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Ntesang v The State (Criminal Appeal No. 57 of 1994 ) [1995] BWCA 12; [1995] B.L.R. 151 (CA) (30 January 1995)

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IN THE COURT OF APPEAL OF BOTSWANA HELP AT LOBATSE
Court of Appeal Criminal Appeal No. 57 of 1994 (High Court Criminal Trial No. F4 of 1993)
In the matter between:
PATRICK NTESANG  APPELLANT
versus
THE STATE        RESPONDENT
Mr. D. Morotsi for the Appellant Mr. L. Ncqoncqo for the Respondent
JUDGMENT
CORAM; T.A. Aguda, J.A. Lord Wylie, J.A. J. H. Steyn, J.A. P. H. Tebbutt, J.A. Lord W. L. K. Cowie, J.A.
AGUDA, J.A.:
Introduction:
On December 14, 1993 the appellant together with a man called Peter Nare were indicted before the High Court sitting at Francistown of the murder of one David Klaas Lubinda on or about the night of August 17, 1991. Their pleas were not taken on that day and the case was adjourned. When they both appeared before the Court on March 1, 1994, the State withdrew the charge against Peter Nare, and the trial of the appellant commenced after he had
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pleaded not guilty to the charge.
At the trial seven witnesses gave evidence for the prosecution, the man Peter Nare, admittedly an accomplice, being the seventh witness. The appellant was, throughout the trial, represented by Counsel. At the close of the case for the prosecution, the appellant elected not to give evidence as he was entitled to do under the Constitution. After addresses by Counsel for the prosecution and by Counsel for the appellant, the learned trial Judge, Aboagye, J., reserved judgment. In the judgment delivered on June 29, 1994, the learned trial Judge found the appellant guilty of murder and convicted him accordingly. Thereafter the appellant was afforded an opportunity to give evidence to show that there were extenuating circumstances in his case which would operate to bring the case within the ambit of Section 203 (2) of the Penal Code.
The appellant gave sworn evidence in this regard. After the address by Counsel for the appellant, and, Counsel for the prosecution having opted not to address the Court on this issue, the learned trial Judge once again adjourned Ruling on the issue and on sentence. That Ruling was delivered on August 15, 1994. Finding that the case of the appellant did not come under Section 203 (2) of the Penal Code, the learned trial Judge thereupon pronounced the sentence of death by hanging on the appellant.
Notice and Grounds of Appeal
On November 24, 1994, the appellant through his Attorneys filed a Notice of Appeal to this Court against both the conviction and
2

t,he ^sentence. The Grounds of Appeal are - it is convenient to quote them - as follows:
"As to Conviction
1.      
That the learned Judge erred in law by not warning himself of the danger of admitting and relying on an accomplice statement to convict the appellant without expressly stating that the Court was satisfied that the accomplice told the whole truth.
2.      
That the learned Judge erred in law by relying on part of the accomplice statement to convict the appellant and at the same time admitting that the same witness is a liar.
3.      
That the credibility of the accomplice witness has been seriously put to test by the defence in that he failed to satisfy the standards of a witness declared an accomplice, in that, he minimized his role in the commission of the offence and wholly incriminated the appellant.
4.      
That apart from what the accomplice stated, there is not other affirmative proof that it is the appellant who fired the shot and not the accomplice, who is on record that before the gun was fired, he has seriously stabbed the appellant with a sharpened iron.
5.      
That the learned Judge should have held that the appellant's mental distress was a factor in extenuation, and therefore, avoided handing down a death sentence.
As to Sentence
1.      
That the method of execution of the appellant ordered by the learned Judge as prescribed by Section 203 (2) of the Penal Code (Cap. 08:01) is anachronistic, antediluvian and barbaric.
2.      
That the same method of execution by hanging is inhuman and degrading.
3.      
That the appellant abhors the idea of having his life extinguished by a hangman whose reputation he does not know, prays that this Honourable Court substitute the present barbarism with a more civilized and less painful method of execution by lethal injection.
4.      
That if flogging is unconstitutional and also degrading, so is death by hanging."
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Subsequently, Counsel for the appellant filed Heads of Argument in which he argued in an elaborate manner most of the points canvassed in the Grounds of Appeal. However when the appeal was called before the Court for oral argument, learned Counsel abandoned, quite rightly in my view, all the grounds of appeal touching upon the conviction of the appellant on the charge of murder. My view that learned Counsel was right in abondoning the appeal against conviction will be clear when I set down a summary of the facts later. However, Counsel then proceeded to address this Court on two issues and these I shall deal with later. They are whether on the facts there were disclosed extenuating circumstances which would have taken the case out of the ambit of Section 203 (1) of the Penal Code; and whether the imposition of the death sentence was not ultra vires the Constitution.
qmrnna-ry of the Facts
I believe that for a proper consideration of the two issues raised, at least a summary of the facts of the case is called for. I shall therefore proceed to give such a summary shorn of all the frills, and all other facts which are unnecessary for a proper understanding of the case in so far as the two issues are concerned.
The facts disclose that some time in August 1991, the deceased took his motor vehicle to the appellant, who is a motor mechanic, for repairs. Whilst the vehicle was with the appellant certain parts of it went missing. A dispute thereupon arose between the deceased and the appellant as to who would be responsible for the missing parts. The appellant believed that it was the deceased
4

who had stolen the parts, and confronted him with that allegation. He also reported the matter to the police, but he was not informed as to what, if any, action the police took in this regard. On the other hand, the deceased, who was apparently infuriated by the conduct of the appellant consulted lawyers who made a claim against the appellant for a restoration of the motor vehicle to its original condition. The appellant then engaged a firm of attorneys but as he was unable to pay all the fees charged by them, was therefore undefended in the suit that was brought against him. The deceased subsequently obtained judgment against him. Later he was given notice of attachment of his house, and this was a matter of great worry to him.
Then on August 14, 1991, the appellant together with the man Peter Nare, earlier referred to, and who was his employee, made elaborate plans to procure, and did procure, a gun from one person and two live bullets from another. The appellant also procured two balaclavas and borrowed another vehicle which he and Nare disguised by using false number plates. Thus fully prepared and armed not only with the gun but also with a so-called "spear" in the form of a shaperned piece of iron, they drove to a spot near the deceased's compound. The appellant then instructed Nare to alight from the vehicle and to go and call the deceased. By this time both men were wearing the balaclavas, and it was about 9 p.m. The deceased followed Nare to where the appellant was. Later some people from the compound said that they saw the three men engaged in a scuffle. The deceased broke free from the appellant and Nare and ran towards the compound, but as he did so, there was the report of a gun which came from where the two
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men were. The deceased fell, and was later, on medical evidence found to have died of the gun shot wounds. There was evidence from two witnesses that before he fell down, he had shouted "Patrick is killing me." The appellant's name is Patrick. Nare told the Court that it was the appellant who fired the gun. The appellant in the exercise of his undoubted right under the Constitution did not give evidence.
It seems clear that there can be no doubt whatsoever that the learned trial Judge cannot be faulted for convicting the appellant as he did upon all these facts. Hence learned Counsel for the appellant, as I have earlier said, was right in not arguing against the conviction of the appellant on the charge of murder.
The Issue of Extenuating Circumstances
The issue now for decision is whether upon all the facts of this case the learned Judge should have found that the case of the appellant should have been treated under Section 203 (2) of the Penal Code. Ground 5 of the appellant's Grounds of Appeal says that:-
"The learned Judge should have held the appellant's mental distress was a factor in extenuation, and therefore avoided handing down a death sentence."
At this juncture it will be useful to quote Section 203 of the Penal Code in full. It says:-
"1. Subject to the provisions of Sub-section (2) , any person convicted of murder shall be sentenced to death.
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- • • 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."
It is quite clear from this provision that it is the responsibility of the court convicting a person of murder to consider all the facts and circumstances of the case and determine whether or not there are extenuating circumstances. The law does, not in my opinion, cast any onus on such a person to show that such extenuating circumstances exist, such a decision may be arrived at independently of whether or not the accused gives any evidence in that regard. In order for a fair determination of the issue, however, it becomes incumbent on the court to explain the purpose of the inquiry to the accused and to afford him the opportunity to give any evidence or to point to any facts in the case upon which a finding of the existence of extenuating circumstances may be found in his favour. If such circumstances already exist clearly in the evidence, a court may so find without the necessity of calling upon the accused to tender further evidence or make further submissions in that behalf. However, a court cannot hold that such circumstances do not exist without affording the accused an opportunity to show by oral evidence or otherwise that such circumstances exist.
In this case the learned trial Judge afforded the appellant such an opportunity. The facts upon which the appellant requested the

trial Judge and this Court to hold that extenuating circumstances exist in this case are:
1.      
That he believed that it was the deceased that stole the motor vehicle parts, as mentioned earlier.
2.      
That he made a report of the theft to the police but he believed that the police did not do anything about the report.
3.      
The deceased denied stealing the vehicle parts.

4.      
The deceased then commenced proceedings against him for the recovery of the parts.
5.      
He, the appellant, had to engage the services of attorneys to whom he had to pay what he considered were exorbitant fees which he could not afford.
6.      
Later he was served with a summons for the attachment of his house.
7.      
As a result of all this he became emotionally distressed.
In addition to all these, Counsel in his address on behalf of the appellant pointed out:-
1.       That the appellant belongs to a semi-literate community; and
2.       That the appellant was a young man of 29 years of age.
In considering whether he could find extenuating circumstances in favour of the appellant on all these facts the learned trial Judge said that even if the appellant was under some distress:-
"His killing the deceased was however not a spontaneous reaction to the stress he was going through. He had planned to murder the deceased without detection and in furtherance of that diabolic design he had procured Peter Nare to assist him in borrowing a gun and two rounds of
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ammunition. He had also borrowed two balaclavas to conceal his identity and that of Peter Nare and had secured a sharpened piece of iron rod. He disguised a motor car which he had borrowed by changing its registration number plates. He drove Peter Nare all the way from Serowe to Mmashoro, a distance of about 55km, lured the deceased out of his hut in which he had been sleeping, and savagely attacked and shot him dead with the gun. He and Peter Nare then drove away and tried to cover their tracks by burying the rod in a pit latrine. The accused had no proof that the deceased's engine had been stolen by him and if he felt that he had been let down by the police and his attorneys that should not, in my view, have led him into committing the premeditated murder. Visiting the sins of the police and his attorneys on a successful plaintiff in an action against him is not a thing one expects from a person of the community to which the accused belongs. I do not consider the two factors dwelt upon by the defence as extenuating circumstances and if they could be said to be so, in my view, they were not appreciable to abate the moral blameworthiness of the accused so as to bring his case within Section 203 (2) of the Penal code (Cap. 08:01)."
Mr. Ncqoncqo on behalf of the State has directed our attention
to the provisions of sub-section (3) of Section 203 and has
submitted that there is no evidence or any suggestion that an
ordinary person of the class of the community to which the
convicted person belongs would plan and execute a murder even
under the same sort of stress the appellant must understandably
have been. It must, however, be pointed out that whether or not
the accused deliberately killed the deceased is not the only
determining factor when a court is considering whether or not
facts exist in a particular case in extenuation such as to
prevent the trial court from imposing the death penalty. As
Maisels, JP, said in Mosarwana v. The State 1985 BLR 258, at
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"No doubt in many cases a deliberate and cold blooded murder, where there has been a clearly established intention to kill, may be of such a nature that extenuating circumstances cannot be found."
This is only one factor to be considered.
This Court has held that when a Judge is deciding the issue of extenuating circumstances, that Judge must consider and weigh all the relevant features of the case both extenuating and aggravating. In Lekolwane v. The State 1985 BLR 245 it was held that the appellant's reaction to learning that his colleague had taken away his casual girl friend was only one of intense resentment mixed with jealousy and could therefore not by itself alone in a case of pre-meditated murder be regarded as an extenuating circumstance as contemplated by Section 203 (2) of the Penal Code.
It seems clear in my view that upon the authorities, the emotional distress that the appellant might have suffered as a result of all the facts and circumstances cannot, in view of the intentional murder carefully planned and executed as set down above, be held to be extenuating circumstances as contemplated by the Penal Code, Section 203 (2).
Is the Imposition of the Death Penalty Ultra Vires the Constitution?
The next issue for consideration in this case is whether the imposition of the death penalty is ultra vires the Constitution. Under this head learned Counsel for the appellant submitted that the imposition of the death penalty is ultra vires the
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Constitution, and furthermore that the method of executing such a penalty is also ultra vires the Constitution. For clarity of presentation I would wish to set down first the relevant statutory provisions, and later the relevant Constitutional provisions.
A.       Statutory Provisions
I have quoted Section 203 of the Penal Code fully, and I do not consider it necessary to repeat the whole of the provision. I would only wish to say that sub-section (1) says that "any person convicted of murder shall be sentenced to death" unless his case comes within the "extenuating circumstances" provision of subsection (2) .
The method for the execution of death sentence is laid down by Section 26 (1) of the same Code thus:-
"When any person is sentenced to death, the sentence shall direct that he shall be hanged by the neck until he is dead."
The Penal Code was enacted into law as Law No. 2 of 1964, and it came into effect on June 10, 1964.
B.       Constitutional Provisions
The relevant Constitutional provisions are the following:-
Section 4 (1) provides that:-
"No person shall be deprived of his 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 has been convicted.
And Section 7 provides that:-
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l.
2.
No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.
Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Section to the extent that the law in question authorizes the infliction of any description of punishment that was lawful in the country immediately before the coming into operation of this Constitution".

In addition to these there is, of course, the general provision as to right to life enshrined in Section 3 of the Constitution. The Constitution, it should be noted, came into operation as Legal Notice No. 83 of 1966 with effect from September 30, 1966.
Appellant's Argument Against the Death Penalty
The appellant's arguments against the death penalty can be summarised thus:-
1.      
That the death penalty is anachronistic, antediluvian and barbaric.
2.      
That hanging as a form of carrying out the death penalty constitutes torture as well as inhuman or/and degrading treatment.
3.      
Upon above premises the provisions of the Penal Code which permit of the death penalty are unconstitutional and therefore null and void.
The appellant in his Heads of Argument and in the oral arguments presented before us has drawn the attention of this Court to the practices in a number of other countries as well as the views and opinions of some writers and some international organisations and bodies concerning the death penalty in general, and the execution of that penalty by hanging, in particular. It has been pointed out to us that a large number of countries which, like Botswana,
12

are, members of the United Nations, have abolished the death penalty. I must take note of this fact, and of course also of the fact that there are yet a number of other nations which like Botswana have not taken that step. But this in my view is not one of the matters which must be decisive of the issue before this court. Of course this Court, as well as other institutions of government of this country cannot and should not close its ears and eyes to happenings in other parts of the world and among the international community to which we belong. But this Court must keep within the role assigned to us as a purely adjudicatory and not legislative body under the Constitution which is the basic law of this country; and it is the interpretation of that basic law that we are called upon to decide in these proceedings.
In his argument, learned Counsel for the appellant sought to convince us that the death penalty in general and by hanging in particular is a barbaric form of punishment and that it is an inhuman and degrading punishment. He has also called our attention to the undeniable attitude of the United Nations which by Resolutions have urged upon its members to pursue the path of progressively restricting the number of offences for which the death penalty may be imposed with a view to its final and complete abolition throughout the world.
At this juncture I would like to note that the major offences for which the death penalty is available in this country apart from murder are:-
-       
treason under Section 35
-        instigating foreigners to invade this country (which indeed
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is also a form of treason) , under Section 36 of the Penal Code; and - piracy of an aggravated type under Section 63 (2) of the Code.
As I have noted the regour of the application of the death penalty has been significantly lessened by the provisions oj subsections (2) and (3) of Section 203 of the Penal Code; but is common knowledge that the application of those provisions has been a mtter of some difficulty to the Courts.
Is the Sentence of Death by Hanging, Torture, Inhuman or Degrading Punishment?
In answer to this question, it may be sufficient to say that a large number of the members of the United Nations including some African countries have abolished the death penalty and have apparently in doing so, regarded it as an inhuman, or degrading form of punishment. However the question which I must answer in this judgment is whether or not the provisions of our Penal Code which prescribe the death penalty, and by hanging are ulra vires the Constitution.
Are the Provisions of the Penal Code Prescribing the Death Penalty Ultra Vires the Constitution?
The relevant provisions of the Code and of the Constitution have already been quoted. Mr. Morotsi, Counsel for the appellant, has submitted that since the Constitution enshrines the fundamental right to life of the individual (Section 3) and that such an individual cannot be deprived of such life intentionally (Section 4), the provisions of the Penal Code which permit the State to
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intentionally take away the life of an individual must be ultra vires these constitutional provisions. In this regard Counsel has urged us to perform a surgical operation on Section 4 (1) of the Constitution by sustaining the first nine words of that Section and deleting all the other words.
The sub-section provides that:-
"No person shall be deprived of his life intentionally save in execution of the sentence of a court on respect of an offence under the law in force in Botswana of which he has been convicted."
It is in his submission that all the words beginning with "save" to the end of the provision should not be given effect. He has not been able to direct our attention to any principle of the interpretation of the Constitution which we can apply to come to that rather odd conclusion, nor has he cited to us any judicial decision in which any Court has adopted that strange form of constitutional construction. On the other hand, this Court in at least two previous decisions have held that it would be improper to interpret one provision of the Constitution in isolation from others. Here I refer to Petrus and Another v. The State (1984) BLR 14, and the yet unreported case of the Attorney-General v. Unity Dow, Civil appeal No. 4 of 1991, Judgment dated July 3, 1992. In the latter case I had the occasion to quote with approval what Justice White of the Supreme Court of the United States said in South Dakota v. North Carolina (1904) 192 US 268; 48 L.ED. 448 at 465 thus:-
"I take it to be an elementary rule of constitutional construction that no one provision is to be segregated from all
15

.. , , others, and to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view to be so interpreted as to effectuate the great purpose of the instrument."
In this case the appellant is not only asking us to segregate one provision and interpret it in isolation, but indeed to segregate it and cut it into two, and thereafter refuse to give effect one of the two parts into which we should have cut the provision. In my view we cannot do this,- and all the words of Section 4 (1) of the Constitution must be given full effect.
I must now proceed to the second arm of the argument, namely, that since Section 7 (1) of the Constitution says that "no person shall be subjected to torture or to inhuman or degrading punishment or other treatment" and capital punishment falls within the ambit of this provision, the death penalty must be held to be ultra vires that provision. This argument however overlooks the provision of sub-section (2) of the same section which as I have earlier on quoted apparently saves any law which "authorizes the infliction of any description of punishment that was lawful in the country immediately before the coming into operation" of the Constitution. The death penalty by hanging was such a punishment. As I have pointed out the Penal Code came into effect on June 10, 1964 whilst the Constitution came into effect on September 20, 1966.
The appellant has submitted that because the death penalty is torture, inhuman or degrading punishment or treatment, this Court should hold it to be ultra vires the Constitution. This will mean in effect rendering nugatory the provision of sub-section
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(2) of the same section. No authority has been cited to us as to how we can do that. All the authorities point clearly to the duty of this Court to so interpret the Constitution as to give meaning as far as possible to each of its provisions which had been expressed in clear terms. In the absence of very compelling reasons we cannot hold that one provision of the Constitution is contradictory and opposed to another, and hence refuse to give effect to the one in favour of the other.
The result, of course, is that despite the death penalty may be considered, as it apparently has been elsewhere, to be torture, inhuman or degrading punishment or treatment, that form of punishment is preserved by sub-section (2) of Section 7 of the Constitution. I have no doubt in my mind that the Court has no power to re-write the Constitution in order to give effect to what the appellant has described as progressive movements taking place all over the world, and to give effect to the Resolutions of the United Nations as to the abolition of the death penalty. I however express the hope that before long the matter will engage the attention of that arm of the Government which has responsibility of effecting changes to the Statutes for its consideration and changes which it may consider necessary to further establish the claim of this country as one of the great liberal democracies of the world.
Conclusion
In conclusion, and for the reasons which I have hereinbefore given I would then dismiss the appellant's appeal, and confirm
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the.sentence passed upon him by the lower court
DELIVERED IN OPEN COURT AT LOBATSE THIS 30th DAY OF JANUARY, 1995.
T.A. AGUDA [JUDGE OF APPEAL]

I agree
LORD WYLIE [JUDGE OF APPEAL]


I agree
for J.H. STEYN
         [JUDGE OF APPEAL]


I agree
P.H. TEBBUTT [JUDGE OF APPEAL]


I agree
LORD W.L.K. COWIE [JUDGE OF APPEAL]

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