LEGISLATIVE EROSION OF JUDICIAL DISCRETION IN RELATION TO MURDER WITH EXTENUATING CIRCUMSTANCES IN BOTSWANA: A CRITIQUE OF THE AMENDMENT OF SECTION 203 (2) OF THE PENAL CODE

Abstract

Murder is an offence that is regarded as atrocious across all civilisations. It is for this reason that some countries, including Botswana, still retain the death penalty for the offence of murder. In April 2018, the parliament of Botswana amended Section 203 (2) of the Penal Code to introduce a minimum mandatory sentence of 15 years imprisonment for murder with extenuating circumstances. This development was applauded in some quarters as an indication that parliament was getting tougher on murder and had delimited the discretion of the judiciary to impose lenient sentences. This paper evaluates the necessity and desirability of the minimum mandatory sentence within the premise of judicial discretion in sentencing. A pre-amendment assessment of the sentencing patterns of the courts of Botswana, in relation to murder with extenuating circumstances, is undertaken with a view of determining whether there was either inexcusable leniency or flagrant disparities. The paper contends that the courts were already effectively self-regulating in their sentencing for murder with extenuating circumstances, and that an intrusive legislative intervention by way of the minimum mandatory sentence was unnecessary. It is maintained that this erosion of judicial discretion is likely to result in injustices in instances where the particular circumstances of a case would have otherwise justified a sentence of less than 15 years imprisonment.