An international human rights organization, based in the United Kingdom, which works for the abolition of the death penalty, Reprieve, has written to the African Union Commission asking them to contact the Botswana government and find out why Patrick Gabaakanye was executed “in breach of the provisional measures”.
Gabaakanye, 65 from Marulamantsi ward in Serowe was executed on May 25 at Gaborone Central Prison following a conviction for the murder of a 75-year-old man at Gamosu land in Metsimotlhabe in 2010.
George Havenhand who is a case lawyer (Solicitor of England and Wales) from the international human rights organization stated: “We are looking into what steps to take in respect of our admissibility submissions in light of Patrick’s execution.”
The case work lawyer Havenhand told United Nations (UN) resident Coordinator in Botswana Anders Pedersen in a confidential e-mail seen by this publication, that “in particular, we are very concerned that Patrick appears to have been executed without a mental health assessment in circumstances where there were serious concerns about his mental health and intellectual functioning; that no decision appears to have been made on Patrick’s mercy petition; that the execution, like all executions in Botswana, was shrouded in secrecy, without prior notification given to family or lawyers, and in violation of international law; and that the execution was in breach of the African Commission’s provisional measures.”
Another casework lawyer (Solicitor of England and Wales), at Reprieve Zoe Bedford, wrote to Pedersen through e-mail on the African Commission proceedings.
She stated: “we have raised a number of issues, including the way in which executions are carried out by Botswana (addressing the secrecy, lack of notice and failure to allow access to the body), the execution method (hanging), the failure to conduct a mental health assessment and consequent risk of executing the mentally ill / intellectually disabled and the lack of due process (including not allowing sufficient time to prepare a clemency petition, the absence of rules governing the clemency process and the refusal to confirm that it will provide a copy of the clemency decision with reasoning).”
Weekend Post has established that through his attorneys, Gabaakanye had repeatedly made the Botswana authorities particularly President Dr. Lt. Gen. Seretse Khama Ian Khama aware that he will pursue his complaint before the AU Commission and requested that his execution be ‘stayed’ pending the resolution of the issues, in accordance with the provisions of the African Charter and international law.
However, he received no response from the government on his requests, until he was executed. His attorney Martin Dingake of Dingake Law Partners had made multiple requests for a mental health assessment for Gabaakanye, all of which have either been denied or ignored.
“As you may recall from your meeting with Martin and Harriet, there are real concerns about Patrick’s mental health and intellectual functioning, supported by a preliminary report from a forensic psychologist conducted on the basis of interview transcripts tests administered by Harriet and Martin,” Bedford highlighted to the UN Resident Coordinator in Botswana.
However, she said that there were no assessment of Patrick’s mental health carried out by the Botswana authorities and as such, that there is a real risk that his execution was in violation of international law.
However in terms of clemency procedure in Botswana, she said, there was a ruling which established various procedural rights which did not previously exist in Botswana, marking a positive development in capital jurisprudence in Botswana.
Among other things, she stated that the ruling established that: it is obligatory for the Advisory Committee on the Prerogative of Mercy to meet to consider every clemency petition and there is a constitutional right to petition for clemency and have his petition considered. She added that in order for the prisoner to exercise this constitutional right, it is necessary to provide prodeo counsel to advice on and prepare the clemency petition.
Indications suggest that domestic court rulings and rulings by the African Commission on Human and People’s Rights indicate that in Botswana, courts must consider mitigating and aggravating circumstances relevant to an offender’s culpability and moral blameworthiness in committing the specific offence.“This indicates some discretion in sentencing.”
According to a Deputy Director, Death Penalty Team (Solicitor of England and Wales) Harriet McCulloch, who is also placed at the human rights organization Reprieve reminded Pedersen; “international law requires that clemency procedures should adhere to minimum due process requirements but in Botswana, there were no due process protections provided in law or practice.”
In 2001, a South African national Marriette Bosch was also executed for murder by hanging for the murder of Maria Magdalene Wolmarans while her petition for clemency was pending with the African Commission on Human and Peoples’ Rights.
Meanwhile, in the classified e-mail, Pedersen who is also United Nations Development Programme (UNDP) Resident Representative in Botswana also expressed shock to the developments that Botswana’s death row inmate Gabaakanye eventually was executed.
“We are certainly aware of the fact that the execution most ‘unfortunately’ did take place,” he stated in the e-mail conversation on Friday, May 27, 2016 just two days after Gabaakanye’s execution.
Pedersen was responding to Havenhand as they were having an exchange at the (then) impending execution of Gabaakanye.
The confidential long e-mail communication was between Reprieve Casework lawyers, local human rights organization Ditshwanelo, Dingake Law Partners and Pedersen. They were assisting to facilitate Gabaakanye’s petition for clemency and/or pardon under “provisional measures”.
Professor Babcock who is an international expert on the death penalty, Bedford, Ditshanwelo, Doughty Street chambers and Christof Heyns, worked on the complaint to the African Commission on various issues, including the failure of the State to conduct a mental health assessment at any stage of the proceedings.
The Constitution of Botswana establishes an Advisory Committee on the Prerogative of Mercy, which advises the President to pardon or commute death sentences. It is understood that the Committee may only be summoned by the President, but the President is compelled to summon the Committee for every sentence of death.
The Constitution and the Criminal Procedure and Evidence Act both state that the President may pardon any offense. Before anyone is executed, the President must approve the death sentence.
Gabaakanye was convicted for murder in 2010 and his appeal against conviction and sentence was dismissed by the Court of Appeal on July 30 last year.
Capital punishment is commonly used in Botswana, one of a few democracies which continue the practice. The nation debate on death penalty will continue to occupy the national discourse for a long time to come as citizens are evidently torn apart – some support the practice while others abhor it.
The Human Rights Committee has previously observed that Botswana should ensure that the death penalty is applied for only the most serious crimes, with an eventual goal of “abolition”.
The Committee recommended that Botswana make available complete information on the application of the death penalty, such as “the number of convictions for murder, the number of and reasons for the courts’ findings of mitigating circumstances, the number of death sentences imposed by the courts, and on the number of the persons executed year by year.”
The European Union has also called on Botswana to “rethink” death penalty.“Following the recent execution of Patrick Gabaankanye, in Gaborone, Botswana, the European Union recalls its opposition to the use of capital punishment which can never be justified. The European Union believes that the death penalty is a cruel and inhumane punishment and has consistently called for its universal abolition,” the EU said through a statement.
Special Economic Zone Authority’s (SEZA) P126 million Master Planning of Pandamatenga Special Economic Zones Business Case, Urban & Landscapes tender is in court after one of bidders, Moralo Design challenged its disqualification from the tender.
SEZA is transforming Pandamatenga into an Agropolis which will combine modern farming with top notch industrial, residential, commercial and recreational land use. The project is measured at 137, 007 ha which comprises of 84, 500 ha for commercial production, 12 400 ha for the subsistence production, 107 ha will be for Agro-processing while 40 000 ha will be for the Zambezi Integrated Agro-commercial Project (ZIACDP).
In their court papers, Moralo Designs, represented by Jones Moitshepi Firm, said they received a letter from SEZA on or around the 12th November 2020 notifying that their bid has been disqualified at the technical evaluation stage of the tender adjudication process.
In their response, Lonely Mogara who is Chief Executive Office of SEZA said Moralo Designs is not entitled to be heard by the court as the company never participated in the disputed tender hence SEZA knows the bidder as Moralo Design Consortium.
“Moralo Designs had failed to establish any right to be heard by the court. The fact that they had submitted a tender was not guarantee that they would be awarded the tender,” he said. “The reasons for the disqualification of Moralo Design Consortium’s bid were valid and justified because their bid was insufficient as it lacked vital information as required by the terms of reference.”
SEZA Chief said the requirements for the work plan and project programme were clearly stated in the Invitation To Tender (ITT). Moralo Design Consortium was not penalised for non-existent requirements. In disqualifying the bid by Moralo Designs Consortium, Mogara further indicated that SEZA considered that there was a requirement for a programme and work plan.
“The purported “project programme” that was submitted by Moralo Design Consortium failed to depict the activity durations, activity phasing and interrelations, milestones, delivery dates of reports and logical sequence of activities constituent with methodology and showing a clear understanding of the terms of reference,” said Mogara in responding affidavit.
He said the ITT required that there be provision of delivery dates within the programme hence Moralo Designs Consortium failed to consult with SEZA when they felt that such a requirement would be impossible to provide. He continued to say there was an avenue available when the tender was being prepared, but they failed to use it.
“Moralo Designs’ application for interim relief lacks merit and only seeks to delay SEZA from completing the evaluation and award of a tender that will serve the greater good of the nation,” said Mogara.
He went on to say Moralo Designs has no prospects of succeeding in its review application as the possibility of court granting the review are so remote in that the court does not possess the requisite technical knowhow on what constitutes an adequate work plan and what ought to be contained in it.
A bidder disqualified for failure to provide adequate information has no right to be protected by the court. Irreparable harm can only be suffered by one who has shown that there exists a right in so far as having stood the chance of being awarded the tender.
The financial benefit likely to be derived by Moralo Designs- which is highly unlikely- is outweighed by the nature of the project. In the unlikely event that the application for review is successful, they can claim for damages. The availability of such remedy weighs in favour of the interdict being refused. The refusal stands to benefit the nation more than the financial interest that Moralo Designs seeks to protect.
Moralo Designs failed to establish the urgency of their application. They waited for more than a month and half after the disqualification to approach the court on urgency. Meanwhile when delivering the State of the Nation Address (SONA) last year, President Mokgweetsi Masisi revealed that the detailed design and construction of 12 steel grain silos — with an overall storage capacity of 60 000 metric tonnes — is underway at the Pandamatenga SEZ and the P126 million project will be completed by August 2021.
President Mokgweetsi Masisi has taken a stern but unpopular decision within the August House by putting to an end a hefty P403, 200 monthly budget directed towards legislators’ housing allowance.
Since the beginning of the 12th Parliament in November 2019, MPs have been staying in rented spaces. At first they were lodged at Avani hotel and a whooping P6, 2 million was paid by government for accommodation and meals for Members of Parliament and their spouses from October 31, to December 20, 2019.
Minister of Finance and Economic Development, Dr Thapelo Matsheka could be forced to provide a detailed explanation to a number of Botswana Democratic Party (BDP) backbenchers who are not impressed with Government expenditure for the 2020/21 financial year.
The unconvinced lot smell a rat and suggest that the Minister should furnish them with all the balance sheets for all the procurements and reports of all the transactions carried out by government from April 2020. This is so because within them, there is an air of disbelief in relation to the use of national funds by the powers that be.