Botswana: Death Penalty Remains

Despite strong push against it

More and more capital punishment convictions continue to add on to the number of inmates on death row in the country's prisons.

This despite the international call to abolish the punishment as it is deemed counteractive to the sole purpose of the justice system that seeks to rehabilitate convicts and integrate them back into the society. The argument in most cases is that the death penalty does not give the convict a chance to redeem themselves and become a fully functioning member of the society and also that it borders on violating a human's right to life.

Debate has always sparked around the matter with some strongly believing that convicted murderers deserve a date with the hangman, 'a life for a life' approach that they believe balances the scales.

African countries, Botswana included, are reluctant to abolish the death despite desperate calls for sub-Saharan countries to do away with the legislature.

A Premium Times article published on April 10, 2019 article by London-based Oluwatosin Popoola suggests that today, 20 countries in the region have complied.

"Sub-Saharan Africa is on course to completely abolish the death penalty, the trajectory may be slow, but, it is steady," purports the article.

In the article the Amnesty International's Advocate/Adviser on the death penalty, Popoola reckons that the employment of capital punishment, which he regards as the 'world's ultimate cruel punishment' has decreased in sub-Saharan Africa. This, he states, is with accordance to a recent Amnesty International report.

"This is good news for sub-Saharan Africa and an indication that the region continues to turn against the death penalty," he states.

The Advocate continues that of the 29 countries in sub-Saharan Africa that still retain the death penalty in law, only four - Botswana, Somalia, South Sudan and Sudan - carried out executions in 2018.

Although Botswana and Sudan resumed executions last year, having not carried out any in 2017, the overall number of known executions in the region went down from 28 in 2017 to 24 in 2018.

"This drop was mainly due to Somalia, which usually carried out the highest number of executions in sub-Saharan Africa, executing less people last year than it did in 2017," he attests, stating that the surge in executions in South Sudan sparks concern as last year the country executed seven people, the highest number since gaining independence in 2011 and has already surpassed this grim record by executing eight people in the first three months of 2019.

At the end of last year, at least 4,241 people were known to be on death row across sub-Saharan Africa; each individual with their own story and a reminder that thousands of people are at imminent risk of their lives being taken away by the state.

"It is hoped that before too long, Burkina Faso and Gambia will join these countries, and others will follow. Despite a minority of countries holding the region back, Sub-Saharan Africa is on course to completely abolish the death penalty, the trajectory may be slow, but, it is steady," Popoola believes.

Botswana's stance

The conversation on the country's capital punishment stance, which is still to uphold the practice, still continues with Human Rights advocates speaking vehemently against the exercise.

Botswana's constitution provides for the death penalty under section 4(1) which states that, "No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of an offence under the law in force in Botswana of which he has been convicted."

On the same breath, section 202 of the Botswana Penal Code, which enforces the death penalty, states that, "any person who of malice aforethought causes the death of another person by an unlawful copyright Government of Botswana act or omission is guilty of murder."

Still in the Penal Code, section 203 states that "subject to the provisions of subsection (2), any person convicted of murder shall be sentenced to death. It continues that where a court in convicting a person of murder is of the opinion that there are extenuating circumstances, the court may impose any sentence other than death. (3) In deciding whether or not there are any extenuating circumstances the court shall take into consideration the standards of behavior of an ordinary person of the class of the community to which the convicted person belongs."

Pushbacks

Renowned Human Rights lawyer Uyapo Ndadi of Ndadi Law Firm, Rantao Kewagamang Attorneys' Tshiamo Rantao and Martin Dingake of Dingake Law Partners believe there is no remedy in administering capital punishment.

The trio continues to call for the abolishment of the death penalty with Ndadi having been quoted in local news saying, "... the proponents of capital punishment argue that it serves as a deterrent, does it? NO!!!" he argued, stating it is wrong and barbaric to kill, unless it is in self-defense.

Ndadi's contention is that the argument that a punishment must fit the crime committed holds true, "but not to the extent of repeating the crime," he was quoted.

"That is why we do not rape people who rape, steal from those who steal, beat up those who beat others (even their spouses and partners) for we know it is wrong to do so. But why do we find it okay to kill?" he continued to probe.

These sentiments he shares while being aware that the Court of Appeal has declared the death penalty constitutional in Botswana.

"...the right to life must be preserved by government as well. No one should be licensed to kill by any law. The government must take the lead in showing how precious life is, and not follow what murderers do. Otherwise it is like punishing a child for doing what you yourself do to the child or others," he argued.

Rantao has also come out in the past to blast the act, calling for its abolition and terming it an evil irrevocable form of punishment that does not solve anything. In his remarks, Rantao recommended a life sentence instead. The advocate asserted that the penalty is discriminatory in that those with better means to afford expensive and eloquent representation can easily evade the gallows and while the less fortunate will be at the mercy of the courts.

"The death penalty is inhumane and degrading, therefore it should be repealed from Botswana laws," he was quoted at The University of Botswana (UB) and Ditshwanelo 2012 commemoration of the 10th annual World Day against the death penalty.

"The only reason is revenge. After someone dies then what? A life sentence does not deter a convict from suffering as he should for his crimes," said Rantao in a quote in a local article titled 'Is the death penalty still necessary?'

Another death penalty abolitionist Advocate Martin Dingake contends that the high number of capital sentences is attributable to a number of factors.

Dingake represented defendant, Patrick Gabaake in a high profile case that ended with his client being executed in 2016. Gabaake was sentenced to death for murder.

"There has been an upsurge of murder cases involving more than two accused per case in the recent past, some committed in the heat of passion and others simply to gain an economic value or benefit," he was quoted in a local article.

Acknowledging that some of the murders committed are carried out in the most vicious ways, he noted that sometimes the few or non-existent extenuating circumstances are far outweighed by the aggravating circumstances. He noted that the occurrence mostly occurs when there are two accused persons.

The attorney also argues that there are reasons why death row convicts never win in their appeals for clemency as his appeal for Gabaakanye's presidential pardon was unsuccessful, noting that the history of the republic sets precedence as no President has granted a death row inmate clemency.

"Although this has not been publicly said, it seems this is largely based on the concept of separation of powers and the rule of law. That is to say, the courts, as institutions best placed to determine the culpability of an accused person, should not and cannot be second guessed by the Executive," reads a quote from a local report. "This is a highly persuasive and attractive argument. But given the many frequent pardons extended to other convicts, it seems, with respect, to be a convenient and self-serving argument," he continued.

Despite the pushbacks and calls for abolition of the death penalty, the then Minister of Nationality, Immigration and Gender Affairs, Edwin Batshu adamantly stated that the death penalty will continue to be practiced in Botswana. Batshu was quoted speaking at the 29th session of the third cycle review report of the Universal Periodic Review (UPR) in Geneva, Switzerland last year February.

The country's list of death row inmates continues to grow with more people getting the death penalty while a handful of inmates get the Court of Appeal (CoA) to overturn their convictions with only a select few have had their convictions set aside.

"Once a High Court Judge rules that he cannot find extenuating circumstances in a murder conviction, the sentence of death is almost always handed down," reads an excerpt from a 2017 December article by Mmegi Reporters Mbongeni Mguni and Pini Bothoko. The duo contends that convicts can appeal for a Presidential pardon between conviction and execution, though none of the four Botswana Presidents have granted any of the applicants the courtesy of circumvention their date with the hangman's noose.

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