University of Botswana Law Journal - PULP

104 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
5.1.5 The duty to advise the unrepresented accused about
exceptional extenuating circumstances in the case of
compulsory sentences
In its bid to curb certain socially undesirable acts, Parliament has intervened to
enact minimum sentences in respect of certain offences. In this regard, statute
provides for compulsory minimum sentences which judicial officers are bound
to follow. There are a number of such legislations in Botswana. Whether the
intention of Parliament is to stamp out such crimes by deterring would-be
offenders with stiff penalties, to incapacitate offenders in respect of certain
crimes that the society considers being serious or prevalent, or to ensure that
the measure of retribution is proportionate to the crime committed is a matter
for conjecture. What is clear, however, is that the taking away of judicial
discretion in sentencing has led to obnoxious consequences wherein accused
have sometimes received severe sentences for trivial conduct, merely because
the crime they committed carry statutory minimum sentences even though the
gravity of their conduct did not deserve such sentences. Cases where judicial
officers apply mandatory sentences which are disproportionate to the conduct
of the accused usually attract public outcry. It is interesting to note that similar
sentiments have been echoed in Parliament as well, even though they are the
creators of such provisions. 94
The legislature found a solution to the problem caused by minimum
sentences, by legislating an escape clause which permits judicial officers to
circumvent statutory minimum sentences “where there are exceptional
extenuating circumstances which would render the imposition of the statutory
minimum period of imprisonment totally inappropriate ...”. 95 While it is clear
that judicial officers should consider exceptional extenuating circumstances
before imposing sentence in respect of offences carrying minimum
sentences, 96 there is no authority that the unrepresented accused should be
94 In the words of Dibotelo J (as he then was) in the case of Matomela and Another v The State [2000] 1
B.L.R. 396 at p. 399D-G, “In my view, the often resorted to practice of enacting mandatory minimum
sentences for certain types of offences constitutes a threat to the independence of the courts as envisaged
by the Constitution and the practice by the legislature of arrogating to itself the functions reserved for the
judiciary by the Constitution is clearly undesirable and should be discouraged or discontinued as it erodes
the discretionary powers of the courts in sentencing offenders. It is ironic and sad and I often observe with
detached amusement that whenever there is a public outcry arising from what the public perceives as
injustices meted out by the courts when they impose mandatory minimum sentences which have been
prescribed by the legislature, some members of the legislature also blame the courts in such situations
instead of owning up and shouldering the blame. There is a real danger in my view that the often resorted
to practice of prescribing mandatory minimum sentences may in the near future bring very unhealthy
conflict between the legislature and the judiciary.”
95 Section 2 Penal Code (Amendment) Act 39 of 2004, incorporated into the Penal Code as section 27(4).
For a consideration of what amounts to exceptional extenuating circumstances, see State v Fu and Others
[2006] 1 B.L.R. 486; Serumola v Director of Public Prosecutions [2007] 1 B.L.R. 434 (CA); Keboseke v
The State; Seleka v The State [2008] 1 B.L.R. 327 (CA); Tlhowe v The State [2008] 1 B.L.R. 356 (CA);
Seme and Another v The State [2006] 1 B.L.R. 35; State v Basutli and Another [2007] 3 B.L.R. 409; State
v Moyo [2007] 1 B.L.R. 737; Seakgatleng v The State [2006] 2 B.L.R. 301; Piet v The State [2007] 2
B.L.R. 460; State v Anis [2007] 2 B.L.R. 346.
96 State v Khumo and Another [2007] 3 B.L.R. 844.