BOTSWANA. COURT QUASHES DEATH SENTENCE

July 27, 2005: it was tears of joy for death row inmate Mothusi Phiri when the Court of Appeal substituted his death sentence with a 20-year jail term and upheld a five-year jail sentence for attempted murder. 
The court ordered that five-year jail sentence should run concurrently with the 20-year prisonment from the time Phiri was put in custody. Phiri was convicted upon confession.
Phiri had been on death row since 2003 after he was found guilty of murdering Duncan Mfolwe and attempting to kill Mfolwes sister, Sebitse.
He had told the court that he had been having a love affair with the deceaseds wife, Salang, who had since committed suicide.
He had told the trial court that the deceased wife had suggested that they kill her husband, who had previously threatened to kill Phiri.
In its judgement, the Court of Appeal ruled that there were extenuating circumstances that led Phiri to commit the crime.
"It is clear, in my view, that the appellant was under the influence of Salang all along that he eventually committed the murder at the behest of his lover, so to relieve her of a husband who did not love her but constantly beat her and threatened to kill her.
I find these circumstances to be extenuating and reducing the appellants moral blameworthiness".
Regarding the prosecutions comparison of the case to that of Marietta Bosch, the court said: It cannot be said that this case surpasses the Bosch case in all its wickedness and planning.
The court dismissed the state attorneys submission that Phiri reported Mfolwes threat to kill him in order to extract money from him.
It said that the fact that Phiri and Salang were committing adultery did not provide justification for Mfolwe to threaten to kill Phiri, which, according to the court, is a serious offence.
There is certainly no ground for finding that the appellant committed the murder to gain some benefit in monetary terms, as suggested by the counsel for state.
Phiri was represented by Kgafela Kgafela and Peter Collins while Susan Mangori represented the state.
The appeal was heard before justices Hein Grosskopf, Patrick Tebbutt, and Nicholas McNally. (Sources: Botswana Press Agency, 29/07/2005)