Scores of Batswana who have been executed for murder without extenuating circumstances did not have a fair trial, it has emerged in a judgement by Lobatse High Court Judge, Justice Tshepo Motswagole.
In a landmark judgement that stops short of questioning the constitutionality of the death penalty and is explicit that convicts accused of murder without extenuating circumstances are denied justice, the presiding judge scrapped Section 203 of the Penal Code which prescribes death penalty.
The judge pointed out that the problem with section 203 is that it does not afford the persons convicted of murder equal treatment and equal opportunity, and it seriously undermines the individualisation of the enquiry on the imposition of the ultimate penalty by excluding well known sentencing principles and usual mitigating factors.
Motswagole said it was unfair for a person convicted of murder with no extenuating circumstances not to mitigate while the one convicted of murder with extenuating circumstances is allowed to mitigate.
He said it was grossly unfair to demand of the murder convict to show that he is not death-worthy and at the same time forbid him to produce factors that can persuade the trial judge not to impose the death penalty.
“One should bear in mind that all persons convicted of any crime are permitted to present all mitigating factors before sentencing including the fact that one is a first offender, remorseful and had had pre-trial or pre-conviction incarceration. Yet one convicted of murder without extenuation circumstances is singularly singled out for an unfair, inequitable, unequal and discriminatory treatment by exclusion of the relevant factors. I cannot find any legitimate State interest for this unfair, discriminatory and unequal treatment,” he said.
Motswagole said he was ┬áunable to “see how one’s mouth can be shacked and at the same time expect the person to show that he or she is not death worthy but this is exactly what is being done pursuant to section ┬á203(2).”
Justice Motswagole explained that our actions are determined by our histories and as such we should all have our histories interrogated before we are convicted.
He said people have different backgrounds and upbringings and are impacted differently by such that their reaction to a set of circumstances may differ markedly.
“The effect of these differences can only be appreciated in an open and broadsided enquiry in which all the information as to the record and character of the accused is availed as well as the employment of interdisciplinary approach.” Motswagole said by virtue of section 3 (a) of the Constitution, every individual is equal before the law and has the right to the equal protection and equal benefit of the law.
┬á“The constitutional demands for equality of persons before and under the law, equal benefit, and protection, of the law and the obligation to satisfy the due process before deprivation of life, liberty and proprietary interests can only be satisfied in an environment where no part of the accused character and attributes is by definition excluded from the investigation of the sentencing authority.”
He said the denial of one convicted murder of the opportunity to show the trial court that he is a first offender and capable of reform at extenuation stage and then allowing another to do so subsequently at the sentencing stage amount to unequal treatment and or unequal benefit, and protection, of the law contrary to section 3(a) and 10(1) of the Constitution.
Motswagole said it was the duty of the court to uphold rights and freedoms conferred by the Constitution and to narrow down the effect of any law that seeks derogation from it.
Justice Motswagole was passing judgment in a case in which one Rodney Masoko was accused of killing his girlfriend in 2006, Motswagole found that whilst the full Bench of the Court of Appeal of Botswana has unanimously held the death penalty to be constitutional, it is yet to express opinion on the constitutional underpinning of the death penalty sentencing scheme prevalent in Botswana.
“For this reason I am at liberty to pursue a new discourse in our jurisprudence during which some of the prevailing thought will be put to test in the light of our constitution and constitutional jurisprudence within the common law traditions,” said the judge.
Justice Motswagole said he had considered whether Section 203 can be severed by striking out some portions thereof while preserving others but came to the conclusion that none of the three subsections thereof can stand alone and still serve the purpose for which it was intended.
┬á“Subs. 1 of s. 203 of CAP. 08:01 essentially provides for a mandatory death sentence and it will be objectionable for excluding the consideration of the personal circumstances of murder convicts.
Subs. 2 & 3 are intertwined and if subs. 2 is objectionable as stated above, then the latter subsection must fall with it as it is dependent on the former,” said Justice Motswagole.
According to the judge, it is up to Parliament to come up with a solution that is compatible to the Constitution.
“In the meantime, the Accused stand convicted of murder. It may be sensible that the accused’s sentence be commuted to life imprisonment and such outcome can only be brought about by the President of the Republic in exercise of the prerogative of mercy provided for in s. 53 of the Constitution,” he said.
The judge “…did consider whether I can define the phrase, “extenuating circumstances” in s. 203(2) of CAP. 08:01 widely as advocated for above but came to the conclusion that in doing so I will have to come into direct conflict with long established binding body of authority going way back to 1935.” He added that he was bound by both precedent and hierarchy not to undo what has become a practice of long and authoritative standing.
“In conclusion, therefore, I am left with no choice but to declare s. 203 of CAP. 08:01 contrary to ss. 3(a), 7(1), 10(1), 10(7), 10(8), 15(1) & 55 of the Constitution.”