The High Court in Johannesburg has slammed Botswana as a “pariah state not synchronised with the majority of African countries that have either abandoned or are refusing to implement the death penalty”.
Ruling on an extradition application, the court also noted that the country’s history in implementing judicial executions ensured that it had “proved itself to be a flouter of human rights”.
Thirty-two people were hanged in Botswana between independence in 1996 and 1998 and a further six were executed between 2001 and 2006.
The ruling by a full Bench, comprising deputy Judge President Phineas Mojapelo, Judge Neels Claasens and acting Judge George Bizos, found that it was illegal and unconstitutional for South Africa to extradite a crime suspect to a country that still used the death penalty unless there were written assurances from its government that the person would not be executed.
The matter involved Emmanuel Tsebe, a Botswana national and alleged murderer, who died in custody in South Africa. Tsebe was fighting extradition to Botswana where he faced murder charges.
The ruling was built on prior jurisprudence established by the Constitutional Court on the right to life — the famous Makwanyane judgment that abolished the death penalty in South Africa and the Mohamed judgment on extradition.
It also painted a picture of the Botswana government as one with a propensity for “secretive hangings” and scant regard for the human rights principles in various conventions, including the African Charter.
It noted a “number of remarkable deficiencies in the judicial system of Botswana” highlighted in a report, Hasty and Secretive Hangings, by the International Federation for Human Rights.
These included the “opaque” clemency process of Botswana’s clemency committee, which considers applications for appeals against the death penalty.
According to the report, only one person has been granted a reprieve after being sentenced to death in Botswana since 1996.
The judgment also noted that the integrity of the committee was compromised by the fact that Botswana’s attorney general served as a member.
“It goes without saying that the ability of the attorney general to act independently from the president when clemency cases are under consideration is seriously compromised,” the judges said.
The judgment also cited the case of South African national Mariette Bosch, who was convicted of murder in Botswana and sentenced to death, as an example of the country’s secretive approach.
In 2001 Bosch applied to the African Commission alleging violations of various rights under the African Charter and asking it to intervene.
The commission had written to then president Festus Mogae appealing for a stay of execution until a decision on Bosch’s petition was made. Despite the request, Bosch was executed four days later.
The ruling also noted the case of political studies academic Kenneth Good, who had co-written an article critical of the presidential succession in 2005 and was subsequently expelled from Botswana, to raise concerns about the country’s authoritarian tendencies and the compliant nature of its judiciary.
A University of Botswana professor, Good was expelled by Mogae with less than three days’ notice. As a result, he was separated from his 17-year-old daughter. The Botswana courts endorsed the decision.