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Judicial CP - September 2004

Corpun file 13996

Mmegi, Gaborone, 8 September 2004

Court president defends flogging

By Ryder Gabathuse
Staff Writer

FRANCISTOWN: As the debate over flogging rages on, Gerald Estates Customary Court president, Paul Motshwane, has strongly defended corporal punishment. "I don't know why people tend to deliberately twist facts. Corporal punishment is a form of punishment that is above board here and it is prescribed in accordance with the laws of Botswana," he said.

Motshwane explained that flogging is done on healthy men below 40 years of age. The courts do not discriminate based on nationality, colour or creed. Flogging, he argued, is the most effective way of curbing crime. "I have facts about it as I saw it happen during my tenure as the court president at the Phase Four Customary Court. It is also proving to be effective here at the Gerald Estates".

He said mischievous young men bent on disturbing peace in the estate now fear what would happen to them when caught. "It is flogging that has actually reformed these young men, some of whom would be hardened criminals by now if we did not stand up and condemn their acts." He said that flogging is the best form of punishment at a time when state prisons were bursting to the seams with inmates. He recommends that criminals involved in petty crime should be flogged. "You don't have to be a traditionalist to support flogging. In most of traditional Africa, wrongdoers are flogged even by the village elders outside the courts, as a way of administering justice."

Last Friday, a 28-year-old Zimbabwean who was caught shoplifting was taken before Motshwane's court. For fear of being sent to the state prison as a punishment, the accused opted to be flogged four times. While the Zimbabwean was still nursing his bottom, a 23-year-old Motswana, who was convicted for common assault received four lashes. Previously, caning was mostly restricted to cases of assault occasioning actual bodily harm and stock theft. Following the amendment of the Customary Court Act of 2000, corporal punishment can now be applied to all offences. "I am happy to have had a contribution in the amendment of this Act. Our argument has been that on offences like common nuisance, the law was not punitive enough," Motshwane said.

He added that there is no unit of measure for the application of force applied in the administration of the cane. "There may be no accurate measure for the application of force when flogging, but I take it that the force is always reasonable. Accused persons are not flogged to be killed, but this is a remedial measure geared at correcting them," he said.

Motshwane said it was possible that two different people administering corporal punishment may not have the same strength when flogging though there are no excesses reported. "We have never had reported cases of a flogged person who left the court terribly wounded or bleeding."

He said even law enforcement officers are humane too. He pointed out that for humanitarian reasons, people caught on the wrong side of the law, are not simply caned without a proper trial. The rights of the accused persons are properly explained to them before they can be flogged. He was shocked that some Zimbabweans have been sending wrong messages to the world that they are being abused in Botswana. "That is a fallacy. Such people need to say the truth as they think they can simply enter this country and get away with murder," he said.

Motshwane said in accordance with the laws of the land, it is not the accused who prescribe the ultimate punishment.

He said flogging is always the last resort. "There is always an option for the accused person to pay a fine, failing which they are caned. In the case of illegal aliens, especially the border jumpers, they always opt for flogging. Thupa e aga motho, ga e bolae. (A cane reforms wrongdoers, it does not kill)," Motshwane said.

Mmegi, 2002

Corpun file 14191

Botswana Daily News On Line, Gaborone, 14 September 2004

Court jails Makgophana man to three years for indecent assault

MOCHUDI A 33-year-old man of Makgophana ward in Mochudi has been sentenced to three years imprisonment, wholly suspended for two years and four strokes for indecent assault.

The three years have been suspended on the condition that Sabona Jankie does not commit a similar offence within two years.

Passing judgement, Mochudi senior magistrate Dlamini Ng'andu said the accused was a first offender and therefore, it was upon the court to spare him a custodian sentence.

Jankie was found guilty of indecently assaulting a 13-year-old girl. Ng'andu said the fact that on the day of the incident, Jankie acted under the influence of liquor, was not an excuse.

She said Jankie abused his position of knowing the teenager's custodians, especially her grandmother who was his lover.

The magistrate further advised Jankie to conduct himself like a sensible adult who must respect women and children.

The facts of the case were that on December 15, 2003 midnight, Jankie went to the girl's bedroom and removed her underwear and touched her private parts.

The court heard that the girl felt something heavy on top her while asleep and felt her thighs wet. She immediately alerted her grandmother who was in another bedroom.

The court rejected the accused person's claim that he tripped and fell on top of the girl, while looking for a beer in her bedroom.

Asked why the sperms were found on the girl's thighs, the accused said he had just finished making love to his lover (the complainant's grandmother) whose room is adjacent to the girl's.

In mitigation, Jankie who was employed as a cook at Deborah Retief Memorial Hospital in Mochudi, pleaded with the court to be lenient with him as he was the sole breadwinner taking care of his nephews, grandmother and siblings. BOPA

News Source: All local news stories were supplied by the Botswana Press Agency (BOPA)

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