The year death row got packed
Pini Bothoko | Friday December 22, 2017 13:20
By precedent, the road between the death penalty and execution is dark in Botswana. Few death penalty convicts have had their sentences overturned at the Court of Appeal (CoA) and even fewer have had their convictions set aside.
The road is also straight. Once a High Court Judge rules that he cannot find extenuating circumstances in a murder conviction, the sentence of death is almost always handed down.
Between conviction and execution, convicts can appeal to the President to pardon them, but historically, the country’s four Presidents have not extended this mercy to anyone.
Uyapo Poloko (37) and his lawyers will be thinking of this long and dark road after the Francistown High Court in March rejected his application for discharge in the murder of an Asian woman, Vijeyadeyi Kandavaranam. In January 2010 at Ntshe location in Francistown, Poloko killed the woman and attempted to kill her husband, while robbing them of two Nokia cellphones and P3,500. Judge Modiri Letsididi imposed capital punishment.
In a bid to save his life, Poloko, a former graduate of Ccounselling from Tonota College of Education, had made an application he referred to as ‘an application for redress that seeks the court to discharge his conviction and sentence’ before Justice Bashi Moesi while awaiting his appeal at the (CoA). Moesi dismissed Poloko’s application saying that once the court handed down the conviction and sentence, its duty had been done and the court lacked the competency to hear the matter. On top of the death sentence, Poloko was sentenced to 12 years for attempted murder and 10 years for robbery.
Another cooling his heels on death row is Joseph Tselayarona. In mid November, the CoA confirmed a decision of the High Court that the double murder must be hanged by the neck to death. The Gaborone High Court had convicted Tselayarona of Molepolole of the murder of his lover, Ngwanyanaotsile Keikanne and her three-year-old son, Miguel Keikanne back in 2010.
At the time, it was reported that he murdered his girlfriend in cold blood by stabbing her with a trimmer and a screwdriver in front of her son, while she begged for mercy. He then killed her son in the morning by suffocating him with a pillow.
In December, two more names were added on the hangman’s appointment book.
Chief Justice Maruping Dibotelo sentenced Matshidiso Boikanyo and Moabi Mabiletsa to the gallows for masterminding the killing of Vincent Mopipi who was a Deluxe cab driver back in 2013. In court, it was revealed that the two stabbed Mopipi 44 times in Block 9, where they had asked him to take them to.
Passing sentence, Justice Dibotelo said the two were cruel as the wounds on the deceased looked like the stabbing of a goat or an ox.
In mid December yet again, Lobatse High Court Judge, Abednego Tafa sentenced Tshiamo Kgalalelo and Mmika Mpe to death. The Gantsi farm workers had been convicted earlier this year for brutally murdering their employer Reinette Vorster.
On Monday, as if the death row was not packed enough, Francistown High Court Judge Moesi sentenced Mooketsi Kgosibodiba to death for the murder of Benjamin Makobela back in 2012 at Makobo village.
Kgosibodiba had stolen a bag of cement and a water container belonging to his employer (Makobela) then killed him to cover up the crime. Makobela’s decomposed body was discovered inside a hut that the duo used to share. Passing the sentence, Moesi said he was satisfied that Kgosibodiba was the person who murdered the deceased and that he caused his death with malice afterthought.
Death row should expect even more names to be added, if the violent crimes certain suspects are facing, end in convictions. One of these involves Daniel Phadisa, a 32 year old charged with murdering Bembe Magosi and Gomolemo Motladile at Phiring location in Broadhurst Gaborone on Independence Day.
Kgotlaetsile Leonard Gaonakala (24) and his girlfriend Tsholofelo Kgogo (25) will also face mountains to climb in avoiding the hangman, after they were charged earlier this year with killing and robbing Moemedi Ranthoka, a Deluxe cab driver. Local attorney, Martin Dingake says the high number of capital sentences this year is as a result of a confluence of factors. Among his many cases, Dingake represented a high profile client, Patrick Gabaakanye, who was executed last year for murder. Part of the reasons are that the indictment process is rather slow and trials take long to conclude, leading to this year’s congregation of death sentence cases.
“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.
The attorney says there are reasons why death row convicts never win in their appeals for clemency. Dingake and his client, Gabaakanye, fought unsuccessfully for a presidential pardon last year. “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.” The seven added to death row this year will certainly try their best to fight the rope. But barring a Court of Appeal reversal, the journey to the end is straight, dark and short.