Saturday, October 24, 2020

Unemployment does not work, rules CoA

The next accused person who wants to cite their joblessness as an excuse for their criminal wrongdoing during mitigation will likely be repelled with the full force of a judicial standard that has been pronounced in a murder case that came before the recent full session of the Court of Appeal.

Gaolatlhe Thusang was one of three people accused in a gruesome murder that happened in 2008. Acting in concert with Agisanyang Motukwa and Daniel Semi, the trio killed the former’s father and alongside the latter, was sentenced to death by the High Court. During mitigation, Thusang’s lawyer, Moses Kadye, related the hard-knock life that his client has had to endure. His upbringing had been far from ideal and he couldn’t hold down a job, the lawyer said. However, Justice Isaac Lesetedi found these reasons to be inadequate because many more people go through the same trials and tribulations but still manage to walk the straight and narrow.

“The kind of problems he went through are those which some other people also go through without later developing into criminal individuals. His run-ins with the law are a reflection of his character,” wrote Lesetedi in a judgement to which Justices Steven Gaongalelwe and Jacobus Brand assented.

This finding, which will provoke liberal ire, hews close to conservative orthodoxy that views criminal behaviour in non-material terms and totally rejects the idea that there is a causal link between poverty and crime. In service of the latter, some conservatives have posed what might seem to be perfectly legitimate questions: If poverty causes crime, then why are crime rates lower in poor Third World countries than in wealthy western nations?  Why do the filthy rich routinely and reflexively engage in crime?

Scholarship that has issued from the conservative quarter asserts that children from families abandoned by fathers as well as those who are not attached to their parents are more likely to engage in crime when they come of age. It further says that a mother’s strong affectionate attachment to her child, a father’s authority and involvement in raising his children and a high degree of religious practice are great buffers against a life of crime. As controversial is science (fully endorsed by conservatives) that says that the type of aggression and hostility demonstrated by a future criminal is often foreshadowed in unusual aggressiveness as early as age five or six. In terms of the latter, the future criminal tends to be an individual rejected by other children as early as six years, who goes on to form his own group of friends, often the future delinquent gang. Most radical perhaps is the reverse view that crime itself causes poverty and not the other way round.

While Lesetedi’s pronouncement doesn’t account for much in terms of the acreage it covers (only two sentences in a 40-page judgement), it is significant for what it means for future cases in which accused persons would want to use adverse personal circumstances as an excuse for their wrong doing. The significance is two-fold. Firstly, no longer will Botswana courts accept poverty, joblessness and related adverse factors as valid reasons for criminal wrongdoing. Secondly, this judicial standard cannot be challenged because it has been established by the highest court in the land. 

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