Poloko�s last chance to beat death
Mpho Mokwape | Friday February 2, 2018 13:17
This morning the highest court in the land will either set Uyapo Poloko free, or he will become the first man in 2018 condemned to die.
The 37-year-old, a graduate of counselling at Tonota College of Education, is the second death row convict this year to face the Court of Appeal. Early last month, Tsholofelo Maselwa walked the same road and became the first convict to escape the noose in a while.
Poloko’s court date comes after a year in which a record number of people were sentenced to die. Mmegi’s research showed that seven people were sentenced to death last year, joining an unknown number who already have a date with the hangman.
Poloko’s journey has been as dark as it has been long. Eight years ago, in January 2010 at Ntshe location in Francistown, Poloko killed an Indian woman and attempted to kill her husband, while robbing them of two Nokia cellphones and P3,500. Judge Modiri Letsididi imposed capital punishment.
The facts accepted by the High Court made for grim reading and led Letsididi to rule that no grounds for mercy existed.
Poloko was employed by the elderly Indian couple who were preparing at the time of the murder to return to their homeland. While selling their wares, the couple had rewarded Poloko by selling him a vehicle for just P3,500. However, this was not enough for the employee as he returned later on the same day and attacked the couple to recover the money he had paid for the vehicle.
He strangled the man and left him for dead in his garage, before attacking the wife, strangling her to death. He then made off with the cash and goods. Capital punishment was imposed and the convict has been trying to wriggle out of death row ever since. Last year before Justice Bashi Moesi, Poloko made an application for redress, asking the court to discharge his conviction and sentence while awaiting his chance at the CoA. The application failed to succeed and he proceeded to the CoA bench.
Death row acquittals are rare in Botswana. By precedent, the High Court will hand down the ultimate sentence in the case of callous murders and more importantly where extenuating or mitigating circumstances have not been found.
An analysis of previous CoA decisions on the death penalty show that acquittals are usually on matters of law and seldom on the facts.
The matter of extenuating and mitigating circumstances has also helped some convicts. Maselwa’s case is unique in that he was acquitted after CoA judges questioned the facts of the case, finding that there was nothing that linked him to the crime.
Poloko has already gone through two judges and will be hoping that today is his lucky day.
Should he fail, however, he will find himself in ample company on death row, where numbers have been rising in recent years.
For death row inmates who have failed at the CoA, there remains one last chance at life, albeit a near impossible one; the mercy of the sitting President. Available records suggest no President in Botswana’s history has ever pardoned a death row inmate and Ian Khama or his successor, Mokgweetsi Masisi are unlikely to do so.
In 2016 Khama signed a death warrant for Patrick Gabaakanye who was on his knees seeking mercy from him. The jury is still out on which president signed more death warrants during his term, but Masisi already has paperwork on the grim task piling up.
According to attorney Martin Dingake the upsurge in death convictions is as a result of a confluence of factors. Amongst his many cases, Dingake represented Gabaakanye who cited mental illness, childhood abuse and others, but still was executed.
According to Dingake, part of the reason behind the higher number of death convictions is that the indictment process is rather slow and trials take long to conclude, leading to one year where congregation of death sentence cases prevail. “There has (also) been an upsurge of murder cases involving more than two accused per case in the recent past, some committed in the heat of passion and others simply to gain an economic value or benefit,” he says.
“And let’s be frank, they have been committed in the most gruesome manner. “In that event, the little and sometimes few extenuating circumstances are far outweighed by the aggravating circumstances. “I think in two or three cases involving more than two accused persons, this has been the case.” Dingake believes extenuating circumstances are being looked at differently.
“I think there has been very little consideration by the judiciary to consider other extenuating circumstances like in the Gantsi matter where a case was sought to be made as to the working conditions of the accused persons which in their case amounted to slavery and racism.
“In this regard, I am interested in the decision of the Court of Appeal on this point,” he says.
On the issue of clemency the attorney has his observations and says there are reasons why death row convicts never win in their appeals for clemency.
“In the history of the Republic, no president, past or present, has ever pardoned a death row inmate,” he says. “Although this has not been publicly said, it seems this is largely based on the concept of separation of powers and the rule of law.
That is to say, the courts, as institutions best placed to determine the culpability of an accused person, should not and cannot be second-guessed by the Executive. “This is a highly persuasive and attractive argument. But given the many frequent pardons extended to other convicts, it seems, with respect, to be a convenient and self-serving argument.”