Two Times Too Many: Botswana and the Death Penalty

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Without wanting to trivialise the hard work needed to litigate human rights cases, it is often implementation that is considered the pinnacle of achievement. Put simply, it is one thing to convince a commission or court that a countries’ policies or actions contravene a human rights instrument, it is quite another for that country to implement the decision. A blog post therefore about another failure by another country to implement another human rights decision may not immediately pique the interest of EJIL:Talk! Readers. But I hope this case might just do so.

In November 2015, the African Commission on Human and Peoples’ Rights rendered a decision following a case brought by NGOs Interights and Ditshwanelo acting on behalf of detainee Mr Oteng Modisane Ping, challenging Botswana’s use of the death penalty. The complainants alleged, inter alia, that the death penalty is by its very nature a violation of Article 4 (right to life) of the African Charter on Human and Peoples’ Rights. In addition, they argued that Botswana’s specific death penalty procedures also violated of Articles 1, 4 and 5 of the African Charter. In particular, they contended that hanging violated the prohibition of torture and cruel, inhuman and degrading treatment under Article 5 of the African Charter.

Whilst the African Commission did not go so far as to declare the death penalty itself in contravention of the African Charter, it did pronounce that the use of hanging as a method of execution violated Article 5 of the African Charter (the decision can be accessed here, see in particular paragraph 87). This pronouncement was lauded by many as a significant step towards the eradication of the death penalty in Africa, since hanging is a form of execution favoured by several African countries. (Although it should be noted that the African Commission does not render binding decisions like its judicial cousin the African Court on Human and Peoples’ Rights, but rather recommendations.)

Despite this apparent victory however, the applicant, Mr Ping, was in fact executed. How did this happen? The decision explains that despite the African Commission using its powers to issue provisional measures preventing execution pending the outcome of the case, a temperamental fax machine prevented this decision being sent directly to the Botswana Office of the President. The provisional measure order to halt the execution therefore never reached Botswanan officials, who went ahead with the execution (yes, you read that correctly, see paragraph 24 of the decision).

So, whilst this decision was rightly lauded, the inescapable tragedy of Mr Ping’s death remains. However, with the decision having been in place and available on the African Commission website for some time, and no doubt with the Botswanan government for years, one could perhaps safely assume that at the very least we would not see an execution by hanging in Botswana any time soon.

Sadly, however news reached us last month that Botswana had executed Joseph Poni Tselayarona; seemingly the first execution since Mr Ping. The reported method of execution? Hanging. As I mentioned at the beginning of this post, another country not implementing a human rights decision may not be particularly novel, but where it involves the use of a form of execution specifically outlawed, involving the very same country subject to the previous decision, this a case worth highlighting.

The African Commission has issued a statement condemning the execution of Mr Tselayarona. In it, the African Commission mentions the death penalty “may” be a violation of Article 4 of the African Charter whilst stating that Article 5 of the African Charter prohibits cruel, inhuman or degrading punishment in broad terms. It does not however reference its own decision on this very issue, involving the exact same country.

Botswana’s failure to not only remove the death penalty but at the very least abstain from using the very mode of execution which the African Commission has decided is in violation of the African Charter merits a further response from the African Commission. But what can be done? The African Commission can send cases to the African Court on Human and Peoples’ Rights (see Rules 118 of the African Commission Rules). However, from the wording of the African Commission rules and the African Court’s reciprocal rules, it appears Botswana must have at the very least signed up to the African Court by signing the African Court Protocol. At present Botswana has not, and therefore a formal transfer from the African Commission to the African Court of the 2015 decision for, say, non-compliance seems off the cards.

Therefore, the matter likely remains within the African Commission’s jurisdiction. One option now is for the African Commission to issue a formal resolution calling on Botswana to implement its 2015 decision and no longer use hanging as a method of execution. Could this resolution be applied to all 55 African Union member states? Possibly. The African Commission has issued such a resolution once before to my knowledge. In November 2009, the African Commission considered the case of Endorois v. Kenya. In this case, the Endorois people alleged violations resulting from their displacement from their ancestral lands around Lake Bogoria, Kenya and Kenya’s failure to adequately compensate them. The African Commission found in the Endorois peoples’ favour, ruling Kenya had violated numerous articles of the African Charter, and recommended several ways to rectify the situation. It appears that Kenya did little to implement the African Commission’s recommendations, and so in November 2013 the African Commission issued a resolution calling on Kenya to implement its recommendations.

Whether the resolution issued in the Endorois case had much effect is up for debate (although it appears that the next time a Kenyan case involving indigenous peoples’ came before the African Commission it transferred the case to the African Court proprio motu). In the current Botswana situation, where we have the same country using precisely the same form of execution found by the African Commission to be in violation of the African Charter, it seems the very least the African Commission should do is issue a similar resolution. Such action would at least go some way to ensuring we are not faced with similar cases such as those of Mr Ping and Mr Tselayarona. It may be a small step, but it would be a start.

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Raj Krishna says

March 31, 2018

African Commission do need to issue a strong resolution because then only we can ensure that cases of Mr Ping and Mr Tselayarona is not repeated. After the cases of Mr. Ping and Mr Tselayarona, the African Commission should issue a formal resolution calling on Botswana to implement its 2015 decision and no longer use hanging as a method of execution. As stated by the author these are small steps, but it would be a start which we all are waiting for. Anyway, a brilliant and thought- provoking post.