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GABORONE, Apr 9 2011 (IPS) - On Apr. 15, Michael Molefhe and Brandon Sampson will appeal against their death sentences in the Court of Appeals in the Botswanan capital, Gaborone.
In 2007, the men were convicted of murdering two Zimbabweans, Sam Humbarube and Robert Ncube. The prosecution successfully argued that Molefhe, a South African, and Sampson believed Ncube had killed Molefhe’s aunt in South Africa in the 1990s. The pair located Ncube in Mogoditshane village, just outside Gaborone, and killed him and a visiting friend, Humbarube.
Ten years ago, Botswana attracted international attention when another South African, Mariette Bosch, was sentenced to death for the murder of her friend, Maria Wolmarans. Bosch killed Wolmarans in 1996 in Gaborone, and married Wolmarans’s husband a few months later: convicted of premeditated murder, she was hung on Mar. 31, 2001, the fortieth person (and the fifth woman) to be executed since Botswana’s independence in 1966.
The Bosch hanging was widely condemned, with several European countries even threatening sanctions against Botswana. Within the country, the Centre for Human Rights – more commonly known as Ditshwanelo – was at the forefront of criticising the sentencing and execution just two months after her appeal was rejected.
Since Bosch’s hanging in 2001, Botswana has executed at least five more people, according to death penalty abolitionist group Hands off Cain. The group is critical of legal representation for the poor, asserting that the low rates paid by government to defence lawyers mean only young and inexperienced lawyers take on the difficult job of defending capital cases.
In 2005, Gwara Motswetla and Tlhabologo Maauwe, members of the marginalised indigenous Basarwa (or San) ethnic group, narrowly escaped execution. They had been convicted of murdering a man whose ox they were accused of having stolen, and had seen their 1997 appeal rejected, their death sentences endorsed by then-President Festus Mogae, and a January 1999 execution date set.
Ditshwanelo was able to delay the execution, and supported a fresh legal challenge in 1999. This led a judge to set aside their original murder conviction after a new legal team presented evidence of incompetence and malpractice by their original defence lawyers.
The court heard that the two men had written a letter to the court before a failed appeal in 1997, asking that their lawyers be replaced, but the letter was never acted upon – or even presented to the Court of Appeal.
New lawyers Kgafela Kgafela and Brian Splig also argued that the original defence team had no notes from consultations with their clients, nor from the trial itself, and failed to cross-examine witnesses on evidence in court. They had been denied private meetings with their lawyers, and may not have fully understood court proceedings which were not translated.
A mistrial was declared, and when a re-trial was finally opened in 2005, the judge ruled the state was responsible for an unreasonable delay of justice, depriving the accused of their right to fair trial in a reasonable time. Nine years after their arrest, Maauwe and Motswetla were acquitted and discharged.
But the voice of Ditshwanelo has not been heard on recent cases. In 2008, Mokwadi Fly was sentenced to death and subsequently hanged in March 2010. He had been convicted of murdering his five-year-old son with an axe in Francistown, after arguing with the child’s mother.
The case again revealed strong popular support for the death penalty in Botswana. Conversations everywhere supported the ruling handed down by a three-judge panel – rejecting his defence that he had hit the child by mistake, and finding that he had premeditated the murder of a child who was blameless in an argument between his parents. Fly lost his appeal and the president, under strong public pressure to show that such criminal acts will not be tolerated, did not grant clemency.
Steadfast popular support
Opposing the death sentence in Botswana is politically risky. Political parties have avoided taking a definite stance, but lawyer Duma Boko, who in 2010 became the leader of the main opposition party, the Botswana National Front, is a notable exception. He defended Brandon Sampson in his 2008 trial and has publicly spoken out against capital punishment for many years.
The upcoming court appearance may provide an opportunity for Boko and other opponents of the death penalty in Botswana to again make the case against capital punishment.
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