CAPITAL PUNISHMENT IN BOTSWANA: THE CASE FOR ABOLITION

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INTRODUCTION

This thesis considers three selected sentencing options in Botswana, namely capital punishment, corporal punishment and mandatory minimum sentencing. In this study, the researcher investigates the continued use of the three selected sentencing options in Botswana’s criminal justice system using the doctrinal and comparative methods. The thesis commences by discussing each sentencing option in detail and highlights the problems that are identifiable in its continued. Thereafter, using the comparative method, the thesis investigates the experience of different jurisdictions, with respect to the selected sentencing options, with a view to discovering how each jurisdiction has dealt with similar problems presented by the use of these sentencing options. The selection of comparative jurisdictions is based on each country’s unique experience with the particular sentencing option, which may be instructive for Botswana. Alternative sentencing is discussed as a solution to fill the gap that would be created by abolition of the selected sentencing options. Recommendations on law reform conclude the discussion.

RESEARCH PROBLEM

The current use of capital punishment and corporal punishment is antiquated and anachronistic.The use of mandatory minimum sentences has resulted in lack of fairness in sentencing by fettering judicial discretion. These sentencing options have no continued legal usefulness in Botswana. Botswana should adopt sentences that promote human rights, in particular the right to life and the right to human dignity.

Why study sentencing?

The sentencing process is an important field of study in its own right. Whilst recognising that sentencing research has intensified from the early 1970’s, reform in sentencing has generally been neglected in comparison to other areas of criminal law and procedure. 13 This view is shared by other leading authors in sentencing notably Terblanche who refers to sentencing as ‘the neglected phase of the trial process.’14 Motivating for more research into the law of sentencing, Terblanche gives three arguments in support of its importance.Firstly, he states that sentencing is a process that takes place frequently hence the need to increase knowledge in the area. Secondly, he states that there is a view that sentencing is difficult and complicated. Thirdly, he notes that sentencing is the interface between the ordinary citizen
and the workings of the law.15

LITERATURE REVIEW

Research on the question of sentencing in Botswana is limited. Nevertheless, there are several text books and journals articles dealing with various topics in the area of sentencing. Three text books traverse the question of sentencing in Botswana. Their treatment of the subject is in general part of a larger discussion on criminal procedure in the country. Nsereko’s text book is a compilation of cases and materials in the area of criminal procedure in Botswana.32 It contains a chapter on sentencing. However, his comments on sentencing are short and do not delve into any detailed discussion on sentencing options.

CHAPTER ONE: INTRODUCTION
1 INTRODUCTION
2 CONCEPTUAL FRAMEWORK
2.1 Description of terms: Sentence, sentencing and punishment
2.2 Why study sentencing?
2.3 Sentencing and the Constitution
3 LITERATURE REVIEW
4 RESEARCH PROBLEM
5 RESEARCH OBJECTIVES
6 RESEARCH METHODS, DESIGN, METHODOLOGY, AND ETHICS
6.1 Research methods
6.2 Research design and methodology
6.2.1 The doctrinal method
6.2.2 The comparative method
6.3 Outcomes
6.4 Ethics
6.5 Citation style
7 STRUCTURE OF THE STUDY
CHAPTER TWO: CAPITAL PUNISHMENT IN BOTSWANA: THE CASE FOR ABOLITION
1 INTRODUCTION
2 DEFINING THE DEATH PENALTY AND MANNER OF EXECUTION
3 THE DEATH PENALTY IN BOTSWANA
3.1 Introduction and historical overview
3.2 The death penalty under the Botswana Constitution and Statutory Law
3.3 Limitations on the imposition of the death penalty
3.4 The Presidential warrant and the prerogative of mercy
3.5 The constitutionality of the death penalty in Botswana
3.6 The death penalty in Botswana: Decisions of the African Commission
3.7 Botswana’s international obligations and the death penalty
3.7.1 The place of international law in Botswana’s national law
3.7.2 Treaties guaranteeing the light to life
3.7.3 Treaties prohibiting the torture, cruel, inhuman and degrading punishment
3.8 Discourses on the death penalty in Botswana
3.8.1 The constitutional savings clause
3.8.2 Public opinion
3.8.3 Adequacy of representations
3.8.4 The prerogative of mercy
3.8.5 Secret executions
4 INTERNATIONAL AND REGIONAL PERSPECTIVES
4.1 The United Nations
4.2 The European Union
4.3 The inter-American human rights system
4.4 The death penalty in Africa
4.5 Death penalty: International trends
5 COMMON ARGUMENTS IN FAVOUR OF THE DEATH PENALTY
5.1 Individual and general deterrence
5.2 Retribution
5.3 Public opinion
5.4 Efficient punishment
5.5 Other arguments
6 ARGUMENTS AGAINST THE DEATH PENALTY
6.1 The death penalty is not a deterrent
6.2 The death penalty brutalises all those involved in the process
6.2.1 The prisoner
6.2.2 The executioners
6.2.3 The families and friends of the victim and the prisoner
6.3 The death penalty and poor and marginalised communities
6.4 The death penalty is imposed arbitrarily
6.5 The death penalty may result in execution of the innocent
6.6 The death penalty is a violation of the fundamental human rights of prisoners
6.7 Ineffective clemency process
6.8 Death penalty is sometimes imposed for less serious offences
6.9 Retroactive use of the death penalty
6.10 Death penalty against juveniles, the elderly, pregnant women and the mentally
incapacitated
6.11 The death penalty and public opinion
7 ACHIEVING ABOLITION: A COMPARATIVE STUDY
7.1 South Africa
7.1.1 Introduction
7.1.2 Historical overview
7.2 The United Kingdom
7.3 The Commonwealth Caribbean
8 LIFE IMPRISONMENT AS AN ALTERNATIVE TO THE DEATH PENALT
8.1 Advantages of life imprisonment
8.2 Disadvantages of life imprisonment
8.3 Life imprisonment in South Africa
8.4 Life imprisonment in England and Wales
9 ATTAINING A PROHIBITION OF THE DEATH PENALTY IN BOTSWANA: A PROPOSED ROADMAP
9.1 Overcoming the constitutional saving clause
9.1.1 Recommendations addressing constitutionality of the death penalty
9.2 Addressing public support for the death penalty
9.2.2 Recommendations regarding public opinion
9.3 Activism of medical professionals
9.3.1 Recommendation on activism of medical professionals
9.4 Signing international treaties to abolish the death penalty
9.4.1 Recommendation on signing of international treaties regarding the death penalty
9.5 Non-extradition to retentionist countries
9.5.1 Recommendation on extradition to retentionist countries
9.6 Enhancing alternative sentencing options
9.6.1 Recommendation on life imprisonment as an alternative to the death penalty
CHAPTER 3: JUDICIAL CORPORAL PUNISHMENT IN BOTSWANA: A ROAD MAP TO LAW REFORM
1 INTRODUCTION
2. THE RATIONALE FOR JUDICIAL CORPORAL PUNISHMENT
2.1 The divine right to punish
2.2 Punishment by social contract
2.3 Corporal punishment, racial oppression and sovereignty in colonial Africa
2.4 Corporal punishment as a response to ‘folk devils’ and ‘moral panics’
2.5 The link between corporal punishment and sex
2.6 Corporal punishment and religion
2.7 Corporal punishment, paternalism, power and discipline
3 JUDICIAL CORPORAL PUNISHMENT IN BOTSWANA
3.1 Judicial corporal punishment in the Constitution
3.2 Offences attracting corporal punishment
3.3 The manner of application of corporal punishment
3.4 Statutory limitations on the imposition of corporal punishment
3.5 Corporal punishment in the Customary Courts
3.6 Judicial corporal punishment of juveniles in Botswana
3.7 Corporal Punishment of juveniles in Customary Courts
3.8 Important Considerations in the sentencing of juvenile offenders
3.8.1 The best interest of the child principle
3.8.2 Defining a child for purposes of the sentencing of children in Botswana
4 CONSTITUTIONAL CHALLENGES TO JUDICIAL CORPORAL PUNISHMENT
4.1 The Clover Petrus decision
4.2 The Desai decision
4.3 The Kgafela Kgafela decision
5 BOTSWANA’S OBLIGATIONS UNDER INTERNATIONAL LAW
6 ALTERNATIVES TO JUDICIAL CORPORAL PUNISHMENT
6.1 Alternatives for adult offenders in Botswana
6.2 Alternative sentencing options for juvenile offenders
6.2.1 Probation
6.2.2 Ikago School of Industries
6.2.3 Community service
6.2.4 Imprisonment of children
7 DISCOURSES
7.1 Popular opinion
7.2 Extrajudicial flogging
7.3 Lack of a robust alternative sentencing system
7.4 Summary of challenges facing Botswana in abolishing judicial corporal punishment
8 COMPARATIVE JURISPRUDENCE
8.1 South Africa
8.2 Zimbabwe
8.3 Namibia
8.4 The United Kingdom
8.5 The United States
9 THE TURNING OF THE TIDE: THE REASONS FOR THE DECLINE OF JUDICIAL CORPORAL PUNISHMENT
9.1 The dignity of the human being is inviolable
9.2 The manner of infliction of the punishment is objectionable
9.3 Judicial corporal punishment demeans the punisher and organised society
9.4 Judicial corporal punishment has no deterrent or rehabilitative effects
9.5 Severity of the punishment depends on the character of the punisher
9.6 Judicial corporal punishment administered by a stranger is humiliating
10 POSSIBLE ALTERNATIVES TO CORPORAL PUNISHMENT
10.1 South Africa
10.1.1 Correctional supervision of adults
10.1.2 Restorative Justice for adult offenders
10.1.3 Community-based sentencing and restorative justice for juveniles
10.2 Australia
11 ROADMAP TO ACHIEVING PROHIBITION IN BOTSWANA
11.1 Overcoming the constitutional savings clause
11.1.1 A constitutional clause cannot be unconstitutional
11.1.2 Parliament should amend the constitution to uphold the dignity of persons
11.1.3 Recommendations
11.2 Addressing public support for judicial corporal punishment
11.2.1 Recommendations
11.3 Strengthening alternative sentencing options for adult and juvenile offenders
11.3.1 Recommendations
CHAPTER FOUR: RECONSIDERING THE USE OF MANDATORY MIMIMUM SENTENCING IN
BOTSWANA
1. INTRODUCTION
1.1 Types of mandatory minimum sentences
2. COMMON ARGUMENTS IN FAVOUR OF MANDATORY MINIMUM SENTENCING
2.1 Deterrence, retribution and incapacitation
2.2 A response to serious crime
2.3 Pursuit of consistency, predictability and uniformity in sentencing
3. COMMON OBJECTIONS TO MINIMUM SENTENCING
3.1 Mandatory sentencing is not an effective deterrent
3.2 Mandatory sentences breach human rights standards
3.3 Mandatory minima are often politically motivated
3.4 Mandatory sentences usurp judicial discretion
4 MINIMUM MANDATORY SENTENCES IN BOTSWANA
4.1 The history of minimum mandatory sentencing in Botswana
4.2 Reservations to the minimum mandatory sentence regime
4.3 Mitigating the rigours of minimum mandatory sentences through the Courts
4.4 The enactment of section 27(4) of the Penal Code
4.5 Interpreting ‘exceptional extenuating circumstances’
4.6 Exceptional extenuating circumstances through the cases
4.6.1 Youth and first offenders
4.6.2 Circumstances surrounding the offence and the offender
4.6.3 Value of the property stolen
4.7 Reservations to section 27(4) Penal Code
4.8 Mandatory minima and juveniles
4.9 Mandatory minima and the possible imprisonment of juveniles
4.10 Conclusions
4. MANDATORY SENTENCING: A COMPARATIVE SURVEY
4.1 South Africa
4.1.1 Rationale for the introduction of mandatory minima in South Africa
4.1.2 The impact of the 1997 amendment
4.1.3 Mandatory sentencing and juveniles in South Africa
4.2 MANDATORY SENTENCING IN ENGLAND AND WALES
5.2.1 Impact of minimum sentencing in England and Wales
4.3 MANDATORY SENTENCING IN AUSTRALIA
4.3.1 The Northern Territory
4.3.2 Western Australia
4.3.3 Impact of minimum sentencing in Australia
4.3.4 Mandatory sentencing and juveniles in Australia
4.3.5 Mandatory sentencing and indigenous communities in Australia
5. ALTERNATIVES TO MANDATORY MINIMUM SENTENCES
5.1 Presumptive sentences in the United States
5.2 Guideline judgements in England and Wales
6. LESSONS FOR THE FUTURE: PROPOSALS FOR LAW REFORM IN BOTSWANA
6.1 Research into the efficacy and possible abolition of mandatory minima
6.1.1 Recommendations regarding efficacy of mandatory minima
6.2 Interpretative guidelines on the scope of application of section 27(4) Penal Code 303
6.2.1 Recommendations regarding the application of section 27(4) Penal Code
6.3 Statutory limitations on the application of mandatory minima to juveniles
6.3.1 Recommendations regarding mandatory minima in sentencing juveniles
CHAPTER FIVE: RECOMMENDATIONS FOR LAW REFORM
1. INTRODUCTION
2. PROPOSALS FOR LAW REFORM
2.1 Capital punishment
2.1.1 Abolition of the death penalty
2.1.2 Challenging the manner of administration of capital punishment
2.1.3 A moratorium on the death penalty
2.1.4 Addressing public support for the death penalty
2.1.5 Activism of medical professionals
2.1.6 Signing international treaties to abolish the death penalty
2.1.7 Non-extradition to retentionist countries
2.1.7 Life sentences should also be extended to persons convicted of capital crimes
2.2 Judicial corporal punishment
2.2.1 Abolition of judicial corporal punishment
2.2.1 Addressing public support for judicial corporal punishment
2.2.3 Introduction of community-based sentencing following a prohibition
2.2.4 Introduction of restorative justice approaches for juvenile offenders
2.2.5 Engagement with Dikgosi
2.2.6 Evaluation of the impact of alternative sanctions
2.3 Minimum Mandatory sentencing
2.3.1 Research into the efficacy of mandatory minima in Botswana
2.3.2 The adoption of guideline judgements
2.3.3 A moratorium into the promulgation of further mandatory minimum sentences
2.3.4 Interpretative guidelines on the scope of application of section 27(4) Penal Code
2.3.5 Amending section 27(4) of the Penal Code to restore judicial discretion
2.3.6 Statutory limitations on the application of mandatory minima to juveniles
3. CONCLUSION
BIBLIOGRAPHY