Thursday, October 28, 2021

Law Society has already pronounced position on lawyer it will investigate

The Law Society of Botswana (LSB) may have put itself in a difficult position by calling for the resignation of the Director of the Directorate of Public Prosecutions, Stephen Tiroyakgosi, from office. The Society now has to investigate the same Tiroyakgosi and possibly recommend punitive action whose net effect might be his removal from office.

Tiroyakgosi is at the centre of the so-called “Butterfly” matter which ended dramatically a fortnight ago when a High Court judge pronounced that charges that had been levelled against Welheminah “Butterfly” Maswabi were “fabricated.” Maswabi is a Directorate of Intelligence and Security Services (DISS) agent whom the state accused of having facilitated illegal transfer of P100 billion from Botswana’s foreign reserves to personal accounts of her accomplices. Even when the Bank of Botswana insisted that no money was missing, the state maintained that former president Ian Khama and his DISS Director-General, Colonel Isaac Kgosi, as well as South African businesswoman, Bridget Motsepe, had connived with Maswabi. However, a judgement handed down by Justice Zein Kebonang, says that all charges in the Butterfly case were fabricated. One of the orders in the judgement instructs LSB to investigate Tiroyakgosi and the prosecutor, Priscilla Israel, for professional misconduct.

Four months before this judgement and amid talk of unethical conduct by those investigating and prosecuting the matter, LSB put out a press statement in which it called “for the immediate resignation of Mr. Tiroyakgosi from office so that much needed work to restore public confidence in the work of the DPP can start.” In terms of what Kebonang ordered and in compliance with the Legal Practitioners Act, Tiroyakgosi is supposed to appear before LSB’s Disciplinary Committee. The latter shall investigate him “by making such inquiries as it may think fit.”

Four courses of action are open to the Committee: warning or reprimanding Tiroyakgosi, fining him a sum not more than P10 000, suspending him from practising law for a specified period or having his name removed from the roll. In the case of the last two recommendations, the LSB Council is required to make an application to the High Court – which may order that any question of fact shall be tried by pleadings and will have final say on the matter.

Tiroyakgosi’s removal from the roll would effectively put him out of legal practice – and office. For LSB, this option has a perceptible third-rail character because it is the same outcome that the same Society has already advocated for even before it conducted any investigations. This raises the question: why engage in an investigative process that provides for an outcome that you already favour – and have so publicly indicated? Alternatively, the Society’s option to reach a conclusion it is already known to favour is desperately compromised.

Ultimately though and in fairness to the Society, it will be the High Court that decides whether Tiroyakgosi’s name should be removed from the roll. And, if the Committee “fails” to take action, the Attorney General (AG) may himself apply to the High Court for Tiroyakgosi’s suspension or removal of his name from the roll. The latter happens when the AG feels that “serious professional misconduct” occurred. The difference here though would be that unlike the LSB, the AG has never made any public pronouncements in which it revealed partiality to any particular outcome even before it conducted an investigation.

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