Wednesday, May 18, 2022

Harshest punishment killer-dog owner faces is only four months in prison

(No) thanks to an unrestrained pit bull in Mogoditshane, precious human life has been lost. However, there is bigger tragedy that lies farther down the road: if tried, found guilty and given a custodial sentence, the dog owner would serve only four months in prison. The latter would be courtesy of outdated colonial-era law that the home government has demonstrated no appetite to update.

Section 239 of the Penal Code criminalises “reckless and negligent acts.” One of those acts is criminally irresponsible pet-keeping about which the Act says the following: “Any person who in a manner so rash or negligent as to endanger human life or to be likely to cause harm to any person omits to take precautions against any probable danger from any animal in his possession is guilty of an offence and is liable to imprisonment for a term not exceeding six months.” In terms of policy, the Botswana Prisons Service lops off one third of a custodial sentence – which means that if one is sentenced to six months for failure to restrain a dangerous animal, is tried, found guilty and sentenced to prison, they would effectively serve for only four months.

A hand-me-down from the British colonial government, the Penal Code is older than the republic of Botswana and was written at a time that there were virtually no dangerous pet animals. That is no longer the case because in today’s Botswana, some people keep extremely dangerous pet animals – like the pit bull that killed a man in Mogoditshane. 

The irony is that in the country that bequeathed laws to newly independent Botswana, the law that regulates dangerous animals has been moving with the times. In 1991, the United Kingdom introduced the far-reaching Dangerous Dogs Act which requires dog owners to ensure that their dogs are kept under control at all times and in all places. The Act makes it illegal for a dog to be “out of control” or to bite or attack someone. It also holds a dog owner criminally liable if someone encountering their dog has “reasonable apprehension” that the dog may bite them. The latter means that if a person gets frightened simply because a menacing dog charged at him but doesn’t attack him, he can report the matter to the police.

What is supposed to have happened in the Mogoditshane case is that the deceased man was a visitor, having accompanied a mechanic friend who was fixing the dog-owner’s car. The dog attacked when the owner had rushed out to a spare-parts shop to buy parts required to fix his car. Until 2014, UK’s Dangerous Dogs Act provided that it was illegal for dogs to be out of control in a public place. The Act was amended in 2014 to include incidents on private property.

More importantly, UK law imposes stiff penalties on criminal recklessness around failure to restrain dangerous dogs. In instances where a dog kills a person, its owner gets 14 years in prison, and five years where the victim is injured.

Ironically, the dog was itself a victim because its owner failed to exercise responsible stewardship over it and after it killed the man, the police also shot and killed it. In instances when the latter happens, the police typically try to allay public fears by inviting Btv along to capture the killing. However, the bullet is not the answer because dangerous dogs will continue killing people as long as there is no law that forces the criminally reckless to restrain their dogs.

Interestingly, animals that are used in private security operations have better legal protection and are better regulated. In terms of the Private Security Services Regulations, licensees may use animals to guard or patrol any premises, track or detect persons or things or provide protection to a security guard. It is a requirement by law that such animals must be accompanied by a security guard “at all times.” This cancels out a situation like the one in Mogoditshane that led to the minder separating himself from his deadly and moody dog. Similarly, the regulations prescribe that a security guard who uses an animal in the course of his or her duties “shall keep the animal on a lead and ensure that he or she is in control of the animal at all times.”

As regards the welfare of the animal itself, the Regulations require licensees to develop and submit to the regulatory Board, written policies and procedures on the care and handling of an animal under his/her care. Such policies and procedures relate to feeding, housing, transportation, provision of veterinary care, retirement, and euthanisation of the animal.

However, in no way are these regulations adequate. The biggest loophole in Botswana laws, and one that has claimed human lives, is that one can breed and keep any type of dog. On the other hand, under the enactment of the UK’s Dangerous Dog’s Act, it is illegal to own a pit bull terrier, Japanese Tosa, Dogo Argentino or a Fila Brasileiro. In some states in the United States, it is illegal to own the pit bull-type dogs of American Staffordshire Terrier and the American Pit-bull Terrier; the Rottweiler, whose jaws are stronger than German shepherds and pit bulls with a bite force of 328 pounds – which is about half of a shark’s bite force, at 669 pounds; the Wolf-Dog Hybrid, which is part wolf and part-dog; and the highly territorial Italian Mastiff which has been known to kill cats and other dogs.

What is even scarier is that genetically, all dogs can interbreed with each other. This raises the possibility of an oddly experimental dogkeeper interbreeding a pit bull terrier with a Rottweiler to produce an even deadlier species. Indeed, over the centuries, humans have artificially and selectively bred dogs. The laxity of Botswana laws on dangerous dogs would allow such interbreeding to occur. The harshest punishment that someone whose interbreeding of dogs might produce a leopard-like offspring that kills someone is a four-month custodial sentence. 

The irony is that while a constitutional review commission barnstorms across Botswana to solicit public views on the constitution, there is no effort to comprehensively review the Penal Code. No will die because Botswana presidents are not directly elected but people are dying precisely because there is no law that prohibits the keeping of killer pets.

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