Court rules DPP director has limited powers to prosecute
TheDirector of Public Prosecution has no untrammeled power to institute criminal proceedings against any person, regardless of whether or not there is prima facie evidence against the person.
Delivering judgement in a case in which Zein Kebonang ( High Court judge) and Sadique Kebonang ( former cabinet minister and MP for Lobatse) wanted to have charges of money laundering in the P250 million National Petroleum Fund ( NPF) case against them quashed, High Court Judges Matlhogonolo Phuthego, Abednego Tafa and Christopher Gabanagae said that a prosecution ought to be instituted or continued only where the Director of Public Prosecutions or his subordinate is satisfied that the test for prosecution is met.
The Kebonang twin brothers had approached the High Court seeking that the decision of the DPP who is the 1st Respondent in the case to prosecute and commit them for trial to the High Court on charges of money laundering, be reviewed and set aside.
The Applicants were first brought before the Court on the 29 November 2019, on a charge sheet dated 22nd November 2019. They were charged jointly with other people who are not party to their application, with various counts of money laundering, contrary to section 47 ( 1) of the Proceeds and Instruments of Crime Act ( PICA).
Aggrieved that there was no legal basis for the DPP to prefer these charges against them, the Kebonang brothers filed the current application with the High Court. Delivering the judgement this week Justice Phuthego said the test for prosecution is met if the evidence which can be adduced in court is sufficient to provide a reasonable prospect of conviction, evidential test and prosecution is required in the public interest - the public interest test. He explained that each aspect of the test must be separately considered and satisfied before a decision to prosecute can be taken. The evidential test must be satisfied before the public interest is considered, added the judge indicating that the prosecutor must analyse and evaluate all of the evidence and information in a thorough and critical manner before he embarks on a prosecution. “I do not think the 1st Respondent was actuated by malice in charging the Applicants.
The criticism that this Court levels against him is that he had preferred the charges without first satisfying himself that there is prima facie evidence that the Applicants had knowingly engaged in transactions that involved the property that represented the proceeds of any crime or that they knew, suspected or had reasonable grounds for knowing or suspecting that the property was derived or realised from a confiscation offence,” the judge revealed.
He said it should be noted, however, that although the law is well settled that decisions of the Director of Public Prosecutions are not immune from review by the Courts. The authorities make it plain that only in highly exceptional cases will the Court disturb the decisions.
“See for example, Corner House Research v The Serious Fraud Office [ 2008] UKHL 60. The first principle established by the cases is that the courts’ power to review the decisions of the prosecuting authority has to be sparingly exercised. The reasons for doing so appear to be two- fold.
“First, the independence of the prosecuting authority has to be safeguarded by limiting the extent to which review of its decisions can be sought. Secondly, the great width of the discretion to be exercised by the prosecuting authority and the polycentric character that generally accompanies its decision making, including considerations of public interest and policy,” explained Justice Phuthego. He added that the afore- going notwithstanding, it must always be borne in mind that each of the arms of government ( Legislature, Executive and Judiciary) and every citizen, institution or other recognised legal entity, are all bound by and equal before the law. He said it was evident from the authorities afore- cited that the DPP’s decisions to prosecute are reviewable on the principles of legality and rationality. The judge said the bone of contention that the DPP must prove is that the Applicants have committed a predicate offence. He indicated that The Respondents’ contrary submissions are that PICA enjoins a Court to convict a person of money laundering notwithstanding the absence of a conviction in respect of the crime alleged to have generated the proceeds that have been laundered, commonly referred to as the predicate offence, which section 2 of PICA defines as “any offence under the Laws of Botswana”.