The mirage of an 11th hour rescue from death
Mpho Mokwape | Friday February 23, 2018 17:11
In the movies, the prisoner is strapped onto the gurney. His executioners prepare to inject him or switch on the electric chair.
A phone suddenly bursts into the life. It’s the governor of the state and he is suspending the execution.
Phew!
A similar arrangement exists in Botswana, although a little more technical than the American movies.
The prerogative of mercy is one of the powers that the President can exercise his discretion on.
Each sitting president has the power to save a convict from death even at the last minute. However, even though records are sketchy, it is evident that since Independence none of the four sitting presidents have ever exercised this power, when it comes to death row convicts.
The existence of an 11th hour hope has been a cruel mirage for many who have met the hangman. Constitutionally, the President does not arrive at a decision on mercy in isolation.
In fact, the law states that for each confirmed death penalty case, the President is compelled to convene a meeting of the Advisory Committee on Prerogative of Mercy.
The shadowy committee comprises the Vice-President or a Minister appointed by the President, the Attorney-General and a medical practitioner registered in Botswana.
“After obtaining the advice of the Committee the President shall decide whether to exercise any of his powers under section 53 (prerogative of mercy) of this Constitution,” reads the law.
Families of deceased death row convicts and lawyers have doubts about the committee and its role in advising the President.
There are those who believe if the committee really exists, it is more or less a rubber stamp for a decision that has been taken again and again since Independence, being that there will be no mercy for those on death row.
Those who hold this view point to the fact that the last two executions, Patrick Gabaakanye in 2016 and Joseph Tseleyarona last Saturday, were hung while waiting for their outcome of their pleas for clemency.
Both their lawyers have decried the lack of transparency in the process of mercy and the Committee tasked with advising the President.
Their contention is that no formal communication was done before the execution. In previous years, some lawyers went to death row to consult with their clients, only to find that the clients had already been executed.
Attorney Martin Dingake is one of the few attorneys to have come face to face with the cold nature of the mercy process.
His client, Gabaakanye, was executed without Dingake’s knowledge. There was also no feedback about the pardon they were seeking.
Dingake said he was never informed about the sitting of the Advisory Committee on Prerogative of Mercy and neither was he told what its recommendations were. Neither Dingake nor his client were informed about the President’s decision on mercy.
“I imagine that to the extent that Gabaakanye was executed, the President must have refused and or declined to exercise any of his powers as conferred on him by the constitution. It is doubtful again that the President could have communicated his decision or lack of it, let alone its reasons to Mr Gabaakanye who I believe would have told me at the earliest,” he said.
However, Dingake noted that there was no law that compelled the President to make such communication, let alone the Committee whose role is only advisory.
He explained that the committee only existed to render such advice as it maybe minded to give to the President.