Wednesday, November 30, 2022

There are other ‘toothless bulldogs’ besides DCEC  

When the state won an iteration of the National Petroleum Fund (NPF) case that came before Justice Omphemetse Motumise, the defendants’ lawyer, Kgosietsile Ngakayagae, poked holes in the judgement and announced that his clients would be appealing it. He also extended a tongue-in-cheek congratulatory message to the Directorate of Public Prosecutions, saying the stood out from a string of losses that the Directorate has suffered.

In fairness to the Directorate though, it has probably won more cases than it lost but high-profile cases that attract media attention are in a different class altogether. Beyond the superficial (intense public attention and media spectacle), high-profile cases are significant in that they lead to significant legal outcomes. With regard to corruption, they often involve huge sums of public money. Corruption is the responsibility of the Directorate on Corruption and Economic Crime, which President Sir Ketumile Masire established in 1993. In a hopelessly ham-handed metaphorical scheme, the epithet that has persistently been used with regard to the Directorate is that it is a “toothless bulldog” that goes after small fish only while letting bigger, white-collar fish get off scot-free. In the past, a prose-comedy column has jokingly observed that as evidence of the latter, the DCEC offices were intentionally built across the road from the poorest residential district in Gaborone in order that it could be closer to small fish.

Oddly, for a nation able to spot and label toothless Bulldogs, Batswana have not used similar label on dogs of a similar breed whose kennels are only halfway across town. In as far as high-profile, high-stakes cases go, the DPP has proved itself to be a toothless Bulldog.

When the government claimed that P310 million in two tranches (P250 million and P60 million) had been tricked out of the NPF, there was clear understanding that a crime of monumental proportions had been committed and the public’s expectation was that the culprits would be punished. There was similar expectation when, in 2019, a Radio Botswana news bulletin led off with a story that former President General Ian Khama and his head of the Directorate of Intelligence Services and Security, Colonel Isaac Kgosi, had also tricked a whopping P100 billion out the state coffers. The technical end of the alleged theft (the transfer) was allegedly handled by a DISS agent codenamed Butterfly. The DPP lost both cases and continues to similar high-profile, high-stakes cases.

Just this past week, High Court judge, Justice Abednico Tafa, not only ruled that the state should return firearms that it had confiscated from Kgosi but that it should also stop dispossessing individuals of firearms they had acquired legally. A week earlier, another High Court judge, Justice Reuben Lekorwe, had ruled against the state in a case that the now suspended Director General, Tymon Katholo, sought DISS (no toothless Bulldog this one but a Bulldog/Rottweiler crossbreed) to lay off the operations of his department. The latter judgement is hugely consequential because it answered the question of whether DISS can easily step on the mandate of other government departments.

One aspect of DPP’s toothless as a Bulldog is a direct result of capitalism, which has created a judicial market that, for the most part, funnels top legal talent to the private sector. As everywhere else, this sector pays much, much better than the public one. Unlike the public sector, which DPP is part of, the private sector is not weighed down by a cumbersome bureaucracy. Good earnings and a favourable work environment are very important factors in motivating people: for that reason, there is a yawning gap between the level of motivation at DPP and that of the private sector. This is reflected in the quality of lawyering and its outcome.

However, it is also important to understand how the government departments work. DPP prosecutes cases that are investigated and referred to it by both the DCEC and the Botswana Police Service (BPS). Generally, a lawyer is as good as his/her case and if DCEC or BPS assembles a lousy case at the investigation level, prospects of good lawyering by DPP are desperately compromised. That is the context in which BPS comes into the picture as another toothless Bulldog.

In its dying days, the so-called British Empire bequeathed to former colonies a legal document called the Criminal Procedure and Evidence Act. The CPE, as it is called, outlines the law relating to procedure and evidence in criminal proceedings and is used across the Commonwealth. Ideally, all police officers should know the CPE like the teeth of their handcuffs but the reality is that in one too many cases, police investigations are littered with a litany of missteps that deviate from it. As often happens, some of those cases end up at DPP and the obvious happens. A BPS source says that criminality within the Service itself is a huge problem. According to him, valuables like cellphones and other small concealable items routinely disappear from the exhibits room courtesy of people whose job is to fight crime. 

Interestingly, the toothlessness of the DCEC and BPS is said to have motivated some DPP lawyers to quit the civil service and establish themselves in the private law practice by exploiting the weaknesses that are rampant within said investigatory arms – which weaknesses hobbled their lawyering when they worked for DPP.

The biggest toothless Bulldog in the public service though is the Office of the President, which makes critical decisions with regard to investigation and prosecution. Botswana’s presidency is all-powerful and there is no way that high-profile, high-stakes cases are prosecuted without the involvement if not direction of this office. When the Butterfly case came to light, Gen. Khama blamed his successor, President Mokgweetsi Masisi, for being the hidden hand behind it. Khama, who ensured that he left no presidential powers unused during his own tenure, was inadvertently revealing how the presidency works. Kgosi’s case is a good illustration of this point because his firearms were confiscated by DISS – whose Director General is supervised by the president. In passing, it is interesting to behold the supreme irony of Kgosi himself being a victim of a Bulldog/Rottweiler crossbreed whose teeth he filed to pin-point sharpness every day of the 10 long years that he was responsible for unleashing that dog on anyone across Botswana.

Appreciating the incidence and extent of toothlessness in the government is important for purposes of understanding the level of dysfunction within that same government. This could be evidence of a Third World system nearing collapse.

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