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Botswana hangs on to the death penalty

JUSTICE

In sub-Saharan Africa, a region with no shortage of development issues, Botswana stands out for its strong economy, stable democracy and commitment to the rule of law. But by one measure the country is frighteningly narrow-minded — its support for capital punishment.

Most of Africa is abandoning the death penalty, according to Amnesty International. Today, just 10 African countries allow for capital punishment and only a handful ever use it.

But Botswana — an affluent, landlocked, diamond-exporting state — is among the leading exceptions. After a lull in killings in 2017, it has resumed by executing convicted murderers Joseph Tselayarona (28) in February and Uyapo Poloko (37) in May.

Botswana’s legal system, and the basis for capital punishment, is rooted in English and Roman-Dutch common law. According to the country’s penal code, the preferred punishment for murder is death by hanging.

Although the Constitution protects a citizen’s “right to life”, it makes an exception when the termination of a life is “in execution of the sentence of a court”.

But the country’s relationship to the death penalty predates its current legal statutes. In the pre-colonial era, tribal chiefs — known as kgosi — imposed the penalty for crimes such as murder, sorcery, incest and conspiracy. To this day, history is often invoked to defend the status quo. In a 2012 judgment, the court of appeals wrote that capital punishment has been imposed “since time immemorial” and “its abolition would be a departure from the accepted norm”.

To be sure, the number of executions in Botswana pales in comparison with the world’s leaders. Of the 993 executions recorded by Amnesty International last year, 84% were carried out by just four countries — Iran, Saudi Arabia, Iraq and Pakistan. The total does not include China, believed to be the world’s greatest executioner. Death-penalty data there are classified as a state secret.

By contrast, Botswana has executed about 50 people since independence in 1966 but the very existence of capital punishment is a stain on the country.

According to Amnesty Inter-national, 142 countries have abolished the death penalty.

In its most recent death-penalty survey, the group pointed to sub-Saharan Africa as a “beacon of hope” in the global effort to eradicate the practice. Last year, Kenya ended the mandatory imposition of the death penalty for murder and Guinea became the 20th country in the region to abolish capital punishment for all crimes.

After South Africa’s threat to withdraw from the International Criminal Court in October 2016, Botswana’s leaders defended the ICC and reaffirmed their commitment to international law. Then, in February, Ian Khama, while he was still president, broke the silence among African leaders and called for Joseph Kabila, the autocratic president of the Democratic Republic of Congo, to “relinquish power”. In the same month, the Botswana government criticised the UN Security Council for its handling of the crisis in Syria.

Taking a progressive stance on the death penalty would seem a natural step in the evolution of Botswana’s liberal agenda. But the government has only dug in deeper and contradictory international laws mean that Botswana is under no great pressure to change course.

Although the African Charter on Human and Peoples’ Rights and the Universal Declaration of Human Rights contain de facto prohibitions on capital punishment, the International Covenant on Civil and Political Rights (ICCPR) recognises a state’s authority to retain the practice. An “optional” auxiliary amendment to the ICCPR, adopted in 1989, sought to close this loophole but Botswana did not sign it.

Public opinion also favours preserving the status quo. According to an online survey conducted by the national newspaper Mmegi, support for capital punishment remains high among voters, which explains why the issue has never gained traction in Parliament.

But there is simply no evidence to support the authorities’ argument that the death penalty lowers rates of violent crime. Convincing the public of this will require visionary leadership, not to mention more legal challenges that force the courts to take up and debate the issue.

Botswana’s would-be abolitionists need not look far for inspiration. When South Africa’s Constitutional Court ended capital punishment in 1995, opponents of the decision argued that the court was not in tune with public opinion; some even called for a referendum. But the framers of South Africa’s post-apartheid Constitution, which came into force in 1996, held their ground and the practice was abolished.

As the South African court wrote in its opinion: “Everyone, including the most abominable of human beings, has the right to life.”

The goal for leaders in Botswana must be to convince their constituents, and perhaps also themselves, to embrace the universality of that sentiment. — © Project Syndicate

Mary-Jean Nleya is an associate fellow at the Royal Commonwealth Society and founder of the Global Communiqué, a digital current-affairs magazine

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