Thursday, January 28, 2021

Seretse’s acquittal ÔÇô beginning or the end?

When the dust has settled after the acquittal of Ramadeluka Seretse, the dynamics of Botswana’s political landscape will have changed. Tellingly, the Defence, Justice and Security portfolio had remained vacant after Seretse had stood down in the face of his pending trial for corruption. As a result, many have posited that President Ian Khama will no longer have sleepless nights because his succession plan is now back on track.

However, some hard questions were being asked after Khama rushed to reappoint Seretse to cabinet a few hours after he was acquitted, in the process sacrificing transport minister, Frank Ramsden.

Complications also emerged because, immediately after Seretse was reappointed, the Directorate of Public Prosecutions filed a notice of intention to appeal Regional Magistrate Barnabas Nyamadzabo’s ruling.

Did the President know that DPP would appeal before rushing to re-appoint Seretse? Did he seek legal opinion from the Attorney General? Why didn’t the Director of DPP, Len Sechele, inform the President of their intention to sue?

The story gets deeper still. It has now emerged that the two may find themselves at odds with the President, after reports surfaced that Khama is planning to appoint a commission of inquiry to probe their ‘questionable’ prosecution of Seretse and finance Minister Ken Matambo. The presidency is also not impressed with the damage that the prosecution of the two has done to the international reputation of Botswana. The situation might not be helped by a possible decision by the two ministers to sue the DPP for malicious prosecution.

It would also be interesting to evaluate the basis on which Seretse was acquitted on Tuesday after filing an application for acquittal as per Section 150(4) of the Criminal Proceedings and Evidence Act, which allows him to apply for an acquittal even before the merits of the case can be considered. He also argued that any adjournment of the trial will be a contravention of his constitutional right to a speedy trial.

While the notice of appeal has sent shockwaves throughout the government enclave, especially since Seretse has been reappointed to cabinet, those who followed the trial closely will point to the numerous incidents in which the prosecution and Nyamadzabo rubbed each other up the wrong way. The prosecution has not revealed their grounds for appeal, but many expect that they felt shortchanged by Nyamadzabo during the trial.

Seretse’s application was triggered by the prosecution’s insistence that the trial should be adjourned while the Court of Appeal addressed another matter in which they were appealing the High Court’s dismissal of their request to be supplied with the trial’s typed records.?Nyamadzabo, on the other hand, found that the prosecution wrongly assumed that once a matter has been referred to the Court of Appeal then proceedings should be stayed at the magistrates’ court. He also found that the state will not be able to make the corruption charge stick, as state witnesses had testified that Seretse was not part of the tender adjudication process and never tried to influence their deliberations.

Ever since it started, the trial had not been short of acrimony and controversy. In December 2010, Nyamadzabo had to intervene and compel the state to accede to the defense’s requests for minutes of cabinet meetings, through which they would be able to discern if indeed Seretse failed to declare his interest in RFT Botswana to cabinet.

While the defense raised complaints about the issue, Nyamadzabo insisted that an arrangement should be made and the cabinet minutes should be referred to the prosecution within 24 hours. The trial commenced after the minutes were supplied, and the state called their first two witnesses, Police Commissioner Thebeyame Tsimako and Air Support Services Commander Tapudzani Pester Gabolokwe.

The state later filed a complaint with the Lobatse High Court, complaining about Nyamadzabo’s conduct and alleging that he had unnecessarily overruled their objection to the way the defense was cross-examining Gabolokwe.

The prosecution had objected to Gabolokwe’s line of answering, saying it amounted to hearsay, but were overruled by Nyamadzabo. The prosecution further argued that defense attorney Parks Tafa’s cross examination allowed introduction of inadmissible hearsay evidence. They also accused Tafa of misleading Gabolekwe and cross examining him on questions of law when he was a witness of fact.
The state complained that Nyamadzabo allowed the defense to use contents of the statement despite the fact that the author of such statement had not yet confirmed the contents. 

In defense, Tafa dismissed the prosecution’s application as a delaying tactic. He denied that there were any misleading questions asked during examination. Tafa further submitted that questions put to Gabolokwe in cross-examination were not questions of law.

“They were relevant questions of fact falling within his senior and authoritative position as project manager, with a responsibility to deliver the project timely, cost effectively, and in compliance with the stipulated procedures,” he said.

Tafa argued that Gabolokwe was properly placed to explain if procurement procedures were followed in awarding the tender. He said witness statements and all other documents discovered by the state can be used during cross-examination in order to elicit suppressed facts. The High Court later dismissed the prosecution’s application.

Nyamadzabo later took a swipe at the Directorate of Public Prosecutions, saying they were unreasonable when they made an application, seeking the court to supply them with typed records of the trial. He overruled the application, saying it was unreasonable for the prosecution to make such an application when they have been in court all along. “This will delay the case because this court has no stenographers,” he said.

The DPP sought recourse at the High Court and lost the application. They later asked for Seretse’s prosecution to be stayed until the Court of Appeal considered their application. It was then that Seretse filed for a discharge and acquittal, arguing that the state was desecrating his constitutional right to a speedy trial through unnecessary applications.

When making judgement on the ruling, Nyamadzabo made reference to the “unfortunate conduct of the DPP, who wanted to delay the trial unnecessarily”. In his ruling, he found that the DPP’s contention that the trial should be stayed while they made an application to the High Court was flawed.

He said Section 336 of the CPEa clearly states that such an action will interfere with the constitutional provisions of a speedy trial. “The DPP ignored the High Court order and the court order of 25 July 2011.This conduct is contrary to the custom and practice of this court,” said Nyamadzabo.

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