IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA dj COURT OF APPEAL CRIMINAL APPEAL NO. CLCGB-058-14. > HIGH COURT CRIMIN NE EE RAE NO. CLEGB-058-14 HIGH COURT CRIMINAL TRIAL NO. CTHFT-000008-07 ab — In the matter between: THE STATE APPELLANT and RODNEY ALFRED MASOKO. RESPONDENT Attorney Mrs S. Mangori (with Ms M.S, Moatswi and Ms M. Mgubuta) for the Appellant Attorney Mr K. Ngakaagae (with Mr P.T. Moakofi) for the Respondent JUDGMENT CORAM: KIRBY J.P. FOXCROFT J., LORD ABERNETHY J.A. LEGWAILA J.A. LESETEDIJ.A. KIRBY J.P. 1. This judgment revisits the meaning and constitutionality of section 203 of the Penal Code Cap 08:01. The section provides as follows: “203(1) Subject to the provisions of subsection (2), any person convicted of murder shall be sentenced to death.(2) Where a court in convicting a person of murder is of the opinion that there are extenuating circumstances, the court may impose any sentence other than death. (3) In deciding whether or not there are any extenuating circumstances the court shall take into consideration the standards of behaviour of an ordinary person of the class of the community to which the convicted person belongs.” The question has arisen because the High Court (per Motswagole J), in the murder trial of the present convicted prisoner (hereafter ‘the accused’ or ‘the respondent’ as the context demands) has declared that section 203 of the Penal Code is contrary to sections 3(a), 7(1), 10(4), 10(7), 10(8), 15(1) and 55 of the Constitution. This declaration has been made notwithstanding a 2003 judgment of the full bench of this Court to the contrary in the case of KOBEDI vs THE STATE (2), reported at (2005) 2 BLR 76 CA, in which Tebbutt JP (Korsah, Zietsman, Plewman and Lord Sutherland JA concurring) held that section 203 was constitutional.Unfortunately, Motswagole J, in a long and searching judgment, which cites over one hundred cases from at home and abroad, as well as numerous tracts and treatises, has omitted to mention KOBEDI’s case (by which he was bound) at all. In order to uphold his finding of unconstitutionality, this Court will need to be satisfied that KOBEDI was wrongly decided. I will return to deal with KOBEDI’s case, and also the judgment of the Court below presently, but must first set out the awkward course which this case has taken, which has resulted, in my view, in great prejudice to the accused person, before dealing with the facts and the law. The Director of Public Prosecutions, representing the State (the appellant’ or ‘the DPP’), has appealed against the High Court judgment. THE TRIAL Nine years ago, on 27" February 2006, a certain Gloria Zwemisi (‘the deceased’) was murdered in Francistown. In the sameincident _her.companion, Oabile Seobe, was seriously injured On the next day the accused was arrested and charged with the two offences. On 29" September 2007 he was committed for trial in the High Court on one count of murder and one count of unlawful wounding. Apart from a brief period when he was on bail, the accused has been in custody ever since. His trial commenced before Motswagole J. on 9° November 2010. The plea was ‘not guilty’ on both counts. The accused was represented at various times by four different counsel, and this caused delays. By 24 March 2011 both the State case and the defence case had been concluded, save for the evidence of a_certain_ Dr Maramreddy, a pathologist whom the accused, with the support of the Court, wished to call. In the event, he did not testify, but_his affidavit was admitted_by consent on 20" November 2012, by which time Mr K. Ngakaagae had been engaged as defence counsel.On that date the accused changed his plea to one of guilty on the murder charge, although he still contested the count of unlawful wounding. He was duly found_guilty of murder_and Motswagole J. proceeded, as was proper, to consider the issue of extenuating circumstances. The accused was led in evidence by Mr Ngakaagae in this regard, and he gave a full account not only of extenuating circumstances, but also of certain mitigating features, including an averment that since his incarceration he had become a born-again Christian, was doing Bible studies and had foresworn the use of alcohol and cannabis. He had sleepless nights out of remorse for what he had done. This evidence was duly entered into the record by the Judge, The State led no evidence in aggravation, and counsel for the DPP was not permitted to cross-examine the accused, because Motswagole J. was of the view that this was not allowed in terms of the law and current practice. State counsel did,10. however, address the Court on extenuation. Her view was that there were no extenuating circumstances unless the evidence of the accused in that regard was accepted, in which case she conceded that such circumstances were present. Mr Ngakaagae argued strongly that extenuating circumstances were clearly present. The Judge ordered that heads of argument were to be filed by the prosecution by 23 November 2012 and by the defence by 27" November 2012. He reserved judgment for delivery on 4 December 2012. Heads were duly filed by both sides, dealing principally with the contested second count. No constitutional issues were raised. On 3% December 2012, the day before the Judge was due to hand down his judgment, the case took an unusual turn. He made an order in Chambers, mero motu, that, “1. The Registrar is hereby ordered to invite counsel involved in this case to file supplementary heads of argument on the following issues:(b) (d) What is meant by the words “community” and “ordinary person” in the context of Section 203(3) of the Penal Code Cap 08:01 of the Laws of Botswana? Given the legislative scheme of the Penal Code Cap 08:01 and the Criminal Procedure and Evidence Act Cap 08:02 of the Laws of Botswana, what is the role of the prosecutor and the accused and/or his or her counsel in the context of Section 203(2) of the Penal Code? In the absence of any specific provision either in Section 203 of Cap 08:01 or elsewhere, what is the legal basis for the practice of inviting the accused person to make extenuation following a conviction for murder? Is there any corresponding right to aggravate on the part of the prosecutor? If the practice mentioned in paragraph (c) was merely introduced by the Courts to supplement inadequate provisions of Section 203 of the Penal Code, does that exercise not amount to usurpation of legislative powers, and therefore contrary to Section 86 of the Constitution of Botswana or otherwise incompatible with judicial function as set out in Sections 10(1), 95 and 99 of the Constitution? Does that Section 203(3) of the Penal Code amount to an undue or unacceptable limitation of judicial power to the extent that other extenuating or mitigating factors such as post-crime incarceration, plea of guilty and() remorsefulness, etc. are excluded, and therefore contrary to (i) (i) (iii) Section 3(a) of the Constitution, in particular, the accused person’s entitlement to the protection of the law; Section 10(1) of the Constitution, in particular the accused's right to a fair trial by an independent and impartial Court; Section 15 subsection 1 and 2 of the Constitution, in particular the accused's right to non- discrimination. Does (sic) Section 203(1) of the Penal Code, to the extent that it imposes a mandatory death sentence without affording the accused Person prior hearing as regard to the appropriate sentence: (i) (ii) In breach of the right to the rule of law and due process of the law as embodied in the phrase the “protection of the law” embodied in Section 3(a) of the Constitution of Botswana? In breach of Section 4(1) of the Constitution in so far as the imposition of the death penalty is by operation of law exclusive of judicial discretion, and as an improper implementation of the death penalty.iL. 12, 2, The prosecuting counsel shall deliver supplementary heads of argument within 14 days and the defence counsel shall within 10 days of receipt thereof deliver his supplementary heads of argument. I Consequently, the delivery of judgment is postponed to the next session of the Court starting in| February 2013 and the date shall be communicated to the parties.” None of these issues had been raised by counsel for either side up to that point, although no doubt the Judge had his own concerns. Further submissions were duly filed - 21 pages from the State, and 14 pages from the defence. The accused remained in prison awaiting his fate. Ten months later, on 2" October 2013 Motswagole J. handed down his judgment. It ran to 209 pages including numerous Pages of quoted authorities in fine print, which greatly increased the time and effort required to read it. The judgment was clearly the fruit of painstaking research and introspection. It traversed the law and precedent of many nations and dealt with a large number of issues in addition to those on which counsel had been invited to address the Court. But it did not13. mention KOBEDI's.case, by which the Judge was bound, and which, as far as the High Court was concerned, negated the conclusions he ultimately reached The Judge (a) (©) (d) Found that there were no_extenuating circumstances on the murder charge, but did not proceed to sentence the accused as required by law; Declared Section 203 of Cap 08:01 contrary to Sections 3(a), 7(1), 10(1), 10(7), 10(8), 15(1) and 55 of the Constitution; — Proposed that the accused’s ‘sentence’ might be commuted by the President to life imprisonment in terms of his prerogative of mercy; and. Convicted the accused of unlawful wounding and sentenced him to four years imprisonment on that count, (which was deemed to have been already served by pre- sentencing incarceration). This was after hearing further submissions in mitigation of sentence. It is against finding (b) that the DPP has appealed, and also against the failure of the Court to sentence the accused on the murder charge.14, 15. 16. The accused remained in prison awaiting sentencing on the murder charge, and when this was queried by the parties before the Judge, his response was that he was unable to sentence the accused using a section he had struck down as unconstitutional, but that the accused remained committed to prison to await the conclusion of his trial (presumably following this appeal). The record of the case was bulky, and took some time to be transcribed for the purposes of appeal. The case was finally called for argument in the January 2015 session of the Court. The overall delay has, in my view, been unconscionably burdensome on the accused. Having been found guilty of murder without extenuating circumstances, he has had to wait for a considerable period without being sentenced and, as it were, in the shadow of the noose, while still imprisoned despite having long served his four year sentence for unlawful wounding. In terms of section 291(2) of the Criminal17. 12 Procedure and Evidence Act Cap 08:02 (“the CP&E”) the judgment of the Court is required, where there is a conviction on a criminal charge, to specify the sentence imposed, This was not done, and instead the accused was left in limbo, in anticipation of the supreme penalty, but not knowing his fate. That is not acceptable, and should never be allowed to happen again. In the present case, it was the duty of the Judge, once he had initiated the process under section 203 in order to make a finding on the absence of extenuating circumstances, to complete that exercise by imposing the penalty required by Jaw. Alternatively, if he entertained doubts as to the constitutionality of that section, as was the case, he should, or could, at an early stage, have referred the constitutional issues to this Court for determination in terms of section 15 of the Court of Appeal Act Cap 04:01, before proceeding further.18. More importantly, the Judge failed, in my view, to observe the longstanding principle that constitutional issues fall to be determined only when this is essential and when they are raised before the court for decision. The cautionary words of Matthews J. in LIVERPOOL, NEW YORK AND PHILADELPHIA STEAMSHIP CO. vs COMMISSIONERS OF EMIGRATION 113 US 33 (1885) at 39 are as valid today as they were in 1885. His advice to Judges was “Never anticipate a question of constitutional law in advance of the necessity of deciding it.” And recently in RAMANTELE vs MMUSI and OTHERS CACGB-104-12, a full bench decision of this Court, as yet unreported, the dictum of KENTRIDGE A.J. in S vs MHLUNGU 1995 (3) SA 867 CC at Para 59 was endorsed, where he said “I would lay it down as a general principle that where it is possible to decide a case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.”19. 20. On a proper analysis, what was at issue here was an interpretation of section 203 of the Penal Code accepted and refined by this Court over several decades, and also the laid down practice for the implementation of that section. It was not the constitutionality of the section itself. I shall deal with these matters in more detail presently. THE EVIDENCE The accused and the deceased had been live-in lovers for a period of about five years. Their relationship was a stormy one, particularly because the deceased apparently had an affair with an officer in the Botswana Defence Force who was the accused's senior in rank (he too was a soldier). As a result the accused fought with his senior officer and was dismissed from the force. The accused’s problems continued, and shortly before the incident that led to the present charge, he was evicted from the deceased's house, and sought accommodationai. 22. 15 just across the street with a neighbour, Mr Kgalemang Leposo (PW1). PW1 told the Court that on 26™ February 2006 the accused left his home at about 2.00 pm. That night, between midnight and 1.00 am he received a telephone call from Gloria, the deceased, reporting that the accused was knocking at her house. He went there and advised her to call the police. Shortly thereafter a man drove up in a vehicle and the deceased sat with him until a lady police officer, Cst Sekgere, arrived. Later PW1 went home, only to be aroused in the early hours of the morning by a commotion from next door. He went there, to find the deceased lying inside her gate, with the man screaming nearby. The deceased’s two sons (PW4 and PW7), who were atthe time schoolboys aged 16 and 17 years old respectively, also testified that they were awoken that night by their mother’s screams, / She was on the phone to somebody. Sefiso (PW4) said he saw the accused standing outside the house. He went