Gabaakanye (represented by Dingake Law Partners, DITSHW ANELO and REPRIEVE) v Botswana (Communication 600/16:) [2022] ACHPR 18 (9 March 2022)

i>-CHP,9 r _11 ACHPR African Commission m:rrw • Human and Peoples on ' Rights Human Rights our Collective Responsibility COMMUNICATION 600/16 Patrick Gabaakanye (represented by Dingake Law Partners, DITSHWANELO and REPRIEVE) v. Republic of Botswana Decision on Strike Out of the African Commission on Human and Peoples' Rights Communication 600/16: Patrick Gabaakanye (represented by Dingake Law Partners, DITSHW ANELO and REPRIEVE) v. Botswana Summary of the Communication: 1. The Secretariat Secretariat), received DITSHWANELO Gabaakanye State Party to the African Charter). (the Victim) of the African Commission on Human and Peoples' 2016, from Dingake Rights (the Law Partners, a Complaint on 4 February and REPRIEVE (the Complainants) on behalf of Patrick State), (the Respondent against the Republic of Botswana Charter on Human and Peoples' Rights (the African 2. The Complainants submit that the Victim in 2010. He was charged is a 55 year-old and later convicted Botswana of murder without national who circumstances contrary to section 202 of the Penal Code of Botswana. was arrested extenuating 3. The Complainants aver that the Victim pleaded 202 of the Penal Code but was convicted not guilty to section 2014. He was sentenced on 3 July 2014. The Complainants contrary February Gaborone Walia considered offence the Victim's circumstances extenuating and the death penalty that there were no extenuating law. under the Botswana to death by hanging of the charge on 13 at by the High Court sitting Singh against for murder without circumstances state that Justice is mandatory to mitigate Lakvinder to the charge of murder 4. The Complainants allege appeal and confirmed Victim's According to avoid execution that on 30 July 2015, the Court of Appeal dismissed handed down by the High Court. open to the Victim the decision the only remaining clemency. mechanism the was Presidential to the Complainants, 5. The Complainants aver that following General the High Court decision, asking for (i) guidance the Victim's on the clemency wrote to the Attorney (ii) confirmation lawyers procedure, based would be disclosed would not be executed before clemency. President's that he refrain requesting had the opportunity that the trial judge's to the Victim and (iii) he had been able to meaningfully is report an undertaking on which clemency that the Victim petition of Botswana until he had process. also wrote to the President execution of the clemency warrant the from signing to meaningfully avail himself the Victim's The Victim's lawyer 1 The Republic of Botswana ratified the African Charter on 22 July 1986. to such a procedure. According to the Complainants, the Attorney General responded on 26 August 2015, refusing to provide any information regarding the clemency process or to advise the President to convene the Advisory Committee on Prerogative of Mercy Committee in order to determine the procedure. In this letter the Attorney General stated that the President does not ordinarily convene the Advisory Committee on Prerogative of Mercy if he has not received a clemency petition. 7. The Complainants further allege that following the Attorney General's refusal to grant his request, the Victim through his lawyer filed a notice of motion with the High Court on 2 September 2015 indicating his intention to challenge the lack of established procedures for considering clemency petitions in direct contravention of section 54(1) of the Constitution. In the motion, the Victim requested that the Court direct that he be provided with a copy of the Advisory Committee on Prerogative of Mercy's regulations with respect to granting clemency. If no such regulations existed, the Victim requested that the Court should direct that the Committee convenes in order to determine a procedure for the application of the prerogative of mercy in accordance with section 55 of the Constitution, provide the Victim with details of this procedure, and advise him as to what information they may consider to support the petition for clemency. 8. The Complainants state that the Victim also indicated his intention to challenge the imposition of the death penalty by way of hanging in that execution by hanging constitutes inhumane and degrading treatment violating section 71 of the Constitution of Botswana. The Victim also indicated his intention to make an application for an interim interdict against the President and others to prevent them from signing his execution warrant while the above matters were awaiting resolution and without first affording him a fair hearing, in accordance with the principles of natural justice before the Committee as set out in section 55(1) of the Constitution. 9. The Complainants allege that the notice of motion was refused by the High Court on 7 December 2015. The Victim filed notice of his intention to appeal against the decision of the High Court with the Court of Appeal on 15 December 2015. The Victim requested that the Court of Appeal refer the matter back to the High Court to determine the substantive application for procedural rights relating to a clemency application or in the alternative, that the Court of Appeal itself determine the issues. 11. The Complainants submit that the Victim has never had a mental health assessment and as such, it cannot be ruled out that he suffers from a mental illness or intellectual or psycho-social disability that would preclude his execution under applicable norms of international law. Articles alleged to have been violated: 12. The Complainants allege violation of Articles 1, 4, 5, 7, 16 and 18 of the African Charter. Prayers: 13. The Complainants request the African Commission on Human and Peoples' Rights (the Commission) to issue Provisional Measures pursuant to Rule 98 of its Rules, to prevent irreparable harm to the Victim on account of the real and imminent risk of execution by hanging. 14. The Complainants further request the Commission to call on the Respondent State to adopt the following Provisional Measures: a. To provide a copy of the regulations governing the clemency process by the Respondent State in order that the Victim may meaningfully avail himself of his right to seek clemency; b. To provide written notice staying the Victim's impending execution until such a time as (i) all legal challenges-including those relating to the clemency processes and including proceedings before the Commission have been resolved, (ii) he has been afforded the opportunity to participate in a fair and meaningful clemency process operating in accordance with the principles of natural justice and domestic and international law, including sufficient time to be able to prepare his petition, (iii) the Victim and his family and lawyers have been informed of the outcome of his clemency process and if relevant, granted sufficient notice of his execution to allow him to make appropriate arrangements to prepare himself for his execution, spiritually and emotionally and (iv) the Respondent State has confirmed by means of a full mental health, intellectual and psycho-social assessment, that the Victim does not suffer from a mental illness or intellectual or psycho-social disability such as would render his execution in breach of Article 4 of the African Charter; c. To conduct or facilitate an independent assessment of the Victim's mental health and intellectual functioning in order to determine whether he does not or may suffer from a mental illness or intellectual or psycho-social disability such as would render his execution a breach of Article 4 of the African Charter. 16. At the 19th Extra-Ordinary Session, held from 16 to 25 February 2016 in Banjul, The Gambia, the Commission considered the Communication and decided to be seized thereof and issued provisional measures. 17. The Communication was declared admissible during the 24th Extra-Ordinary Session, held from 30 July to 08 August 2018, in Banjul, The Gambia. 18. On 18 September 2018, the Parties were informed of the decision to declare the Communication admissible. The letter to the Complainants also requested submission of arguments on the merits of the Communication within sixty (60) days of the notification, as required by Rule 108(1) of the Rules of Procedure (2010). 19. On 03 February 2021, the Complainants were informed that the Commission decided to grant 30 additional days to transmit the relevant submissions, failing which the Communication would be struck out for lack of diligent prosecution. 20. On 17 May 2021, the Secretariat informed the Complainants that the Communication would be tabled for striking out for want of diligent prosecution, on account of the failure to respond to the Commission's request for submissions on the merits of the Communication, and further that the deadline for doing so had passed. Analysis of the Commission on Strike Out: 21. Rule 108(1) of the Commission's Rule of Procedure (2010) provides that once a Communication has been declared admissible, the Commission shall set a period of sixty (60) days for the Complainant to submit observations on the merits. 22. Additionally, Rule 113 of the Commission's Rules of Procedure (2010) provides that when a deadline is fixed for a particular submission, either Party may apply to the Commission for an extension of the stipulated period and the Commission may grant the said application. 23. In the present Communication, on 18 September 2018 the Complainants were requested to present evidence and arguments on the merits of the Communication within two (2) months. Furthermore, the Complainants were granted an additional thirty (30) days to transmit the relevant submissions, failing which the Communication would be struck out for lack of diligent prosecution; however to date the Complainants have not presented any evidence and arguments within the stipulated time and neither did they apply for an extension. not have sufficient information upon which to determine the merits of the said Communication. 26. The Commission recalls the following jurisprudence which were similarly struck out for want of diligent prosecution, following failure of the Complainants to transmit submissions on the merits: Communication 336/2007: AFTRADEMOP and Global Welfare Association (on behalf of the Moko-oh Indigenous Peoples of Cameroon) v. Cameroon,2 Communication 321/2006: Law Society of Zimbabwe et a1/ Zimbabwe,3 Communication 285/2004: Mr Kizila Watumbulwa v. Democratic Republic of the Congo.4 Decision of the Commission on Strike Out 27. In the light of the analysis made above, the Commission decides to strike out this Communication against the Republic of Botswana, for want of diligent prosecution. 2 Communication 336/2007: AFTRADEMOP and Global Welfare Association (on beh�-Jf o Indigenous Peoples of Cameroon) v. Cameroon (2013) ACHPR 5 n 3 Communication 321/2006: Law Society of Zimbabwe et al/ Zimbabwe (2013) ACHPF. t 4 Communication 285/2004: Mr Kizila Watumbulwa/ Democratic Republic of the Co go ' ,.,,.-;; NON ,/4 ·'?''-' c: CP '? / ,..._":-' 5� ..., '10 l .q t:: �<-), -'�ICAJN\:. ' '•1,i,., ':.:-._<-£roEs ..... O