He is complicit if he does not fire the P100 billion fabricators
President Mokgweetsi Masisi’s incoming tray must be full to the brim with very important matters seeking his attention and resolution. Among these are the fate of Minister Anna Mokgethi and the Deputy Speaker, Pono Moatlhodi. But more profoundly will be the judgement of Justice Dr Zein Kebonang, wherein he discharged and acquitted DIS spy, Welheminah Maswabi codenamed Butterfly. The judgement will have a domino effect on Botswana’s Rule of Law and democracy amongst others. Dr Kebonang has made far reaching recommendations to Masisi in so far as the fate of the P100 billion triple fabricators is concerned.
The fabricators are named in the judgement as the Director of Public Prosecutions Advocate Stephen Tiroyakgosi, his Deputy Priscila Israel and the Lead DCEC Investigator Jako Hubona. According to the judgement, there was never a case. Justice Dr Kebonang has recommended that Masisi triggers a process on Tiroyakgosi and Israel respectively as the appointing authority while the line institutions do the same on Hubona. The big two questions are whether in our system, conditions are available and conducive for such fabrications to occur and whether Masisi will accept and implement the recommendations.
Fabrications
There is ample material, just across the border in neighbouring South Africa to interrogate whether conducive environment existed to permit fabrication in the Butterfly and other high profile cases like the National Petroleum Fund (NPF) looting. In a paper titled ‘State Capture and the Political Manipulation of Criminal Justice Agencies’ submitted by the Institute for Security Studies and Corruption Watch to the Judicial Commission of Inquiry into Allegations of State Capture, it says ‘The submission addresses the manipulation of criminal justice agencies under the administration of former President Jacob Zuma. This manipulation was a critical factor in entrenching and facilitating State Capture. The submission provides detailed examination of evidence about the nature of manipulation and interference in the South African Police Service and its intelligence division, the Directorate of Priority Crime Investigation, the National Prosecuting Authority……A major focus is on manipulation by the Executive of the appointment of senior leaders of these agencies…..’
If manipulation of criminal justice agencies could obtain in South Africa where the appointment of heads of these and other agencies is undertaken through a rigorous parliamentary process, what of Botswana where the President picks and chooses his preferred candidates, among them the Commissioner of Police, Director Generals of DCEC and DIS outside any rigorous process? The appointment of heads of criminal justice agencies in Botswana creates a lot of conducive environment for the appointees to be beholden to the President -the appointing authority. As soon as they become so beholden, they serve at the President’s bidding in any form or shape. Consequently, they conveniently and willfully forget the core mandate of the institutions they are supposed to lead, and rather become subservient to political authority, allowing themselves to be manipulated to the extent of contriving false and damaging allegations against fellow citizens.
That is the only plausible explanation why the head of DPP and his deputy -both of whom are seasoned legal gurus with many years of practice and experience between themselves, would allow themselves to take Maswabi to court fully aware that they their evidence does not meet the bare minimum requirements.
The long and short of it is that conditions in Botswana have, and still exist for fabrication of evidence to take place, whose main objective could be to incriminate innocent citizens and send them to jail, for whatever reason of the leadership’s desire. One wonders what would have happened to Butterfly if she could not afford top notch legal minds to defend her against fabricated terrorism and money laundering charges. She would have remained behind bars since 19th October 2019, and would have probably been convicted of the same fabricated charges.
Masisi’s call
Courts in different jurisdictions have made similar recommendations to those made by Justice Dr Zein Kebonang. In 2018, the South African Constitutional Court directed the Gauteng Director of Public Prosecutions to decide whether to prosecute the erstwhile Minister of Social Development Bathabile Dlamini for perjury after the court found she had lied under oath during an inquiry process instituted to find what role, if any, she had played in the 2017 social grants crisis. The court found that she was ‘reckless and grossly negligent.’ The latest is that the Gauteng DPP has decided to prosecute Dlamini.
Given the appalling nature of the investigations by the DCEC, coupled with the criminal conduct of the DPP, it is inconceivable that such sloppiness from the two top prosecutors in the land where glaring injustices were meted out on someone, should be allowed to go unpunished. The prosecutors could surely not launch a case and withhold critical information from court and Maswabi (Kgomotso Mokgatla affidavit), let alone electing not to counter the defence arguments on her third bail application, which she eventually won. The less said about Hubona’s affidavit the better. I was rather surprised that no recommendation was made with respect to DIS given the appalling role it also played in the case. Maswabi was arrested primarily as a consequence of DIS involvement, wherein she is quoted saying the spy chief Fana Magosi had promised her freedom if she lied about his predecessor, Isaac Kgosi.
By all accounts, Masisi is under pressure to crack the whip on those singled out by Justice Kebonang in order to bring a semblance of integrity and restore public trust. In fact Masisi should have long acted because tell-tale signs were long visible. It is not in dispute that the DCEC, DIS and DPP have been significantly embarassed, not only by the latest judgement but by a myriad of those before it, in recent history. In the process, government is starring at a huge legal bill running into millions of Pula from defamation lawsuits. The DIS has run roughshod over other institutions by not keeping to its lane where in the process, costly mistakes are committed. Corruption investigations are the preserve of the DCEC. The DIS would come in on a complementary role where necessary. Shockingly, the contract of the DIS head was recently extended amid the many costly mistakes. If there are any successes, they are hopelessly outweighed by failures. The same goes for the DPP where a tribunal to remove its head should have long been established. The Law Society of Botswana (LSB) has long asked the DPP head to resign but to no avail.
There are allegations that the lies about P100 billion theft from Bank of Botswana was a political campaign strategy employed by Masisi and the ruling Botswana Democratic Party (BDP), masterminded by the triple fabricators. There are further allegations that it is extremely difficult for Masisi to take firm action against the fabricators because they colluded to boost his campaign. While these suggestions could be dismissed as simply hot air on one hand, there are compelling optics to it on the other. Since assuming office, Masisi has fired a good number of public servants for various reasons though such have not been disclosed. Some of these dismissals (like that of Dr Collie Monkge who was allegedly fired for using foul language against educators somewhere) could very well be far less serious that the P100 billion story whose deleterious consequences are far too ghastly to contemplate. One of these is the diplomatic fallout between Botswana and South Africa where the latter was accused of deliberately frustrating process of executing the Mutual Legal Assistance on the P100 billion theft. On the version of the Justice Dr Kebonang’s judgement, Botswana would have wrongly accused South Africa on a fabricated legal process.
Having campaigned in the 2019 elections with the promise of running a clean government underpinned by the Rule of Law, good governance, accountability and transparency, Masisi is under obligation to deliver on the promises. He must repair the untold damage caused by the DPP, DCEC and DIS in the P100 billion saga as per the court judgement. The current heads of the DPP and DIS cannot be permitted to hold office any longer. This far and no further! It is fair and reasonable to hold the view that if Masisi does not as a matter of urgency, cause these heads to vacate their offices, he will be deemed complicit.
The downside of failure to act is that the DPP and DIS will continue to be run by seriously tainted individuals. Even is the State launches an appeal, that won’t change the fabrication issue because they failed to present anything to counter Butterfly’s application. All eyes are on the President.