Botswana’s defence minister, Ramadeluka Seretse, has insisted that his government will not give South Africa an undertaking that a Botswana citizen wrongly repatriated to face murder charges will be spared the hangman’s noose.
This follows the deportation of the suspect, Edwin Samotse, to Botswana in August this year, contrary to South African government policy and a ministerial court order.
South Africa’s home affairs spokesperson, Mayihlome Tshwete, told amaBhungane that there was no possibility that Samotse would be returned to South Africa because Botswana had its own sovereign judiciary.
He said the South African authorities were, however, preparing to make representations to the Botswana government asking for an assurance that Samotse will not be hanged.
South Africa abolished the death penalty in 1995, and Botswana, Lesotho and Zimbabwe are the only Southern African countries that retain capital punishment for ordinary crimes.
But, according to Zimbabwe’s new Constitution, those under 21 and those older than 70 at the time of their conviction cannot be executed.
Tshwete confirmed that three home affairs officials are being investigated in connection with the illegal deportation of Samotse, but would not say whether corruption was suspected.
Seretse said that, when Botswana applied for his extradition, the South Africans had asked for an assurance that Botswana would not apply the death penalty if he was found guilty, but this had not been given.
He told he Botswana Gazette last month that Samotse would not be returned to South Africa. “We cannot hand him over to the South Africans. We have no obligation to do so and he allegedly committed an offence here,” Seretse said.
“We don’t care how he got here, because he is not an illegal immigrant in Botswana.”
Samotse (26), who was deported directly from a jail in Polokwane, where he was being held on August 13 as an illegal immigrant, should first have first passed through the Lindela detention centre in Johannesburg.
He had been in South African custody for three years while his extradition was being negotiated by the two governments. He allegedly stabbed his girlfriend, Tshegofatso Kgati, to death in March 2011 in Francistown, leaving her naked body on a bed before skipping over the South African border.
Against minister’s orders
The deportation took place despite an order by South Africa’s then minister of justice, Jeff Radebe, that he should not be extradited to Botswana after the authorities there refused to undertake not to execute him if he was convicted.
Samotse is yet to appear in Botswana’s High Court.
Meanwhile, a home affairs official told amaBhungane that the department is concerned that South Africa could become a destination for people seeking to avoid the death penalty in their own countries.
The official, who asked not to be named, said that, because the fugitives could not be repatriated, the South African taxpayer would have to pay for their indefinite detention.
The official said that the South African police had arrested other illegal immigrants from other Southern African countries who had apparently crossed into South Africa to avoid execution. But he could not say how many had allegedly done so. — Additional reporting by Drew Forrest
Capital punishment stays despite controversy
Capital punishment in Botswana, which on average hangs one criminal a year, was declared unconstitutional last year, but a later judgment contradicted the finding.
In the murder trial of Rodney Masoko, High Court Judge Tshepho Motswagole ruled that section 203 of the Penal Code, which enshrines the death penalty, is unconstitutional because it does not provide for convicts to plead in mitigation where a court has found no extenuating circumstances.
Motswagole found that the section fails to afford people convicted of murder equal treatment and seriously undermines the individualisation of the inquiry by excluding well-known sentencing principles.
He sentenced Masoko, who killed his girlfriend in 2006, to life imprisonment.
Motswagole’s judgment was applauded by human rights attorneys and the Botswana Centre for Human Rights but it ran into immediate flak from the directorate of public prosecutions (DPP), which issued a press statement announcing that the death penalty remained in force.
Stressing that the controversy surrounding the judgment was misleading to the public and “regrettable and irresponsible”, the DPP pointed to the Court of Appeal’s 1995 finding that capital punishment was constitutional.
The DPP’s stance was confirmed in judgment a month later by another High Court judge, Michael Leburu, who found that section 203 “does not say that the court should not have regard to mitigating factors”.
He condemned two men to death for murdering an old man.
Botswana, which retains capital punishment for murder and treason, has executed 47 convicted criminals since independence in 1966.
According to Amnesty International, Southern African countries that have abolished judicial executions are South Africa, Angola, Mozambique and Namibia.
Zambia has made an international commitment not to use the death penalty.
At least 778 people were executed worldwide in 2013. But the number of countries carrying out executions dropped from 37 in 1994 to 22 in 2013. — Tebogo Kgalemang
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