CoA confirms legality of death penalty
Mpho Mokwape | Friday April 24, 2015 16:26
The bench of five judges, Ian Kirby, John Foxcroft, Alistair Abernethy, Elijah Legwaila, and Isaac Lesetedi said Justice Motswagole had misdirected himself through his findings that Section 203 of the Penal Code was unconstitutional.
The striking of the Section of 203 of which the death penalty is enshrined in had caused confusion whether the death penalty was abolished or not.
The CoA said Motswagole’s declaration of Section 203 of the Penal Code unconstitutional.
“This declaration has been made notwithstanding a 2003 judgment of the full bench of this court to the contrary in the case of Letlhogonolo Kobedi vs the State that held Section 203 constitutional,” Justice Kirby said.
Kirby was of the position that whilst Motswagole cited over 100 authorities, he omitted to mention Kobedi’s case.
“Motswagole was bound to mention Kobedi’s case. In order to uphold his finding on unconstitutionality, this court will need to be satisfied that Kobedi was wrongly decided,” he said.
He said more importantly Justice Motswagole failed to observe the longstanding principle that constitutional issues fall to be determined only when it was essential and when they are raised before the court for a decision.
Rodney Masoko was then sentenced to 20 years for the murder of girlfriend, with extenuating circumstances.
Masoko stabbed his girlfriend to death in 2006 in Francistown and the 2013 sentence was to run concurrently with the four years he got for unlawful wounding.
Kirby said they found that there were extenuating circumstances more so that Masoko had chosen to give evidence on oath.
“The judge was in error procedurally in two respects. First, he erred in failing to allow the accused at the time the full opportunity to state his case in extenuation, which could be either a recantation of an earlier version following conviction, or a confession or other explanation following an earlier election to remain silent”
The judges also found fault in the manner in which the lower court conducted the trial.
Kirby also pointed out that the judge dismissed the psychiatric report as “not quite helpful as the conclusions reached were not supported by any reasons” while on the contrary the psychiatrist’s affidavit was in standard format, detailed, unchallenged by the prosecution and rather admitted by consent.
The second error, Kirby said, the trial judge’s position that the accused person’s drunken state of mind did not matter was flawed.
“I do not think those findings accord with the evidence. It is common cause that the accused spent at least six hours drinking beer at a bar. The consumption of twelve beers could not but have had an effect on him. That is a matter of degree which the judge failed to consider and there is no doubt that his already raw emotions were further inflamed by the consumption of alcohol,” he said.
The state had appealed Motswagole’s ruling that the death penalty was unconstitutional after striking out Section 203 of the Penal Code.
Justice Motswagole had further declared that the problem with Section 203 was that it failed to afford equal treatment and equal opportunity to persons convicted of murder.
“This section seriously undermines the individualisation of the inquiry on imposition of the ultimate penalty by excluding well known sentencing principles and usual mitigation factors,” he had said.