23 May 2022

Judicial officers have received, with mixed feelings, the supremacy attached to custodial sentence as the most favourable form of punishment.

The observation surfaced recently during a two-day workshop organised by the University of Botswana in partnership with Cambridge University law department in collaboration with Botswana Chapter of the International Association of Women Judges, in Gaborone on Friday, where judicial officers gathered to explore sentencing law and practice in Botswana and alternatives to custody.

Judicial officers said despite the appalling conditions at prisons that result from overcrowding and limited facilities, sending offenders to prison still appeared to be the obvious option.

They also raised a concern that incarceration was the most preferred form of punishment though having proved not to yield the desired result of rehabilitating offenders and re-incorporating them into the society as law-abiding citizens.

Opening the debate on alternatives to imprisonment, Judge Gaolapelwe Ketlogetswe observed that all courts in Botswana were creations of statutes, and that their respective powers and jurisdiction in respect of sentences that they might impose were regulated by law.

In passing sentence, the court does not exercise discretionary powers, as the law relating to crime and punishment in Botswana was written and codified, he said, adding that the discussion was limited to non-custodial sentences.

Judge Ketlogetswe said Section 28 (4) of the Penal Code allows for corporal punishment over imprisonment for any offence except murder, rape, robbery and any offence for which a minimum sentence was by law imposed

“In this particular instance, a court is given a discretion to consider that option.

This section provides that a person convicted for an offence not punishable by death may, instead of any punishment he is liable to, be ordered to enter into his own recognizance, with or without sureties, on condition that he shall keep the peace and be of good behaviour for a time fixed by the court,” he said.

Further, Judge Ketlogetswe said in terms of section 31 (2) of the Penal Code the court may, instead of imposing punishment, order the discharge of the offender and order him to enter into his own recognizance, with or without sureties.

He said, “The two sections provide for identical sentencing options of a discharge of the offender on considerations of age, character, antecedents, health or mental condition, or to the trivial nature of the offence, or to the extenuating circumstances in which the offence was committed, where it would be inexpedient to inflict any punishment, the court may, instead of convicting, make an order dismissing the charge.”

Judge Ketlogetswe also observed that although the above provisions of the Penal Code deal with the alternatives to imprisonment they had been rarely applied.

Anger should be kept down in punishing, he added.

Judge Ketlogetswe  noted that it was unfortunate that the country’s laws were more focused on passing stringent punishments that were causing more harm than the primary intention of rehabilitating offenders.

Presiding officers, he said, must prior to deciding on the fate of another mortal, make serious judicious discretions that promote non-incarceration, noting that they had been given powers by the law to lessen custodial sentencing.

“Consider if there is anything to apply other than prison sentence.

Judicial officers must not rush over Penal Code provisions and settle for jail sentence without giving attention to other alternatives,” said Judge Ketlogetswe.

For his part, Judge Lot Moroka observed that the court must take into account the antecedents of the offender, noting that extenuating circumstances in mitigation such as being first offender or care giver were merely mentioned and rarely taken into consideration in sentencing as they were likely to result in a non-custodial sentence.

Section 97 of the Prisons Act empowers prison official to impose community service through an exercise called extramural, where convicts who are left with 12 months to complete their jail term are offered an opportunity to complete their punishment outside prison serving the community, he said.

However, Judge Moroka said though possible to be used as a form of non-custodial sentence, extramural was offered as an administrative procedure by prison officials rather than being delivered as sentence by judicial officers.

Meanwhile, head of faculty of law at the University of Botswana, Dr Elizabeth Macharia-Mokobi urged judicial officers to apply their minds and have varied approaches to matters and strengthen the rule of law.

Dr Macharia-Mokobi said suspended sentencing, reprimand, warning, fine, dismissal of charge were some of the alternatives to custodial sentencing.

She observed that suspended sentence must have conditions attached to it such as good behaviour, compensation and community service and in case of fine, failure to pay must be converted to community service.

The workshop attendees were of the view that sending offenders of petty crimes to prison offered them an opportunity to be orientated into hardened criminals by the masterminds of the trade serving long jail terms.

They, therefore, come out to repeat the offence rather than being rehabilitated, they observed.

For her part, Professor Nicola Padfield said he was thrilled to observe that the country was actively engaged in identifying sentencing alternatives to incarceration.

She said research across the world had shown that spending time in prison was not always the most appropriate form of punishment.

Presenting a case study on the use of community penalties in England and Wales, Professor Padfield said non-custodial penalties had many advantages and were often more effective and less costly than imprisonment.

In her view, Prof Padfield said non-custodial penalties were less used, adding that about 77 per cent of people convicted in England and Wales annually were fined, while about nine per cent were imprisoned and seven per cent got community sentence, which was less costly.

She said prison facilities were appalling with bad treatment and conditions with too little education and training.

Most criminals in England and Wales do not want to be criminals, they want to leave good useful lives, getting a job, earning money, but living a good useful life has proved to be difficult, she said.

Professor Padfield noted that the job of correctional officers must be focused on counselling criminals and teaching them how to live good purposeful lives.  ENDS