14 Feb 2021

Death row inmate, Tonderai Kakamba breathed a sigh of relief on Wednesday when the Court of Appeal sitting in Gaborone set aside his death penalty. 

The appellant was consequently sentenced to 22 years imprisonment back dated to his day of imprisonment.  

A panel of three Judges namely; Monametsi Gaongalelwe, Zibani Makhwade and Tebogo Tau said the case record reflected that the arraignment of the appellant was on February 9, 2015 and that the finding of no extenuating circumstances were pronounced on June 28, 2019, but the sentence was delayed for a period of about one and a half years, only to be pronounced on November 5, 2020.

Delivering the Court of Appeal decision, Judge Gaongalelwe said it was unacceptable and improper to have a person convicted of a serious offence await sentencing for a long period. 

“Where in the end the sentence is that of death, such delay constitutes inhumane treatment since such a penalty cannot be ameliorated by making reference to the delay. On the totality of the evidence and the peculiar circumstances of the case, the order imposing a death penalty is hereby set aside,” said Justice Gaongalelwe.

Justice Gaongalelwe said the appellant was arraigned before the High Court on February 9, 2015 on an indictment containing three counts of murder, attempted murder and that of entering the country (Botswana) at an ungazetted point of entry.

He said the accused pleaded not guilty to the first two counts and guilty to that of entering the country at an ungazetted point. 

The Court of Appeal said a trial ensued, at the end of which he was found guilty in respect of the two accounts.

The Court of Appeal said the appeal related solely to the court’s finding that in relation to the offence of murder, there were no extenuating circumstances, hence imposing the death penalty. 

“The pith of this appeal is that the trial court erred in making a finding that there were no extenuating circumstances,” said Judge Gaongalelwe.  

He said evidence which was common cause consisted of the fact that the appellant was a Zimbabwean national who was making a living through debushing of ploughing fields and that he was aged 28 at the time of committing the offences, and only for the trial to be concluded six years later when he was aged 34. 

He said part of the evidence was that the appellant imbibed various blends of intoxicating alcohol.

The court said it was a serious misdirection for the court to say for purposes of extenuating circumstances the test was whether the offender was so intoxicated that he could not appreciate the consequences of his actions and as such the test applied the learned doubt was without doubt that it had great impact on its conclusions. “The proper test under the subject is whether alcohol consumed could have had an influence on the mind of the accused person at the time of committing the offence,” said Judge Gaongalelwe.

The court said another factor raised for the purpose of extenuating circumstances was the appellant’s rustic background.

“On the strength of the above analysis, I came to a conclusion that there were extenuating circumstances in this case. The finding of the trial court that there were no extenuating factors was arrived at on the basis of the misdirection pointed above. The finding is that there were extenuating circumstances. I accordingly set aside the order of the court a quo,” he said.

Considering if the sentence was appropriate, the Court of Appeal said one thing peculiar with the facts of the case was that a baby aged five months was killed and that the killing was effected in a brutal manner of cutting the baby’s throat with a knife.

Therefore the Court of Appeal said whatever possible misunderstandings or problems could have arisen between the appellant and the baby’s mother had absolutely nothing to do with the baby. Ends