The D.P.P. have issued a press statement to the effect that the death penalty has not been abolished and remains constitutional as declared in the Ntesang case. I must say that I was unsurprised by the DPP office’s irrelevance on the point. A defensive approach was expected.
There has been no suggestion that the death penalty has been declared unconstitutional. Even the learned Judge made that clear in his judgment. What has been declared unconstitutional, which the DPP knows, is the flawed capital punishment sentencing scheme embodied in Section 203 of the Penal Code. The striking down of the flawed sentencing provisions effectively expunged capital punishment from the statute books in so far as murder cases are concerned. If my take on this score is incorrect the DPP should show the public an alternative provision on the basis of which a murder accused can be sentenced to death. Section 203 of the Penal code, was the sole basis for the death penalty in murder cases. A sentence of death cannot there-fore be handed down in murder cases. The statutory basis for doing so is no more. Capital punishment remains applicable for other offences like treason, cowardice (BDF Act) and piracy. No one who has taken the trouble to read Motswagole’s judgment and to understand the issues therein has been confused about that.
The DPP were quick to say that the declaration is not binding on other judges. That is inaccurate. When a statute is declared unconstitutional it is pro-non-scripto, which means that it is as good as if it was never enacted. It becomes null and void ab initio (from its very beginning). The DPP spin-doctors deliberately confuse a constitutional declaration with the application of the rule of precedent. Indeed Motswagole J. is a Judge of concurrent jurisdiction in so far as other High Court Judges are concerned. But that means nothing in the debate at hand. There is a need, on this score, to differentiate between a constitutional declaration of statutory invalidity and the common law application of the rule of precedent. The rule of precedent applies to legal principles and opinions expressed especially if the principle or opinion is what lawyers call ratio decindendi. Loosely defined, ratio decidendi is the primary principle or reasoning behind the finding on a material point in issue. A declaration of invalidity is not an expression of opinion. It is a judicial act which is by nature a constitutional order. Such declaration is made by a judge in the exercise of constitutional, not common law powers. Failure by another judge to recognise a constitutional declaration of statutory invalidity made by a judge of concurrent jurisdiction would not constitute a mere difference in opinion but a refusal to recognise the constitutional authority on the basis of which the Judge made it. All judicial acts are presumed valid until otherwise revoked or rescinded and Motswagole’s J’s declaration (as opposed to his reasoning), remains in force. It makes no legal sense to suggest, as the DPP would have the public believe, that Section 203 now exists in selectively constitutional form whereof it is unconstitutional with regards to one citizen, Rodney Masoko, and constitutional with regards to other citizens before other judges. It is not about the facts in Rodney Masoko’s case. It is about Section 203 as law.
It is indeed irresponsible that a whole department of government could decide to be wilfully blind to facts and engage in deliberate public mis-education and propaganda. I have previously urged some of the DPP staff to stop behaving like bitter losers and to learn to take correction with grace.
This is not a case of winning or losing. We should all be concerned about life and the need to minimise if not to obliterate flaws in capital punishment laws. The Motswagole judgement calls for dispassionate legal introspection on the law on the basis of which capital punishment was based, if not on capital punishment itself. His concerns are genuine. It is time for national dialogue on the issue, not defensive posturing simply intended to appease capital punishment lovers. An unprincipled approach is inappropriate on a matter where the most basic of all rights, the right to life, is in issue.
The public need to know that the death penalty is currently not on the judicial menu for any person with respect to the offence of murder. No High Court Judge has constitutional authority to set aside Motswagole J’s declaratory ruling on Section 203 even though they may privately differ with him as to his reasons. No High Court Judge has a right to say that he/she does not recognise the declaratory order. Only the Court of Appeal can in the exercise of its appellate jurisdiction. Better still, we can all act responsibly and parliament can make in-depth reforms meant to address stated concerns. We are concerned with a standing declaration of statutory invalidity under constitutional law, not an on-the-facts opinion by Motswagole J.
*Ngakaagae is a practicing private attorney
