The Court of Appeal is being compelled to pronounce the constitutionality of the death penalty which is provided for by section 203 of the Penal Code of the laws of Botswana.
In a case that has a potential to do away with the death sentence, the Directorate of Public Prosecution (DPP) would lead arguments before a panel of judges of the Appeal Court on the 29th of this Month in support of the said sentence while Kgosiitsile Ngakayagae would oppose the application on behalf of a murder convict, Rodney Alfred Masoko who is cited in the case.
The DPP intends to challenge Justice Tshepo Motswagole’s judgment in which he outlawed the death sentence when handling Masoko’s case in October 2013. When passing the judgment, Motswagole argued that section 203 contravened several sections of the constitution and sentenced Masoko to life imprisonment for murdering his girlfriend in cold blood.
Although the said section prescribes death penalty for murder crimes which were committed without extenuating circumstances, Motswagole maintained that the practice was inhumane and could be evoked at the judge’s discretion.
The DPP however wants the court of appeal to force Motswagole to make a fresh judgment on the matter and evoke section 203 as there were no extenuating circumstances in Masoko’s case.
The court of appeal’s matter comes at a time when three death row in -mates are yet to appear before the same court with desperate pleas for their lives. Patrick Gabaakanye was sentenced to death by Justice Walia in July 2014 while co-accused, Daniel Semi and Gaolatlhe Thusang were given the same capital sentence by Justice Leburu last year.
When passing the judgment, Justice Leburu interpreted section 203 differently from Justice Motswagole. Leburu’s understanding is that the court is at large to probe extenuating or mitigating and or aggravating factors in the absence of which, the death sentence has to be meted out.
The case that was before Leburu, involved three murder accused, Semi and Thusang who were hired by a certain Agisanyang Motukwa to kill his father because he believed he was bewitching him. Although Leburu sentenced the hired men to death, he found the witchcraft believe, to be an extenuating circumstance and gave Motukwa a lesser sentence.
The decision by the court of appeal would therefore have a direct impact on appeal cases of the three men who are waiting in prison to be “hanged by their necks until they die.”
Meanwhile the court is to decide whether to reduce a 25 year jail sentence of a man who brutally murdered his pregnant girlfriend in 2008. Mokgweetsi Mosope was sentenced by the high court to what he feels is an excessive sentence and has engaged the service of an attorney to persuade the court to reduce his sentence to a maximum of 20 years jail term instead.
However the Public Prosecution maintains that the 25 years imprisonment was warranted in this case looking at the fact that he attacked a defenceless woman and also killed his unborn child during the brutal attack. According to the Prosecution, Masoko killed the girlfriend following a heated argument over his continued failure to sleep at her house. Following the quarrel, he went away and on his return, the girlfriend who did not know he was holding a murder weapon invited him to bed. Instead he turned on her and stabbed her with a knife multiple times. Mosope admitted that he killed the girlfriend in a spate of anger.
THE STATUS QUO Premeditated murder in Botswana is punishable by death through hanging. However the courts can exercise discretion where there are extenuating circumstances and can deliver a non-capital punishment of a long term imprisonment. In most cases the offenders are given a maximum of 25 years jail term.
Other crimes that attract the same sentence include treason, espionage and military offences.
The treason crimes include attempting to overthrow the government, attempting to forcibly change the law or government policies, attempting to usurp the state’s executive power, assisting the enemy in wartime, assisting anyone who threatens the security of the state or instigating invasion of the state .
Some of the military offences that could attract death sentence include aiding the enemy, cowardly behaviour, mutiny involving violence or threat of violence and failure to suppress mutiny with the intent to assist the enemy.
However, the military offence is not a matter of the judicial court and rather that of the military and the state President who is the commander of the armed forces by statute. The President can actually prescribe the manner of execution for the members of the Botswana Defence Force offenders.
The Directorate of Public Prosecutions (DPP)’s decision to reject and appeal the High Court’s verdict on a case involving High Court Judge, Dr Zein Kebonang has frustrated the Judicial Service Commission (JSC) and Judge Kebonang’s back to work discussions.
JSC and Kebonang have been in constant discussions over the latter’s return to work following a ruling by a High Court panel of judges clearing him of any wrong doing in the National Petroleum Fund criminal case filed by the DPP. However the finalization of the matter has been hanged on whether the DPP will appeal the matter or not – the prosecution body has since appealed.
Botswana Democratic Party (BDP) top brass has declined a request by Umbrella for Democratic Change (UDC) to negotiate the legal fees occasioned by 2019 general elections petition in which the latter disputed in court the outcome of the elections.
This publication is made aware that UDC Vice President Dumelang Saleshando was left with an egg on his face after the BDP big wigs, comprising of party Chairman Slumber Tsogwane and Secretary General Mpho Balopi rejected his plea.
“He was told that this is a legal matter and therefore their (UDC) lawyer should engage ours (BDP) for negotiations because it is way far from our jurisdiction,” BDP Head of Communications, Kagelelo Kentse, told this publication.
This spelt doom for the main opposition party and Saleshando who seems not to have confidence and that the UDC lawyers have the dexterity to negotiate these kind of matters. It is not clear whether Saleshando requested UDC lawyer Boingotlo Toteng to sit at the table with Bogopa Manewe, Tobedza and Co, who are representing the BDP to strike a deal as per the BDP top echelons suggested.
“From my understanding, the matter is dealt with politically as the two parties are negotiating how to resolve it, but by far nothing has come to me on the matter. So I believe they are still substantively engaging each other,” Toteng said briefly in an interview on Thursday.
UDC petitioners saddled with costs after mounting an unprecedented legal suit before the court to try and overturn BDP’s October 2019 victory. The participants in the legal matter involves 15 parliamentary candidates’ and nine councillors. The UDC petitioned the court and contested the outcome of the elections citing “irregularities in some of the constituencies”.
In a brief ruling in January 2020, Judge President Ian Kirby on behalf of a five-member panel said: “We have no jurisdiction to entertain these appeals. These appeals must be struck out each with costs including costs of counsel”. This was a second blow to the UDC in about a month after their 2019 appeals were dismissed by the High Court a day before Christmas Day.
This week BDP attorneys decided to attach UDC petitioners’ property in a bid to settle the debts. UDC President Duma Boko is among those that will see their property being attached with 14 of his party members. “We have attached some and we are on course. So far, Dr. Mpho Pheko (who contested Gaborone Central) and that of Dr, Micus Chimbombi (who contested Kgalagadi South) will have their assets being sold on the 5th of February 2021,” BDP attorney Basimane Bogopa said.
Asked whether they met with UDC lawyers to try solve the matter, Bogopa said no and added. “Remember we are trying to raise the client’s funds, so after these two others will follow. Right now we are just prioritising those from Court of Appeal, as soon as the high court is done with taxation we will attach.”
Saleshando, when contacted about the outcomes of the meeting with the BDP, told WeekendPost that: “It would not be proper and procedural for me to tell you about the meeting outcomes before I share with UDC National Executive Committee (NEC), so I will have to brief them first.”
UDC NEC will meet on the 20th of next month to deal with a number of thorny issues including settling the legal fees. Negotiations with other opposition parties- Alliance for Progressives and Botswana Patriotic Front (BPF) are also on the agenda.
Currently, UDC has raised P44 238 of the P565 000 needed to cover bills from the Court of Appeal (CoA). This is the amount in a UDC trust account which is paltry funds equating 7.8 per cent of the overall required money. In the past despite the petitioners maintaining that there was promise to assist them to settle legal fees, UDC Spokesperson, Moeti Mohwasa then said the party has never agreed in no way to help them.
“We have just been put in debt by someone,” one of the petitioners told this publication in the past. “President’s (Duma Boko) message was clear at the beginning that money has been sourced somewhere to help with the whole process but now we are here there is nothing and we are just running around trying to make ends meet and pay,” added the petitioner in an interview UDC NEC has in December last year directed all the 57 constituencies to each raise a minimum of P10, 000. The funds will be used to settle debts that are currently engulfing the petitioners with Sheriffs, who are already hovering around ready to attach their assets.
The petitioners, despite the party intervention, have every right to worry. “This is so because ‘the deadline for this initiative (P10, 000 per constituency) is the end of the first quarter of this year (2021),” a period in which the sheriffs would have long auctioned the properties.
President of the Umbrella for Democratic Change (UDC) Duma Boko’s alliance with former President Lt Gen Ian Khama continues to unsettle some quarters within the opposition collective, who believe the duo, if not managed, will once again result in an unsuccessful bid for government in 2024.
While Khama has denied that he has undeclared preference to have Boko remaining as leader of UDC, many believe that the two have a common programme, while other opposition leaders remain on the side-lines.