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.
While there is no hard-and-fast rule in politics, former Molepolole North Member of Parliament, Mohamed Khan says populism acts in the body politic have forced him to quit active partisan politics. He brands this ancient ascription of politics as fake and says it lowers the moral compass of the society.
Khan who finally tasted political victory in the 2014 elections after numerous failed attempts, has decided to leave the ‘dirty game’, and on his way out he characteristically lashed at the current political leaders; including his own party president, Advocate Duma Boko. “I arrived at this decision because I have noticed that there are no genuine politics and politicians. The current leaders, Boko and President Dr Mokgweetsi Masisi are fake politicians who are just practicing populist politics to feed their egos,” he said.
Former Botswana Democratic Party (BDP) parliamentary hopeful, Lawrence Ookeditse has rejected the idea of taking up a crucial role in the Botswana Patriotic Front (BPF) Central Committee following his arrival in the party this week. According to sources close to development, BPF power brokers are coaxing Ookeditse to take up the secretary general position, left vacant by death of Roseline Panzirah-Matshome in November 2020.
Ookeditse’s arrival at BPF is projected to cause conflicts, as some believe they are being overlooked, in favour of a new arrival. The former ruling party strategist has however ruled out the possibility of serving in the party central committee as secretary general, and committed that he will turn down the overture if availed to him by party leadership.
Ookeditse, nevertheless, has indicated that if offered another opportunity to serve in a different capacity, he will gladly accept. “I still need to learn the party, how it functions and all its structures; I must be guided, but given any responsibility I will serve the party as long as it is not the SG position.”
“I joined the BPF with a clear conscious, to further advance my voice and the interests of the constituents of Nata/Gweta which I believe the BDP is no longer capable to execute.” Ookeditse speaks of abject poverty in his constituency and prevalent unemployment among the youth, issues he hopes his new home will prioritise.
He dismissed further allegations that he resigned from the BDP because he was not rewarded for his efforts towards the 2019 general elections. After losing in the BDP primaries in 2018, Ookeditse said, he was offered a job in government but declined to take the post due to his political ambitions. Ookeditse stated that he rejected the offer because, working for government clashed with his political journey.
He insists there are many activists who are more deserving than him; he could have chosen to take up the opportunity that was before him but his conscious for the entire populace’s wellbeing held him back. Ookeditse said there many people in the party who also contributed towards party success, asserting that he only left the BDP because he was concerned about the greater good of the majority not individualism purposes.
According to observers, Ookeditse has been enticed by the prospects of contesting Nata/Gweta constituency in the 2024 general election, following the party’s impressive performance in the last general elections. Nata/Gweta which is a traditional BDP stronghold saw its numbers shrinking to a margin of 1568. BDP represented by Polson Majaga garnered 4754, while BPF which had fielded Joe Linga received 3186 with UDC coming a distant with 1442 votes.
There are reports that Linga will pave way for Ookeditse to contest the constituency in 2024 and the latter is upbeat about the prospects of being elected to parliament. Despite Ookeditse dismissing reports that he is eying the secretary general position, insiders argue that the position will be availed to him nevertheless.
Alternative favourite for the position is Vuyo Notha who is the party Deputy Secretary General. Notha has since assumed duties of the secretariat office on the interim basis. BPF politburo is expected to meet on 25th of January 2020, where the vacancy will be filled.
Botswana Democratic Party (BDP) big wigs have decided to cancel a retreat with the party legislators this weekend owing to increasing numbers of Covid-19 cases. The meeting was billed for this weekend at a place that was to be confirmed, however a communique from the party this past Tuesday reversed the highly anticipated meeting.
“We received a communication this week that the meeting will not go as planned because of rapid spread of Covid-19,” one member of the party Central Committee confirmed to this publication. The gathering was to follow the first of its kind held late last year at party Treasurer Satar Dada’s place.