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.
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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.
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