A panel of three Court of Appeal (CoA) judges has yesterday sentenced to death the Francistown born Uyapo Poloko, 37, for killing Vijeyadeyi Kandavanam in 2015. Poloko is now waiting upon the hang man’s time at the Maximum Prison.
He had on January 25, 2010 at Ntshe in Francistown, murdered Vijeyadeyi Kandavanam and stole from Balasingham Kandavanam cellphones worth P3 500. He was last year convicted and sentenced to death by the High Court. Poloko then tried his luck before the CoA last appealing his conviction and sentence. But the three judges would not spare him the hang man’s nose as they confirmed his death sentence.
Delivering the judgment, Judge Gaongalelwe carried that neither the accused nor the prosecution bears any duty to convince the courtof the existence of extenuating circumstance. He noted that the court is entitled to travel far and wide completely unrestricted by considerations of procedure and strict admissibility. He however dismissed the existence of such factors that would warrant leniency in Poloko’s case. ”In this case there is nothing to suggest anything in relation, for example to provocation, intoxication nor immaturity,” ruled Judge Gaongalelwe.
Judge Gaongalelwe stated that Poloko had come to the deceased’s house to rob. He knew that Balasingnam had been paid P8000 for the car. “He equipped himself with a length of rope with which to strangle Balasingham . having immobilized Balasingham, he ransacked the house after strangling the deceased. He was prepared to use violence, even fatal violence, to achieve his purpose,” Judge Gaongalelwe noted.
The background of the case is that Balasingham and Poloko were known to one another all along prior to the day of the incident. They were both in the building industry though working for different companies. Balasingham used to do works for his own company where he was a managing director, while Poloko used to be employed by other private companies. The two were ordinarily resident in Francistown.
In his heads of arguments Poloko had through his attorney Tshekiso Thekiso of Tshekiso Ditiro & Jani Legal Practice complained that his right to a fair trial by an impartial court had been violated. He said the trial court failed to exercise its discretion for it to administer justice and arrive at a just and fair decision by subpoenaing witnesses who were not called by the state and the then defence attorney whose evidence was crucial to the case.
On their part the state had urged the court to dismiss Poloko’s agruments and hang him to death. The Court Of Appeal (CoA) will on Tuesday hear the arguments in a case in which a two year -death row inmate wants his death sentence to be set aside, insisting that the trial court erred in convicting him. The man was in 2015 convicted of a single count of murder without extenuating circumstances, attempted murder and theft and was subsequently sentenced to death.
He had on January 25, 2010 at Ntshe in Francistown, murdered Vijeyadeyi Kandavanam, attempted to kill Balasingnam Kandavanam and stole cellphones worth P3 500. In his heads of arguments filed before the CoA, Poloko had through his attorney Tshekiso Thekiso of Tshekiso Ditiro & Jani Legal Practice complained that the appellant’s right to a fair trial by an impartial court had been violated. He said the trial court failed to exercise its discretion for it to administer justice and arrive at a just and fair decision by subpoenaing witnesses who were not called by the state and the then defence attorney whose evidence was crucial to the case.
These, he said, were the security officers employed by the person whom his client is said to have attempted to kill as well as the officer who attended the site visit and project handover. “The evidence of these witnesses was crucial to the issue of whether the appellant went to the complaint’s premises on the morning of 25th January 2010. It matters not that the state and the defence in their own wisdom chose not to call these witnesses. What matters is that the trial court had a duty to render a just decision and in doing so, it had discretion to call these persons to testify,” states Thekiso in his arguments.
Thekiso stressed that though he has no doubt as to the integrity of the trial judge and his ability as a judge, “this appears to me to be a case in which the judge made an innocent error in judgment. The error of judgment does however; create an impression that he had prejudged the matter that served before him before it was concluded. It does create a reasonable likelihood of bias.”
He went on to argue that the state was allowed to submit inadmissible confession before court. They went out on a deliberate plan to squeeze an inadmissible confession in to the record through the back door, he decries. He said the allegation by the state that his client confessed to strangling Balasingnam was not a statement to the witness but a statement to the police. “The alleged confession, he said might have been told to the court by a non-police officer, but on the record, it was made to a police officer.”
Thekiso had during the last session of the CoA applied to be granted permission to give additional evidence but was dismissed. The appellant was represented by a different attorney during trial. On their part the state has urged the court to dismiss Poloko’s agruments and hang him to death. The state added that the extenuating factors that the defence claims apply in their case; do not fall in the criteria of factors to be taken to account.
An international report complied in South Africa dubbed ‘Legal Gender Recognition in Botswana’ says that the transgender and gender non-conforming people in Botswana live a miserable life. The community experiences higher levels of discrimination, violence and ill health.
In this report, it has been indicated that this is because their gender identity, which does not conform to narrowly define societal norms, renders them more vulnerable. Gender identity is a social determinant of health, which means that it is a factor that influences people’s health via their social context, their communities and their experiences of social exclusion. The Ministry of Health and Wellness has recognized this, and transgender people are considered a vulnerable population under the Botswana Second National Strategic Framework for HIV and AIDS 2010-2017.
In a recent study that shed light on the lived experiences of transgender and gender non-conforming people in Botswana, transgender persons often experience discrimination because of their gender identity and expression. The study was conducted by the University of Cape Town, LEGABIBO, BONELA, as well as Rainbow Identity Association and approved by the Health Ministry as well as the University of Botswana.
Of the 77 transgender and gender non-conforming people who participated in the study, less than half were employed. Two thirds, which is approximately 67% said that they did not have sufficient funds to cover their everyday needs. Two in five had hidden health concerns from their healthcare provider because they were afraid to disclose their gender identity.
More than half said that because of their gender identity, they had been treated disrespectfully at a healthcare facility (55%), almost half (46%) said they had been insulted at a healthcare facility, and one quarter (25%) had been denied healthcare because of their gender identity.
At the same time, the ‘Are we doing right’ study suggests that transgender and non-conforming people might be at higher risks of experiencing violence and mental ill-health, compared to the general population. More than half had experienced verbal embarrassment because of their gender identity, 48% had experienced physical violence and more than one third (38%) had experienced sexual violence.
The study showed that mental health concerns were high among transgender and gender non-conforming people in Botswana. Half of the transgender and gender non-conforming study participants (53%) showed signs of depression. Between one in four and one in six showed signs of moderate or severe anxiety (22% among transgender women, 24% among transgender men and 17% among gender non-conforming people).
Further, the study revealed that many had attempted suicide: one in three transgender women (32%), more than one in three transgender men (35%) and three in five gender non-conforming people (61%).
International research, as well as research from Botswana, suggests that not being able to change one’s gender marker has a negative impact on access to healthcare and mental health and wellbeing. The study further showed that one in four transgender people in Botswana (25%) had been denied access to healthcare. This is, at least in part, linked to not being able to change one’s gender marker in the identity documents, and thus not having an identity document that matches one’s gender identity and gender expression.
In its Assessment of Legal and Regulatory Framework for HIV, AIDS and Tuberculosis, the Health Ministry noted that “transgender persons in Botswana are unable to access identity documents that reflect their gender identity, which is a barrier to health services, including in the context of HIV. In one documented case, a transwoman’s identity card did not reflect her gender identity- her identity card photo indicated she was ‘male’. When she presented her identity card at a health facility, a health worker called the police who took her into custody.”
The necessity of a correct national identity document goes beyond healthcare. The High Court of Botswana explains that “the national identity document plays a pivotal role in every Motswana’s daily life, as it links him or her with any service they require from various institutions. Most activities in the country require every Motswana to produce their identity document, for identification purposes of receiving services.”
According to the Legal Gender Recognition in Botswana report, this effectively means that transgender, whose gender identity and expression is likely to be different from the sex assigned to them at birth and from what is recorded on their identity document, cannot access services without risk of denial or discrimination, or accusations of fraud.
In this context, gays and lesbians advocacy group LEGABIBO has called on government through the Department of Civil and National Registration to urgently implement the High Court rulings on gender marker changes. As stated by the High Court in the ND vs Attorney General of Botswana judgement, identity cards (Omang) play an important role in the life of every Motswana. Refusal and or delay to issue a Motswana with an Omang is denying them to live a complete and full-filing life with dignity and violates their privacy and freedom of expression.
The judgement clarified that persons can change their gender marker as per the National Registrations Act, so changing the gender marker is legally possible. There is no need for a court order. It further said the person’s gender is self-identified, there is no need to consult medical doctors.
LEGABIBO also called on government to develop regulations that specify administrative procedure to change one’s gender marker, and observing self-determination process. Further, the group looks out for government to ensure members of the transgender community are engaged in the development of regulations.
“We call on this Department of Civil and National Registration to ensure that the gender marker change under the National Registration Act is aligned to the Births and Deaths Registry Act to avoid court order.
Meanwhile, a gay man in Lobatse, Moabi Mokenke was recently viciously killed after being sexually violated in the streets of Peleng, shockingly by his neighbourhood folks. The youthful lad, likely to be 29-years old, met his fate on his way home, from the wearisome Di a Bowa taverns situated in the much populated township of Peleng Central.
CEO of Khato Civils Mongezi Mnyani has come out of the silence and is going all way guns blazing against the company’s adversaries who he said are hell-bent on tarnishing his company’s image and “hard-earned good name”
Speaking to WeekendPost from South Africa, Mnyani said it is now time for him to speak out or act against his detractors. Khato Civils has done several projects across Africa. Khato Civils, a construction company and its affiliate engineering company, South Zambezi have executed a number of world class projects in South Africa, Malawi and now recently here in Botswana.
About ten (10) Umbrella for Democratic Change (UDC) parliamentary candidates who lost the 2019 general election and petitioned results this week met with UDC Vice President, Dumelang Saleshando to discuss the way forward concerning the quandary that is the legal fees put before them by Botswana Democratic Party (BDP) lawyers.
For a while now, UDC petitioners who are facing the wrath of quizzical sheriffs have demanded audience with UDC National Executive Committee (NEC) but in vain. However after the long wait for a tete-a-tete with the UDC, the petitioners met with Saleshando accompanied by other NEC members including Dr. Kesitegile Gobotswang, Reverend Mpho Dibeela and Dennis Alexander.