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Two Death row inmates acquitted

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.

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7th December 2021
President Dr Mokgweetsi Masisi

President Dr Mokgweetsi Masisi has identified at least 12 cabinet ministers who form part of his long-term plans owing to their loyalty and tenacity in delivering his vision. Masisi, who will see-off his term in 2028 — provided he wins re-election in 2024 — already knows key people who will help him govern until the end of his term, WeekendPost has learnt.

Despite negative criticism towards ministers from some quarters over a number of decisions and their somewhat cold deliberations and failure to articulate government programs, Masisi is said to be a number one cheer leader of his cabinet. He is said to have more confidence in his cabinet and believes going forward they will reach the aspired levels and silence the critics.

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Free at last: Ian Kirby Speaks Out

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WeekendPost: Why did you move between the Attorney General and the Bench?

Ian Kirby: I was a member of the Attorney General’s Chambers three times- first in 1969 as Assistant State Counsel, then in 1990 as Deputy Attorney General (Civil), and finally in 2004 as Attorney General. I was invited in 2000 by the late Chief Justice Julian Nganunu to join the Bench. I was persuaded by former President Festus Mogae to be his Attorney General in 2004 as, he said, it was my duty to do so to serve the nation. I returned to the Judiciary as soon as I could – in May 2006, when there was a vacancy on the High Court Bench.

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Civil society could rescue Botswana’s flawed democracy’ 

6th December 2021
Parliament

Botswana’s civil society is one of the non-state actors that could save the country’s democracy from sliding into regression, a Germany based think tank has revealed.  This is according to a discussion paper by researchers at the German Development Institute who analysed the effects of e-government usage on political attitudes In Botswana.

In the paper titled “E-government and democracy in Botswana: Observational and experimental evidence on the effects of e-government usage on political attitudes,” the researchers offer a strongly worded commentary on Botswana’s ‘flawed democracy.’  The authors noted that with Botswana’s Parliament structurally – and in practice – feeble, the potential for checks and balances on executive power rests with the judiciary.

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