DIS, DPP, DCEC suffer humiliating reputational damage
DPP appeals High Court decision Integrity of the entire legal system jeopardised - Justice Kebonang
The controversial wildly reported high- profile ‘ Butterfly’ case launched on October 17th 2019, crash- landed this week leaving State agencies’ integrity and reputation extensively bruised.
The Directorate on Intelligence and Security ( DIS) spy, Welheminah Maswabi convinced the High Court to acquit and discharge her of the two offences she was facing - possession of the unexplained property, and false declaration of passports.
The case attracted names of former President Ian Khama and former DIS boss Isaac Kgosi for having had a hand in the siphoning of funds from the central bank out of the country.
It would later emerge through courts that there have been a fabrication of evidence by the lead investigator, launching of defamation suits against the state, standoff between Botswana and South Africa over the finalisation of the Mutual Legal Assistance, withdrawal of one of the initial charges ( financing terrorism) and a clash between three State agencies involved in the case - DIS, Directorate of Public Prosecution ( DPP) and Directorate on Corruption and Economic Crime ( DCEC) on how to proceed with the case.
This week Gaborone High Court Judge Dr. Zein Kebonang said the conduct of the DPP and all those involved in the investigation and prosecution of Maswabi on falsified and fabricated evidence is open to scrutiny.
He said the state through the DPP, DCEC and DIS offices fabricated and manipulated evidence, framed and falsely implicated Maswabi. The DPP has since indicated its intention to appeal the judgement.
According to Justice Dr. Kebonang, the decision to prosecute must never be on the whims of those called upon to make them, nor must it depend on who occupies the office or new administration. He explained that it must depend on whether there is probable cause to prosecute.
“There can never be probable cause when those entrusted to make such decisions are the ones at the forefront of fabricating and concealing evidence.
“The actions of the Respondents have brought disrepute to the administration of justice. For instance, Judge Gabanagae has had to deny bail to the Applicant on a clearly fabricated case.
“Various courts have expended resources towards adjudicating a case that was falsified from inception by the 1st Respondent and others.
“The type of misconduct by all those involved in the prosecution of the Applicant is so severe that it calls into question the integrity of the entire legal system.
“It shocks one’s conscience and demands that those involved must be held accountable,” the Judge ruled.
DPP Director Advocate Stephen Tiroyakgosi told Botswana Guardian Wednesday that they are appealing the judgement and would also apply for a stay of the judgement.
He said in their opinion the judge went overboard in his decision. According to Advocate Tiroyakgosi, the court was not competent to have dealt with the issue of acquittal and discharge, given that this is not the matter currently at play as the state has since applied for withdrawal of charges with liberty to reinstate.
“Our view is that the judge went overboard and even addressed issues which were not before it - for example, the charge for Financing Terrorism was dealt with last year when we withdrew it.
“There is the question of the competence of the court to deal with the issue of acquittal. The judgement was emotive and the matter was beyond the realm of the court,” the DPP boss explained, adding that they would deal with modalities of the appeal later - whether to appeal on urgency or not.
Advocate Tiroyakgosi acknowledged that the issue of integrity as stated by the judge cannot be ignored. He said even though the judge said what he said, they believe he arrived at that based on what the other party has been saying since last year arguing that the evidence has been falsified and fabricated, an argument for which they hold a contrary view.
“The issue of integrity is a big issue and cannot be ignored. The judge touched on matters that arouse such debates. Yes, inferences have been drawn but our view is that the judge bought on to the argument of the other party.
“We are ready and determined to ensure that the public confidence in the Directorate is restored,” argued Advocate Tiroyakgosi.
He told this publication that there are other matters that have to be considered in the case such as the pending Mutual Legal Assistance ( MLA) with South Africa.
“There is a South African court order of the 27th of July which has not been complied with. But we have been in talks with the Department of Justice on the matter as they have proposed a sit down to discuss the way forward on the issue. What is left is for us to agree on the dates,” he added.
Political Parties say charges were politically motivated
The Alliance for Progressives ( AP) Secretary- General Dr. Phenyo Butale said the judgement brings to bear a worrying trend where the state uses all its might and power to pursue citizens in a bid to settle political scores. Dr. Butale said the nation surely owes Maswabi an apology for the brutal way in which the State has treated her.
“As the state failed numerous times to produce evidence and back up its claims, it became increasingly clear that Maswabi was just a pawn in the President’s electioneering gimmicks and efforts to sway the outcome of elections.
“The AP has in the past warned against the weaponisation of state institutions and we hereby reiterate our position that these blatant crimes and abuse of state institutions to fight political battles should not go unpunished.
“The Director of Public Prosecutions should not wait for the President to fire him, as the Court has directed. He should tender his resignation immediately,” Dr. Butale stated.
The AP secretary- general said above all else, the President must resign as he is complicit and culpable in these crimes by the State against its people. Dr. Butale argued that the law is now being used, not to prosecute, but to persecute.
“There is no doubt that these were politically motivated charges aimed at embarrassing political opponents. These heinous acts of falsifying evidence were done at the behest of the Head of State with little regard to the lives that have been destroyed in the process. This disqualifies him from holding that Office,” Dr Butale noted.
Umbrella for Democratic Change ( UDC) Head of Communications Moeti Mohwasa said reading from the judgement there is a clear indication of how state capture can occur. He stated that there is a need to applaud the boldness of Justice Dr. Kebonang who decided to stand on the side of justice and fairness.
According to the UDC spokesperson the public is living in a country where the influence and interference of the ruling party and the secret service are rising across all spheres of our lives and in particular the media, judiciary, prosecution agencies and other state organs.
“We should be worried about the reports that the regime wants to embellish our courts with judges that are sympathetic to it. If this is allowed to happen then we might as well kiss goodbye the little that is left of our Democracy.
“We cannot allow individual and private interests to drastically determine state decisionmaking processes,” Mohwasa said, adding that this is how state capture operates.
Mohwasa explained that it maligns the state institutions to serve particular sectional interests. He said the problem for the nation is not really the heads of the state organs who came out scathed.
“Our biggest threat as a nation is the current head of the DISS, Peter Magosi and his political master, President Mokgweetsi Masisi who abuse the weak structures in our society due to lack of independence. This wanton and willy- nilly interference was also felt in the rigged 2019 general elections,” Mohwasa said.
BDP Secretary General Mpho Balopi had not responded to enquiries at press time.
“Were the charges false and fabricated? Yes. When Butterfly accused the DPP of proffering fabricated and false charges against her, according to the judgment of the High Court, the Attorney General and the DPP failed to defend the case on the merits, and therefore, the Government’s principal legal advisor and the DPP have both admitted that the charges were false and fabricated,” said Managing Partner at Rockfall Lekgowe Law Group and Lecturer of Law at the University of Botswana, Gosego Lekgowe when asked to give his views on the matter.
What is the solution? According to Lekgowe the damage is already done. Nothing said or done will remedy the damage done to the administration of justice and the country. “But we can mitigate the damage. Having acquitted the citizen, the DPP director must be relieved of his duties, we must then stop wasting taxpayer’s money paying advocates in South Africa for chasing the wind,” Lekgowe told the Botswana Guardian Wednesday evening.