Friday the 13th is considered a day of bad luck the world over. For South African President Jacob Zuma this will certainly be the case as the day will be remembered by him, as one fraught with trepidation due to the South African Supreme Court confirming that he has to face criminal charges on 783 counts of corruption emanating from South Africa’s massive rearmament programme in 1999.
Within our own borders, court proceedings into our own preeminent corruption investigations resumed this week. On October 10, High Court Judge, Leburu J heard a long pending case against this publication where, in 2014, the Attorney General had approached the Court to prevent this publication’s revelations of corruption investigations into the conduct of the Director General of the Directorate of Intelligence Services Isaac Kgosi. Despite previous undertakings to abandon the application by then Attorney General A. Molokomme, the current AG. A. Keetsabe has elected to continue with the interdict proceedings in spite of the passage of time and the widespread coverage the Investigation Diary received in the media.
The interdictory relief sought by the Attorney General, had initially attempted to muzzle all coverage, though only against this media house, of any matter relating to the investigations into the alleged criminal malfeasance of Kgosi. At the time of seeking the interdict, representations by The Sunday Standards’ Attorney Dick Bayford, had led to the state attorney entering into a temporary agreement, which allowed the continued publication of the Directorate of Corruption and Economic Crime’s leaked Investigation Diary, subject to the withholding of witnesses names.
Neither the Attorney General nor the Director of Public Prosecutions have made public whether they intend to initiate criminal proceedings against Kgosi or not. The contradictory positions by the various government departments seized with the matter has raised public ire and lack of confidence into the independence of the DPP and DCEC.
This Friday, the South African Supreme Court held that the decision to withdraw charges against Zuma in 2009 had been based on an unlawful exercise of discretion by the Head of the South African National Prosecuting Authority (NPA).
The infamous “Zuma Tapes” purported to reveal that there had been “political meddling” into the role of the South African National Prosecuting Authority which had resulted in an “unlawful” decision being made to initiate corruption charges against him in 2005.
According to the NPA, at the time, the “Zuma tapes” revealed that the 2005 decision to prosecute Zuma had been motivated by political interests as opposed to the legal considerations of whether there was sufficient evidence to prosecute the currently embattled South African President. While the NPA has continuously refused to avail and reveal the contents of the “Zuma tapes”, it has argued repeatedly in Court that meddling undermined the independence of the prosecuting authority and as a result tainted the prosecution to the extent that the prosecution of Zuma could not be sustained.
The Supreme Court has now confirmed the decision of the lower court, delivered earlier this year that the basis of the initial withdrawal of charges against Zuma was wrong in law. Almost 9 years after the charges were first levelled against Zuma, the path to his prosecution has now been opened though it remains to be seen what additional obstacles the powerful South African President will seek to put in place to prevent his prosecution.
The Supreme Court Judgment against Zuma will send a warning shot across the border into Botswana, where the Director of Public Prosecutions and his predecessors continue to face public scrutiny into the lack of a decision to prosecute (or not) the Director General of the Directorate of Intelligence Services, Isaac Kgosi.
Kgosi was investigated by the anti-corruption unit, the DCEC, over a period of 2 years. Investigations were concluded in 2013 The chief investigator, McKienzie, an Australian national working with the organisation was compelled to seek assistance from his Embassy and to repatriate his wife and children, for fear for their safety back to Australia, and subsequently to flee Botswana himself. The inaction by those with the authority to make a determination as to whether to prosecute Kgosi or not, as a result of the extensive investigation resulted in frustrated members of the DCEC widely leaking the Investigation Diary to the media. The Diary received widespread coverage by most, if not all media houses in Botswana at the time, and in spite of continuous media coverage and enquiries by media houses the status of investigations and the where about of the investigation docket itself remains shrouded in secrecy.
In May (26) then Director of the DCEC, Rose Seretse testified under oath before the Parliamentary Accounts Committee (PAC) that the investigations Kgosi had been completed and docket had forwarded to the DPP for action.
In an interview with The Botswana Gazette following Seretse’s testimony before the PAC, then acting DPP Director Kabo Leinaneng contradicted Seretse’s statements (The Botswana Gazette- Kgosi Docket- Too hot to handle [June 2017]). The DPP informed that publication that the Kgosi docket had been returned to the DCEC and remained with the DCEC and as the investigations “were still ongoing”.
Leinaeng had informed the publication that the DCEC was still investigating the allegations of corruption against Kgosi “due to their complexity”. The Director of Public Prosecutions advised that the docket had returned to the DPP, from the time the DPP had requested additional investigations to be carried out in 2014.
In 2012, the DCEC and the DISS were placed under the administrative oversight of the Office of the President. Kgosi and President Khama have enjoyed a close association since their days in the BDF, when Kgosi was Khama’s Buttman.
As with Zuma’s corruption case, the allegations into Kgosi’s criminal malfeasance requires resolution, if public confidence into the independence of democracy oversight institutions is to be restored. In light to the political protection both are perceived to enjoy, any hope of restoring confidence in the prosecution of those within the upper echelons of the political hierarchy has to be through the courts.
The more profound question that then arises is whether the public has sufficient trust in the independence of the judiciary.