Two death row inmates have this week escaped the hangman’s noose with a whisker after close to 10 years since their case commenced.
The duo Gagotshwane Ramotlopi and Kabo Ngwako had a sigh of relief when High Court Judge Ranier Busang this week dismissed their case on grounds of lack of sufficient evidence linking them to the murder. In the judgement, delivered on the 28th February 2018, Justice Busang stated that “It is ordered as follows; (that) the accused persons are discharged and acquitted.” It is understood that the two accused persons, Ramotlopi and Ngwako were on the 27th August 2013 charged with the offence of murder contrary to section 202 of the Penal Code (Cap 08:01).
The particulars of the offence state that; “the accused persons, Gagotshwane and Ngwako, on or about the 12th day of August 2009, at Basarwa Lands, Molepolole, in the Kweneng Administrative District of the Republic of Botswana, acting together and in consent murdered Phologo Olefile.” The accused persons it is said in court papers that they pleaded not guilty.
In his judgement, Justice Busang stated that “it is clear that not all that the prosecution lists (in their submissions) are proved facts. Some are conclusions and opinions based on the prosecutor’s interpretation of the facts.” For instance, the Judge highlighted, they (prosecutors) concluded that ‘it was undisputed that it was clear that the bench (of the donkey cart used leading to murder) was one of the items used to assault the deceased’ which is also not a proved fact but an opinion of the prosecutors on what the probabilities are.
“The prosecutors have (also) conveniently omitted other proved fact, namely; shoe prints over-stepped the donkey cart’s tyre marks. The prosecution has not made an attempt to deal with these shoe prints and exclude any link between their owners and the alleged assault on the deceased.” According to the Judge, for the accused persons to be convicted as charged there must be a proof that the deceased’s death was occasioned by their actions, and there must also be evidence excluding other persons or other causes in the demise of the deceased.
The Court of Appeal (CoA), Justice Busang reminisced that they have cautioned that circumstantial evidence be used only when it is necessary and where there are no dangers of convicting the wrong persons when it (CoA) stated that; “it has been said time and again by courts in England and South Africa and Botswana that circumstantial evidence must always be narrowly examined.”
Before drawing the inference of the guilt of an accused from circumstantial evidence, Justice Busang said it is necessary for the court to be sure that there are no co-existing circumstances which would weaken or destroy the inference. He added that the co-existing circumstances that may weaken or destroy the inference are proved facts that are inconsistent with the inference sought to be drawn; and the evidence in this case point to the presence of persons other than the accused at the scene; after the accused persons had left.
“In my view it is not safe to convict a person of murder on the basis of circumstantial evidence, only because the accused person was the last person seen in the company of the deceased. The law requires more than that, and in this case the circumstantial evidence falls short of the threshold, as it does not link the accused persons with the death of the deceased.”
In a free society such as ours, the Judge explained that the people have the right and freedom to associate and acquaint with whomsoever they choose, without fear of being accused of commission of offence by association. He continued: “I have been invited to also draw an adverse inference against the first accused for his failure to testify. For the court to draw such inference there must be prima facie evidence pointing to the guilt of the accused which calls for an answer. In casu there was no evidence sought to be used against them fell far short of what is required.”
How the murder may have occurred
According to the Directorate of Public Prosecutions (DPP) submissions (or prosecutors), the murder started when the deceased (Olefile) left Mmapina Ngwako’s place (mother to Kabo) in the company of the accused persons to buy sugar at Moatlapedi’s place and they were later all spotted at the same place (Moatlapedi’s) drinking shake shake (sorghum beer) until they all left the dwelling at 9pm.
It is understood that they then left in the donkey cart which had a bench which was used when driving a donkey cart, and in the morning the deceased was found lying on the road naked, which is the road to their homestead. The prosecutors stated that the bench that they sat on when driving the donkey cart was found in pieces just by the deceased and it was undisputed that it was clear that the bench was one of the items used to assault the deceased (ending up killing the latter).
The donkey cart was found at Mmapina’s house the following day and it had been taken there by the accused persons, the prosecutors pointed out. The prosecutors further emphasized that “it is probable to conclude that the accused persons are the ones who killed the deceased or that they know the person who killed the deceased. Reasons being that these facts put together point directly to the accused persons that they are the ones who can give a reasonable explanation about the deceased’s death.”
Judge also tears down prosecutors for shabby work and delaying justice
According to the Judge, the record of proceedings from the Magistrate’s court shows that, the accused persons started appearing in court from as far back as 19th August 2009, a week after the alleged murder of the deceased. He said they were granted bail on the 2nd March 2010 and thereafter waited for three and eight months before being committed for trial at the High Court.
“It took the prosecution four years and fifteen days to charge them, since their arrest. It further took the prosecution another four months and three days between the indictment and committal for trial at the high Court. In the interim the accused persons became frequent guests at the Magistrates Court for mentions and status hearing, at monthly intervals,” the Judge fumed.
He also stressed out that “there is nothing on the record to explain why there was such an inordinate delay in bringing the accused for trial. I also see nothing to justify why accused persons, charged with such a serious offence have had to put up with charges hanging over their heads without being brought trial for more than four years. This state of affairs is intolerable and unacceptable.”
It is a cardinal principle of our criminal justice system that, Justice Busang continued, once a man is charged, he is constitutionally entitled to be prosecuted within a reasonable time. Meanwhile Detective Constable Mpho Lesife, as the investigating officer, gave evidence on the matter, alongside with others. In the case, Khumoetsile Tirelo from DPP stood in for the State, Unangoni Tema was representing murder accused Ramotlopi while Mooketsi Segaise was on behalf of Ngwako.
The United States (US) will on the 3rd of November 2020 chose between incumbent Donald Trump of the Republicans and former Vice President Joe Biden of the Democrats amid the coronavirus pandemics, which has affected how voting is conducted in the world’s biggest economy.
Trump (74) seeks re-election after trouncing Hillary Clinton in 2016, while Biden (77) is going for his first shot as Democratic nominee after previous unsuccessful spells.
US Presidents mostly succeed in their re-election bid, but there have been nine individuals who failed to garner a second term mandate, the latest being George W H. Bush, a Republican who served as the 41st US President between 1989 and 1993.
Dr Mark Rozell, a Dean of the School of Policy and Government at George Mason University in Arlington, Virginia describes the complex US electoral system that will deliver the winner at the 3rd November elections.
“The founders of our Republic de-centralised authority significantly in creating our constitutional system, which means that they gave an enormous amount of independent power and authority to State and local governments,” Dr Rozell told international media on Elections 2020 Virtual Reporting Tour.
Unlike parliamentary democracies, like Botswana the United States does not have all of the national government elected in one year. They do not have what is commonly called mandate elections where the entire federal government is elected all in one election cycle giving a “mandate” to a particular political party to lead, and instead US have what are called staggered elections, elections over time.
The two house Congress, members of the House of Representatives have two-year long terms of office. Every two years the entire House of Representatives is up for re-election, but senators serve for six years and one third of the Senate is elected every two years.
For this election cycle, US citizens will be electing the President and Vice
President, the entire House of Representatives and one third of the open or contested seats in the Senate, whereas two thirds are still fulfilling the remainder of their terms beyond this year.
An important facet of US electoral system to understand given the federalism nature of the republic, the US elect presidents State by State, therefore they do not have a national popular vote for the presidency.
“We have a national popular vote total that says that Hillary Clinton got three million more votes than Donald Trump or in Year 2000 that Al Gore got a half million more votes than George W. Bush, but we have what is called a State by State winner takes all system where each State is assigned a number of electors to our Electoral College and the candidate who wins the popular vote within each State takes 100 percent of the electors to the Electoral College,” explained Dr Rozell.
“And that is why mathematically, it is possible for someone to win the popular vote but lose the presidency.”
Dr Rozell indicated that in 2016, Hillary Clinton won very large popular majorities in some big population States like California, but the system allows a candidate to only have to win a State by one vote to win a 100 percent of its electors, the margin does not matter.
“Donald Trump won many more States by smaller margins, hence he got an Electoral College majority.”
Another interesting features by the way of US constitutional system, according to Dr Rozell, but extremely rare, is what is called the faithless elector.
“That’s the elector to the Electoral College who says, ‘I’m not going to vote the popular vote in my State, I think my State made a bad decision and I’m going to break with the popular vote,’’ Dr Rozell said.
“That’s constitutionally a very complicated matter in our federalism system because although the federal constitution says electors may exercise discretion, most States have passed State laws making it illegal for any elector to the Electoral College to break faith with the popular vote of that State, it is a criminal act that can be penalized if one is to do that. And we just had an important Supreme Court case that upheld the right of the states to impose and to enforce this restriction”
There are 538 electors at the Electoral College, 270 is the magic number, the candidate who gets 270 or more becomes President of the United States.
If however there are more candidates, and this happens extremely rarely, and a third candidate got some electors to the Electoral College denying the two major party candidates, either one getting a majority, nobody gets 270 or more, then the election goes to the House of Representatives and the House of Representatives votes among the top three vote getters as to who should be the next President.
“You’d have to go back to the early 19th century to have such a scenario, and that’s not going to happen this year unless there is a statistical oddity, which would be a perfect statistical tie of 269 to 269 which could happen but you can just imagine how incredibly unlikely that is,” stated Dr Rozell.
BLUE STATES vs RED STATES
Since the 2000 United States presidential election, red states and blue states have referred to states of the United States whose voters predominantly choose either the Republican Party (red) or Democratic Party (blue) presidential candidates.
Many states have populations that are so heavily concentrated in the Democratic party or the Republican party that there is really no competition in those states.
California is a heavily Democratic State, so is New York and Maryland. It is given that Joe Biden will win those states. Meanwhile Texas, Florida and Alabama are republicans. So, the candidates will spent no time campaigning in those states because it is already a given.
However there are swing states, where there is a competition between about five and 10 states total in each election cycle that make a difference, and that is where the candidates end up spending almost all of their time.
“So it ends up making a national contest for the presidency actually look like several state-wide contests with candidates spending a lot of time talking about State and local issues in those parts of the country,” said Dr Rozell.
High Commissioner of the Federal Government of Nigeria to Botswana, His Excellency Umar Zainab Salisu, has challenged President Dr Mokgweetsi Masisi to move swiftly and lobby Africa’s richest man, Nigerian Billionaire, Aliko Dangote to invest in Botswana.
Speaking during a meeting with President Masisi at Office of President on Thursday Zainab Salisu said Dangote has expressed massive interest in setting up billion dollar industries in Botswana. “We have a lot of investors who wish to come and invest in Botswana , when we look at Botswana we don’t see Botswana itself , but we are lured by its geographic location , being in the centre of Southern Africa presents a good opportunity for strategic penetration into other markets of the region,” said Salisu.
As murder cases and violent incidents involving couples and or lovers continue to be recorded daily, Specially Elected Member of Parliament, Dr Unity Dow has called for more funding of non-governmental organizations and accelerated action from government to come up with laws that could inhibit would-be perpetrators of crimes related to Gender Based Violence (GBV).
Just after Dr Dow had deposited her views on this subject with this reporter, a young man in Molepolole opened fire on a married woman he was having an affair with; and ended her life instantly. While it is this heinous cases that get projected to the public space, the former minister argues that the secrecy culture is keeping other real GBV cases under wraps in many spaces in the country.
The former Minister of Foreign Affairs and International Cooperation said there is GBV all the time in all kinds of places. “We have become accustomed to stories of rapes, marital rapes, defilement of children, beatings and psychological violence and even killings,” she said.
Gender-based violence is a phenomenon deeply rooted in gender inequality, Dow is worried that there is absolutely no social punishment for perpetrators; they will continue to have the same friends, jobs, wives, homes, as before. Yet another factor, she said, is that there is little or no “justice” for victims of GBV.
The renowned activist said justice for GBV victims is not just the jailing of the perpetrator. “Justice for victims means an agile, victim-friendly, accessible (time, money and procedures) and restorative justice system.”
Asked what could be leading to a spike in Gender Based Violence cases or incidents, she observed that there is no one factor to which this spike can be attributed. “The most obvious factor is stress as a result of economic distress and or poverty. Poverty makes one vulnerable and open to compromises that they would otherwise not make. For perpetrators with anger management issues, economic stress leads to lashing out to those closest to them. Another factor is the disintegration of families and family values,” she opined.
According to Dow, no government anywhere in the world is doing enough, period. “We know the places and spaces where women and girls are unsafe. We know the challenges they face in their attempts to exit those spaces and places.” The former Judge of the High Court said GBV undermines the health, dignity, security and autonomy of its victims, yet it remains shrouded in the culture of silence.
Asked what could be done to arrest GBV cases, Dow said it is critical to involve and fund civil society organizations. She observed that much of the progress done in the area of women’s human rights was during the time when Botswana had strong and funded civil society organizations.
“The funding dried up when Botswana was declared a middle-income country but unfortunately external funding was not replaced by local funding,” she acknowledged.
Further Dow said relevant government institutions must be funded and strengthened.
“Thirdly, create a society in which it is not okay to humiliate, rape, beat or kill women. You create this by responding to GBV the same way we have responded to livestock theft. We need to create agile mechanisms that hear cases quickly and allow for the removal of suspected perpetrators from their homes, work places, boards, committees, etc.”
The former Minister said the much anticipated Inter-Ministerial Task Force on Gender Based Violence will have its work cut out for it. According to Dow, GBV is not just a justice issue, it’s not just a gender issue, but rather an issue that cuts across health, education, labour, economic, housing and politics. “As long as any one believes it is someone else’s problem, we will all have the problem,” she said.
In her view, Dow said every work, educational and other place must have a GBV Policy and/or Code of Conduct. “It is important that we acknowledge that the majority of men are law-abiding. The problem is their silence, in the face of injustice,” she observed.