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Moatshe v The State; Motshwari and Others v The State (Criminal Appeal No. 26 of 201; Criminal Appeal No. 2 of 202) [2003] BWCA 20; [2004] 1 BLR 1 (CA) (31 January 2003)

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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Court of Appeal Criminal Appeal No. 26 of 2001 High Court Criminal Appeal No. 51 of 1999
In the matter between:

BADISA MOATSHE
Appellant

Versus

THE STATE
Respondent

And
Court of Appeal Criminal Appeal No. 2 of 2002 High Court Criminal Trial No. 46 of 1996
In the matter between:

AUPA MOTSHWARI
HUGH AUPA RAMOAPEI MOLALE
BEN NTHAISANE

1^st Appellant 2^nd Appellant 3^rd Appellant

Versus

THE STATE
For Appellant Badisa Moatshe: For Appellant Aupa Motshwari: For Appellant Ben Nthaisane: For the Respondent:

Respondent

Mr. I. Bahuma Mr. L. T. Mothusi Mr. U. Mack Mr. M. P. Phuthego

JUDGMENT

CORAM: TEBBUTT, J.P.
ZIETSMAN, J.A. LORD SUTHERLAND, J.A. AKIWUMI, J. A. GROSSKOPF, J.A.
TEBBUTT. J. P.:

Two appeals are the subject of this judgment. They are those of Badisa Moatshe v. State ("Moatshe") and Aupa Motshwari and Ben Nthaisane v. State ("Motshwari" and "Nthaisane"). In each appeal the main issue was whether certain mandatory minimum sentences prescribed by the Motor Theft Act No. 17 of 1995 and Section 292 of the Penal Code (Cap. 08:01) as amended by Section 3 of Act 13 of 1993 are valid or whether they are in contravention of the Constitution of Botswana and consequently invalid. As both appeals involve the same issue, they were, for the sake of convenience, heard together.

It is convenient to set out briefly the background to each appeal.

In Moatshe's case he pleaded guilty to, and was convicted by the Principal Magistrate of Molepolole of, six counts of theft of motor vehicles and one count of robbery. He was 20 years of age at the time. In two of the counts of motor theft the use of violence was

involved. On each of these he was sentenced to the mandatory minimum sentence prescribed by Section 3(2) of the Motor Theft Act ("the Act") of 10 years imprisonment, which was also his sentence on the robbery count. On each of the other four counts of motor theft he received the minimum sentence prescribed by section 3(1) of the Act of 5 years imprisonment. Section 3(5) of the Act lays down that all the sentences imposed under Section 3(1) and 3(2) must run consecutively and none may be suspended. Moatshe was therefore sentenced to an effective 50 years imprisonment. An appeal to the High Court failed, as did an application in the High Court to appeal to this Court. This Court, however, granted him leave to appeal to it in respect of his sentences.

In the Motshwari and Nthaisane appeals, the appellant Motshwari was convicted in the High Court of various counts including conspiracy to rob, armed robbery, theft of a motor vehicle and unlawful possession of a pistol and ammunition. He was sentenced to five years imprisonment for conspiracy to rob and 12 years imprisonment on the armed robbery charge, to run concurrently. He was sentenced to 12 years imprisonment on the motor theft charge but, again, having regard to the provisions of Section 3(5) of the Act the two 12 years sentences had to run consecutively, i.e., an effective 24 years

imprisonment. The appellant Nthaisane was convicted of conspiracy to rob, armed robbery and two counts of motor vehicle theft and unlawful possession of a firearm and ammunition. He was sentenced to five years imprisonment on the conspiracy to rob count, to 12 years on the armed robbery count and to 12 years on each of the two motor theft charges, again each to run consecutively to the other charges, i.e., an effective 36 years imprisonment. In an appeal to this Court, the conspiracy to rob charges were set aside, but the convictions of both appellants on the other counts were confirmed. There was no appeal by either appellant against their convictions and sentences on the charges of possession of firearms and ammunition and no more need therefore be said about them. At the request of counsel, the appeals on sentence were postponed to this session of the Court in order to have the constitutionality of the sentences determined.

In both the Moatshe and the other two cases, the appeals on the sentences were heard by a Full Bench of this Court.

In the Moatshe case two grounds of appeal additional to the constitutional validity of the sentences were raised. I shall deal with these first before turning to the latter ground.

The first is that the appellant was not advised by the magistrate during his trial of his right to legal representation. A perusal of the record shows that this is indeed so. But what is the effect of this? It has been held in numerous cases, including some of this Court, that it is not peremptory for a judicial officer to inform an accused person of his right to legal representation. It is a salutary practice which should if possible be done in every case but it is only a desirability, a breach of which will not per se vitiate the proceedings. This will only occur if, as a result, there has been a failure of justice. (See e.g. Moroka v. State CivApp 4/2000, C.A.) That did not occur in this case. The appellant was supplied with a statement of facts on each count; he said he had read and understood them and agreed with them; and he pleaded guilty to them. Even though the magistrate had to pass the mandatory minimum sentences on him, he was nevertheless given the opportunity to address the trial count in mitigation. It was submitted that having regard to the length of sentence he was facing, the appellant should have been informed of his right. I cannot see that, on the facts, the failure to do so resulted in a failure of justice. This ground of appeal accordingly fails.

The second ground was that as the facts involved in the robbery and the theft of the one motor vehicle were the same and formed one

continuous transaction charging the appellant with robbery and also motor theft constituted a splitting of charges. The evidence on the one count does indeed also involve proof on the other. In my view there was therefore a splitting of charges. His conviction and sentence on one count of motor theft involving violence (which was count 5 on the indictment) are accordingly set aside. As the sentence on this count was one of 10 years his effective sentence is reduced to 40 years imprisonment.

I turn then to the validity or otherwise of the mandatory minimum sentences prescribed for armed robbery and for motor vehicle theft and to the provision in the Act that sentences under it must run consecutively to other sentences and may not be suspended.

It is, I think, necessary to quote the relevant sections in full.
Sections 3(1), 3(2) and 3(5) of the Motor Theft Act read thus:

"1. "any person who steals a motor vehicle, or receives a motor vehicle knowing or having reason to believe it to be a stolen vehicle, shall be guilty of an offence, and, notwithstanding the provisions of any other written law, shall be liable for a first offence to imprisonment for not less than five years or more than ten years without the option of a fine, and for a second or subsequent offence to imprisonment for

not less than seven years or more than fourteen years without the option of a fine."

(2) Where, for the purpose of stealing a motor vehicle, or in the course of stealing a motor vehicle, violence or the threat of violence is used, the penalty shall be imprisonment for not less than ten years or more than fifteen years without the option of a fine, and if the violence used of threatened involves the use of a firearm or other offensive weapon the penalty shall be imprisonment for not less than twelve years or more than twenty years without the option of a fine."

(5) "Any sentence imposed in respect of an offence

under this Section shall be consecutive to and not concurrent with any other sentence imposed on same person, and no sentence or any part of any sentence imposed in respect of an offence under this Section shall be suspended."

Section 291 of the Penal Code defines the crime of robbery and Section 292, as amended by Section 3 of Act 13 of 1993 reads as follows:

"If the offender is armed with a dangerous weapon or offensive weapon or instrument or is in the company with one or more other person or persons or if at or immediately before or immediately after the time of the robbery he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to a term of imprisonment of not less than 10 years."

It is clear from the sections quoted that no matter what mitigatory factors may exist in so far as any accused person is concerned who is
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convicted of the theft of a motor vehicle or receives a motor vehicle, the trial court is obliged, without more, to impose the minimum sentence of five years and if the theft is accompanied by violence or the threat of it, the trial court is obliged to impose a minimum sentence of 10 years or 12 years if the violence involves the use of a firearm. Where an accused person commits an armed robbery as defined in Section 292 or in terms of that section, in committing a robbery uses personal violence towards his victim, the court convicting him is obliged to impose a minimum sentence often years.

It is also clear that if an accused person is sentenced in respect of more than one offence under the Act, or is sentenced in respect of another offence such as robbery, the sentences must run consecutively and none can be suspended. The sentences on all the appellants were therefore obligatory.

The submissions of counsel for all the appellants that the sections concerned are in violation of the Constitution focussed on the three main aspects viz.

(i) that the legislature in enacting the minimum sentences

was seeking to usurp the functions of the judiciary in regard to sentencing and was accordingly in contravention of Section 95(1) of the Constitution

which provides that the High Court "shall have unlimited original jurisdiction to hear and determine any .... criminal proceedings."

(ii) that by depriving an accused person of his ability to

advance to, and have considered by, the trial court of mitigatory factors, such person was being denied "a fair hearing ... by an independent and impartial court" as provided in Section 10 (1) of the Constitution.

(iii) That the length of the minimum sentences and

particularly the effect of the provision that sentences had to run consecutively resulting in effective sentences, as in the present cases, of 40, 24 and 36 years imprisonment constituted brutal, inhuman and degrading punishment in contravention of Section 7 (1) of the Constitution which provides that "no person shall be subjected to torture or to inhuman or degrading punishment."

As to the first aspect, although two counsel in their written heads of argument submitted that the enactments in question offended against the desirability of the separation of powers of the legislature and the judiciary, in their oral arguments before this Court all counsel accepted that the legislature could enact prescribed penalties and that there could be an overlapping of the powers of the legislature and the judiciary in the realm of the defining of certain activities as being criminal in nature and in the imposition of penalties in regard thereto and in respect of penalties for already existing criminal offences. They were correct to do so.

The desirability of the courts having unfettered discretion in relation to sentencing has been expressed in numerous cases. In South Africa, Smalberqer JA in S v Toms: S v Bruce [1990] ZASCA 38; 1990 (2) SA 802 (AD) at 806 H - 807 C said:

"The first principle is that the infliction of punishment is pre-eminently a matter for the discretion of the trial court (R v. Mapumulo and Others 1920 AD 56 at 37). That courts should, as far as possible, have unfettered discretion in relation to sentence is a cherished principle which calls for constant recognition. Such a discretion permits of balanced and fair sentencing, which is a hallmark of enlightened criminal justice. The second, and somewhat related principle, is that of the individualisation of punishment, which requires proper consideration of the individual circumstances of each accused person. This principle too is firmly entrenched in our law {State v. Rabie 1975 (4) SA 855 (A) at 861D; State v. Scheepers 1977 (2) SA 159 (A) at 158F-G). A mandatory sentence runs counter to these principles (I use the term "mandatory sentence" in the sense of a sentence prescribed by the legislature which leaves the Court with no discretion at all - either in respect of the kind of sentence to be imposed or, in the case of imprisonment, the period thereof). It reduces the court's normal sentencing function to the level of a rubber stamp. It negates the ideal of individualisation. The morally just and the morally reprehensible are treated alike. Extenuating and aggravating factors both count for nothing. No consideration, no matter how valid or compelling can affect the question of sentence. As Holmes JA pointed out in State v. Gibson 1974 (4) SA 478 (A) at 482A, a mandatory sentence "unduly puts all the emphasis on the punitive and deterrent factors of sentence, and precludes the traditional consideration of subjective factors relating to the convicted

person." Harsh and inequitable results inevitably follow from such a situation. Consequently judicial policy is opposed to mandatory sentences (cf State v. Mpetha 1985 (3) SA 702 (A) at 710E), as they are detrimental to the proper administration of justice and the image and standing of the courts."

(See also, in Namibia, S v. Vries (1997) 4 LRC 1 at 7.)

Smalberqer JA further said that there is a strong presumption against legislative interference with the jurisdiction of the courts and furthermore that the Legislature must be presumed not to intend its enactments to have harsh and inequitable results. However, he went on to say this at 807 E-F:

"The Legislature is of course at liberty to subjugate these principles to its sovereign will and decree a mandatory sentence which the courts in turn will be obliged to impose."

The latter statement recognises that there is no separation of power as between the legislature and judicial arms of government but that there is an interdependence between the two in respect of punishment. This interdependence has been outlined by the Constitutional Court of South Africa in a recent case decided by it as to whether a mandatory sentence of life imprisonment for murder conflicted with the provisions of the South African Constitution. (See Dodo v. State (2001) 4 LRC

318 (C. C.) There Ackermann J, who delivered the judgment of the
Full Court, after referring to the remarks of Smalberaer JA in regard to
the desirability of leaving the discretion as to sentence in the hands of
the courts, nevertheless emphasised the power of the Legislature to
lay down mandatory sentences and at p. 333 b-g, paras 22 to 25 said
this:

"22 There is under our Constitution no absolute separation of powers between the judicial function, on the one hand, and the legislative and executive on the other. When the nature and process of punishment is considered in its totality, it is apparent that all three branches of the state play a functional role and must necessarily do so. No judicial punishment can take place unless the person to be punished has been convicted of an offence which either under the common law or statute carries with it a punishment. It is pre-eminently the function of the legislature to determine what conduct should be criminalized and punished. Even here the separation is not complete, because this function of the legislature is checked by the Constitution in general and by the Bill of Rights in particular, and such checks are enforced through the courts.

23 Both the legislature and executive share an interest in the punishment to be imposed by courts, both in regard to its nature (see s 276 of the Criminal Procedure Act 1977) and its severity. They have a general interest in sentencing policy, penology and extent to which correctional institutions are used to further the various objectives of punishment. The availability and cost of prisons, as well as the views of these arms of government on custodial sentences, legitimately inform policy on alternative forms of non-custodial sentences and the legislative implementation thereof. Examples that come to mind are the conditions on and maximum periods for which sentences may be postponed or suspended (see s 297 of the Criminal Procedure Act 1977).

The executive and legislative branches of state have a very real interest in the severity of sentences. The executive has a general obligation to ensure that law-abiding persons are protected, if needs be through the criminal laws, from persons who are bent on breaking the law. This obligation weighs particularly heavily in regard to crimes of violence against bodily integrity and increases with the severity of the crime.

In order to discharge this obligation, which is an integral part of constitutionalism, the executive and legislative branches must have the power under the Constitution to carry out these obligations. They must have the power, through the legislative means, of ensuring that sufficiently severe penalties are imposed on dangerous criminals in order to protect society. The legislature's objective of ensuring greater consistency in sentencing is also a legitimate aim and the legislature must have the power to legislate in this area."

In a wide-ranging survey of the position in foreign jurisdictions Ackermann J set out the many examples of other open and democratic societies which permit the legislature to limit the judiciary's power to impose punishments. He referred particularly to the United States of America; to Canada (where mandatory minimum sentences are not regarded as being inconsistent with any separation of powers doctrine); to Australia (where compulsory minimum sentences are set by the legislature leaving little or no discretion to the sentencing judge); to India (where the courts have agreed that the imposition of standards tailoring the judicial discretion as to sentence was a legitimate legislative function); and to New Zealand (where various

statutes limit the general discretion of the courts in regard to imprisonment.) Similar references to states in Africa such a Tanzania and Kenya are contained in the judgment of Kapi D.CJ. in the decision of the Supreme Court of Papua New Guinea in Constitutional reference of the Morobe Provincial Government (1985) LCR 642 in which he stated at p660f that:

"Judicial discretion in punishment has always been exercised subject to limits set by the legislature."

It is also apposite to refer to what was said by Lord Bingham in the Privy Council in Patrick Reves v. The Queen (Privy Council Appeal No. 64 of 2001, delivered on 11^th March 2002) at para. 25:

"In a modern liberal democracy it is ordinarily the task of the democratically elected legislature to decide what conduct should be treated as criminal, so as to attract penal consequences, and to decide what kind and measure of punishment such conduct should attract or be liable to attract. The prevention of crime, often very serious crime, is a matter of acute concern in many countries around the world, and prescribing the bounds of punishment is an important task of those elected to represent the people. The ordinary task of the courts is to give full and fair effect to the penal laws which the legislature has enacted. This is sometimes described as deference shown by the courts to the will of the democratically-elected legislature. But it is perhaps more aptly described as the basic constitutional duty of the court which, in relation to enacted law, is to interpret and apply it."

Botswana is a modern liberal democracy. As was stated by Aquda JA in the watershed decision of this Court of Attorney General v. Dow 1992 BLR 119 at 168 B:

"At this juncture I wish to take judicial notice of that which is known the world over that Botswana is one of the few countries in Africa where liberal democracy has taken root. It seems clear to me that all the three arms of the government - the Legislative, the Executive and the Judiciary - must strive to make it remain so except to any extent as may be prohibited by the Constitution in clear terms."

From the aforegoing I conclude that the imposition of mandatory minimum sentences by the Legislature is a legitimate function of the legislature in a modern democracy and has been recognised as such in courts in other liberal democracies.

It is, in my view, correct to regard it as such in Botswana as well. In the Reyes case supra Lord Bingham at para. 214, warned against a reluctance to take into account standards in other jurisdictions and expressed the view that the collective experience and wisdom of courts and tribunals the world over ought fully to be considered. So, too, should this Court have regard to the standards and systems in those jurisdictions whose values accord with a democracy such as Botswana.

The raison d'etre behind that recognition is manifest. The legislature is the repository of the knowledge of what is occurring in the country it governs. It is aware of (a) the prevalence of certain offences; of (b) the increase in the prevalence of those offences; of (c) the dismay of the law-abiding citizens in regard to (a) and (b); of (d) the abhorrence of its citizens of the results of (a) and (b); and of (e) the insistence on the part of society that appropriate deterrent steps be taken to curb the incidence of such offences and their increase and to protect the interests and rights of its law-abiding citizens. It is aware of the necessity to take those steps so as to prevent the structure of its society from being undermined by those who commit such offences and to ensure that law-abiding citizens do not take the law into their own hands - a situation that can result in anarchy.

That underlying rationale to the enacting of mandatory minimum sentences has been accepted in courts in many democratic jurisdictions.

In a decision of the Supreme Court of Canada, also dealing with mandatory minimum sentences viz. Smith v. R (1988) LRC 361 at 378 Dickson CJ and Lamer J referred to what Lacourciere JA in an earlier

case of R. v. Lanqevin (1984) 11 CCC 336 at 360 said that the overall objective of Parliament is the protection of society.

The learned judges referred to the Canadian courts' acceptance of this in many cases as "this deference to Parliament" and quoted as an example what was said in one such case, viz.:

"It is for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed upon those found guilty of committing the offences. Parliament has broad discretion in proscribing conduct as criminal and in determining proper punishment. While the final judgment as to whether a punishment exceeds constitutional limits set by the Charter is properly a judicial function the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency."

The deference of the courts to the legislature in the matter of mandatory sentences has also been referred to by Frank J in S v. Vhes supra at p. 8 in these terms:

"(The consideration of such a sentence is done out of deference to the legislature which as representative of the populace clearly reflects the norms and values of the electorate and thus of society in general. Thus, regard is had to the 'contemporary norms, expressed in its national
17

institutions' ... Parliament is empowered by the Constitution to pass legislation and is thus undoubtedly entitled to proscribe conduct as criminal and to determine punishment for conduct so proscribed. I am thus of the view that minimum sentences are not per se unconstitutional. This view is bolstered by the approach set out hereinafter which in my view is the only reasonable one to allow both Parliament and the courts to play their proper role as envisaged by the Constitution."

And one is reminded once more of what Ackermann J said in Dodo's case supra at paras 24-25:

"The executive and legislative branches of state have a very real interest in the severity of sentences. The executive has a general obligation to ensure that law-abiding persons are protected, if needs be through the criminal laws, from person who are bent on breaking the law. This obligation weighs particularly heavily in regard to crimes of violence against bodily integrity and increases with the severity of the crime.

From the aforegoing, the conclusion at which I arrive is that the enactment of mandatory minimum sentences is justifiable where the public weal would require them.

The constitutionality of mandatory minimum sentences also arose for consideration in the Court of Appeal of Bermuda in the case in that court of Shorter and Others v. R (1989) LRC 440. In his judgment Blair-Kerr P referred extensively to the Papua New Guinea case supra and to the decision of the Supreme Court of Canada in Smith v. R. supra. He quoted with approval the statement of Lamer J who gave the majority judgment in the latter case-

"The Legislature may in my view provide for a compulsory term of imprisonment upon conviction for certain offences without infringing the rights protected by "the Charter."

He also quoted with approval from the minority judgment of Mclntvre J (and I too respectfully adopt it) who said at pp 397-8 of the Smith case:

"The formation of public policy is a function of Parliament. It must decide what the aims and objectives of social policy are to be, and it must specify the means by which they will be accomplished. It is true that the enactments of Parliament must now be measured against the Charter,

and where they do not come within the provisions of the Charter, they may be struck down. This step, however, must not be taken by the courts merely because a court or a judge may disagree with a parliamentary decision but only where the Charter has been violated. Parliament has the necessary resources and facilities to make a detailed inquiry into relevant considerations in forming policy. It has the capacity to make a much more extensive inquiry into matters concerning social policy than the court. It may test public opinion, review and debate the adequacy of its programs, and make decisions based upon wider considerations, and infinitely more evidence than can ever be available to a court."

In the Papua New Guinea case Breedmeyer J. at 668-669 said:

"When Parliament fixes a mandatory penalty it does so in the public interest - to punish, to deter, to protect society, etc - to the detriment of the other aspects, the offender's interest, the victim's interest and the like. I can see that a mandatory sentence greatly enhances the deterrent aspect of a sentence."

I am in complete agreement with all the above-cited statements.

In the present case, it is notorious that motor vehicle theft in Botswana is rampant and prior to 1995 was on the increase. Statistics provided to the Court by the State support this. It is also the experience of this Court that the incidence of armed robberies is high and on the increase. It was, in my view, clearly the intention of the Legislature by enactment of the mandatory minimum sentences in Section 3(1) and (2) of the Act and in Section 292, as amended, of the Penal Code in the public interest to curb the incidence of those

offences. I therefore find that those sections are not per se in contravention of Section 95 of the Constitution.

I am fortified in this view by the provisions of Section 3 of the Constitution. That section provides that those rights of persons in Botswana that are protected by the Constitution may be limited where the enjoyment of those rights would be prejudicial to the public interest. The courts must therefore consider whether in appropriate cases the unfettered entitlement to those rights must give way to the public good.

In my opinion the high incidence of motor thefts and armed robberies requires stringent measures in order to attempt to curb them. This is manifestly for the promotion of the public good and those enactments that are designed, as the sections in question clearly are, to promote the public good must have the effect, if the Court is of that opinion, to limit those rights that are affected thereby. This Court is of that opinion.

This consideration is also of relevance to the appellant's submission that the enactment of the sections in question offends against Section 10(1) of the Constitution affording an accused person of a fair hearing

by an independent and impartial court. It was submitted that as the court was obliged to impose the mandatory sentences laid down the court's independence was detrimentally affected and that, as the court was precluded from considering any mitigatory factors in respect of the accused person, the latter did not have a fair hearing by the court. I have already expressed my acceptance of the view that when the Legislature fixes a mandatory penalty it does so in the public interest -to punish, to deter, to protect society - to the detriment of other aspects such as the offender's interests. This is the inevitable concomitant of a mandatory penalty. It follows that I am of the view that the right contained in Section 10(1) must also, in an appropriate case, be subject to the limitations contained in Section 3 of the Constitution. In my opinion, this is such a case.

The first two grounds advanced by counsel for the appellants for their submissions that the sections in question run contrary to the Constitution therefore fail.

The third ground, however, rests on a different footing, viz. that the sections offend against Section 7(1) of the Constitution that no person shall be subject to inhuman and degrading punishment. The question

to be decided is therefore whether the mandatory sentences laid down in casu amount to inhuman or degrading punishment.

"Inhuman" has been defined in the Oxford Dictionary" as "destitute of natural kindness or pity, brutal, unfeeling, cruel, savage, barbarous" or, - in short "cruel" or "brutal". (See Ex Parte A-G: Re Corporal Punishment (1992) LRC 515 at 522 S v. Vries supra at 15; 5 v. Petrus 1984 BLR 14 CA at 40-41)

In considering this question the court must, I think, start from two premises, viz. (a) that although the legislation is empowered to prescribe mandatory minimum sentences, it cannot enact penalties that would amount to cruel, inhuman or degrading punishment, in conflict with the Constitution and (b) whether a prescribed punishment is in such conflict is a matter for decision by the judiciary. These premises have been enunciated in numerous courts.

In S v. Vries supra Frank J said at 8 c-d:

"Whereas Parliament may generally enact legislation including legislation with penal provisions Parliament cannot enact penalties that will fall foul of art 8 (2) (prohibiting cruel, inhuman or degrading punishment). Whether prescribed punishment infringes art 8(2)(b) is for the courts to decide not Parliament."

In Dodo's case supra Ackermann J at 334 b-c said:

"In the field of sentencing, however, it can be stated as a matter of principle that the legislature ought not to oblige the judiciary to impose a punishment which is wholly lacking in proportionality to the crime. This would be inimical to the rule of law and the constitutional state. It would a fortiori be so if the legislature obliged the judiciary to pass a sentence which was inconsistent with the Constitution and in particular with the Bill of Rights. The clearest example of this would be a statutory provision that obliged a court to impose a sentence which was inconsistent with an accused's right not to be sentenced to a punishment which was cruel, inhuman or degrading as envisaged by s 12(l)(e) of the Constitution, ..."

(See also Smith v. R supra at p. 378 e-f and the Papua New Guinea case at 669-670). With the aforegoing, I entirely agree. It would, in my view, be a gross violation of human rights if the legislature were to be able to enact punishments that were brutal, inhuman or degrading. That could never be sanctioned in a democratic society like Botswana with a Constitution such as it has.

What is regarded in regard to a prescribed punishment as "inhuman and degrading" has been extensively discussed in judgments delivered in those jurisdictions where their constitutions or Bills of Rights prohibit the imposition of cruel or inhuman or degrading punishments (see Smith v. R supra; the Papua New Guinea case; S v. Vries supra;

Arab v. State 1990 LRC 40 (Zimbabwe); State v. Likukwa (2000) 1 LRC 600 (Namibia) Patrick Reves v. The State supra and S. v. Makwanvane [1995] ZACC 3; 1995 (3) SA 391 CC). It would be an unnecessarily burdensome task to review in detail what was said in these judgments, many of which are extremely lengthy.

I have therefore sought to distil from them the basic considerations which should guide this court in deciding whether the prescribed penalties provided in the sections in question in this case amount to inhuman or degrading punishment. Before so doing it is necessary to stress that it is not only those punishments that are inherently, or in their nature, inhuman or degrading but "inhuman punishments" would also extend to punishments of imprisonment which by reason of their excessiveness must be held to be inhuman. In Ncube v. S (1988) LRC 442 Gubbav JA (as he then was) in the Zimbabwe Supreme Court at 459 said this (quoted in Arab v. State supra at 43 a-c):

"On its face s 15(1) aimed primarily at the quality or nature of punishment. Certain types of punishment are acknowledged to be inherently inhuman and degrading. Those involving the rack, the thumb screw, the pillory, burning alive or at the stake, prolonged periods of solitary confinement and starvation, fall unquestionably into this category. But s 15(1) is not confined to punishments which are in their nature inhuman or degrading. It also extends to punishments which are "grossly disproportionate": those which are inhuman or degrading

in their disproportionality to the seriousness of the offence, in that no one could possibly have thought that the particular offence would have attracted such a penalty -the punishment being so excessive as to shock or outrage contemporary standards of decency."

Similar sentiments were expressed by Aquda JA in S v. Petrus supra at 41 D-E.
The relevant considerations then are the following:

A statutory minimum sentence of imprisonment is not per se unconstitutional.

It will, however, be regarded as unconstitutional as amounting to inhuman or degrading punishment if it is grossly disproportionate to the severity of the offence.
3.

Not every disproportionate or excessive sentence can be stigmatised as being a constitutional violation. It will only be a violation where the sentence is so unfit having regard to the offence and the offender as to be grossly disproportionate.

The decision as to whether the sentence is grossly disproportionate involves the exercise of a value judgment by the court.

That value judgment should be based not on subjective considerations but on objective factors, regard being had to the contemporary norms operating within Botswana and the conspectus of values in civilised democracies of which Botswana is one.

Having arrived at its value judgment in relation to the specific case before it and found that the mandatory minimum sentence imposed on the accused person or persons is so excessive that no reasonable man would have imposed it, the court must further consider whether to declare the statutory provision to be of no force and effect with regard to that particular case or whether to declare it of no force or effect for all purposes, i.e., in hypothetical cases which can be foreseen as likely to arise commonly.

I turn then to the sentences in the present case. In my view, a sentence of five years imprisonment, even for a first offender, cannot be regarded as so excessive for the tneft of a motor vehicle having regard to the offender and the offence as to be grossly disproportionate. A motor vehicle is in almost every instance one of, if not the, most valuable assets a person possesses. It may also represent the source of his livelihood and, apart from everything else its loss will in most cases result in considerable inconvenience. Motor vehicles are easily stolen, they are easily disposed of and their recovery - intact or damaged or often dismantled - is extremely difficult. The protection of their owners is obvious and those who would steal them must be aware that long terms of imprisonment will be their lot. When violence is used the situation becomes even worse

for then the victim's own well being and even his life will be in jeopardy. If that violence involves the use of a fireman the potential -or, in many instances, the actual - harm to the victim and the threat to his life is greatly exacerbated. The number of persons injured, maimed for life or killed in so-called "hi-jacking" is legion and so frequently and widely reported in the media that this Court can take judicial notice of it.

The Botswana Penal Code envisaged a maximum sentence of 20 years for robbery and one of life imprisonment, where personal violence to the victim was used. Those sentences never occasioned any disapproval from the general public of Botswana. Moreover, the courts of Botswana have, over the years, imposed harsh sentences on violent offenders.

It is those norms to which this Court can have regard in objectively exercising its value judgment. In my judgment, sentences of imprisonment of 10 years where violence is involved in the theft of motor vehicles and of 12 years where firearms are used are also not so excessive as to be disproportionate to the offence.

The effect of Section 3(5) however, in my opinion, is to cast the provisions of Sections 3(1) and (2) in a different light. While I am of the view that the prohibition in Section 3(5) against suspending any portion of the sentences does not do any violence to the requirements of Section 7(1) of the Constitution, the provision in Section 3(5) that sentences imposed on an accused person for an offence of motor theft under Sections 3(1) and (2) and either for a second or more offence or offences under the Act or for another criminal offence, are to run consecutively does in my judgment, do violence to Section 7(1). The cumulative effect of such consecutive sentences is undoubtedly likely to result in an accused person being imprisoned for excessively lengthy periods, which would be disproportionate to the offence concerned. It would go beyond the purpose of the legislature in wishing to curb the mischief created by those offences. That has happened in Moatshe's case where he faces, as a result of Section 3(5), 40 years in prison and in Motshwari and Nthaisane's case where they face 24 and 36 years in prison respectively. These are sentences which are of such grossly disproportionate length that, in my judgment, they amount to an "inhuman punishment."

In Shorter v. R. supra the Bermuda Court of Appeal had to consider whether a similar provision to that in Section 3(5) viz that certain

mandatory sentences of 10 years imprisonment for robbery or rape should run consecutively amount to "inhuman punishment." Opining that mandatory sentences could not per se be said to be manifestly excessive, the Court also added that -

"... it is difficult to imagine a factual situation in which a mandatory consecutive sentence ... could be described as "brutal, barbarous, cruel."

In the present case we have indeed a factual situation where the effect of consecutive sentences gives rise to "inhuman punishment."

The Court must consider whether other hypothetical cases with similar consequences can be foreseen as likely to arise commonly or whether the present case is a "far-fetched and marginally imaginable one" that has become a reality. In my view the latter is not the case and if one has regard to the fact that more motor theft convictions are likely to occur, taking into account the prevalence of the offence, it is also more than likely that consecutive sentences will arise with the same effect as has occurred in casu.

I therefore hold that the provision in Section 3(5) of the Act that sentences are to run consecutively is in violation of Section 7(1) of the Constitution. It accordingly falls to be struck out.

This will, of course, leave the position as it presently exists in Section 300 (2) of the Criminal Procedure and Evidence At (Cap 08:02) that normally several sentences of imprisonment run consecutively "unless the court directs that such punishments shall run concurrently."

The effect of this judgment is that courts trying offences under the Motor Theft Act will be entitled in appropriate cases to order several sentences of imprisonment - or portions of them - to run concurrently so as to ameliorate the harsh and inhuman consequences that may flow from their running consecutively while nevertheless leaving the courts free, where circumstances warrant it, to allow them to run consecutively.

Applying what this judgment has laid down to the present appeals, this Court, having found that some of the sentences can be ordered to run concurrently with others, is at large to consider whether it should do so and, if so, which of the appellant's sentences should run concurrently with others. I turn to the individual appellants.

Badisa Moatshe

It is considered that to reduce the excessively long period of imprisonment that he presently has to serve, certain of his sentences should be ordered to run concurrently. He is a young man, 20 years old, and in all the cases the cars he stole were found abandoned and so recovered. On the four counts on which he was convicted of motor theft, without violence, the mandatory sentences are five years imprisonment. These must stand but they will be ordered to run concurrently. On the robbery count and on the count of motor theft with violence on which he was convicted he was sentenced to the mandatory minimum sentences of 10 years on each count. These two will stand but five years of the ten years on the motor theft with violence count will be ordered to run concurrently with the sentences on the four counts of motor theft already referred to. Robbery being the serious offence it is, the ten years imprisonment on this count will be ordered to run consecutively to the other sentences. Moatshe will therefore serve an effective 20 years imprisonment.

Aupa Motshwari

This appellant was sentenced to 12 years imprisonment for robbery. Having regard to the facts of the robbery, which are fully set out in the

judgment of this Court in the appeal to it against his conviction and need not be repeated here, the sentence was, in my view, a condign one. The sentence of 12 years imprisonment on the motor theft charge on which he was convicted was the mandatory minimum one. His use of a firearm on each occasion shows that the appellant is a person with no respect for either the life or the property of another. His sentences must stand and run consecutively. They are confirmed. His effective sentence is accordingly 24 years imprisonment.

Ben Nthaisane

The sentences on this appellant totalled 36 years being 12 years on his robbery conviction and 12 years on each of two convictions of motor theft in which a firearm was used. Again, on the facts, the sentence of 12 years on the robbery count was fully justified and must stand. The other sentences on the motor theft counts were mandatory minimum ones. However, the total of 36 years, in my view, renders his punishment inhuman. The sentences on the two motor theft counts will therefore be ordered to run concurrently but that on the robbery count will run consecutively to them, making his sentence an effective one of 24 years imprisonment.

In the result the following order is made:
(I refer to the counts as they appear from the court records in the two cases):

The provision in Section 3(5) of the Motor Theft Act No. 17 of 1995 that "any sentence imposed in respect of an offence under this section shall be consecutive to and not concurrent with any other sentence imposed on the same person" is declared unconstitutional as being in conflict with section 7 (1) of the Constitution of Botswana and is struck down.
2.

In Criminal Appeal No. 26/01 Badisa Moatshe v. State:

(a)     The convictions on Counts 1, 2, 3, 4, 6 and 7 are confirmed. The conviction on Count 5 is set aside.
(b)     The sentences are the following:
Count 1:         5 years imprisonment
Count 2:         5 years imprisonment
Count 3:         5 years imprisonment
Count 7:         5 years imprisonment.
(c)      The sentences on counts 1, 2, 3, and 7 are to run
concurrently.
Count 4: 10 years imprisonment
Count 6: 10 years imprisonment, of which 5 years are to run concurrently with the sentences on Counts 1, 2, 3 and 7.
The sentence of 10 years imprisonment on Count 4 is to run consecutively to the other sentences.
3.       In Criminal Appeal No. 2/2002
Aupa Motshwari and Ben Nthaisane v. State
34

A. Aupa Motshwari

(a) The sentences on Counts 2, 3, 6 and 7
are confirmed, viz:

(i)      Count 2: 12 years imprisonment
(ii)     Count 3: 12 years imprisonment
(iii)    Count 6: a fine of P250.00 or
four months imprisonment
(iv)     Count 7: a fine of P250.00 or
four months imprisonment.

(b) The sentences on Counts 6 and 7 are to
run concurrently with the sentence on
Count 2. The sentences on Counts 2 and
3 are to run consecutively to one
another.

B. Ben Nthaisane
(a) The sentences on Counts 2, 3, 8, 9
and 10 are confirmed, viz.:

(i) Count 2: 12 years imprisonment (ii) Count 3: 12 years imprisonment (iii) Count 8: A fine of P250.00 or

four months imprisonment, (iv) Count 9: A fine of P250.00 or four months imprisonment, (v) Count 10: 12 years imprisonment.

(b) The periods of imprisonment on Counts 8
and 9 are to run concurrently with the
sentence on Count 2. The sentences on
Counts 3 and 10 are to run concurrently.
The sentence on Count 2 is to run
consecutively to the sentences on Counts
3 and 10.

DELIVERED IN OPEN COURT AT THE COURT OF APPEAL, LOBATSE, this 31^st day of January 2003.
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P. H. TEBBUTT JUDGE PRESIDENT

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VL't-Jitb**
I agree,
N. W. ZIETSMAN JUDGE OF APPEAL

I agree,
LORD R. I. SUTHERLAND JUDGE OF APPEAL

I agree,
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A. M. AKIWUMI JUDGE OF APPEAL

I agree, W^V^IYXJSAC..

F. H.X3ROSSKOPP JUDGE OF APPEAL.