THE following is an address delivered to the legal fraternity on Tuesday at a local hotel during the 8th memorial lecture in honour of the late Justice Mochoroane Peter Mofokeng by Justice Mathealira Ramodibedi, president of the Court of Appeal of Lesotho, judge of the Court of Appeal of Botswana, judge of the Supreme Court of Appeal and acting chief justice of Swaziland as well as former first resident president of the Court of Appeal of the Republic of Seychelles:
IT is a singular honour and privilege for me to deliver this memorial lecture in honour of the late Justice MP Mofokeng whom I knew very well.
When I was called to the bar in 1974, he was director of public prosecutions.
He was later appointed a judge of the High Court. It was his sad duty as such to pass the death penalty on several occasions as will be seen later.
By way of an introduction, please allow me at the outset to share with you one little experience which probably hel¬ped shape my outlook towards the topic “Right to life and the death penalty”.
As a sitting judge I should be careful not to express a concluded view on whether or not I personally support the death penalty.
This much I am prepared to state publicly, however, namely, that I find no difficulty in upholding the constitution and any law which is consistent with it whether or not it involves the death penalty.
Indeed it need hardly be emphasised that it is the basic constitutional duty of the courts to fairly interpret and apply the laws enacted by the legislature.
The reason for this is that, by being democratically elected into office, the legislature represents the will of the people which must be respected.
Justice Sandra Day O’Connor of the United States Supreme Court makes the point in rather colourful language in her autobiography in the following terms: “When Congress . . . lights a fire by passing significant new legislation or taking bold new action, we (as judges) are inevitably summoned to attend to the blaze.”
In my final year at Edinburgh University in Scotland in the 1972/73 academic year, I did legislative drafting which was an honours course.
As part of my work, I did a dissertation on the abolition of the death penalty in the United Kingdom.
In my extensive research which, by some stroke of luck, earned me a distinction in the course, I sifted through mountains of Hansard reports, covering the great parliamentary debate leading up to the Murder (Abolition of the Death Penalty) Act 1965.
It is important to note that the bill was introduced as a private member’s bill.
It was not a government — ponsored bill.
Basically, there were two opposing sides, namely, those who were in favour of the retention of the death penalty, otherwise known as the retentionists on the one hand, and those who were opposed to it on the other hand, otherwise known as the abolitionists.
Strong views were canvassed on either side. The retentionists were horrified by the proposed abolition of the death penalty as they believed it would lead to an increase in murders.
They strongly argued that the death penalty was a deterrent against wanton murders perpetrated without extenuating circumstances.
When the motion was put to a vote the abolitionists triumphed.
As I recall, what swung the pendulum in their favour was the indisputable fact that as soon as it is executed the death penalty is irreversible.
There had been horrendous decisions leading up to the hanging of innocent persons.
Nothing under the sun could compensate for such injustice.
Not even posthumous proof of innocence or a pardon as happened in the UK to Timothy Evans in 1966 and Mahood Mattan and Derek Bentley in 1998.
The former had been hanged on March 9, 1950 while the latter had been hanged on January 28, 1953.
The abolitionists argued ferociously, with justification, that one loss of an innocent life was far too many. They were determined to defend the right to life tooth and nail. The last executions in Britain took place on August 13, 1964 when two men, namely, Peter Anthony Allen and Gwynne Owen Evans were hanged for murder committed in the course of robbery.
Historically, the death penalty has always subsisted side by side with the right to life. Significantly, however, it has never ceased to evoke controversy amongst members of the public. Quite obviously, there can hardly be any consensus on the subject.
In the 19th century, there were more than 200 capital offences in the UK. Some of them were clearly ridiculous, such as, for example, shoplifting goods worth five shillings or less, letter stealing, vagrancy for soldiers and sailors, being in the company of gypsies for one month and strong evidence of malice in children aged four to seven years. A person could hang for all of these petty offences and many more.
Statistics show that 117 countries have abolished the death penalty either in law or in practice. These include the Republic of Seychelles in which I had the privilege to serve as the first resident president of the Court of Appeal from 2004 to 2006. The current 1993 constitution of that country expressly prohibits any law that provides for a sentence of death to be imposed.
Our next-door neighbour, South Africa, has also abolished the death penalty following the case of S v Makwanyane and Another 1995 (3) SA 391 (CC). More importantly, section 11 of the constitution of the Republic of South Africa now categorically provides that “everyone has the right to life”. There are no exceptions such as one finds in the constitutions of our three sister countries, Botswana, Lesotho and Swaziland. It is undoubtedly correct to observe, however, that there is currently a huge public demand in South Africa for the recall of the death sentence.
Seventy-eight other countries on the other hand have retained the death penalty. These include our three sister countries Botswana, Lesotho and Swaziland, all of which I currently have the honour to serve as a judge of appeal.
The statistics further show that by 2003 a staggering number of 2 756 people had been sentenced to death in 63 countries. More than 1 146 of them were actually executed, with China taking the lion’s share of the executions.
It is interesting to note that in the United States where fundamental human rights and freedoms are the norm a substantial number of 26 out of 52 states retain the death penalty.
According to Amnesty International, 8 864 people were sentenced to death around the world in 2008 – 2 390 of these were actually executed.
I proceed now to deal with the death penalty in our three sister countries. But before doing so, it is necessary to recall that Article 3 of the United Nations Universal Declaration of Human Rights 1948 provides that “everyone has the right to life, liberty and security of person”.
Curiously, nothing is said about the death penalty. It is generally accepted, however, that the reason for this omission was that the majority of member states to the United Nations did not actually believe that the death penalty was in conflict with Article 3. Hence it was felt that it was not necessary to make any mention of it in the article.
Such is the importance of the right to life that most constitutions place it in the forefront of all the fundamental human rights and freedoms. This is so because, as the Court of Appeal of Lesotho held in the landmark judgment written by my Brother Gauntlett and concurred to by my Brothers Grosskopf and Smalberger in Khathang-Tema-Baitsokoli and Another v Maseru City Council and Others 2005-2006 LAC 85 at 88-89, an individual’s right to life is, in the words of Lord Bridge, “(t)he most fundamental of all human rights”.
That, as will be seen shortly, is the position in Botswana, Lesotho and Swaziland. It is important to recognise at the outset that the right to life is not absolute. It is expressly qualified to the extent laid down in these constitutions. Put differently, these constitutions save the death penalty by making it an exception to the right to life.
Section 4 of the constitution of Botswana which came into force at independence in 1966 provides as follows:
4(1) No person shall be deprived of his 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 has been convicted.
(2) A person shall not be regarded as having been deprived of his life in contravention of subsection (1) of this section if he dies as the result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably justifiable:
(a) for the defence of any person from violence or for the defence of property;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) for the purpose of suppressing a riot, insurrection or mutiny; or
(d) in order to prevent the commission by that person of a criminal offence, or if he dies as the result of a lawful act of war.”
The law referred to in subsection (1) is contained in section 203 of the Penal Code. It reads as follows:
203 (1) Subject to the provisions of subsection (2), any person
convicted of murder shall be sentenced to death.
(2) Where a court in convicting a person of murder is of the opinion that there are extenuating circumstances, the court may impose any sentence other than death.
(3) In deciding whether or not there are any extenuating circumstances the court shall take into consideration the standards of behaviour of an ordinary person of the class of the community to which the convicted person belongs.
There has been an unsuccessful attempt in Botswana to declare the death sentence unconstitutional. In the case of Ntesang v The State 1995 BLR 151 (CA) the appellant argued that the method of execution by hanging represented torture or inhuman and degrading punishment and that it was therefore ultra vires section 7 (1) of the constitution. The section in question reads as follows:
7 (1) No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.
The full bench of the Court of Appeal dismissed this argument on the ground that it overlooked the provisions of section 7 (2) of the constitution which saved any law which “authorises the infliction of any description of punishment that was lawful in the country immediately before the coming into operation of this constitution”. The court noted that death by hanging was such a punishment as provided for in terms of section 203 (1) of the Penal Code.
In Kobedi v The State  2 BLR 76 (CA) the constitutionality of the death sentence was once again attacked, albeit on a wider context than in Ntesang’s case. It was argued that the death sentence contravened the provisions of sections 3, 4(1) and 7(1) of the constitution.
The facts in that case established that the appellant, Kobedi, who was, according to him, a Lesotho citizen shot and killed a police sergeant. The deceased had been investigating a case in which a bank manager had been robbed. The appellant was convicted of murder and sentenced to death. Hence his constitutional point that the death sentence was unconstitutional.
After reviewing several authorities including Ntesang’s case, the full bench of the Court of Appeal came to the conclusion that the death sentence is not unconstitutional. On the contrary, the death sentence is saved by the constitution. And so is the method of carrying it out, namely, hanging as stipulated in section 26 of the Penal Code.
It remains then to point out that Botswana retains the death sentence only for the most serious offences such as murder, treason and assault with intent to murder committed in the act of piracy.
It is recorded that between independence in 1966 and 2006 there had been 39 executions for capital crimes in Botswana. Perhaps the most controversial, execution was that of Mrs Marietta Bosch in 2001. She had been convicted of killing the wife of her boyfriend in order that she could get married to him.
• Justice Ramodibedi’s address will be continued in the next issue of the Sunday Express.