Two Times Too Many: Botswana and the Death Penalty
Posted: Tue Feb 18, 2025 4:25 am
Without wanting to trivialise the hard work needed to litigate human rights cases, it is often implementation that is considered the pinnacle of achievement. Put simply, it is one thing to convince a commission or court that a countries’ policies or actions contravene a human rights instrument, it is quite another for that country to implement the decision. A blog post therefore about another failure by another country to implement another human rights decision may not immediately pique the interest of EJIL:Talk! Readers. But I hope this case might just do so.
In November 2015, the African Commission on Human and Peoples’ Rights rendered a decision following a case brought by NGOs Interights and Ditshwanelo acting on behalf of detainee Mr Oteng Modisane Ping, challenging Botswana’s use of the death penalty. The complainants alleged, inter alia, that the death penalty is by its very nature a violation of Article 4 (right to life) of the African Charter on Human and Peoples’ Rights. In addition, they argued that Botswana’s specific death penalty procedures also violated of Articles 1, 4 and 5 of the African Charter. In particular, they contended that hanging violated the prohibition of torture and cruel, inhuman and degrading treatment under Article 5 of the African Charter.
Whilst the African Commission did not go so far as to declare the death penalty itself in contravention of the African Charter, it did pronounce that the use of hanging as a method of execution violated Article 5 of the African Charter (the decision can be accessed here, see in particular paragraph 87). This pronouncement was lauded by many as a significant step towards the eradication of the death penalty in Africa, since hanging is a form of execution favoured by several African countries. (Although it should be noted that the African Commission does not render binding decisions like its judicial cousin the African Court on Human and Peoples’ Rights, but rather recommendations.)
Despite this apparent victory however, the applicant, Mr Ping, was in fact truemoney database executed. How did this happen? The decision explains that despite the African Commission using its powers to issue provisional measures preventing execution pending the outcome of the case, a temperamental fax machine prevented this decision being sent directly to the Botswana Office of the President. The provisional measure order to halt the execution therefore never reached Botswanan officials, who went ahead with the execution (yes, you read that correctly, see paragraph 24 of the decision).
So, whilst this decision was rightly lauded, the inescapable tragedy of Mr Ping’s death remains. However, with the decision having been in place and available on the African Commission website for some time, and no doubt with the Botswanan government for years, one could perhaps safely assume that at the very least we would not see an execution by hanging in Botswana any time soon.
Sadly, however news reached us last month that Botswana had executed Joseph Poni Tselayarona; seemingly the first execution since Mr Ping. The reported method of execution? Hanging. As I mentioned at the beginning of this post, another country not implementing a human rights decision may not be particularly novel, but where it involves the use of a form of execution specifically outlawed, involving the very same country subject to the previous decision, this a case worth highlighting.
In November 2015, the African Commission on Human and Peoples’ Rights rendered a decision following a case brought by NGOs Interights and Ditshwanelo acting on behalf of detainee Mr Oteng Modisane Ping, challenging Botswana’s use of the death penalty. The complainants alleged, inter alia, that the death penalty is by its very nature a violation of Article 4 (right to life) of the African Charter on Human and Peoples’ Rights. In addition, they argued that Botswana’s specific death penalty procedures also violated of Articles 1, 4 and 5 of the African Charter. In particular, they contended that hanging violated the prohibition of torture and cruel, inhuman and degrading treatment under Article 5 of the African Charter.
Whilst the African Commission did not go so far as to declare the death penalty itself in contravention of the African Charter, it did pronounce that the use of hanging as a method of execution violated Article 5 of the African Charter (the decision can be accessed here, see in particular paragraph 87). This pronouncement was lauded by many as a significant step towards the eradication of the death penalty in Africa, since hanging is a form of execution favoured by several African countries. (Although it should be noted that the African Commission does not render binding decisions like its judicial cousin the African Court on Human and Peoples’ Rights, but rather recommendations.)
Despite this apparent victory however, the applicant, Mr Ping, was in fact truemoney database executed. How did this happen? The decision explains that despite the African Commission using its powers to issue provisional measures preventing execution pending the outcome of the case, a temperamental fax machine prevented this decision being sent directly to the Botswana Office of the President. The provisional measure order to halt the execution therefore never reached Botswanan officials, who went ahead with the execution (yes, you read that correctly, see paragraph 24 of the decision).
So, whilst this decision was rightly lauded, the inescapable tragedy of Mr Ping’s death remains. However, with the decision having been in place and available on the African Commission website for some time, and no doubt with the Botswanan government for years, one could perhaps safely assume that at the very least we would not see an execution by hanging in Botswana any time soon.
Sadly, however news reached us last month that Botswana had executed Joseph Poni Tselayarona; seemingly the first execution since Mr Ping. The reported method of execution? Hanging. As I mentioned at the beginning of this post, another country not implementing a human rights decision may not be particularly novel, but where it involves the use of a form of execution specifically outlawed, involving the very same country subject to the previous decision, this a case worth highlighting.