Death row convict buys time
Mpho Mokwape | Friday February 12, 2016 14:19
Through a letter dated February 5, 2016 addressed to the Attorney General (AG), Athalia Molokomme, Gabaakanye has requested the AG to conduct or facilitate an independent assessment on his mental health and intellectual functioning.
He contends that the assessment should be done in order to determine whether he suffers from a mental illness, intellectual or psychosocial disability as a matter of urgency.
The notorious 59-year-old Gabaakanye commonly known as ‘RraSelepe’ having had his sentence of death upheld by the Court of Appeal (CoA) mid last year, is also currently awaiting the resolution by the High Court and CoA of outstanding issues relating to his clemency petition.
His lawyer, Martin Dingake, has argued that Gabaakanye has never had a mental health assessment and as such, it cannot be ruled out that he suffers from such a degree of mental illness and or intellectual or psychosocial disability as will preclude his execution under applicable norms of international law, as well as under domestic law. “My client has never been afforded a competent psychiatric assessment. The sentencing judge was not able to take any mental health condition or intellectual/psycho-social disability into consideration when reaching a decision on sentence. He said if Gabaakanye was to be executed without consideration of any mental health condition or intellectual/psycho-social disability, his execution will be rendered arbitrary and will violate the right to life under Article 4 of the African Charter by the African Commission,” he said.
Dingake contends that international customary law prohibits the execution of those suffering from a mental disorder which includes not only individuals who suffered from such a disorder at the time of the offence but also of those who have become mentally ill after their death sentence is imposed.
He explained that the term ‘mental disorder’ covered both psychosocial disabilities and mental illness many of which may not be immediately obvious. He said such included among others functional psychosis, schizophrenia, personality disorder, depression, epilepsy, and disorders arising from alcohol and drug dependence, noting that as such the African Commission has recognised the need to prohibit the execution of persons with psycho-social and intellectual disabilities.
According to the letter, the third of the UN Safeguards also provides that the death penalty shall not be carried on “persons who have become insane. In subsequent resolutions urging full compliance with the UN Safeguards, the United Nations Human Rights Commission repeatedly called upon states not to impose the death penalty on a person suffering from any form of mental disorder or to execute any such person.” Dingake maintained that with all the provisions his client was entitled to such an assessment at sentencing in order that his personal and individual circumstances could be properly considered when determining sentence.
He also pointed out that Gabaakanye needed the assessment report, as it has to be placed before the Advisory Committee on Clemency for consideration when they do finally meet.