Sunday, July 14, 2024

The death penalty, let’s end it

Evidently, the jury is still out in Botswana and may continue to be so for some time yet, on the effectiveness or lack thereof of the death penalty in deterring one of the most heinous crimes, murder. According to a local newspaper, The Botswana Gazette of 13 October 2021, His Excellency the President of the Republic of Botswana Dr. Mokgweetsi E.K. Masisi met with the Delegation of the European Union to Botswana recently, led by Ambassador Jan Sadek, and advised it that Batswana will determine the relevance of the death penalty when the Constitution comes up for review. Fair enough. However, the mere fact that the death penalty appeals to the lowest of our instincts denudes it of any moral strength amongst those of us who are supposed to be better people in my view. Capital punishment’s fatal disadvantage to the norms of human decency is egregious indeed.

The emotive debate on the death penalty is as confounding as the seemingly wild improbability of its potential demise to possibly be replaced by a life imprisonment sentence without the option for early release where warranted. Albert Camus once said that “for centuries the death penalty, often accompanied by barbarous refinements, has been trying to hold crime in check; yet crime persists”. Murders are also rampant in Botswana and therein lies the paradox. Perhaps the most sensible explanation for the existence of the death penalty was made by the British Judge Lord Denning when he said that “the truth is that some crimes are so outrageous that society insists on adequate punishment because the wrongdoer deserves it, irrespective of whether it is a deterrent or not”. Leaning towards the death penalty may also indicate a lack of belief in the reformative aspect of the justice system.

Former President Dr. Festus G. Mogae indicated after the hanging of Ms. Marietta Bosch, convicted for murdering her friend over some chap, that he was a retributionist. While the Court of Appeal upheld the Bosch sentence, the late Court of Appeal President Justice Patrick Tebbutt in his memoirs Judge Pat Tebbutt Remembers: A life spiced with variety gives the impression that he did not believe in this kind of punishment. He says that “the case had a further most unfortunate ending. The State President refused to exercise his prerogative of mercy on Mrs. Bosch… The entire case had been one of unfortunate incidents that did Botswana little good. I was not pleased to have been part of it”.

The secretive manner of these executions, coupled with giving family members of the convicted untruths from a strategic distance, also leaves a lot to be desired. For instance, the Bosch family asked to visit the lady one Friday but were told that it would not be possible to do so because the Commissioner of Prisons was doing an inspection. They should come the following Monday. They did only to be told that she had been killed on Saturday. Similarly, according to a newspaper report, a sister to Joseph Tselayarona, hanged in 2018, was turned away, probably with cool indifference, on a Friday from attempting to visit her brother. He would be hanged the very next day. Tselayarona also never received feedback on his application for clemency.

What has also been of concern is that indigent murder accused persons are at a higher risk of facing that dreaded fellow who operates in the half-shadows, even in instances where they could have been absolved, because they cannot afford agile legal representation. In the seminal South African case of State v Makwanyane, which abolished the death penalty in that country because it was inconsistent with the right to life as entrenched in their Constitution, the Court stated that “The outcome may be dependent upon factors such as the way the case is investigated by the police, the way the case is presented by the prosecutor, how effectively the accused is defended, the personality and particular attitude to capital punishment of the trial judge and, if the matter goes on appeal, the particular judges who are selected to hear the case. Race and poverty are also alleged to be factors”. In that case, the accused persons had been convicted in the Witwatersrand Local Division of the Supreme Court on four counts of murder.

Related to the above, writing on the death penalty in the Sunday Standard newspaper of 14 May 2017, “Death Penalty: Botswana’s tug of war Part 1”, the attorney Kgosietsile Ngakayagae crystallised the problem with the death penalty as follows: One judge can sentence a person to 20 years in prison while the judge in the adjacent courtroom sentences someone else to death for an arguably lesser crime”. To this end, the sterling efforts of lawyers such as Mishingo Jeremia, who at various times has managed to have the murder convictions of Tsholofelo Maselwa and Buang Makwati overturned by the Court of Appeal, should be celebrated.

In the Makwanyane case supra, South Africa’s Attorney General conceded that while from a common sense perspective, the death penalty was the most feared sentence, there was no proof that it is in fact a greater deterrent than life imprisonment for a long period. This led then Chief Justice Arthur Chaskalson to state that “retribution is one of the objects of punishment, but it carries less weight than deterrence… Capital punishment is not the only way that society has of expressing its moral outrage at the crime that has been committed. We have long outgrown the literal application of the biblical injunction of ‘an eye for an eye, and a tooth for a tooth’”. Advocate George Bizos in his book 65 Years of Friendship indicates that while he embraced the Makwanyane decision, he was well aware that “most of (those that support the death penalty) have not read the judgment rejecting their arguments, and suspect, sadly, that many of those among them would not be persuaded by the judges’ reasoning even if they did”.

In Makwanyane it was argued that “The question before us, however, is not what the majority of South Africans believe a proper sentence for murder should be. It is whether the Constitution allows the sentence”. In his book, Justice Tebbutt states that “the situation in Botswana differs from that in South Africa. In Botswana the death penalty is specifically written into their constitution”. Retired Botswana High Court Judge Dr. Onkemetse Tshosa, then an academic at the University of Botswana, summed it up neatly in his paper The death penalty in Botswana in the light of international law: The case for abolition that while section 4 of our Constitution is not positivist in its protection of the right to life, “the Botswana right to life clause, in line with international law, firmly protects the right to life…It further imposes a legal obligation on Botswana to protect this right”. However, as Dr. Tshosa reminds us, our Court of Appeal has stopped short in deciding the constitutionality of the death sentence when presented with the opportunity to do so in cases such as Molale v The State, Mosarwana v The State and The State v Ntesang.

The counter-majoritarian dilemma inferred by Dr. Tshosa arises where courts of law either review laws that have been popularly created or reach decisions which the majority of citizens do not necessarily support. The view is that courts do not have the mandate to do so because they are made up of officials who have not been elected unlike politicians. A problem is, therefore, seen with the courts’ role in overruling, countermanding or invalidating laws that reflect the will of the majority. Majoritarianism arises from the view that the legitimacy of a democratic dispensation is founded on it putting into practice the will of the majority.

The view expressed in Makwanyane that public opinion is not a final determinant on how the state should regulate its authority seems to support the counter majoritarian view. Chaskalson then went on to state: “Public opinion may have some relevance to the inquiry but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication”. The Court went to cite a case, Furman v Georgia, which said that “the assessment of popular opinion is essentially a legislative, and not a judicial, function”. Another case it cited was Virginia State Board of Education v Barnette in which it was stated that “One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections”. It has to be noted that without there having been a referendum to test the acceptance of their position, politicians and similar actors wrote the clause abolishing the death penalty into democratic South Africa’s Constitution influenced by its gruesome use as a tool of repression under apartheid.

Or Bassok, yes first name “Or”, in The Two Countermajoritarian Difficulties says there are a number of justifications for judicial review of state conduct. Some of them are:

  • Rights based approaches that hold that “due to their special training or relative insularity from public opinion (or both) judges enjoy some institutional advantage with respect to the process of discovering, asserting, and implementing human rights. Subsequently, judicial review is justified as a necessary means to guarantee the protection of these rights”.
  • Process based arguments state that “ while courts are inferior to legislators in making substantive judgments, judges are “experts” on process and … political outsiders thus uniquely situated to “impose” process-based values. Hence the intervention in majoritarian decisions by judicial review can only be justified when it is required to correct failure in the democratic majoritarian process”.

Thus, the counter majoritarian principle is a fundamental and necessary component of law for without it there is a great risk that injustices could be carried out in order simply to assuage public opinion. The role of the Judiciary in a democracy, as one of the three pillars of governance, is to provide the necessary checks and balances to ensure that the Legislature and the Executive, which are both largely populated by politicians who generally operate in smoke-filled rooms, are restrained. For now, however, we wait to see what the constitutional review exercise will yield on the death penalty. If the process turns out to be a session of talking to the wind and the reeds, the Court of Appeal must play its part when the opportunity arises. The death penalty is not justice.

*These are his personal thoughts.

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