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The right to life and death penalty

THE following is the second part of the memorial lecture delivered on October 20 2009 by Justice Michael Mathealira Ramodibedi in honour of the late Justice MP Mofokeng:

ANOTHER execution which I should like to mention is that of Modisane Ping who was hanged on 1 April 2006. In January 2006 Justice Grosskopf had presided in his appeal in Ping v The State (2006) BLR 260 (CA). The other members of the court were Lord Coulsfield from Scotland and myself.
The appellant had been convicted on two counts of murder involving his girlfriend Iponeng and her young son Tshiamo. He had cut their throats off completely.
The court held that there were extenuating circumstances in respect of the murder of Iponeng. Evidence disclosed that the appellant and Iponeng had had frequent misunderstandings which led to arguments and conflicts. She accused him of having a love relationship with another woman called Meleko.
Insofar as the murder of Tshiamo was concerned the Court of Appeal held, in a judgment prepared by my Brother Grosskopf and concurred in by Lord Coulsfield and myself, that there were no extenuating circumstances and thus dismissed the appeal.
As indicated earlier, in three months’ time after the Court of Appeal decision the appellant was hanged on 1 April 2006.
On 8 November 2007, Sepeni Thubisane Popo was executed for the ritual murder of his female companion, Boitswarelo Tinki Balotlegi, who was found dead with her private parts missing.
The appellant had been promised a lot of money for the ritual murder. Hence the murder was not only deliberately planned and carried out but was also done for reward. It was a brutal murder and the injuries to the deceased were horrible.
Finally, in the July 2009 session of the Court of Appeal of Botswana I had occasion to preside in the case of Gerald Jerry Dube v The State, Court of Appeal Criminal Appeal  NO CLCLB-038-07 (as yet unreported). The other members of the Court were Foxcroft JA and Howie JA.
In that case the appellant, a Zimbabwean citizen, had been sentenced by the High Court to hang for the murders of four people, namely, his own cousin Patricia Majoko who was a Francistown practising attorney, her two young children and her maid.
The appellant had been staying with the family for some time. He was also employed at Patricia’s firm as a clerk/driver. Because of his unacceptable conduct, however, Patricia expelled him both from the house and the firm. He was barred from driving her car.
A few days later the appellant attacked the deceased, starting with the maid who was at that stage busy peeling onions and tomatoes with a kitchen knife in the kitchen. He then proceeded to mercilessly kill the two young children after which he waited for four hours for Patricia to come home. When she finally did so at night, he killed her, too, and covered her with a large metal bath.
All the victims had sustained a variety of horrendous skull fractures due to the application of a blunt force, most probably a blood-stained iron rod which was produced as an exhibit at the trial.
At his trial a suggestion was made that the appellant suffered from epileptic seizure and that he had a complete blackout. Hence it was suggested that he could not remember what happened.
However, the appellant did not testify under oath. He merely made an unsworn statement as it was his constitutional right to do so. On the contrary, the evidence of the state psychiatrist, Dr Opondo, established that the appellant had no psychomotor epilepsy or blackout as he professed or at all.
The appellant did not call any witnesses to lend credence to his unsworn statement on the alleged epilepsy and blackout.
In a judgment prepared by my brother Howie and concurred in by myself and my brother Foxcroft, we were unable to find any extenuating circumstances. On the contrary, we found that Patricia’s murder in particular was premeditated and that it was motivated by anger at the changes she had wrought in the appellant’s life. He had all along falsely held himself out as a lawyer.
As previously alluded to, the constitution of Lesotho places the right to life in the forefront of all fundamental human rights and freedoms in this country.
This is so in terms of section 4(1)(a). Section 5(1) then proceeds to protect this right in the following terms: “Every human being has an inherent right to life. No one shall be arbitrarily deprived of his life.”
It should be noted at the outset, however, that subsection (2) immediately introduces several exceptions to the right to life, namely:
“(2) Without prejudice to any liability for a contravention of any other law with respect to the use of force in such cases as are hereinafter mentioned, a person shall not be regarded as having been deprived of his life in contravention of this section if he dies as the result of the use of force to such extent as is necessary in the circumstances of the case:
(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 or in execution of the sentence of death imposed by a court in respect of a criminal offence under the law of Lesotho of which he has been convicted.”
The law relating to sentence of death referred to in the last part of subsection (2) is contained in section 297(1) of the Criminal Procedure and Evidence Act 1981 in these terms:
“297(1) Subject to sub-section (2) or (3), sentence of death by hanging shall be passed by the High Court upon an accused convicted before or by it of murder; and may be passed by the High Court upon an accused convicted before or by it of treason or rape.”
It is instructive to point out at this stage that, unlike in Botswana, the question of the constitutionality or otherwise of the death penalty, as against the right to life, has not arisen for determination by the courts in this country.
The case of Khathang-Tema-Baitsokoli And Another v Maseru City Council And Others (supra) concerned the right to life in the context of a right to a livelihood. The appellants argued that their removal from Kingsway, where they carried on their trade, infringed their right to life.
The Court of Appeal held, however, that the right to life in Section 5 of the constitution of Lesotho does not encompass a right to a livelihood.
Lesotho retains the death penalty for the following offences: murder, treason and rape where the accused is to his knowledge infected with HIV in terms of section 32(vii) of the Sexual Offences Act No. 3 of 2003.
It is a fact, however, that no person has ever been sentenced to hang for either treason or rape in this country. But one must caution that the death penalty remains on the statute books for these offences. Each case must obviously depend on its own peculiar circumstances.
In terms of the Lesotho Defence Force Act 1996, which applies only to members of the Lesotho Defence Force, the following offences are punishable by death: aiding the enemy, communication with or giving intelligence to the enemy, cowardly behaviour, mutiny and failure to suppress mutiny with intent to assist the enemy.
There have been several death sentences pronounced in this country both before and after independence in October 1966. Thus, for example, it is recorded that two senior chiefs were hanged for ritual murder at dawn on Wednesday 3 August 1949.
One was Chief Bereng Griffith Lerotholi, principal chief of Phamong. The other one was Chief Gabasheane Masupha, principal chief of ‘Mamathe in Berea district.
I should mention that medicine murders involving mostly senior chiefs became so prevalent in this country in the 1940s that in 1949 the British government appointed a commission of inquiry headed by the Cambridge anthropologist, GI Jones, to inquire into this phenomenon.
The commission was not well received by the chiefs who rejected the whole idea of medicine murders as a British invention designed to destroy the system of chieftainship.
In Regina v Khopiso Lerotholi 1926-1957 HCTLR 320 the appellant who was a chief at my home area at Lesobeng was sentenced to death together with his accomplice in November 1953 for the ritual murder of Makotomane Mokale. It is recorded that the chief wanted a “medicine horn” out of the deceased to fortify himself.
In June 1963, the Court of Appeal confirmed the death sentence for ritual murder against Tsiu Lethola and others.
After independence in the 1970s and particularly in the 1980s there were several death sentences confirmed by the Court of Appeal and this is where the late Justice MP Mofokeng came in.
But, first, the case of Blyth Monanthane v Rex 1978 LLR 447 (CA). This was a premeditated murder in which the accused had boasted before the killing: “Today I am going to kill a European and a Mosotho.”
And so it happened. He smoked dagga in order to give himself Dutch courage. He then pushed the deceased, a European and a Mosotho, off the top of the Victoria building to their death.
A witness testified at the trial that as both deceased persons fell, they made a sound which he at first thought was that of an aeroplane. It was a gruesome murder.
The accused was sentenced to hang by Cotran CJ. The Court of Appeal confirmed the death penalty on 10 January 1978.

? The last part of Justice Ramodibedi’s address will be published in the next issue of the Sunday Express. Justice Ramodibedi is 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.

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