Saturday, September 26, 2020

Reflections on conditional pardoning of Kalafatis’ killers

Over the past week I was fortunate to visit Kasane. Although the trip was long, there was a lot to enjoy. The wildlife and the Chobe River make the place a marvel! However, the only downside of this trip was that I lost contact with the ‘outside’ world. Unsurprisingly, when I came back to Gaborone so many things ‘newsworthy’ had happened. Among the prominent stories that circulated in print and electronic media were the conditional pardon by the President of John Kalafatis’ killers.

Like many Batswana, I was surprised that barely a year had passed when the three convicted killers were freed. If I recall well, it was at the beginning of this year ÔÇô February if I am correct ÔÇô that the Court of Appeal upheld the convictions and sentences of the three army men for their involvement in the brutal and cold murder of Kalafatis. To ordinary Batswana, the decision taken by the Court of Appeal was a significant sign that ours was an independent, vibrant and functional Judiciary in which the Executive’s interference was minimal, if at all present. Thus, the action of the highest court in the land was testimony to ‘good governance’ that this country has come to be known for, particularly among the developing countries. For once we felt that our institutions were able to discharge their actions without fear or favour. Actually, this is what a functional democracy is all about; existence of strong institutions that discharge their functions diligently.

But the conditional pardon by the President pointed to the other direction if one was to go with wide range of debate from many individuals and organisations in our republic that commented on this issue. The inconvenient conclusion has been that rather than creating/sustaining strong institutions, we are giving way to a strong men-type of state; a kind of a nation in which the lengthened shadow of a single man determines the character of organisations or government, courtesy of our very own constitution. This is what I consistently heard being brought to surface by those who commented on the President’s action. Selfish motives that serve little benefit for the nation seems to be the driving force behind the conditional pardoning of these men.

This debate was never about the President’s power to free these men. Undoubtedly, he is empowered to do so by our constitution. The main bone of contention was the way the decision was taken. It is not only the manner in which the decision was taken that raised suspicion, but also the context within which such action was taken.

Focusing on the procedural nature of the decision, Alice Mogwe of Ditshwanelo argued that everything was wrong with the way such an action was taken. To her, there was little consideration for the victim’s family when such action was taken by the presidency. They were not informed prior to the decision being taken but rather only got to know about the pardoning from news release like any other person in the country.

My understanding of Mogwe’s statement is that ethical issues surrounding the decision were never considered. I am even tempted to conclude that they were deemed irrelevant or inconsequential. But ethical practice dictates or compels the powers that be to inform the victim’s family before the decision was made public. In the absence of ethical process, the decision thus came out as meant to serve the interests of the killers and their superiors rather than the victim’s family and the society at large.

Others paid attention to contextual realities surrounding the killing of Kalafatis to castigate the President’ action. We should remember as a nation that his killing happened in a poisoned context. This was when many people started talking about the manner in which the presidency was undermining democratic practice, the culture of this nation and the value of life. As such, the case was politicized from the beginning. Hence, one would have hoped that those in power would have been cautious and sensitive when pardoning these men. But the timing didn’t suggest so. In fact, Dick Bayford, who represented the Kalafatis’ family in this case, did not take kind to this action. He reportedly made a scathing comment noting that ‘the decision by the President to exercise in favour of the murderers of Kalafatis a prerogative of mercy simply confirmed the suspicions that the public has always harboured: that the murder of Kalafatis was engineered and sponsored from the highest echelons of powers.’

Going further, Bayford argued that, ‘we are all aware that as a general principle the government of Botswana is reluctant to exercise the prerogative of mercy in favour of convicts.’ Hence, this action came as an exception to the general rule. To this end, Bayford concluded that as a family, the Kalafatis are convinced that the real culprits behind the murder of their son have not yet been brought to court. Thus he concluded that ‘it is our ardent hope that a time will come when the truth and justice will be done to the brutal and cold blooded killing of John Kalafatis so that his soul might forever find peace.’

The sentiments expressed by Bayford were also echoed by retired Botswana Defence Force commander, Lieutenant General Fisher. These men, as he wants to remember, are serving military personnel who act on instruction. As such, they were compelled by the nature of their job to do what their masters ordered them. In this case, they did not have anything but to execute an order from above. So, according to him the missing link in this case is the supervisor(s) who ordered and authorise such an operation.

On the basis of what has transpired so far in this case, one can conclude by saying that we have a constitution that gives the Presidency a blank check to pardon cold-blooded murders who were duly convicted by the highest court in the land. Another important conclusion is that the real culprit(s) were never brought to justice. More significantly, we are now lingering in the shadow of one man, who is not even compelled to disclose the conditions of this pardon on Kalafatis killers. This does not serve our democracy any good.

*Molefhe teaches Public Administration at the University of Botswana

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