IN THE COURT OF APPEAL OF THE REPUBLIC OF
BOTSWANA HELD AT LOBATSE
CLCLB 019-07
High Court Criminal Appeal No. F 74 of 2004
In the matter of:
BASHI MATLHO
Appellant
vs.
THE STATE
Respondent
Mr. H. M. Sikhakhane for the Appellant
Mr. T. Selitshena for the Respondent
J U D G M E N T
Tebbutt, J.P.:
Grosskopf, J.A.:
Moore, J.A.:
McNally, J.A.;
Twum, J.A.:
TEBBUTT, J.P.:
The issue in this appeal is whether Section 142(5) of the Penal Code (Cap 08:01) violates the Constitution of Botswana and is consequently
invalid.
Section 142(5) provides that:
“Any person convicted and sentenced for the offence of rape shall not have the sentence imposed run concurrently with any other sentence,
whether the other sentence be for the offence of rape or any other offence.”
The effect of the section is therefore that if any person is convicted on more than one charge of rape or on a charge of rape and
of any other offence, each of the sentences on the charges of rape or of rape and any other offence must run consecutively.
The Penal Code was amended in 1998 to provide for certain minimum mandatory sentences to be imposed for convictions on charges or
rape. In brief, they are the following:
Section 142(1) provides for a mandatory minimum sentence of 10 years imprisonment for a conviction on a charge of rape. Where the
act of rape is attended by violence resulting in injury, Section 142(2) provides for a mandatory minimum sentence of 15 years imprisonment.
Section 142(4) provides that any person convicted under Sections 142(1) or 142(2), who is tested positive for HIV (he is obliged
to undergo such a test in terms of Section 142(3)), the minimum mandatory sentence that must be imposed is 15 years imprisonment,
if the person was unaware of being HIV positive, and 20 years imprisonment where it is proved on a balance of probabilities that
he was so aware. In all instances, the maximum sentence is one of life imprisonment.
Certain minimum mandatory sentences are also prescribed for convictions on other offences. For example, Section 292(2) of the Penal
Code provides for a mandatory minimum sentence for armed robbery of 10 years imprisonment and there are also minimum mandatory sentences
for offences under the Motor Vehicle Theft Act (Cap. 09:04) and under the Stock Theft Act (Cap. 09:01).
The obligatory requirement that sentences on more than one count of rape or for rape or another offence such as robbery or stock or
motor theft are to run consecutively can therefore result in offenders being faced with sentences of imprisonment of 20 years and
upwards.
In the present appeal, the Appellant, who was given leave by this Court to appeal against his sentence, was convicted on two counts
of rape and sentenced to the minimum mandatory sentence of 10 years imprisonment on each count, which in terms of Section 142(5),
have to run consecutively resulting in a total sentence of 20 years imprisonment. He contends that the provisions of Section 142(5)
violate Section 7(1) of the Constitution which provides that
“no person shall be subjected to torture or to inhuman or degrading punishment”
and is therefore invalid and falls to be struck down by this Court.
The crisp issue therefore is:
Is Section 142(5) of the Penal Code in violation of Section 7(1) of the Constitution?
This Court has been confronted with the same issue on two previous occasions: in 2003 in relation to the mandatory minimum sentences
contained in the Motor Vehicle Theft Act (see Moatshe v. The State Crim. App. 26 of 2001 and Motshwari and Another v. The State both now reported in [2003] BWCA 20; (2004) 1 BLR 1 (CA)) and, also in 2003, in relation to the mandatory minimum sentences contained in the Stock Theft Act. (see Tlhabiwa and Another v. The State (2003) 2 BLR CA).
In both those cases, the Court had to decide two issues viz. (i) whether the mandatory minimum sentences were valid or whether they
were in contravention of the Constitution and, in particular Section 95 thereof; and (ii) whether, as in the present case, the cumulative
effect of the consecutive sentences under consideration rendered the provisions in those Acts, that sentences under them had to run
consecutively, contrary to Section 7(1) of the Constitution.
The Moatshe and Motshwari case were heard together and are reported in that way in the Botswana Law Report cited above. For convenience, I shall therefore
refer to them simply as the Moatshe case or as Moatshe.
In Moatshe, this Court undertook a comprehensive, extensive and detailed survey and a critical analysis of the approach of the courts in other
democratic countries to legislative enactments prescribing minimum mandatory sentences and considered whether it was apposite for
such an approach also to be applicable to Botswana. Bringing to mind once more that Botswana is a modern liberal democracy, the Court
repeated the oft-cited words of Aguda, J.A. in the watershed decision of this Court of Attorney General v. Dow (1992) BLR 119(CA) (Full Bench) at 168B.
“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.”
Referring then to examples collected by Ackermann, J in the South African Constitutional Court in S v. Dodo [2001] ZACC 16; 2001 (3) SA 382 (CC) of the approach in the United States of America, Canada, Australia, New Zealand, India, Tanzania and Kenya, the Court concluded
that the imposition of mandatory minimum sentences by the legislature was a legitimate function of the legislature in a modern democracy,
and had been recognized as such in other liberal democracies. This Court then held that the enactment of mandatory minimum sentences
was justifiable where the public interest required it, such as to curb the incidence of increasingly prevalent crimes. It accordingly
found that in Botswana, too, the enactment of mandatory minimum sentences was not unconstitutional.
In regard to the second issue raised in the two cases cited, the Court came to a different conclusion. The facts in Moatshe’s case were that he was convicted on six counts of theft of motor vehicles and one of robbery. As the mandatory sentences on those
counts had in terms of Section 3(5) of the Motor Vehicle Theft Act to run consecutively, Moatshe was faced with a total period of
imprisonment of 50 years. In the case of Motshwari he was, apart from a conviction for motor vehicle theft, convicted on a number
of other counts, including armed robbery, resulting in his facing a total of 24 years imprisonment while a co-accused with him, who
was similarly convicted of a number of offences, including two counts of motor vehicle theft, necessitating that his sentences had
to run consecutively, faced a total of 36 years imprisonment. The facts in the Tlhabiwa case, supra, were that the two appellants, because of the provisions of the Stock Theft Act requiring any sentences under that Act
to run consecutively with those or any other sentences, were faced with cumulative sentences of 15 and 21 years respectively.
In Moatshe the Court pointed out that while the legislature was entitled to enact mandatory minimum penalties, it would violate the Constitution
and would act in gross contravention of human rights if it were to enact penalties which were brutal, inhuman or degrading. The Court
held that this could never be sanctioned in a democratic society like Botswana with a Constitution such as it has. The Court further
held that whether a prescribed punishment violated the provision in the Constitution that no person shall be subject to inhuman and
degrading punishment depended on whether the punishment was grossly disproportionate to the severity of the offence.
In coming to its conclusion, the Court again embarked upon a comprehensive study into, and analysis of, the authorities in which the
meaning of “inhuman and degrading” punishments has been considered and distilled from them the basic considerations which
should guide the courts in deciding whether the prescribed penalties provided in the various enactments, such as those in the Penal
Code in the present case, amount to inhuman or degrading punishment. The Court also stressed (at 13F) that it is not only punishments
that are inherently, or in their nature, inhuman or degrading but also punishments which by reason of their excessiveness, must be
held to be inhuman. The Court approved the following statement (at 13H) by Gubbay, J.A. in the Zimbabwe Supreme Court (quoted in
S. v. Arab 1990 (1) ZLR 253 (SC) AT 256) in relation to a similar enactment in Zimbabwe:
“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.”
(see also Petrus and Another v The State (1984) BLR 14 (CA) at 41 D-E).
The relevant considerations, as distilled by the Court, from the authorities consulted are the following (see Moatshe at 14 B-D):
1.
A statutory minimum sentence of imprisonment is not per se unconstitutional.
2.
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 stigmatized 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.
4.
The decision as to whether the sentence is grossly disproportionate involves the exercise of a value judgment by the court.
5.
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 civilized democracies of which Botswana is one.
It is, as the Court opined in Moatshe in relation to the motor thefts, likely that Section 142(5) of the Penal Code, because of the prevalence of rape offences –
about which I shall have more to say later herein – will often come into operation in the future, resulting, as it must, in
cumulative sentences of lengthy periods many of which will be grossly excessive.
I therefore hold that the provisions of Section 142(5), that sentences are to run consecutively is in violation of Section 7(1) of
the Constitution and is accordingly struck down.
As pointed out in Moatshe at 15 H-16 A (and repeated in Thabiwa supra at 43 F-G) this will, of course, leave the position as it presently exists in s 300(2) of the Criminal Procedure and Evidence
Act (Cap 08:02) that normally several sentences of imprisonment run consecutively ‘unless the court directs that such punishments
shall run concurrently’. Sentencing should, ideally be left in the hands of the court and the effect of this judgment is that
courts trying offences for rape under the Penal Code 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.
At this stage, I feel it is apposite to make the following remarks. It is notorious that the incidence of rape has over the years
increased alarmingly in Botswana. Reports of incidents of rape often, sadly, involving young women and even infant children appear
regularly in the press and those whose business lies in the courts, including the members of this Bench, know from the number of
cases coming before them, of the prevalence of the offence. It has been said again and again that rape is a heinous offence. By its
very nature, it involves a measure of violence by the perpetrator on the victim. Sometimes that violence can be severe, resulting
in injuries to the victim. In some cases the injuries can be extensive. In all case, the offence is a violation of the personality
of the victim. It is an invasion of her dignity and of the sanctity of her body. The offence itself is inevitably traumatic to the
victim and can have drastic resultant consequences often giving rise to psychotic changes in the victim such as depression, loss
of confidence and withdrawal from society. The effects can be even more disastrous for, with the prevalence of HIV and AIDS, victims
can be infected with these life-threatening diseases or other sexually transmitted ones.
The public of Botswana cannot but be disturbed by the prevalence of rape and other crimes of a sexual nature, all of which offend
against the morality of the society of this country. Indeed, they clearly have been and continue to be. The public has democratically
elected its representatives to the legislature. The legislature is the repository of the knowledge of what is occurring in the country
it governs. As this Court said in Moatshe (at 9E-F):
“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 result 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.”
There is no doubt that it was because of the prevalence of rape cases and the increase in the number of those offences that the legislature
in 1998 enacted the amendments to the Penal Code which then put on the Statute Book the mandatory minimum sentence provisions contained
in Section 142. They are severe but they were obviously designed to attempt to curb the increasing prevalence of the offences and
in particular, to deter those suffering from the HIV virus from doing so. It is the duty of the courts to see that the purpose of
the legislature is implemented. It is appropriate to refer again, as the Court did in Moatshe, to what was said by Lord Bingham in the Privy Council in Patrick Reyes v. The Queen (2002) AC 235 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 of 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 courts which, in relation to enacted law, is to interpret and apply it.”
The Courts must, therefore, not shrink from imposing the prescribed sentences. As was pointed out in Moatshe the Penal Code in Section 292(1) envisaged a maximum sentence of 20 years for robbery. That sentence has never occasioned any disapproval
from the general public of Botswana, nor have any of the mandatory minimum sentences for motor vehicle or stock theft received any
public disapproval. Moreover, the courts of Botswana have over years imposed harsh sentences on violent offenders where such sentences
have been warranted. It is those norms to which this Court can have regard in objectively exercising its value judgment in deciding
whether or not to apply the provisions of Section 300(2) of the Criminal Procedure and Evidence Act.
There may, of course, be instances where even the prescribed minimum sentences may, because of the particular circumstances of the
case, be regarded as disproportionately harsh or require that they not be imposed. For such a situation the remedy lies in the terms
of Section 27(4) of the Penal Code which provide that notwithstanding the mandatory minimum sentence for an offence, the court may,
where there are exceptional extenuating circumstances rendering the imposition of such sentence totally inappropriate, impose a lesser
and appropriate penalty.
To invoke the provisions of Section 27(4), however, the court will need to find “exceptional extenuating circumstances” and that the mandatory minimum sentence is “totally” inappropriate (my emphasis).
With the above considerations in mind, I turn to the sentences imposed on the present Appellant.
The Appellant was charged in the Palapye Magistrate Court on two counts of rape. He was convicted on both. On the first, he was found
guilty of raping, on the night of 27 November 1999, the complainant, Thatayaone Banda (hereafter referred to as “Banda”).
The facts were that while at a liquor restaurant with a female companion, the Appellant approached them and told Banda he wanted
to have sexual intercourse with her and threatened to assault her with a bottle he had in his hand if she refused. Appellant left
them for a short while but returned and repeated his demand. Banda ran away and sought protection behind a male friend, one Gumbo.
The Appellant threatened Gumbo that he would beat him up. He then broke the bottle and placing the broken end of the bottle against
her neck, he pulled Banda into a bush where he forcibly had intercourse with her. He then pulled her to his place of abode where,
after assaulting her because she refused to co-operate with him, he again had intercourse with her. He did so again in the early
hours of the morning, whereafter he fell asleep, allowing Banda to escape. She immediately reported the incident to the police. On
the second count, the events took place on the night of 22 January 2000 when the Appellant forcibly pulled the same complainant,
Banda, out of a house of a friend she was visiting, after assaulting her with his fists and causing her to hit her head against the
door. Once outside the house, he asked her why she had reported him to the police regarding the first incident. He told her he would
kill her and later kill himself. He dragged her away telling her he was taking her to a place where he would kill her. They went
past a tree to which she clung but he kicked her and she let go of it. He then dragged her to a place where he forcibly had sexual
intercourse with her, assaulting her and threatening to kill her before doing so. The Appellant then again asked her why she had
reported him. He removed his belt and tied Banda to a tree with it. He, however, untied her and again had forcible intercourse with
her. He thereafter led her to a shelter where he fell asleep and she was able to run away and report the matter to the police.
Banda sustained injuries to her face and neck. The doctor who examined her found bruises on her forehead and below the left eye. Banda
was also found to be 8 to 10 weeks pregnant. This was probably as a result of the first incident with the Appellant.
The Appellant’s convictions and his sentences of 10 years on each count were confirmed, in an appeal to the High Court, by Masuku,
J. who, however, declined to accede to a request by the State to increase the sentence on the second count to one of 15 years imprisonment
in terms of Section 142(2) of the Penal Code, the rape, it was submitted, being attended by violence resulting in injury. Because
of the provisions of Section 142(5) the sentences were ordered to run consecutively.
As a result of this judgment, the Court is at large to consider whether the two sentences or any part of them should be ordered to
run concurrently. Mr. Sikhakhane, who at the request of the Court, appeared pro deo for the Appellant, submitted that the cumulative effect of the two sentences running consecutively i.e. 20 years imprisonment was
excessive to the extent that it rendered the sentence inhuman and in violation of the Appellant’s constitutional rights.
In the considerations set out above to which the Court can have regard in arriving at its value judgment as to whether a sentence
can be stigmatized as a constitutional violation, the Court stressed that not every excessive sentence can be so stigmatized. It
is only where the sentence is so unfit, having regard to the offence and the offender, as to be grossly disproportionate to the severity
of the offence.
While it is true that the Appellant is a young man – he was 22 at the time of his trial in 2002 – and was a first offender,
these factors are counterbalanced by the serious nature of both offences. In each instance, the Appellant brutally raped the complainant,
assaulting her in the process and satisfying his lust on each occasion not once but several times. On each occasion, too, the complainant
was, as a result, traumatized and humiliated and will now have to live with the stigma she has suffered, particularly as she was
probably impregnated as a consequence of the Appellant’s sexual assault on her. The record shows that as a result, she had
to withdraw from school, where she was a student, in order to tend to early motherhood, causing a serious disruption in her life.
The second offence, also committed with great brutality and with threats to the complainant’s life was, apart from anything
else, to punish her for having reported the Appellant to the police for his first attack upon her.
Women in this country have the right to the sanctity of their bodies and to be able to move and go about their activities in safety,
free from the fear of attacks upon them. Those rights require the protection of the law. Contemporary norms in Botswana thus require
a strong and clear message that the courts will ensure that such protection is afforded by the sentences on those who violate women’s
rights.
Bearing these factors in mind, I am of the view that although a total sentence of 20 years is undoubtedly severe, it is not grossly
disproportionate to the enormity of the offences in this case and that no good reason exists as to why the two sentences or any part
of them should be allowed to run concurrently.
In the result the appeal fails and is dismissed.
The following order is made:
1.
Section 142(5) of the Penal Code is declared unconstitutional as being in conflict with Section 7(1) of the Constitution of Botswana
and is struck down.
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