international treaties on human rights and the death penalty:
International Covenant on Civil and Political Rights
Convention on the Rights of the Child
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
African Charter on Human and Peoples' Rights
Statute of the International Criminal Court (which excludes the death penalty)
The death penalty has been on the books in Botswana since its independence from Great Britain in 1966. Since then, there have been 48 people put to death (up to 30 June 2016).
Capital crimes include homicide, piracy, treason, attempting to take the life of a head of State and military crimes such as mutiny and desertion in the face of the enemy.
The number of executions, often carried out in secret, has always been low, one or, at most, two a year. There were no executions in 2004 and 2005. Between 2006 and 2010 there were five executions, one a year. In 2011, there were no executions. In 2012, there was at least one execution. According to Amnesty International, two men were executed in 2012, and five death sentences were imposed. Another execution was carried out in May 2013. No executions were carried out in 2014 and 2015, but 1
was recorded in 2016.
At the end of 2016, there was only one
convict on death row.
Executions cannot be carried out without a signed mandate from the President, but no President has ever granted clemency.
In October 2008, President Lt. Gen. Seretse Khama Ian Khama said the Government did not intend to change its current stance on the death penalty. This, he said, did not mean that the government enjoyed doing it but it was the only way to discourage people from taking other individuals’ lives. “The fear of facing the death penalty can make a would-be killer think twice about murdering somebody,” he said. “Nobody wants to die.”
On 9 October 2013, a High Court judge ruled that the Botswana’s process leading to the imposition of capital punishment is unconstitutional. In a landmark judgment, Justice Tshepo Motshwagole of the Lobatse High Court scrapped Section 203 of the Penal Code, saying that it essentially provided for a mandatory death sentence, since that section did not allow convicts accused of murder without extenuating circumstances to present all mitigating factors, including the fact that one was a first offender, remorseful and had had pre-trial or pre-conviction incarceration, which could persuade the trial judge not to impose the death penalty.
Motswagole said it was unfair for a person convicted of murder with no extenuating circumstances not to mitigate while the one convicted of murder with extenuating circumstances was allowed to mitigate. Motshwagole ruled that such unequal treatment and/or unequal benefit, and protection, of the law was contrary to section 3(a) and 10(1) of the Constitution. Justice Motswagole noted that in cases of murder with extenuating circumstances, the maximum term of imprisonment imposed so far in Botswana was 25 years. He further explained that “there is a qualitative difference between the death penalty and the maximum imprisonment of 25 years so far imposed by the Court of Appeal in a handful (of) cases.” “It should trouble our consciences and is a clarion call to awaken us to realise that our system of justice is sick, inequitable and grossly unfair as it offends the fundamental principles of Justice,” he asserted. Justice Motswagole was passing judgment in a case involving Rodney Masoko who was accused of murdering his girlfriend, Gloria Zwemisi, on 27 February 2006 in Francistown. Attorney Kgosietsile Ngakaagae, who is a senior State Prosecutor, announced that as a result of the High Court ruling, there will be no more hangings in Botswana and they shall remain suspended until Justice Motswagole’s judgment was overturned at the Court of Appeal, if it was ever challenged. On 16 October 2013, the Directorate of Public Prosecutions (DPP) said Justice Motswagole’s ruling did not have the effect of overturning the death penalty in Botswana, which remained constitutional as it was held by the Court of Appeal in the case of Ntesang vs State (1995).
The DPP further said Justice Motswagole’s judgement in the case of Rodney Masoko neither had the effect of overruling the 1995 Court of Appeal decision nor did it have a binding effect on other High Court judges. “The death penalty remains in force. The DPP is appealing the decision in the case of State vs Rodney Masoko
,” the DPP said in a press statement.
In 2013, the Court of Appeal spared the lives of at least five death row inmates by either a reduction of sentence or overturning their convictions.
The death penalty on women
When a woman has been deemed pregnant in accordance with the Criminal Procedure and Evidence Act, the sentence of death will be reduced to life imprisonment.
On 23 January 2013, Botswana was reviewed under the Universal Periodic Review of the UN Human Rights Council. It rejected recommendations to introduce a legal moratorium on executions and abolish the death penalty. As long as the greater majority of the citizens of Botswana will continue to support capital punishment the government will continue to uphold it.
After the last execution on 25 May 2016, there are three death row inmates.
On 19 December 2016, Botswana voted once again against the Resolution on a Moratorium on the Use of the Death Penalty at the UN General Assembly.