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Sentencing in Botswana SENTENCING IN BOTSWANA: A COMPARATIVE ANALYSIS OF LAW AND PRACTICE by ELIZABETH NYAWIRA MACHARIA Submitted in fulfilment of the requirements for the degree LLD In the Faculty of Law University of Pretoria FEBRUARY 2016 SUPERVISOR: PROFESSOR ANNETTE VAN DER MERWE i DECLARATION I, Elizabeth Nyawira Macharia, hereby declare that this thesis is my original work and it has not been previously submitted for the award of a degree at any other university or institution. Signed: ________________________________________________ Date: __________________________________________________ Place: _________________________________________________ ii DEDICATION For my children Kgotla Zachary Raha Khumo Tashatha Ng’endo Keseitse Neema Mmabotho Yamasa Njeri Sechaba Macharia iii ACKNOWLEDGEMENTS The completion of this work has only been possible through the grace of God in whom all efforts, and particularly the most difficult tasks, find meaning. He has made it possible for me to complete this thesis amidst the many demands of family and professional life. I am indebted and grateful to my supervisor Prof. Annette van der Merwe whose constant encouragement assisted me immensely. Throughout this research, Annette gave me thoughtful insights and directed me to relevant materials. Her guidance and patience has been invaluable to me. She has been instrumental in helping me reach a long-held personal and professional milestone. A heartfelt ‘thank you’ to you Annette. The financial support of the African Academics Program of the Faculty of Law, University of Pretoria has without doubt made this journey possible. Thank you to UP for providing a meaningful and efficient way to enable African academics like me to work and study. I would like to express my gratitude my colleagues in the Faculty of Social Science and in the Department of Law at the University of Botswana for their encouragement and support. I am also immensely grateful for the support of Mrs. Toteng, our capable librarian. I would like to acknowledge and thank my family. First, my parents Professors Judith and John Kamau who by their words and example as career academics have been an inspiration. Second, I thank my sisters Esther, Eva and Tabitha who celebrated every milestone with me. You are a formidable cheer-leading squad! Third, I extend my sincere gratitude to my dear friends in Gaborone and those at Arbor and Lakeview who laughed, cried and prayed with me. And finally, my greatest gratitude goes to my darling husband Unami Mokobi for bearing with me these past few years whilst I researched, wrote and talked about sentencing at the dinner table. Thank you for expertly holding the fort! May God in his abundance bless you all. iv SUMMARY OF THESIS ‘Sentencing in Botswana: A comparative analysis of law and practice’ This thesis considers capital punishment, corporal punishment and mandatory minimum sentencing in Botswana and the continued usefulness of these three sentencing options. The thesis adopts a comparative approach. Firstly, the thesis examines the abolition of capital punishment in South Africa, and the United Kingdom, as well as inroads made in the manner of application of capital punishment in retentionist commonwealth Caribbean states. Secondly, the process leading to prohibition of judicial corporal punishment in South Africa, Namibia, Zimbabwe, England and Wales, as well as the United States is analysed. Thirdly, the thesis considers mandatory minimum sentencing in South Africa, England and Wales and Australia. The imposition of judicial corporal punishment on juvenile offenders is also examined. Alternative sanctions that may replace these sentencing options are investigated. The findings are that the selected sentencing options fall short of international human rights standards and, in particular the right to life and the right to human dignity. The primacy of these rights is notable in sentencing law and practice of each comparative jurisdiction. The promovenda identifies current barriers to dispensing with these sentencing options in Botswana. Drawing from the comparative jurisprudence, she proposes how Botswana may successfully achieve abolition of the death penalty, prohibition of judicial corporal punishment and improvement of the mandatory minimum sentencing regime. Recommendations are also made for suitable alternative sanctions such as life imprisonment, correctional supervision and restorative justice approaches to sentencing of adult and juvenile offenders, which, if incorporated, will advance sentencing law in Botswana. v Key terms Sentencing – Botswana – human rights – capital punishment - judicial corporal punishment - mandatory minimum sentencing - sentencing of juveniles - alternative sentencing- comparative perspective – law reform. vi LIST OF ABBREVIATIONS ACHPR African Charter on Human and Peoples’ Rights ACRWC African Charter on the Rights and Welfare of the Child CAT Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment CJA Child Justice Act CP&E Criminal Procedure and Evidence Act ICCPR International Covenant on Civil and Political Rights SALRC South African Law Reform Commission TRC Truth and Reconciliation Commission UDHR Universal Declaration of Human Rights UNCRC United Nations Convention on the Rights of the Child UN United Nations vii GLOSSARY Botho Setswana term for the idea or philosophy of human-ness or personhood Dikgosi Setswana term for Chiefs Go kgwathisa Setswana term for judicial corporal punishment under Tswana Customary Law Kibiko Swahili term for hippopotamus and the name of a whip made from hippopotamus hide. However the term has become synonymous with any instrument of corporal punishment like a cane or switch Kgosi Setswana term for Chief Kgosana Setswana term for headman who assists the Chief with his duties Kgotla Setswana term for the traditional meeting place for tribal communities living in Botswana where the Chief meets his tribe or morafe. In the Kgotla every person has a right to be heard and it is in the Kgotla where decisions are taken after a consultative process. Morafe Setswana term for members of a tribe. Mophato Setswana term for an age group of persons initiated in the same season. It is a manner of organising members of a tribe. Mephato can be requested to perform specific tasks for the Chief. Mephato plural of mophato Motshwarelela Bogosi Setswana term for a regent to the Chief Therisanyo Setswana term for consultation. Therisanyo is an important ideal in Setswana culture where decisions affecting the tribe are taken after broad consultation. The principle has found its way into modern life and is often applied by the Government. Before the passing of important new legislation the minister responsible for the statute will hold Kgotla meetings country-wide to gauge the wishes of citizens. Thupa Setswana term for a cane Ubuntu Nguni Bantu term for the idea or philosophy of human-ness or personhood viii Table of Contents LIST OF ABBREVIATIONS VII GLOSSARY VIII CHAPTER ONE 1 INTRODUCTION 1 1 INTRODUCTION 1 2 CONCEPTUAL FRAMEWORK 2 2.1 Description of terms: Sentence, sentencing and punishment 2 2.2 Why study sentencing? 3 2.3 Sentencing and the Constitution 4 3 LITERATURE REVIEW 6 4 RESEARCH PROBLEM 8 5 RESEARCH OBJECTIVES 8 6 RESEARCH METHODS, DESIGN, METHODOLOGY, AND ETHICS 9 6.1 Research methods 9 6.2 Research design and methodology 11 6.2.1 The doctrinal method 11 6.2.2 The comparative method 12 6.3 Outcomes 14 6.4 Ethics 14 6.5 Citation style 15 7 STRUCTURE OF THE STUDY 15 CHAPTER TWO 18 CAPITAL PUNISHMENT IN BOTSWANA: THE CASE FOR ABOLITION 18 1 INTRODUCTION 18 ix 2 DEFINING THE DEATH PENALTY AND MANNER OF EXECUTION 18 3 THE DEATH PENALTY IN BOTSWANA 21 3.1 Introduction and historical overview 21 3.2 The death penalty under the Botswana Constitution and Statutory Law 28 3.3 Limitations on the imposition of the death penalty 35 3.4 The Presidential warrant and the prerogative of mercy 35 3.5 The constitutionality of the death penalty in Botswana 37 3.6 The death penalty in Botswana: Decisions of the African Commission 47 3.7 Botswana’s international obligations and the death penalty 51 3.7.1 The place of international law in Botswana’s national law 51 3.7.2 Treaties guaranteeing the light to life 52 3.7.3 Treaties prohibiting the torture, cruel, inhuman and degrading punishment 55 3.8 Discourses on the death penalty in Botswana 56 3.8.1 The constitutional savings clause 56 3.8.2 Public opinion 57 3.8.3 Adequacy of representations 58 3.8.4 The prerogative of mercy 59 3.8.5 Secret executions 60 4 INTERNATIONAL AND REGIONAL PERSPECTIVES 60 4.1 The United Nations 63 4.2 The European Union 66 4.3 The inter-American human rights system 68 4.4 The death penalty in Africa 71 4.5 Death penalty: International trends 75 5 COMMON ARGUMENTS IN FAVOUR OF THE DEATH PENALTY 77 5.1 Individual and general deterrence 77 5.2 Retribution 77 5.3 Public opinion 78 5.4 Efficient punishment 78 5.5 Other arguments 79 x 6 ARGUMENTS AGAINST THE DEATH PENALTY 79 6.1 The death penalty is not a deterrent 79 6.2 The death penalty brutalises all those involved in the process 82 6.2.1 The prisoner 82 6.2.2 The executioners 83 6.2.3 The families and friends of the victim and the prisoner 84 6.3 The death penalty and poor and marginalised communities 84 6.4 The death penalty is imposed arbitrarily 85 6.5 The death penalty may result in execution of the innocent 86 6.6 The death penalty is a violation of the fundamental human rights of prisoners 87 6.7 Ineffective clemency process 88 6.8 Death penalty is
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