Don�t execute me
Mpho Mokwape | Friday September 4, 2015 14:50
Through a notice of motion on September 2, 2015, Gabaakanye indicates that he wants to move an urgent application to seek an interim interdict against the President and others on the execution.
According to the papers, he would challenge that the President and others should not sign the warrant of execution pending the determination of proceedings and the relief he seeks regarding the procedure and process on prerogative on mercy. He mainly wants to challenge for his right on addressing the advisory committee on prerogative of mercy as provided for in the Constitution, and that the signing of his warrant of execution to be temporarily stayed.
Gabaakanye’s lawyer, Martin Dingake, engaged the Attorney General to seek advice on the process and procedure to be on the prerogative of mercy as outlined in the Constitution. He had also wanted the AG to take an undertaking advising the President not to sign the warrant of execution pending his appeal. The letters were both addressed to the President and the AG. The AG responded in that there was no such processes and procedures outlined under the Constitution that give guidelines on appeal regarding clemency and that the attorney could start the petition for clemency without any such process and procedure.
Athalia Molokomme also noted that the advisory committee decides the procedure on its own and that she was also not mandated to advise the President on such undertakings.
“Also note that I shall not be advising His Excellency to do any of your requirements and know that the committee on the prerogative of mercy does not, as a matter of practice, convene unless a petition for mercy has been received,” reads the letter. However, Dingake argued that he could only proceed with petition for clemency for his client only if he was given a record of the process and procedure on prerogative of mercy. “There is absolutely no prejudice to be suffered by the respondents if the procedure is stated and made available to me and the public at large. On the contrary myself and those similarly circumstances will suffer immense prejudice if we are not advised of the procedure adopted. I venture to suggest that in fact the very idea that the procedure could exists but may be withheld from us is to set us up from failure in our applications,” he
He also noticed that they would seek an order directing and ordering the president to constitute a meeting of the advisory committee on prerogative of mercy under the Constitution of Botswana for purposes of determining the committee’s procedure as related to application for prerogative of mercy,” he said.
Through a founding affidavit, Gabaakanye said he would be seeking an interdict against the officer in charge from carrying out the execution, as he would suffer harm if such was to be carried while he was appealing.
“I aver that as set out I have a prima facie right, furthermore the only recourse I have is for an interim interdict to be granted as the harm I am likely to suffer would be irreparable,” states the affidavit.
On urgency, Gabaakanye pointed that the grounds favours him and that he has reasonable fear that while his application is pending, he might be executed.