Infanticide mother sentenced to six months

GALE NGAKANE
Correspondent | Wednesday September 16, 2009 00:00

Though he delivered the judgement in which he found no extenuating circumstances last week, Justice Moses Chinhengo of the Francistown High Court hit a snag when time came for him to pass the sentence.

After mitigation was dealt with, the judge had to seek the assistance of the prosecution led by Principal State Counsel Keneilwe Lephalo and the defence led by Sithambelumthetho Ngwenya of Manyothwane & Partners.

Though there was no doubt that 38-year old Nyatsego Nthoiwa, who sat impassively in the dock, had planned and then carried out the murder of her newly born baby, Justice Chinhengo had to weigh the fact that she also had two young children who are dependent on her.

The first one is seven years old and in lower primary school, while the other is one year old.

Justice Chinhengo also looked into questions of whether the murder of a baby was more or less reprehensible than that of an adult, that a baby is incapable of suffering pain like an adult and that its level of consciousness is not so developed that it is able to agonise about approaching death.

'The argument also says the death of a baby does not leave a gap in the family, that it is not a breadwinner, it has no companion and that society will not feel deprived,' Chinhengo quoted the argument.

The other argument was that a baby is utterly vulnerable, helpless and totally innocent of any wrongdoing.

'Moreover, a newly born infant is particularly dependent on the very hands that destroy it,' said Chinhengo.

But the judge said in his conclusion: 'I believe that even if one holds the view that murder of an infant is less reprehensible than that of an adult, the message must be clear - newly born infants are a class of their own and must be protected by law.

'Society cannot countenance the killing of infants who are to be members of the next generation.'

By arriving at the six years, he said he was concerned about the plight of her other children who, though they would be taken care of by relatives and friends, need their mother much more,' he said.

Experts who testified in the trial included a Nyangabwe Referral Hospital pathologist, Dr Vladimir Patnaik, Dr Phillip Opondo from the same hospital, and Dr Dennis Ngambi from Letlhakane Primary School.

Dr Patnaik testified that the baby had died from suffocation, that its mouth and nostrils were closed until it ran out of air and died. In her evidence, Nthoiwa had said she had wanted to apply first-aid because she had delivered the baby into a bucket and it could not breath.

But the judge, who wanted to know whether she applied first-aid so 'negligently' as to cause the death of the baby, quashed that.

Other witnesses were Nthoiwa's boyfriend, Kaisara Esia, a traditional doctor Gobusamang Bodirilwe, an acquaintance Keakantse Sampule, and a police officer Detective Constable Susan Thamage nee Molefhi.

Evidence led before the court was that on April 18, 2006 Nthoiwa, now a mother of two, who was working for Furniture Mart in Letlhakane then, gave birth to a baby at approximately 2am, strangled it to death and then buried it in the bushes.

She was arrested by plainclothes police officers during working hours at her workplace where 'she was just fine' and going about helping customers as if nothing had happened.

She was placed in custody while the case was still at the magistrates court, but she was given bail when it was committed to the High Court.

Weighing evidence led by all the witnesses, Justice Chinhengo said they were all credible witnesses except for Sampule who had exhibited timidity, even though her account was also indisputable.

Sampule had told the court that on 14 April 2006, Nthoiwa asked her if she knew anyone who performed abortions and that she (Sampule) told Nthoiwa to ask her cousin, one Onalenna.

Onalenna advised Nthoiwa to use a stick of a mokhure tree by inserting it into her vagina, saying that would result in a watery substance coming out, followed by the foetus.

Apparently Nthoiwa did use a mokhure stick the following day, but she did not abort, and she informed Sampule to that effect and said she would try again. Three days later, on April 18, she sent for Sampule who on arrival found Nthoiwa spreading a mat on the floor inside her house.

Nthoiwa informed Sampule that she had succeeded in aborting and that a person by the name of Chamas had gone to buy petrol with which to burn the foetus.

Sampule left Nthoiwa in front of her house holding a black handbag and a silver school bag (rucksack) whereupon the latter informed the former that the rucksack contained the things they were going to burn.

Nthoiwa was given six weeks within which she may appeal the sentence. Her lawyer Ngwenya immediately told Mmegi that they would appeal because the other two children would be left virtually orphaned.