Ditshwanelo

On 15 and 16 January 2003, Mr Lehlohonolo Kobedi's case was before the Court of Appeal. Mr Kobedi was appealing the July 2001 decision of Justice Kirby of the High Court. Judge Kirby had dismissed all the grounds of the criminal application by Mr Kobedi, who had applied for a permanent stay of execution. Mr Kobedi was sentenced to death by hanging in October 1998 and the sentence was confirmed in January 1999. He filed for a stay of execution in November 1999 which was turned down by Justice Kirby in July 2001.

Mr Kobedi is represented in the Court of Appeal by Attorney Mack of Mack Bahuma Attorneys and Advocate Brian Spilg (SC) of Sandton Chambers in South Africa. The arguments raised by Attorney Mack and Advocate Spilg on behalf of Mr Kobedi include:

that the sections of the Penal Code which prescribe a mandatory sentence of death, unless there are extenuating circumstances, are unconstitutional
that due to his ill health (physical and mental), hanging Mr Kobedi will constitute cruel and inhuman punishment, and that the method of judicial execution prescribed by the penal code - that of hanging - is in contravention of the Constitution
that the imposition of the death penalty is contrary to the rights guaranteed under the Constitution and is arbitrary and discriminatory in effect, against those who do not have the resources or ability to fully engage the criminal judicial system
that the death sentence imposed on Mr Kobedi is a nullity because the sentence is in breach of Botswana's obligation to South Africa and to Mr Kobedi under the Vienna Convention on Consular Relations. Article 36 of the Convention prescribes for the immediate notification of a consular office when one of its Nationals is arrested or committed to prison or custody
that, given the gravity and finality of the death sentence, it is unconstitutional for the sentence to be imposed under circumstances which amounted to inadequate legal protection for Mr Kobedi. For example, he was not afforded a lawyer of his choice, the pro deo system of representation is inadequate, the Court is not entitled to consider mitigating circumstances, insufficient resources available to Mr Kobedi to allow him to engage the criminal justice system effectively and the judge making decisions on his own, without assessors
that Mr Kobedi was not afforded a fair hearing at his trial and that this was against his constitutional guarantee.

Further, the representatives asked the Court to declare Mr Kobedi's trial, a mistrial, as there was pertinent evidence which had not been brought before the trial court. This included forensic evidence that:

The representatives also requested the Court of Appeal to grant a temporary stay of the execution of Mr Kobedi until the reconsideration of the case by the High Court or the final outcome of the application for clemency and the communication to the African Commission on Human and Peoples' Rights. Judgement is awaited in this matter.

DITSHWANELO - The Botswana Centre for Human Rights, continues to monitor and campaign against the death penalty in Botswana. Mr Maauwe and Mr Motswetla, two Basarwa saved from the gallows in 1999, by DITSHWANELO's action, are to be re-tried in March 2003.

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. We maintain that there is no evidence which supports the argument that the death penalty is an effective deterrent. What is required instead, is the effective addressing of socio-economic conditions which contribute to the prevalence of crime.

DITSHWANELO also maintains that a fundamental component of the right to a fair trial is access to proper and adequate legal representation. Lack of adequate resources hampers the individual's ability to effectively engage the justice system. The death penalty is a final, irreversible process. For that reason there needs to be absolute certainty to guarantee that innocent persons are not wrongfully executed. Unfortunately, there can be no foolproof judicial system.

DITSHWANELO reiterates its call to the Government of Botswana to implement a moratorium on the death penalty.