STATE V RODNEY MASOKO

On the death penalty being inhuman and degrading punishment

contrary to section 3 (a) and 7 (1) of the Constitution;

The authorities below indicate that the death penalty is not degrading
and inhuman when all things are considered among them being; the
crimes for which it is imposed on, the manner in which it is
administered and the aim behind it (deterrence)

Common wealth authorities

1. Kenya
a. Republic v Dictson Mawangi and another (2011) the Kenyan
High Court held;
Our Constitution is the legal and legitimate expression or reflection
of our collective will or aspiration. And because it is the Supreme
law, it lays the framework and foundation for a democratic society.
The people of Kenya have stated in the Constitution the manner
their affairs to be governed by the Executive, Parliament and
Courts. They have full confidence in the legal system, which is
based on the will of the people. In that regard, every citizen has
equal protection in the eyes of the law. As a court we must
respect and comply with the provisions of the Constitution and
statutes as they reflect the will of the people. The will of the people
is generally manifested through legislations enacted by parliament.
Such legislation must be in conformity with the letter and spirit of
the Constitution. Largely the Constitution and statutes are a
reflection of our values and customs. If Kenyans preferred the
abolition of death penalty, nothing would have been much easier to
express that in the Constitution and in the Penal Code.

The abolitionist theory, is largely and overwhelming focused or

based on the rights of the living. Justice must address itself to the
dead and the living beings in the same manner. The focal or focus
point for the abolitionist is to promote human rights and respect
for the Rule of Law. Our laws as currently drafted and enacted
provide for the imposition of death penalty. Nothing more, nothing
less. It is our obligation as a court to implement and enforce the
law as it is and not according to the best practices in existence. In
any case who has said that death penalty is repugnant to our
sense of justice and morality. The debate about right to life is in my
view looking a serious issue broad eyes view. It is one sided and
 does not reflect the rights of the deceased and his family members.
We cannot afford to forget the painful and devastating side of the
victim. It is an imparted theory, which is likely to cause grave
injustice to many Kenyans who were deprived of their loved ones. It
is a miscarriage of justice to say our statutes or Constitution
prohibit the imposition of death sentence. It is true that death
sentence deprives one of his right to life, but it is done within the
boundaries of the law, therefore lawful.

It is also alleged that death penalty is a cruel and inhuman

punishment but what about the loss of life, as a result of the
unlawful act of the accused. In my view loss of someones life is
equal and amounts inhuman treatment. The person who is
responsible for the loss must pay for it in equal measure or
commensurate to the suffering of the victim or his family. There are
circumstances where the offence had been planned and executed
in a cruel and inhuman and degrading manner. There are
instances where a person commits mass murder and gross
violation of human rights and dignity. We must therefore impose
the correct and lawful sentence provided under our law.

b. Joseph Njuguna Mwaura & 2 others v Republic [2013] (Court of

Appeal decision)
At pages 10-11
We must now consider whether the death sentence as envisaged
under our law amounts to cruel and inhuman or unusual
punishment which is prohibited by the Constitution.
Blacks Law Dictionary (9th Edition) defines torture as the
infliction of intense pain to the body or mind to punish, to
extract a confession or information or to obtain sadistic
pleasure, and cruel and unusual punishment as punishment
that is torturous degrading, inhuman, grossly
disproportionate to the crime in question or otherwise
shocking to the moral sense of the community. Inhuman
treatment is defined as physical or mental cruelty that is so
severe that it endangers life or health.
Based on these definitions cruel, inhuman and degrading
punishment is that which is done for sadistic pleasure, in order to
cause extreme physical or mental pain, and that is
disproportionate to the crime, so that it causes moral outrage
within the community.
We do not think that the death sentence falls within these
definitions. The death sentence is not done for the sadistic pleasure
 of others. It cannot also be said to be shocking to the moral sense
of the community due to the fact, as we have stated above, that it
has now been endorsed by the people of Kenya through the
referendum, and by the fact that it continues to exist in our statute
books with constitutional underpinning.
We also do not consider that the deprivation of life as a
consequence of unlawful behaviour is grossly disproportionate. In
Kenya, death is a penalty for what can be considered as the most
serious of crimes. It is a proportionate punishment for the offences
committed, which in many cases result in the loss of life, and the
loss of dignity for the victims. For example, in the present appeal,
the victims of the crimes were roused from their sleep in the middle
of the night, and faced with the threat of harm, and even death if
they did not comply with the demands of the intruders. This was a
violation of their right to dignity, and from all accounts, was a cruel
act.
Among the purposes of punishment are retribution, so that equal
harm is done to the offender, and securing justice for the victims of
the crime. In addition, the punishment must serve as a deterrent,
and in this case, the punishment fits the crime.

2. Zimbabwe

a. Woods v Commissioner of Prisons and Another (78/01) 2003

Section 15(1) is a provision that embodies broad and idealistic
notions of dignity, humanity and decency. It guarantees that
punishment or institutionalised treatment of offenders be exercised
within the ambit of civilised standards. Punishment or treatment
incompatible with the evolving standards of decency that mark the
progress of a maturing society, or which involve the infliction of
unnecessary suffering, is repulsive.

Section 15(1) clearly prohibits certain forms of ill-

treatment. Conjwayos case supra makes it clear that it is not all forms of

maltreatment which are prohibited by s 15(1).

Article 3 of the European Convention provides that no-one shall be

subjected to torture or to inhuman or degrading treatment or punishment.

It contains notions similar to those used in s 15(1) of our Constitution.

In Ireland v UK 2 EHRR 25, the European Court of Human Rights

considered the meaning of Article 3. The majority held that Article 3

prohibited ill-treatment which had to attain a minimum level of severity,

that is to say, it had to cause intense physical and mental suffering.

JUDGE FITZMAURICE in a dissenting judgment said the ill-treatment had

to be recognisably barbarous, savage, brutal or cruel, which is the

least that is necessary if the notion of the inhuman is to be attained. The

learned judge said at p 134:

For my part, I consider that the concept of inhuman treatment

should be confined to the kind of treatment that (taking some account
of the circumstances) no member of the human species ought to inflict
on another, or could so inflict without doing grave violence to the
human, as opposed to the animal, element in his or her make up. This
I believe is the sense in which the notion of inhuman treatment was
intended to be understood in Article 3 as something amounting to an
atrocity, or at least a barbarity. Hence it should not be employed as a
mere figure of speech to denote what is bad treatment, ill-treatment,
maltreatment, rather than properly speaking inhuman treatment.

On the meaning of degrading treatment the court in

the Ireland case supra accepted that the relevant notions were those of

humiliation and debasement. The majority held that that humiliation

and debasement had to be other than the general or usual element of

humiliation associated with imprisonment after a criminal conviction. In

other words, Woods should not have been humiliated simply by the

decision which went against his wishes. That would be a typical

consequence of any negative decision. Section 15(1) of our Constitution

clearly implies that there should be a distinction between the degrading

treatment it prohibits and general or usual treatment.

JUDGE FITZMAURICE at pp 134-135 of the Ireland case supra said

degrading treatment was:

intended to denote something seriously humiliating, lowering as to

human dignity, or disparaging, like having ones head shaved, being
tarred and feathered, smeared with filth, pelted with muck, paraded
naked in front of strangers.

3. Uganda

Attorney General v Susan Kigula& 417 Ors (CONSTITUTIONAL

APPEAL NO. 03 OF 2006)

With the above background and objectives in mind, the Assembly proceeded
to set out international standards to be achieved by all member states.
Article 3 states: Everyone has the right to life, liberty and security of
person.
Article 5 states: No one shall be subjected to torture or to cruel
inhuman or degrading treatment or punishment.
It may be noted that the right to life is provided for separately, and the
freedom from torture, cruel, inhuman or degrading punishment is also
treated separately. It cannot be argued therefore that by these provisions,
the Universal Declaration of Human Rights had thereby abolished the death
penalty in the world. Indeed this could not have been so, for even as the
Declaration was being proclaimed, death sentences passed by International
Tribunals were being carried out against war criminals in Germany and
Japan.
The next instrument is the International Covenant on Civil and Political
Rights which was adopted and opened for signature, ratification and
accession by the General Assembly on 16th December 1966, and came into
force on 23rd March, 1976.

Article 6(1) thereof states:- Every human being has the inherent right
to life. This right shall be protected by law. No one shall be
arbitrarily deprived of his life.

This article amplifies Article 2 of the Universal Declaration of Human Rights

(supra) by adding on that the right to life must be protected by law and may
not be arbitrarily taken away. In our view, the introduction of the word
arbitrarily is significant because it recognizes that under certain
acceptable circumstances a person may be lawfully deprived of his life. This
is further acknowledged in Article 6(2) which states:-
In countries which have not abolished the death
penalty, sentence of death may be imposed only for the
most serious crimes in accordance with the law in force
at the time of the commission of the crime and not
contrary to the provisions of the present covenant and to
the convention on the Prevention and Punishment of the
crime of Genocide. This penalty can only be carried out
pursuant to a trial judgment rendered by a competent
court.

This provision recognised the reality that there were still countries that had
not yet abolished capital punishment. It also seeks to set out safeguards
that should be followed in the imposition of death sentences. Article 6(4)
provides thus:-

Anyone sentenced to death shall have the right to seek

pardon or commutation of the sentence. Amnesty,
pardon or commutation of the death sentence may be
granted in all cases.
These safeguards are not to be construed as intended to delay or prevent the
abolition of capital punishment, but they have to be followed by those
countries which, for one reason or other peculiar to their circumstances,
have not yet abolished the death penalty.

.........

The United Nations having dealt with the need to abolish the death sentence
in the above protocol proceeded to deal with matters of torture, cruel or
inhuman punishment separately. Thus the United Nation General Assembly
on the December, 1975 adopted the DECLARATION ON THE PROTECTION
OF ALL PERSONS FROM BEING SUBJECTED toTORTURE AND OTHER
CRUEL,INHUMAN or DEGRADING
TREATMENT or PUNISHMENT. Subsequently on 10th December 1984, the
United Nation General Assembly adopted the CONVENTION AGAINST
TORTURE AND OTHER CRUEL, INHUMAN or DEGRADING TREATMENT
or PUNISHMENT. This Convention came into force on 26th June 1987.

This Convention offers a definition of what constitutes torture, which, in our

opinion, leaves no doubt that it does not apply to a lawful death sentence.
Article 1 thereof states:-
For the purpose of this Convention, the term torture
means any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on
a person for such purposes as obtaining from him or a
third person information or a confession, punishing him
for an act he or a third person has committed or is
suspected of having committed, or intimidating or
coercing him or a third person, or for any reason based
on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with
the consent or acquiescence of a public official or other
person acting in an official capacity. It does not include
pain or suffering arising only from, inherent in or
incidental to lawful sanctions. ( emphasis added).
The General Assembly on 1st December 2002, adopted the OPTIONAL
PROTOCOL to the Convention Against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment, whose objective is to establish a
system of regular visits undertaken by independent international and
national bodies to places where people are deprived of their liberty in
order to prevent torture and other cruel, inhuman or degrading
treatment or punishment.

There are other International Instruments containing similar provisions on

the right to life and on freedom from torture, cruel, inhuman on degrading
treatment or punishment. The African Charter On Human and Peoples
Rights of 1981 in article 4 provides:-
Human beings are inviolable. Every human being shall
be entitled to respect for his life and the integrity of his
person. No one may be arbitrarily deprived of this
right. (emphasis added).
In this charter, again the freedom from cruel, inhuman or degrading
treatment is treated separately. Once again, one must note the use of the
word arbiturily.

It may further be stated pointed out that the United Nations Economic and
Social Council on 25th May 1984 adopted a Resolution containing the
safeguards guaranteeing protection of the rights of those facing the death
penalty. Again some of the provisions of the resolution are instructive.
Paragraph 1 states as follows: In countries which have not abolished
the death penalty, capital punishment may be imposed only for the
most serious crime; it being understood that their scope should not be
beyond intentional crimes with lethal or other extremely grave
consequences. Paragraphs 4, 5, 6, 7, 8, 9, and so thereof are as follows:-

5. Capital Punishment may be imposed only when the

guilt of the person charged is based upon clear and
convincing evidence leaving no room for an alternative
explanation of the facts.
 6. Capital punishment may only be carried out
pursuant to a final judgment rendered by a competent court
after legal process which gives all possible safeguards to
ensure a fair trial,.

7. Anyone sentenced to death shall have the right to

appeal to a court of higher jurisdiction, and steps should be
taken to ensure that such appeals shall become
mandatory.

8. Anyone sentenced to death shall have the right to

seek pardon, or commutation of sentence; pardon or
commutation of sentence may be granted in all cases of
capital punishment.

9. Capital punishment shall not be carried out pending

any appeal or other recourse procedure or other
proceedings relating to pardon or commutation of the
sentence.

10. where capital punishment occurs, it shall be carried

out so as to inflict the minimum possible suffering.

The above instruments are some of those that lay out the framework
governing the imposition of capital punishment. States are urged to strive
to achieve the goal of the abolition of capital punishment by guaranteeing an
unqualified right to life. But it is also recognised that for various reasons
some countries still consider it desirable to have capital punishment on
their statute books. The retention of capital punishment by itself is not
illegal or unlawful or a violation of international law. It is in that context
that we now proceed to discuss the constitutional provisions regarding
capital punishment in Uganda.

..........

. In our view, the framers of the Constitution did not regard the death
penalty as qualifying for the classification of cruel, unusual, inhuman or
degrading treatment or punishment for purposes of the Constitution, as
long as it was passed by a competent court, in a fair trial and confirmed by
the highest court as provided for in article 22(1). PAUL SIEGHART in his
article published in THE INTERMATIONAL LAW OF HUMAN RIGHTS
(1983) P.130, and cited by the Court of Appeal in the Tanzanian case
ofMBUSHUU& ANOTHER Vs- REPUBLIC (1995) 1 LRC at page 232, seems
to support the view that provisions about torture, cruel or inhuman
punishment are intended to apply to the process of living. He writes as
follows:-
As human rights can only attach to living human
beings, one might expect the right to life itself to be in
some sense primary, since none of the other rights would
have any value or utility without it. But the
international instruments do not in fact accord it any
formal primacy: on the contrary .contain
qualifications rendering the right less than absolute, and
allowing human life to be deliberately terminated in
certain specific cases.The right to life thus
stands in marked contrast to some of the other rights
protected by the same instruments; for example, the
freedom from torture and other ill-treatment .and
the freedom from slavery and servitude .are both
absolute, and subject to no exception of any kind. It may
therefore be said that international human rights law
assigns a higher value to the quality of living as a
process, than to the existence of life as a state
..the law tends to regard acute or prolonged
suffering (at all events in cases where it is inflicted by
others, and so it is potentially avoidable) as a greater
evil than death, which is ultimately unavoidable for
everyone. (emphasis added)

The phrase cruel, unusual, inhuman or degrading punishment has its

history in the English Bill of Rights of 1688. According to DEATH PENALTY
CASES, Second Edition, page 2, the English Bill was a response to the
cruelty of King James II. In a revolt against him which he savagely
suppressed, hundreds of captured rebels were taken before special courts
(the Bloody Assizes) convicted and then brutally executed by such
methods as hanging, being cut down before death, being disembowelled,
beheaded, or being hacked to pieces. It is also said that even in Europe at
that time there was use of the rack, drawing and quartering and
burning alive. The authors continue;
When the United States Constitution was adopted in
1789, some of these barbaric punishment still were used
abroad, and the framers of the Constitution apparently
were determined to prohibit their imposition in America.
However, branding, whipping, and the cropping of ears
were commonly used in the United States before and
after the adoption of the Eighth Amendment, until, by
1850, they were virtually abolished by the state
legislatures.

It is clear that the Cruel and Unusual Punishments

clause was NOT intended to abolish capital punishment.
Some proof of this is provided by other language in the
Constitution; the Fifth Amendment in particular implies
that the death penalty was Constitutionally acceptable.
It was intended (in part) to forbid the infliction of more
pain than was necessary to extinguish life. Therefore,
the focus of the few death penalty cases before the
Supreme Court in the 19th Century was not whether a
death sentence could be imposed, but how it was to be
carried out.

The Supreme Court of the United States has interpreted the 8th Amendment
and struck down sentences found to beexcessive in the circumstances of
a particular case. In TR0P Vs- DULLES, 356 U.S 86, (1958) the majority
were of the opinion that the 8th Amendment must draw its meaning
from the evolving standards of decency that mark the progress of a
maturing society,, and therefore held that it was cruel and unusual
punishment to take away the citizenship of a wartime deserter. This was
not even a death penalty case. The problem has been how to determine and
measure what is to becontemporary standards of decency.

The Supreme Court considered the 8th Amendment in the case of FURMAN -
Vs- GEORGIA, 408U.S. 238 (1972) which has also been cited in this court
by counsel for respondents. For the first time, the U.S Supreme Court, by
majority, declared that the death penalty was a cruel and unusual
punishment. However, barely four years later, the same court, again by
majority in GREGG Vs- GEORGIA, 428 U.S. 153 (1976) rejected the
decision in FURMAN that the death penalty is per se cruel and unusual and
went on to uphold a Georgian law that permitted capital punishment but
provided for certain trial procedures and appeals designed to prevent the
penalty being imposed arbitrarily. In his opinion which was joined in by
Justice Powell and Stevens, Justice Stewart stated thus:
We address initially the basic contention that the
punishment of death for the crime of murder is, under all
circumstances, cruel and unusual in violation of the
Eighth and Fourteenth Amendment of the
Constitution.. The Petitioners in the capital cases
before the court today renew the standards of decency
argument, but developments during the four years since
FURMAN have under cut substantially the assumptions
upon which their argument rested. Despite the
continuing debate, dating back to the 19thCentury, over
the morality and utility of capital punishment, it is now
evident that a larger proportion of American society
continues to regard it as an appropriate and necessary
criminal sanction.

The most marked indication of societys endorsement of

the death penalty for murder is the legislative response
to FURMAN. The legislatures of at least 35 states have
enacted new statutes that provide for the death penalty
for at least some crimes that result in the death of
another person. And the congress of the United States,
in 1974, enacted a statute providing the death penalty
 for aircraft piracy that results in death. These recently
adopted statutes have attempted to address the concerns
expressed by the court in FURMAN primarily:
(i) by specifying the factors to be followed in deciding
when to impose a capital sentence, or
(ii) by making the death penalty mandatory for
specified crimes. But all of the post FURMAN
statutes make clear that capital punishment itself
has not been rejected by the elected representatives
of the people.
The above cases illustrate the debate that has raged, and continues to
rage, in the United States regarding aspects of the death sentence, and
what constitutes evolving standards of decency. We cannot say that
those states in the United States of America, or indeed anywhere else in
the world who retain the death penalty, have not evolved standards of
decency. Each situation must be examined on its own merits and in its
context.

In Uganda, we have already alluded to the concerns of the framers of the

Constitution at the time when these provisions were enacted. Although
counsel for the respondents has sought to rely on the omission of the
equivalent of article 12(2) of the 1967 Constitution from the 1995
Constitution, he did not advert to the fact that the preamble to the 1967
Constitution did not include the equivalent of the following recital in the
1995 Constitution:
RECALLING our history which has been
characterised by political and Constitutional
instability;
RECOGNISING our struggles against the forces of
tyranny, oppression and exploitation.

Secondly, the Court cannot fail to recollect that the debate and passing of
the 1995 Constitution was proceeded by two important Commissions of
inquiry. The first was the Commission of inquiry into the violations of
Human Rights in Uganda, headed by Oder, JSC, (RIP). The second was the
Constitutional Review Commission headed by Odoki JSC, (as he then
was)(supra).

The first Commission established that there had been gross violation of
human rights including numerous extra-judicial killings, or many cases
where people simply disappeared. Indeed, even during the rule of Idi Amin,
there was a Judicial Commission set up to look into missing persons. Its
report listed many people as missing, presumed dead. The Oder
Commission reported numerous instances of torture , where people were
burned with molten plastic materials, shocked with electricity, buried alive,
hacked to death, put in boots of cars etc. This Commission made certain
recommendations some of which were later to be considered by the Odoki
Commission and included in the draft Constitution that was presented to
the Constituent Assembly in 1993.

Therefore in debating it, the framers of the Constitution had in mind the
recent history of Uganda, characterised by gross abuses of human rights.
This explains the promulgation of the Constitution with a full Bill of Rights
but including clear exceptions where those were found necessary, and
modelled on International Instruments.

Article 22(1) is clearly meant to deal with and do away with extra judicial
killings by the state. The article recognises the sanctity of human life but
recognises also that under certain circumstances acceptable in the country,
that right might be taken away. The framers also were aware that the
Constitutional Commission had specifically sought and analysed views from
the public in Uganda about the retention of the death penalty.

The framers of the Constitution were also aware of the numerous instances
of torture and other cruel punishments that had characterised our recent
history. They seem to have come out on these two aspects of out history
and dealt with them by providing that life is sacrosanct and may only be
taken away after due process up to the highest court, and after the
President has had opportunity to exercise the prerogative of mercy. On the
other hand,, there must not be torture or cruel, inhuman or degrading
punishment under any circumstances.

In our view there is no conflict between article 22(1) and 44(a). Article

44(a) was not meant to apply to article 22(1) as long as the sentence of

death was passed by a competent court after a fair trial and it had

been confirmed by the highest appellate Court. Such a sentence

could not be torture, cruel or degrading punishment in the context of

Article 24. Had the framers intended to provide for the non-derogable

right to life, they would have so provided expressly. But in light of the

history and background they had at the time, it is clear to us that the

effect and purpose of the two provisions was to treat the right to life

with qualification but with the necessary safeguards, while totally

outlawing all other forms of torture, cruel and degrading punishments

as had been found to have taken place in Uganda.

........

We wish to add that the right to life is so important that the abolition of the
death penalty requires specific progressive measures by the State to
eventually expressly effect such abolition. This has been done by many
countries all over the world who have specifically provided for no death
penalty in their Constitutions, or who have acceded to the Optional Protocol
on the Abolition of the Death Penalty. Some Constitutions have not
qualified the right to life and it has been easy for the courts to rule that the
death sentence is unconstitutional as happened in South Africa with
the MAKWANYANE case (supra) upon which the respondents have put so
much reliance.

In our view, the Makwanyane case, so well and ably reasoned, is a good
authority for the abolition of the death sentence in its entirety, where the
Constitution itself has not dealt with it. Indeed, CHASKALSON P, in his
comprehensive judgment, after reviewing the background to the
promulgation of the South African Constitution, stated as follows at page
289.
The death sentence was, in terms, neither sanctioned or
excluded, and it was left to the Constitutional Court to
decide whether the provisions of the pre-Constitutional
law making the death penalty a competent sentence for
murder and other crimes are consistent with chap.3 of
the Constitution. If they are, the death sentence remains
a competent sentence for murder in cases in which those
provisions are applicable, unless and until Parliament
otherwise decides; if they are not, it is our duty to say so,
and to declare such provisions to be unconstitutional.
Later, at page 309, the learned President further states with regard to the
right to life:
The unqualified right to life vested in every person by
section 9 of our Constitution is another factor crucially
relevant to the question whether the death sentence is
cruel, inhuman or degrading punishment within the
meaning of Section 11(2) of our Constitution. In this
respect our Constitution differs materially from the
Constitutions of the United States and India. It also
differs materially from the European Convention and the
International Covenant. (emphasis added).

The distinguished Judge reviewed many cases, and indeed found that some
judges in those jurisdictions had argued for the unconstitunality of the
death penalty notwithstanding provisions permitting it, but he reaches his
conclusion in the context of the South African Constitution when he states:

I am satisfied that in the context of our constitution the

death penalty is indeed a cruel, inhuman and degrading
punishment,
SACHS, J, in his concurring judgment also agrees that Section 9 of the
South African Constitution guarantees an unqualified right to life. He
states, at page 389:-
This Court is unlikely to get another case which is
emotionally and philosophically more elusive, and
textually more direct. Section 9 states: every person
shall have the right to life. These unqualified and
unadorned words are binding on the state and, on
the face of it, outlaw capital punishment. Section 33
does allow limitations on fundamental rights; yet, in my
view, executing someone is not limiting that persons life,
but extinguishing it. (emphasis added).

It appears to us clear enough that the situation and the Constitution in

South Africa are materially different from those obtaining in Uganda. The
Constitution of Uganda does not include the right to life under the general
provision dealing with derogation under article 43 and 44 of the
Constitution. In Tanzania, the Court of Appeal in the MBUSHUU (supra)
saved the death penalty under the general provisions on derogation from
fundamental Human Rights. But in Uganda the Constitution specifically
provides for it under a substantive article of the Constitution, i.e. article
22(1). The subject of the death penalty was not left for the Constitutional
Court to fill in gaps as in the case of South Africa. The Courts cannot now
take on the role of the Legislature to abrogate a substantive provision of the
Constitution by a process of interpreting one provision against another. In
our view, this is the work of the Legislature who should indeed further study
the issue of the death penalty with a view to introducing appropriate
amendments to the Constitution.

American Authorities
The Locus Classicus here is Gregg v Georgia

Retribution and the possibility of deterrence of capital crimes by

prospective offenders are not impermissible considerations for a
legislature to weigh in determining whether the death penalty should be
imposed, and it cannot be said that Georgia's legislative judgment that
such a penalty is necessary in some cases is clearly wrongWe address
initially the basic contention that the punishment of death for the crime
of murder is, under all circumstances, "cruel and unusual" in violation of
the Eighth and Fourteenth Amendments of the Constitution. In Part IV
of this opinion, we will consider the sentence of death imposed under the
Georgia statutes at issue in this case.

"Courts are not representative bodies. They are not designed to be a good
reflex of a democratic society. Their judgment is best informed, and
therefore most dependable, within narrow limits. Their essential quality
is detachment, founded on independence. History teaches that the
independence of the judiciary is jeopardized when courts become
embroiled in the passions of the day and assume primary responsibility
in choosing between competing political, economic and social
pressures." Dennis v. United States, 341 U.S. 494, 525 (1951)
(Frankfurter, J., concurring in affirmance of judgment). 20
Therefore, in assessing a punishment selected by a democratically
elected legislature against the constitutional measure, we presume its
validity. We may not require the legislature to select the least severe
penalty possible so long as the penalty selected is not cruelly inhumane
or disproportionate to the crime involved. And a heavy burden rests on
those who would attack the judgment of the representatives of the
people.
This is true in part because the constitutional test is intertwined with an
assessment of contemporary standards and the legislative judgment
weighs heavily in ascertaining such standards. "[I]n a democratic society
legislatures, not courts, are constituted to respond to the will and
consequently the moral values of the people."A decision that a given
punishment is impermissible under the Eighth Amendment cannot be
reversed short of a constitutional amendment.The death penalty is said
to serve two principal social purposes: retribution and deterrence of
capital crimes by prospective offenders. 28

In part, capital punishment is an expression of society's moral outrage at

particularly offensive conduct. 29 This function may be unappealing to
many, but it is essential in an ordered society that asks its citizens to rely
on legal processes rather than self-help to vindicate their wrongs.

"The instinct for retribution is part of the nature of man, and channeling
that instinct in the administration of criminal justice serves an important
purpose in promoting the stability of a society governed by law. When
people begin to believe that organized society is unwilling or unable to
impose upon criminal offenders the punishment they `deserve,' then
there are sown the seeds of anarchy - of self-help, vigilante justice, and
lynch law." Furman v. Georgia, supra, at 308 (STEWART, J.,
concurring).
"Retribution is no longer the dominant objective of the criminal law,"
Williams v. New York, 337 U.S. 241, 248 (1949), but neither is it a
forbidden objective nor one inconsistent with our respect for the dignity
of men. [428 U.S. 153, 184] Furman v. Georgia, 408 U.S., at 394 -395
(BURGER, C. J., dissenting); id., at 452-454 (POWELL, J., dissenting);
Powell v. Texas, 392 U.S., at 531 535-536 (plurality opinion). Indeed, the
decision that capital punishment may be the appropriate sanction in
extreme cases is an expression of the community's belief that certain
crimes are themselves so grievous an affront to humanity that the only
adequate response may be the penalty of death. 30
Finally, we must consider whether the punishment of death is
disproportionate in relation to the crime for which it is imposed. There is
no question that death as a punishment is unique in its severity and
irrevocability. Furman v. Georgia, 408 U.S., at 286 -291 (BRENNAN, J.,
concurring); id., at 306 (STEWART. J., concurring). When a defendant's
life is at stake, the Court has been particularly sensitive to insure that
every safeguard is observed. Powell v. Alabama, 287 U.S. 45, 71 (1932);
Reid v. Covert,354 U.S. 1, 77 (1957) (Harlan, J., concurring in result). But
we are concerned here only with the imposition of capital punishment
for the crime of murder, and when a life has been taken deliberately by
the offender, 35 we cannot say that the punishment is invariably
disproportionate to the crime. It is an extreme sanction, suitable to the
most extreme of crimes.

We hold that the death penalty is not a form of punishment that may
never be imposed, regardless of the circumstances of the offense,
regardless of the character of the offender, and regardless of the
procedure followed in reaching the decision to impose it.

2. On the right to remain silent s10(7)

Motswagole J held that the law is not clear as to who bears the onus of
adducing extenuating circumstances to court and further that in the event
that the accused person would be required to show extenuating
circumstances this would be an infringement of his right to remain silent
per s10 (7) of the constitution.
The authorities cited below indicate that;
a. Extenuating circumstances can be brought to light during the trial
b. It is open to court to invite the state and the defence to bring
extenuating circumstances to its attention
c. I also think that it is open to the accused person to bring extenuating
circumstances before court without violating his right to silence; if
extenuating circumstances can come to the attention of the court
during trial then the accused can use witnesses to do this.

State v Tadubane

In the case of Phiri v The State (supra) Grosskopf JA at p 241G also reaffirmed the position stated in
Mosarwana v The State [1985] B.L.R. 258, CA applying the approach laid out in R v Fundakubi and
Others 1948 (3) SA 810 (A) at p 818 that:

'... in considering the question of extenuating circumstances ... the subjective side is of
very great importance and that no factor not too remotely or too faintly or indirectly related to
the commission of the crime, which bears upon the accused's moral blameworthiness in
committing it can be ruled out from consideration.'

......

In the inquiry as to whether or not extenuating circumstances exist, the court must bear in mind that
no onus lies upon the accused to prove or establish the existence of extenuating circumstances or on
the State to negative their existence. See Kelaletswe and Others v The State [1995] B.L.R. 100, CA;
Mokholo v The State [1996] B.L.R. 646, CA. Any finding of extenuating circumstances must be
based on a factual foundation. See Fly v The State [2010] 1 B.L.R. 57, CA. No such finding is to be
based on mere conjecture or speculation.

In this inquiry, the court must also bear in mind what was stated by Corbett JA in S v McBride 1988
(4) SA 10 (A) at p 21 that:

'... it is not the practice to ignore the nature of the crime or the manner of its commission
where these facts are relevant to the determination of extenuating circumstances'.

Having regard to the above principles and formulations and that, in deciding whether or not
extenuating circumstances exist, the test is an objective one which involves the ascertainment, inter
alia, of the

subjective state of the mind of the accused at the time of the commission of the offence. (See S v
Masina and Others 1990 (4) SA 709 (A)). I now turn to the facts of the present case.
 Mokholo v The State

"(3) When all the evidence is in, the court is obliged to evaluate the testimony and
submissions before it, 'consider and E weigh all the features of the case - both extenuating
and aggravating' - see Lekolwane v. The State supra at p. 249. This would include evidence
tendered during the principal hearing and that tendered during the second phase enquiry. It
will then make its 'value or moral judgment' - (see Lekolwane supra) - as to whether
extenuating F circumstances exist or not. Should it be in doubt as to whether such
circumstances exist or not and such doubt is reasonable and not the doubt of a weak or
'vacillating mind', it should in my view give the benefit of such doubt to the accused."
.........

There can be no doubt that it was a brutal and persistent assault which appellant perpetrated
on the deceased. Whatever may have happened between them in no way justified his violent
conduct. However, in assessing the F degree of his moral blame-worthiness, we have to
have regard also to any relevant subjective features that could have had a bearing on his
conduct.
Schreiner J.A. puts it best in the well known passage in his judgment in Rex v. Fundakubi
1948 (3) S.A. 810 (A) at p. 818 when he says: G
"But it is at least clear that the subjective side is of very great importance, and that no factor,
not too remote or too faintly or indirectly related to the commission of the crime which bears
upon the accused's moral blame-worthiness in committing it can be ruled out from
consideration."

Fly v The State

The Penal Code itself does not define the expression 'extenuating circumstances'.
However, a number of decided cases have adumbrated what circumstances will
constitute extenuating circumstances. The key indicator is not the appellant's legal
guilt for the crime; rather what was his moral blameworthiness for the offence? In
the South African case of S v Letsolo 1970 C (3) SA 476 (A) at p 476G Holmes J
defined 'extenuating circumstances' thus:

'... any facts bearing on the commission of the crime, which reduce
the moral blameworthiness of the accused, as distinct from his legal
culpability'.

The trial court has to consider: D

(a) whether there are any facts which might be relevant to

extenuating, such as for example immaturity, intoxication or provocation.
Low education coupled with a rustic background may do.

(b) whether such facts in their cumulative effect probably had a

bearing on the accused's state of mind in doing what he did. E
Essentially, the trial court exercises a moral judgment which makes this standard
extremely fluid. The countervailing consideration is that the trial court must not
only consider the extenuating circumstances but it must also consider the
aggravating features in the commission of the crime. It is the net effect of F these
separate factors that will determine whether the accused gets the benefit of s 203 of
the Penal Code or not.

The learned trial judge was alive to his responsibilities in determining the presence
or otherwise of extenuating circumstances. He reviewed the authorities decided
within this jurisdiction and elsewhere and distilled the guiding principles
mentioned above.

Next, he invited both counsel to assist him in the enquiry. The defence said
they G would not lead additional evidence. They would rather rely on
evidence already on record. That was probably ill-advised since in deciding
the guilt of the accused the learned trial judge had fairly examined the
evidence and concluded that the appellant was a poor liar. In other words,
the appellant's evidence on record was tainted as falsehoods. How could he
choose to rely on that same H tainted false evidence?

Kelaletswe and others v The State

" an extenuating circumstance is a fact associated with the crime which serves in the minds of
reasonable men to diminish, morally albeit not legally, the degree of a prisoner's guilt."
An often quoted observation in this regard is that of Holmes J.A. in S. v. Letsolo 1970 (3)
S.A. 476 (A) where the learned judge says:
"Extenuating circumstances have more than once been defined by this Court as any facts,
bearing on the commission of the crime, which reduce the moral blameworthiness of the
accused, as distinct from his legal culpability.

........

This procedure ought to be followed in all cases of murder where the question arises as to
whether the death sentence ought to be imposed or not. In some cases extenuating
circumstances may become apparent in the course of the trial. In all others where there is a
verdict of guilty to murder, the accused should be permitted to lead evidence and to address
the court in extenuation or merely if he so desires, to address the court in extenuation.
I thought it desirable to set out fully the proper procedure to be adopted by the trial court
because in the present case, just as in Mosarwana v. The State (reported at p. 258, ante) the
learned judge has fallen into the same error as he did in that case. In considering the question
as to whether there are or are no extenuating circumstances he took into account a serious
previous conviction of the appellant. This he can only do, as pointed out in Mosarwana supra,
after a finding that extenuating circumstances exist, in determining what is an appropriate
punishment.
This then is a case where, because of a misdirection by the trial judge, this court is at large to
consider the question of sentence afresh. The proper approach to the question as to whether
there are extenuating circumstances is set out in the oft cited decisions in R v. Fundakubi
1948 (3) S.A. 810 (A.D.) and S. v. Letsolo 1970 (3) S.A. 476 (A.D.) which have been
unquestionably followed in the courts of Botswana."
In the present case the learned Chief Justice referred to this decision and followed the
procedure laid down by this court. Counsel for the appellants indeed did lead evidence in
mitigation of sentence in respect of those counts, other than the charge of murder. He led no
evidence on the issue of the presence of extenuating circumstances. The court was then
addressed by both counsel and in a reasoned judgment the sentences as set out in this
judgment were then passed.
At this point it would be appropriate for us to comment upon the question of the onus of
proof. During the course of the argument before us we asked counsel for the State whether
there was an onus on either party to prove the existence or absence of extenuating
circumstances and on whom such onus rests. He was of the view that the provisions of the
section did not cater for the invocation of an onus. In a similar matter, in which another
counsel for the State appeared, we were urged to hold that there was an onus resting on an
accused to prove the existence of extenuating circumstances.
The latter view accords with the approach of the South African courts after the concept of
extenuating circumstances was first introduced by statute in South Africa in 1935. See R. v.
Lembete 1947 (2) S.A. 603 (A).

On discrimination per s 15 (1) of the Constitution

Motswagole J held that in so far as a distinction is made between one

convicted of murder and another of murder with extenuating
circumstances then S203 IS CONTRARY TO s15 of the Constitution. On
the basis of the test for discrimination below the discrimination is not
unfair.

In determining whether there is discrimination the South African

Constitutional court has deviced a test. This test was cited with approval in
the case of Edith Mmusi at para 156;

Harksen v Lane NO and Others (CCT9/97) [1997] ZACC 12; 1997 (11)
BCLR 1489; 1998 (1) SA 300 (7 October 1997)

At para 52 At the cost of repetition, it may be as well to tabulate the stages of

enquiry which become necessary where an attack is made on a provision in reliance
on section 8 of the interim Constitution. They are:
(a) Does the provision differentiate between people or categories of
people? If so, does the differentiation bear a rational connection to a
legitimate government purpose? If it does not then there is a violation
of section 8(1). Even if it does bear a rational connection, it might
nevertheless amount to discrimination.

(b) Does the differentiation amount to unfair discrimination? This

requires a two stage analysis:

(b)(i) Firstly, does the differentiation amount to discrimination? If it

is on a specified ground, then discrimination will have been
established. If it is not on a specified ground, then whether or not
there is discrimination will depend upon whether, objectively, the
ground is based on attributes and characteristics which have the
potential to impair the fundamental human dignity of persons as
human beings or to affect them adversely in a comparably serious
manner.

(b)(ii) If the differentiation amounts to discrimination, does it

amount to unfair discrimination? If it has been found to have been
on a specified ground, then unfairness will be presumed. If on an
unspecified ground, unfairness will have to be established by the
complainant. The test of unfairness focuses primarily on the impact
of the discrimination on the complainant and others in his or her
situation.

If, at the end of this stage of the enquiry, the differentiation is found
not to be unfair, then there will be no violation of section 8(2).
(c) If the discrimination is found to be unfair then a determination will
have to be made as to whether the provision can be justified under the
limitations clause (section 33 of the interim Constitution).