The South African prosecutor best remembered in recent times for ably prosecuting and securing a conviction on the murder of that country’s former model Reeva Steenkamp by his former blade runner boyfriend Oscar Pistorius, Advocate Gerrie Nel arrived on our shores against this impressive background to crack the money laundering case allegedly levelled against his countrywoman Brigette Motsepe. In Motsepe’s corner would allegedly be former President Ian Khama, Willhemina Maswabi better known as Butterfly and former Director-General of the Directorate of Intelligence (DIS) Isaac Kgosi. The money laundering case follows on the foot- steps of the Mutual Legal Assistance process Nel is still pursuing on behalf of the Directorate of Public Prosecutions (DPP) and by extension, Botswana Government. As recently as last week, Nel announced to Botswana and the world that he is unable to crack the money laundering case which involves the alleged theft of P 100 billion from the Bank of Botswana by Motsepe and the local threesome of Khama, Butterfly and Kgosi. His reasons are primarily that from where he stands, it appears the relevant institution(s) presumably seized with crucial information to make a solid prosecutable case are not forthcoming with it hence his belief that someone is being protected. That someone is yet to be named. But it should not be difficult to imagine who that is.
To be fair to Nel, he burst onto the scene when a lot of damage had already been caused to the case in more profound ways than one. The DPP had already suffered a major body blows when it emerged that Butterfly was denied bail to the terrorism case which is intrinsically tied to the money laundering case on what could best be described as concocted reasons to deny her such bail. The veil on these concocted reasons was eventually lifted with the court granting her bail. Khama and Motsepe had enlisted Cherie Blair’s law firm Omnia Strategy to investigate allegations against them which essentially found out that there was no legal basis supporting such allegations against them. To the best of my recollection (and I stand corrected), the DPP is yet to officially dispute the findings of Omnia Strategy. As a consequence, Khama and Motsepe have instituted, or are in the process of instituting defamatory suits against the DPP and by extension, government. These will not be cheap law suits. State institutions overseeing the P 100 million money laundering case emerged hugely divided on the legal standing of the case in terms of its prospects of success as evidenced by the leaked audio clip. Over and above these, other parts of related prosecution case were crumbling in court like a house of cards doused in petrol because seemingly, there was no strong evidence for them to stand intense legal scrutiny. In essence therefore, Nel was expected if you like, to reconstruct and sustain a hopeless and stage managed case that seemingly, never was.
Parking the Mutual Legal Assistance process aside, the Bank of Botswana from which the P 100 billion theft is allegedly the origin, has consistently and repeatedly pronounced itself to the position that Botswana has never had P 100 billion let alone the same stolen. This being the case, has Nel and the DPP constructively engaged the Bank to ascertain if or not such theft took place. Should the Bank have not been forthcoming, I believe some lawful mechanisms would have been instituted to compel it to play its cards open. If constructively engaged, the Bank would surely play its cards open to indicate and affirm its position that no theft and subsequently P 100 billion was ever stolen whether in tranches or all at once. The Bank of Botswana is very important because it would provide the requisite paper trail to the complex chess board if it ever existed. Pursuing further investigations abroad would be informed by what would have arisen from the Bank.
The other point of call for Nel would be the investigations as undertaken by the various State institutions like the Directorate on Corruption and Economic Crime (DCEC), DIS and the DPP itself. The affidavit deposed to by the DCEC investigator Jako Hubona becomes central to the manner in which information contained therein was obtained. To start with as it appeared in the Omnia Strategy report, the said affidavit was poorly constructed with so many typo and other anomalies of significant nature. This is not helped by the reported infighting amongst the institutions themselves. It looked like it was hastily prepared under duress to achieve a pre-determined outcome. I was dump founded as to how such a crucial document with far reaching consequences for those named therein could have easily passed through the hands of people who are very much capacitated to have noticed the many errors it contained. My own observation and conclusion is that such affidavit possibly by-passed the requisite quality test given the widely reported disharmony obtaining in the institutions investigating the money laundering and other relevant cases. If the said disharmony indeed exists as indications point in that direction, no credible investigation could possibly and legitimately accrue therefrom.
An important observation must be made to say that the cases against Khama, Kgosi and Butterfly started a few months after the transition from the Khama to the Masisi administrations. And these would be around the period leading up to the 2019 general election. As a campaign strategy by the Masisi led Botswana Democratic Party (BDP), a lot of emphasis was placed on fighting against corruption, the Rule of Law and so forth. So when the arrest of Butterfly premised on many criminal charges ensued, the Hollywood style arrest of Kgosi and the belief created to the effect that Khama was intrinsically involved in the P 100 billion theft, the political strategy arguably put the BDP at pole position to win that election. While the cases are in the main premised on law, it cannot be avoided or denied that they are also political given the prominence of Khama as the overriding factor. The State institutions investigating the cases were in my view caught between a rock and a hard place as to whether to make an informed judgement purely based on law or act on political convenience towards Masisi and the same against Khama. Otherwise and every steps of the way, the whole confusion we see shouldn’t have arisen. If there was a solid legal basis to prefer charges against Butterfly, there shouldn’t have been second guessing of the whole fiasco as it patently seems to be the case. To put further confusion in the mix, Khama has never appeared in court on allegations of his part in the money laundering case. This is an anomaly of huge significance.
When all is said and done, it is my considered view that Advocate Gerrie Nel and the Director of Public Prosecutions are passing the buck for their failure to crack the P 100 billion theft case. It is simply not enough to suggest State institutions are not forthcoming with crucial information and evidence to mount a solid winnable case. If such crucial information and evidence were lacking as it has become abundantly clear, what good did it serve to prematurely take the matter to court? The saying he who alleges must prove becomes applicable because the onus to do so lies with State institutions particularly the prosecution. It should not be difficult to point out which institution is withholding crucial information as already alluded to above. What is difficult and unacceptably so, is the failure to retrieve it. This for me, is Nel’s core function. Given the almost irreparable harm these institutions have caused Botswana and Batswana, singularly and collectively, no head has rolled. It should be fair to suggest the powers that be condone the serious blunders committed by these institutions for failing to decisively act. I am prepared to be persuaded otherwise as always. Judge for Yourself!
‘No one is safe until everyone is safe.’ It is in our hands to do so by singularly and collectively adhering to all Covid-19 protocols. Let me take this opportunity to wish all of us who are deeply fighting for their lives owing to the pandemic. Let me also wish comfort to all families of those who sadly, have passed on. My special wish goes to the family of my former colleague Mr Mochudi Ramosesane. You have run your race dear colleague. MHSRIP.
