Monday, September 28, 2020

Nchindo and others: a theoretical analysis of the media and the legal process

This article focuses on the transcript of an interview reportedly given by Mr. Louis Nchindo to the DCEC in December 2007, and subsequently published by Sunday Standard (Jan. 13 ÔÇô 19, 2008, p4). My motive for writing is neither personal nor mercenary, and I was prompted to write by purely intellectual passion.

In my previous articles in this newspaper I attempted to demonstrate the rewards of a broader as against the weaknesses of a narrower intellectual approach in addressing a wide spectrum of social problems and issues. Most of these problems and issues defy any attempt to make them simple one-dimensional issues ÔÇô as just a legal problem or just a political problem or just a personal problem. This is how Nchindo’s story has been depicted ÔÇô in a pigeon-holed manner. One way to approach a problem (whether legal, political, and so forth), is to think about the different dimensions that the problem shows. This approach provides us a set of analytical tools with which to increase our understanding of the issues involved. This applies in no less measure to Nchindo. What we must bear in mind with respect to his alleged impending prosecution is that some legal issues are of such complexity that they may be best understood only through an approach that draws on a variety of perspectives, as I will seek to demonstrate below.
I propose to confine myself to the transcript. This is because, first, Nchindo’s interview is (whether rightly or wrongly) in the public domain. Second, it is true there has been mention of a charge sheet, although I am not privy to its contents or any other information or material. A charge sheet ÔÇô which normally sets out specific sections of the law which is alleged to have been broken ÔÇô is, until a criminal prosecution is instituted in a competent court, merely a sheet of official paper describing the nature of the offences alleged to have been committed. Therefore, dealing with it here would be speculative. The third reason is that since the matter is therefore not sub judice (as criminal proceedings are yet to be instituted) I am not prohibited from public discussion.

While the interview is dull and apathetic reading, it shows how an intelligent mind can skillfully usurp a procedure conducted by a seemingly nervy and Gothic interrogator. Unfortunately, the newspapers do not see it that way. The problem is, once newspaper editors have credulously taken up a position on some controversial issue, they are generally inclined to employ sophistic arguments in an attempt to get the public to adopt their point of view. To illustrate, when I read The Voice (Jan 18, 2008), I was immediately struck by the realization that even after discovering something certain and evident, the newspaper wrapped up its account in various obscurities. I suspect this is because either the newspaper’s editor feared that the simplicity of the argument might depreciate the “importance” of the conclusions made, or because the editor begrudged us the plain truth. How else was a reader expected to construe outbursts such as, “We now watch with fascination as a country once dubbed the jewel of Africa is shedding off its glittering skin and that for the first time, the real corruption deals and dirty antics are being thrust into the open with a vengeance”? (The Voice, p6).
But what particularly struck me in The Voice was the following passage: “We cannot hide our embarrassed (sic) delight that the once not touched diamond magnate now comes across as not being above the law.” Sometimes we have to do as conscience dictates, and mine drove me to remind the public at large that throughout the web of Botswana Criminal Law, one golden thread that is to be seen is this, that there is a presumption of innocence which applies to every individual, whether rich or poor, educated or uneducated, able-bodied or not. This is a factor which weighs with the courts of law in requiring the State to prove its case beyond a reasonable doubt before an accused is found guilty. If there is a doubt, then that doubt must be reflected in a verdict of “not guilty”. In a nutshell, it is not for Nchindo and others to prove their innocence.

The question is whether, at this juncture, there has been sufficient information, howsoever made known to the public, on the basis of which a reasonable reader may arrive at the conclusion that Nchindo is not innocent. In plain language, we would all be well-advised not to mix any conjectures into the judgments we make about the truth of things. The Botswana government, not President Festus Mogae, has seen a prima facie reason for launching a criminal investigation and, presumably, later preferring charges. But it is too early to judge Nchindo. What I have read so far in the newspapers has no useful effect but the potential to prejudice a fair hearing.
The purpose of the criminal law is to deal with those legal persons who have committed acts wrongful and harmful to society. I say “legal persons” because in this country natural persons and legal entities such as companies are all considered to have the capability of committing criminal acts and civil wrongs.

At the heart of our legal system lies this important question: to what extent should the law be used to enforce any particular social norm? The use of the criminal law by those in power to prohibit the behaviour of particular individuals or groups is a constant (though on occasion unwelcome) companion of democracy. The ordinary citizens may lose respect for the law and those elected to govern the country, if particular individuals or groups are perceived to be above the law. I agree that the problem we are discussing involves different levels of analysis as ably demonstrated by Spencer Mogapi’s piece (Sunday Standard, Jan 13 ÔÇô 19, 2008, p9). However, I do not agree with one the sweeping statement that the criminal process underway is “a terrible waste of state resources to settle what is essentially, personal scores.” Nor do I agree with the conclusion that “failure to disclose will no doubt spur ill feelings of public betrayal and mistrust against the President”.

If indeed Nchindo is charged that would be a validation of the legal process, not the execution of some imaginary personal vendetta. Sometimes, if those involved in certain actions considered detrimental to society are individuals whom the government and its agencies can look to as having the high responsibility for conducting the affairs of its business (Debswana, BTC, DTC, etc), this is the price they may find they must pay to reflect a consensus of condemnation for the identified behaviour, and to justify a punishment imposed by the law, in the event that the individual is tried and convicted of a crime. Secondly, it seems to me that it is necessary to distinguish between State morality and the private morality of those we have elected to public office. The civil courts are probably the fora best suited to settle personal spats, if any. In the criminal courts there must be credible evidence of spurious conduct in order to convict.

Is there prima facie evidence upon which a person may be charged? This is a legal question determined solely by the DPP. It is necessary to return to Nchindo’s interview both in order to learn what truths have already been discovered by the DCEC and also to be informed about the possible explanation of those likely to be charged. It is also necessary to revisit the interview to be informed about the points that need to be worked out by the DPP to institute criminal proceedings. The Parliament was informed last year about a forensic audit involving Debswana. Presumably, any prosecution would be premised on the outcome of this paper investigation by UK solicitors. It is difficult to draw too many conclusions from a single, gap-filling interview in a case likely to involve a number of accused persons and a multiplicity of charges.

Should criminal charges be instituted? This is also a legal question determined by the DPP. But in cases considered by the Attorney-General to be of national importance, the DPP is enjoined to first consult the A-G before exercising his or her powers to institute, undertake or discontinue criminal proceedings. That the Special Advisor to the President has seen fit to comment (Sunday Standard, Jan 20 ÔÇô 26, 2008, p10) is indicative of the importance attached by the government, and also places the matter beyond the province of private morality.

At the beginning of this article I mentioned that this whole issue should not be treated in a one-dimensional fashion. Therefore, we must ask: if a director of a company pursues for his or her own benefit a business opportunity in the company’s line of business, is there a conflict of interest and duty? According to Mogapi, when as a business reporter for Botswana Gazette in the 1990s he interviewed Nchindo, the latter “repeated his conviction that Debswana’s financial muscle had to be harnessed to empower citizens. Tourism was his recurring theme.” (Sunday Standard, Jan 13-19, 2008, p9). The real issue is whether the transaction relating to the land claimed by TDC was one into which, consistently with Nchindo’s duty to Debswana, he was at liberty to enter. I refer the reader to the interview transcript.

In the past the courts have replied: “…men who assume the complete control of a company’s business must remember that they are not at liberty to sacrifice the interests which they are bound to protect, and, while ostensibly acting for the company, divert in their own favour business which should properly belong to the company they represent.” In other words, the director or managing director is also a constructive trustee for the company of any property acquired.

How will Debswana be advised? Can the company successfully claim the land allocated by the government to TDC on the basis of the corporate opportunity doctrine? Who should account to Debswana for the profits, if any, made out of the transaction? What is the legal position as to the liability of Debswana’s directors at the time the transaction was undertaken? Who advises Debswana on these legal issues?

Michael L Mothobi is a trade scholar.

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Sunday Standard September 27 – 3 October

Digital copy of Sunday Standard issue of September 27 - 3 October, 2020.