BOTSWANA

George Bizos, Senior Counsel of the Legal Resources Centre in Johannesburg, says that South Africa is determined to remain a country free of the death penalty, but whether it can save one of its own citizens, Marietta Bosch, from hanging in Botswana remains to be seen. Hands off Cain interviewed Mr Bizos.Q: Mr Bizos, is the public opinion in South Africa taking an interest in Marietta Bosch, a South African woman facing the death penalty for murder in Botswana? A: It has not given rise to much concern in the public debate, you know most people here consider Botswana a foreign country. The fact that she is South African of course does create some interest and the newspapers have been talking about it. A request has been made to President Thabo Mbeki to ask the president of Botswana to exercise the right of clemency in her favour. But the president is still receiving representations from members of the Bosch family and others. Then he would decide what he is going to do, and when and how.Q: Do you think that President Mbeki will ask the president of Botswana, Festus Mogae, to suspend this execution? A: I am not sure whether he is going to make a public statement or whether he is going to make a private representation to the president of Botswana. Botswana and South Africa are members of SADC which is a southern African political organisation. It’s not as big of course, and not as closely-knit as the European Union but nevertheless we are neighbours, we are trading as neighbours, and there is an interchange of economic and cultural activity. However I can’t say whether he will make a public call or a private call. Q: South Africa was a co-sponsor and also voted in favour of the resolution calling for a universal moratorium on executions approved by the Commission on Human Rights of the UN. Do you think that this could prompt South Africa to action?A: Of course, of course. In South Africa, the majority party, the African National Congress and even a number of the opposition parties have accepted the constitutional decision that the death penalty is against our South African constitution. However this is not typical of the African situation. The problem with Botswana and some of the other countries in southern Africa, the SADC countries, is that they have constitutions which were drawn in Lancaster House, the imperial department of the United Kingdom. All those constitutions contain a clause that there will be a right to life except where a court has passed the death sentence. So, in Botswana they say that ‘we cannot abolish the death penalty without amending our constitution’ and it appears that public opinion in Botswana is very much in favour of the death sentence, I think for the wrong reasons. Q: What are the factors favouring the retention of the death penalty in Botswana?A: It is a small, rural country without the big cities that lead to a greater degree of criminality. They have, compared to South Africa and other countries, a very small problem of criminality. They believe, but I think wrongly, that one of the reasons for the absence of the high degree of criminality is the death sentence as a deterrent. I don’t accept it, but that is the attitude there, and the people who call for the return of the death penalty in South Africa echo that sentiment, that is, if we had the death penalty we wouldn’t have such a high degree of criminality. But I think that Parliament is not likely to be moved by this, and it’s very difficult to amend our constitution, so I think that South Africa will remain a country in which the death penalty will not be imposed. Q: Marietta Bosch was sentenced to death by a Commonwealth court of appeal, including a judge from the United Kingdom and one from South Africa, both abolitionist countries. What kind of pressure can be brought to bear on Commonwealth courts in order for them not to apply the death penalty? A: I think it’s a mistake to speak about a Commonwealth court. Botswana is a small country, it does not have enough qualified people to serve in its courts, in particular the court of appeal. This is why people who have been judges in other countries, particularly in the United Kingdom, in west Africa and in South Africa, in their individual capacities, take part-time appointments as members of the courts of Botswana. They are not there representing their countries of origin, they are judges, albeit part-time judges, of Botswana, they take an oath of office in Botswana to uphold the constitution of Botswana. They do not constitute a Commonwealth court, even though many of their judges come from countries that are members of the Commonwealth. Q: Thank you Mr. Bizos. Do you have any concluding remarks? A: Well, the only thing that I want to say is that your country, Italy, is performing a very important role in keeping the abolitionist cause alive, and I wish you well. You know my own attitude from the ways in which we have worked together in the past ten years or so. There has been progress particularly thanks to the efforts of the Italian government and the Italian people, and I think that the cause of abolition of the death penalty has been well served by them.