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Legal Opinion: Access to the Human Rights Committee for Mr. Mbhekwe in the Republic of
Kamarara
Introduction
The Movement Against Death Penalty (MADP) has approached you for advice regarding whether it
can institute legal proceedings on behalf of Mr. Mbhekwe before the Human Rights Committee
(HRC). Mr. Mbhekwe, who was convicted of murder and sentenced to death under the laws of the
Republic of Kamarara, challenges the constitutionality of the mandatory death penalty, asserting that
it violates several human rights provisions in the International Covenant on Civil and Political Rights
(ICCPR) and other international human rights instruments.
A) Procedural Issues
1. Kamarara's Ratification of International Instruments
The Republic of Kamarara, by ratifying the ICCPR and its First and Second Optional Protocols, has
made a commitment to uphold the rights guaranteed under the Covenant, including the right to life
and the abolition of the death penalty. Kamarara's obligations under international law are triggered
upon ratification of these instruments, which creates a legal obligation for the country to comply
with the provisions contained in these treaties.
In addition, Kamarara’s ratification of the Second Optional Protocol to the ICCPR, aiming at the
abolition of the death penalty, is particularly significant for this case. This protocol explicitly
commits state parties to work towards the abolition of the death penalty1 , except in very limited
circumstances, none of which appear to apply to Mr. Mbhekwe's case, as it does not involve wartime
crimes.
2. Locus Standi and Procedural Competence of the HRC
Under the First Optional Protocol to the ICCPR, individuals who claim that their rights under the
ICCPR have been violated can submit a complaint to the HRC, provided they have exhausted all
domestic remedies1 . The exhaustion of domestic remedies is a key admissibility requirement, which
Mr. Mbhekwe has met, as he has appealed through all levels of Kamarara's judiciary. The
Constitutional Court’s dismissal of his appeal on June 19, 2019, constitutes the final stage of his
domestic legal process, thereby allowing him to submit a communication to the HRC.
Although MADP, as an NGO, can assist in drafting and presenting the complaint, it cannot directly
initiate proceedings before the HRC on behalf of Mr. Mbhekwe. The communication must be lodged
by Mr. Mbhekwe, either personally or through a representative acting with his consent3 .
1: (UN, 1989)
2: (UN, 1966)
3: (LCP4801, Study Guide, p. 26)
Legal Opinion: Access to the Human Rights Committee for Mr. Mbhekwe in the Republic of
Kamarara
Introduction
The Movement Against Death Penalty (MADP) has approached you for advice regarding whether it
can institute legal proceedings on behalf of Mr. Mbhekwe before the Human Rights Committee
(HRC). Mr. Mbhekwe, who was convicted of murder and sentenced to death under the laws of the
Republic of Kamarara, challenges the constitutionality of the mandatory death penalty, asserting that
it violates several human rights provisions in the International Covenant on Civil and Political Rights
(ICCPR) and other international human rights instruments.
A) Procedural Issues
1. Kamarara's Ratification of International Instruments
The Republic of Kamarara, by ratifying the ICCPR and its First and Second Optional Protocols, has
made a commitment to uphold the rights guaranteed under the Covenant, including the right to life
and the abolition of the death penalty. Kamarara's obligations under international law are triggered
upon ratification of these instruments, which creates a legal obligation for the country to comply
with the provisions contained in these treaties.
In addition, Kamarara’s ratification of the Second Optional Protocol to the ICCPR, aiming at the
abolition of the death penalty, is particularly significant for this case. This protocol explicitly
commits state parties to work towards the abolition of the death penalty1 , except in very limited
circumstances, none of which appear to apply to Mr. Mbhekwe's case, as it does not involve wartime
crimes.
2. Locus Standi and Procedural Competence of the HRC
Under the First Optional Protocol to the ICCPR, individuals who claim that their rights under the
ICCPR have been violated can submit a complaint to the HRC, provided they have exhausted all
domestic remedies1 . The exhaustion of domestic remedies is a key admissibility requirement, which
Mr. Mbhekwe has met, as he has appealed through all levels of Kamarara's judiciary. The
Constitutional Court’s dismissal of his appeal on June 19, 2019, constitutes the final stage of his
domestic legal process, thereby allowing him to submit a communication to the HRC.
Although MADP, as an NGO, can assist in drafting and presenting the complaint, it cannot directly
initiate proceedings before the HRC on behalf of Mr. Mbhekwe. The communication must be lodged
by Mr. Mbhekwe, either personally or through a representative acting with his consent3 .
1: (UN, 1989)
2: (UN, 1966)
3: (LCP4801, Study Guide, p. 26)
