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RAPPORTEUR
29th Session: Commissioner Andrew R. Chigovera
30th Session: Commissioner Andrew R. Chigovera
31st Session: Commissioner Andrew R. Chigovera
32nd Session: Commissioner Andrew R. Chigovera
33rd Session: Commissioner Andrew R. Chigovera
34th Session: Commissioner Andrew R. Chigovera
SUMMARY OF FACTS
1. The communication is submitted by Edward Luke II of Luke and Associates,
Saul Lehrfreund of Simons Muirhead and Burton (practising advocates based in
the United Kingdom and Botswana) and Interights, a human rights NGO based in
the United Kingdom on behalf of Mariette Sonjaleen Bosch who is of South
African nationality.
2. Mrs. Bosch was convicted of the murder of Maria Magdalena Wolmarans by
the High Court of Botswana on 13th December 1999 and sentenced to death. She
appealed to the Court of Appeal of Botswana, which dismissed her appeal on
30th January 2001.
3. The Complainant alleges that the judge who convicted Mrs. Bosch wrongly
directed himself that the burden of proof was on the accused "to prove on a
balance of probabilities" that someone else was responsible for the killing
and thereby reversing the presumption of innocence. That the Court of Appeal
wrongly upheld the conviction despite recognising the fact that the judge
had fundamentally erred by reversing the onus of proof.
4. The Complainant further alleges that her right to life has been violated
by the imposition of the death penalty for what was alleged to be a crime of
passion, in circumstances where there were clearly extenuating
circumstances.
5. It is also alleged that Mrs. Bosch is likely to suffer inhuman treatment
and punishment because the execution will be carried out by the cruel method
of death by hanging, which exposes the victim to unnecessary suffering,
degradation and humiliation.
COMPLAINT
6. The Complainant alleges a violation of Articles 1, 4, 5 and 7(1) of the
African Charter on Human and Peoples' Rights.
PROCEDURE
7. The communication was received at the Secretariat of the Commission 7th
March 2001 by fax.
8. On 12th March 2001, the Secretariat of the African Commission wrote to
Interights requesting for complete copies of the judgements of the High
Court and Court of Appeal of Botswana.
9. On 26th March 2001, the Secretariat of the Commission received by courier
the full text of the judgement of the Court of Appeal of Botswana delivered
on 30th January 2001 and expert affidavits relating to the manner and speed
in which a person executed by hanging would meet their death.
10. On 27th March 2001, the Chairman of the Commission wrote to the
President of Botswana appealing for a stay of execution pending
consideration of the communication by the Commission.
11. The President of Botswana did not respond to the appeal but information
received at the Commission indicates that Mrs. Bosch was executed by hanging
on 31st March 2001.
12. At its 29th ordinary session, the Commission decided to be seized of the
Complaint and the parties to the communication were informed of this
decision.
13. At its 30th ordinary session held in Banjul, The Gambia, the Commission
heard oral submissions from the Complainants and declared the communication
admissible.
14. On 9th November 2001, the Secretariat informed the parties of the
decision of the African Commission and requested them to transmit their
written submissions on admissibility and on the merits to the Secretariat.
15. The African Commission continued the process of exchanging information
between the parties.
16. At its 34th Ordinary Session, held from 6th to 20th November 2003 in
Banjul, The Gambia, the African Commission considered the communication and
delivered its decision on the merits.
LAW
ADMISSIBILITY
17. The admissibility of communications brought pursuant to Article 55 of
the Charter is governed by the conditions stipulated in Article 56 of the
African Charter. This Article lays down seven (7) conditions, which
generally must be fulfilled by a Complainant for a communication to be
declared admissible.
18. The Complainants submit that they have fulfilled all the conditions of
Article 56 of the African Charter. They argue that Mrs Bosch was convicted
of the murder of Maria Magdalena Wolmarans by the High Court of Botswana on
13th December 1999 and sentenced to death. She appealed to the Court of
Appeal of Botswana, which dismissed her appeal on 30th January 2001. On 7th
March 2001, 35 days after the Court of Appeal of Botswana had handed down
its decision dismissing Mrs Bosch's appeal, the Complainant filed this
communication with the African Commission. They submit that this matter has
not been submitted for examination under any other procedure of
international investigation or settlement. The Complainants also state that
all local remedies were exhausted and the complaint was filed with the
African Commission within a reasonable time from the time local remedies
were exhausted. Therefore the African Commission should declare the
communication admissible.
19. In their response, the Respondent State concedes that all local remedies
in this matter were exhausted, as the Court of Appeal is the last and final
court in Botswana.
20. The Commission notes that the Respondent State and the Complainants
agree that all domestic remedies were exhausted and thus declares the
communication admissible.
MERITS
21. Three issues relating to alleged violations of the African Charter were
originally raised on behalf of the applicant. A fourth issue, namely whether
or not there was a violation of Articles 1,4, and 7(1) in declining to
respect the indication of provisional measures was added when consolidated
submissions were made. Two further issues were added in the document
entitled "Note of Applicant's Submissions" circulated at the 31st Session
bringing the total number of issues to six. One of the six issues namely "whether the methods of execution in Botswana, by hanging, breached Article
5 of the African Charter" was abandoned during the hearing of the matter at
the African Commission's 31st Ordinary Session. Each of the remaining issues
will be dealt with in turn.
ALLEGED VIOLATION OF THE RIGHT TO FAIR TRIAL
22. With regard to the alleged violation of the right to fair trial under
Article 7 (1)(b) of the African Charter, the issue is whether the
misdirection by the trial judge in regard to the onus of proof was so fatal
as to negate the right to fair trial in the circumstances of this case.
Simply put, does a misdirection per se vitiate the holding of a fair trial
in violation of Article 7 of the African Charter and of necessity leads to
the quashing of a conviction with capital consequences.
23. In this regard, it was submitted that the placing of the burden of proof
on the applicant was a violation of a fundamental right such as would negate
the holding of a fair trial and that the court of appeal wrongly held that
this did not result in a miscarriage of justice.
24. In dealing with this issue it is important to recognise that there is no
general rule or international norm stating that any misdirection per se
vitiates a verdict of guilt. As pointed out by the State Party, what is
generally accepted in several countries particularly common law countries is
the rule that a misdirection will vitiate a verdict of guilt only where such
misdirection either on its own or "cumulatively is or are of such a nature
as to result in a failure of justice." The legal position is aptly stated in
Archbold, Criminal Pleading and Practice [FN10] as follows":
"The very basic and fundamental function of the courts of justice is to
ensure that no substantial miscarriage of justice is allowed through the
operation of the judicial process. The courts cannot be seen to undermine
the very foundation for the existence of the judiciary, namely justice,
unaffected by technicalities and sophistry of the legal profession".
In other words, where a court is satisfied that despite any misdirection or
irregularity in the conduct of the trial the conviction was safe, the court
would uphold such conviction.
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[FN10] 200 Ed at page 18
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25. The Court of Appeal thoroughly examined the evidence led at the trial
and the effect of the misdirection and came to the conclusion that there was
a massive body of evidence against the Applicant which would lead to no
other conclusion than that it was the applicant and no one else who murdered
the victim and that the quality of the evidence was such that no miscarriage
of justice was occasioned.
26. A breach of Article 7 (1) of the African Charter would only arise if the
conviction had resulted from such misdirection. As pointed out by the Court
of Appeal at page 47 of the judgement, the trial judge "meticulously
evaluated the evidence and came to the only conclusion possible on the
evidence".
27. A number of decisions have been taken in the European Court of Justice
on Article 6 (2) of the European Convention on Human Rights which also
provides for the presumption of innocence. In discussing Article 6(2), R.
Clayton and H. Tomilson observe [FN11] that the Article does not prohibit
presumption of facts and law and citing Salabiaku v France (1988) 13 EHRR
379 paragraph 28 states that the State must however,
"Confine them within reasonable limits which take into account the
importance of what is at stake and maintain the rights of the defence
[FN12]":
A more appropriate discussion of Article 6(2) can be found in the Digest of
Case-Law Relating to the European Convention on Human Rights (1955-1967)
[FN13] where it is stated that,
"If the lower court has not respected the principle of presumption of
innocence, but the higher court in its decision has eliminated the
consequences of this vice in the previous proceedings, there has been no
breach of Article 6 (2)[FN14]"
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[FN11] Page 114, paragraph 11.238.
[FN12] See also Hoang v France (1992) 16 EHRR 53.
[FN13] 1970, UGA Huele, Belgium
[FN14] Digest of Case-Law Relating to the European Convention on Human
Rights 1955-1967 U.G.A Huele, Belgium paragraph 153 on page 140
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28. As already discussed above, the Court of Appeal ‘meticulously evaluated
the evidence' between pages 11-20, 62-74 and 77-111 of the judgement and was
satisfied that despite the misdirection, there was adequate evidence to
convict the Applicant of murder.
29. It should be noted here that it is for the courts of State Parties and
not for the Commission to evaluate the facts in a particular case and unless
it is shown that the courts' evaluation of the facts were manifestly
arbitrary or amounted to a denial of justice, the Commission cannot
substitute the decision of the courts with that of its own. It has not been
shown that the courts evaluation of the evidence was in any way arbitrary or
erroneous as to result in a failure of justice. The Commission therefore
finds that there is no basis for finding that the State Party violated its
obligations under Articles 4 and 7 (1).
ALLEGED VIOLATION OF ARTICLE 5
30. The second issue relates to the allegation that the sentence of death in
this case was a disproportionate penalty in the circumstances of this case
and hence a violation of Article 5 of the Charter.
31. While it is accepted that the death penalty should be imposed after full
consideration of not only the circumstances of the individual offence but
also the circumstances of the individual offender, (Inter-American
Commission of Human Rights in Downer and Tracey v. Jamaica (41/2000) 14
April 2000), there is no rule of international law which prescribes the
circumstances under which the death penalty may be imposed. It should be
pointed out here that apart from stating the trend in other jurisdictions
and decisions of other Human Rights bodies governed by specific statutes, it
has not been established that the courts in this case did not consider the
full circumstances before imposing the death penalty. If anything, the
courts fully considered all the circumstances in this case (See pages 48 to
55 of the judgement of the Court of Appeal). It is clear that the submission
that the imposition of the death penalty was disproportionate to the gravity
of the crime in this case is based on an erroneous assumption of what
amounts to extenuating circumstances.
32. Extenuating circumstances are facts bearing on the commission of the
crime, which reduce the moral blameworthiness of the accused as distinct
from his/her legal culpability. First, the facts or circumstances must be
directly related to or connected with the criminal conduct in question. The
court is only concerned with facts which lessen the seriousness or
culpability of that particular criminal conduct.
33. Second, extenuation relates to moral blameworthiness. It is the state of
mind of the offender at the time of the commission of the offence that is a
relevant consideration otherwise offenders would use any personal
circumstance totally unrelated to the conduct complained of to escape
punishment.
34. In considering whether or not extenuating circumstances exist, the
inquiry is:
a) Whether there were at the time of the commission of the crime facts or
circumstances which could have influenced the accused's state of mind or
mental faculties and could serve to constitute extenuation
b) Whether such facts or circumstances, in their cumulative effect, probably
did influence the accused's state of mind in doing what s/he did; and
c) Whether this influence was of such a nature as to reduce what he did.
35. The claimed capacity for redemption or reformation and or good character
is certainly not connected with the commission of the particular murder and
therefore not relevant considerations to this finding of extenuating
circumstances.
36. In deciding on the proportionality of a sentence one would have to fully
weigh the seriousness of the offence against the sentence. It is quite
evident from the Court of Appeal records that the murder committed by Mrs
Bosch involved considerable effort and careful planning.
37. Thus while the African Commission acknowledges that the seriousness or
gruesome nature of an offence does not necessarily exclude the possibility
of extenuation, it cannot be disputed that the nature of the offence cannot
be disregarded when determining the extenuating circumstances. As such, the
African Commission finds no basis for faulting the findings of both the
trial court and Court of Appeal as it relates to this issue.
ISSUE OF REASONABLE NOTICE
38. It was submitted that failure to give reasonable notice of the date and
time of execution amounts to cruel, inhuman and degrading punishment and
treatment in breach of Article 5 of the African Charter and that execution
under such circumstances violates the protection of law provisions under
Article 3 as it deprives an individual the right to consult a lawyer and
obtain such relief from the courts as may be open to him or her.
39. It should be noted that this issue was not addressed by the Respondent
State in its written submissions primarily because it had not been
communicated to it. The issue was not even raised in the Authors'
consolidated submissions of the record of their oral submissions on
admissibility made at the 30th Session and submitted to the African
Commission's Secretariat on 18th March 2002.
40. The issue only surfaced with the Author's written submissions
distributed shortly before the hearing of the matter at the 31st Session of
the African Commission. It was therefore not surprising that no useful
submissions or submissions at all were made on behalf of the Respondent
State on the issue. Neither was there any debate on the issue at the
instance of the Commissioners, as they had not had an opportunity to
consider those submissions.
41. In the circumstances it would be fundamentally unfair to the Respondent
State to deal with the substance of this issue save to observe 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 he can, to face his ultimate ordeal [FN15].
Alleged violation of Article 4: Clemency Procedure was unfair
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[FN15] Guerra v Baptiste [1996] AC 397 at P.418
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42. This is one of the two issues raised rather belatedly and the approach
in issue 3 above applies and the comments made hereunder are for future
guidance in matters of this nature it being pointed out that the
communication procedure is an attempt to achieve or address failed justice
at the domestic level which follows the rules of natural justice and would
not permit any springing of surprises.
43. Applicant alleges that in exercising his clemency, the President acts
"arbitrarily". The main issue is whether or not the Presidential clemency is
what is envisaged in Article 4 of the Charter. Article 4 proscribes the
arbitrary deprivation of the right to life. A process is put in all
jurisdiction to ensure that due process is had in ensuring that the right to
life is not violated. This process includes the holding of a trial so that
an accused is given an opportunity to defend his cause. It is that process
that can be challenged to be arbitrary. The intervention of the President
does not in any way affect the non-arbitrariness of the process. The due
process in Botswana was followed with the Applicant's case following the
process that has been established to guarantee Applicant's rights. Her
matter was heard in both the High Court and the Appeal Court.
44. It should also be noted that the exercise of clemency unlike the process
described above, is discretionary in most jurisdictions and are for the most
part discretionary; they are given to him to be exercised in his own
judgement and discretion [FN16]. Whilst the Constitution of Botswana
provides for the constitution of an Advisory Committee on Prerogative of
Mercy, the President is only required to request and get advice from that
committee if he so wishes. However, he can only exercise his power of
clemency after presentation of a written report of the case from the trial
judge together with any other information that he may require.
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[FN16] Executive independence and the Courts Presidentialism in commonwealth
Africa B.O Nwabueze at Page 33
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45. The question then is whether or not the President arbitrarily deprived
the Applicant of her right to life. The word "arbitrarily" is defined in
Black's Dictionary [FN17]
"as fixed or done capriciously or at pleasure, without adequate determining
principle, not founded, not done or acting according to reason or judgement,
depending on the will alone, absolute in power, capriciously tyrannical,
despotic, without fair solid and substantial cause, that is without cause
based on law... ...Ordinarily "arbitrary" is synonymous with bad faith or
failure to exercise honest judgement and an arbitrary act would be one
performed without adequate determination of principle and one not founded in
nature of things..."
A similar definition is provided in Stround's Judicial Dictionary [FN18] and
Classen's Dictionary of Legal Words and Phrases[FN19]
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[FN12] 5th Ed, West Publishing Company, 1979.
[FN18] 5th Sweet and Maxwell Limited, 1986
[FN19] Volume 1. Butterworths, 1975.
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46. The other factor that needs to be considered is the time factor. On 30
January 2001, the court of Appeal dismissed the Applicant's case. On 5
February 2001 a memo from the Gaborone Women's Prison to the divisional
Commander states that applicant was advised of her right to petition the
President. On 7 February 2001 the Attorney General of Botswana wrote to the
Applicant's Lawyers on the issue. The Lawyers wrote to the Clemency
Committee on 26 February 2001 requesting for more time to prepare a clemency
petition. The preliminary submissions were only submitted on 15 March 2001,
one and half months after the Appeal was dismissed. It is acknowledged that
an 6 March the lawyers wrote to the President requesting for information as
to when the clemency hearing was to be held. Attendance of the Applicant or
her lawyers at the hearing is clearly impractical. One can envisage the
President now sitting as a court to hear oral submissions from petitioners.
Not only is the suggestion misconceived and implications thereof
impractical, but the implications will also result in undermining the office
and dignity of the President.
47. In any event, the right to be heard does not entail entitlement to the
benefit of all the facilities which are allowed to a litigant in a judicial
trial. Thus the ‘right to be heard' in appropriate circumstances may be
confined to the submission of written representations. These are clearly
appropriate circumstances for written representations.
48. However, it should be noted that a person must be given a reasonable
time in which to assemble the relevant information and to prepare and put
forward his representations (See also Baxter op cit at p 552.)
1. Alleged Violation of Articles 1, 4 and 7(1): Execution of Applicant
pending consideration of Applicant's Communication by the African Commission
49. The last argument is that Article 1 of the African Charter obliges a
State Party to comply with the requests of the African Commission. The
Complainants base this argument on the letter written by the Chairperson of
the African Commission to the President of Botswana on 27th March 2001
seeking a stay of execution. The letter was communicated by fax.
50. In its oral submissions during the 31st Ordinary Session, the Respondent
State argued that the fax was never received by the President. However, in
this particular case, the African Commission is not in possession of any
proof that the fax was indeed received by the President of Botswana.
51. Article 1 obliges State Parties to observe the rights in the African
Charter and to ‘adopt legislative or other measures to give effect to them.'
The only instance that a State Party can be said to have violated Article 1
is where the State does not enact the necessary legislative enactment
[FN20].
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[FN20] See the Case of Young, James and Webster which discusses Article 1 of
the European convention which is similar to Article 1 of the Charter
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52. However, it would be remiss for the African Commission to deliver its
decision on this matter without acknowledging the evolution of international
law and the trend towards abolition of the death penalty. This is
illustrated by the UN General Assembly's adoption of the 2nd Optional
Protocol to the ICCPR and the general reluctance by those States that have
retained capital punishment on their Statute books to exercise it in
practice. The African Commission has also encouraged this trend by adopting
a "Resolution Urging States to envisage a Moratorium on the Death Penalty
"[FN21] and therefore encourages all States party to the African Charter on
Human and Peoples' Rights to take all measures to refrain from exercising
the death penalty.
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[FN21] Adopted at the 26th Ordinary Session of the African Commission held
from 1st to 15th November 1999, Kigali, Rwanda
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FOR THE ABOVE REASONS, THE AFRICAN COMMISSION
Finds that the Republic of Botswana is not in violation of Articles 1, 4, 5
and 7(1) of the African Charter on Human and Peoples' Rights [FN22];
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;
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.
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[FN22] Commissioner N Barney Pityana asked to be recused from participating
in consideration of this communication at the 29th Ordinary Session of the
African Commission and as such did not take part in all discussions relating
to this matter
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Done at the 34th Ordinary Session held in Banjul, The Gambia from 6th to
20th November 2003. |
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