Death row inmate Patrick Gabaakanye has challenged Attorney General to provide him with information he deemed crucial for his application for clemency.
Gabaakanye, 58, was sentenced to death in 2014. The Court of Appeal confirmed the dead sentence. Yesterday, Gabaakanye petitioned Lobatse High Court judge, Tebogo Tau, that he needed the information before he could proceed with the application.
His lawyer, Martin Dingake, stressed that the information was needed for the prerogative of mercy.
He also wanted the committee on the prerogative of mercy to meet to agree on the procedure and advise his client on the trial judge’s report and the nature of the other information or source thereof that the President and the committee was to consider.
“The Attorney General has refused to make available the procedure and has taken the considered view that the trial Judge’s Report should not and cannot be availed to the applicant, as well as the nature of the other information that the President and/ or Committee may or must consider,” he said.
Dingake argued that he only intended to challenge the lack of laid out procedures and process on the hearing before the Advisory Committee on Prerogative of Mercy. He maintained that such absence was a direct contravention of Section 54 (1) of the Constitution.
“I said from the onset that it obligatory for the Advisory Committee of Prerogative of Mercy as mandated by Section 55 (1) of the Constitution to convene in all matters where a sentence of death has been imposed.
The position of the President as advised by the AG violates against the mandatory requirements to convene the Advisory Committee on Prerogative of Mercy in all cases where the death penalty has been imposed irrespective of whether a petition for mercy is received by the President,” he argued.
Dingake said it was unclear as to what “other information the President may require, to be considered at the meeting of the Advisory Committee on Prerogative of Mercy” and how that information was to be presented and the procedure thereafter.
“I am further advised that whereas the committee is empowered to regulate its own procedure, that procedure is not known nor stated in the Constitution or any other public document,” Dingake pointed out.
On the stay of execution, Dingake said even though the AG took an undertaking to advise the President to halt the execution, it was only until the application for to seek procedures on clemency was finalised.
He said the interdict on execution had no time frame, which means his client could be executed while still at the process of seeking mercy for him.
“The court should determine the matter even though an undertaking was made because if the judge dismisses the application, they can set the wheel in motion for the President to sign the execution,” he said.
Otsile Rammidi representing the President and the AG had earlier raised points in limine saying that ought to be disposed on condition that the High Court had no jurisdiction to render determination regarding the application for stay.
He argued that the President did not have discretion whether or not to convene a meeting for clemency.
“He carries a constitutional obligation based on the judgement, he does not have an option, what he has to do is to exercise his powers,” he said.
He said if the interdict on execution was stayed it would mean that the President would be caught between exercising the judgement of the High Court and that also on the lower court.
Rammidi said the interdict could not be granted where alternative relieves were available and that the Court of Appeal is better suited to deal with stay of execution.
Regarding the process and procedures for mercy, he said the AG was not compelled to produce any saying that many have applied for mercy before without seeking to be given that information.
Meanwhile, Gabaakanye had filed an urgent application seeking the AG to halt his execution while he awaits the finalisation of his appeal on clemency.
He said the President should not sign the warrant of execution pending the determination of proceedings and the relief he seeks regarding the procedure and process on prerogative on mercy.
He mainly wanted to challenge his right on addressing the Advisory Committee on Prerogative of Mercy as provided for in the Constitution, and that the signing of his warrant of execution to be temporarily stayed.