The words shocked everybody who saw the video footage of the former Director General of the Directorate of Intelligence Services and Security, Colonel Isaac Kgosi, saying them as he was surrounded by law enforcement officers.
“I am telling you, I will topple the government,” Kgosi said as he was bundled into a waiting DISS car.
The expectation of most was that by now, a treason charge would have been prepared as Kgosi remained in custody. In terms of Section 34(1) of the Penal Code, a treasonous person is one “who prepares or endeavours to overthrow by unlawful means the government as established by law.” To a lay person, when a former spy chief with both military training and notoriety says he will topple the government, there is no question about what he means. However, there are lots of questions. Gaborone attorney, Tshiamo Rantao, says that “it is not clear” what Kgosi meant because the dictionary defines “topple” as overthrowing a government and defeating one at the polls. Legally, this ambiguity is problematic because it offers two diametrically opposed scenarios of toppling a government, one perfectly lawful and the other not. At trial, a defence lawyer would simply claim that Kgosi meant assisting effort to defeat the government at the polls.
“Whatever he meant, I do not think that the words he used – without more, are enough to found a conviction based on this provision, for the state would have to show that he prepared or endeavoured to overthrow the government by unlawful means,” Rantao says.
That notwithstanding, he hastens to add that should any investigations by the state show that Kgosi actually prepared or endeavoured to overthrow government, then there may be a prima facie case under the aforesaid provision.
“The words he uttered would be read not in isolation but together with evidence of such action(s) on his part,” the lawyer says. “At this stage, the media has not pointed to any such evidence or suggestion, and so one would have to wait and see what the state has.”
Even without such evidence, would the law make a distinction between those words being uttered by an ordinary person in a fit of rage and their being uttered by a notorious former spy chief with a military background? In response, Rantao says that each case is looked at on its own peculiar circumstances.
“There can be no one-size-fits-all answer to your question. Yes, there may be circumstances where his prior position as head of intelligence would lead to the conclusion that he had in mind, unlawful removal of government. However, there would still have to be evidence of preparation or endeavour in all cases.”
Three years ago, the Sunday Standard editor, Outsa Mokone, was charged with sedition, which is as all-embracing and as arbitrary as to criminalise eyeballing a president. Rantao’s interpretation of the sedition law is that it still cannot be used to charge Kgosi.
“Insofar as what happened at the airport is concerned, I do not think he committed any offence there unless the state possesses evidence which is not already in the public domain. My opinion is limited to the manner of his arrest and the words uttered by him only. I am certainly not commenting on crimes that he may have committed which the state is currently investigating.”