A 34-year-old murder convict, Tonderai Kakamba who was condemned to death for killing his five-month-old baby, breathed a sigh of relief as the Court of Appeal (CoA) in Gaborone overturned his judgement last week.
Kakamba was sentenced to death on November 5, 2020, after the trial court found him guilty of killing his child.
It is said the accused killed his daughter by slitting her throat back in 2015, following a quarrel with the mother of the child. Kakamba will now serve 22 years behind bars for the baby’s brutal murder, with the sentence backdated to the time he was first put behind bars.
CoA judge Monametsi Gaongalelwe alongside Justices Zibani Makhwade and Tebogo Tau said there were extenuating circumstances in the murder. Handing down the judgement, Justice Gaongalelwe said it was a serious misdirection for the court to say for purposes of extenuating circumstances the test is whether the offender was so intoxicated that he could not appreciate the consequences of his actions.
The CoA judge said the proper test under the subject is whether alcohol consumed could have had an influence on the mind of the accused at the time of committing the offence.
It is said that on the day he committed the offence, the appellant had imbibed various blends of intoxicating alcohol including two bottles of Copper Band and six boxes of Chibuku Shake Shake.
However, the court said there is no justification for the brutal way the appellant killed his daughter.
“For that matter, the killing was effected in a very brutal manner of cutting the baby’s throat with a knife. Whatever possible misunderstandings or problems could have arisen between appellant (Kakamba) and the baby’s mother had absolutely nothing to do with the baby,” the CoA judges found.
Kakamba was initially charged with three counts of murder, attempted murder and entering Botswana at an ungazetted point of entry. He pleaded not guilty to the first two counts and guilty to the last offence.
After being found guilty and sentenced to death by the High Court, Kakamba appealed the judgement, arguing he should be spared the hangman’s noose, as there were extenuating circumstances that led to his horrific actions.