Judge questions legality of death penalty in Bots


Gabarone – A high Court Judge in Botswana has questioned the wisdom and legality of the death penalty in the country, describing the act as unconstitutional.

Justice Tshepho Motswagole of the Lobatse High Court, 70 kilometres from the capital Gaborone, questioned the legality of capital punishment when he was passing judgment in a case where one Rodney Masoko was accused of killing his girlfriend in 2006.

In a 200-page verdict on October 7, 2013, Justice Motswagole said while the full bench of the Court of Appeal has unanimously held the death penalty to be constitutional, it is yet to express opinion on the constitutional underpinning of the death penalty sentencing scheme prevalent in Botswana.

“For this reason, I am at liberty to pursue a new discourse in our jurisprudence during which some of the prevailing thought will be put to test in the light of our constitution and constitutional jurisprudence within the common law traditions,” said the judge.

Scrapping off Section 203 of the Penal Code, which prescribes death penalty, Justice Motswagole said he had considered whether Section 203 can be severed by striking out some portions thereof while preserving others but came to the conclusion that none of the three subsections thereof can stand alone and still serve the purpose for which it was intended.

“Subs. 1 of s. 203 of CAP. 08:01 essentially provides for a mandatory death sentence and it will be objectionable for excluding the consideration of the personal circumstances of murder convicts. Subs. 2 & 3 are intertwined and if subs. 2 is objectionable as stated above, then the latter subsection must fall with it as it is dependent on the former,” said Justice Motswagole.

According to the judge, it is up to Parliament to come up with a solution that is compatible to the Constitution.

“In conclusion, therefore, I am left with no choice but to declare s. 203 of CAP. 08:01 contrary to ss. 3(a), 7(1), 10(1), 10(7), 10(8), 15(1) & 55 of the Constitution,”

The Judge also found that the problem with Section 203 is that it does not afford the persons convicted of murder equal treatment and equal opportunity, and it seriously undermines the individualisation of the enquiry on the imposition of the ultimate penalty by excluding well-known sentencing principles and usual mitigating factors.

Motswagole said it was unfair for a person convicted of murder with no extenuating circumstances not to mitigate while the one convicted of murder with extenuating circumstances is allowed to mitigate.

He said it was grossly unfair to demand of the murder convict to show that he is not death-worthy and at the same time forbid him to produce factors that can persuade the trial judge not to impose the death penalty.

“One should bear in mind that all persons convicted of any crime are permitted to present all mitigating factors before sentencing including the fact that one is a first offender, remorseful and had had pre-trial or pre-conviction incarceration.

“Yet one convicted of murder without extenuation circumstances is singularly singled out for an unfair, inequitable, unequal and discriminatory treatment by exclusion of the relevant factors. I cannot find any legitimate State interest for this unfair, discriminatory and unequal treatment,” he said.

Motswagole explained that he was unable to “see how one’s mouth can be shacked and at the same time expect the person to show that he or she is not death worthy but this is exactly what is being done pursuant to section 203(2).”

He added that people have different backgrounds and upbringings and are impacted differently by such that their reaction to a set of circumstances may differ markedly.

“The effect of these differences can only be appreciated in an open and broadsided enquiry in which all the information as to the record and character of the accused is availed as well as the employment of interdisciplinary approach,” the judge noted.

Motswagole said by virtue of section 3 (a) of the Constitution, every individual is equal before the law and has the right to the equal protection and equal benefit of the law.

“The constitutional demands for equality of persons before and under the law, equal benefit, and protection, of the law and the obligation to satisfy the due process before deprivation of life, liberty and proprietary interests can only be satisfied in an environment where no part of the accused character and attributes is by definition excluded from the investigation of the sentencing authority.”

The Judge noted that said the denial of one convicted murder of the opportunity to show the trial court that he is a first offender and capable of reform at extenuation stage and then allowing another to do so subsequently at the sentencing stage amount to unequal treatment and or unequal benefit, and protection, of the law contrary to section 3(a) and 10(1) of the Constitution.

Motswagole observed that it was the duty of the court to uphold rights and freedoms conferred by the Constitution and to narrow down the effect of any law that seeks derogation from it.

The latest judgment by the High Court is expected to spark debate on a subject that is deemed controversial in the country.

Since independence from Britain in 1966, Botswana has executed more than a fourth of condemned prisoners.

October 2013
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