Surcharge is a word in the Public Service Act which public officers of the 70s and 80s were familiar with and did not like. It was a form of a fine applied on officers who were deemed careless in the handling of government property. For instance a reckless driver would be held liable for recklessly causing damage to a government vehicle he was driving. He was made to pay part of the repair costs. Similarly, a photographer would be ordered to pay for part of a lost camera he had been using. It went on like that in the whole public office. As a result of surcharge, sufficient care on government property was exercised because officers feared being surcharged.
Nowadays it seems surcharge applies to the public service only while in other government institutions, it is something unheard of. I am particularly referring to the Directorate for Intelligent and Security Services (DISS) and the Botswana Police Services (BPS). The recent case of the MP for Lobatse, Dr Thapelo Matsheka who was unlawfully kept in custody for about 72 hours resulting with the prosecuting authority going to court to try to defend the indefensible, shows that the Botswana Police and their surrogate DISS don’t learn from their past mistakes. For that reason, the public has been ordered to pay the legal costs of releasing Dr Matsheka from custody.
It is not those who kept him unlawfully in detention who will pay. It is the tax payer who will dig deeper in their pockets to pay the costs of the two senior counsels who represented Dr. Matsheka at the High Court. We still don’t know the amount but rest assured that it is substantial. In the Matsheka case, surely they qualify for surcharge. Just for how long is the public going to be expected to pay the legal bills which would otherwise have been avoided if the investigating officers had exercised care? What makes them commit these silly mistakes whenever it is a high profile case they are dealing with? Later in this article, I will demonstrate why I am saying the two institutions are failing to learn from their past mistakes.
Dr. Matsheka was held allegedly for having a hand in the murder of Tlotso Karema on Mach 18. Whether he was involved in that murder case or not, his detention could be a blessing in disguise. Imagine what would have happened if he was an ordinary citizen who does not know his rights. Surely the public would not have been made aware of this abuse of power by investigating officers. Legally, suspects are detained for 48 hours. At that time frame, it is either a suspect is released or charged and presented to court for remand application. The remand is subject for extension by the court if there is the need for the suspect to remain in custody. Despite being in custody for about 72 hours, it is said Dr. Matsheka was interrogated for 30 minutes only. For God sake!
This is annoying. The nation is quietly angry. Their silence does not mean they are supportive of the mess the Police and DISS are doing. This is madness. The public’s silence should not be taken for granted. It will explode one day and once it did, it will be very difficult to distinguish. The DISS have become law unto themselves. In the days of Ian Khama’s administration, they were vicious as it appeared they were untouchable. They did as they pleased. They accounted to themselves , hence there was the general fear in the society to openly criticize them.
When President Mokgweetsi Masisi came in, they were still wild. He worked hard in order to tame them and the public embraced them as their sons and daughters. Unfortunately the situation is the reverse. This is perhaps the result of a bill which is never thoroughly debated when presented in Parliament despite its serious implications. The Bill that gave birth was not given the attention it deserved hen it was bought to parliament. Perhaps it was so because it had the backing of President Khama whose private secretary, Isaac Kgosi had been given study leave to the United Kingdom in preparation to become the head of DISS once established.
I remember that some years ago, when the National Security Bill was debated in parliament, it went through all stages with minimum debates yet it carried imprisonment sentences of over 30 years. I was covering parliament at the time and I was so surprised that I wrote a story for the Daily News whose intro was something like “Contrary to expectations, the National Security Bill with far reaching implications, went through all stages without being debated”. As far as I can remember, all the charges which were formulated under National Security Act ended with acquittal. In one case a High Court judge asked the prosecutor to explain what made the stealing of a police van by South African commandoes during the raid at Kgale a national security issue and not a matter falling under the penal code? The prosecutor struggled to explain but failed to persuade the judge into accepting his reasoning.
In 1995, the Botswana Police were in this situation. Earlier, I promised to explain what I meant when I said the police didn’t learn from their past mistakes. This is what I meant. Following the 1994 murder of a young Mochudi school girl called Segametsi Mogomotsi, her friend and school mate called Monnye Modimakwane made a statement to the police implicating Mokgalo Sekobye and two others, Nnana Kgetse and Carter Kgetse in the murder of her friend. The suspects were arrested “solely” on the bases of Monnye’s statement. One day when they were languishing in prison as awaiting trial prisoners for the death of Segametsi, Monnye withdrew the statement she had made to the police saying she had “lied” in her statement. Guess what. That simply collapsed the case against Mokgalo and his co-accused.
Monnye’s decision to withdraw her statement meant that the detainees be released forthwith. But that was not to be. The day after she had withdrawn her statement, the police took the detainees to the Magistrate Court for further remand. Mind you, a junior police officer had written in the police’s investigation diary a recommendation to the officer commanding for the release of the detainees. For no apparent reason, the recommendation was never acted upon. Neither the magistrate nor the suspects were made aware that the statement that had been relied upon when arresting them had been withdrawn. They were still treated as suspects and that was unlawful.
The moment Monnye withdrew her statement, Mokgalo was no longer a suspect in the Segametsi’s murder. Believe me, a day or so after the statement that led to Mokgalo’s arrest was withdrawn, he and his co-accused were presented to the magistrate court in Mochudi from the maximum prison in Gaborone by a police inspector for a further 14 days remand. They were not told that the statement that led to their arrest had been withdrawn and that they were n longer suspects. The magistrate was also not told of the withdrawal of that statement. The detainees were still treated like hard core criminals. When they were finally released by the attorney general, Mokgalo arrived home to find out that his house had been destroyed.
He then sued the state for wrongful arrest and damage to property. He lost at the High Court level but succeeded at the Court of Appeal level where it was held that his continued detention even after Monnye had withdrawn her statement was unlawful. The state was ordered to pay his South African based senior counsel’s costs and a substantial amount of money in damages. Poor Nnana Kgetse and Carter Kgetse did not sue because they could not afford legal costs. That saved the state because costs would have been too high perhaps close to a million Pula. It is on the bases of these similarities in the Mokgalo and Matsheka cases that I conclude that the BPS and DISS are not learning from their past mistakes. By the way, Segametsi was murdered for ritual purposes. I am certain because I am in possession of the postmortem report. Events surrounding the murder of Lobatse school boy suggest that he too was killed for ritual purposes.
Again the mandate of DISS must be revisited with a view to seeing if it did not encroach into that of the Botswana Police Service. Otherwise involving them openly on simple murder cases looks clumsy. Some people think murder is a matter which should be left to the police only. Otherwise why are the DISS not involved in stock theft, rape and assault cases? Sooner or later, the public will be hearing stories of the DISS having sealed the offices of the BPS like they did at the offices of the Directorate on Economic Crime and Corruption (DCEC). What is so special about murder cases? Why can’t they concentrate on intelligent gathering and supply it to the Botswana Police to beef up their investigations?
Before then, there was what was called the Special Branch (SB). They were never seen investigating murder cases. They were responsible for among other things, national security and intelligence gathering. This should be the core function of DISS. The prosecution department seems to be weak in terms of quality and not numbers. Gone re the days where they used to shine in curt. The days of the likes of Phandu Skelemani, Samuel Afful, Leatile Dambe and subsequently the days of the likes of Unoda Mack and Kgosietsile Ngakaagae. The prosecution department should strengthen itself by recruiting Mack and Ngakaagae back to the public service like they did years ago when they lured Ian Kirby and Abegnigo Tafa back to the public service.
