Gabaakanye continues fight for his life
Mpho Mokwape | Friday December 18, 2015 15:37
The judge dismissed his application in which he was demanding the Attorney General (AG) to avail him with certain information he deemed crucial to his pending application for clemency.
Gabaakanye, 59, had moved an urgent interim application demanding the information and also seeking an interim interdict not to be executed pending his application for clemency to the President.
Last week Justice Tau of Lobatse High Court dismissed the application saying the court had no jurisdiction over the interim application.
In her judgement Justice Tau explained that the application in respect of procedural rights regarding the exercise of prerogative of mercy was a matter to be raised during the appeal.
Through his lawyer, Martin Dingake, Gabaakanye filed the notice and his grounds of appeal on December 15, 2015 seeking that the appeal against the jurisdiction be allowed and the matter be referred back to the High Court to determine the substantive application for procedural rights of a convict in clemency application.
“The learned judge, in both law and fact, when she failed to find that matters arising in the interim interdict, in particular procedure for application of clemency and whether or not a convict is entitled to a trial judge’s report, could not be raised with the High Court as the court of first instances,” he said.
Dingake said the judge erred in law by finding that the court has no jurisdiction over the interim application and finding that the matter before her was distinguishable from other cited cases he had raised like the Kobedi case.
Furthermore, Dingake argued that the judge failed in determining the interdict based on the need for an application as to the procedural fairness of the exercise of mercy and how it would amount to second guessing the conviction and sentence confirmed by the Court of Appeal. Meanwhile Gabaakanye who was sentenced to death in 2014 and later confirmed by the Court of Appeal this year, moved an urgent application to seek an interim interdict against the President and others on his execution.