FINAL AUTHORITY

President Duma Boko has defended himself against criticism that he is reluctant to execute death row inmates, insisting that he simply follows the law and the recommendations of the Committee on the Prerogative of Mercy.

The issue has repeatedly surfaced during recent kgotla meetings, where some members of the public accused the President of avoiding the execution of prisoners condemned to death.

Addressing a leadership forum of the Botswana National Front (BNF) over the weekend, Boko dismissed the claims, insisting he cannot act outside the law.

“Go na le tse di buiwang gotwe, monna yo o kgatlhanong le kaletso ya batho ebile o ira dilo tse a di dirang e le maipato a gore a seka a tla a kaletsa ba ba tshwanetseng go kalediwa. Dipuo tse di ntseng jalo ke dipuo tse di lolea ka gore nna se ke se diragatsang ke molao,” he said.

Translated, Boko said: “There are claims that I am against the hanging of people and that the things I do are merely an excuse to avoid hanging those who are supposed to be executed. Such claims are misleading because what I carry out is the law.”

Boko explained that once death row inmates have exhausted all legal appeals, their cases are referred to the President through the Committee on the Prerogative of Mercy.

According to him, the committee, which includes Attorney General Dick Bayford, makes recommendations which the President must weigh before taking action.

He suggested that if the committee recommends that an execution proceed, he would have little choice but to follow through, as he is bound to uphold the law.

But the Constitution of Botswana appears to tell a different story.

Section 53 of the Constitution gives the President the power to grant pardons, delay executions, substitute lesser punishments or remit sentences imposed on offenders. Crucially, the section states that the President “may” exercise these powers.

In legal interpretation, the word “may” is generally understood to confer discretion, while the word “shall” indicates a mandatory obligation. This principle of statutory interpretation is widely recognised in common law jurisdictions.

While the Constitution establishes the Advisory Committee on the Prerogative of Mercy under Section 54 and requires the President to seek its advice in death penalty cases under Section 55, it does not compel the President to follow the committee’s recommendations.

In other words, the President must consult the committee, but the final decision ultimately rests with him.

The Constitution makes clear that the power to grant mercy, commute sentences, or allow executions to proceed lies squarely with the President.