Republic of Botswana (Botswana).

Africa (Southern Africa).

English; Setswana (major language).

2,000,000.

Retentionist.

2021.

Hanging.

The Penal Code specifies that a person who is sentenced to death will be hanged by the neck until dead.

Other.

For executions carried out under the Botswana Defence Force Act, the President may make regulations as to the manner of execution.

Comments.

The Botswana Prisons Act of 1979 limits access to the graves of executed persons to the Minister of Justice, Defence and Security and those whom he authorizes, which restricts families’ access to the graves.

51.

As of March 2018, there were 51 people on death row in Botswana, a notable increase from previous years. Four individuals were sentenced to death in 2017 and one person was executed. There was one person on death row at the end of 2016. No new death sentences were imposed in 2016 and one execution was carried out. There were four men on death row at the end of 2015. One new death sentence was imposed in 2015.

(This question was last updated on April 26, 2018.).

There is currently no official moratorium on executions.

According to the Constitution of Botswana, “No person shall be deprived of his or her life intentionally save in execution of the sentence of a court in respect of an offence under the law in force in Botswana of which he or she has been convicted”, thus implicitly stating that the death penalty may be permissible in some circumstances.

Murder.

Premeditated murder, or murder committed with malice aforethought, is punishable by death. The Penal Code of Botswana defines malice aforethought as: “an intention to cause the death of or to do grievous harm to any person” whether a person is killed or not; or “knowing that the act or omission causing death is likely to cause the death of some person” whether a person is killed or not; or “an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit such an offence.”

Treason.

Treasonous offenses are punishable by death. These offences are: preparing or endeavoring to overthrow the government by unlawful means; preparing or endeavoring to forcibly change the law or government policies; preparing or endeavoring to carry out by force any enterprise which usurps the state’s executive power in any manner; assisting any act likely to assist the enemy in wartime, with intent to give assistance to the enemy; or assisting anyone who threatens the sovereignty or security of Botswana. Instigating invasion, or instigating any foreigner to invade Botswana with an armed force, is also punishable by death. Non-citizens may be punished under treason laws for acts they commit in Botswana.

Espionage.

Providing intelligence to the enemy with intention to assist the enemy is punishable by death.

Military Offenses Not Resulting in Death.

Aiding the enemy, cowardly behavior, mutiny involving violence or the threat of violence, or incitement to mutiny, and failure to suppress mutiny with the intent to assist the enemy.

Other Offenses Not Resulting in Death.

Aggravated piracy, or assault with intent to murder in the course of piracy, is punishable by death. Furthermore, terrorism may carry the death penalty.

Botswana retains the mandatory death penalty.

Courts usually impose the mandatory death penalty for murder, as opposed to treason or aggravated piracy. In cases in which there are extenuating circumstances, murder is usually reduced to manslaughter, which is not death-eligible. The Penal Code and Criminal Procedure and Evidence Act state that courts can exercise discretion when extenuating circumstances exist in cases of murder and treason, and in delivering a non-capital sentence for murder, courts need not specify any extenuating circumstances. Domestic court rulings and rulings by the African Commission on Human and Peoples’ Rights indicate that in Botswana, courts must consider all mitigating and aggravating circumstances relevant to an offender’s moral and legal culpability in committing the specific offense.

The mandatory death penalty has been judicially affirmed in Botswana in State v. Rodney Masoko. In this 2015 case, the Court of Appeal overturned a High Court Ruling finding the mandatory death penalty unconstitutional as a circumscription of judicial discretion.

Murder.

Botswana retains the mandatory death penalty for murder. For murder, the death penalty is mandatory except in cases of extenuating circumstances. Extenuating circumstances usually reduce murder to manslaughter, which results in a term of years rather than capital punishment.

Botswana retains the mandatory death penalty for treason.

Botswana retains the mandatory death penalty for instigating invasion.

Other Offenses Not Resulting in Death.

Botswana retains the mandatory death penalty for aggravated piracy.

Comments.

Although there are provisions in the Penal Code that might undermine the mandatory death sentence for aggravated piracy, the statute neither provides alternatives to the death penalty nor describes extenuating circumstances. By contrast, other statutes for death-eligible crimes, namely simple murder and treason, refer directly to other statutes either to describe extenuating circumstances or to offer an explicit alternative sentence to the death penalty.

Individuals Below Age 18 at Time of Crime.

If the offender was under the age of 18 at the time the crime was committed, the sentence of death will be reduced to detainment at the President’s pleasure, “in such place and under such conditions as the President may direct, and whilst so detained shall be deemed to be in legal custody.” Further, implicit prohibition of the death penalty is contained in section 13, which excludes criminal liability for those under the age of eight, and those under 14 unless capacity can be shown.

Pregnant Women.

When a woman has been deemed pregnant in accordance with the Criminal Procedure and Evidence Act, she will be liable for life imprisonment as opposed to a death sentence.

Mentally Ill.

If a mental illness causes the offender to be incapable of understanding his actions or of knowing that he ought not commit the act or make the omission, the offender is not criminally responsible for the act.

Murder.

In May 2018, Uyapo Poloko was executed for murder.

In February 2018, Joseph Poni Tselayarona was executed for the murder of his girlfriend’s child.

In May 2016, Patrick Gabaakanye was executed by hanging for murder.

In May 2013, Orelesitse Modise Thokamolemo was executed by hanging for murder.

In January 2012, Zibani Thamo was executed by hanging for murder.

In March 2010, Modise Fly was executed for killing his son with an axe. He had argued that the killing was accidental.

In December 2009, Zimbabwean national Gerald Dube was executed for the murders of four people.

In September 2008, Kedisaletse Tsobane was executed for murder.

In 1995, Ntesang v. State challenged the constitutionality of the death penalty in the Court of Appeal. The Court acknowledged that the death penalty was increasingly recognized as “torture, inhuman or degrading punishment or treatment,” but ultimately decided that “the Court has no power to re-write the Constitution.”

In 1999, the High Court ruled that it was unconstitutional to deprive death-sentenced defendants of private access to their lawyers.

Kobedi v. State was the first case in Botswana in which the death row phenomenon was invoked in an argument against the constitutionality of the death penalty. Though the original Court of Appeal judgment was rendered in 1999, Kobedi lodged an appeal on an alternate ground of appeal on the delay in execution. The Court of Appeal refused to hear appeals on the constitutionality of the death penalty that it had already heard before, but decided that Kobedi could raise grounds if there were special and exceptional circumstances, which it did not find and so dismissed the appeal. The Court noted that it had already pronounced the constitutionality of the death penalty.

In 2013, the Court of Appeal in Gorosang v. State set aside the sentence of death for a reduced sentence of 20 years’ imprisonment for the appellant’s killing of his partner. This case establishes precedent for reducing a sentence of death on the grounds that provocation constitutes an extenuating circumstance. The Court reasoned that the crime was not premeditated and was a “passion killing,” as the accused saw his wife with another man, behaved as an “infuriated lover,” and had “significant provocation.”

The constitutionality of the mandatory death penalty has arisen in the courts. In 2014, the U.N. Human Rights Council in the “Question of the Death Penalty” report cited a case, State v. Rodney Masoko, in which the High Court of Botswana declared the mandatory death penalty unconstitutional. However, on appeal, the Court upheld the constitutionality of the mandatory death penalty. The Court of Appeal declined to discuss the constitutionality of the death penalty, as it had decided in Kobedi v. State that the death penalty is constitutional.

No.

During Botswana’s 2007 ICCPR review, the Human Rights Committee observed that Botswana should ensure that the death penalty is applied for only the most serious crimes, with an eventual goal of abolition. The Committee recommended that Botswana make available complete information on the application of the death penalty, such as “the number of convictions for murder, the number of and reasons for the courts’ findings of mitigating circumstances, the number of death sentences imposed by the courts, and on the number of the persons executed year by year.”

U.N. Human Rights Council

In its 2018 Universal Periodic Review, States recommended Botswana hold a public debate regarding abolishing the death penalty. Botswana “noted” rather than “supported” all recommendations made during the interactive dialogue relating to the death penalty: to establish a moratorium on the death penalty; ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty; and to hold a public debate regarding abolishing the death penalty. Representatives from Botswana stated that death penalty was a criminal justice issue, as opposed to a human rights violation or form of torture. It viewed the death penalty as falling under its sovereign right to independently decide on its criminal justice system. Furthermore, Botswana stated that it its “robust laws and institutions” ensured no arbitrary imposition of the death penalty, though stated that the government would hold public debates about the death penalty and would welcome assistance, technical and financial, in doing so.

In Botswana’s 2013 Universal Periodic Review, the United Kingdom noted the death penalty’s application and the lack of transparency regarding final decisions for executions, while Uruguay noted that it would be useful to hold a public debate with a view to abolition on the death penalty. Botswana’s delegation confirmed the government’s intent to undertake educational awareness campaigns on issues including the death penalty, though it noted that public consultations indicate that the public still supported the death penalty. States recommended that Botswana: hold a public debate on the death penalty; ratify the Second Optional Protocol to the ICCPR; provide information to the families of executed persons, including the date of execution, and to transfer the bodies of executed persons for private burial; abolish and/or establish a moratorium on the death penalty; and publish the reasoning behind clemency decisions and a timetable for clemency hearings. In 2014, the Human Rights Council reported that Botswana had accepted the recommendation that it increase transparency in providing more information regarding execution dates to families of individuals on death row. After the 2013 Universal Periodic Review, Botswana accepted undertaking dialogue regarding the death penalty, though it carried out 5 executions during the review period.

Committee on the Rights of the Child

In 2019, the Committee on the Rights of the Child expressed concern about the low age of criminal responsibility in Botswana and recommended Botswana “review the age of criminal responsibility in line with internationally accepted standards.”

African Commission on Human and Peoples’ Rights

In July 2018, a delegation from the African Commission on Human and Peoples’ Rights visited Botswana, which included the Special Rapporteur on Prisons, Conditions of Detention and Policing in Africa. The delegation recommended that Botswana consider a moratorium on the use of the death penalty. In the 2016 case Spilg and Mack & Ditshwanelo (on behalf of Lehlohonolo Bernard Kobedi) v. Botswana, the Commission considered that the imposition of the mandatory death penalty on the complainant was neither discriminatory nor in violation of his right to equal protection under the law, as differential or discriminatory treatment was not shown. The Commission found that there was no violation of anti-discrimination or equal protection, Kobedi’s fair trial rights, or the right to dignity, respect for life and integrity of person, and arbitrary deprivation of life, though it found that the state’s failure to give notice of the execution date violated the prohibition against cruel, inhuman and degrading treatment and punishment.

In Interights & Ditshwanelo v. The Republic of Botswana, the African Commission on Human and Peoples’ Rights made a seminal ruling on hanging as a method of execution, stating that: “[hanging] constitutes a violation of Article 5 of the African Charter.” The Commission confirmed that “[c]urrently, no method of execution has been found to be accepted under international law. This complicates the current inquiry since it seems that no method of execution is appropriate under international law.” The Commission therefore called on Botswana and other state parties to observe a moratorium on the death penalty. The African Commission further found a violation of Article 5 in this case concerning a secret hanging, as Botswana failed to inform the complainant’s lawyers and family of the time, date, and place of execution and the place of burial, and additionally failed to provide the complainant time with his family and a spiritual advisor. As of March 2018, Botswana had not taken steps to follow up on these instructions.

UN Special Rapporteur on extrajudicial, summary or arbitrary executions

Referring to the 2015 case of Gabaakanye v. the State, the U.N. Question of the death penalty report noted that “the Court of Appeals of Botswana established that there is a constitutional right to petition the President for clemency, and that it is obligatory for a committee to consider every clemency petition.” and additional guarantees, such as the need to consider any material the petitioner provides, the necessity of pro deo counsel for advice and preparation of clemency petitions, sufficient time and information to prepare the petition. The Special Rapporteur noted that the six weeks mandated by the Court in the case was insufficient to prepare a petition.

The right to legal representation in criminal matters is safeguarded in the Constitution, and in criminal trials including capital murder trials, pro deo attorneys are provided for indigent people.

The accused may indicate a preference for particular counsel, but the Registrar ultimately selects a lawyer for the accused. If a preferred attorney is available, they may demand rates that the Registrar may not accept.

Yes. According to rule 48 of the Court of Appeal Rules, the Registrar of the Court of Appeal is compelled to assign a legal practitioner to appellants facing the sentence of death “after consultation with the President of the Court.”

Lawyers appointed to defendants facing a death sentence receive minimal payment, meaning that these cases are given to inexperienced lawyers. Rates of pay for pro deo lawyers are very low and payments are rare and are often delayed, for example for over six months, and a bill may be reduced by 60%. Attorneys with several years of experience rarely take pro deo cases and usually do not have enough resources to prepare an adequate defence; they may only have the time and resources to consult with their clients once, for which they will be paid. For example, in Kobedi v. State, Kobedi’s first pro deo lawyer was unfamiliar with handling death penalty cases.

In the case of Maauwe v. Attorney General, it was reported that “the pro deo counsel assigned did not represent them adequately or properly and that a letter … to the Registrar of the High Court stating their dissatisfaction with their Counsel and asking that their Counsel be replaced, was not acted upon at all.”

In Gorosang v. State, the Court of Appeal considered the trial “marred . . . by inadequate investigation, inadequate prosecution, and inadequate defence, which has a material effect on the outcome.” The Court continued, “this [was] particularly unfortunate since the offence charged was one of the gravest on the statute book, a young woman’s life had been taken, and the appellant too stood to lose his life if the ultimate penalty was imposed. It was a case which demanded meticulous investigation, meticulous prosecution and meticulous defence, in order to ensure a fair outcome.”

Further, counsel’s lack of professional conduct and use of intemperate language was admonished in Kgafela and Another v. Attorney General of Botswana and Others; InRe: Gabaokelwe v. Directorate of Public Prosecutions , indicating that problems with representation continue to impact the outcome of trials.

Any decision made by the High Court may be appealed to the Court of Appeal. First appeals made by an accused may be on law or fact, or both. Appeals by the state to the Court of Appeal must be made with permission of the High Court, or by appeal against a decision in which the High Court has refused permission to appeal. On appeal, the state is restricted to issues of law, and where the state’s or private prosecutor’s appeal has been dismissed, the Court of Appeal may require the accused’s costs to be paid by the state or public prosecutor. The President must confirm any death sentence before execution.

In Courts-martial cases, the death penalty may only be imposed after a court has reached a unanimous verdict; if this is not possible, the case may be heard by a new court. A death sentence may not be imposed without concurrence of all members of the court if there is the option of imposing a lesser sentence. If a guilty verdict is reached, it must be confirmed by the Commander before the death penalty may be imposed, and the Commander may ask, but not order, the court to reach a new decision. Convicted individuals convicted may appeal to the civilian High Court and Court of Appeal. Further, the accused may present a petition against the finding of guilt, the sentence imposed, or both. A death sentence shall not be carried out unless the President approves it.

The Constitution of Botswana states that the President may exercise the prerogative of mercy. The Constitution mandates that the President convene an Advisory Committee on the Prerogative of Mercy to review a case, before the President approves any execution. There is a six-week period for the applicant to prepare a petition.

The Criminal Procedure and Evidence Act states that an execution shall not by carried out if the President, by written notice, has communicated that he may pardon or grant a reprieve to someone or that he may otherwise exercise the prerogative of mercy.

In April 2016, the Court of Appeal issued a significant decision on the constitutional right to clemency, Gabaakanye v. the State. According to reports, the decision “established’ the constitutional right to petition for clemency and confirmed that the Clemency Advisory Committee must consider all petitions, that pro deo counsel must be provided in such cases, and that pro deo counsel should receive at least six weeks to prepare a clemency petition once in possession of the same documents as the Committee. The U.N. Question of the Death Penalty report noted that the six-week timeframe for submitting clemency petitions may not be long enough.

In contravention of the Court of Appeal ruling, in June 2016 Patrick Gabaakanye was executed while his clemency petition was still pending.

No. Botswana’s Criminal Procedure and Evidence Act contains no provisions for jury trials.

Prisoners are frequently detained for longer than 31 days, the length of time prescribed by the Criminal Procedure and Evidence Act. For example, defendant Lehlohonolo Kobedi awaited his appeal for 56 months. The Court of Appeal recommended a consideration of clemency due to his mental and physical health and long incarceration.

Individuals on death row are incarcerated at the Gaborone maximum security prisons in Cell 10, which houses inmates after conviction and while their cases are on appeal or while waiting for execution.

Information on prison conditions is difficult to obtain. Generally, men’s prisons face problems of overcrowding, limited visitation, sexual abuse, poor hygiene, and nutritionally inadequate food, including for those with HIV and tuberculosis; women’s prisons likely have the same inadequate conditions. Additionally, girls are detained with adult women.

Prisons in Botswana experience a high rate of tuberculosis and HIV. This affects both guards and prisoners, and is generally made worse by insufficient medical and health services in prisons. Incarcerated women reportedly face lack of access to free anti-retroviral treatment. Inmates reportedly receive medical attention and are often treated at government facilities, where they receive examinations and attend follow-up appointments. In 2015, the Court of Appeal ruled that foreign nationals imprisoned in Botswana should receive free medical testing and treatment for AIDs/HIV. This marks critical progress in policy designed to prevent the spread of disease in prisons.

It is very difficult to gain access to prisons beyond visitation rooms, and it is almost impossible to do so unless one is the Legal Representative/Counsel of an inmate on death row. Even access to counsel through meetings are limited.

At the end of 2018, consultations were ongoing between the African Commission on Human and Peoples’ Rights and Botswana on addressing corporal punishment in prisons through possible legislative revision.

As of June 2019, we were unable to find any reports of foreign nationals on death row.

As of June 2019, we were unable to find any reports of foreign nationals on death row.

As of June 2019, we were unable to find any reports of women on death row.

As of October 2018, news sources and UN/NGO reports did not indicate that any individual was under sentence of death for a crime committed while under the age of 18. The Penal Code and the Criminal Procedure and Evidence Act exclude juveniles under 18 from the sentence of death.

Some on death row are of Basarwa origin. The Basarwa, also known as the San, or Bushman people, are an ethnic group.

Botswana is a retentionist country. According to annual figures published by Amnesty International, the number of executions has fluctuated very little year by year. Between 2010 and 2016, Botswana executed five people. No one was executed in 2017, and in 2018, two people were executed. The slight uptick in executions at the start of 2018 was around the same time as former President Ian Khama’s statements in support of the death penalty. After the hanging of a 28-year-old man suspected of killing his girlfriend and her three-year-old son, President Khama stated that the death penalty is only imposed “for the most serious crimes as understood under international law.”

As Botswana executed approximately two people in 2018 and consistently votes against the U.N. General Assembly Moratorium Resolution calling for a moratorium on the death penalty, it appears that Botswana will not take measures to abolish the death penalty in the near future.

None.

DITSHWANELO - The Botswana Centre for Human Rights
admin.ditshwanelo@info.bw
http://www.ditshwanelo.org.bw.

Judicial decisions can be found in the Botswana Law Reports, and hard copies of legislation and judicial decisions are available at the Botswana Government Printer. The Southern African Legal Information Institute publishes decisions of the High Court of Botswana and the Court of Appeal. The databases contain decisions from 2006 (High Court) and 1981 (Court of Appeal) and onward. Links to these resources are consolidated at http://www.commonlii.org/resources/2676.html, where a number of legal resources on Botswana are available.

One can locate or access legislation regarding the death penalty at:

The United Nations Office on Drugs and Crime also offers a Legal Library that contains legislation that pertains to the death penalty, and WorldLII (http://www.worldlii.org/bw/) is another useful resource.

Additionally, the African Commission on Human and Peoples’ Rights website contains information and relevant jurisprudence related to Botswana.

In partnership with FIDH, DITSHWANELO published a report on the death penalty in Botswana. The report, The Death Penalty in Botswana: Hasty and Secretive Hangings, is the result of a fact-finding mission to “document the administration of criminal justice and the obstacles…to the abolition of the death penalty…” It provides an in-depth of the application of the death penalty in Botswana.

The 2016 paper, The Death Penalty in Botswana: Time for a Re-Think?, and 2016 LL.D. dissertation, Sentencing in Botswana: a Comparative Analysis of Law and Practice, provide an analysis of problems in Botswana’s criminal justice system.

Further, the 2014, 2016, and 2018 U.N. Question of the Death Penalty reports provide some insight into problems as well as citing a significant case that appears to be unreported, as mentioned above.

The chapter on Botswana in the online “International Encyclopaedia of Laws” provides a good overview of the subject matter and has some pages that focus on the use of the death penalty.