In an unprecedented move, a sitting Court of Appeal session last week overturned at least three death sentences imposed on death row inmates.
The historic decision is likely to send jubilation among rights groups here and abroad who have been steadfast in condemning the death penalty in Botswana.
Convicted murderers, Cheleketo Pitso, Ntlole Kefalotse and Joseph Mmoko escaped the gallows when the Court of Appeal (CoA) overturned their death sentences.
Regarding Pitso, the appeal was heard by a quorum of three CoA Judges, Justice Leatile Dambe, Justice Singh Walia and Justice Abednico Tafa.
Dicheleketo was convicted by the Francistown High Court for the gruesome murder of his girlfriend Sagamang Bantwaetse on the 29th of January 2015. The incident happened at Sepalola cattle post in the Central District.
The essence of his appeal was that the prosecution did not prove its case beyond reasonable doubt. He had complained in his grounds of appeal that the High Court relied on a Zambian case law to arrive at the conclusion that intoxication does not constitute an extenuating circumstance whereas under the Botswana law it can be considered as an extenuating factor. He also contended that finding none-existence of extenuating circumstances was a misdirection of the trial court.
He maintained that the trial court should have used its discretion and passed a different sentence other than death.
Delivering judgment, Justice Leatile Dambe concluded that there was clear evidence before court that the appellant caused the death of the deceased particularly the post mortem report.
“The extent of the injuries was such that they lead to the death of the deceased and the High Court rightly convicted the appellant of murder,” said the Justice Dambe.
On extenuating factors, the CoA appeal agreed with the grounds put forward by the appellant that the court should not have used a foreign authority to arrive at a finding that there were no extenuating circumstances that exist. The judge said this was a misdirection which entitles the CoA to interfere with the finding that there are no extenuating circumstances.
The CoA also ruled that it was evident from the evidence before court that the appellant was intoxicated at the time of commission of the offence.
“Based on that finding the judge should have found that extenuating circumstances did exist and handed down a sentence other than death. In conclusion for reasons discussed above the order of this court is that the appeal against conviction is dismissed. The appeal against sentence is allowed and the death sentence imposed by the trial court is set aside. The appellant is sentenced to 20 years imprisonment,” she concluded.
The appellant was represented by Wame Tafa while the state was responded by B Ockhuizen assisted by T. Marape.
For Kefalotse, he was condemned to death by the Francistown High Court in December 2019 and also breathed a sigh relief as the Court of Appeal (CoA) in Gaborone last week overturned the judgment.
Delivering the verdict, the CoA concluded that the trial court erred in not determining that there were extenuating circumstances in the case and that the death penalty was a harsh sentence.
Instead he was granted a 20 year sentence
The appeal was before a quorum of three Judges, Justice Zibani Makhwade, Justice Modiri Letsididi and Justice Monametsi Gaongalelwe.
According to court documents, during the commission of the offence the appellant (Ntlole) was employed as a farm worker at a place called Mogotho Kokorala in the Central District. On Christmas day in 2016 he together with others proceeded to a farm called Drogo 2 Farm for festivities where they drank alcohol.
During trial, Francistown High Court had ruled that there were no extenuating circumstances in the case. The court maintained that the murder was premeditated. It then proceeded after hearing submissions in mitigation to sentence the appellant to death.
Through his lawyer, Reneetswe Rabosotho from Rabotho Attorneys, Ntlole appealed against sentence. He had emphasized in the grounds of appeal that there were extenuating circumstances as the appellant was drunk during the commission of the offence, had thought the deceased killed his son and that there was no premeditation.
Delivering judgment the Court of Appeal Judge Zibani Makhwade said the trial court erred in its conclusion that there were no extenuating circumstances in the matter.
He said the evidence on record shows that the appellant was involved in drinking both on the 25th and 26th of December 2016. On the issue that the appellant believed or thought that the deceased killed his son Justice Makhwade said a clear distinction should be made between legal culpability and moral culpability.
“In considering the question of extenuating circumstances the court is concerned with moral culpability. The appellant’s belief and alcohol consumption cannot be regarded as having no bearing in the commission of the offence. The effect of alcohol in the thought process is well known. It is a drug that if taken in excess alters in a negative way the thought process,” said the Judge.
The judge also dismissed the trial court’s position that the offence was premeditated.
“The evidence shows that it was upon sight of the deceased that the appellant accused him of having killed his son. There was no evidence that he even knew who the deceased was such that he could have considered killing the deceased. What is clear is that he was operating under a delusion that he was alcohol induced,” said Judge Makhwade. He also said the appellant had a rustic background as per evidence before court.
The Judge emphasized that four factors, namely the influence of alcohol, lack of premeditation, belief that the deceased killed his son and his rustic background cumulatively amount to extenuating factors.
While he acknowledged that Ntlole killed an innocent young person, the Judge said that a long custodial sentence would meet the justice of the matter. He said the court also considered all the mitigating factors he put before court.
“The death sentence is hereby set aside and the appellant is sentenced to 20 years imprisonment. The period of time that the appellant spent in custody prior to his conviction and from the time of of his conviction to the date of this sentence shall be included in the computation of his sentence,” concluded the Judge. The sentence got the nod from all the other two Judges. The state was represented by O Maje from the Directorate of Public Prosecutions(DPP).
Handing down judgement in Mmoko’s appeal, Justice Monametsi Gaongalelwe said the appropriate sentence was 15 years for Mmoko. He noted that Mmoko was a first offender adding that he cooperated with the police as he had surrendered himself to the police.
“This is a case of murder with extenuating circumstances in which the court, in the exercise of its discretion is entitled to impose a sentence other than death. Where the court has found that extenuating circumstances exist, it must go further to put those extenuating circumstances and aggravating factors on the scale in order to determine whether to impose death sentence or any other sentence,” he said. He concluded that there extenuating factors resulting from the absence premeditation and the fact of consuming alcohol by the convict.