Death penalty not the answer
I WISH to convey my compliments for the interesting and thought-provoking interview of Advocate Thulo Hoeane by Lesotho Times reporter Lekhetho Ntsukunyane about the double murder case in which Lehlohonolo Scott is a suspect (“Scott’s case first of its kind in Lesotho”, 8 January 2016). Advocate Hoeane deserves commendation for his principled stance concerning legal representation of criminal suspects in our courts.
Lay persons are always emotional about this matter of legal representation, and they are not even consistent on it. In their comfort zones, they vigorously condemn lawyers, but when in trouble with the law, they are the first to seek legal assistance, even when they can’t afford it. If only there was understanding that even guilty persons must be punished according to law and justice; and that the function of legal representation is to assist the court to apply the law correctly and reach a just decision, including suitable punishment.
The interview raises the important political issue of the death sentence and its abolition in South Africa, which country is the dominant political and economic power in southern Africa. Your readers might like to know of the ongoing turf war between South Africa and one of its neighbours concerning extradition to that neighbour of murder suspects, whereby the neighbour refuses to undertake not to execute murder suspects who are convicted after being returned to that country. A situation arises whereby SA, in protecting the fundamental human right to life, appears to provide a safe haven for murderers.
In these circumstances, Lesotho has chosen to conclude an extradition treaty with SA whereby returned murder suspects will not be executed if subsequently sentenced to death. A murderer needs only commit his/ her heinous act and cross the border into SA. With great difficulty and expense to the tax payer, he/she will be returned, with the assurance that he/she will not be executed if sentenced to death. Such murderer will, of course, face long imprisonment. In the case of SA’S aforesaid neighbour, on the other hand, the culprit is guaranteed immunity from punishment by clinging to SA’S unintended hideout for villains.
I should like to hear the views of your readers on this scenario. Should SA’S aforesaid neighbour kidnap the murder suspects from SA and, in the process, sour international relations between neighbours; or should a compromise position be reached, as by the Lesotho-sa extradition treaty, whereby heinous crimes will still be punished, though with a penalty other than death?
The case of SA’S farmer, Mpumelelo Mbobo, comes to mind. In 2002 he crossed the border into Lesotho and shot four people dead and injured two others in a mini bus. He then casually returned to SA. He was subsequent- IN response to “Sejanamane’s paralysis of analysis” ( Lesotho Times, 31 March 2016), Dr Fako Likoti was duly appointed as the Political and Economic Advisor of The Right Honourable Prime Minister Pakalitha Mosisili. Dr Likoti touched on fundamental issues with regard to the so-called “instability in Lesotho” brought about by power-hungry Basotho, especially now in opposition.
These people have no morals or ideas on how we progress as a country both economically and socially. They expend their energy on trying to clinch power which they have proven to be unworthy of. They have tried every trick in the book, but it has proven fruitless.
Because the current government was established under good moral conditions ly extradited to Lesotho on condition not be executed if sentenced to death.eath. In 2013 he was sentenced to life imprisonment, sonment, and not to death, due to his having suffered theft on his farm by people from Lesotho. sotho. He died in prison in 2014.
Another case is that of thehe attempted assassins of Prime Minister Pakalitha Mosisili in 2009, some of whom were Mozambique nationals. They were subsequentlyquently convicted of offences other than murderer after being extradited on condition of not t being executed. Absent the extradition treaty,ty, Mbobo and the attempted assassins would probably be comfortable in the safe haven.
Adv Hoeane is opposed to the death penalty for being sub-human, barbaric,aric, and legalised murder. He should take comfort mfort for being in the company of religious giants ants such as Pope Francis who is opposed to the death penalty as well as lengthy imprisonment nment which he equates to a hidden death penalty, and who, like Adv Hoeane,ne, calls for the reform and healling for prisoners, and their return to society as useful members. [ Love is our Mission: Pope Francis in America, Cincinnati, Ohio: Franciscan Media, 2016, p. 114; www.franciscanmedia.org].
I am also opposed to the death penalty, but for two slightly different reasons which I shall spell out. For now I wish to point out that Lesotho law authorizes one person to kill another under certain circumscribed circumstances which are set out in the Constitution (s. 5), which include killing in self-defence or defence of another person from an illegal life-threatening action. Also included as lawful killing is the carrying out of a death sentence by prison executioners.
I am sure Adv Hoeane will agree that, were I to kill someone who threatened to kill me in order to rob me or to rape my wife or daughter in my presence, my act would not be considered barbaric or sub-human; nor if police killed rioters who were torching Maseru City. A main objection to the death penalty seems to be that it is too deliberate, elaborate and ceremonial; it is not done in the heat of the moment. Condemned prisoners are executed after a long time when people are no longer angry. That is why mob-justice is preferred by many people.
An important distinction must be borne in mind on the matter of legally permissible killings of people: if a private person kills another person in mistaken or wrongfully claimed self-defence or defence of another, or defence of property, by way of examples, he or she will be subject to criminal sanctions and/ or a suit in damages for exceeding the bounds of permissible human killing.
Judicial officers, on the other hand, are immune from punishment for erroneous judgments, including passing wrongful death sentences. Because of their immunity, it is advisable that highly qualified and competent people be appointed as judicial officers.
For my part, I oppose the death penalty, first, for being too final and impossible to reverse in case of a mistake. Judicial officers, who have been entrusted with this grave responsibility to impose the penalty, are only human: they make mistakes, but they are immune from punishment when they err. In Lesotho several death sentences have been imposed by some High Court judges whose decisions have invariably been reversed on appeal, as adverted to by Adv Hoeane.
An examination of appeal judgments pertaining to the death sentence reveals deficien-
Lesotho Times, cies by some Hig High Court trial judges in the knowledge of the l law relating to homicide, evidence, and proced procedural steps leading to imposition of the death sentence. What is alarming is that mistak mistakes have been repeated as if in defiance of Cou Court of Appeal judgments. It is dangerous to be c charged with capital offence in Lesotho. A bulw bulwark against misuse of this lethal weapon (de (death sentence) is the Court of Appeal constitu constituted by the so-called South African judges.
I disagree with the impression created by Adv. Hoeane thattha appeal judges “do everything in their pow power” to avoid imposing the death sentence. T The Court of Appeal has in fact confirmed d death sentences on appeal, even before abolit abolition of the death penalty in South Africa. Wh What is admirable about appeal judgments is that they are well reasoned with coherent lan language.
We as a country should be in no hurry to alter the membersh membership of that Court until after we have attended to increasing the intellectual capability of all our judges to adequately try capital offen offences. The many allegedly controversial and politically sensitive cases heard by foreign judges are testimony to this need. As judges retire, adv vantage must be taken and every effort made to replace them with the best qualified and capable.
My second reason for opposing the death penalty is its dehumanising and traumatic effect on individuals involved in its administration: the police, prosecutors, judicial officers and their support staff, prison executioners, as well as medical officers and government ministers.
I can only refer to my personal experience to illustrate the point: In the early 1990s when I was Minister of Justice, a condemned man was hanged in the early morning of my birthday!
I had a miserable day. Adv Hoeane refers to the last hanging in Lesotho in 1996. I was involved in preparations for that hanging. Lesotho had no executioner, and I had to travel to Bloemfontein in South Africa to borrow a hangman. The then Minister of Justice, the late Dullar Omar, firmly rejected my request. I came back home empty-handed.
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Lesotho’s Permanent Representative to the United Nations Kelebone Albert Maope.