PART B: Substantive Norms on Torture in the African Regional Human Rights System This interpretation is disappointing, in particular because the vulnerability of those institutionalised is increased by that fact that general medical practitioners – who are not necessarily psychiatrists – may make those important diagnoses. Quite explicitly, the Commission also concedes that the situation (and therefore its decision) falls short of Principles 15, 16 and 17 of the UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Care.222 f. Death Penalty The African Charter does not explicitly prohibit capital punishment. The Charter merely prohibits the ‘arbitrary’ deprivation of human life.223 At its 26th Ordinary Session in Kigali, Rwanda, in November 1999, the Commission adopted a ‘Resolution Urging States to Envisage a Moratorium on the Death Penalty’, in which it requested States Parties to the African Charter that still legalised capital punishment to refrain from implementing it.224 In 2008, the Commission adopted a subsequent ‘Resolution Calling on State Parties to Observe a Moratorium on the Death Penalty’, reiterating the 1999 resolution and additionally calling on States Parties to ratify the Second Optional Protocol to the ICCPR and to include in their periodic reports information regarding steps taken to move towards abolition of the death penalty in their countries.225 In INTERIGHTS (on behalf of Mariette Sonjaleen Bosch) v. Botswana, the Commission confirmed that capital punishment was not incompatible with the Charter. In the Bosch case, it was submitted that the imposition of the death penalty was disproportionate to the gravity of the offence committed, and therefore constituted a violation of Article 5. In a sense echoing its resolution on the death penalty, the Commission began with the premise that ‘there is no rule of international law which prescribes the circumstances under which the death penalty may be imposed’.226 The Commission’s reasoning indicates that a sentence would be disproportionate if facts that reduce the moral blameworthiness of an accused (the ‘extenuating circumstances’) were disregarded or accorded too little weight. In this case, the Commission found that the analysis by domestic courts was not unreasonable because there were no facts relating to the criminal conduct itself 222 Ibid. 223 African Charter, supra note 9, Article 4. 224 Resolution Urging the State to Envisage a Moratorium on Death Penalty, (1999) ACHPR/ Res.42(XXVI)99. 225 Resolution Calling on States Parties to Observe a Moratorium on the Death Penalty, (2008) ACHPR/ Res.136(XXXXIIII)08. 226 See ACHPR, INTERIGHTS(on behalf of Mariette Sonjaleen Bosch) v. Botswana, Comm. No. 240/2001, 34th Ordinary Session (November 2003), para. 31. A more appropriate approach may have been for the Commission to consider the scope of limitations in international law on the application and use of capital punishment. 59