Kgosi pursues ‘masterminds’ of airport arrest
● Lines up targets at BURS, DIS, BDF, DPP ● State fails to appeal Kgosi court victory ● DPP chooses instead to appeal Kebonang twins’ judgement
Former spy chief, Isaac Kgosi has reportedly instituted legal proceedings against the masterminds of his dramatic Sir Seretse Khama International Airport arrest in January 2019.
In a movie style sting, Kgosi was nabbed by a team of intelligence officers and other law enforcement, handcuffed and taken into custody upon his return from India. The incident took place in front of media and appeared coordinated by Peter Magosi, Kgosi’s successor at the Directorate of Intelligence and Security (DIS). Magosi personally escorted Kgosi into waiting vehicles outside the airport.
This week, authoritative sources told Mmegi Kgosi’s lawyers had prepared papers against several highranking officials allegedly involved in the sting. Those being served with papers include officials at the BURS, the Botswana Defence Force and the DIS. The list reportedly includes a magistrate and a host of others linked to the arrest and subsequent investigation which included several raids at Kgosi’s properties. “The civil action is meant to make these individuals answerable in their personal capacities for conceiving and having him arrested for evading tax when he returned from India when this was false,” insiders said. Mmegi has confirmed that also facing a lawsuit is former prosecutor, Susan Mangori, who allegedly signed off the summons in the Welheminah ‘Butterfly’ Maswabi case which stated that Kgosi was given money by Maswabi to finance terrorism. Meanwhile, the Directorate of Public Prosecutions (DPP) has failed to appeal a High Court decision last year which set aside abuse of office and corruption charges against Kgosi and former Energy Affairs Department boss, Kenneth Kerekang. The two were accused of conniving case to divert P250 million from the National Petroleum Fund (NPF) to the DIS and ultimately into their pockets, under the guise of making purchases for the spy agency. Lawyers involved in the case told Mmegi the DPP had until January 7 to note an appeal, which was not done. “The lack of appeal means that Kgosi’s assertions of Kgosi are true,” a senior attorney told Mmegi. “It also means Justice Michael Leburu’s judgment that has not been disturbed.” In his judgment, Leburu said the State had failed to produce reasonable probable evidence to prosecute Kgosi, adding that the decision to charge Kgosi and Kerekang was irrational. “How then can people be charged with money laundering when the recipient says no money has been lost and has in fact been used for a lawful purpose.
This is a classic case of malicious prosecution,” the senior attorney said. In his court papers, Kgosi had stated that the P250 million from the NPF was given to the DIS and that the funds had not been lost but were used to procure equipment currently being used by the DIS. Kgosi also stated that there could never be corruption or abuse of office when one wing of government transfers money to another.
The DPP, however, is appealing the High Court decision to set aside prosecution of the Kebonang twins, Sadique and Zein. In October 2020, three High Court Judges, Justices Abednego Tafa, Chris Gabanagae and Matlhogonolo Phuthego ruled in favour of the Kebonang twins saying there was no evidence by the DPP to prosecute the twin brothers on criminal charges including money laundering. The Kebonangs case is loosely linked to the NPF matter. In their notice and grounds of appeal in the Kebonang case, the DPP and the Attorney General say the three judges applied the wrong standard in deciding whether the DPP had sufficient grounds to charge the respondents. They also said the judges fell into error by delving into the merits of the case in order to arrive at the conclusion.
“The learned judges also erred in holding that there is need to disclose the predicate offence when drafting a charge sheet of money laundering,” the state’s papers read. The state says Tafa, Gabanagae and Phuthego failed to apply the doctrine of common purpose in coming to the conclusion that there was no wrong doing on the part of the respondents.
“The learned judges erred in holding that the respondents’ review application was properly before the court when it was filed after expiry of four months after the decision was made and no leave had been sought. “The learned judges erred in holding that the first appellant [DPP]’s decision in this matter is reviewable.” Through their lawyer, senior counsel Unoda Mack, the Kebonangs are fighting the State’s appeal and have noted three technical points. “The appellants have launched this appeal without leave to appeal obtained from the High Court or this Honorable Court,” Mack says in the papers before the Court of Appeal.
“The appeal is incompetent as it is not properly before the Court of Appeal. “The appeal therefore stands to be dismissed or struck out with costs on attorney and own client scale and this Court is beseeched to so order.” Insiders told Mmegi the DPP had become divided on its appeals, with some “political ambitions” prevailing over prospects of success. They argued that the DPP failed to obtain leave from the High Court to appeal the Kebonang brothers case.
They said such failure puts paid any DPP’s attempt to proceed with the appeal as the Court of Appeal can only be approached when the High Court has refused and not directly. Whilst parties can appeal as of right in civil proceedings, this is not so in criminal appeals, where leave of Court must be sought. “This has become so personalised. One wonders why the Kebonang brothers and not Kgosi?” the sources said.