Motswagole then proceeded to declare section 203(2) unconstitutional. "I am unable to see how one's mouth can be shacked and at the same time expect the person to show that he or she is not death worthy, but this is exactly what is being done pursuant to s. 203(2) of CAP. 08:01,"he said. He was passing judgment in a case involving Rodney Masoko who was accused of the murder of Gloria Zwemisi on 27 February 2006 in Francistown. Masoko was indicted for unlawful wounding of Oabile Seobe on the same date, also in Francistown.
He was sentenced to life imprisonment for murder and found guilty of unlawful wounding. Reading a 209-page judgment, Justice Motswagole noted that in cases of murder with extenuating circumstances in Botswana, the maximum term of imprisonment imposed so far was 25 years. "That there is a qualitative difference between the death penalty and the maximum imprisonment of 25 years so far imposed by the Court of Appeal in a handful (of) cases should trouble our consciences and is a clarion call to awaken us to realise that our system of justice is sick, inequitable and grossly unfair as it offends the fundamental principles of justice," he asserted.
