The Need for Automatic Review of Death Penalty Cases in Botswana: A Commentary on <i>Pholo v the State</i>

Abstract Given the irreversible nature of the death penalty, automatic review of death penalty cases is a necessary safeguard. The process mitigates against errors committed by the trial court and ensures that only those who are deserving are executed. In acknowledgement of this necessity, Rule 44 of the Rules of the Court of Appeal empowered the Court of Appeal of Botswana to automatically review all death penalty cases. In undertaking this review, the Court was required to satisfy itself on the soundness of the conviction and also confirm that the trial court had properly addressed the question of extenuating circumstances. However, on the 4th November 2022, in Pholo v The State,1 the Court of Appeal declared that Rule 44 was ultra vires the Court of Appeal Act. Consequently, the Court of Appeal held that it did not have jurisdiction to automatically review death penalty cases. This paper assesses the reasoning of the Court in the case and the implications of the judgment. The paper recommends amendment of the Court of Appeal Act to properly clothe the Court of Appeal with jurisdiction to automatically review death penalty cases.