PENALTY

As at January 2014, the status of the death penalty in Africa could be
summed up as follows: 6
• 17 formally abolitionist countries: Angola, Benin, Burundi,
Cabo Verde, Côte d’Ivoire, Djibouti, Gabon, Guinea-Bissau,
Mauritius, Mozambique, Namibia, Rwanda, Sao Tome and
Principe, Senegal, Seychelles, South Africa and Togo.
• 24 de facto abolitionist countries (no executions for
at least 10 years—the year of the last execution is given in
parentheses): Burkina Faso (1988), Cameroon (1988), Central
African Republic (1981), Chad (2003), Comoros (1997),
Republic of the Congo (1982), Democratic Republic of the
Congo (2003), Eritrea (before independence in 1993), Ghana
(1993), Guinea (2001), Kenya (1987), Lesotho (1995), Liberia
(2000), Madagascar (1958), Malawi (1992), Mauritania (1987),
Morocco (1993), Niger (1976), Sierra Leone (1998), Swaziland
(1982), Tanzania (1994), Tunisia (1991), Zambia (1997)
and Zimbabwe (2003).
• 2 retentionist countries observing a moratorium on
executions: Algeria and Mali.
• 11 retentionist countries: Botswana, Egypt, Equatorial
Guinea, Ethiopia, Gambia, Libya, Nigeria, Somalia, South
Sudan, Sudan and Uganda.
In Botswana, the most recent execution was in 2013. As at 13 June
2013, Botswana had executed 47 people since independence in 1966. 7
THE BOTSWANA HUMAN RIGHTS CONTEXT
Botswana is a signatory to the International Covenant on Civil
and Political Rights, which refers to the death penalty in Article 6:
“Anyone sentenced to death shall have the right to seek pardon or
commutation of the sentence. . . . Sentence of death shall not be
6 Hands Off Cain (2014).
7 T. Kgalemang, “Botswana hangs 47 since independence”, Botswana Gazette, 13 June 2013,
available from www.gazettebw.com/?p=3350.
imposed for crimes committed by persons below 18 years of age and
shall not be carried out on pregnant women.” Botswana is a State
party to the African Charter on Human and Peoples’ Rights and the
African Charter on the Rights and Welfare of the Child, but not to
the African Charter on Human and People’s Rights’ Protocol on the
Rights of Women in Africa.
The Botswana Constitution (Section 3) recognises the right to life,
liberty and security of the person and protection of the law. However,
the Penal Code provides for the death penalty for murder, treason,
instigating a foreigner to invade Botswana and committing assault
with intent to murder in the course of piracy. The Botswana Defence
Force Act also contains capital offences: aiding the enemy, cowardly
behaviour and mutiny.
The Penal Code provides that any person convicted of murder shall
be sentenced to death unless the court believes that there are extenuating
circumstances. To determine the extenuating circumstances,
the court shall take into consideration the “standards of behaviour
of an ordinary person of the class of the community to which the
convicted person belongs” (Section 203). The Penal Code further
states that the death sentence shall not be pronounced against any
person who is under the age of 18 or pregnant women under
any circumstances (Section 26). When a woman facing a death sentence
can prove that she is pregnant, her sentence will be reduced to
life imprisonment.
BARRIERS TO EQUAL JUSTICE
DITSHWANELO, the Botswana Centre for Human Rights, worked
on a death penalty case (DITSHWANELO v. Attorney General of
Botswana 8 )—that exemplifies some key barriers to equal justice for poor
people and ethnic minorities in Botswana. Tlhabologang Maauwe and
Gwara Brown Motswetla, two indigenous men of the Basarwa/San
ethnic group, were found guilty of the murder of a herdsman whose
ox they had killed. The Basarwa/San are generally poor and have few
economic and educational opportunities. They tend to depend for survival
on employment by wealthier cattle owners and on government
8 MISCRA Case No. 2 of 1999.
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