Africa, Crime & Justice, Headlines, Human Rights

Botswana Steadfast Over Death Penalty

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.

Comparing murder rates

Comparing homicide statistics across borders is inexact. Particularly in Africa, it is complicated by poor data sets, incomplete reporting, and widely varying definitions of murder and a corresponding difficulty in disaggregating what data there is.

U.N. Data provides various - and often conflicting - figures drawn from national police forces, government records and health surveys. The discrepancies in these numbers can be dramatic - South Africa's murder rate for 2004 as recorded by police sources is 39.5 per 100,000, but World Health Organization statistics for violent deaths that year show a rate of 68 per 100,000.

For the same year, Botswanan police sources report 14.2 murders per 100,000 people where the WHO numbers show 21.4. The gap could be due to several factors, starting with the WHO including suicides in the numbers it reports under violent deaths in its Global Disease Burden report.

For this article, for consistency's sake, we have used WHO stats for 2004 as the most recent information available for all three countries from the same source.

Molefhe and Sampson, who are scheduled to be executed in July, were also sentenced to five years imprisonment for unlawful possession of a firearm and ammunition. The men are appealing their sentence on the grounds that their judgment was impaired by drugs and alcohol when the killings were committed, and the punishment is too severe.

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.

Cautionary tale

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

Many Batswana believe the death sentence is a deterrent that keeps the incidence of murder in the country low. The police report an average of seven murders per week, most of which involve alcohol or domestic violence – or both. Botswana’s murder rate is estimated to be 21.5 per 100,000 (figures from UNData, see sidebar), much lower than neighbouring South Africa (68), but higher than another, more comparable neighbour, Namibia (12.8).

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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