Wakilii

Spilg and Others v Botswana (Communication 277 of 2003)

African Commission on Human and Peoples' Rights · Spilg and Others v Botswana (Communication 277 of 2003) [2013] ACHPR 5 (12 October 2013) · 2013 Petition Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication submitted to the African Commission on Human and Peoples' Rights alleging violations of the African Charter following the execution of Kobedi by Botswana
Decision
Communication found partly admissible; violation of Article 5 declared; no violations of Articles 2, 3, 4 and 7 found; recommendations made to Botswana

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission held that Botswana violated Article 5 of the African Charter by failing to give notice to Kobedi and his family of the date and time of execution, denying them the opportunity for final farewells. However, the Commission found no violation of Articles 2, 3, 4, or 7, concluding that due process was followed, the death penalty was proportionate to the crime of murder as one of the most serious crimes, and the Court of Appeal properly applied the doctrine of functus officio in refusing to reopen the case. The Commission affirmed the principle of actio popularis, holding that complainants need not be victims or nationals of the respondent state to have standing.

Outcome

Communication found partly admissible; violation of Article 5 declared; no violations of Articles 2, 3, 4 and 7 found; recommendations made to Botswana

Facts

Lehlohonolo Bernard Kobedi was convicted of murdering Sergeant Kebotsetswe Goepamang of the Botswana Police on 22 May 1993 and sentenced to death by the High Court of Botswana on 14 October 1998. The complainants alleged that Sgt. Goepamang was shot by a high velocity AK-47 used by police, not the low velocity Kalashnikov 9mm found in Kobedi's possession, and that medical negligence contributed to the sergeant's death. The Court of Appeal refused to admit fresh ballistic and medical evidence, applying the doctrine of functus officio. Kobedi was executed on 18 July 2003 before the African Commission could consider provisional measures. The complainants alleged violations relating to the mandatory death penalty, exclusion of fresh evidence, execution by hanging, and failure to notify Kobedi and his family of the execution date.

Issues

  1. Whether the compulsory requirement under Botswana law for courts to impose the death penalty for murder in the absence of extenuating circumstances violates Articles 2, 3, 4, 5 and 7 of the African Charter.
  2. Whether the doctrine of functus officio applied by the Court of Appeal of Botswana to refuse admission of fresh evidence violates the right to fair trial under Article 7 of the African Charter.
  3. Whether the execution of Kobedi by hanging violated Article 5 of the African Charter prohibiting cruel, inhuman and degrading treatment.
  4. Whether the failure to give notice of the date and time of execution to Kobedi and his family violated Article 5 of the African Charter.
  5. Whether the complainants, as non-victims and one being a non-national of Botswana, have locus standi to submit the communication under Article 56(1) of the African Charter.

Orders

  • Declared that there has been a violation of Article 5 of the African Charter by Botswana.
  • Declared that there has been no violation of Articles 2, 3, 4 and 7(1)(d) of the African Charter by Botswana.
  • Strongly urged the Republic of Botswana to take all measures to comply with the Resolution urging States to envisage a moratorium on the death penalty.
  • Urged Botswana to take urgent measures with a view to abolish the death penalty.
  • Requested Botswana to report back to the African Commission when it submits its report under Article 62 of the African Charter on measures taken to comply with these recommendations.

Rules and key headnotes

Locus Standi — Actio Popularis — Communication Procedures
Under Article 56(1) of the African Charter, there is no requirement of legal interest or citizenship for authorship of a communication before the African Commission; any individual or NGO may submit a communication on behalf of a victim of human rights violations, and the author need not be a national of a State Party to the African Charter.
Death Penalty — Most Serious Crimes — Article 4 Right to Life
The phrase 'most serious crimes' under international human rights law should be interpreted restrictively and exceptionally; the death penalty should only be considered where the crime is intentional and results in lethal or extremely grave consequences; murder constitutes one of the most serious crimes under domestic and international law as it amounts to arbitrary deprivation of life.
Fair Trial — Functus Officio — Fresh Evidence
The doctrine of functus officio provides that once a decision maker has perfected a decision, he or she is barred from revisiting it except to correct minor errors; modern law invests apex courts with review jurisdiction to reopen decisions on grounds including exceptional circumstances resulting in miscarriage of justice or discovery of new evidence which could not have been produced earlier with due diligence.
Cruel, Inhuman and Degrading Treatment — Notice of Execution
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 intimate family before death, and to receive spiritual comfort; failure to give notice of the date and time of execution to the victim and his family, thereby depriving them of final farewells, constitutes cruel, inhuman and degrading treatment in violation of Article 5 of the African Charter.
Death Row Phenomenon — Delay in Execution
In the review of criminal convictions and sentences, an element of delay between the lawful imposition of a death sentence and the exhaustion of available remedies is inherent; even prolonged periods of detention under severe custodial regime on death row cannot generally be considered cruel, inhuman or degrading treatment if the convicted person is merely availing himself of appellate remedies and is partly responsible for the delays.
Procedure — African Commission Rules — Substantial Justice over Technicalities
The African Commission will not insist on mechanical application of its procedural rules where to do otherwise would not occasion substantial injustice; the primary duty of all adjudicatory bodies is to ensure that substantial justice, not technical justice, is done to all parties; technicalities based on perceived procedural irregularities will not be allowed to obstruct the course of justice.

Legislation cited (23)

  • African Charter on Human and Peoples' Rights Article 1
  • African Charter on Human and Peoples' Rights Article 2
  • African Charter on Human and Peoples' Rights Article 3
  • African Charter on Human and Peoples' Rights Article 4
  • African Charter on Human and Peoples' Rights Article 5
  • African Charter on Human and Peoples' Rights Article 7
  • African Charter on Human and Peoples' Rights Article 30
  • African Charter on Human and Peoples' Rights Article 55
  • African Charter on Human and Peoples' Rights Article 56
  • African Charter on Human and Peoples' Rights Article 60
  • African Charter on Human and Peoples' Rights Article 62
  • Constitutive Act of the African Union Article 3
  • Constitutive Act of the African Union Article 4(b)
  • International Covenant on Civil and Political Rights Article 1
  • International Covenant on Civil and Political Rights Article 6
  • International Covenant on Civil and Political Rights Article 7
  • Optional Protocol to the International Convention on Civil and Political Rights Article 1
  • European Convention on Human Rights Article 2
  • European Convention on Human Rights Article 34
  • Inter-American Convention on Human Rights Article 44
  • Rome Statute Article 7(1)(a)
  • African Commission Rules of Procedure Rule 104
  • African Commission Rules of Procedure Rule 119

Cases cited (34)

  • Downer & Tracey v. Jamaica
  • Maauwe & Motswetla concluded in 2006 by the Court of Appeal of the Respondent State
  • Communications 54/91, 61/91, 98/93, 164/97 to 196/97, 210/98
  • Communications 25/89, 47/90, 56/91, 100/93
  • Communication 155/96
  • Communications 137/94, 156/96, 161/97
  • Communication 31/89
  • Communication 235/2000
  • Communications 64/92, 68/92, 78/92
  • Communication 108/93
  • Communication 75/92
  • Communication 266/2003
  • Communication 5/88
  • Communication 1/88
  • Communication 97/93
  • Communication 35/89
  • Communication 142/94
  • Communication 268/2003
  • Communication 65/92
  • Communication 260/02
  • Communication 149/96
  • Communication 40/90
  • Communication 218/98
  • Communication 240/2001
  • Ng v. Canada, Communication No 469/1991, Human Rights Committee, 7 January 1994
  • Randolph Barrett and Clyde v. Jamaica, Communication 270/271/1988 (30 March 1992)
  • Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848
  • 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)
  • Kurukkal v. Canada (Minister of Citizenship & Immigration) 2009 FC 695, [2010] 3 F.C.R. 195
  • Brown v. Board of Education of Topeka (1954) 347 U.S. 483
  • Catholic Commission for Justice and Peace in Zimbabwe v Attorney General, Zimbabwe & Ors, 1993 (4) SA 239 (ZS)

Full judgment

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Spilg and Others v Botswana (Communication 277 of 2003) [2013] ACHPR 5 (12 October 2013)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.