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AU to hear qualms over Botswana’s death penalty

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.

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

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