High Court orders permanent stay of sentencing owing to 13-year trial delay
This week, Justice Dr. Zein Kebonang of the Gaborone High Court delivered a landmark ruling, ordering an indefinite stay on the sentencing of Dikaleleo Mphakelwa, who stands convicted of murder following an extraordinarily protracted trial spanning a decade. The judicial determination grappled with a significant constitutional issue arising post-conviction, specifically whether the appellant’s constitutional entitlement to a fair hearing within a reasonable timeframe—enshrined under Section 10(1) of the Constitution—had been breached by an egregious 13-year delay in the trial’s resolution.
In his judgment, Justice Kebonang affirmed that the sole meaningful redress for the profound psychological injury endured by the applicant was the permanent cessation of sentencing proceedings and his immediate release.
As per court records, Mphakelwa and a co-accused were initially apprehended in February 2012 on suspicion of murder. The police concluded their investigations within a week of arrest, subsequently forwarding the docket to the Director of Public Prosecutions (DPP) for instituting formal charges. Yet, despite the prompt completion of investigations in 2012, the DPP delayed initiating criminal proceedings until 2015, resulting in a three-year lapse before the case was officially registered in the High Court. Another three years elapsed before the trial commenced.
The State contended that, “The Applicant has no cause for complaint and should indeed be grateful as he remained out on bail throughout this protracted period. Moreover, he faced a grave offence.”
Conversely, the applicant asserted through court papers that the 13-year duration to bring the trial to a close constituted a flagrant violation of his constitutional right to be tried within a reasonable period.
Justice Kebonang underscored that while no statutory provision explicitly prescribes definitive timelines for criminal prosecutions, Section 10(1) obliges that any charged individual must be accorded a fair hearing expeditiously by an independent and impartial tribunal recognized by law. He noted that “Although the Constitution does not define what amounts to reasonable time, it is generally accepted that reasonable time is case-specific and fact-sensitive.”
The applicant’s counsel, Mr. Ofentse Khumomotse, submitted that the delay was solely attributable to the State. In particular, he highlighted that prosecutors were transferred by the DPP mid-trial, without due consideration of the resultant impact on trial progression and expediency.
The judge acknowledged that the applicant consistently appeared for trial and at no juncture engaged in conduct undermining his entitlement to a speedy trial.
It was further argued that the DPP’s inexplicable three-year inertia in prosecuting the accused—despite investigations concluding within a week—was indefensible.
“Notwithstanding the conviction, the delays, which were plainly attributable to the State’s actions, must be regarded as sufficiently exceptional to warrant either a permanent stay of proceedings or, at the very least, imposition of minimal or suspended sentences,” argued Mr. Khumomotse.
The State conceded that a 13-year trial period was inordinately protracted but attributed the responsibility primarily to the Administration of Justice (AOJ), distancing the DPP from the entirety of the delay. It contended that after case registration with the High Court, the DPP lacked authority over judicial scheduling, diary management, or case record preparation.
The State further submitted that the only attributable delay on the DPP’s part was the initial three-year postponement in initiating prosecution. It maintained that neither a stay of proceedings nor sentence mitigation was warranted given statutory minimum sentencing mandates.
Justice Kebonang emphasized the constitutional imperative that trials within reasonable time frames constitute a core pillar of safeguarding accused persons presumed innocent under Section 10(2)(a) of the Constitution. This provision guarantees that every individual charged with an offence “shall be presumed innocent until proved or having pleaded guilty.”
He reflected, “Determining reasonableness and whether an accused person has been tried within a reasonable time is inherently case-specific. Here, notwithstanding factors such as case complexity, prosecutor transfers, and AOJ inefficiency, none justify a delay of this magnitude. The investigations concluded expediently; prosecutorial transfers were administrative decisions within the DPP’s remit; witnesses were accessible, yet only one testified. No legitimate cause justifies the delay.”
Justice Kebonang called for a fundamental shift in courtroom culture, condemning delay as unacceptable rather than excusable.
“All participants in the justice system—prosecutors, defense counsel, and, importantly, judicial officers responsible for case management—must institute proactive measures to rectify inefficiency. Justice should pivot away from judges alone and focus on those they serve.”
He insisted that the judiciary adopt a preventative stance against delays rather than merely remedial tactics, stressing that every case should be actively managed to circumvent postponements and the inevitable retrospective apportioning of blame for such tardiness.
Returning to the case specifics, Kebonang declared that to impose incarceration following such a protracted delay would contravene principles of justice, fairness, and human dignity.
“The psychological toll borne by the applicant at the hands of the State is incalculable. While a retrial is precluded by the conviction, justice nonetheless demands an effective remedy for this constitutional breach. Under these circumstances, such remedy can only be a stay of sentencing—not a rationalization of the delay, nor turning a blind eye to it.”
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