sentence will be considered an arbitrary deprivation of the right to life in violation of this Article.620
4.3.2.2 Corporal punishment
In Doebbler v Sudan, the African Commission made it unequivocally clear
that corporal punishment is strictly prohibited under Article 5 of the ACHPR,
holding: “There is no right for individuals, and particularly the government of a
country to apply physical violence to individuals for offences. Such a right would
be tantamount to sanctioning State sponsored torture under the Charter and contrary to the very nature of this human rights treaty.”625 While the Commission
has not yet considered a case of corporal punishment by a private actor, it is
5. AfrCommHPR, Res.42(XXVI)99: Resolution Urging the State to Envisage a Moratorium
on Death Penalty (1999).
620
See, for example: International Pen and Others (on behalf of Ken Saro-Wiwa Jr.) v Nigeria
(1998), op. cit., §103; Forum of Conscience v Sierra Leone, AfrCommHPR, Communication
No. 223/98, 28th session, 23 October–6 November 2000, §19.
621
Interights and Others (on behalf of Bosch) v Botswana, AfrCommHPR, Communication No.
240/2001, 34th session, 6–20 November 2003.
622
Ibid. §5.
623
Ibid. §31.
624
Ibid. §41.
625
Doebbler v Sudan (2003), op. cit., §42. The Commission referred to the ECHR case Tyler v UK
in its judgement: §38.
4
The AFrican Regional System
The Commission was invited to consider the death penalty in the context of
Article 5 in Interights and Others (on behalf of Bosch) v Botswana.621 The complainant in that case argued that the “cruel method of death by hanging [would
expose her]… to unnecessary suffering, degradation and humiliation.”622 The
Commission failed to address this issue in its findings, although it did dismiss
the argument that imposition of the death penalty was disproportionate to the
crime, and therefore constituted a violation of Article 5, “noting that there is no
rule of international law which prescribes the circumstances under which the death
penalty may be imposed.”623 The complainant further argued that failure to give
reasonable notice of the date and time of execution amounted to cruel, inhuman
and degrading treatment. The Commission explicitly declined to consider this
issue in its findings, stating that the respondent State had not been given sufficient notice of the argument in order to respond. However, the Commission did
note the need for a justice system to “have a human face in matters of execution
of death sentences,” indicating that it is at least possible for circumstances surrounding the imposition of the death penalty to breach Article 5.624
139
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