BY MPHO KELEBOGE
The enactment of the Proceeds and Instruments of Crime Act (PICA) in 2015 was born out of a realization that existing legislation was inadequate as it is reactive and conviction based; often coming after the proceeds of crime have been dissipated thus making crime a rewarding experience.
The purpose of PICA is to remove the profit incentive from crime. The preamble to PICA states that it is: “An Act to deprive persons of convicted of certain crimes of the benefits and rewards gained from such crimes; to deprive persons of property suspected to be a proceed or instrument of crime; to deal with issues such as money laundering, racketeering and other incidental and connected matters”.
Furthermore, PICA is a relatively new Act which has brought a paradigm shift in dealing with proceeds of crime. In terms of classical criminal law, forfeiture of the proceeds of crime can only come after conviction. The promulgation of PICA came as a result of the realization of the inadequacies in Botswana’s conventional criminal law measures aimed at dealing with organized crime, money laundering, proceeds of crime and racketeering.
PICA has brought about a fundamental change in dealing with proceeds of crime. It has introduced a new concept such as instruments and instrumentalities of crime. Most importantly it has introduced the concept of civil penalty orders and civil forfeiture orders not necessarily conviction based. To cap it all,, it has brought into Botswana criminal law, the concept of in rem applications traditionally applicable to Admiralty law.
The Act also has dimensions as it deals with proceeds of crime committed in foreign jurisdictions.
In his December 2018 judgment, Justice Moroka underscored that civil forfeiture is increasingly being accepted by many nations as a legitimate law enforcement tool to combat serious crime. Forfeiture both prevents further illicit use of the property and imposes an economic penalty, there by rendering illegal behaviour unprofitable.
Despite the victory by state against the four former employees of the Department of land, the state could not secure the same at the highest court in the land recently. Initially the High Court ÔÇô through Justice Nthomiwa Godfrey Nthomiwa had given the state green light to forfeit the P10.5 million that was being battled for against Kgori Capital.
Kgori Capital attorney – Busang Manawe made calculated move, appealing against Justice Nthomiwa’s ruling which was made in April 2019.
In his submission, at the Court of Appeal and even at the High Court, the defendants’ attorney decried of the abuse of PICA by the Directorate of Public Prosecution (DPP) especially in most of the cases that are related to the P230 million National Petroleum Fund (NPF) saga.
By Friday last week, three panel of Court of Appeal Judges being Judge President, Ian Kirby, Justice Harms and Justice Isaac Lesetedi absolved Kenneth Kerekang, former Kgori Capital director – Bakang Seretse and Kgori capital Directors Sarifa Noor and Alfonse Nzinge from any wrong doing.
The Judges said out of the four charges namely money laundering, abuse of office, Cheating of Public Revenue, and obtaining by Public pretences the state has failed to provide any evidence that suggests that Kgori capital was in breach of the binding service agreement.
The Court of appeal judges’ fall short of agreeing with defense that the state is abusing PICA as evidence by their line of dismissal arguing that the heads of arguments by DPP were rather laconic and oral arguments was somewhat different from what had been the case until then.
The judges said, on question as to who had been deceived by Kgori, counsel for DPP Ernest Mosate and his team gave no answer because there was no answer because the government represented by Kerekang knew all and more than two signatories to the mandate and that everyone knew that the management obligation which had to fall on Kgori was due to begin within days.
”Everyone knew that a fee had to be discussed with the department which was at least ostensibly represented by Kerekang. Kgori was not going to do it for free. There was no indication that a fee had to be subject of separate tender process which in any event would have been in breach of the binding service agreement, ”said the judges
On a charge of Public revenue the judges said Kgori was not shown to have acted fraudulently, because the ground was not established even on a prima facie basis.
The court of appeal also found that in a charge of abuse of office, Kerekang was not party to the proceedings because he had not directly or indirectly used his position in a public body to obtain any valuables consideration to benefit himself.
The judges said The High court was wrong to arrive at a conclusion that a serious crime related activity was committed by Kerekang.
The test, the CoA said, is whether Kgori Capital was engaged in a serious crime related activity and to benefit from a crime is not the same as engaging in a crime.
The judges slapped at the state prosecutions legal team for their shoddy work arguing that they have failed to deal and protect government by rebuffing the evidence of Sharifa Noor who is a director and chief operations manager at Kgori capital.
CoA further stated that Kgori Capital openly dealt with the investment portfolio, issued monthly invoices, provides reports, and that it did not as DPP said, go into a spending spree, it did not dissipate money and that it did not move and hide.