State v. Marapo

AHRLR 58 (BwCA 2002); Criminal Appeal No. 15/2002
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The case discusses the constitutionality of a statute that denied bail to people accused of rape. Marapo was arrested and charged with rape. Under Section 142(1)(i) of the Botswana Penal Code, he was not entitled to bail before trial.

Marapo brought his case to the High Court, arguing that section 142(1)(i) of the Penal Code violated Section 5(3)(b) and section 10(2)(a) of the Constitution of Botswana, which deal with right to be conditionally released if not tried within a reasonable time and the right to be presumed innocent. The High Court struck down section 142(1)(i).

The Attorney General of Botswana appealed to the Botswana Court of Appeal. The Attorney General argued that denying bail in the case of a charge of rape was constitutional because it helped to achieve the public welfare objective of combating the HIV/AIDS epidemic.

The Court of Appeal upheld the High Court’s ruling that section 142(1)(i) was unconstitutional. The Court held that denial of bail to a person who is alleged to have committed rape to satisfy public interest objectives of confining serious crime or combating the HIV/AIDS epidemic is not proportionate to the infringement of a person’s right of personal freedom. The Court stated that personal freedom cannot be denied based on a mere allegation of rape.

Dealing with the Attorney General’s argument about a public welfare interest in combating the HIV/AIDS epidemic, the Court rejected the idea that denying bail to those merely accused of rape would reduce the spread of HIV/AIDS by deterring sexual crimes. The Court noted both that men are vulnerable to accusations of rape and that not all people who commit rape have HIV or AIDS.

Assessing proportionality and balancing public interest, the Court stated that there is a danger that one who is accused of a serious crime could be detained without trial for an indefinite period. Such a practice would be equivalent to preventative detention.

“It is beyond my comprehension how depriving a person of his liberty merely because he is alleged to have committed rape – not, it must be stressed, because he is found guilty of it – can in any way reduce the crime rate, including rape or serve to contain or restrict the incidence of HIV/AIDS. After all, not all persons who commit rape are infected with HIV/AIDS. It may be thought that knowing that no bail will be granted if a person is charged with rape, will have a deterrent effect, persuading those who may be so minded to desist from pursuing their intentions. That, however, it would seem, was the ostensible purpose in the enactment of the section 142(1)(ii) (2)(3)(4)(5) by Section 3 of Act 5 of 1998 containing, as they do, harsh and severe mandatory punishments for rape, particularly for those persons who are HIV positive and especially if they are aware of it. I cannot conceive that making the fact that a person who may be alleged to have committed rape not entitled to bail can operate in any manner as a deterrent.” Para. 19.

“If I am wrong in my views and that the public interest may in some way be served by section 142(1)(i) or if it may represent an expression of concern about the crimesituation, sight must not be lost of the fundamental right enshrined in section 3 of theConstitution of personal liberty. It is one of the most basic of human rights in a democratic society and its deprivation or curtailment must occur only within the mostnarrow of confines (see Attorney-General v Dow supra at 131 - 132, per Amissah P). Asstated by Kentridge JA in Attorney General v Moagi 1982 (2) BLR at 184: Constitutional rights conferred without express limitation should not be cut down by reading implicitrestrictions into them, so as to bring them into line with the common law.” Para. 21.

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