In a striking judgment that challenges a common legal assumption in Botswana, High Court Judge Dr. Zeinub Kebonang took a firm stand against the widespread notion that alcohol consumption automatically softens criminal responsibility.
His ruling, which sentenced Tapologo Makwatse to death for the 2015 murder of his girlfriend, Dipuo Ramalepa, rejects the idea that intoxication can serve as a defense without clear scientific or expert support.
Judge Kebonang was explicit in dismissing the accused’s claims of drunkenness, emphasizing that voluntary drinking should be seen as an aggravating factor, fueling aggression, rather than a reason for leniency.
The case cuts to the heart of a legal trend in Botswana where courts often accept vague, colloquial terms like “under the influence” to reduce culpability, despite the absence of expert testimony. Kebonang’s ruling challenges this “popular belief,” calling out the courts’ reliance on imprecise language that undermines justice.
The facts are grim and straightforward. Makwatse was charged with murder under Section 202 of Botswana’s Penal Code for killing Ramalepa on the evening of November 14, 2015, in Rasesa’s Ranoko ward. He pleaded guilty on November 23, 2023.
According to court records, Makwatse told witnesses he was searching for a man named “Zulu,” whom he suspected was involved with his girlfriend. Instead, he found Ramalepa asleep on her veranda and attacked her with an axe.
After the assault, he went to the victim’s mother’s home, confessed to the killing, and left the axe behind, casually saying he was stepping out for a cigarette.
Witnesses later found Ramalepa gravely injured, lying in a pool of blood. She was rushed to Deborah Relief Memorial Hospital, where she died from severe skull and brain injuries caused by multiple axe blows. The post-mortem detailed devastating trauma: fractured jaw, deep lacerations exposing the brain, extensive bruising, and depressed skull fractures. DNA tests on the axe confirmed it was the murder weapon.
In his ruling, Judge Kebonang underscored that a guilty plea is not just an admission of guilt but a waiver of key constitutional rights, like the right to silence, protection against self-incrimination, a trial, and confronting one’s accusers.
“A plea of guilty is treated with corresponding finality if it was voluntarily given and the accused possessed an understanding of the law in relation to the facts,” Kebonang wrote. “The plea relieves the State of the burden to prove guilt beyond a reasonable doubt.”
He referenced Section 203 of the Penal Code, which mandates the death penalty for murder convictions absent extenuating circumstances. But he stressed that courts must weigh any mitigating or aggravating factors before sentencing, as these are essential to fairness and justice.
Extenuating factors suggest leniency, while aggravating factors increase the severity of the sentence. Kebonang found no indication that Ramalepa provoked the attack or caused Makwatse to lose control. “The deceased’s conduct needed to be part of the admitted facts and part of the chain of events that led to the results, whatever they are, if extenuation was to be found,” he wrote.
The judge criticized the accused’s attempt to twist his incriminating testimony into something less damning, noting no effort was made to withdraw the guilty plea or ask for reconsideration.
Makwatse claimed he drank alcohol earlier that day in Pilane before returning to Rasesa around 8 p.m. He confronted Ramalepa about a stranger on her phone, which she downplayed. He said she followed him outside, tried to put out his cigarette, and after a scuffle involving a fist and scissors, he attacked her with the axe he had brought from Pilane.
But Kebonang rejected these drunkenness claims, pointing out there was no solid evidence Makwatse was intoxicated. Witnesses who saw him that day did not detect any smell of alcohol or signs of drunkenness.
“A survey of our case law reveals a popular belief that alcohol impairs criminal responsibility, especially in murder cases, and is therefore to be treated as an extenuating factor,” Kebonang observed. “The extreme uniformity of this belief, both at the High Court and Court of Appeal levels, warrants concern because it is often not based on any scientific or expert evidence before such courts.”
He warned against courts relying on intuition or clichés like “affected by” or “under the influence” to assess a defendant’s state of mind, calling these phrases inadequate for the precise demands of criminal trials.
Moreover, Kebonang emphasized that Makwatse’s drinking was voluntary, with no evidence of how much or how quickly he consumed alcohol, or how it affected his mental state.
While conventional wisdom holds that alcohol can dull a person’s judgment and intent, Kebonang found that even if he accepted the accused’s version, the evidence pointed to a deliberate intent to kill.
“The number, positioning, and depth of the stab wounds described in the pathologist’s report strongly support a deadly intent to kill,” the judge wrote.
In fact, Kebonang concluded, the accused’s choice to drink was not a mitigating factor but an aggravating one, intensifying his aggression.
“Although judges have broad discretion in determining what sort of sentences to impose on the particular facts of the case and the offender appearing before them, such discretion becomes inoperable where, in the absence of extenuating or mitigating factors, the court is required to impose the mandatory prescribed sentence, as in this case,” he ruled. “As a result, the accused is sentenced to death.”
With this ruling, Judge Kebonang sends a clear message: intoxication won’t be a free pass for violent crime in Botswana’s courts.