Death Penalty

Introduction

Since Independence in 1966, 38 people have been executed after being convicted of crimes for which the sentence is death. These crimes include treason, murder and assault during piracy. The last execution was on 18 July 2003 of Mr Lehlohonolo Kobedi. The largest number of people executed at one time were five, in 1995. Execution is carried out by hanging.  According to the Botswana Gazette, as of 23 July 2003, seven (7) people remain on death row.  Three of them have recently had their death sentences confirmed by the Court of Appeal. Mr Douglas Simon had his sentence confirmed on 25 July 2003, Mr Gouwane Tsae had his sentence confirmed on 28 July 2003 and Mr Joseph Mokhobo had his sentence confirmed on 30 July 2003. Information reaching DITSHWANELO indicates that the three are preparing for submissions to the Committee on the Prerogative of Mercy, which advises the President as to whether or not to grant clemency. DITSHWANELO continues to be denied access to condemned prisoners.

Of the 34 people executed in Botswana since Independence, only three (3) were women. From ongoing research by DITSHWANELO into murder cases, it was found that only few of the accused persons are women. For example, between the years 1992 to 1997, out of twenty-six (26) cases, only one (1) woman was found guilty of murder with extenuating circumstances. Also only four (4) women are known to have been sentenced to death in Botswana since Independence in 1966. Of the four (4), three (3) were executed, one (1) had her sentence reversed on appeal to 20 years imprisonment (DITSHWANELO is currently obtaining further statistics in this regard).

In 1999, two men, Messrs. Maauwe and Motswetla, were to be executed in January, but DITSHWANELO intervened and was able to obtain a stay of execution for the two men. This stay was confirmed in October 1999 when the Judge presiding over the proceedings declared a mistrial on the grounds that the two men had not received a fair trial. The two men are no longer on death row but are now waiting to be re-tried on the same charges.

The main argument of DITSHWANELO in the above case was on the non-arbitrary imposition of the death penalty in that it tends to be imposed on those who are marginalised and/or impoverished in society and who do not have access to adequate legal counsel. DITSHWANELO is in the process of raising funds for the test case involving the re-trial and appeals of the two accused men.

Mr Maauwe and Mr Motswetla have been imprisoned for nine (9) years since they were arrested in 1995. The legal system has still not reached a resolution of their case. The re-trial process is ongoing.

1. Legal Basis for the Death Penalty in Botswana

(a) Section 4 of the Constitution of Botswana provides that a sentence of death passed by a court of law is an exception to the protection of life under the constitution. In other statutes, the death penalty is provided for by:- 

(b) Types of Crime Punishable by Death

The types of crime for which the death penalty is mandatory are murder (section 203 (1)) treason (section 34) and piracy (section 63 (2)). There are no reported cases of death sentences for treason and piracy.  In murder, one has to prove extenuating circumstances so as not to receive the death penalty (Section 203 (2) of the Penal Code). The same applies for treason (Section 40 of the Penal Code). An example is the case of Marina Masono where the Court of Appeal, found that there were extenuating circumstances and reduced her sentence of death to twenty (20) years imprisonment.

(c) Right of Appeal

Every person charged with an offence has a right of appeal. Also every person charged with an offence for which the penalty is death, is entitled to a state-funded lawyer. Unfortunately the amount paid to these lawyers is minimal and often, the result is that most pro deo cases are handled by lawyers who lack the skills resources and commitment to handle such serious matters. The average fees paid to lawyers is P450 - P1,000 (US$270 - 600) per hour and P3,000 (US$1,800.00) per court attendance, compared to the current revised Pro Deo fees which are as follows:

a. For taking instructions……………   P130.00
b. For 1st appearance………………… P430.00
c. For subsequent appearance………  P220.00
d. Pro deo counsel are not paid by the hour.

2. Application of Death Penalty in Botswana

(a) Number of Executions Since Independence

There is a list available showing thirty-three (33) people who have been executed in Botswana since Independence till 1999.  The list was obtained from the Commission of Prisons in 1999 during the case of Mr. Maauwe and Mr Motswetla. The list has been updated to include the names of those executed since 1999.

The last execution was on 18 July 2003 of Mr. Lehlohonolo Kobedi. Mr. Kobedi was the thirty-fourth person to be executed since independence. He was a South African citizen convicted of murder in Botswana. Prior to that, there was an execution on 31 March 2001 of Ms Marietta Bosch, also of South Africa.

Prior to Ms Bosch's execution, the most recent scheduled execution was to be that of Gwara Brown Motswetla and Tlhabologang Maauwe.  These two men were due to be executed on 16 January 1999, but DITSHWANELO put in an application for the stay of execution on 15 January 1999, which was confirmed on 29 October 1999 by Judge Reynolds. The Judge declared a mistrial in the matter on the grounds that Maauwe and Motswetla had not received a fair hearing.

(b) Clemencies Granted

We are not aware of any of the Presidents of Botswana ever having commuted any sentence of death in exercise of their prerogative of mercy. However there was a recent newspaper report that made reference to a commutation of sentence by one of the Presidents.

(c) Public Perceptions

There is greater public support for retaining the death penalty in Botswana. The Government uses this as an argument for the retention of the death penalty in Botswana's Laws.

3. DITSHWANELO's Challenge of the Death Penalty in Botswana

(a) The Execution of Tlhabologang Maauwe and Gwara Brown Motswetla

On 15 January 1999, at the instance of DITSHWANELO - The Botswana Centre for Human Rights, the High Court of Botswana issued an interim order suspending the execution of the above-mentioned (Basarwa/San) men, which was set for 16 January 1999. The court gave the State until 22 February 1999, to show cause why the two men should be executed. In October 1999, Judge Reynolds decided that the two men had been denied a fair trial. He set aside both the convictions and sentences of death imposed on the two men and ordered a new trial. He also said that Attorney General Skelemani had both the right to decide on the nature of the charges to be brought against the men as well as the right to decline to prosecute at all.

On 11 February 2000, the State indicted the two men before the High Court on a charge of murder. The retrial is in progress. DITSHWANELO has been able to engage the same legal team which it employed in the case in 1999, as it is familiar with the human rights based approach which DITSHWANELO has insisted be utilised.

(b) Background

The hearing which was set for 22 February 1999 was postponed by the Court on request from Mr. Tlhabologang Maauwe and Mr. Gwara Brown Motswetla, to 28, 29 and 30 April 1999. The two accused persons who were co-applicants in the case together with DITSHWANELO, had further extended the grounds of argument to include a challenge upon the constitutionality of the death penalty. On 29 April 1999, an application brought on behalf of the accused persons, sought a further postponement to allow the applicants to introduce further evidence and to permit the Attorney General to deal with the body of evidence which was admitted at the hearing.

The range of issues raised in the application included the following:

Maauwe and Motswetla were arrested in 1995. In April 1997, they were convicted of a single count of murder and sentenced to 'hang by the neck until they are dead'. The two accused persons, stole an ox which had been placed in the charge of the deceased. In an effort to track down the ox, the deceased come upon the wrongdoers who then killed him and burnt his body in an effort to conceal any evidence of the offence. On July 1997 the Court of Appeal confirmed the death sentence of both men.

Since April 1998 DITSHWANELO had made repeated attempts to obtain information from the Botswana Government relating to the execution of the two men but such information was always termed as classified. It was only on 13 January 1999 that it was revealed through the press that the men were to be executed on 16 January 1999. It was also then that it was announced that the clemency appeals to the President had been denied in November 1998.

(c) DITSHWANELO's Standpoint on the Death Penalty

(i) DITSHWANELO respects the right to life and condemns all forms of murder whether perpetrated by individuals or by the state under the pretext of punishment. There is no evidence that the death penalty is an effective deterrent. Also, in a liberal democracy such as Botswana, which is based on freedom and equality, the death penalty is neither reasonable nor justifiable. DITSHWANELO is therefore taking appropriate steps towards the abolition of the death penalty in Botswana.

(ii) DITSHWANELO's contends that the `delay in carrying out the death sentence upon the two condemned men is a cruel and degrading punishment' and also that `death effected by hanging by the neck is a cruel and inhuman punishment'.

(iii) DITSHWANELO - The Botswana Centre for Human Rights is committed to the right of all people to equal and adequate representation so that any person charged with an offence is ensured a fair trial. Maauwe and Motswetla state that they were accorded insufficient legal representation at their trial and appeal as to render their trial unfair in contravention of the Constitution of Botswana.

(iv) The Constitution provides protection for everyone against discriminatory laws, either in themselves or in their effect. The death penalty has the effect of being applied in an arbitrary and discriminatory way in relation to the poor and illiterate in contravention of the Constitution.

(v) Other than the paramount issue of the death penalty, this case has also established a precedent with regard to locus standi. This means 'the right to bring a matter to court'. In Botswana, only the person directly affected by a violation of his/her right may file a suit in a court of law, to seek redress. It is now possible (within certain restrictions) for Non-governmental Organisations like ourselves to take matters to court on behalf of communities who are unable to do so themselves; whether due to ignorance of the law of merely out of lack of adequate financial resources.

In his decision, the Judge, Judge Reynolds stated that our constitution should be available and accessible to all. Difficulties arise in meeting this ideal by reason of factors that apply to certain persons such as lack of resources, remoteness and problems of communicating and understanding. In his view, there was enough evidence before the Court that Maauwe and Motswetla were illiterate, suffered from difficulties of communication, and were without resources and were otherwise ill-equipped to pursue their allegedly infringed rights whereas DITSHWANELO was in the position to act for them. He then ruled that to exclude DITSHWANELO at that point would be an unwelcome step as far as Maauwe and Motswetla are concerned and may amount to a threat to the interest of justice.

Related Pages

Alternative Reports to the Committee on the Elimination of Racial Discrimination (CERD)

List of People Executed in Botswana since 1966

Ms Mariette Bosch

Mr Lehlohonolo Kobedi

Mr Douglas Simon

Maauwe Motswetla Test Case - A summary of the case of two Basarwa/San men who were sentenced to death for murder.  The trial was later declared a mistrial after it was found that they were not given a fair trial.