Francistown High Court Judge, Barnabas Nyamadzabo last week declared that Thebe Ndjavera, a former Botswana Defence Force (BDF) soldier whom he convicted for two counts of murder is insane and should be treated as a criminal lunatic. Justice Nyamdzabo said in pursuance of special findings made in terms of section 160 of the penal code he (Judge) will have to report to President Lt Gen Dr Ian Khama who may order that the accused be confined during his pleasure of safe custody.
As per this section, when a person is charged against any omission or act and a special finding is made that such a person was insane at the time of the offence, they are deemed a criminal lunatic. After the special finding is made the court reports directly to the President. In terms of section 160(3) the President may order such person to be confined during his pleasure in a place of safe custody.
According to the charge sheet, on or about the 4th of February 2013 at or near Somerset East location in Francistown Ndjavera who was based at Donga Military Camp murdered his two daughters aged two and three years after a misunderstanding with their mother(his girlfriend). The testimony before court is that when the mother returned from work during the fateful day, she found the two children hacked to death with a sharp instrument lying in a pool of blood. The accused who had fled the scene was later arrested through the help of the public during the same day and was handed to the police. The accused pleaded not guilty to all the counts.
Represented by Kuda Mbonini from the DPP,the state had called 11 witnesses during trial. Two postmortem reports, a forensic affidavit as well as a photo album were used as exhibits in court.
Two reports were also made by psychiatrists regarding the state of the mind of the accused. According to the first report, as read by one of the Psychiatrists, Dr Paul Sidandi who was testifying in court he said the accused was first seen by another doctor prior to the commission of the offence on the 22nd of August 2012 after being referred by the BDF psychologist where he worked. He was reported to have been using drugs during the time even though he claimed to have quit the habit in 2011. The BDF authorities wanted to establish if the accused would be fit to go on a trip with the BDF squad. The doctor at the time found out that he (Ndjavera) was mentally unwell suffering from depression and recommended to the BDF that he should not handle fire arms for six months period.
Regarding the troubled love affair with the mother of his children, the doctor said the conflict resulted when she first fell pregnant with their first child. He said the accused at first denied the pregnancy although he eventually accepted it reluctantly. He however did not deny the second daughter as his.
According to Dr Sidandi’s oral evidence, due to usage of drugs the accused sometimes in 2012 caused a disturbance at his parents’ home when he broke furniture for no apparent reason even though at the time he was not drunk. The accused during the same time also tried to burn his parents’ home by igniting a gas cylinder with the intention to burn himself alone in the house after chasing everyone outside. He was later rescued by neighbors who alerted the police of the incident. Following this incident Ndjavera also went away without leave from the BDF and went into a drinking spree in Minestone and Somerset locations which ultimately earned him a 45 days detention by the BDF.
The doctor concluded in his report that when he was examined after the commission of the offences on the 6th of February he was laboring under a false belief (delusion) and one could not shake him from that belief. The doctor further stated in the report that the accused’s belief was that his girlfriend was exploiting him even though the facts were otherwise as the girlfriend visited him in prison and had forgiven him for the offences he committed. In the second report, it emerged that his condition had got worse as he had not taken his medication depression since August 2012.
Both the defence lawyer, Reneetswe Rabosotho and the state counsel, Mbonini agreed that the accused committed the offence under insanity and that he should be treated as a criminal lunatic.
However the court had to establish if the accused should be placed on his defence before the court or not.
In his ruling, Justice Nyamadzabo said he found merit in the contention made by both lawyers that the accused is a criminal lunatic as proven by the doctors.
“In short I agree that in as much as Parliament has decreed in sections 8 and 11 of the Penal Code that an insane person cannot be criminally held liable, it follows that it would be improper and more particularly contrary to common sense to call an insane person to the stand to explain the acts that he did when he was insane,” said the Judge.
“I therefore find that it is sufficient if such evidence is led by psychiatric whether called at the instance of the state or the defence,” added Justice Nyamadzabo
The judge emphasized that it was not necessary to call the accused to the stand but said he found him guilty for killing his daughters under a condition of insanity. He said that he shall in pursuance of special finding made in terms of section 160 sub section 2 report to President Khama who will make a decision to put the accused under safe custody.
“In the meantime the accused shall continue with his remand either at Prison, Jubilee Psychiatric Unit or Sbrana Psychiatric Hospital as the case may be pending the action by his Excellency under section 160(3) of Cap 08:02,” concluded the judge.