Saturday, October 31, 2020

DPP’s decision to drop charges against Moroka falls under renewed scrutiny

The Directorate of Public Prosecution’s decision to drop potential criminal charges against De Beers Botswana CEO and Resident Director, Neo Moroka in a case in which he allegedly shot and killed a man has raised eyebrows within the legal fraternity. ┬á

The DPP reportedly entered into a Nolle Prosequi in the matter, meaning that no action would be taken against the De Beers boss.

Some lawyers contend that Moroka’s case is either a crime of murder, negligence or culpable homicide and under normal circumstances he should have been a candidate for prosecution.

However the DPP said the death of Kealeboga Danster was accidental and no person or persons can be held criminally liable for such an unfortunate occurrence. The DPP chose to close the case.  

A criminal law expert and lecturer at the University of Botswana Patrick Gunda who was also an advisor to President Ian Khama between 2008 and 2011 said it was unclear for now whether other (essentially non-legal) considerations could have prevailed in the decision not to prosecute Moroka.

“But in law we do say justice┬ámust be met to the society, the individual and the family.”

Gunda said the question that arises is; has justice been done in this case?

“Remember though, that we are not all equal. It depends who you are, whom you hang out with and essentially who you are in the society. This does apply to criminal prosecutions also,” observed Gunda.

While he admitted that he was not privy to reasons as to why the DPP dropped the charges, Gunda said what is important here is whether or not the decision of the DPP would have been fair, rational and based on sound reason and fortified in law.

“Please note that the DPP is the DOMINUS LITIS i.e. the authority vested with the ultimate power to proffer charges against any person and they do not owe an explanation to any person or authority,” said Gunda.

 He cited Section 51(3) of the Constitution which states that the Director of Public Prosecutions shall have the power in any case to institute and undertake criminal proceedings against any person before any court and to take over and continue any such criminal proceedings that have been instituted or undertaken by any other person or authority.

Gunda said this envisages cases where someone could bring in a private prosecution; the DPP can take over the case and stop the prosecution.

He said even if the family of the deceased could launch a private prosecution, the DPP could take over and discontinue such a case.

Gunda said no court can force the DPP to proceed with a case, nor can the DPP be forced to disclose its reasons in proceeding one way or the other.

Law Society of Botswana Chairman Lawrence Lecha said the DPP is in law expected to lay charges based on the evidence before him.

“The evidence is ordinarily as provided by the Police following investigations. The Law Society of Botswana is not privy to the outcome of the Police investigations in this matter and is therefore unable to make an informed opinion,” he said.

Lecha said any person with an interest (and not “a busy body”) can launch a private prosecution where the DPP has decided not to prosecute. He said that determination can be made by those with an interest like his family if they have facts to support such prosecution.

Asked to state the Society’s position on calls that a private prosecution should be conducted, Lecha said “The Law Society of Botswana is again unable, without knowledge of the facts, to take a position on whether this is a matter that lends itself to a private prosecution.”

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