President Ian Khama’s decision to pardon three murder convicts just shortly after the Court of Appeal had confirmed their conviction and 11-year sentences in February is a matter of grave concern.
The convicts, who happen to be Botswana Defence Force (BDF) soldiers brutally shot and killed an unarmed man who, at the time, posed no threat to them.
Clearly, the pardon casts great doubts on government’s commitment to the Rule of Law and Separation of powers.
In our view, at issue is not whether the President acted outside his powers. In fact, we acknowledge that in terms of the constitution the President has powers to exercise a prerogative of mercy to convicts. To raise a counter argument asserting the President’s powers is not only a simplistic approach but one for the feeble minded.
Equally important is the surrounding circumstances and the nature of the case. The death of John Kalafatis generated widespread discussion on the operations of security personnel. It confirmed fears that security forces had become a law unto themselves by engaging in extra judicial killings.
Besides the case being of public importance, it took effort from the High Court and Court of Appeal to come up with a comprehensive decision of the accused’s blameworthiness and a fitting or appropriate sanction for the offence.
In our view, the pardon goes to the heartbeat of the rule of law and separation of powers so much so that to give it a nod is equivalent to encouraging erosion of the rule of law and throwing away separation of powers.
Under our constitutional government, the executive implements laws, legislators make laws while the judiciary interprets these laws.
It is appalling that today the courts can hear evidence and, unconvinced by their explanations, send men to jail, only for the President to free them the next day despite the Court’s findings.
Strangely, since the trio’s pardon was confirmed by the presidency, government has not been forthcoming on what the conditions attached to the pardon are. Instead, what has been stated by government is that the President has powers to pardon.
While the nation is aware of the Court‘s findings and why the convicts deserved a severe punishment, the reasons for pardon have been shrouded in secrecy.
It is a matter of public knowledge that the Court rejected their contention that they believed the deceased was armed and extremely dangerous.
President Khama could perhaps draw lessons from one of Africa’s statesman, Kwame Nkurumah, whose Administration collapsed partly because he had a constitution without constitutionalism.
History tells that under Nkurumah’s Administration the President had wide ranging powers to even nullify Court decisions that he did not agree with.
Before long, Courts were at the mercy of the executive view. Thus if one may ask, what message is President Khama trying to send to the courts? Is this an expression of a lack of confidence in the judiciary? It goes without saying that according to the Presidency, the trial of these men and their ultimate punishment was without justice.
Equally disturbing on this saga is that government has shown no empathy for the Kalafatis family. This is the same family who in the past Khama’s supporters said the media denied them closure. Our view is that it is Khama who is denying the Kalafatis family a closure. For the Khama Presidency, their hurt is naught. We believe the pardon only took notice of the interests of the convicts and totally ignored the interests of society and the Kalafatis family.
It is also worrisome that in some sections of our society there are those who strongly believe the pardon is justified because the deceased was a criminal suspect. This view is unfortunate because Kalafatis was never given a chance for a trial. No evidence of felonious activities has been made public to support this view.
This incorrect style of thinking presupposes that a suspect is already a convict. This, we say, is wrong and should not be allowed.
The executive cannot promulgate laws and then seek to interpret them. In our view, if the President continues to exercise judicial functions there is bound to be numerous instances of miscarriage of justice.
We are not saying the President just woke up and granted the convicts a conditional pardon. Our view is that his gesture is a calculated move to frustrate the judicial process.
On the above, it is clear the judiciary is also on trial.
