Botswana Press Agency

BOTSWANA  - Pending execution.

Kobedi goes to the gallows

Death row prisoner, Letlhohonolo Kobedi�s hope of escaping gallows now lies with President Festus Mogae after the Court of Appeal dismissed his appeal today.

�The appeal by the appellant against the judgement of Kirby J. in the High Court and the applications, as amplified therein, are dismissed,� read the judgement that was presented by Chief Justice Julian Nganunu on behalf of a panel of 5 judges of the Court of Appeal.

However, the execution of Kobedi�s death sentence would be stayed �pending the appellant�s full exercise of his rights to a petition for clemency to the state president.� �I feel for my client,� these were the words of Kobedi�s attorney, Unoda Mack in an interview after the judgement was delivered.

He did not comment further saying he was still to read the judgement but intimated that he would approach the President as soon as possible for clemency.

�We will plead with the President and hopefully he would listen to us,� the seemingly disappointed Mack said.

The usually calm and smiling Kobedi has been in and out of the courts since 1993 after he was charged for killing a police Sergeant at Botepetepe lands near Serowe.

He was consequently sentenced to death by the High Court.

In November 1999 Kobedi made an application to the High Court asking it to direct that the execution of the death sentence imposed on him be stayed pending the finalisation of the matter.

He also wanted the court to declare the trial as mistrial and unfair and asked it to direct that he be discharged and tried afresh. However, the High Court dismissed this application.

After this court ruling, he turned to the Court of Appeal and sought to add a number of additional grounds as well as to introduce further affidavit evidence.

The defence team took these issues to the Court of Appeal and still wanted it to direct that the execution of the death sentence imposed on Kobedi be stayed pending the finalisation of the matter.

They also reiterated that the court should direct that the trial in the High Court was a mistrial and unfair and that Kobedi be discharged and tried afresh.

They also argued that the execution of the death sentence was unfair and unreasonable by reason of delay, which was from September 1998 to November 1999.

In the 65-page judgement prepared by Court of Appeal Acting President, Justice Patrick Tebbutt, the court dismissed defence attorney Advocate Brian Splig�s sentiments that Kobedi was not accorded a fair trial because he was not represented by an attorney of his choice.

�The appellant was accordingly legally represented at all stages of the trial albeit not for part of it by a practitioner of his own choice but by pro deo counsel,� Tebbutt said in his judgement that was agreed to by Justices, Korsah, Zietsman, Plewman and Lord Sutherland.

The concurred with High Court Judge, Justice Kirby that the record showed that one of the attorneys, Moithali Dikgokgwane adequately represented Kobedi.

About the constitutionality of the death sentence and that the execution of such sentence by hanging constituted inhuman and degrading punishment, Tebbutt said the court�s full bench had already pronounced upon the constitutionality of the death sentence and has held that it was unconstitutional and neither was its form of execution. �The method for the execution of the death sentence by hanging is laid down by section 26(1) of the Penal Code,� he said.

He intimated that it was for the legislature, not the court, to abolish the death penalty or to change the mode of execution, if it wished so.

The court also ruled against the sentiments that medical negligence could have been taken into an account as an extenuating circumstances.

About the delay of the case, Tebbutt said it was largely caused by the appellant�s own actions.

�The delays since 1999 have been due to prosecution of inappropriate constitutional remedies and to the manner of his doing so,� he added. He intimated that the appellant did not satisfy the court that in all circumstances of the case, the delay since the passing of the death sentence on him went beyond what was constitutionally permissible.

About the ground that the death sentence should not be carried out due to the appellant�s state of physical health and mental condition, Tebbutt said it was not for the court to decide. He intimated that these were the factors that should properly be put before the Executive in considering any application for clemency.

Therefore, he drew the attention of the Advisory Committee to the submissions made on behalf of the appellant as to his state of physical and mental health and in regard to the fact that the death sentence was imposed on October 1998.

�The advisory body may consider these factors worthy of consideration, with any others the appellant may advance, in advising the President in terms of section 55,� he added.

In his presentation in January, Assistant Attorney General Lizo Ncgoncgo had argued that death penalty by hanging should be re-affirmed as being constitutional adding that it was pointless to state that death penalty was constitutional adding that it was pointless to state that death penalty was constitutional while its mode of handing was not.

About the appellant�s legal representation, Ncgoncgo had stated that Kobedi had a lawyer of his choice at the close of the prosecution case but the lawyer was struck of the roll. He intimated that Kobedi had always complained of the lawyers that ever represented him.

Therefore, his view was that issue of legal representation had no impact on the case. Ncgoncgo also told the court that the prosecution was not responsible for availing the deceased�s medical records.

And, he added that medical records would not normally form part of the docket.

He said, if records were available, they would have served as mitigation not extenuating circumstances.