A recent case involving capital punishment in Botswana required the African Commission on Human and Peoples’ Rights (ACHPR) to consider the adequacy of appointed counsel and clemency procedures, hanging as a method of execution, the death row phenomenon, and whether notice is required prior to imposition of the death penalty. See ACommHPR, Interights & Ditshwanelo v. Botswana, Communication No. 319/06, Merits Decision, 57th Ordinary Session (2015). The case concerned a prisoner who was secretly hanged to death without advance warning to him or his family, who were then denied the opportunity to bury him. In its decision, published on June 28, 2016, the Commission declined to “suddenly” hold that the death penalty itself was an arbitrary deprivation of the right to life, but it signaled growing discomfort with capital punishment and held that execution by hanging constitutes cruel and unusual punishment in violation of Article 5 of the African Charter on Human and Peoples’ Rights. Further, it held that a prisoner must be informed in advance of the time and place of his execution and have a prior opportunity to meet with family or seek spiritual comfort.
The case also involved several procedural peculiarities. Botswana failed to participate in the proceedings before the ACHPR, leaving the Commission to rely on the complainant organizations’ submissions. Although the complainants requested provisional measures to prevent the victim’s execution, the ACHPR was unable to convey the request to the government before he was hanged, on the day after the Commission received the complaint and request. Finally, in the time since the complaint was submitted in April 2006, one of the complainant organizations, INTERIGHTS, has closed.
Facts of the Case
The victim in this case was convicted of the murder of his girlfriend and her son in 2002 and sentenced to 15 years’ imprisonment and death, respectively, for the killings. See Interights & Ditshwanelo v. Botswana, 57th Ordinary Session (2015), para. 2. The highest court in Botswana denied his appeals, finding that the trial court had considered any factors favoring a lighter sentence in the girlfriend’s death, but found no such factors with regard to her son. Id. at para. 3. His subsequent request for clemency was also denied. Id. at para. 4.
The victim was executed on April 1, 2006, without the minimum 24-hour notice required by national law. Id. at paras. 5, 24, 58. In the day before his execution, the victim’s mother and legal counsel were denied access to him and learned of his death on the radio. Id. at paras. 5, 58. The State then refused to give the victim’s body to his family for burial. Id. at para. 59.
The victim’s representatives filed a communication on March 31, 2006 with the ACHPR, alleging violations of articles 1, 4, and 5 of the African Charter. Id. at para. 9. They contended that the death penalty violates the right to life in any circumstance. Id. at para. 39. With regard to the specific case, they alleged that Botswana’s system of appointed (pro deo) counsel in capital cases wrongly relies on inexperienced and unqualified lawyers, the clemency procedure is arbitrary because it depends on presidential discretion alone, the mandatory imposition of the death penalty without regard for mitigating circumstances is arbitrary, the victim’s family and legal counsel should have received advanced notice of his execution, and that hanging is a cruel and inhuman punishment. Id. at paras. 39-60.
Alleged Right to Life and Due Process Violations
The Commission found that Botswana had not violated Article 4 by sentencing the victim to death. With regard to the complainants’ argument that the death penalty is a per se violation of the right to life according to various domestic and international decisions and that the Commission should use “generous and purposive interpretation” of the African Charter, the ACHPR determined that it would be arbitrary of the Commission “to suddenly determine that the practice of the death penalty in Africa in all cases [is] a violation of Article 4.” Id. at para. 66. However, it acknowledged that – in light of evolving international law and State practice – it is “increasingly difficult to envisage a case in which the death penalty can be found to have been applied in a way that is not in some way arbitrary.” Id. In this way, the ACHPR clearly signaled to its Member States that it cannot be expected to find the death penalty compatible with Article 4 in the future.
With regard to Botswana’s appointed counsel system, the ACHPR found no evidence that the specific lawyer representing the victim was inexperienced, and therefore it could not assume that his trial was unfair. Id. at paras. 71, 75. While it confirmed States’ duty to provide legal counsel in capital cases and that this counsel must be “competent, capacitated and committed,” the Commission noted that the victim was required to challenge his lawyer’s competency on appeal if he believed it impacted the fairness of his trial, but had not done so here. Id. at paras. 69-72.
The ACHPR rejected the complainants’ argument that the Botswana courts failed to take into account extenuating circumstances in sentencing the victim to death. It noted that the appeals court had considered the issue and found no such circumstances in the case of the child’s murder. Id. at paras. 76, 77. Accordingly, the Commission disagreed that the imposition of the death penalty was mandatory. Id. at para. 78.
The Commission also refused to hold that Botswana’s clemency procedure was arbitrary, concluding that clemency was a discretionary power exercised by the president and that a lack of judicial review did not violate the African Charter. Id. at para. 81.
The Method of Execution
However, the Commission did find that Botswana had inflicted cruel and inhuman punishment in contravention of Article 5 by hanging the victim in secret. With regard to hanging as a method of execution, the ACHPR recognized the consensus in international human rights law, illustrated by the United Nations Human Rights Committee’s General Comment No. 20, that when the death sentence is imposed, it should be implemented in a way that causes minimal suffering;” however, the ACHPR also noted that international law has also evolved to find no method of execution acceptable. Id. at paras. 84, 85. Although it did not have information on the specifics of the victim’s execution, the ACHPR concluded that “hanging causes excessive suffering and is not strictly necessary; therefore, it constitutes a violation of Article 5 of the African Charter.” Id. at para. 87.
The ACHPR rejected the complainants’ argument that the victim had suffered by exposure to the death row phenomenon. Id. at paras. 88-91. Looking to decisions of other courts that concluded that prolonged time on death row was mentally and physically detrimental, the Commission decided that awaiting his execution in this case was not cruel and inhuman punishment because the prisoner’s time on death row was relatively short, at approximately four years. Id. at paras. 88-90. He was executed the day after his request for clemency was denied. There was no evidence that he was under threat of execution before this entire process had concluded, unlike in other cases where prisoners experienced prolonged and constant fear of death. Therefore, the Commission found no violation of Article 5 regarding the prisoner’s time on death row. Id. at para. 91.
Finally, the Commission concluded that Botswana’s secret execution of the victim with insufficient notice, denial of access to his family and lawyer, and failure to give the body to his family for burial also amounted to cruel and inhuman punishment in breach of Article 5. Id. at paras. 93, 96. Although it did not specify the amount of notice required, the ACHPR found that “prisoners on death row must be promptly informed and be given adequate notice of their execution.” Id. at para. 93. Before the execution, the prisoner must have an “opportunity to have proper closure with his family and to receive spiritual advice and comfort to face his ultimate ordeal.” Id. at para. 97. The ACHPR also held that Article 5 required prison authorities to inform the victim’s family and lawyers of the time and place of his burial. Id. at para. 96.
The ACHPR called on Botswana to compensate the victim’s family, comply with its resolution urging a moratorium on the death penalty, and take steps to abolish the death penalty. Id. at para. 99.
Relevant ACHPR Precedent
Although the Commission did not find an Article 4 violation in this case, it has previously identified circumstances in which the death penalty is an arbitrary deprivation of the right to life. In Forum of Conscience v. Sierra Leone, the Commission held that imposing the death penalty after an unfair trial violates Article 4. There, the State publicly executed 24 people accused of participating in a political coup without allowing them to appeal to a higher tribunal. See ACommHPR, Forum of Conscience v. Sierra Leone, Communication No. 223/98, Merits Decision, 28th Ordinary Session (2000), para. 5. The Commission found that denying their chance to appeal was a due process violation and that the execution therefore amounted to an arbitrary deprivation of their rights to life under Article 4. Id. at para. 19.
Similarly, in International PEN et. al. v. Nigeria, the Commission found that due process violations during the trial rendered the subsequent death penalties arbitrary in contravention of Article 4. See ACommHPR, International PEN et. al. v. Nigeria, Communication No. 137/94, Merits Decision, 24th Ordinary Session (1998), para. 103. The ACHPR emphasized the injustice of the State’s decision to ignore its Rule 111 provisional measures request and proceed with the executions before the Commission heard the case. See id.
Despite the Commission’s reluctance to declare the death penalty a per se violation of the African Charter, it has previously imposed general limitations on executions in Botswana and has concluded that hanging may be cruel and inhuman punishment if the suffering it causes exceeds that which is “strictly necessary.” See ACommHPR, Spilg & Mack & Ditshwanelo v. Botswana, Communication No. 277/03, Merits Decision, 10th Extraordinary Session (2011), paras. 167, 69. In that case, however, the ACHPR found that the complainants had not demonstrated that the hanging would result in “slow and painful strangulation” due to a failure to account for the prisoner’s specific body weight. Id. at para. 170. Its approach in its most recent decision clearly abandons that logic.
The Commission has also encouraged all States parties to the African Charter to “take all measures” to refrain from issuing the death penalty on other occassions. See ACommHPR, Interights et. al. v. Botswana, Communication No. 240/01, Merits Decision, 34th Ordinary Session (2003), para. 52. In doing so, it cited a general movement away from use of the death penalty in international law, as well as the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, and its own Resolution Urging States to Envisage a Moratorium on the Death Penalty. See id.