The lawyer representing Motlhaleemang Moalosi, a Botswana Congress Party (BCP) politician currently under police investigations for hacking into the Assistant Minister of Education and Skills Development, Fidelis Molao Facebook account and fabricating a conversation has rubbished the Police Forensic Audit expert evidence in court.
On Thursday last week, the lawyer, Owen Nsala said in part of his submissions before Francistown High Court Judge, Barnabas Nyamadzabo that that the police expert witness, Nonofo Dichabe who conducted forensic audits linking Moalosi to the alleged hacking incident is not qualified to give evidence and should not be treated by the court as a credible witness.
Moalosi through his lawyer, has tendered an urgent application before court, for the police to return his laptop which is in police custody for investigations. He claims that the laptop contains his study material as part of his studies at the Botswana International University of Science and Technology (BIUST) where he is studying for a Master’s Degree in Computer Science.
“The respondents came with a confirmatory affidavit from one Nonofo Dichabe who is a police expert purporting that he is a forensic expert who toured the laptop and found something damning to be used against Moalosi linking him to the alleged hacking incident. We are opposing that claim. First and foremost one realizes that in Dichabe’s affidavit, he has not put forth qualifications certifying him to be a qualified forensic expert in that regard,” he told court.
The purported Facebook conversation which has sent shockwaves across the country, links the Junior Minister Molao to the infamous Sebina Sex Scandal in which a Botswana Democratic Party(BDP) councilor of Sebina village, Kemmonye Amon impregnated a sixteen year old girl who is also a student. In the said conversation, the Molao who doubles as a member of parliament for Shashe West is quoted as having advised Amon to make the teenager disappear as this issue might scar the image of the BDP. Molao has denied his involvement in the conversation leaving the matter to the police for investigations further leading to the arrest of Moalosi.
Despite pressure from opposition parties and pressure groups for the Assistant Minister to step down from his post due to this scandalous Facebook conversation, he has refused the call and maintained his innocence. The pressure groups have also demanded for the councilor, Amon to be taken to task.
Nsala argued last week that in the absence of such certification or qualification, the court should not take the police expert into confidence. He said the police expert witness failed in his papers to explain how qualified he is to use and operate the Access Data Forensic Tool, a program which he claims to have used to analyze and link Moalosi to hacking incident.
“The witness failed dismally to demonstrate by reason of specified training or study that he is an expert in that field. Within this affidavit, Dichabe does not take the court to the exact qualification which necessitated his ability to make the findings,” said the lawyer.
Nsala maintained that evidently, the purported communication before the court clearly demonstrate that this conversation was sent from mobile phones which is contained in the confirmatory affidavit by Dichabe not from a laptop. He said there is no reasonable suspicion why his client should be linked to the hacking incident and for his laptop to be seized. Nsala further said in addition that Dichabe failed to demonstrate in his affidavit how a mobile phone conversation miraculously turns into a laptop conversation.
“The applicant has been able to demonstrate that what Dichabe seeks to rely on is what is known in the Information Technology field as social snippets. Shockingly Dichabe also agrees in the affidavit that those snippets are creation of the alleged false Facebook account. He however conveniently decides not to define what snippets are but defines other technical terms in the affidavit. I also wonder why one Titose Thipe who is implicated in this matter and Molao’s laptop were also not seized. The respondents cannot tell this court that the duo do not own laptops,” added Nsala.
Nsala maintained that the seizure of his client’s laptop was unlawful and demanded that it be returned as it affects his education. He further emphasized that the seizure of the laptop as political motivated. He said the court should take into cognition the fact that the Assistant Minister was quoted in a Gabz FM interview where he said that Moalosi was is his political rival.
However last minute efforts by Nsala to tender the Gabz audio clip as evidence in court was rejected by both the respondents lawyer, Wada Nfila as it was regarded unprocedural.
“It is possible that Molao has a motive of seeing the applicant becoming convict due to their political rivalry,” he maintained.
On the other hand, Nfila maintained in part of his arguments that there was nothing unlawful about the seizure of the laptop as section 57 of the Criminal Procedure and Evidence Act allows such a seizure pending investigations. In part of his submissions he said that the argument by the applicant’s lawyer that the police expert witness is not qualified in this case is immaterial and does not hold ground.
“The applicant never disputed the issue of qualifications or certification in his court papers. He is only bringing this issue now in court. This argument is immaterial before the court. We maintain that the police expert is qualified to give testimony in this case as per the required standards,” he maintained.
He said that there was reasonable grounds as to why the laptop was confiscated. He submitted that what the police must establish against the applicant is whether there is prima-facie evidence against the applicant, not necessarily to prove beyond reasonable doubt as that would be the duty of the court.
“If the police were expected to prove cases beyond reasonable doubt, then there would be no need for cases to be brought to courts and be tried. We submit that the police are only expected to establish a prima-facie evidence against the applicant,” he said in part of his argument.
Detective Senior Superintendent Seargent Marapo of the Botswana Police is cited as first respondent while the Attorney General is cited as second respondent.
Judgment will be delivered on the 29 of July 2016.