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BY KHONANI ONTEBETSE & REUBEN PITSE
First he asked for clemency from President Mokgweetsi Masisi – a tall order likely to test the president’s stance on the death penalty.
Now death row inmate Mooketsi Kgosibodiba seeks a stay of execution on account of an inordinate delay on the part of the criminal justice system.
The last time Botswana executed a death row inmate was in February 2018 following a two-year hiatus. The execution of Joseph Tselayarona followed former President Ian Khama's remarks that he supported the death penalty while he held office.
Botswana’s long held position of “an eye for an eye” has been criticised by human rights monitors as well as the European Union. At the time Botswana poured scorn on her critics.
According to court records before Gaborone High Court Justice Godfrey Radijeng, while he has filed an application for presidential clemency, Mooketsi Kgosibodiba has also put up a spirited application seeking a stay of execution pending a main constitutional application that challenges his ordinate delay to have him executed.
In his replying affidavit, Attorney General Abraham Keitshabe states that Kgosibodiba’s former attorney filed an application for presidential mercy on his behalf.
He said the Master of the High Court Michael Motlhabi compiled the necessary documents and submitted them for consideration at the meeting of the Advisory Committee on the Prerogative of Mercy.
“His Excellency the President Dr.Mokweetsi E.K. Masisi directed that the meeting of the Advisory Committee on the Prerogative of Mercy be held on Tuesday 5th March at 07:45 hrs. As well known, His Excellency the President has a very busy and tight schedule. He determined this date and time having considered his schedule,” said Keitshabe.
According to Keitshabe, one of the members of the Advisory Committee on the Prerogative of Mercy is a medical practitioner appointed was a certain Dr. John Mulwa who had a fatal accident.
“The Applicant subsequently launched these proceedings further putting on hold the intended meeting of the Advisory Committee on the Prerogative of Mercy. Regrettably, Dr John Mulwa succumbed to the head injuries and died on the 29th August 2019. The application therefore is still pending,” said Keitshabe.
On the other hand, Kgosibodiba’s current lawyers argued that his contemplated Constitutional application will be to the extent that his rights against torture, inhuman and degrading treatment or punishment as provided for by Section 7 of the Constitution have been breached on account of the inordinate delay (a period in excess of 12 months or 365 days or 8760 hours) in carrying out the death sentence.
Meanwhile when arguing before Justice Radijeng this week, Kgosibodiba’s lawyer, Wame Tafa, of Gobhoza Legal Practice stated the fact that the state has conceded there had been an ordinate delay means there are prospects of success.
“What the Applicant seeks in the present application is not a permanent order setting aside the death sentence in this matter. The Respondents (the state) understands it that way and that is the case,” argued Tafa.
He added that what the Court has to determine were principles of stay of execution and temporary interdict. Justice Radijeng sought to know from Tafa the difference between stay of execution and interdiction. Replying; Tafa said there was a thin line between the two.
Radijeng also sought to know from Tafa if the decision by Kgosibodiba to file an application for a presidential clemency did not contribute to a delay of his execution as alluded to by the state.
In response, Tafa noted that Kgosibodiba should count regarding the inordinate delay “should be the time that the Court of Appeal says you are going to be hanged by the neck until you die, not the filing of an application for the presidential mercy by the applicant.”
The judge also noted that there had been instances where the state carried out executions notwithstanding the application for clemency adding the state argued that Kgosibodiba seeks to reopen the case that had been concluded by the Court of Appeal.
“The applicant has stated that he does not want to challenge the conviction and the subsequent passing of death sentence. But he seeks a remedy for what happened since then,” argued Tafa.
Asked what constitutes an ordinate delay, Tafa said he was not in a position to give an answer as he did not want to give evidence from the bar.
Justice Radijeng suggested that the question would be dealt with in the main application (constitutional challenge) to which Tafa answered in the affirmative.
For his part, the attorney for the state, Charles Gulubane, argued that Kgosibodiba seeks to interfere in a matter that has been determined by the highest court in the country.
“There are no prospects of success. The delay in carrying out the execution can only come after the President has exercised his discretion,” said Gulubane.
Justice Radijeng sought to know from Gulubane how long it takes that the President has exercised his discretion. Responding, while he acknowledged that the President in the exercise of his powers under the Constitution can be approached by a death row inmate for presidential clemency, Gulubane said: “I don’t think the delay can be used to launch a parallel application.”
Gulubane further argued that Kgosibodiba has to establish the requirements for a stay of execution as laid down by the Constitution.
“There are processes that have to be followed. The argument that somebody has been sitting and delaying the carrying out of the process is a wrong impression,” said Gulubane. He added that Kgosibodiba’s decision to be allowed to launch a Constitutional challenge should cause embarrassment to the High Court, to which Justice Radijeng said “It is for this Court to decide whether it has jurisdiction or not.”