Death penalty not the an­swer

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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.

Con­tin­ued on page 22...

Le­sotho’s Per­ma­nent Rep­re­sen­ta­tive to the United Na­tions Kele­bone Al­bert Maope.

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