The African Commission has issued a statement condemning the execution of Mr Tselayarona. In it, the African Commission mentions the death penalty “may” be a violation of Article 4 of the African Charter whilst stating that Article 5 of the African Charter prohibits cruel, inhuman or degrading punishment in broad terms. It does not however reference its own decision on this very issue, involving the exact same country.
Botswana’s failure to not only remove the death penalty but at the very least abstain from using the very mode of execution which the African Commission has decided is in violation of the African Charter merits a further response from the African Commission. But what can be done? The African Commission can send cases to the African Court on Human and Peoples’ Rights (see Rules 118 of the African Commission Rules). However, from the wording of the African Commission rules and the African Court’s reciprocal rules, it appears Botswana must have at the very least signed up to the African Court by signing the African Court Protocol. At present Botswana has not, and therefore a formal transfer from the African Commission to the African Court of the 2015 decision for, say, non-compliance seems off the cards.
Therefore, the matter likely remains within the African Commission’s jurisdiction. One option now is for the African Commission to issue a formal resolution calling on Botswana to implement its 2015 decision and no longer use hanging as a method of execution. Could this resolution be applied to all 55 African Union member states? Possibly. The African Commission has issued such a office 365 database resolution once before to my knowledge. In November 2009, the African Commission considered the case of Endorois v. Kenya. In this case, the Endorois people alleged violations resulting from their displacement from their ancestral lands around Lake Bogoria, Kenya and Kenya’s failure to adequately compensate them. The African Commission found in the Endorois peoples’ favour, ruling Kenya had violated numerous articles of the African Charter, and recommended several ways to rectify the situation. It appears that Kenya did little to implement the African Commission’s recommendations, and so in November 2013 the African Commission issued a resolution calling on Kenya to implement its recommendations.
Whether the resolution issued in (although it appears that the next time a Kenyan case involving indigenous peoples’ came before the African Commission it transferred the case to the African Court proprio motu). In the current Botswana situation, where we have the same country using precisely the same form of execution found by the African Commission to be in violation of the African Charter, it seems the very least the African Commission should do is issue a similar resolution. Such action would at least go some way to ensuring we are not faced with similar cases such as those of Mr Ping and Mr Tselayarona. It may be a small step, but it would be a start.