Former soldier dodges death penalty

Murder convict and former Botswana Defence Force (BDF) soldier, Rodney Alfred Masoko, was relieved when the Court of Appeal (CoA) sentenced him to 25 years for the murder of his girlfriend in 2006. The appeals court handed down the judgement at the end of the April session but the case was heard during the January 2015 session.

In an unusual incident, Masoko was convicted of murder without extenuating circumstance by Lobatse High Court Judge, Justice Motswagole, in 2013. Motswagole however did not pass a sentence on Masoko. In accordance with the law, if convicted of murder without extenuating circumstances, the ultimate sentence is the death penalty. Masoko allegedly murdered his girlfriend for reportedly cheating him with his supervisors, something which led him to fight one of his supervisors after he caught them together. He would later be dismissed from work for misconduct.

Justice Motswagole in 2013 declared some provisions that prescribe the death penalty unconstitutional when sentencing Masoko who was accused of the murder of his girlfriend Gloria Zwemisi on 27 February 2006 in Francistown. Masoko has already spent close to 9 years in prison. In his judgement, Motswagole scrapped Section 203 of the Penal Code which prescribes the death penalty. He pointed out that the problem with section 203 is that it does not afford the persons convicted of murder equal treatment and equal opportunity, and it seriously undermines the individualisation of the enquiry on the imposition of the ultimate penalty by excluding well known sentencing principles and usual mitigating factors.

This prompted the prosecution in the case to lodge an appeal challenging the scrapping of the section and pleaded that the convict be sentenced. The prosecution and the defence concurred that there were extenuating circumstances that led to the commissioning of the crime. In this regard, a panel of five COA judges led by its President Ian Kirby afforded the convict’s lawyer Kgosietsile Ngaakaagae to lead mitigation to plead with the court to give his client a lenient sentence.

In its findings the appeals court said the appeal by the prosecution succeeds that the accused should be given a sentence. The court also set aside the decision by Justice Motswagole that section 203 of the Penal Code is unconstitutional. The court further set aside Justice Motswagole’s conclusion that there are no extenuating circumstances. The judges indicated that the 20 years was arrived at after balancing the mitigating factors with aggravating factors in this case.

During mitigation, Ngakaagae said the convict has the chance of turning a new leaf in his life. He has been of good conduct during his entire stay behind bars. He stated that his client joined the military as a private at the age of 18 and served this country well until he was dismissed from work in 2005. “He was dismissed from work for fighting his bosses over the deceased. He got involved in altercations with two of his superiors and the second incident was the one on the fateful day when the deceased lost her life. I plead that the court should factor in the time he spent in prison. He was not a danger to society it was just an unfortunate incident. He was intoxicated at the time and the murder was not premeditated. The alcohol was not about fortifying himself, he drank because he was under emotional stress,” argued Ngakaagae who pleaded with the court to consider a sentence less than 15 years.

The Prosecution led by Senior Counsel Susan Mangori of the Directorate of Public Prosecution (DPP) said when coming to the determination of which sentence to impose the judges should bear in mind that there is evidence that the deceased lived in fear even though it was not proven that this was premeditated murder.