Brain Spilg SC is not a
Citizen of Botswana as argued by the Respondents will have bearing on this
Communication. It is simply not a requirement for authorship of a
12
See Article 1 of the Optional Protocol to the International Convention on Civil and Political Rights
See for example, Article 2 of the European Convention on Human Rights, which guarantees the right to
life. Also, under the International Covenant on Civil and Political Rights, Fact Sheet No 7 provides for
situations whereby a non-victim may bring a claim on behalf on behalf of another person, with or without
the victim’s written consent. In certain cases, you may bring a case without such consent – Office of the
High Commissioner for Human Rights, Fact Sheet No. 7 www.unhchr.ch/html/menu6/2/fs7.htm (accessed
on 8 April, 2011). See also Fact Sheet No. 15, Centre for Human Rights, 1991, Geneva.
14
See Article 44 of Inter-American Convention on Human Rights
15
See generally, “Capacity to Bring a Communication before the African Commission on Human and
Peoples’ Rights (Locus Standi), Working Document of the African Commission, 40 th Session, 15 – 29
November, 2006, Banjul, The Gambia
16
Para. 69-73 above.
13
18
Communication. Any interested individual can bring a Communication on
behalf of a victim and such individuals need not be citizens of States Parties to
the African Charter. The fact that Mr. Brain Spilg SC is a national of another
country is immaterial. As long as he satisfies the conditions set out in Article 56
of
the
African
Charter,
the
African
Commission
will
entertain
the
Communication as it has done, in several other cases where Communications
have
been
instituted
by
non-nationals
of
States
against
whom
the
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Communication is being instituted.17
84.
The African Commission is therefore unable to agree with the Respondent
State‟s argument which seems to infer that citizenship of the authors of the
Communication is a criterion within the provision of Article 56(1) of the African
Charter. This would not only be tantamount to reading new criteria into the
provision, but would also restrict the open-ended spirit found therein.
Consequently, the Respondents State‟s argument that the Communication is now
without an author to pursue it as a result of Kobedi‟s execution is also
unsustainable as the present Communication is properly before the African
Commission in terms of Article 56(1) of the African Charter.
The African Commission hereby concludes that the Complainants in this
85.
matter possess locus standi before it, and will however proceed to examine the
Communication in view of the other Admissibility requirements.
The Law on Admissibility
Complainants’ Submissions on Admissibility
17
Foot note 9 above.
19
86. The Complainants submit that they have fulfilled all the requirements of Article
56 of the African Charter.
87. The Complainants submit that the Communication is jointly presented by
Advocate Brain Spilg SC assisted by Attorney Unoda Mack and Ms Alica Mogwe
(on behalf of Ditshwanelo). By detailing their contact email addresses as
spilg@law.co.za for Brain Spilg SC and legal.ditshwanelo@info.bw for
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Ditshwanelo, the Complainants argue that they complied with Article 56(1) of
the African Charter.
88. With regards to Article 56(2) of the African Charter, the Complainants contend
that not only have they outlined the Charter provisions which are allegedly
violated by the Respondent State to include Articles 1, 2, 3, 4, 5 and 7 of the
African Charter, but that they have also made submissions in support of the
alleged violations. The Complainants submit that the Communication, therefore,
satisfies the requirements of Article 56(2) of the African Charter.
89. With regards to the requirement of decorum, the Complainants submit that the
tone of language used in the Communication meets the requirement of Article
56(3) of the African Charter.
90. Concerning the requirement of evidential weight envisaged under Article 56(4)
of the African Charter, the Complainants aver that the Communication is based
on primary evidence that has been either verified under oath or is within the
personal knowledge of the authors.
While conceding that there is a single
reference to a media article, the Complainants argued that not only is that
information tangential, but also that the source of the article is verified under
oath by the newspaper‟s editors and forms part of the records of the Botswana
Court of Appeal. The Complainants submit that the provisions of Article 56(4)
have been adequately met.
20
91. On the requirement of exhaustion of local remedies under Article 56(5) of the
African Charter, the Complainants aver that they have exhausted all available
local remedies with respect to Kobedi‟s case. In particular, aver the
Complainants, the highest Court in Botswana, the Court of Appeal, has
determined the case. They therefore submit that the Communication satisfies the
requirements of Article 56(5) of the African Charter.
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92. With regards to the reasonable time factor under Article 56(6) of the African
Charter, the Complainants argue that the Communication was submitted within
a period of four months since the Kobedi‟s stay of execution appeal was disposed
of by the Botswana Court of Appeal. The Communication, argues the
Complainants, also meets the requirements of Article 56(6) of the African
Charter.
93. With regards to Article 56(7) of the African Charter, the Complainants submit
that the instant case has not previously been determined by the African
Commission and there are no other international avenues that are being explored
by the Complainants as far as this matter is concerned. The Communication,
contends the Complainants, satisfies the provision of Article 56(7) of the African
Charter.
Respondent State’s Submissions on Admissibility
94.
In its written submission dated 25 May 2004 the Respondent State asserted
that it did not concede the other grounds upon which the Complainants rely for
the Admissibility of the Communication.
95.
However, in its oral submission made at the African Commission‟s 36th
Ordinary Session held from 23 November to 7 December 2004 in Dakar, Senegal,
21
the Respondent State opted not to furnish further submissions apart from those
on locus standi. The Respondent State stated that in the event that the African
Commission rules in favor of the Complainants on the issue of locus standi, they
would not contest the Admissibility of the Communication.
Commission’s Decision on Admissibility
The Admissibility of the Communications submitted before the African
Commission is governed by the seven conditions set out in Article 56 of the
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African Charter.
The current Communication is submitted pursuant to Article 55 of the
96.
African Charter which allows the African Commission to receive and consider
Communications, other than from States Parties. Article 56 of the African Charter
provides that the admissibility of a Communication submitted pursuant to
Article 55 is subject to seven conditions.18 The African Commission has stressed
that the conditions laid down in Article 56 are conjunctive, meaning that if any
one of them is not satisfied, the Communication will be declared inadmissible.
97.
Article 56(1) of the African Charter requires that a Communication received
under Article 55 of the African Charter shall be considered if it “indicates their
authors even if the latter requests anonymity”. Article 56(1) of the African
Charter will, therefore, be satisfied if the Communication discloses the identity
and details of the authors thereof.19
The purport and intent of Article 56(1) of
the African Charter is to ensure that the African Commission is in
communication with the author.
It is only through this medium of
communication that the African Commission will be assured of the author‟s
18
19
See Article 56 of the African Charter on Human and Peoples’ Rights.
See Communications 54/91, 61/91, 98/93, 164/97, 210/98; Malawi African Association et al v.
Mauritania, paragraph 78, (ACHPR) 13th Activity Report
22
continued interest in the case, or to request, as provided for under Rule 104 of the
Rules of procedure, supplementary information if the case so requires.20
98.
In the instant Communication, the Complainants have disclosed that it is
jointly presented by Advocate Brain Spilg SC assisted by Attorney Unoda Mack
and Ms Alica Mogwe (on behalf of Ditshwanelo). The Communication also
discloses the contact Email addresses of the Complainants as spilg@law.co.za for
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Brain Spilg SC and legal.ditshwanelo@info.bw for Ditshwanelo. The African
Commission is, therefore, holds that the Complainants have complied with
Article 56(1) of the African Charter.
99.
Article 56(2) of the African Charter requires that the Communication must be
compatible with the Constitutive Act of the African Union and with the African
Charter. With respect to the Constitutive Act, the African Commission will not
receive any Communication brought before it, which seeks a prayer a remedy of
which will contravene any provision of the said Constitutive Act. Thus, in
Katangese’s Peoples’ Congress V. Zaire,21 a redress which infringed on the
doctrine of Uti Possidetis Juris22 enshrined in Article 3 of the OAU Charter and
now in Article 4 (b) of the Constitutive Act, was rejected and the case declared
Inadmissible.
100.
In Kevin Mgwanga Ngumne et al V. Cameroon,23 the African Commission,
drawing inspiration from its previous decisions affirmed that, the condition
relating to compatibility with the Charter, basically requires that: (a) the
Communication should be brought against a State party to the African Charter;24
(b) the Communication must allege prima facie violations of rights protected by
See Communication 108/93, Monja Joana V. Madagascar, paragraph 6, (ACHPR) 10th Activity Report
Communication 75/92, (ACHPR) 8th Activity Report
22
A principle under International Law which states that, colonially inherited boundaries are inviolable
23
Communication 266/2003, paragraph 38, (ACHPR), 38th Session
24
Communication 5/88, Prince J.N Makoge V. USA, (ACHPR)
20
21
23
the African Charter;25 (c) the Communication should be brought in respect of
violations that occurred after ratification of the African Charter or where
violations that began before the State Party ratified the African Charter have
continued even after such ratification.26 To be in conformity with the African
Charter also requires the petition to contain a certain degree of specificity, and
that the allegations are not vague.27
A careful consideration of the facts and submissions from both parties to the
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101.
present Communication do not show that the instant Communication is at
variance with any part of the Constitutive Act of the African Union or the
African Charter. The Commission is therefore of the view that the present
Communication satisfies the provision of Article 56 (2) of the Charter.
102.
Article 56(3) of the African Charter requires that the Communication should
be presented with a certain degree of decorum. This Article prohibits the use of
disparaging and/or insulting language in presenting a Communication.
Although Article 56(3) does not define what constitutes disparaging or insulting
language, the African Commission in the case of IIesanmi v. Nigeria28 the
Commission held inter alia, that, to be insulting, the language must be aimed at
undermining the integrity and status of the institution (Respondent State) and
bring it into disrepute.29 In this case, the African Commission held the
Complainant‟s averments that, “the police and customs officials are corrupt, that
they deal with drug smugglers, that they extort money from motorists and that
the President himself was corrupt and had been bribed by the drug smugglers”
as an insulting language. In Ligue Camerounaise des Droits de l’Homme v.
25
Communication 1/88, Frederick Korvah V. Liberia, (ACHPR)
Communication 97/93, John K. Modise (2) V. Botswana (ACHPR)
27
Communication 35/89, Seyoum Ayelle V. Togo, Paragraph 2 (ACHPR) See also, Communication 142/94,
Muthuthurin Njoka V. Kenya, Paragraph 4 (ACHPR)
28
Communication 268/2003, (ACHPR) 18th Activity Report
29
Ibid, Para. 39
26
24
Cameroon,30 the African Commission also held that averments such as “Paul
Biya must respond to crimes against humanity", "30 years of the criminal neocolonial regime incarnated by the duo Ahidjo/Biya", "regime of torturers", and
"government barbarisms"31 as insulting language.
103.
However, in Bakweri Land Claims Committee v. Cameroon32 the African
Commission held that the use of strong language such as “no judge… will risk
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his/her career, not to mention his/her life, to handle this politically sensitive
matter…” per se will not amount to disparaging and insulting language.33
104.
After a careful examination of the tone of the language used in presenting the
Communication, the African Commission is satisfied that the Complainants have
met the requirements under Article 56(3) of the African Charter.
105.
Article 56(4) of the African Charter requires that any Communication
brought pursuant to Article 55 of the African Charter will be considered if the
facts are not based exclusively on information from the mass media. This
requires that the Complainants must proof that, the evidence of the facts
constituting the alleged violations, are not based exclusively on information from
the mass media. While conceding that there is a single reference to news
obtained from the mass media, the Complainants have argued that this
Communication is based on primary evidence within the knowledge of the
Complainants.
106.
In the case of Sir Dawda K Jawara v. Gambia34 the African Commission held
that while it will be dangerous to rely exclusively on news disseminated through
the mass media, it would be equally damaging if the African Commission were
30
Communication 65/92, (ACHPR) 10th Activity Report
Ibid, Para. 18
32
Communication 260/02 (AHRLR) 2004, 43.
33
Ibid, Para. 48
34
Communication 149/96, (ACHPR) 13th Activity Report
31
25
to reject a Communication because some aspects of it are based on news
disseminated through the mass media. For this reason, the African Commission
believes that the present Communication meets Complainants the requirements
of Article 56(4) of the African Charter.
107.
Article 56(5) of the African Charter on its part requires that Communications
brought under Article 55 of the African Charter shall be considered only if they
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“are sent after the exhaustion of local remedies, if any, unless it is obvious that
this procedure is unduly prolonged”. The relevance of Article 56 (5) of the
African Charter is to ensure that international mechanisms are not substitutes for
domestic implementation of human rights, but should be seen as tools to assist
the domestic authorities to develop a sufficient protection of human rights in
their territories.
108.
The African Commission notes that the submissions of the Complainants that
Kobedi‟s case has been dealt with by the Botswana Court of Appeal, the apex
court in the Respondent State, are relevant to the issue of exhaustion of local
remedies.
The
African
Commission
is,
therefore,
satisfied
that
the
Communication has not contravened the provision of Article 56(5) of the African
Charter.
109.
According to Article 56(6) of the African Charter, Article 55 Communications
will be considered if submitted to the African Commission within a reasonable
time after the exhaustion of local remedies. While the African Charter is silent as
to what amounts to a reasonable time, it is important to note here that, the issue
of reasonable time is determined on a case to case bases taking into consideration
all the relevant facts. The present Communication was submitted within four
months following the decision of the Botswana Court of Appeal. The period of
four months in the circumstances of this case is reasonable. The African
26
Commission, therefore, holds that the Complainants have satisfied Article 56(6)
of the African Charter.
110.
By virtue of Article 56(7) of the African Charter, Article 55 Communication
will be considered if the Communication does not deal with cases that have
already been settled by African Commission or another international settlement
body. The requirement under Article 56(7) of the African Charter is founded on
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the non bis in idem rule35 which ensures that no State may be sued or condemned
more than once for the same alleged human rights violations. The rule also seeks
to uphold and recognize the res judicata36 status of decisions issued by
international and regional tribunals and/or bodies such as the African
Commission. Accordingly, the African Commission will not entertain any
Communication with the same facts and parties37 as that, which has been settled
by another international body.
111.
In Bob Ngozi Njoku v. Egypt 38 the African Commission noted that Article
56(7) of the African Charter “...talks about cases which have been settled..."39 and
not cases which are still pending before other international mechanisms.
112.
The African Commission is satisfied that the Complainants, in their written
submissions, have exhaustively addressed the seven Admissibility requirements
under Article 56 of the African Charter and hereby declares the Communication
Admissible under Article 56 of the African Charter.
Submissions on the Merits
35
Also known as the Principle or Prohibition of Double Jeopardy
The principle that a final judgment of a competent court or tribunal is conclusive on the parties in any
subsequent litigation involving the same cause of action
36
37
38
Communication 266/02 Kevin Mgwanga Ngumne et al. v. Cameroon, Para. 55
Communication 40/90, (ACHPR) 11th Activity Report
Ibid, paragraph 56, See also, Communication 260/02 Bakweri Lands Claim Committee v. Cameroon,
Para. 52
39
27
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
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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
penalty is an exceptional form of punishment which must also be considered in
interpreting Article 4 of the African Charter.
116.
The Complainants refer the African Commission to the of case of Maauwe &
Motswetla concluded in 2006 by the Court of Appeal of the Respondent State to
buttress the point that the criminal justice system in the Respondent State is not
infallible. They argue that, because the criminal justice system is capable of being
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fallible, the Courts should not ignore subsequent cogent evidence which if
admitted could lead to the imposition of a lesser sentence other than the death
penalty. It is forcefully submitted by the Complainants that Article 4 of the
African Charter will be violated where a State Party through its judiciary
imposes the death penalty pursuant to an institutionalized process that can result
in an innocent person, or a person not deserving of the death penalty, being
executed because material facts revealed post-appeal cannot be considered by the
Court.
117.
The Complainants further submit that the reception of such evidence seeks to
ensure that only a person, who remains, up to the time of his execution, guilty
beyond all reasonable doubts of the crime and is deserving of no penalty other
than the death sentenced, should be hanged. They argue that if it should arise
prior to the date of his hanging that the certainty of the conviction or
appropriateness of the sentence is cast into doubt by right thinking people, then
such evidence must be investigated and tested, otherwise, they submit, the
execution will violate Article 4 of the African Charter.
118.
It is argued by the Complainants that, if before his execution, it can be
demonstrated by credible and cogent evidence that there was an incorrect
conviction or that the condemned man is deserving of a lesser sentence than the
death penalty, then the right to life protected under Article 4 of the African
29
Charter can only have content if such evidence can be tested. It is contended by
the Complainants that the application of the doctrine of functus officio to exclude
fresh, credible and cogent evidence that could have the effect of a lesser sentence
violates Article 4 of the African Charter.
119.
It is averred further by the Complainants that as far as the trial of Kobedi is
concerned, this fresh evidence includes, crucial ballistic analyses that Sgt.
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Goepamang was struck by a high velocity firearm, AK 47, a type used by the
police force and not a low velocity firearm, Kalashnikov 9mm, found in
possession of the Victim; vital ballistic analyses that Sgt. Goepamang was shot
from the side and not from the front as contained in the High Court judgment;
and expert medical evidence of gross medical negligence towards Sgt.
Goepamang during his time in hospital.
120.
In arguing that the death penalty cannot be imposed for attempted murder in
the Respondent State, the Complainants make the point that even if the
culprit/victim with premeditated intent, wished to kill his victim, but the victim
was saved by the skills of brilliant doctors, the Court has no power to sentence
the culprit to death. In the case of Kobedi, they argue that during his trial, crucial
expert medical evidence was adduced revealing gross medical negligence
towards Sgt. Goepamang during his time in hospital and that were it not for
gross medical mismanagement by the hospitals and medical staff treating Sgt.
Goepamang, he would not have died from the injuries he sustained.
121.
The Complainants further argue that the imposition of the death penalty on
Kobedi without recourse to any meaningful post-conviction enquiry as to the
appropriate sentence to be imposed by the Courts in the Respondent State also
offends Article 4 of the African Charter.
30
Alleged Violation of Article 5 (Torture, Cruel, Inhuman and Degrading
Treatment)
122.
The Complainants contend that Kobedi, according to his Medical Report
suffers from a weak heart condition. They also state that the Medical Report
proves that Kobedi does not only have an A-V shunt but also needs surgery.
They inform the African Commission that the Medical Report presents the
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following conditions of Kobedi: left subclavian arteriovenous shunt with no
present evidence of heart failure or arrhythmia; irritable bowel syndrome; and
mild degenerative osteoarthritis of the spine.
It is submitted by the
Complainants that Kobedi was a sick man whose health condition ought to have
been taken into consideration in deciding the method to be adopted for his
execution.
123.
The Complainants further submit that the adoption of hanging as a method
of executing the death penalty, and the failure of the Courts in the Respondent
State to have regard to the medical condition of Kobedi violates Article 5 of the
African Charter, not so much because he is aware that his medical ailment will
cause him greater and more prolonged agony during the execution than if he
were medically fit, but also because execution by hanging exposes the
condemned man to a higher likelihood of unnecessarily painful and torturous
death through strangulation.
124.
The Complainants aver that the post-appeal process dealing with Clemency
Petitions also constitutes a violation of Article 5 of the African Charter in that the
victim, his lawyers and family members were not informed of the unsuccessful
outcome of the Clemency Petition, thus, depriving the convict and his family
members the important opportunity to have closure with the dignity of their last
farewells.
31
125.
It is submitted by Complainants that the victim had been under the fear of
the death penalty for over a decade since he was first arrested and that this
prolonged delay constitutes cruel, unusual or degrading punishment or
treatment for the reason that he lived for an unconscionable amount of time
awaiting the potential imposition of a death sentence, rendering the victim‟s
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execution a violation of Article 5 of the African Charter.
Alleged Violation of Articles 7 (Right to Fair Trial)
126.
The Complainants argue that the death penalty cannot be imposed for
attempted murder in the Respondent State, and that even if the culprit with
premeditated intent, wished to kill his victim, but the victim was saved by the
skills of brilliant doctors, the Court has no power to sentence the culprit to death
in terms of the criminal code of the Respondent State. In further emphasizing
that during Kobedi‟s trial, crucial expert medical evidence was adduced
revealing gross medical negligence towards Sgt. Goepamang during his time in
hospital and that were it not for gross medical negligence Sgt. Goepamang,
would not have died, the Complainants submit that the lawyer who initially
represented Mr. Kobedi, not only failed to consider the above aspects, but that he
did not also have access to the medical records of the deceased and lacked the
resources to engage forensic experts.
127.
The Complainants submit that the above situation could only be made
possible by one of two reasons; that counsel dealing with the matter at that initial
stage did not have the necessary skills and competence required in defending a
death penalty case; or the evidence could not be expected to have been acquired
by the lawyer at that stage and therefore amounts to new evidence discovered
after the appeal. They further argue that this lack of competence on the part of
32
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
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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
Respondent State’s Submissions on the Merits
131.
The Respondent State submits as a preliminary issue, that the procedure
adopted by the African Commission in dealing with the post-admissibility
processes in this Communication contravenes Rule 119(2) (3) of the African
Commission. It contends that by virtue of Rule 119 (2), once the African
Commission decides on the Admissibility of a Communication, the Respondent
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State shall file its submissions without any further reference to the Complainants
and the Complainants should only be allowed to reply to the State‟s submission
in terms of Rule 119 (3).
132.
It is further contended by the Respondent State that by virtue of the above,
the Complainants are required to disclose the full particulars of their Complaint
at the very initial stage. In submitting that the African Commission erred when it
simultaneously asked both the Complainants and the Respondent State, to make
their submissions on the Merits, the Respondent State prays the African
Commission to purge and expunge from its records any submissions made by
the Complainants in this regard.
133.
With regards to the substantive matter, the Respondent State argues 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 and the use of hanging as a
method of execution of Kobedi does not in anyway contravene Articles 2,3,4,5
and 7 of the African Charter.
On the Alleged Violation of Articles 2 and 3 (Right not to be Discriminated and
Right to Equality before the law)
34
134.
Concerning the alleged violation of Articles 2 of the African Charter, the
Respondent State submits that this Article deals with the issue of discrimination,
and argued further that the legislation in the Respondent State did not in any
way discriminate against the victim as the death penalty would be imposed on
anyone found guilty of murder without any extenuating circumstance.
In reply to the alleged violation of Article 3 of the African Charter, the
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135.
Respondent State, while noting that this Article deals with the twin concepts of
equality before the law and equal protection of the law, submitted that the
victim‟s right to be treated equally before the law was not interfered with in
anyway by the Respondent State throughout the trial process.
136.
Concerning the allegation that the victim was not afforded equal protection of
the law, the Respondent State contends that Mr. Kobedi was at all times during
the trial process provided with high quality legal representation and was not
treated unequally vis-à-vis any other person in a similar situation. These, argues
the Respondent State, shows that the allegations of the Complainants with
regards to the allege violations of Articles 2 and 3 of the African Charter are
baseless.
On the Alleged Violation of Article 4 (Right to Life)
137.
In response to the alleged violation of Article 4 of the African Charter, it is
submitted by the Respondent State, that not only is the imposition of the death
penalty reasonable in the circumstance, but also that the procedures followed
before the death sentence was carried out on Kobedi did not amount to the
arbitrary taking of his life. The Respondent State further contends that the trial of
35
Kobedi went through the proper judicial process of the Courts in Botswana and
did not at anytime derogate from the procedures whatsoever.
138.
The Respondent State avers that the jurisprudence of the African Commission
did not regard the death penalty as inherently contrary to the African Charter,
but rather that such penalty should only be imposed with necessary due process
safeguards being in place. In referring the Commission to the Thirteenth Activity
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Report of the Commission,40 the Respondent State argues that the African
Commission did not declare the imposition of the death penalty a contravention
of Charter Rights, but urged States that still had the death penalty to among
other things limit its imposition only to crimes of the most serious nature as well
as to consider establishing a moratorium on executions.
139.
The Respondent State argues that because due process was followed and
safeguarded by the judicial system of Botswana in the trial of Kobedi, his
execution cannot amount to a contravention of Article 4 of the African Charter as
alleged by the Complainants.
On the Alleged Violation of Article 5 (Torture and Cruel, Inhuman and Degrading
Treatment)
140.
In view of the alleged violation of Article 5 of the African Charter, the
Respondent State, whilst referring the African Commission to Article 6 of the
International Covenant on Civil and Political Rights, argues that, the death
penalty is expressly recognized and not prohibited under international human
rights law. It is averred by the Respondent State that since the African Charter41
provides that the African Commission shall draw inspiration from international
40
Thirteenth Annual Activity Report of the African Commission on Human and Peoples’ Rights, OAU Doc
AHG/Dec 153 (XXXVI) annex IV
41
See Article 60 of the African Charter
36
law and human rights, including international instruments in interpreting
Charter Rights, the African Commission should not read Article 5 of the African
Charter as prohibitive of the death penalty.
141.
It is submitted by the Respondent State that, because the African Charter and
other international instruments recognizes the death penalty as a form of
punishment, its application cannot amount to inhuman or degrading treatment
the law.
142.
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prohibited by Article 5 of the African Charter if it is administered according to
It is also argued by the Respondent State that, the Communication does not
reveal facts of any inhuman conditions or treatment whilst the victim was in
prison custody. It submits that even if fear, despair and mental anguish are the
inevitable concomitants of the sentence of death, the Complainants have not
demonstrated that in all circumstances of the case, the delay since the passing of
the death penalty sentence on the victim goes beyond what is constitutionally
permissible. In referring the African Commission to Supreme Court decision in
Zimbabwe42 it is further argued by the Respondent State that an element of delay
between the lawful imposition of a sentence of death and the exhaustion of
available remedies is inherent in the review of the sentence; thus, even prolonged
periods of detention under a severe custodial regime on death row cannot
generally be considered to constitute cruel, inhuman or degrading treatment if
the convicted person is merely availing himself of appellate remedies. Thus, it is
contended that Article 5 of the African Charter has not been violated in any way.
On the Alleged Violation of Articles 7 (Right to Fair Trial)
42
Catholic Commission for Justice and Peace in Zimbabwe v Attorney General, Zimbabwe & Ors, 1993 (4)
SA 239 (ZS)
37
143.
In conceding that there was indeed a long delay in the trial of Kobedi, the
Respondent State argues that, such delays were occasioned by the defence and
not by the State. For example, the Respondent State submits that there was a
delay of up to six (6) months between July and December 2001 when Mr. Brain
Spilg SC was appointed pro deo to represent the victim because the victim
rejected several pro deo counsels including Mr. Joina and insisted on having Mr.
Brain Spilg SC appointed pro deo to represent him. Again, it argues that there was
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another delay of up to sixteen (16) months between November 1999 and July
2001 in the trial because no opposing affidavits were filed on behalf of the victim.
It is contended by the Respondent State that because these delays were due in
part by the indolent acts of Kobedi and his lawyers, they cannot amount to a
contravention of the fair trial rights guaranteed under Article 7 (1) (d) of the
African Charter.
144.
The Respondent State contends that, in refusing the new evidence from the
Complainants the Court was using tried and tested principles of law and was
more than sure that this new evidence would not change the out come of the case
if a retrial was ordered. In arguing that the trial judge properly exercised his
discretion in refusing to order a retrial, the Respondent State submits that the
due process rights of the victim protected under Article 7 of the African Charter
was therefore not violated in anyway.
The Commission’s Decision on the Merits
145.
The Respondent State had raised as a preliminary issue challenging any
consideration by the African Commission of any further submissions filed by the
Complainants in terms of Rule 119 (2) and (3) of the African Commission‟s Rules
of Procedure. They argue that by virtue of Rule 119(2), only the Respondent State
is required to make submissions after the African Commission‟s decision on
38
admissibility and the Complainants are only accorded a right to reply pursuant
to Rule 119 (3). In requesting that the submissions made by the Complainants in
this direction should be expunged, it contends that by requesting both parties to
submit their arguments on the Merits, the African Commission did not properly
apply Rule 119 (2) & (3) of the Rules of Procedure of the African Commission.
The Complainants on their part did not address the African Commission on
this.
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146.
Decision of the African Commission on Alleged Procedural Irregularity
147.
In dealing with this issue, the African Commission will refer itself to Rule 119
of the Rules of Procedure (1995) of the African Commission which provides:
1. If the Commission decides that a Communication is Admissible under the Charter, its
decision and text of the relevant documents shall as soon as possible, be submitted to the
State Party concerned, through the Secretary. The author of the Communication shall
also be informed of the Commission's decision through the Secretary.
2. The State Party to the Charter concerned shall, within the 3 ensuing months, submit
in writing to the Commission, explanations or statements elucidating the issue under
consideration and indicating, if possible, measures it was able to take to remedy the
situation.
3. All explanations or statements submitted by a State Party pursuant to the present
Rule shall be communicated, through the Secretary, to the author of the Communication
who may submit in writing additional information and observations within a time limit
fixed by the Commission.
4. States Parties from whom explanations or statements are sought within specified times
39
shall be informed that if they fail to comply within those times the Commission will act
on the evidence before it.
148.
The African Commission notes that while the afore cited Rule 119(2) only
makes reference to the State Party, and Rule 119 (3) limits the choice of the
Complainants to a reply only, it is important to point out here that, the
Communication Procedure under the African Charter is dealt with in three
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distinct phases – Seizure, Admissibility and Merits. There are different
requirements to be satisfied at each of these phases. As such, the African
Commission has adopted a practice that does not require the Complainants to
make a full submission in their initial address to the African Commission. This is
one reason why the African Commission will not expunge the submissions on
the Merits made by the Complainants.
149.
Furthermore, the African Commission believes that it will only insist on the
mechanical application of its rules where to do otherwise would occasion
substantial injustice to one or both of the parties. The Respondent State has not
shown that the non-compliance with Rules 119 (2) & (3) as it were, has caused a
travesty of justice in this case or has in any other way adversely affected their
rights. The African Commission maintains that the primary duty of all
adjudicatory bodies whether national or international, is to ensure that
substantial justice and not technical justice, is done to all the parties in a case. The
African Commission will therefore not allow technicalities based on perceived
procedural irregularities to stand on the course of justice.
150.
In view of the above, the African Commission holds that the preliminary
issue raised by the Respondent State lacks merits in the circumstances of this case
and will therefore discountenance the same.
40
Decision of the African Commission on the Substantive Claim
151.
By this Communication, the African Commission has been invited to
determine whether or not 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”43 by
the Court of Appeal of the Respondent State with regards to the trial of Kobedi;
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and the use of hanging as a method of execution of Kobedi, constitutes a
violation of Articles 2,3,4,5 and 7 of the African Charter.
Allege Violation of Articles 2 and 3.
Article 2 of the African Charter provides:
152.
“Every individual shall be entitled to the enjoyment of the rights and freedoms recognized
and guaranteed in the present Charter without distinction of any kind such as race,
ethnic group, color, sex, language, religion, political or any other opinion, national and
social origin, fortune, birth or other status”
Article 3
1. Every individual shall be equal before the law.
2. Every individual shall be entitled to equal protection of the law.
153.
Articles 2 and 3 of the African Charter, basically forms the anti-discriminatory
and equal protection provisions of the African Charter. Whilst Article 2 lays
down a principle that is necessary for eradicating discrimination in all its guises,
Article 3 is important because it guarantees fair and just treatment of individuals
within the legal system of a given country.
43
The Doctrine of functus officio is dealt with more detaily under the Section dealing with the allege
violation of article 7.
41
154.
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. In this regard, they argue that the distinction between
taking into account extenuating circumstances and not taking into account
155.
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mitigating factors is both arbitrary and discriminative.
Concerning the alleged violation of Article 2 of the African Charter, the
Respondent State submits that this Article deals with the issue of discrimination,
and argued that the legislation in the Respondent State did not in anyway
discriminate against the victim as the death penalty would be imposed on
anyone found guilty of murder without any extenuating circumstance.
156.
In reply to the alleged violation of Article 3 of the African Charter, the
Respondent State, while noting that this Article deals with the twin concepts of
equality before the law and equal protection of the law, submitted that the
victim‟s right to be treated equally before the law was not interfered with in
anyway by the Respondent State throughout the trial process.
157.
Concerning the allegation that the victim was not afforded equal protection of
the law, the Respondent State contends that Kobedi was at all times during the
trial process provided with high quality legal representation and was not treated
unequally vis-à-vis any other person in a similar situation. These, argues the
Respondent State shows that the allegations of the Complainants with regards to
the alleged violation of Articles 2 and 3 of the African Charter are baseless.
42
158.
The African Commission maintains that Article 2 of the African Charter is a
guarantee that every individual is entitled to enjoy all the rights provided for
under the African Charter and that no person shall be deprived of the enjoyment
of any of the Charter rights based on his/her race, ethnic group, color, sex,
language, religion, political or any other opinion, national and social origin,
fortune, birth or other status. Therefore, for there to be a violation of Article 2 of
the African Charter, it must be shown that the victim of the alleged violation has
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been deprived of the enjoyment of a Charter Right on the basis of his/her race,
ethnic group, color, sex, language, religion, political or any other opinion,
national and social origin, fortune, birth or other status.
159.
The African Commission further believes that the right to equal protection of
the law envisaged under Article 3 of the African Charter consists of the right of
all persons to have the same access to the law and Courts, and to be treated
equally by the law and Courts, both in procedures and in the substance of the
law. While it is akin to the right to due process of law, it applies particularly to
equal treatment as an element of fundamental fairness.44 It is a guarantee that no
person or class of persons shall be denied the same protection of the laws that is
enjoyed by other persons or other classes in like circumstances in their lives,
liberty and property.
160.
The African Commission, therefore, believes that for there to be a violation of
Article 3 of the African Charter, it must be demonstrated that the victim of the
alleged violation was not accorded the same protection or treatment that is
usually accorded to other persons in like circumstances.
44
See the case of Brown v. Board of Education of Topeka (1954) 347 U.S. 483
43
161.
In the present Communication it has not been shown how the victim was
denied the enjoyment of any of the Charter Rights based on his ethnic group,
color, sex, language, religion, political or any other opinion, national and social
origin, fortune, birth or other status. It has not also been shown how the victim
was accorded differential treatment or how the victim was discriminated against
by the Respondent State in anyway. Apart from making general conclusions, the
Complainants did not sufficiently present facts and evidence that would
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convince the African Commission of any violation of Articles 2 and 3 of the
African Charter. The African Commission therefore finds that there was no
violation of Articles 2 and 3 of the African Charter.
Alleged Violation of Article 5
162.
According to Article 5 of the African Charter “every individual shall have the
right to the respect of the dignity inherent in a human being and to the
recognition of his legal status. All forms of exploitation and degradation of man
particularly slavery, slave trade, torture, cruel, inhuman or degrading
punishment and treatment shall be prohibited”.
163.
Although the African Charter fails to provide any definition of torture, cruel,
inhuman or degrading treatment, the African Commission in its jurisprudence45
has found that the prohibition of torture, cruel, inhuman or degrading treatment
includes “actions which cause serious physical or psychological suffering (or)
humiliate the individual or force him or her to act against his or her will or
conscience”.
45 See International Pen, Constitutional Rights Project, Interights (on behalf of Ken Saro-Wiwa) v. Nigeria (Comm. nos 137/94,
139/94, 154/96 and 161/97), para. 79.
44
164.
While it is accepted that there is no rule of international law which prescribes
the circumstances under which the death penalty may be imposed, the African
Commission has cautioned that the death penalty should only be imposed after a
full consideration of not only the circumstances of the individual offence, but
also the circumstances of the individual offender.46
The Complainants have made reference to the fact that the adoption of
165.
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hanging as a method of executing the death penalty, and the failure of the Courts
in the Respondent State to have regard to the medical condition of Kobedi
violates Article 5 of the African Charter.
166.
By invoking Article 60 of the African Charter, the African Commission will
rely on the jurisprudence of the UN Human Rights Committee 47 to hold that
where a death sentence has been imposed, it must be carried out in such a way as
to cause the least possible physical and mental suffering. This approach was
applied in Ng v. Canada 48 wherein the UN Committee found that the particular
method of gas asphyxiation amounted to cruel, inhuman and degrading
treatment.
167.
The African Commission, therefore, believes that, the carrying out of a death
sentence using a particular method of execution may amount to cruel inhuman
or degrading treatment or punishment if the suffering caused in execution of the
sentence is excessive and goes beyond that is strictly necessary.
168.
The African Commission holds that under the African Charter, a parallel
obligation to prevent torture or ill-treatment derives from the undertaking given
46
47
Communication 240/01, Para. 31
Human Rights Committee, General Comment No. 20, Para. 6.
48 Communication No 469/1991, Human Rights Committee, 7 January 1994, UN doc. CCPR/C/49/D/469/1991, Para. 16.2 and
16.4.
45
by the States Parties in Article 1 thereof “to adopt legislative or other measures to
give effect” to the rights contained in the Charter. The importance of such
safeguards has been recognized by the African Commission in the Robben Island
Guidelines.49
169.
The African Commission is of the view that the execution of a death sentence
by hanging may not be compatible with respect for the inherent dignity of the
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individual and the duty to minimize unnecessary suffering, because it is a
notoriously slow and painful means of execution. If carried out without
appropriate attention to the weight of the person condemned because hanging
can result either in slow and painful strangulation, because the neck is not
immediately broken by the drop, or, at the other extreme, in the separation of the
head from the body.
170.
However, the Complainants have not demonstrated that the execution would
be, or was, carried out without due attention to the weight of the condemned. In
the circumstance, the African Commission holds that these submissions are
speculative and cannot in the circumstance violate Article 5 of the African
Charter. It is for this reason that the African Commission finds that there has
been no violation of Article 5 of the African Charter in this regard.
171.
It was also contended by the Complainants that because the victim had been
under the fear of the death penalty for over a decade since he was first arrested,
this prolonged delay constitute cruel, unusual or degrading punishment or
treatment for the reason that he lived for an unconscionable amount of time
awaiting the potential imposition of a death sentence, rendering the victim‟s
execution a violation of Article 5 of the African Charter.
49
Robben Island Guidelines, para. 20.
46
172.
Whilst the above definition is useful, it fails to outline those categories of
actions that would constitute a violation under Article 5 of the African Charter.
To resolve this issue, the African Commission will in terms of Article 60 of the
African Charter rely on the jurisprudence of the Human Rights Committee which
has over the years, made a determination on whether the length of detention on
death row amounted to a violation of the prohibition against 'torture or cruel,
inhuman or degrading treatment or punishment'.50 In Randolph Barrett and
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Clyde v. Jamaica,51 the Human Rights Committee held that in the review of
criminal convictions and sentences, an element of delay between the lawful
imposition of a sentence of death and the exhaustion of available remedies is
inherent in the review of the sentence; thus, even prolonged periods of detention
under a severe custodial regime on death row cannot generally be considered to
constitute cruel, inhuman or degrading treatment if the convicted person is
merely availing himself of appellate remedies.
173.
The African Commission is of the view that the computation of time as far as
the delays in executing the sentence is concern, will only start to run from the
time the High Court passed the death sentence and not from when the victim
was first arrested in 1993. The evidence before the African Commission indicates
that the ensuing delay in carrying out the death sentence was because the victim
had petitioned the Court of Appeal. The victim was partly responsible for these
delays and was exercising his rights to appeal. For this reasons the African
Commission finds that there is no violation of Article 5 in this regard.
174.
It was submitted by the Complainants that failure to publish the unsuccessful
outcome of the clemency petition and failure to give notice of the date and time
of execution amounts to cruel, inhuman and degrading punishment and
50
51
Under Article 7 of the International Covenant on Civil and Political Rights
Communication 270/271/1988 (30 March 1992).
47
treatment in breach of Article 5 of the African Charter as thus, depriving the
convict and his family members of the important opportunity to have closure
with the dignity of their last farewells.
175.
The Respondent State, failed to challenge the allegation that no reasonable
notice or any notice at all was given of the date and time of execution of the
victim. The African Commission has in many of its decisions 52 held that facts
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uncontested by the Respondent State shall be considered as established. In view
of the foregoing, the African Commission will therefore hold this fact as
established.
176.
In Communication 240/01 Interights et al. (on behalf of Bosch) v. Botswana 53,
the African Commission observed that a justice system must have a human face
in matters of execution of death sentences by affording a condemned person an
opportunity to arrange his affairs, to be visited by members of his intimate
family before he dies, and to receive spiritual advice and comfort to enable him
to compose himself, as best as he can, to face his ultimate ordeal.
177.
The African Commission is, therefore, inclined to hold the fact that the victim
and his family members were never given the important opportunity to have
closure with the dignity of their last farewells as inhuman treatment. Since the
Respondent State did not give any justifications, the African Commission finds
that the failure to give notice of the date and time of execution of the victim
amounts to cruel, inhuman and degrading punishment and treatment and
therefore a violation of Article 5 of the African Charter.
Alleged Violation of Article 7
52
See Communications 25/89, 47/90, 56/91, 100/93; Free Legal Assistance Group et al. V. Zaire
53
Para. 41
48
178.
The Complainants contend that the fair trial rights of the victim were
violated in that; (a) the Court of Appeal misdirected itself by wrongfully
invoking the doctrine of functus officio and refusing to order a retrial in Kobedi‟s
case in the face of strong, compelling and new contrary expert reports and
instead relied on the testimony of an unqualified forensic expert; (b) the right to
counsel was not fully respected; (c) there were inordinate delays in the trial
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process; (d) the Court placed a higher standard of proof - beyond reasonable
doubts on the victim .
179.
From the arguments and analysis of both the Complainants and the
Respondent State, the essential question that must be asked here is whether the
trial of the Kobedi complied with the provisions of Article 7 of the African
Charter.
180.
Article 7 of the African Charter on Human and Peoples‟ Rights provides that:
“Every individual shall have the right to have his cause heard. This comprises:
a) The right to an appeal to competent national organs against acts violating his
fundamental rights as recognized and guaranteed by the conventions, laws, regulations,
and customs in force;
b) The right to be presumed innocent until proven guilty by a competent court or
tribunal;
c) The right to defence, including the right to be defended by counsel of his choice;
d) The right to be tried within a reasonable time by an impartial court or tribunal.
181.
A holistic reading of Article 7 brings to the fore one core issue – having
access to appropriate justice. The notion of access to appropriate justice is an
important indicator of a sound and effective criminal justice system. The
49
African Commission bears this in mind in addressing the different heads of
the alleged violation of Article 7 of the African Charter as contended herein.
182.
Before addressing the question of whether article 7 of the African Charter
has been violated or not, it will perhaps be useful to start by considering the
meaning and purpose of the doctrine of functus officio and the current trend of
the law in relation to its application in the context of judicial decision making
183.
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processes by apex courts.
From the authorities54 reviewed, the doctrine of functus officio provides
that once a decision maker has done everything necessary to perfect his or her
decision, he or she is then barred from revisiting that decision, other than to
correct clerical or other minor errors. The policy rationale underlying this
doctrine is the need for finality in proceedings.
184.
For the doctrine of functus officio to be engaged, it is necessary that the
decision in issue be final. In the context of judicial decision making, a decision
may be described as final only when “it leaves nothing to be judicially
determined or ascertained thereafter, in order to render it effective and capable
of execution, and is absolute, complete and certain”.55
185.
The modern trend of the law is to invest apex Courts with “Review
Jurisdiction” by which the Court may review a decision made or given by it on
Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, at pages 861–862;
President of the Republic of South Africa v SARFU,(1999) ZACC 11; 2000 (1) SA 1
(CC); Turquieza v. Hernando, 97 SCRA 483 (1980); Heirs of Patriaca v. Court of
Appeals, 124 SCRA 410 (1983); Edra v. Intermediate Appellate Court, 179 SCRA 344
(1989)
55 Kurukkal v. Canada (Minister of Citizenship & Immigration) 2009 FC 695, [2010] 3
F.C.R. 195
54
50
certain grounds. 56 These factors may include, but are not limited to grounds
such as exceptional circumstances which have resulted in miscarriage of justice;
or discovery of new and important matter or evidence which after the exercise of
due diligence, was not within the applicant‟s knowledge or could not be
produced by him or her at the time when the decision was made.
186.
Now, turning to the issue whether the application of the doctrine of functus
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officio by the Court of Appeal and its refusal to re-open the trial of Kobedi, was in
the circumstance so fatal as to negate the right to fair trial in this case, the African
Commission will formulate the issue for determination under this head as
follows: does the refusal to order a retrial per se vitiate the holding of a fair trial
in violation of Article 7 of the African Charter?
187.
To arrive at its decision not to re-open the case in the light of the fresh
evidence adduced by Counsel for Kodedi, the Court of Appeal had this to say:
“On the second aspect on which the appellant seeks to lead medical evidence,
the opinion of the medical experts that the deceased‟s wounds were caused by a
high velocity bullet and not a 9mn pistol as used by the appellant is based on their
assessments of the medical records of the post-mortem findings. They did not see
the wounds. The evidence given at the trial by the pathologist called by the State
is also his opinion again based on the same records, the doctor who conducted the
post- mortem examination having died before the trial. The assessment of the trial
doctor and the Appellant‟s specialists differs and while it may be the position that
the specialists are more experienced than the trial doctor, their opinions are
untested. It cannot be said that after due cross-examination their opinions would
necessarily prevail and there is no doubt that this would affect the result of the
trial. Their opinion remains what it is: mainly their opinion. It must be weighed
against the direct evidence of the eye witnesses at the trial, which evidence was
56 See for example Article 133 of the Ghanaian Constitution, 1992
51
believed by the trial court and by this court on appeal, who testified that it was the
appellant and nobody else who shot the deceased it cannot be said with any
certainty that they are likely to be believed purely on the strength of medical
opinions. This court cannot find that there is no doubt – or even a probability –
that the evidence of the medical specialists would reverse the trial court‟s verdict
and that therefore thre is a miscarriage of justice. The evidence which the
appellant now seeks to lead does not, on both aspects give rise to one of the
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exceptional cases where the court, being functus officio, might be constrained to
re-open the case.”
188.
The African Commission finds that the direct evidence of the eye
witnesses at the trial to the effect that it was the appellant and nobody else
who shot the deceased was uncontroverted both at the lower court and before
the court of appeal. Contrary to the assertion of Counsel for Kobedi, the court
of appeal did not rely on the testimony of an unqualified forensic expert but
based it‟s decision on the unchallenged evidence of eye witnesses.
189.
The African Commission consequently agrees with the conclusion of the
court of appeal that “the evidence which the appellant now seeks to lead does
not give rise to one of the exceptional cases where the court being functus
Officio might be constrained to re-open the case.”
190.
In the light of the foregoing the African Commission finds that the Court
of appeal did not misdirect itself by invoking the doctrine of functus officio
and refusing to re-open the trial of Kobedi and that there was no miscarriage
of justice in the circumstance of the case. The result is that the right to fair trial
under Article 7(1) (b) was not vitiated.
52
191.
It is further submitted that were it not for gross medical mismanagement
by the hospitals and medical staff treating Sgt. Goepamang, he would not
have died from injuries. The Complainants submit that during the trial,
crucial ballistic analyses and expert medical evidence was adduced by
Kobedi‟s defense team revealing contravention of ballistic analysis and gross
medical negligence towards Sgt. Goepamang during his time in hospital.
In disregarding the medical opinion sought to be adduced by counsel for
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192.
Kobedi to the effect that there was gross negligence in the treatment of the
deceased at the hospital without which the deceased would not have died
the court of appeal held:
“Mr. Spilg did not contend that the negligence of the hospital staff and doctors,
assuming there was such negligence , constituted a novus actus interveniens. Nor
could he. It is clear on the evidence that the bullet with which he was shot caused
the death of the deceased.”
193.
As to whether the hospital‟s negligence could be taken into account as an
extenuating circumstance the Court of Appeal opined as follows:
“In the first place, I am unable to find that there is no doubt that better medical
care might have saved the deceased‟s life. This is purely the untested opinion of
the medical experts the appellant seeks to call. But, in any event, the conviction
for murder included the finding that the appellant intended to kill the deceased or
was at least reckless as to whether he did or not. That finding was confirmed by
this court of appeal. I am unable to find that the fact that better medical care
might have saved the deceased‟s life can be an extenuating circumstance or put
otherwise, that there is no doubt, or at least a probability, that a court would find
it to be so”
53
194.
The African Commission finds no reason to depart from this conclusion
arrived at by the Court of Appeal and in consequence holds that there has
been no violation of Art 7(1) (b) on this account.
Right to be assisted by Counsel
195.
On the question as to whether the appellant was adequately defended, the
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Court of Appeal of the Respondent State had this to say.
“He was represented for some 5 1/2 months by Mr. Dikgokgwane whose crossexamination of those witnesses who were recalled was searching and vigorous.
The appellant in his evidence was well led and the submissions to the trial court
were full and detailed. At no time during the trial was there any complaint by the
appellant about the adequacy of Mr. Dilegokgwane‟s services, nor at the appeal
stage.
Appellant only raised the matter in the proceedings before Kirby J. Like Kirby J, as
stated earlier, I am of the view that the appellant was adequately represented----- I
am unable to find that he did not have a fair trial or that the adequacy or
inadequacy of his defense was such that it constitutes a special circumstance as to
why the doctrines of functus officio or res judicata do not apply and that on this
ground he be allowed a retrial.
196.
From this analysis of the Court of Appeal there is no doubt that the right
of the appellant to counsel of his choice was not undermined and that his
defence was conducted adequately. There was therefore no room for
invoking special circumstances warranting the ordering of a retrial. In light of
the above the African Commission finds that there was no violation of Article
7(1) (c) of the African Charter.
Delays in the Trial
54
197.
While it is not contested that there were delays, it is evident from the
records that most of the delay was the result of the appellants own doing. It is
clear from the judgment that a delay of up to six months between July and
December 2001 when Mr. Brain Spilg SC was appointed pro deo to represent
the appellant was caused because appellant rejected several pro deo counsels
including Mr. Jouna and insisted on having Mr. Spilg SC appointed pro deo
198.
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to represent him.
As at the time Mr. Spilg accepted his mission, hearing had been set for the
January 2002 session of the Court. While accepting his mission, Mr. Splig
requested a postponement of the case to the July 2002 session of the Court on
grounds of the voluminous nature of the records of proceedings, the fact that
appellant‟s life was involved. During the intercession between January and
July 2002, Mr. Spilg and Mack were conducting further investigations on
Appellants behalf but once again the appellant was dissatisfied and dismissed
them as his legal representatives as he felt his best interest were not being
looked after. He later changed his mind and allowed them to continue to
represent him. This caused another further postponement to January 2003
session of the Court at the instance of the defence.
199.
At that session counsel filed arguments consisting of 52 pages on behalf of
the appellant and 26 pages on behalf of the state with supporting
documentation and authorities running over 1900 pages. In the circumstance,
the Court was obliged to reserve its judgment.
200.
In the light of the above, the African commission finds that the delays
since 1993 were largely caused by appellants own actions and consequently
cannot amount to a violation of the fair trial rights guaranteed under Art 7
(1)(d) of African Charter.
55
Alleged Violation of Article 4
201.
While the African Commission affirms that a higher threshold of rights is
intended for those who are charged with capital offences, 57 and that the
imposition of capital punishment in breach of the due process guarantees under
Article 7 of the Charter constitutes a violation of the right to life protected by
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Article 4 of the Charter,58 the African Commission finds that there were no such
breaches of due process guarantees under Article 7 of the African Charter in the
instant case to warrant a violation of Article 4 of the African Charter.
202.
While further affirming that capital punishment would also constitute a
violation of Article 4 of the African Charter where the imposition of death
sentence is disproportionate to the gravity of the offence committed, 59 the
African Commission holds that the imposition of the death penalty to the „most
serious crimes‟ would not constitute a violation of the right to life protected
under Article 4 of the African Charter.60
203.
Although the African Charter and the African Commission‟s Resolution
on the Death Penalty61 does not afford a definition of what constitutes „most
serious crimes‟, the African Commission holds that the phrase „most serious
crimes” should be interpreted in the most restrictive and exceptional manner
possible and that the death penalty should only be considered in cases where
57 Communication 218/98, Civil Liberties Organization, Legal Defence Centre, Legal Defence and
Assistance Project v. Nigeria, Para. 34
58 Communications 137/94, 156/96, and 161/97 International Pen and Others (on behalf of SaroWiwa) v. Nigeria, Para. 78; Communication 61/91, 98/93, 164/97 à 196/97 and 210/98, Malawi
African Association and Others v. Mauritania, Para. 120; and Human Rights Committee, General
Comment No. 32, Para. 59.
59 Communication 240/2001 Interights et al. (on behalf of Bosch) v. Botswana, Para, 50
60 See Thirteenth Annual Activity Report of the African Commission on Human and Peoples‟
Rights, OAU Doc AHG/Dec 153 (XXXVI) annex IV
61 Ibid
56
the crime is intentional, and results in lethal or extremely grave consequences.
In this regard the African Commission relies on Article 60 of the African
Charter to note that the Rome Statute62 has identified murder, though in a
slightly different context, as one of the „most serious crimes‟ under
international law.
204.
The African Commission therefore identifies murder as one of the „most
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serious crimes‟ under domestic and international human rights law, as it
amounts to an arbitrary deprivation of life as protected under Article 4 of the
African Charter. In the same breath, the African Commission believes that
domestic legislation allowing capital punishment for economic, nonviolent or
victimless offences such as economic crimes and drug related offences would
amount to a disproportionate imposition of the death penalty and thus a
violation of the right to life under Article 4 of the African Charter.
205.
In view of the foregoing, the African Commission finds that the death
penalty would not be disproportionate when applied in cases where the
crime is intentional and involves the use of violence or firearms resulting in
the death of another as in the instant case where the appellant was tried,
convicted and sentenced to death on the crime of murder.
206.
The African Commission having found that due process was followed and
safeguarded by the judicial system of Botswana in the trial of Kodedi and in
particular that the Court of Appeal rightly upheld the principle of functus officio
and res judicata, and upon finding that the appellant was tried, convicted and
sentenced to death on account of one of the „most serious crimes‟, the African
62 Article 7 (1) (a) of the Rome Statute recognizes murder as one of the „most serious crimes‟ when
committed as part of a widespread or systematic attack directed against any civilian population,
with knowledge of the attack.
57
Commission holds that his execution cannot in the circumstances amount to a
violation of Article 4 of the African Charter.
For these reasons, the African Commission finds:
a. There has been a violation of Articles 5 of the African Charter by
the Respondent State;
b. There has been no violation of Articles 2, 3, 4 and 7 (1) (d) of the
c.
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African Charter by the Respondent State;
Strongly urges the Republic of Botswana to take all measures to
comply with the Resolution urging States to envisage a
Moratorium on the Death Penalty;
d. Urges the Respondent state to take urgent measures with a view to
abolish the death penalty;
e. Requests the Republic of Botswana to report back to the African
Commission when it submits its report in terms of article 62 of the
African Charter on measures taken to comply with this
recommendation.
Done in Banjul, The Gambia during the 10th Extra-ordinary Session of the
African Commission on Human and Peoples’ Rights, December 2011.
58