Death Penalty Database

Botswana

Information current as of: April 1, 2011

General

Official Country Name

Republic of Botswana (Botswana). [1]

Geographical Region

Africa (Southern Africa). [2]

Death Penalty Law Status

Retentionist. [3]

Methods of Execution

Hanging. [4]
The Penal Code specifies that a person who is sentenced to death will be hanged by the neck. [5]

Other. [6]
For military executions, the Botswana Defence Force Act allows the President to determine any manner of execution. [7]

References

[1] U.S. Dept. of State, Background Note: Botswana, http://www.state.gov/r/pa/ei/bgn/1830.htm, Mar. 26, 2010.
[2] U.N., World Macro Regions and Components, U.N. Doc. ST/ESA/STAT/SER.R/29, 2000.
[3] Amnesty Intl., Death Sentences and Executions in 2009, p. 6, ACT 50/001/2010, Mar. 30, 2010; The Zimdiaspora, Zimbabwean Murderer Hanged in Botswana, http://zimdiaspora.com/index.php?option=com_content&view=article&id=2489:zimbabwean-murderer-hanged-in-botswana&catid=38:travel-tips&Itemid=18, Dec. 24, 2009.
[4] The Penal Code of Botswana, sec. 26(1), Jun. 10, 1964.
[5] The Penal Code of Botswana, sec. 26(1), Jun. 10, 1964.
[6] Botswana Defence Force Act, sec. 128(a), Apr. 15, 1977.
[7] Botswana Defence Force Act, sec. 128(a), Apr. 15, 1977.

Country Details

Language(s)

English. [1]

Population

1,840,000. 1,840,000. [2]

Number of Individuals Currently Under Sentence of Death

There were 3 men on death row at the end of 2014. [3] We have found no reports of new death sentences since then.

(This question was last updated on October 7, 2015.)

Annual Number of Reported Executions

Executions in 2017 to date (last updated on October 18, 2017)

0. [4]

Executions in 2016

1. [5]

Per capita execution rate in 2016

Executions in 2015

0. [6]

Per capita execution rate in 2015

0 executions.

Executions in 2014

0. [7]

Per capita execution rate in 2014

0 executions

Executions in 2013

1. [8]

Per capita execution rate in 2013

1 execution per 1,840,000 persons

Executions in 2012

2. [9]

Per capita execution rate in 2012

1 execution per 920,000 persons

Executions in 2011

0. [10]

Per capita execution rate in 2011

0 executions

Executions in 2010

1. [11]

Executions in 2009

1. [12]

Executions in 2008

1. [13]

Executions in 2007

1. [14]

Year of Last Known Execution

2016. [15]

References

[1] U.S. Dept. of State, Background Note: Botswana, http://www.state.gov/r/pa/ei/bgn/1830.htm, Mar. 26, 2010.
[2] U.S. Dept. of State, Background Note: Botswana, http://www.state.gov/r/pa/ei/bgn/1830.htm, Mar. 26, 2010.
[3] Amnesty Intl., Death Sentences and Executions in 2014, ACT 50/001/2015, Mar. 31, 2015.
[4] DPW Executions and Death Sentences Monitor.
[5] Amnesty International, Death sentences and executions in 2016, ACT 50/5740/2017, Apr. 11, 2017. See European Union External Action, Statement by the Spokesperson on the execution of Patrick Gabaakanye in Botwana, http://eeas.europa.eu/statements-eeas/2016/160525_08_en.htm, May 25, 2016.
[6] DPW Executions and Death Sentences Monitor.
[7] Amnesty Intl., Death Sentences and Executions in 2014, ACT 50/001/2015, Mar. 31, 2015.
[8] Amnesty Intl., Death Sentences and Executions in 2013, p. 50, ACT 50/001/2014, Mar. 26, 2014. Mtokozisi Dube, Botswana man on 6 death sentences executed, Africa Review, http://www.africareview.com/News/Botswana-man-on-six-death-sentences-executed-/-/979180/1864808/-/yppj9z/-/index.html, May 28, 2013.
[9] Amnesty Intl., Death Sentences and Executions in 2012, ACT 50/001/2012, Apr. 9, 2013.
[10] Amnesty Intl., Death Sentences and Executions in 2011, ACT 50/001/2012, http://www.amnesty.org/en/library/info/ACT50/001/2012/en, Mar. 27, 2012.
[11] Amnesty Intl., Death Sentences and Executions in 2010, p. 5, ACT 50/001/2011, Mar. 28, 2011.
[12] Amnesty Intl., Death Sentences and Executions in 2009, p. 6, ACT 50/001/2010, Mar. 30, 2010.
[13] Amnesty Intl., Death Sentences and Executions in 2009, p. 6, ACT 50/001/2010, Mar. 30, 2010.
[14] Amnesty Intl., Death Sentences and Executions in 2007, p. 6, ACT 50/001/2008, Apr. 15, 2008.
[15] European Union External Action, Statement by the Spokesperson on the execution of Patrick Gabaakanye in Botwana, http://eeas.europa.eu/statements-eeas/2016/160525_08_en.htm, May 25, 2016.

Crimes and Offenders Punishable By Death

Crimes Punishable by Death

Murder.
Premeditated murder is punishable by death. [1]

Treason.
Attempting to overthrow the Government, attempting to forcibly change the law or government policies, attempting to usurp the State’s executive power, assisting the enemy in wartime, assisting anyone who threatens the security of the State, [2] or instigating invasion of the State [3] is punishable by death. Non-citizens may be punished under treason laws for acts they commit in Botswana. [4]

Espionage.
Providing intelligence to the enemy with intention to assist the enemy is punishable by death. [5]

Military Offenses Not Resulting in Death.
Aiding the enemy, [6] cowardly behavior, [7] mutiny involving violence or the threat of violence, [8] and failure to suppress mutiny with the intent to assist the enemy [9] are crimes punishable by death.

Other Offenses Not Resulting in Death.
Aggravated Piracy. Assault with intent to murder in the course of piracy is punishable by death. [10]

Does the country have a mandatory death penalty?

Unsure. Botswana does not have a mandatory death penalty for murder or treason, but it may retain a mandatory death penalty for aggravated piracy.

The Penal Code and Criminal Procedure and Evidence Act state that courts can exercise discretion when extenuating circumstances exist in cases of murder and treason, [11] and in delivering a non-capital sentence for murder, courts should but need not specify any extenuating circumstances. [12] This suggests that courts have discretion in sentencing. Domestic court rulings and rulings by the African Commission on Human and People’s Rights indicate that in Botswana, courts must consider mitigating and aggravating circumstances relevant to an offender’s culpability and moral blameworthiness in committing the specific offense. [13] This indicates some discretion in sentencing.

Some sources interpret the death penalty in Botswana as semi-mandatory, explaining that the extent of the court's discretion is unclear. [14] The UN Human Rights Committee, as of 2008, maintained the position that Botswana may retain the mandatory death penalty, because Botswana is not forthcoming with data that would indicate otherwise. [15]

A survey of High Court sentencing decisions for murder over the past several years [16] indicates that the High Court routinely considers a range of mitigating factors and with some frequency delivers reduced and even minimal sentences for capital offenses. The Botswana Court of Appeal explicitly rejects the conclusion that the death penalty is mandatory for murder; Botswana courts may “impose any appropriate punishment.” [17] This suggests that the death penalty, or any other sentence, is not mandatory. In the case of Bosch v. Botswana, the Court of Appeal reviewed a trial judge's consideration of aggravating and mitigating circumstances in awarding a sentence--and on petition before the ACHPR, the Commission observed that "[i]f anything, the courts fully considered all the circumstances in this case..." [18]

It may be true that the framework within which courts in Botswana consider aggravating and mitigating factors and circumstances is unclear, but the death penalty is often discretionary. There have been no reported cases of the death sentence applied to the offense of treason or aggravated piracy. [19] One source suggested that the death penalty is mandatory for piracy; [20] it should be noted that the law does not specifically state that courts may consider extenuating circumstances in the case of piracy, although it makes this provision for murder and treason. However, an offender "shall be liable to suffer death" for piracy, which contrasts with the mandatory prescription for murder or treason that an offender "shall be sentenced to death." In common law jurisdictions, the phrase "liable to" has been deemed ambiguous, and its interpretation is not automatic. [21] Furthermore, the phrase “liable to suffer death” is, in similar jurisdictions, interpreted as a permissive rather than a mandatory phrasing. [22]

For Which Offenses, If Any, Is a Mandatory Death Sentence Imposed?

Other Offenses Not Resulting in Death.
Aggravated Piracy (Possibly). [23] When the offender assaults with intent to murder directly before or directly after the act of piracy, the offender is "liable to suffer death." [24]

Comments.
Although there are general provisions in the Penal Code which might undermine the mandatory sentence of death for aggravated piracy, the statute neither provides alternatives to the penalty of death nor describes extenuating circumstances. [25] By contrast, other statutes for death-eligible crimes, namely simple murder and treason, refer directly to other statutes either to describe extenuating circumstances or to offer an explicit alternative sentence to the death penalty. [26] Thus, the penalty for assault with intent to kill in the course of piracy could be classified as a mandatory death sentence. However, there are no reported cases of the death sentence as applied to treason or aggravated piracy. [27]

The High Court’s statement that courts may “impose any appropriate punishment” [28] suggests that the penal code might be better interpreted to raise the maximum penalty for aggravated piracy to death, with a range of lesser penalties permitted. [29] In common law jurisdictions, the phrase "liable to" has been deemed ambiguous, and its interpretation is not automatic. [30] Furthermore, the phrase “liable to suffer death” is, in similar jurisdictions, interpreted as a permissive rather than a mandatory phrasing. [31]

As of June 2007 there was no evidence to support that aggravated piracy as applied is punished by the mandatory death penalty. [32]

Crimes For Which Individuals Have Been Executed Since January 2008:

Murder. [33]
In March 2010, Modise Fly was executed for killing his son with an axe. He had argued that the killing was accidental. [34] In December 2009, Zimbabwean national Gerald Dube was executed. [35] In September 2008, Kedisaletse Tsobane was executed. [36]

Categories of Offenders Excluded From the Death Penalty:

Individuals Below Age 18 At Time of Crime.
When the offender was under the age of 18 when the crime was committed, the sentence of death will be reduced to indefinite detainment at the President’s pleasure. [37]

Pregnant 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. [38]

Mentally Ill.
If a mental illness causes the offender to not understand his actions or to not understand that he ought not to commit the act, the offenders is not criminally responsible for the act. [39]

Comments.
Section 32 of the Penal Code lists a number of exclusionary circumstances that allow a court to dismiss a charge before conviction. [40] Specifically, these factors include “character, antecedents, age, health or mental condition of the accused, or to the trivial nature of the offence, or to extenuating circumstances in which the offence was committed.” [41] It is possible that this statute extends to the elderly and to the intellectually disabled, but because nowhere else in the Penal Code are the elderly or intellectually disabled mentioned as criminally less responsible. Meanwhile, individuals under 18, pregnant women, and the mentally ill are all explicitly excluded from the penalty of death in separate statutes. [42]

References

[1] The Penal Code of Botswana, secs. 202, 203(1), 204, Jun. 10, 1964.
[2] The Penal Code of Botswana, sec. 34, Jun. 10, 1964.
[3] The Penal Code of Botswana, sec. 35, Jun. 10, 1964.
[4] The Penal Code of Botswana, secs. 34, 35, 40, Jun. 10, 1964.
[5] Botswana Defence Force Act, sec. 28, Apr. 15, 1977.
[6] Botswana Defence Force Act, sec. 27, Apr. 15, 1977.
[7] Botswana Defence Force Act, sec. 29, Apr. 15, 1977.
[8] Botswana Defence Force Act, sec. 34, Apr. 15, 1977.
[9] Botswana Defence Force Act, sec. 35, Apr. 15, 1977.
[10] The Penal Code of Botswana, secs. 62, 63(2), Jun. 10, 1964.
[11] The Penal Code of Botswana, secs. 34, 35, 40, 202, 203, Jun. 10, 1964; Criminal Procedure and Evidence Act of Botswana, sec. 290(1)(iv), Jan. 1, 1939.
[12] Criminal Procedure and Evidence Act of Botswana, sec. 290(1)(iv), Jan. 1, 1939.
[13] Intl. Federation for Human Rights & The Botswana Centre for Human Rights, The Death Penalty in Botswana Hasty and Secretive Hangings: International Fact-Finding Mission, pp. 22, 23, no. 473/2, Jun. 25, 2007; Interights v. Botswana, Communication 240 of 2001, African Commn. on Human and Peoples' Rights, 2003.
[14] Intl. Federation for Human Rights & The Botswana Centre for Human Rights, The Death Penalty in Botswana Hasty and Secretive Hangings: International Fact-Finding Mission, p. 19, no. 473/2, Jun. 25, 2007; Roger Hood & Carolyn Hoyle, The Death Penalty: A Worldwide Perspective, p. 280, Oxford University Press, 4th ed., 2008.
[15] U.N. ICCPR Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant, pp. 3-4, U.N. Doc. CCPR/C/BWA/CO/1, Apr. 24, 2008.
[16] Website of the Southern Legal Information Institute at http://www.saflii.org/cgi-bin/search.pl
[17] Kobedi v. State, p. 39, 44-45, Criminal Appeal no. 25 of 201, BWCA 22, Ct. of Appeal of Botswana, Mar. 19, 2003.
[18] Bosch v. State, Criminal Appeal No. 37 of 1999, Ct. of Appeal of Botswana, Jan. 30, 2001; Interights et al. v. Botswana, para. 31, Communication no. 240/2001, African Commn. on Human and People’s Rights, 2003.
[19] The Botswana Centre for Human Rights, Death Penalty, http://www.DITSHWANELO.org.bw/death_penalty.html, last accessed Jun. 1, 2010.
[20] Intl. Federation for Human Rights & The Botswana Centre for Human Rights, The Death Penalty in Botswana Hasty and Secretive Hangings: International Fact-Finding Mission, p. 19, no. 473/2, Jun. 25, 2007.
[21] See Dube v. State, Criminal Appeal No. 7 of 2001, Ct. of Appeal of Botswana, Jul. 20, 2001; The Queen v. Peter Hughes, paras. 19-20, Appeal No. 91 of 2001, Judicial Comm. of the Privy Council, Mar. 11, 2002; King v. Banda, Court of Criminal Appeal of Sri Lanka, Nov. 19, 1942; Thiruchelvam v. Attorney General, Appeal No. 144 of 1994, Supreme Court of Sri Lanka, Mar. 6, 1995.
[22] For example, The Death Penalty Project, Fornah v. State, http://www.deathpenaltyproject.org/case_authorities/144, 1975; Keir Starmer & Theodora A. Christou, Human Rights Manual and Sourcebook for Africa, p. 601, British Institute of International and Comparative Law. May 2005.
[23] The Penal Code of Botswana, secs. 62, 63(2), Jun. 10, 1964.
[24] The Penal Code of Botswana, secs. 62, 63(2), Jun. 10, 1964.
[25] The Penal Code of Botswana, secs. 11, 12(2)-(5), 13, 14, 15, 16, 17, 18, 62, 63(2), Jun. 10, 1964.
[26] According to sections 34 and 35, treason is punishable by death subject to section 40, which provides an alternate sentence of 15 to 25 years of imprisonment. According to section 203(1), murder is punishable by death, subject to section 203(2), which allows any other sentence than death in the case of extenuating circumstances. Further, section 203(3) broadly explains how extenuating circumstances can be determined in the case of simple murder. The Penal Code of Botswana, secs. 34, 35, 40, 202-204, Jun. 10, 1964.
[27] DITSHWANELO: The Botswana Centre for Human Rights, Death Penalty, http://www.DITSHWANELO.org.bw/death_penalty.html, last accessed Jun. 1, 2010.
[28] Kobedi v. State, p. 39, Criminal Appeal no. 25 of 201, BWCA 22, Ct. of Appeal of Botswana, Mar. 19, 2003.
[29] The Penal Code of Botswana, secs. 62, 63, Jun. 10, 1964.
[30] See Dube v. State, Criminal Appeal No. 7 of 2001, Ct. of Appeal of Botswana, Jul. 20, 2001; The Queen v. Peter Hughes, paras. 19-20, Appeal No. 91 of 2001, Judicial Comm. of the Privy Council, Mar. 11, 2002; King v. Banda, Court of Criminal Appeal of Sri Lanka, Nov. 19, 1942; Thiruchelvam v. Attorney General, Appeal No. 144 of 1994, Supreme Court of Sri Lanka, Mar. 6, 1995.
[31] For example, The Death Penalty Project, Fornah v. State, http://www.deathpenaltyproject.org/case_authorities/144, 1975; Keir Starmer & Theodora A. Christou, Human Rights Manual and Sourcebook for Africa, p. 601, British Institute of International and Comparative Law. May 2005.
[32] Intl. Federation for Human Rights & The Botswana Centre for Human Rights, The Death Penalty in Botswana Hasty and Secretive Hangings: International Fact-Finding Mission, p. 19, no. 473/2, Jun. 25, 2007.
[33] Maranyane Ngwanaamotho, Fly’s secretive execution wrong – DITSHWANELO, Mmegi Online, http://www.mmegi.bw/index.php?sid=1&aid=1272&dir=2010/March/Friday26, Mar. 26, 2010; The Zimdiaspora, Zimbabwean murderer hanged in Botswana, http://www.zimdiaspora.com/index.php?option=com_content&view=article&id=2489:zimbabwean-murderer-hanged-in-botswana&catid=38:travel-tips&Itemid=18, Dec. 24, 2009; Daily News, Tsobane executed, http://www.gov.bw/cgi-bin/news.cgi?d=20080925&i=Tsobane_executed, Sep. 25, 2008.
[34] Maranyane Ngwanaamotho, Fly’s secretive execution wrong – DITSHWANELO, Mmegi Online, http://www.mmegi.bw/index.php?sid=1&aid=1272&dir=2010/March/Friday26, Mar. 26, 2010.
[35] The Zimdiaspora, Zimbabwean murderer hanged in Botswana, http://www.zimdiaspora.com/index.php?option=com_content&view=article&id=2489:zimbabwean-murderer-hanged-in-botswana&catid=38:travel-tips&Itemid=18, Dec. 24, 2009.
[36] Daily News, Tsobane executed, http://www.gov.bw/cgi-bin/news.cgi?d=20080925&i=Tsobane_executed, Sep. 25, 2008.
[37] The Penal Code of Botswana, secs. 26(2), 32, Jun. 10, 1964; Criminal Procedure and Evidence Act of Botswana, sec. 304, Jan. 1, 1939.
[38] The Penal Code of Botswana, secs. 26(3), 32, Jun. 10, 1964; Criminal Procedure and Evidence Act of Botswana, sec. 298, Jan. 1, 1939.
[39] The Penal Code of Botswana, secs. 11, 32, Jun. 10, 1964.
[40] The Penal Code of Botswana, sec. 32, Jun. 10, 1964.
[41] The Penal Code of Botswana, sec. 32, Jun. 10, 1964.
[42] The Penal Code of Botswana, secs. 11, 26(2), 26(3), Jun. 10, 1964; Criminal Procedure and Evidence Act of Botswana, sec. 298, 304.

International Commitments

ICCPR

Party?

Yes. [1]

Date of Accession

Sep. 8, 2000. [2]

Signed?

Yes. [3]

Date of Signature

Sep. 8, 2000. [4]

First Optional Protocol to the ICCPR, Recognizing Jurisdiction of the Human Rights Committee

Party?

No.

Date of Accession

Not Applicable.

Signed?

No. [5]

Date of Signature

Not Applicable.

Second Optional Protocol to the ICCPR, Toward the Abolition of the Death Penalty

Party?

No. [6]

Date of Accession

Not Applicable.

Signed?

No. [7]

Date of Signature

Not Applicable.

American Convention on Human Rights

Party?

Not Applicable.

Date of Accession

Signed?

Not Applicable.

Date of Signature

Death Penalty Protocol to the ACHR

Party?

Not Applicable.

Date of Accession

Signed?

Not Applicable.

Date of Signature

African Charter on Human and Peoples' Rights (ACHPR)

Party?

Yes. [8]

Date of Accession

Jul. 17, 1986. [9]

Signed?

No. [10]

Date of Signature

Not Applicable.

Protocol to the ACHPR on the Rights of Women in Africa

Party?

No. [11]

Date of Accession

Not Applicable.

Signed?

No. [12]

Date of Signature

Not Applicable.

African Charter on the Rights and Welfare of the Child

Party?

Yes. [13]

Date of Accession

Jul. 10, 2001. [14]

Signed?

Yes. [15]

Date of Signature

Jul. 10, 2001. [16]

Arab Charter on Human Rights

Party?

Not Applicable.

Date of Accession

Signed?

Not Applicable.

Date of Signature

2016 Record of Votes on the UN General Assembly Moratorium Resolution

Cosponsor

No. [17]

Vote

Against. [18]

Signed the Note Verbale of Dissociation

Yes. [19]

2014 Record of Votes on the UN General Assembly Moratorium Resolution

Cosponsor

No. [20]

Vote

Against. [21]

Signed the Note Verbale of Dissociation

Yes. [22]

2012 Record of Votes on the UN General Assembly Moratorium Resolution

Cosponsor

No. [23]

Vote

Against. [24]

Signed the Note Verbale of Dissociation

Yes. [25]

2010 Record of Votes on the UN General Assembly Moratorium Resolution

Cosponsor

No. [26]

Vote

Against. [27]

Signed the Note Verbale of Dissociation

Yes. [28]

2008 Record of Votes on the UN General Assembly Moratorium Resolution

Cosponsor

No. [29]

Vote

Against. [30]

Signed the Note Verbale of Dissociation

Yes. [31]

2007 Record of Votes on the UN General Assembly Moratorium Resolution

Cosponsor

No. [32]

Vote

Against. [33]

Signed the Note Verbale of Dissociation

Yes. [34]

References

[1] Status, Declarations, and Reservations, ICCPR, 999 U.N.T.S. 171, Dec. 16, 1966, http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en, last accessed May 20, 2010.
[2] Status, Declarations, and Reservations, ICCPR, 999 U.N.T.S. 171, Dec. 16, 1966, http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en, last accessed May 20, 2010.
[3] Status, Declarations, and Reservations, ICCPR, 999 U.N.T.S. 171, Dec. 16, 1966, http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en, last accessed May 20, 2010.
[4] Status, Declarations, and Reservations, ICCPR, 999 U.N.T.S. 171, Dec. 16, 1966, http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en, last accessed May 20, 2010.
[5] Status, Declarations, and Reservations, Optional Prot. to the ICCPR, 999 U.N.T.S. 171, Dec. 16, 1966, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-5&chapter=4?=en, last accessed May 20, 2010.
[6] Status, Declarations, and Reservations, Optional Prot. to the ICCPR, 999 U.N.T.S. 171, Dec. 16, 1966, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-5&chapter=4?=en, last accessed May 20, 2010.
[7] Status, Declarations, and Reservations, Second Optional Prot. to the ICCPR, Aiming at the Abolition of the Death Penalty, 1642 U.N.T.S. 414, Dec. 15, 1989, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-12&chapter=4?=en, last accessed May 20, 2010.
[8] African Union, List of countries which have signed, ratified/acceded to the African Charter of Human and People’s Rights, Doc. 0002, http://au.int/en/sites/default/files/African_Charter_on_Human_and_Peoples_Rights.pdf, Aug. 2, 2011.
[9] African Union, List of countries which have signed, ratified/acceded to the African Charter of Human and People’s Rights, Doc. 0002, http://au.int/en/sites/default/files/African_Charter_on_Human_and_Peoples_Rights.pdf, Aug. 2, 2011.
[10] African Union, List of countries which have signed, ratified/acceded to the African Charter of Human and People’s Rights, Doc. 0002, http://au.int/en/sites/default/files/African_Charter_on_Human_and_Peoples_Rights.pdf, Aug. 2, 2011.
[11] African Union, List of countries which have signed, ratified/acceded to the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, Doc. 0025, http://www.au.int/en/sites/default/files/999Rights_of_Women.pdf, Feb. 14, 2011.
[12] African Union, List of countries which have signed, ratified/acceded to the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, Doc. 0025, http://www.au.int/en/sites/default/files/999Rights_of_Women.pdf, Feb. 14, 2011.
[13] African Union, Signatories, Accessions, and Ratifications, African Charter on the Rights and Welfare of the Child, Doc. 0003, http://www.au.int/en/sites/default/files/96Welfare_of_the_Child.pdf, Jan. 27, 2011.
[14] African Union, Signatories, Accessions, and Ratifications, African Charter on the Rights and Welfare of the Child, Doc. 0003, http://www.au.int/en/sites/default/files/96Welfare_of_the_Child.pdf, Jan. 27, 2011.
[15] African Union, Signatories, Accessions, and Ratifications, African Charter on the Rights and Welfare of the Child, Doc. 0003, http://www.au.int/en/sites/default/files/96Welfare_of_the_Child.pdf, Jan. 27, 2011.
[16] African Union, Signatories, Accessions, and Ratifications, African Charter on the Rights and Welfare of the Child, Doc. 0003, http://www.au.int/en/sites/default/files/96Welfare_of_the_Child.pdf, Jan. 27, 2011.
[17] U.N.G.A., 71st Session, Promotion and protection of human rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, paras. 54-71 U.N. Doc. A/71/484/Add.2, Dec. 6, 2016.
[18] U.N.G.A., 71st Session, Promotion and protection of human rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, paras. 54-71 U.N. Doc. A/71/484/Add.2, Dec. 6, 2016.
[19] U.N.G.A., 71st Session, Note Verbale dated 7 September 2017, U.N. Doc. A/71/1047, Sep. 13, 2017.
[20] U.N.G.A., 69th Session, Promotion and Protection of Human Rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, paras. 141, 144, U.N. Doc. A/69/488/Add.2, Dec. 8, 2014.
[21] U.N.G.A., 69th Session, 73rd Plenary Meeting, pp. 17-18, U.N. Doc. A/69/PV.73, Dec. 18, 2014.
[22] U.N.G.A., 69th Session, Note Verbale dated 28 July 2015, U.N. Doc. A/69/993, Jul. 29, 2015.
[23] U.N.G.A., 67th Session, Promotion and Protection of Human Rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, paras. 95-96, U.N. Doc. A/67/457/Add.2, Dec. 8, 2012.
[24] U.N.G.A., 67th Session, 60th Plenary Meeting, pp. 16-17, U.N. Doc. A/67/PV.60, Dec. 20, 2012.
[25] U.N.G.A., 67th Session, Note Verbale dated 16 April 2013, U.N. Doc. A/67/841, Apr. 23, 2013.
[26] U.N.G.A., 65th Session, Promotion and Protection of Human Rights: human rights questions, includng alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, p. 5, U.N. Doc. A/65/456/Add.2, Dec. 8, 2010.
[27] U.N.G.A., 65th Session, 71st Plenary Meeting, pp. 18-19, U.N. Doc. A/65/PV.71, Dec. 21, 2010.
[28] U.N.G.A., 65th Session, Note Verbale dated 11 March 2011, U.N. Doc. A/65/779, Mar. 11, 2011.
[29] U.N.G.A., 63rd session, Promotion and Protection of Human Rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, U.N. Doc. A/63/430/Add.2, Dec. 4, 2008.
[30] U.N.G.A., 63rd Session, 70th Plenary Meeting, pp. 16- 17, U.N. Doc. A/63/PV.70, Dec. 18, 2008.
[31] U.N.G.A., 63rd Session, Note Verbale dated 10 February 2009, U.N. Doc. A/63/716, Feb. 12, 2009.
[32] U.N.G.A., 62nd Session, Promotion and Protection of Human Rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, U.N. Doc. A/62/439/Add.2, Dec. 5, 2007.
[33] U.N.G.A., 62nd Session, 76th Plenary Meeting, pp. 16- 17, U.N. Doc. A/62/PV.76, Dec. 18, 2007.
[34] U.N.G.A., 62nd Session, Note Verbale dated 11 January 2008, U.N. Doc. A/62/658, Feb. 2, 2008.

Death Penalty In Law

Does the country’s constitution make reference to capital punishment?

According to the Constitution of Botswana, “No person shall be deprived of his or her life intentionally save in execution of the sentence of a court in respect of an offence under the law in force in Botswana of which he or she has been convicted,” [1] thus explicitly suggesting that the death penalty is constitutional.

Does the country’s constitution make reference to international law?

No. [2]

Have there been any significant changes in the application of the death penalty over the last several years?

As there are no official published figures on the application of the death penalty, we do not know if it has changed significantly. [3] The death penalty continues to be applied in an opaque manner. [4] However, according to the figures published by Amnesty International, the number of executions year by year has fluctuated very little. [5] Additionally, according to media sources, the only crime which has led to executions since 2008 has been murder. [6]

Is there currently an official moratorium on executions within the country?

No official moratorium on executions exists at present. [7]

Have there been any significant published cases concerning the death penalty in national courts?

Ntesang v. State, in 1995, challenged the constitutionality of the death penalty in the Court of Appeal. [8] The Court acknowledged that the death penalty was increasingly recognized as “torture, inhuman or degrading punishment or treatment,” but ultimately decided that “the Court has no power to re-write the Constitution.” [9]

In 1999, the High Court ruled that it was unconstitutional to deprive death-sentenced defendants access to their lawyers. [10] In Kobedi v. State, in 2003, the Court of Appeal affirmed its response to the constitutionality of the death penalty in Ntesang, and indicated that the death penalty is not mandatory in Botswana. [11] In this case, the Court also requested that the President consider clemency. [12]

Where can one locate or access judicial decisions regarding the death penalty?

The Southern African Legal Information Institute publishes decisions of the High Court of Botswana [13] and the Court of Appeal. [14] The databases contain decisions from 2006 (High Court) and 1981 (Court of Appeal) and onward. Links to these resources are consolidated at http://www.commonlii.org/resources/2676.html, where a number of legal resources on Botswana are available.

What is the clemency process?

The Constitution of Botswana and the Criminal Procedure and Evidence Act both state that the President may pardon any offense. [15] The trial judge submits a written report to the Committee whenever someone is sentenced to death. [16] Before anyone is executed, the President must approve the death sentence. [17] The Constitution establishes an Advisory Committee on the Prerogative of Mercy, which advises the President to pardon or commute death sentences. [18] The Committee may only be summoned by the President, but the President is compelled to summon the Committee for every sentence of death. [19] In 2001, Marriette Bosch was executed while her petition for clemency was pending with the African Commission on Human and Peoples’ Rights. [20]

Are jury trials provided for defendants charged with capital offenses?

A jury system is not used in any trials. [21] Botswana’s Criminal Procedure and Evidence Act contains no provisions for jury trials. [22] Instead, the High Court hears the case, issues a judgment, and sentences. [23]

Brief Description of Appellate Process

A Magistrate’s Court holds the committal trial to either discharge or commit the accused for trial to the High Court. [24] If the accused is committed for trial, his case is tried in the High Court, which is competent to try crimes involving capital offenses. [25] Any decision made by the High Court may be appealed to the Court of Appeal. [26]

References

[1] The Constitution of Botswana, sec. 4(1), Sep. 30, 1966.
[2] The Constitution of Botswana, Sep. 30, 1966.
[3] Intl. Federation for Human Rights & The Botswana Centre for Human Rights, The Death Penalty in Botswana Hasty and Secretive Hangings: International Fact-Finding Mission, p. 18, no. 473/2, Jun. 25, 2007.
[4] Intl. Federation for Human Rights & The Botswana Centre for Human Rights, The Death Penalty in Botswana Hasty and Secretive Hangings: International Fact-Finding Mission, p. 18, no. 473/2, Jun. 25, 2007.
[5] Amnesty Intl., Death Sentences and Executions in 2009, p. 6, ACT 50/001/2010, Mar. 30, 2010; Amnesty Intl., Death Sentences and Executions in 2008, p. 8, ACT 50/003/2009, Mar. 24, 2009; Amnesty Intl., Death Sentences and Executions in 2007, p. 6, ACT 50/001/2008, Apr. 15, 2008.
[6] Maranyane Ngwanaamotho, Fly’s secretive execution wrong – DITSHWANELO, Mmegi Online, http://www.mmegi.bw/index.php?sid=1&aid=1272&dir=2010/March/Friday26, Mar. 26, 2010; The Zimdiaspora, Zimbabwean murderer hanged in Botswana, http://www.zimdiaspora.com/index.php?option=com_content&view=article&id=2489:zimbabwean-murderer-hanged-in-botswana&catid=38:travel-tips&Itemid=18, Dec. 24, 2009; Daily News, Tsobane executed, http://www.gov.bw/cgi-bin/news.cgi?d=20080925&i=Tsobane_executed, Sep. 25, 2008.
[7] Amnesty Intl., Death Sentences and Executions in 2009, p. 6, ACT 50/001/2010, Mar. 30, 2010.
[8] Ntesang v. State, p. 16, Criminal Appeal no. 57 of 1994, BWCA 12, Ct. of Appeal of Botswana, Jun. 1, 2010.
[9] Ntesang v. State, p. 17, Criminal Appeal no. 57 of 1994, BWCA 12, Ct. of Appeal of Botswana, Jun. 1, 2010.
[10] Roger Hood & Carolyn Hoyle, The Death Penalty: A Worldwide Perspective, p. 221, Oxford University Press, 4th ed., 2008; Amnesty Intl., The Death Penalty Worldwide: Developments in 1999, p. 18, ACT 50/004/2000, Mar. 31, 2000.
[11] Kobedi v. State, p. 38, Criminal Appeal no. 25 of 201, BWCA 22, Ct. of Appeal of Botswana, Mar. 19, 2003.
[12] Kobedi v. State, p. 64, Criminal Appeal no. 25 of 201, BWCA 22, Ct. of Appeal of Botswana, Mar. 19, 2003.
[13] Southern African Legal Information Institute, http://www.saflii.org/bw/cases/BWHC/, last accessed May 25, 2010.
[14] Southern African Legal Information Institute, http://www.saflii.org/bw/cases/BWCA/, last accessed May 25, 2010.
[15] Criminal Procedure and Evidence Act of Botswana, secs. 299, 327, Jan. 1, 1939; Constitution of Botswana, sec. 53, Sep. 30, 1966.
[16] Constitution of Botswana, sec. 55, Sep. 30, 1966.
[17] Criminal Procedure and Evidence Act of Botswana, sec. 299, Jan. 1, 1939.
[18] Constitution of Botswana, secs. 54, 55, Sep. 30, 1966.
[19] Constitution of Botswana, sec. 54, Sep. 30, 1966.
[20] Roger Hood & Carolyn Hoyle, The Death Penalty: A Worldwide Perspective, p. 265, Oxford University Press, 4th ed., 2008.
[21] U.S. Dept. of State, 2009 Human Rights Report: Botswana, http://www.state.gov/g/drl/rls/hrrpt/2009/af/135939.htm, Mar. 11, 2010.
[22] Criminal Procedure and Evidence Act of Botswana, secs. 182, 291, Jan. 1, 1939.
[23] Criminal Procedure and Evidence Act of Botswana, secs. 182, 291, Jan. 1, 1939.
[24] Criminal Procedure and Evidence Act of Botswana, secs. 78, 82, Jan. 1, 1939.
[25] Criminal Procedure and Evidence Act of Botswana, sec. 97, Jan. 1, 1939; Intl. Federation for Human Rights & The Botswana Centre for Human Rights, The Death Penalty in Botswana Hasty and Secretive Hangings: International Fact-Finding Mission, pp. 19-20, no. 473/2, Jun. 25, 2007.
[26] Constitution of Botswana, sec. 106, Sep. 30, 1966.

Death Penalty In Practice

Where Are Death-Sentenced Prisoners incarcerated?

Death-sentenced prisoners are incarcerated at the Lobatse and Gabarone maximum security prisons. [1]

Description of Prison Conditions

The Prisons Act, passed in 1980, was a measure intended to protect prisoners from arbitrary treatment. [2] However, human rights organizations and the U.S. State Department report that prisons in Botswana are overcrowded. [3] According to the Report of the Working Group on the Universal Periodic Review, severe overcrowding led to increased prevalence of HIV/AIDS and tuberculosis. [4] According to the U.S. State Department, pretrial detainees typically wait “several weeks to several months” for their trials. [5]

Are there any known foreign nationals currently under sentence of death?

Yes. [6]

What are the nationalities of the known foreign nationals on death row?

Michael Molefe, a South African citizen, has been on death row for a murder committed in 2000. [7]

Are there any known women currently under sentence of death?

No women were known to be under sentence of death in Botswana as of 2007. [8]

Are there any reports of individuals currently under sentence of death who may have been under the age of 18 at the time the crime was committed?

As of May 25, 2010, reports did not indicate that any individual was under sentence of death for a crime committed while under the age of 18. The Penal Code and the Criminal Procedure and Evidence Act exclude juveniles from the sentence of death. [9]

Comments regarding the racial/ethnic composition on death row

Reports from Amnesty International and the U.S. State Department do not comment on this issue. [10] None of those reported to be on death row is reported to be a racial or ethnic minority. [11]

Are there lawyers available for indigent defendants facing capital trials?

According to the U.S. State Department, court-appointed lawyers are available exclusively for cases involving death-eligible crimes. [12] Order 68 of the Rules of the High Court allows the appointment of pro deo counsel to indigent defendants in criminal trials. [13]

Are there lawyers available for indigent prisoners on appeal?

Yes. [14] According to rule 48 of the Court of Appeal Rules, the Registrar of the Court of Appeal is compelled to assign a legal practitioner to appellants facing the sentence of death “after consultation with the President of the Court.” [15]

Comments on Quality of Legal Representation

According to a joint FIDH-DITSHWANELO report, lawyers appointed to defendants facing a death sentence receive minimal payment, meaning that these cases are often handed down to inexperienced and/or incapable lawyers. [16] In the case of Maauwe v. Attorney General, [17] it was reported that “the pro deo counsel assigned did not represent them adequately or properly and that a letter, which was written by Mr Maauwe and Mr Motswetla to the Registrar of the High Court stating their dissatisfaction with their Counsel and asking that their Counsel be replaced, was not acted upon at all.” [18] According to DITSHWANELO, the Botswana Centre for Human Rights, in Kobedi v. State, Kobedi’s pro deo lawyer was unfamiliar with handling death penalty cases. [19]

Other Comments on Criminal Justice System

Prisoners are frequently detained for longer than 31 days, the length of time prescribed by the Criminal Procedure and Evidence Act. [20] For example, defendant Lehlohonolo Kobedi awaited his appeal for 56 months. [21] The Court of Appeal recommended a consideration of clemency due to his mental and physical health and long incarceration. [22]

References

[1] Intl. Federation for Human Rights, Secretive and Hasty Hangings in Botswana: Preliminary conclusions of the joint FIDH & DITSHWANELO report, p. 2, http://www.fidh.org/Secretive-and-hasty-hangings-in-Botswana, Oct. 10, 2006.
[2] U.N.G.A. Human Rights Council, National Report Submitted in Accordance with Paragraph 15 (A) of the Annex to Human Rights Council Resolution 5/1, p. 17, U.N. Doc. A/HRC/WG.6/3/BWA/1, Sep. 5, 2008.
[3] U.N. ICCPR Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant, pp. 4-5, U.N. Doc. CCPR/C/BWA/CO/1, Apr. 24, 2008; U.S. Dept. of State, 2009 Human Rights Report: Botswana, http://www.state.gov/g/drl/rls/hrrpt/2009/af/135939.htm, Mar. 11, 2010.
[4] U.N.G.A. Human Rights Council, Universal Periodic Review: Report of the Working Group of the Universal Periodic Review, p. 20, U.N. Doc. A/HRC/10/69, Jan. 13, 2009.
[5] U.S. Dept. of State, 2009 Human Rights Report: Botswana, http://www.state.gov/g/drl/rls/hrrpt/2009/af/135939.htm, Mar. 11, 2010.
[6] Morula Morula, Death penalty sours relations between Botswana and South Africa, Sunday Standard, http://www.zimdiaspora.com/index.php?option=com_content&view=article&id=2489:zimbabwean-murderer-hanged-in-botswana&catid=38:travel-tips&Itemid=18, Mar. 28, 2010.
[7] Sheree Baga, No last meal for dead man walking, IOL, http://www.iol.co.za/index.php?from=rss_Crime%20And%20Courts&set_id=1&click_id=15&art_id=vn20080308081332884C604304, Mar. 8, 2008.
[8] DITSHWANELO: The Botswana Centre for Human Rights, Death Penalty, http://www.DITSHWANELO.org.bw/death_penalty.html, last accessed May 25, 2010; Morula Morula, Death penalty sours relations between Botswana and South Africa, Sunday Standard, http://www.zimdiaspora.com/index.php?option=com_content&view=article&id=2489:zimbabwean-murderer-hanged-in-botswana&catid=38:travel-tips&Itemid=18, Mar. 28, 2010; Sheree Baga, No last meal for dead man walking, IOL, http://www.iol.co.za/index.php?from=rss_Crime%20And%20Courts&set_id=1&click_id=15&art_id=vn20080308081332884C604304, Mar. 8, 2008.
[9] The Penal Code of Botswana, secs. 26(2), 32, Jun. 10, 1964; Criminal Procedure and Evidence Act of Botswana, sec. 304, Jan. 1, 1939.
[10] U.S. Dept. of State, 2009 Human Rights Report: Botswana, http://www.state.gov/g/drl/rls/hrrpt/2009/af/135939.htm, Mar. 11, 2010; Amnesty Intl., Death Sentences and Executions in 2009, p. 6, ACT 50/001/2010, Mar. 30, 2010.
[11] Bame Piet, Keganne Sentenced to Death, Mmegi Online, http://mmegi.bw/index.php?sid=1&aid=58&dir=2008/August/Monday18, Aug. 18, 2008; The Botswana Gazette, Two to Die for Murder of Alleged Robber and Killer, http://www.gazettebw.com/index.php?option=com_content&view=article&id=470:two-to-die-for-murder-of-alleged-robber-and-killer&catid=18:headlines&Itemid=2, Mar. 11, 2008; Arabile Mosikare, Mine duo sentenced to death, The Botswana Gazette, http://www.gazettebw.com/index.php?option=com_content&view=article&id=4547:mine-duo-sentenced-to-death&catid=19:northcast&Itemid=2, Dec. 1, 2009.
[12] U.S. Dept. of State, 2009 Human Rights Report: Botswana, http://www.state.gov/g/drl/rls/hrrpt/2009/af/135939.htm, Mar. 11, 2010.
[13] Rules of the High Court of Botswana, Order 68(4)(1)(c), May 19, 2008.
[14] Court of Appeal Rules of Botswana, rule 48, Apr. 25, 1975.
[15] Court of Appeal Rules of Botswana, rule 48, Apr. 25, 1975.
[16] Intl. Federation for Human Rights, Secretive and Hasty Hangings in Botswana: Preliminary conclusions of the joint FIDH & DITSHWANELO report, p. 2, http://www.fidh.org/Secretive-and-hasty-hangings-in-Botswana, Oct. 10, 2006; Intl. Federation for Human Rights & The Botswana Centre for Human Rights, The Death Penalty in Botswana Hasty and Secretive Hangings: International Fact-Finding Mission, p. 15, no. 473/2, Jun. 25, 2007.
[17] This case has not been published on the SAFLII database. However, significant information about the case can be found on DITSHWANELO’s website. DITSHWANELO: Botswana Centre for Human Rights, Maauwe and Motswetla, http://www.DITSHWANELO.org.bw/maauwe.html, last accessed Jun. 1, 2010.
[18] Intl. Federation for Human Rights & The Botswana Centre for Human Rights, The Death Penalty in Botswana Hasty and Secretive Hangings: International Fact-Finding Mission, p. 21, no. 473/2, Jun. 25, 2007.
[19] Intl. Federation for Human Rights & The Botswana Centre for Human Rights, The Death Penalty in Botswana Hasty and Secretive Hangings: International Fact-Finding Mission, p. 21, no. 473/2, Jun. 25, 2007.
[20] Intl. Federation for Human Rights & The Botswana Centre for Human Rights, The Death Penalty in Botswana Hasty and Secretive Hangings: International Fact-Finding Mission, p. 15, no. 473/2, Jun. 25, 2007.
[21] Intl. Federation for Human Rights & The Botswana Centre for Human Rights, The Death Penalty in Botswana Hasty and Secretive Hangings: International Fact-Finding Mission, p. 25, no. 473/2, Jun. 25, 2007.
[22] Kobedi v. State, p. 63, Criminal Appeal no. 25 of 201, Ct. of Appeal of Botswana, Mar. 19, 2003.

Decisions of International Human Rights Bodies

Decisions of Human Rights Committee

The Human Rights Committee observed that Botswana should ensure that the death penalty is applied for only the most serious crimes, with an eventual goal of abolition. [1] The Committee recommended that Botswana make available complete information on the application of the death penalty, such as “the number of convictions for murder, the number of and reasons for the courts’ findings of mitigating circumstances, the number of death sentences imposed by the courts, and on the number of the persons executed year by year.” [2]

Decisions of Other Human Rights Bodies

The Human Rights Council, through the Universal Periodic Review Process, recommended that Botswana explore the possibility of a moratorium on the death penalty and to take concrete steps toward abolition of the death penalty. [3] The Council also recommended ratification of the second optional protocol of the International Covenant on Civil and Political Rights. [4]

References

[1] U.N. ICCPR Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant of the Human Rights Committee, pp. 3-4, U.N. Doc. CCPR/C/BWA/CO/1, Apr. 24, 2008.
[2] U.N. ICCPR Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant of the Human Rights Committee, pp. 3-4, U.N. Doc. CCPR/C/BWA/CO/1, Apr. 24, 2008.
[3] U.N.G.A. Human Rights Council, Universal Periodic Review: Report of the Working Group of the Universal Periodic Review, p. 19, U.N. Doc. A/HRC/10/69, Jan. 13, 2009.
[4] U.N.G.A. Human Rights Council, Universal Periodic Review: Report of the Working Group of the Universal Periodic Review, p. 17, U.N. Doc. A/HRC/10/69, Jan. 13, 2009.

Additional Sources and Contacts

Direct member(s) of World Coalition Against the Death Penalty

None.

Other non-governmental organizations and individuals engaged in advocacy surrounding the death penalty

DITSHWANELO - The Botswana Centre for Human Rights
admin.ditshwanelo@info.bw
http://www.ditshwanelo.org.bw

Helpful Reports and Publications

DITSHWANELO - The Botswana Centre for Human Rights, Botswana Stakeholder Report to the Universal Periodic Review (Second Cycle), http://lib.ohchr.org/HRBodies/UPR/Documents/Session15/BW/JS1_UPR_BWA_S15_2012_JointSubmission1_E.pdf, Jul. 9, 2012.

Intl. Federation for Human Rights & The Botswana Centre for Human Rights, The Death Penalty in Botswana Hasty and Secretive Hangings: International Fact-Finding Mission, No. 473/2, Jun. 25, 2007.

Intl. Federation for Human Rights, The Death Penalty in Botswana - Hasty and Secretive Hangings, N° 473/2, http://tcadp.org/TexasDeathPenaltyDevelopments2010.pdf, Jun. 2007.

Elizabeth Maxwell and Alice Mogwe, In the Shadow of the Noose, DITSHWANELO, 2006.

Additional notes regarding this country

None.

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