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Death penalty – Righteous or wicked? (Part 1)

CORRESPONDENT
Final end: Snap surveys have found that most Batswana support the death penalty
Five months ago, 29-year old Mmika Mpe was executed. Towards the end of last year, 44-year old Mooketsi Kgosibodiba was hanged. They were smitten with the irreversible fatal blow for murdering their employers. In 2018, two more people were executed. Is the death penalty a manifestation of righteous indignation or the ultimate nadir in the expression of human wickedness? KEVIN MOKENTO* writes

Atypical of the 16 SADC member states, Botswana is the only country that practices the death penalty. This puts us in the same league as Egypt, Libya, Somalia, South Sudan, Sudan and Nigeria. Interestingly, the last execution in South Africa took place just over three decades ago, while the country was still swept by the vertiginous clutches of apartheid.

What about our country? The last execution took place in February this year and on average there is one execution per annum. Last week, abolitionists waited with bated breath for the Court of Appeal’s (CoA) verdict in the case of 42-year old Joseph Mmoko who was convicted last year for killing his girlfriend five years ago. They all heaved a euphoric huge sigh of relief as Mmoko survived the noose by a whisker when the supreme court of the land commuted his death sentence to a 15-year jail term. However, during the same week, the CoA tipped the scales in favour of the retentionists when 32-year old Wedu Mosalagae had his death sentence upheld for murdering his girlfriend close to eight years ago. 

There are three groups of people. The abolitionists or pro-life individuals who cannot stomach the taking of life of any individual irrespective of the grotesque nature of their crime, the retentionists cum retributivists whose view is that through their actions murderers forfeit their right to life, and adiaphoristic individuals who maintain strict neutrality. By their retributive nature, retentionists essentially say that the only fitting punishment for murderers is execution, and that this should be visited upon them swiftly and decisively.

While some people consider capital punishment to be barbaric and repulsive, others strongly feel that it should be retained. That it is morally justifiable and a crucial catalyst to the healing process.

George Kateb, a professor of Politics at Princeton University once said: “The State’s power to destroy …… guilty life, is a manifestation of the hidden wish that the State be allowed to do anything it pleases with human life.” Exaggeration? Probably! In 2018, following the execution of Joseph Tselayarona, the director of Botswana Centre for Human Rights, Alice Mogwe said: “The application of the death penalty is unacceptable……..the Botswana State has constantly chosen a retributionist approach which creates more pain and suffering in the society.”

Just last year, after the High Court’s verdict to hang Joseph Mmoko, in a hortatory statement laced with traces of revulsion, the same centre stated, “Our Government should take the lead in condemning the use of fatal force. It should.…….strive to protect life, including that of the offender.”

What sorts of crimes attract the noose? Murder, treason, espionage, attempting to murder the President, mutiny and terrorism. Are there extrajudicial killings in Botswana? This is not a practice. Notwithstanding that, some people would probably remember reports on the 2009 execution of John Kalafatis by three military agents who were subsequently convicted in June 2011. They were each slapped with a 11-year prison sentence. However, just a few months into their sentence, they were favoured with a presidential pardon and released from prison. 

Who has the right to determine whether a country can or cannot legalise the death penalty? Ordinary citizenry, the Legislature or the Judiciary? Commoners normally shy away from expressing their views, especially in cases where they might break ranks with the mainstream.  Probably subscribing to the axiom, ‘Those who wish to live in peace, must hear, see, and say nothing.’ They would rather hive off their constitutional right to freedom of speech to legislators and all parties in the law enforcement value chain. People whose credentials only happen to be their experience in making, interpreting, implementing and enforcing man-made law!  Circular systems including the Judiciary are prone to flaws. Talking about conviction of murderers, Justice Gerald Kogan, former justice of the Supreme Court of Florida once said, “there is always that doubt that …… lingers in your mind as to whether or not these particular people are factually innocent of this particular crime.” Weighing into this argument is the possibility, irrespective of how infinitesimally small it could be perceived, of implicit systemic and structural bias. Not to discount potential for irrationality, subjectivity and arbitrariness! 

For this reason, Neil Gaiman, a British author once said, “I believe ... that while all human life is sacred there’s nothing wrong with the death penalty if you can trust the legal system implicitly, and that no one but a moron would ever trust the legal system.” Following the execution of Mariette Bosch in 2001, President Mogae who had blatantly declined to yield to pressure to extend clemency to Bosch said, “I am a retributionist by conviction. Murder is the gravest type of offence and should receive the toughest penalty.” Had he wanted, he could have saved Bosch from the gallows by exercising his presidential prerogative.  Some would posit that retribution is morally flawed. That a grotesque transgression of the law cannot be rectified by another equally grotesque transgression. That leaders should courageously develop a non-conformist moral backbone that would set them apart from the crowd that sees nothing wrong in trivialising the sanctity of human life.  

Sixteen years ago, while campaigning for a seat in the US Senate, Barack Obama said, “I believe that the death penalty is appropriate in certain circumstances. There are extraordinarily heinous crimes in which it might be appropriate ……… We must have this ultimate sanction for certain circumstances in which the entire community says this is beyond repair.”

Worldwide, constitutions impartially confer the inalienable right to life. The death penalty is extremely sensitive and has the potential to polarise nations. Strong antithetical views between abolitionists and retributive retentionists can drive a wedge between citizens. For this reason, though countries are often eager to have referendums to measure their nation’s pulse on issues of public interest, regarding the death penalty, they have often shied away from going that route.  By the end of 2019, of the 195 UN member states, 106 had abolished capital punishment for all crimes. According to Amnesty International, throughout the world, 657 people fell victim to state sanctioned murder in 2019. This worldwide figure excludes state sponsored extrajudicial killings as well as people who were killed by

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the government of China. Apparently their number, which is always kept a closely guarded state secret stretches into several thousands.  Governments tend to murder people through hanging, firing, lethal injections, electrocution and nocuous asphyxiant gases. In a bid to justify the need for execution of murderers, Robert Macy, who served as the District Attorney of Oklahoma City for 21 years said, “In 1991, a young mother was rendered helpless and made to watch as her baby was executed. The mother was then mutilated and killed. The killer should not lie in some prison with three meals a day, clean sheets, cable TV, family visits and endless appeals. For justice to prevail, some killers just need to die.” If this had happened to your wife and baby daughter, and while mourning, you still resolutely maintained your dyed-in-the-wool abolitionist stance, you would deservedly scoop the esteemed PUUR (Principled Unselfish and Unwavering Resolve) prize.

Macy zealously sent murderers to death row. This earned him the sobriquet ‘Cowboy’ and the epithet, ‘the nation’s number two deadliest prosecutor.’ Almost three decades later, his reasoning still resonates with some. Simply because it forces one to mentally visualise the brutality visited upon an innocent and hapless baby and its defenseless mother.

In the process, one might feel that in the circumstances, the only appropriate sanction would have been the vengeance freighted ‘tit for tat’ punishment. But should the horrendous nature of some crimes push us to think with our hearts? Interestingly, Mohandas Gandhi, a non-violent political leader who spearheaded the liberation of India from the grip of British imperialism once said, “An eye for an eye makes the whole world blind!” Macey’s view implies that a life sentence in prison is equivalent to living pretty high off the hog in some avant-garde B&B. Absolute drivel! True, most people have never been incarcerated and cannot speak about what happens in prison with authoritative conviction. Nonetheless, some would put their head on the block and dare you to chop it by saying, a few minutes on the noose or the electric chair can never be compared to spending the remainder of one’s life in prison, subjected to harrowing daily psychological traumas of physical, emotional and sexual abuse from cold-blooded and callous fellow inmates. Much as some South Africans facetiously call penitentiaries Sun City, these institutions are a far cry from this grandiose resort!   

Paradoxically, some hardcore abolitionists believe that through their acts of commission or omission, some people went beyond the pale and don’t deserve to live; the likes of the notorious Nazi leader Adolf Hitler for the mass genocide of the European Jews in the 1940s, the disgraced former Yugoslav President Slobodan Milosevic for the 1990s mass killings of Bosnian Muslims, Croats and Kosovo Albanians, and the infamous former Prime Minister of Rwanda Jean Kambanda for the mass genocide of the Tutsi in 1994.

Breaking ranks with hardline abolitionists, a few, normally uncompromising pro-life individuals believe that for these three men and their ilk, it is wholly justifiable and morally irreprehensible to fervidly terminate human life with no sign of compunction.   Is it a sign of moral strength, stable mental capacity and elevated sense of maturity to tread the vengeance route? Or is it simply a way of satiating the invisible murderer sadly lurking somewhere in one’s inner being? This brings to mind Michelle Obama’s words, of course uttered in a different setting, “When they go low, we go high!” This raises the question, are societies ready to go high when they see murderers going low? Are there punitive avenues that could be exploited without stooping to the same level as murderers?  At the risk of being accused of trivialising murder cases, some people assert that the universally acceptable standard of justice is not to emulate the accused.  That it is precisely for that reason that cases of theft are not resolved by stealing from thieves, and depraved paedophiles and rapists are not brought to their senses by sexually molesting them. Why is this revered standard of justice violated in cases of murder? Does the fact that it is only a tiny fraction of murderers that are executed justify the departure from the norm?  Without the benefit of tangible evidence, some people have said, “the overwhelming majority of our people are in favour of the death penalty.” Could it be that those in favour of the death penalty are not necessarily the majority, but the most vocal, the most engaging and ever so willing to devote time to sharing their thoughts across multiple forums such as radio, TV, online and print media?  In the event that death is administered, who really feels the punishment? Is it the dead man or his loved ones? If it’s the latter, could we surmise that execution would have met its moral and ultimate purpose? That of motivating the wrongdoer to come to terms with his offence, make amends and come to his senses! Making amends doesn’t mean restoring the victim’s life, but rather remorsefully covenanting with oneself never to repeat the offence.   True, murder brings with itself extreme agony. And the immense pain felt by surviving loved ones should never be underrated. The inextinguishable passion for protecting lives should always prevail in the minds and hearts of all souls. And murder should never be excused, for the simple reason that life is sacred, precious and worthy of respect. The value of life can’t be cheapened by people who can only procreate, but not create.   All that considered, shouldn’t the earnest desire to master our emotions motivate us to vigorously pursue appropriate punishment of offenders without veering off the elevated moral route of fully appreciating the sanctity of human life?  Or would we rather conveniently choose to believe that we can save lives by taking lives? If we choose to perpetuate the grisly culture of baneful vengeance, at what level does this perch us? At the level of pro-life individuals or murderers? The next article will explore this topic further by reviewing sentiments in favour of the death penalty.

KEVIN MOKENTO*

*Kevin Mokento is the pseudonym of a Mmegi contributor who has asked for anonymity



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