The Directorate of Public Prosecution which has produced a marathon comedy of errors in their attempt to prosecute high profile corruption cases last week added former Directorate of Intelligence Services (DIS) boss, Isaac Kgosi’s case to the slapstick as an encore.
The former DIS Director General last week brushed aside the DPPs P250 million National Petroleum Fund (NPF) case to cap what has been an embarrassing year for the prosecution.
In a year when everything that could go wrong, did go wrong for the DPP, the public prosecutor last week lost a case the nation was made to believe was a slam dunk.
The latest ruling comes just a week after the DPP withdrew charges of Financial Terrorism against DIS agent Wilhelmina ‘Butterfly’ Maswabi. In the controversial P100 billion Bank of Botswana alleged heist, the prosecution was accused of putting the horse before the cart by prematurely laying charges before caring out investigations.
Earlier this month the DPP were in the losing end again as the Lobatse High Court ordered the State to release P82 million and properties belonging to another NPF accused Bakang Seretse and his companies seized by the state at the beginning of the case.
A week earlier the DPP had suffered another devastating defeat at Gaborone High Court against the Kebonang brothers, Sadique and Zein, over money laundering charges in relation to the NPF case.
In the most recent ruling over a review application, delivered on Thursday November 26, 2020 Judge Michael Leburu described the decision by the DPP to charge Kgosi and co-accused Kenneth Kerekang as irrational. The Court found that the prosecution, failed to establish a prima facie case against Kgosi, represented by attorneys Unoda Mack and Thabiso Tafila. Judge Leburu said before a prosecutor can charge a suspect, it is imperative that certain jurisdictional facts ought to be in existence.
He cited various authorities from the Court of Appeal including that of Sunday Standard editor Outsa Mokone vs The Attorney General and Others.
Leburu said the DPP failed to demonstrate to the Court the jurisdictional facts to justify the exercise of their prosecutorial discretion.
“Prosecutors are not persecutors. They are not avenging angels. They are ministers of justice and fairness,” Leburu said, adding “…there must be a reasonable and probable cause to believe that the accused is guilty and further that a prosecution is not to be commenced without that minimum evidence.”
The Judge said it was important that the DPP records contain all the relevant and material evidence that stimulated the prosecution to charge Kgosi. “Insufficient evidence can never be prima facie case or constitute prima facie evidence to warrant a prosecution. A prima facie evidence or prima facie evidence encapsulates the notions of sufficiency to warrant a prosecution.”
The DPP charged Kgosi and Kerekang with two counts of corruption by a Public Officer, and abuse of Office. According to the DPP, the decision to prosecute the two was based on investigations conducted by the Directorate on Corruption and Economic Crime (The DCEC), who found that the two, corruptly transferred P250 million to Khulaco (Pty) Ltd and further that they authorized, unlawfully and corruptly, the payment of 20% commission, to the said company, owned by Bakang Seretse.
Asked to prove how the funds in question which were utilized to purchase security apparatus and services for the DIS and considering the contract with the supplier (Dignia Securities) was unlawful and prejudicial to the rights of the Government of Botswana, the DPP said they could only provide such evidence during trial.
In his Court papers Kgosi describes the chronology of events leading to the transfer and subsequent use of part of the P250 million. According the former spy boss in July 2017, the DIS requested funding for the construction of its Petroleum Storage Facilities from the Ministry of Minerals and Green Technology. The request was for the sum of P250 million which was approved by the said Ministry.
“The request for such funding had been preceded by a study conducted by Petrocomm, on behalf of DIS and the Ministry of Minerals and Green Technology … The Ministry had previously funded DIS Petroleum Storage Facilities in 2010. The National Petroleum Fund (NPF) was at that material time managed by Fund Managers Kgosi Capital (Pty) Ltd. On the advice of the Fund Managers, the P250m was ring forced through a company called Khulaco Pty Ltd, hence the transfer to Khulaco (Pty) Ltd at the instruction of the applicant to the Director, Department of Energy Affairs (Kenneth Kerekang) per Savingram (filed of record) dated 10 August 2017,” Kgosi said in his affidavit. He said the decision to apply for variation from the initial purpose for which the money was availed was informed by increased poaching activities which he said, threatened Botswana’s tourism.
“It is common cause that such variation to purchase surveillance equipment to combat poaching was approved by the then said Ministry. The Savingram approving such variation is filed of record, authored by the acting Permanent Secretary to the Ministry, being the accounting officer.” The Acting Permanent Secretary subsequently withdrew the authority to vary the usage of the funds, Kgosi says, but the letter withdrawing the variation authorization only came to his attention after the DIS had already procured security and surveillance equipment which have been received by the DIS.
In his ruling Leburu said the decision by the DPP to charge Kgosi and Kerekang was irrational and liable to be reviewed and set aside. He ordered that both the respondents, DPP and Attorney General, shall bear the costs of the application.