The death row population in Botswana on Friday soared to five after Lobatse High Court judge Maruping Dibotelo sentenced a Botswana citizen, Kgomotso Sampsom, and a South African, Michael Molefe, to death for having killed two Zimbabweans, Sam Hombarume and Robert Ncube.
Sentencing the two men to death and commenting on Duma Boko’s submission on behalf of Sampson that his client had, on accompanying Molefe to Ncube’s place where the murders took place, done so as a result of his unflinching friendship or loyalty to Molefe and that the Court should be merciful on him when passing sentence against him, the judge said that it must be noted that there was no evidence or anything to suggest that Sampson was forced or coerced into accompanying Molefe where the two of them murdered the deceased persons.
On the submission that Boko made that the Court should exercise mercy and impose a sentence other than capital punishment on his client, Dibotelo said that he had asked Boko to state whether it would not be a misdirection on the part of the Court to sentence a person convicted of murder to a sentence other than death where no extenuating circumstances have been found to exist and that the explanation he put forward on this was that, in his view, the provisions of Section 203 (1) of the penal code are not preemptory in regard to the imposition of the death sentence even where it has been found there are no extenuating circumstances in favour of the convicted person.
The judge said that in his judgment the provisions of section 203 (1) of the penal code are clear and unambiguous that, where the Court comes to a conclusion that there are no extenuating circumstances, it has no other option but must sentence the convicted person to death and that to hold otherwise will be contrary to those provisions and would amount to a clear misdirection on the part of the Court in those circumstances.
Turning to the submissions of mitigation made by Ookeditse Maphakwane on behalf of Molefe, the judge said that Maphakwane had submitted that Molefe had taken alcohol at the material time and that it played a part in shadowing his sense of judgment when in confrontation with the deceased and that as a result the consumption of alcohol constitutes a mitigating factor. He said that Maphwakwane had also submitted that Molefe’s personal history and up bringing or growing up in a violent apartheid South Africa should be taken as a mitigating factor in his favour. Dibotelo said, in his view, the way in which the accused person Molefe went about carrying out the murders and his conduct afterwards does not show that his judgment was affected by alcohol or that the fact that he grew up in apartheid South Africa justifies the way he planned and executed the murders in this country. The judge said that he had found that there were extenuating circumstances in favour of Molefe in that he may have been experiencing emotional instability and stress when he and Sampson murdered the deceased and that Molefe might have been experiencing such emotional instability and stress as a result of Ncube’s killing of his aunt in South Africa in 1995. He added that although robbery and the killing of Molefe’s aunt may constitute extenuating circumstances, these extenuating circumstances have to be weighed against any aggravating factors which had been submitted by the state.
On passing the death sentence against Molefe after finding that extenuating circumstances existed in his case, Dibotelo said that he had decided in exercising his discretion conferred to him by the penal code that Molefe should suffer the same punishment as Sampson and that he is alive to the fact that it is rare in our jurisdiction for the Court to impose capital punishment in cases where extenuating circumstances have been found to exist. On the other hand, he said, he should point out that each case is judged on its facts and peculiar circumstances and that in his view the existence of extenuating circumstances does not take away the discretion of the court to impose capital punishment after taking into consideration the facts and circumstances of each case.
The two condemned prisoners will be occupying the dreaded death row with Gerald Dube, a Zimbabwean citizen sentenced to death for killing four fellow Zimbabweans, Kedisaletse Tshobane, who killed her daughter, and Loeto Batsholedi.
