Justice sleeps as murder convict walks
Staff Writer | Wednesday November 19, 2025 12:52
Delivering his judgment in the case of Dikalelo Mphakelwa, charged with murder in 2015 and convicted in November 2025 following a staggering 13-year legal odyssey, Kebonang held that proceeding with sentencing would be “incompatible with justice, fairness, and human dignity”.
Kebonang noted that Mphakelwa’s case raised an unusual but critical constitutional issue, namely, whether the right to be tried within a reasonable time can be breached even after conviction, and if so, what remedy the court must apply. “Section 18(1) of the Constitution allows any person whose rights have been violated or are likely to be violated to approach the court for redress. There is nothing that prevents constitutional questions from being raised after conviction. To impose limitations on Section 18 would contradict the spirit of the Constitution,” Justice Kebonang stated.
Mphakelwa was first arrested in February 2012 along with another suspect. Investigations, according to court records, were completed within a week, yet the Director of Public Prosecutions (DPP) took three years to institute criminal proceedings, which were only filed in 2015.
Despite the simplicity of the case, with only one prosecution witness testifying, the matter dragged on until conviction in late 2025. Kebonang was blunt, indicating that administrative inefficiencies offer no justification. “The transfer of prosecutors, inefficiencies within the Administration of Justice, and other logistical delays do not justify the length of this case. Justice delayed is justice denied. Such delays not only affect accused persons but also victims, their families, and the public’s confidence in the Administration of Justice,” he said.
Defence lawyer Ofentse Khumomotse argued that the entire delay was caused by the state’s lethargy, unjustified prosecutorial reshuffles, and a lack of urgency, adding that the drawn-out ordeal caused his client severe emotional and psychological harm. State counsel Attorney Matenge conceded that the delay was “unnecessarily long” but tried to shift part of the blame to the Administration of Justice, whilst arguing that Mphakelwa suffered little prejudice because he spent most of the proceedings out on bail.
“The suggestion that because the applicant was on bail, he is not entitled to complain is difficult to accept. Bail does not erase the psychological impact of delay. The accused’s freedoms remain on hold, and the emotional stress of a prolonged trial cannot be compensated for by bail,” Kebonang said. Kebonang lamented persistent backlogs and systemic inefficiencies, noting that despite the Administration of Justice’s guideline that criminal trials should conclude within two years, that target is “hardly ever met.” “It was for this reason that the Chief Justice established a specialised criminal court earlier this year. A change in courtroom culture is needed. Delays should be condemned and not rationalised. Justice must be less about judges and more about the people they serve,” he said.
In his final order, Kebonang delivered an unprecedented but pointed remedy that the conviction remains, but the sentencing process is forever stopped. “The applicant’s sentencing is hereby permanently stayed. The conviction remains intact. The applicant is to be released from prison with immediate effect unless held for another offence,” Kebonang. The ruling is expected to fuel debate about accountability in Botswana’s justice system and the real-world cost of systemic delay.