Sunday, October 17, 2021

Death Penalty; Botswana’s raging tug of war (Part 1)

Since independence Botswana has executed 49 people. The most recent person to be hung was Patrick Gabaakanye in 2016. While Botswana is not the only SADC country that still has the death penalty on its books, it is the only member that continues to carry out executions. All other member countries are abolitionist either in law or in practice (have not carried out an execution in 10 or more years). In contrast, in Botswana 9 people were executed between 2006 and 2016 alone. In other words Botswana carries out roughly 1 execution per year. Many supporters of the death penalty would argue that one execution in a year is not enough, and that the country should be executing more people given how many murders take place each year. Meanwhile, there are others who believe that even one execution is too many. 

Ditshwanelo- The Botswana Centre for Human Rights and local lawyer Kgosi Ngakaagae, are among those who believe that the death penalty should be abolished.  Ngakaagae has what he describes as an unpopular opinion when it comes to the death penalty. He is unequivocally against it, and believes that it serves no purpose. He justifies this opinion using both moral and intellectual arguments. From a moral point of view Ngakaagae believes that it is “just sick” for the state to hire people to carry out pre-meditated killings. Ngakaagae believes the fact that the state pays individuals to kill citizens makes the executions even worse than the murders committed by the people being hung. Ngakaagae’s intellectual argument against the death penalty is that death sentences are not handed out equally. In Botswana anyone who is found guilty of murder is automatically sentenced to death unless the judge determines that there were extenuating circumstances that led the person to commit the crime. The trouble is that there is no clear definition of extenuating circumstances. The only thing that the penal code says explicitly is that “In deciding whether or not there are any extenuating circumstances the Court shall take into consideration the standards of behaviour of an ordinary person of the class of the community to which the convicted person belongs.” Beyond that, it is up to each judge to define what qualifies as an extenuating circumstance. According to Ngakaagae this system results in arbitrary sentences. One judge can sentence a person to 20 years in prison while the judge in the adjacent courtroom sentences someone else to death for an arguably lesser crime.

Alice Mogwe, the director of Ditshwanelo, shares Ngakaagae’s opinion, and believes that there is no way to justify state sponsored killings. As she puts it, “whether it is an individual or the government doing the killing it is still murder, and at the end of the day it is the difference between a person living or dying.”

Both Ditshwanelo and Ngakaagae believe that one of the major injustices in the current legal system is that economic class heavily influences rulings. The people that end up receiving the heaviest sentences (in this case death) are not necessarily the ones who have committed the most violent or gruesome crimes. Instead they are the ones who cannot afford legal representation. In Botswana if a person being charged with a death eligible crime cannot afford legal council they are appointed an attorney by the state. These lawyers work on the cases pro-deo, and rarely have access to the resources (e.g. psychiatrists, pathologists, expert witnesses) necessary to appropriately defend their clients. This makes it very difficult for the accused to prove extenuating circumstances or more importantly their innocence. As Ngakaagae puts it, “it is not a race among equals.” The prosecution has all the necessary resources to argue their side while the defence is left to struggle to put together a convincing argument.

Tlatsetso Palime, the activism program officer at Ditshwanelo, is quick to point out that one of the consequences of inadequate representation is wrongful conviction, and by extension wrongful execution. Palime and her organization do not support the death penalty under any circumstances, but they find it especially problematic that executions are taking place in a system that is so full of flaws and that leaves room for mistakes. After all, once an execution takes place there is no way for it to be undone.  The permanence of the death penalty is simultaneously what makes the death penalty so attractive to some, and so distressing for others.

With regards to public opinion Palime and Ngakaagae both believe that the public does not have enough information about what is really involved in the execution process. As a result many people support the death penalty either due to an emotional gut reaction, or because they feel they are supposed to support the death penalty. This is not to say that everyone would suddenly want to abolish the death penalty if they had more information, but rather that increased dissemination of information would allow the public to take a more informed stance on the matter.

According to Mogwe, the most common misconception about the death penalty is that it reduces crime. The truth is that there is no concrete evidence to demonstrate that this is true.  Ngakaagae provides two different explanations as to why the death penalty is not an effective deterrent. The first is that the death penalty has been around for centuries, and yet people continue to commit capital crimes. Ngakaagae believes that the fact that Botswana has executed close to 50 people since independence, and even more people have been found guilty of murder, is testament to the fact that the current system is not an effective deterrent. Ngakaagae’s other argument is that the trial and execution process is shrouded in so much secrecy that it cannot possibly serve as an effective deterrent. People will not be deterred if they do not even know what is happening in the first place.

Another misconception is that the death penalty puts an end to suffering. Many people who support the death penalty do so because they believe that executing a criminal brings peace to the victim’s family. While the execution may bring a temporary feeling of justice to the family it brings about more suffering in the long term. When the state hangs an individual they are inflicting suffering on the person’s relatives. What few people know is that the government does not inform the family when the execution is going to take place. Instead they are informed after the fact by Radio Botswana along with the rest of the country. The family is also not allowed to attend the person’s funeral or visit their grave since executed prisoners are buried in an undisclosed location. Finally, the people who carry out the executions suffer at least psychologically if not emotionally as well.

In terms of what lays ahead, Ngakaagae, Palime, and Mogwe all believe that Botswana will one day join the approximately 140 countries around the world that have already abolished the death penalty either in law or in practice. All three individuals also acknowledge that the change has to come from the top. Abolishing the death penalty may not be the popular decision among members of the public, but once the government makes the change the public will likely come round

Whether or not those higher up will actually take the leap and abolish the death penalty (or at least implement a moratorium) is yet to be seen. Ngakaagae believes that it is unlikely, at least in the short term. As he explains, the death penalty has become a very politicized issue, and nobody is willing to risk losing voters. Mogwe also commented upon the political nature of the death penalty citing the fact that in the last general election not a single party included the death penalty in their memorandum for fear of losing support. This being said, opposition leader Duma Boko, has openly said that if he were to become president he would actively seek a moratorium on executions or even abolish the death penalty completely. With such a prominent figure speaking out in favour of abolition it is only a matter of time before others join him in speaking out.

In the meantime the best thing that the public can do is take advantage of the information that organisations such as Ditshwanelo are sharing, participate in conversations on the issue, and reach out to their members of parliament. Everyone is entitled to his or her opinion, but it should be an informed one.

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