PENALTY

Transparency of clemency proceedings
The Constitution (Sections 53 and 54) provides for appeal to the
President for the commutation of the death sentence on the advice
of the Advisory Committee on the Prerogative of Mercy. Neither the
appellant nor his or her legal representative have the right to appear
before the Committee. The lawyers and families of the appellant learn
of the outcome of an unsuccessful appeal through the announcement
of the execution after it has been conducted.
“DISCRIMINATION
IS A PROBLEM IN
THE APPLICATION
OF THE DEATH
PENALTY AROUND
THE WORLD.”
—Alice Mogwe
In 1998, DITSHWANELO
wrote to the Commissioner of
Prisons to enquire about the
outcome of the clemency process
of Mr. Maauwe and Mr.
Motswetla. The response from
the Commissioner of Prisons
was that such information was
classified. 12 The secrecy surrounding
the clemency process renders it a ritualistic process with
little substantive significance for those seeking mercy. There has been
only one reported case of a commutation of a death sentence to a life
sentence since independence in 1966; this occurred in 1975. 13
In the case of Lehlohonolo Bernard Kobedi v. the State Court of Appeal, 14
Mr. Kobedi’s new legal representative presented new ballistic evidence
that proved that he could not have committed the murder. However,
according to the rules of the court, that evidence ought to have been
presented to the lower court, and it was not admissible. The Court
declared itself “functus officio,” or unable to act further in the case, and
advised that the appellant seek mercy from the President. The request
for mercy was not successful, and Mr. Kobedi was executed.
Defendants represented by inexperienced counsel, who lack the resources
and commitment to adequately prepare for capital cases, experience discrimination
as they have less chance of receiving a fair trial. Even an
ideal judicial system is run by human beings, and all humans are fallible.
A clemency process provides an essential “fail-safe.” 15 But in Botswana,
the exercise of the prerogative of mercy (clemency) is not guided by any
publicly accessible procedures or restricted by rules of evidence.
Language barriers
Botswana is home to more than 30 ethnic groups. Its official language
is English and its national language is Setswana, the language of eight
of the ethnic groups. Language barriers can seriously hinder the judicial
process, from investigation to interrogation and appearance in
court. In the case of DITSHWANELO v. Attorney General of Botswana,
16 the prisoners, Mr. Maauwe and Mr. Motswetla, were illiterate
and did not know their exact dates of birth. They could understand
some words of the national language, Setswana, but spoke neither
Setswana nor the other commonly spoken language of their area,
iKalanga. They spoke Secherechere, a dialect of Sesarwa.
They argued that they had not understood the confession documents
on which they had affixed their thumbprints, had not been able to
communicate with the authorising officer when their statements
were taken in Setswana, and had complied when asked for their
thumbprints because they feared the police. The three-way communication
in the High Court—Sesarwa to Setswana to English—used
a dialect of Sesarwa unknown to them. They had a letter written
on their behalf stating, “We are Basarwa and we do not understand
Setswana well. Therefore we had difficulties in communication at the
High Court.” The Registrar of the High Court received the letter,
but neither assigned them a new lawyer nor placed the letter in their
file for the Court of Appeal. It was during the case that the issue of
poor interpretation, inability to communicate and the letter that had
been written about it were discovered and raised.
Members of ethnic minorities who cannot communicate in the language(s)
of the court depend on the help of skilled translators. Often
these are not provided. Their combination of poverty and illiteracy
12 Ibid., p. 32.
13 Botswana Initial Report to the United Nations Committee on Civil and Political Rights, p. 43.
14 Criminal Appeal No. 25 of 2001, High Court Criminal Trial No. F.29 of 1997.
15 Herrera v. Collins, 506 US 390 (1993), quoted in Amnesty International, United States of America:
Death by Discrimination.
16 MISCRA Case No. 2 of 1999.
176 177