Wednesday, October 20, 2021

Lawyer alleges malicious selective prosecution in P1.6 million CEDA fraud case

There has been a very strange development in a case in which the former Director General of the Directorate of Intelligence and Security Services, Isaac Kgosi, alleges that two Gaborone businessmen “connived with some Citizen Entrepreneurial Development Agency employees” to get a loan.

Two words are of interest here. Simply put and as used, “connived” means having actively aided and abetted the commission of a criminal offence (fraud) to get a CEDA loan. “Some” means that more than one person did the conniving. Oddly though, six years after the alleged fraud ÔÇô with a four-year lull in between ÔÇô only the two businessmen, Tshepo Makgalemele and Thulaganyo Boiditswe, who are both directors of a company called Kgang Tsa Rona, have been charged with fraud. As regards the CEDA employees, only one, CEDA Gaborone’s then Portfolio Manager, Anastacia Makwa, features as a state witness. Outside of what court papers say, Sunday Standard learns that a senior executive manager ÔÇô who has since left CEDA, was interrogated by DISS agents and, like Makgalemele and Boiditswe, spent a night in a police cell. Six years after the fact, the former CEDA manager has not been charged with criminal wrongdoing while the businessman pair was charged last month, six years after the alleged crime occurred.

With his knowledge and experience of court processes, the suspect’s lawyer, Lyndon Mothusi, says that if anybody else was charged, the charge sheet would make reference to “another person not before court.” That not being the case, he has charged that this apparent selective prosecution is evidence of the “malice” driving the state’s case.

“At this point, nobody else has made a statement to the police,” he says. “CEDA itself never reported any fraud committed by my clients to the police.”

As an extension of the latter point, the suspects argue in their court papers that Kgang tsa Rona, which dealt with CEDA, should have been incorporated in the case because it was a key player.

“We were acting in our representative capacity,” they argue. 

Kgosi deposed to an affidavit not in the criminal case but a lawsuit in which the two men were suing DISS and the Botswana Police Service (BPS) P18.6 million for acting in concert in their arrest and detention. They lost the case but have initiated a process to appeal the judgement. The sequence of events in this matter has left the men with an impression that the criminal case was an attempt to force them to withdraw the lawsuit. The arrest and detention happened in 2012, was followed by a four year lull that ended when the men launched their lawsuit in 2016. DISS passed on the case to BPS’ Serious Crime Squad which charged the men with fraud last month. Under Kgosi, DISS typically made out-of-court settlements with people who sued it for physical abuse. Had the lawsuit gone the whole way, that would have been the first time that DISS had actually gone to court to explain the conduct of its officers.

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