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Fair Trial Rights and Their Relation to the Death Penalty in Africa

Published online by Cambridge University Press:  17 January 2008

Extract

A fair trial is a basic element of the notion of the rule of law,1 and the principles of ‘due process’ and ‘the rule of law’ are fundamental to the protection of human rights.2 At the centre of any legal system, therefore, must be a means by which legal rights are asserted and breaches remedied through the process of a fair trial in court, as the law is useless without effective remedies.3 The fairness of the legal process has a particular significance in criminal cases, as it protects against human rights abuses. Hence, constitutional due process and elementary justice require that the judicial functions of trial and sentencing be conducted with fundamental fairness, especially where the irreversible sanction of the death penalty is involved.4

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Copyright © British Institute of International and Comparative Law 2006

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References

2 Clayton, R and Tomlinson, HFair Trial Rights (OUP New York 2001) 2.Google Scholar

3 Davis, HHuman Rights and Civil Liberties (Willan Publishing Devon 2003) 146.Google Scholar

4 American Civil Liberty Union ‘The case against the death penalty’ <http://www.aclu.org/ deathpenalty/deathpenalty.cfm?ID=9082>.

5 UNGA Res 2393 (XXIII) (26 Nov 1968) and UNGA Res 35/172 (15 Dec 1980). The European Court of Human Rights has also emphasized how imperative it is to respect fair trial rights. In Delcort v Belgium (1970) 1 EHRR 355, the Court stated that ‘in a democratic society within the meaning of the Convention, the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of Art 6(1) would not correspond to the aim and purpose of that provision’ (para 25). The Court has, in subsequent cases, pointed out the imperative nature of fair trial rights (see for example Öcalan v Turkey (2003) 7 Amicus Journal 24; and Soering v United Kingdom ECHR (1989) Series A, No 161.

6 This view was expressed by the Inter-American Commission on Human Rights Davidson, SThe Inter-American Human Rights System (Dartmouth Aldershot 1997) 296). Also, the Inter-American Court of Human Rights has indicated that the concept of due process of law is a neces sary prerequisite to ensure the adequate protection of persons whose rights and obligations are pending determination before a court or tribunal (Inter-American Court of Human Rights Advisory Opinion OC-9/87 (6 Oct 1987) Judicial guarantees in states of emergency, para 29).Google Scholar

7 It should be noted that Arts 3 and 5 of the African Charter are also relevant to the right to a fair trial. Art 3 guarantees equality before the law and Art 5 provides for the right to the respect of the dignity inherent in a human being and to recognition of his legal status.

8 Viljoen, F ‘Introduction to the African Commission and the regional human rights system’ in Heyns, C (ed) Human Rights Law in Africa (Martinus Nijhoff Publishers Leiden 2004) 404. Generally, detention and trial, which are often the areas where systematic violations of civil and political rights occur, are not dealt with adequately in the African CharterGoogle ScholarHeyns, C ‘Civil and political rights in the African Charter’ in Evans, M and Murray, R (eds) The African Charter on Human and Peoples' Rights: The System in Practice, 1986–2000 (CUP Cambridge 2002) 155.Google Scholar

9 Art 66 of the African Charter provides that, if necessary, special protocols or agreements may supplement the provisions of the Charter.

10 Adopted at its Eleventh Session held in Tunis, Tunisia, 2–9 Mar 1992; reproduced in Heyns, C (ed) Human Rights Law in Africa (Martinus Nijhoff Publishers Leiden 2004) 526.Google Scholar

11 Fifth Annual Activity Report: 1991–1992 para 22.

12 Para 2(e)(I) & (IV) of the Resolution.

13 Adopted at its Twenty-sixth Session held in Kigali, Rwanda, 1–15 Nov 1999; reproduced in Heyns (n 10) 584.

14 Heyns (n 10) 585.

15 Adopted at its 33rd Ordinary Session held in Niamey, Niger in May 2003, Final Communiqué of the Session and Seventeenth Annual Activity Report: 2003–2004 (hereinafter referred to as African Commission's principles and guidelines). The Preamble points out the need for these fair trial standards to become known to everyone in Africa, and urged that these stan dards be promoted and protected by civil society organizations, judges, lawyers, prosecutors, academics, and be incorporated into domestic legislation by state parties to the African Charter and respected by them.

16 The Commission has not pronounced itself on the death penalty as such. However, some Commissioners have openly stated their opposition to the death penalty or that they favour abolition see Chenwi, LThe African Commission and the death penalty’ (2005) 11 Amicus Journal 13). Recently, the death penalty has been included in the Commission's agenda.Google Scholar

17 However, implementation of its decisions depends largely on the political will of African States.

18 Communications 68/92 and 78/92 Eighth Annual Activity Report: 1994–1995, para 10. In this case, the Southern Regional Traditional Courts had sentenced Orton and Vera Chirwa to death, after a trial that did not meet fair trial standards. After international protest, the sentences were commuted to life imprisonment (paras 1–5).

19 Communication 87/93 Eighth Annual Activity Report: 1994–1995; (2000) AHRLR 183 (ACHPR 1995) para 12. In this communication, the individuals concerned had been sentenced to death under the Civil Disturbances (Special Tribunal) Decree No 2 of 1987. The decree does not provide for any judicial appeal against the decisions of the Special tribunals and prohibits the courts from reviewing any aspect of the operation of the tribunal. The Communication also alleged that the accused and their counsels were constantly harassed and intimidated during the trial, ultimately forcing the withdrawal of the defence counsel (paras 1 and 2).

20 ibid.

21 Communication 60/91 Eighth Annual Activity Report: 1994–1995; (2000) AHRLR 180 (ACHPR 1995).

22 ibid, para 13. The individuals in this communication had been sentenced to death under the Robbery and Firearms (Special Provision) Decree No 5 of 1984, which created special tribunals, composed of one serving or retired judge, one member of the armed forces and one member of the police force. The Decree does not provide for any appeal of sentences, but merely subjects them to confirmation or disallowance by the Governor of the state (para 1).

23 ibid, para 12. Similarly, the Inter-American Commission on Human Rights has found the appearance of impartiality to constitute a violation of the right to be tried by an impartial tribunal in, eg, Andrews v United States Case 11.139, Report No 57/96 (6 Dec 1996); OEA/Ser.L/V/II.98 Rev 6 (13 Apr 1998).

24 Communication 137/94, 139/94, 154/96, and 161/97 Twelfth Annual Activity Report: 1998–1999; (2002) AHRLR 212 (ACHPR 1998) paras 90 and 95. The case concerned the detention and trial of Mr Saro-Wiwa and the human rights violations suffered by him. During detention, he was denied access to a lawyer. The trial took place before a tribunal established under the Civil Disturbances Act. He was later sentenced to death together with his co-defendants. Although the African Commission requested a stay of execution, he was executed together with the others in secret (paras 1–10).

25 ibid, para 93.

26 ibid, para 96.

27 Communications 48/90, 50/91, 52/91, 89/93 Thirteenth Annual Activity Report: 1999–2000; (2000) AHRLR 297 (ACHPR 1999), para 68. In this communication, it was alleged that in Sudan, legal representation is denied at new trials and there is no appeal of a death sentence (see paras 1–20 for a summary of the facts).

28 ibid, para 69.

29 ibid, para 64 and 66.

30 Communication 240/2001 Seventeenth Annual Activity Report: 2003–2004 (African Commission). The High Court of Botswana convicted Mariette Bosch of murder on 13 Dec 1999 and sentenced her to death. An appeal to the Court of Appeal of Botswana in 2001 was unsuc cessful (para 2). A petition was submitted on her behalf to the Commission alleging violations of her rights in the African Charter. The Chairman of the African Commission, after receiving the petition, wrote to the President of Botswana on 27 Mar 2001, appealing for a stay of execution pending consideration of the communication by the Commission (paras 7–10). The President did not respond to the appeal, and Bosch was executed by hanging on 31 Mar 2001 (para 11). For an evaluation of this case, see L Chenwi ‘What future for the death penalty in Africa? An appraisal of the case of Interights et al (on behalf of Mariette Sonjaleen Bosh) v Botswana’ (2005) 12 Amicus Journal 13.

31 ibid, paras 24 and 26.

32 ibid, paras 27 and 28.

33 ibid, para 29.

34 Notwithstanding, the Commission acknowledged the evolution of international law and the trend towards abolition of the death penalty. It further conceded its support of this trend by its adoption of the 1999 resolution, and encouraged all states party to the African Charter to take all measures to refrain from exercising the death penalty (para 52).

35 For a discussion of the Committee's jurisprudence, see Schabas, WThe Abolition of the Death Penalty in International Law (CUP Cambridge 2002) 112–13.CrossRefGoogle Scholar

36 It is clear from the Inter-American Commission's jurisprudence that since a violation of due process invalidates a conviction and sentence, an execution pursuant to flawed criminal proceed ings would amount to an arbitrary deprivation of life, thus a violation of the right to life under Article I of the American Declaration (see, eg, Graham v United States Case 11.193, Report No 97/03 (29 Dec 2003)). Similarly, the Inter-American Court of Human Rights has adopted the same approach, finding the imposition of capital punishment without respect for due process to constitute an ‘arbitrary’ deprivation of life (see Inter-American Court of Human Rights Advisory Opinion OC-16/99 (1 Oct 1999)).

37 eg Arts 1 and 3 of the Constitutions of Central African Republic 1994; Art 10 of the Constitution of Djibouti 1992; Arts 19 and 20 of the Constitution of Ethiopia 1995; s 32 of the Constitution of the Republic of Sudan 1998; Art 13 of the Constitution of Tanzania 1995; Art 18 of the Constitution of Zambia 1996; the Preamble of the Constitution of the Republic of Cameroon 1996; ss 35 and 36 of the Constitution of the Federal Republic of Nigeria 1999; s 19 of the Constitution of Ghana 1996; s 28 of the Constitution of Uganda 1995; and s 23 of the Constitution of Sierra Leone 1996. It should be noted that the Constitution of Morocco 1996 has nothing on fair trial rights. Somalia and Swaziland have no constitution at present. The Constitution of Somalia was suspended on 27 Jan 1991. For the sections of the various African constitutions that deal with fair trial rights, see Heyns (n 11) 854–5. Further, the years of the constitutions referred to in this article are the years the constitutions were last amended as at Mar 2005.

38 Adeyemi, A ‘United Nations human rights instruments and criminal justice norms and standards’ in Bassiouni, M and Motala, Z (eds) The Protection of Human Rights in African Criminal Proceedings (Martinus Nijhoff Publishers Dordrecht 1995) 4.Google Scholar

39 Report of the national coordinator of Sierra Leone, Abdul Tejan-Cole, presented at the ‘First International Conference on the Application of the Death Penalty in Commonwealth Africa’ held in Entebbe, Uganda from 10 to 11 May 2004. The reports presented at this conference are avail able at web site <http://www.biicl.org/deathpenalty>.

40 Code, MTrial Within a Reasonable Time: A short history of recent controversies surround ing speedy trial rights in Canada and the United States (Carswell Thomson Professional Publishing Scarborough Ontario 1992) 9;Google ScholarSteytler, NConstitutional Criminal Procedure: A commentary of the Constitution of the Republic of South Africa (Butterworths Durban 1998) 272.Google Scholar

41 UN Human Rights Committee, General Comment No 13: Equality before the courts and the right to a fair and public hearing by an independent court established by law (Art 14 of the ICCPR) (13 Apr 1984) para 10.

42 ibid.

43 The Inter-American Commission on Human Rights has laid down, in a case against Argentina, three criteria to be used to determine what constitutes a reasonable time, namely: the duration of imprisonment; the nature of the acts that led to criminal proceedings; and the difficulties or judicial problems encountered when conducting trials (Davidson (n 6) 288). In this case, the Inter-American Commission relying on these criteria, found a pre-trial detention period of four years in this case not to be unjustifiable delay in the administration of justice (Case 10.037 v Argentina (1989) IAYHR 52, 100). This goes to show that there is no set period of time to be considered as unreasonable, as this will depend on the circumstances of each case.

44 Sanderson v A-G [1997] 12 BCLR 1675.

45 Smyth v Uhsewokunze [1998] 4 LRC 120, 129b.

46 Re Mlambo (1993) 2 LRC 28, 34e–f (Supreme Court of Zimbabwe).

47 A person arrested for treason, murder or robbery with aggravation may spend an average between three and six months in police custody despite the fact that s 17(3) of the Constitution of Sierra Leone 1991 specifically states that persons arrested for capital offences have to be brought before a court of law within 10 days from the date of arrest (Report of the national coordinator of Sierra Leone (n 39)).

48 International Commission of Jurists ‘Zambia: Attacks on Justice’ <http://www.icj.org/ news>.

49 Amnesty International ‘Nigeria: The death penalty and women under the Nigerian penal systems’ AI Index: AFR 44/007/2004 (10 Feb 2004).

50 Initial report of Lesotho submitted under Art 40 of the ICCPR, UN Doc CCPR/C/81/Add 14 (16 Jan 1998) para 101.

51 The author is from Cameroon, and became aware of these difficulties from a discussion with some defence lawyers in Apr 2004 in Cameroon, in which I asked them of the difficulties they experience in preparing capital cases.

52 Communication 39/90 Tenth Annual Activity Report: 1996–1997; (2000) AHRLR 57 (ACHPR 1997) para 19. See also the following cases involving African States: Birindwa and Tshisekedi v DRC, Communication 241/1987, UN Doc CCPR/C/37/D/241/1987 (29 Nov 1989) para 13, in which the Human Rights Committee found a violation of Art 9(3) of the ICCPR because Tshisekedi was not brought before a judge within a reasonable time and consequently, not tried within reasonable time; Muteba v DRC Communication 124/1982, UN Doc CCPR/C/22/D/124/1982 (24 July 1982), in which the Committee found a violation of the right to be brought promptly before a judge and to be tried within reasonable time.

53 As can be deduced from the above case, the burden is on the State to justify lengthy detentions or delays in bringing an accused before a court within reasonable time. Otherwise such detentions will amount to a violation of the right to be tried within a reasonable time.

54 Report of the national coordinator of Ghana, Kristine Lartey, presented at the ‘First International Conference on the Application of the Death Penalty in Commonwealth Africa’.

55 Report of the national coordinator of Lesotho, Moses Owori, presented at the ‘First International Conference on the Application of the Death Penalty in Commonwealth Africa’.

56 Amnesty International Report (Amnesty International Secretariat London 2005) <http://web.amnesty.org/report2005>.

57 Initial report of Uganda submitted under Art 40 of the ICCPR, UN Doc CCPR/C /UGA/2003/1 (25 Feb 2003) para 242.

58 Communication 390/1990, UN Doc CCPR/C/55/D/390/1990/Rev 1 (31 Oct 1995) para 7.3. In this case, the Human Rights Committee found a period of eight years between arrest and final decision of the court to be incompatible with the requirements of Art 14(3)(c) of the ICCPR.

59 See UN Human Rights Committee, General Comment No 8: Right to liberty and security of persons (Art 9 of the ICCPR), 30 June 1982, paras 2ndash;3. The Human Rights Committee is of the opinion that pre-trial detention should be an exception and as short as possible, thus ensuring conformity with the right ‘to trial within a reasonable time or to release’.

60 General Comment No 13 (n 41) para 7.

61 Steytler (n 40) 273.

62 Country reports presented at the ‘First International Conference on the Application of the Death Penalty in Commonwealth Africa’.

63 Concluding observations of the Human Rights Committee on the fourth periodic report of Morocco submitted under Art 40 of the ICCPR, UN Doc CCPR/C/79/Add 113 (1 Nov 1999) para 18.

64 ibid.

65 (n 24) para 96.

66 Art 7(1)(b) of the African Charter.

67 This was brought to the author's attention during a research conducted by the author in Apr 2004 in Cameroon, when defence lawyers were asked about the position in law regarding the granting of bail to those accused of capital offences. Section 118(1) of the Criminal Procedure Ordinance makes provision for bail in all criminal cases.

68 Report of the national coordinator of Uganda, Emmanuel Kasimbazi, presented at the ‘First International Conference on the Application of the Death Penalty in Commonwealth Africa’.

69 Initial report of Uganda (n 57) para 296.

70 Criminal Procedure and Evidence Act No 10 of 2002.

71 Section 96(7)(a) of the Criminal Procedure Code of Ghana (Act 30) 1960. Murder and treason are punishable by death under ss 46 and 180 of the Criminal Code of Ghana 1960 respectively. See also Art 21(d)(i) of the Constitution of Liberia 1984.

72 (1982–3) GLR 249.

73 (1976) 2 GLR 278.

74 ibid; Dogbe v The Republic (1976) 2 GLR 82, with regard to bail in murder cases.

75 Report of the national coordinator of Sierra Leone (n 39).

76 Section 106(1) of the Criminal Procedures Act of 1991.

77 Guideline N(3) of the African Commission's principles and guidelines.

78 General Comment No 13 (n 41) para 9.

79 Report of the national coordinator of Nigeria, Jude Ilo, presented at the ‘First International Conference on the Application of the Death Penalty in Commonwealth Africa’.

80 Communication 16/1977, UN Doc CCPR/C/18/D/16/1977 (25 Mar 1983).

81 ibid, para 2.2.

82 ibid. The HRC also found the above circumstance to be in violation of Art 14(3)(d), as the accused cannot defend himself through legal assistance of his choice and Art 14(3)(e), as the accused does not have the opportunity to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf.

83 Amnesty International Report (Amnesty International Secretariat London 2003) 258.

84 M Owoade ‘Some aspects of human rights and the administration of criminal justice in Nigeria’ in M Bassiouni and Z Motala (n 38) 181.

85 Adopted at its Nineteenth Session held in Ouagadougou, Burkina Faso, 26 Mar–4 Apr 1996 Ninth Annual Activity Report: 1995–1996 Annex V, 5; reproduced in Heyns (n 10) 558.

86 eg Art 4 of the Constitution of Burkina Faso 2000, Art 42(2)(f)(i) of the Constitution of Nigeria 1999, Art 19 of the Constitution of Togo 1992, and Art 18(2) of the Constitution of Zimbabwe 2000.

87 General Comment No 13 (n 41) para 4. The Committee's doubt about the impartiality and independence of these courts stems from the fact that quite often, the reason for their establish ment is to enable exceptional procedures to be applied that do not comply with normal standards of justice.

88 Guideline A(4)(e).

89 Amnesty International (n 56). It should be noted that the imposition of the death sentences by the Special Courts is a violation of Art 4 of the African Charter, especially if they are, or were, subsequently executed.

90 Amnesty International and Others v Sudan (n 27) paras 68–9.

91 For further discussion of this right and how it has been addressed by the African Commission and the Inter-American Commission, see Barnidge, RThe African Commission on Human and Peoples' Rights and the Inter-American Commission on Human Rights: Addressing the right to an impartial hearing on detention and trial within a reasonable time and the presumption of innocence’ (2004) 4 AHRLJ 108.Google Scholar

92 Amnesty International (n 56).

93 Concluding observations of the Human Rights Committee on the third and fourth periodic reports of Egypt submitted under Art 40 of the ICCPR, UN Doc CCPR/CO/76/EGY (28 Nov 2002) para 16(b). Also in Eritrea, trials before Special Courts are unfair, with the accused having no right to defence counsel. It is also unlikely that such special courts could be independent, competent, and impartial due to the presence of military judges, which is exacerbated by the fact that they have little or no legal training (see Amnesty International Report (2003) 100).

94 Concluding observations of the Human Rights Committee on the second periodic report of Congo submitted under Art 40 of the ICCPR, UN Doc CCPR/C/79/Add 118 (27 Mar 2000) para 14.

95 As above.

96 Concluding observations of the Human Rights Committee on the second periodic report of Sudan submitted under Art 40 of the ICCPR, UN Doc CCPR/C/79/Add 85 (19 Nov 1997) para 21.

97 Combined third and fourth periodic reports of Egypt submitted under Art 40 of the ICCPR, UN Doc CCPR/C/EGY/2001/3 (15 Apr 2002) para 404(d); Second periodic report of Gabon submitted under Art 40 of the ICCPR, UN Doc CCPR/C/128/Add 1 (14 June 1999) para 32, here inafter referred to as second periodic report of Gabon; and second periodic report of Sudan submitted under Art 40 of the ICCPR, UN Doc CCPR/C/75/Add 2 (13 Mar 1997) para 115(h).

98 eg this is the case in Kenya Mutunga, WThe Rights of an Arrested and an Accused Person (OUP Press Nairobi 1990) 57).Google Scholar

99 Guideline N(6)(c)(3), African Commission's principles and guidelines.

100 Guideline N(6)(c)(2), African Commission's principles and guidelines.

101 Mbenge v Zaïre (n 80) para 14.1.

102 ibid, paras 14.1–14.2.

103 Finkelstein, MThe Right to Counsel (Butterworths Toronto 1988) 1–1.Google Scholar

104 See also, Art 42 (2)(f)(v) of the Constitution of Malawi 2001.

105 Upon ratification of the ICCPR, The Gambia entered a reservation in respect of Art 14(3)(d) to the effect that ‘for financial reasons free legal assistance for accused persons is limited in our constitution to persons charged with capital offences only’ (Heyns (n 10) 53. Art 28(3)(e) of the Constitution of Uganda 1995 has a similar provision with regard to capital offences.

106 Concluding observations of the Human Rights Committee on the second periodic report of Jamaica submitted under Art 40 of the ICCPR, UN Doc CCPR/C/79/Add 83 (19 Nov 1997) para 14.

107 Hatchard, J and Coldham, S ‘Commonwealth Africa’ in Hodgkinson, P and Rutherford, A (eds) Capital Punishment: Global Issues and Prospects (Waterside Press Winchester 1996) 164.Google Scholar

108 Amnesty International ‘Sudan: 24 sentenced to death after unfair trial’ AI Index: AFR 54/027/2003 (29 Apr 2003). Also, in Nigeria, a Shari'a court in Bauchi sentenced Jibrin Babaji to death by stoning on 14 Sept 2003 after a trial in which he was not represented by a lawyer (Amnesty International Report (Amnesty International Secretariat London 2004) 68).

109 Guideline H(e)(1) and (2), African Commission's principles and guidelines.

110 Report by the Special Rapporteur on extrajudicial, summary or arbitrary executions, UN Doc E/CN.4/1997/60 (24 Dec 1996) para 81.

111 Hands Off Cain The Death Penalty Worldwide: 2004 Report (Quaderni Radicali Rome 2004) 37–8.

112 ‘The quality of justice: Trial observations in Malawi’ <http://www.penalreform.org/english/ dp_malawi.htm>.

113 ibid.

114 Republic v Mbushuu and Another (1994) 2 LRC 349, 353.

115 ‘Death penalty in Botswana’ <http://www.ditshwanelo.org.bw>.

116 See eg Art 17(7) of the Constitution of Eritrea 1997, Art 20(6) of the Constitution of Ethiopia 1995, and Art 42(2)(f)(VIII) of the Constitution of Malawi 2001.

117 S v Ntuli (1996) 1 BCLR 141.

118 Constitutional Rights Project (in respect of Akamu and Others) v Nigeria (n 21) para 13.

119 Hatchard and Coldham (n 107) 168.

120 Constitutional Rights Project (in respect of Akamu and Others) v Nigeria (n 21) para 13; and Constitutional Rights Project (in respect of Lekwot and Others) v Nigeria (n 19) para 11.

121 Amnesty International (n 56).

122 Communication 223/98, 14th Annual Activity Report: 2000–2001; (2000) AHRLR 293 (ACHPR 2000) para 20.

123 ibid. See also, International Pen and Others (on behalf of Saro-Wiwa) v Nigeria (n 24) para 93.

124 Report of the national coordinator of Sierra Leone (n 39).

125 Communications 839/1998, 840/1998, and 841/1998, UN Doc CCPR/C/72/D/839/1998 (30 July 2001) para 5.6.

126 ‘Chad: First executions by firing squad in more than a decade’ <http://www.irinnews.org/ report.asp?ReportID=37687&SelectCountry=CHAD>.

127 Initial report of Zimbabwe submitted under Art 40 of the ICCPR, UN Doc CCPR/C/74/Add 3 (29 Sept 199), paras 68–70.

128 Third periodic report of Libya submitted under Art 40 of the ICCPR, UN Doc CCPR/C/102/Add 1 (15 Oct 1997) para 129.

129 ECOSOC Res 1989/64, 24 May 1989, Implementation of the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, para 1(b).

130 Second periodic report of Congo submitted under Art 40 of the ICCPR, UN Doc CCPR/C/63/Add 5 (5 May 1997) para 19.

131 Third periodic report of Tanzania submitted under Art 40 of the ICCPR, UN Doc CCPR/C/83/Add 2 (7 Oct 1997) para 49.

132 The only successful appeal during the past five years is that of Nassur, who had been on death row for 20 years, and was pardoned by the president in 2001. Initial report of Uganda (n 57) para 139–40.

133 It should be noted that pardons are not only an executive issue, as it can be granted by way of renouncing retribution or pardon from the victim or the victim's family in countries that apply Islamic law. In Libya, renunciation of the right to retribution in return for payment of blood money or for any other reason is equivalent to commutation of the death penalty (Third periodic report of Libya (n 128) para 129. In Sudan, the death penalty can be commuted with pardon of the victim or the victim's relative, and such pardon cannot be retracted from if made expressly by consent (s 38(1) of the Penal Code of Sudan 1991).

134 Hatchard and Coldham (n 107) 169. Also in Kenya and Tanzania.

135 ibid 169. See also Initial report of Zimbabwe (n 127) para 68–71.

136 Third periodic report of Togo submitted under Art 40 of the ICCPR, UN Doc CCPR/C/TGO/2001/3 (5 July 2001) para 110.

137 Hatchard and Coldham (n 107) 169.

138 Hood, RThe Death Penalty: A worldwide perspective (OUP New York 2002) 132.Google Scholar

139 ‘Foes of death penalty making gradual gains in Africa’ The New York Times (New York 20 Oct 2004).

140 Makwanyane 1995 (3) SA 391 (CC) paras 54–5.

141 Concluding observations of the Human Rights Committee on the third periodic report of Togo submitted under Art 40 of the ICCPR, UN Doc CCPR/CO/76/TGO (28 Nov 2002) para 7.

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