Judges panel to rule on death penalty
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Three death row inmate keenly awaiting judgment
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.
News
DPP drops Kably threat to kill case
The Botswana Democratic Party (BDP) Chief Whip and Member of Parliament for Letlhakeng/Lephephe Liakat Kably has welcomed the Directorate of Public Prosecution (DPP)’s decision not to prosecute BDP councillor, Meshack Tshenyego who allegedly threatened to kill him. However, the legislator has warned that should anything happen to his life, the state and the courts will have to account.
In an interview with this publication, Kablay said he has heard that the DPP has declined to prosecute Tshenyego in a case in which he threatened to kill him adding that the reasons he received are that there was not enough evidence to prosecute. “I am fine and at peace with the decision not to prosecute over evidential deficits but I must warn that should anything happen to my life both the DPP and the Magistrate will have to account,” Kablay said.
Connectedly, Kably said he has made peace with Tshenyego, “we have made peace and he even called me where upon we agreed to work for the party and bury the hatchet”.
The DPP reportedly entered into a Nolle Prosequi in the matter, meaning that no action would be taken against the former Letlhakeng Sub-district council chairperson and currently councillor for Matshwabisi.
According to the charge sheet before the Court, councilor Tshenyego on July 8th, 2022 allegedly threatened MP Kably by indirectly uttering the following words to nominatedcouncilor Anderson Molebogi Mathibe, “Mosadi wa ga Liakat le ban aba gagwe ba tsile go lela, Mosadi wame le banake le bone ba tsile go lela. E tla re re mo meeting, ka re tsena meeting mmogo, ke tla mo tlolela a bo ke mmolaya.”
Loosely translated this means, Liakat’s wife and children are going to shed tears and my wife and kids will shed tears too. I will jump on him and kill him during a meeting.
Mathibe is said to have recorded the meeting and forwarded it to Kably who reported the matter to the police.
In a notice to the Magistrate Court to have the case against Tshenyego, acting director of Public Prosecutions, Wesson Manchwe cited the nolle prosequi by the director of public prosecution in terms of section 51 A (30) of the Constitution and section 10 of the criminal procedure and evidence act (CAP 08:02) laws of Botswana as reasons for dropping the charges.
A nolle prosequi is a formal notice of abandonment by a plaintiff or prosecutor of all or part of a suit or action.
“In pursuance of my powers under section 51 A (300 of the Constitution and section 10 of the criminal procedure and evidence act (CAP 08:02) laws of Botswana, I do hereby stop and discontinue criminal proceedings against the accused Meshack Tshenyego in the Kweneng Administrative District, CR.No.1077/07/2022 being the case of the State vs Tshenyego,” said Manchwe. The acting director had drafted the notice dropping the charges on 13th day of March 2023.
The case then resumed before the Molepolole Magistrate Solomon Setshedi on the 14th of March 2023. The Magistrate issued an order directing “that matters be withdrawn with prejudice to the State, accused is acquitted and discharged.”
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DPP seizes prosecution duties from Police
Directorate of Public Prosecution (DPP) has finally taken over prosecution from the Botswana Police Service (BPS). The police have been prosecuting for years, but the takeover means that they will now only focus on investigations and then hand over to the DPP for prosecution.
Talks of complete takeover began as far back as 2008, but for years it seemed implementation was sluggish. However, the Minister of Justice, Machana Shamukuni, revealed that the complete takeover is expected to be completed soon.
During a presentation to the Committee of Supply by Shamukuni this week, it was revealed that the project has been implemented in 22 police stations nationwide, including Maun, Selebi-Phikwe, Palapye, Francistown, and Kasane. He further stated that the project has been allocated P3,000,000 for the 2023/2024 financial year to facilitate the opening of more satellite offices for the DPP.
Shamukuni said the Lobatse station is scheduled for a complete takeover by the end of May 2023, while the Kasane DPP satellite office has been established and became operational as of February 1, 2023.
“As reported previously, preparations are at an advanced stage to open a satellite office in Tsabong to curtail expenses, as well as frequent long-distance trips to these areas, as it is currently serviced by the Lobatse DPP office,” Shamukuni said.
Shamukuni said that the takeover strategy is to enable a seamless and gradual takeover of prosecution from the BPS without overwhelming and overstretching the thin resources at its disposal.
According to Shamukuni, the implementation of the prosecution takeover project has increased the workload of the 211 prosecutors in the DPP establishment.
Furthermore, the Justice Minister said DPP statistics show that the DPP has a total of 11,903 cases and dockets as of January 2023. He indicated that this is a significant increase in the number of cases being handled by the DPP, considering that in November 2021, the DPP had just over 8,471 files.
“Out of the total case load, 8 382 are cases pending before various courts while 3521 are dockets received from law enforcement agencies of which 1 325 are awaiting service of summons while the rest are being assessed for suitability of prosecution or otherwise” said Shamukuni.
He further stated that The DPP has consistently maintained an 80% success rate in matters completed at court.
“As at the end of January 2023, the success rate stood at 82.3% against a target of 90% whilst the average performance in respect of turnaround time for conclusion of cases at court stood at 17.5 months against a target of 18 months,” he said.
BACKLOG OF CASES – LAND TRIBUNAL
Meanwhile, Minister Shamukuni has revealed that Gaborone land Tribunal is experiencing a backlog of cases. Before parliament this week, Shamukuni revealed that a total 230 appeals were completed for the period of April 2022- December 2022 and only 76.5% of them were completed within set time frame.
The minister said that the Gaborone division has experiencing a backlog of cases due to manpower constraints and he further indicated that presiding officers from other divisions have been brought in to expedite case disposal.
He further indicated that the land tribunal is a specialized court that has been empowered to resolve appeals arising from land boards. “It has been mandated to determine appeals from the decisions of Physical planning committees of Districts Councils” said Shamukuni.
Land Tribunal relocated to the Ministry of Justice from Ministry of Land and Water Affairs in November 2022.
“An amount of P37, 842,670 is requested to cover salaries, allowance and other operational expenses for the Department of the land Tribunal,” alluded Shamukuni
News
BCP, AP stalemate in 7 constituencies
When the Botswana Congress Party (BCP), Alliance for Progressives, Botswana Labour Party (BLP), and conveners reconvene next week, the controversial issue of allocation of the seven constituencies will be the main topic of discussion, WeekendPost can reveal.
Not only that, but the additional four constituencies will also dominate the talks. The idea is to finally close the “constituency allocation phase,” which has proven to be the most difficult part of the ongoing negotiations.
Earlier this year, the two parties announced that the marathon talks would be concluded by February. Even at a media briefing last month, BCP Secretary General Goretetse Kekgonegile and Publicity Secretary Dr. Mpho Pheko were optimistic that the negotiations would be concluded before the end of February.
However, it is now mid-March and the talks have yet to be concluded. What could be the reasons for the delay? This is a question that both Kekgonegile and Pheko have not responded to, as they have ignored the reporters’ inquiries. However, a senior figure within the party has confided to this publication as to what is delaying the highly anticipated negotiations.
“We are reconvening next week to finalize constituency allocations, taking into account the additional four new ones plus the outstanding seven,” he explained. It later surfaced that Gaborone Central, Gaborone North, Mogoditshane, Tswapong North, Francistown West, Tati West, and Nata Gweta are all contested by both BCP and AP. This is because the other 50 constituencies were allocated by December of last year.
The three parties have failed to find common ground for the Bosele Ward by-elections. Are these constituencies not a deal breaker for the talks? “None of the constituencies is a deal breaker,” responded a very calm BCP official.
In Bosele Ward, AP has yielded to BCP, despite most of its members disapproving the decision. On the other hand, BLP has refused, and it will face off with BCP together with Botswana Democratic Party (BDP) and Umbrella for Democratic Change (UDC).
The decision by BLP to face off with BCP has been labelled as a false start for the talks by political observers.