On one hand, Bank of Botswana (BOB) Governor Rre Moses Pelaelo has publicly rejected remotely or otherwise, suggestions that public funds may have been siphoned out of his bank. It has been suggested that public funds in the region of P 100 billion have disappeared from the government fortified vault-BOB. Not only has the Governor rejected the suggested figure but that Botswana has never had public funds to that value. On the other, government through the Director of Public Prosecutions Advocate Stephen Tiroyakgosi has sent an SOS message to South Africa in pursuit of $ 48 million through an instrument called Mutual Legal Assistance (MLA). It is not clear to me at this stage whether the $ 48 million sought is part of the P 100 billion though the main characters suspected to be involved in both figures appear to be the same. It has emerged in the eyes of the public that there is so much to these two cases than meets the eye. But first things first. What is Mutual Legal Assistance?
The SADC Protocol On Mutual Legal Assistance In Criminal matters of 2002 as amended in 2017 and signed in 2019 which is binding on Botswana and South Africa as signatories thereto, defines it as ‘any assistance given by the Requested State in respect of investigations, prosecutions or proceedings in the Requesting State in a criminal matter, irrespective of whether the assistance is sought or is to be provided by a court or some other competent authority.’ This Protocol provides for a long list of requirements which the Requesting State has to follow in order for the Requested State to provide assistance. I am relying on this Protocol purely as a guide for purposes of this conversation.
Let me now bring context to the pursuit of the alleged disappearance of public funds from BOB. In May 2019, The Patriot on Sunday online edition ran with a story titled ‘No missing funds at BOB’ in which a statement from BOB was referred to and which was responding to and refuting an earlier The Botswana Gazette newspaper story titled ‘Shocking! P 22 Billion Missing At Bank of Botswana.’ The report by The Patriot on Sunday online edition concludes by stating: ‘Finally, the nation is informed and assured that there is no report of any missing funds at Bank of Botswana in the report of the Auditor General, and that any suggestion is a fabrication which emanates from and confined to offices of the Gazette newspaper.’
In September 2019 as widely reported here and in South Africa, the Director of Public Prosecutions sent an MLA to South Africa’s Department of International Relations and Cooperation (DIRCO) which it passed over to that country’s Department of Justice during the same month for processing. On 21 November 2019, the same Botswana Gazette reported that the ‘Governor of Bank of Botswana has emerged to trash allegations of P 100 billion purportedly looted from by the country’s most powerful men as a completely hollow tale that cannot pass muster in the face of the central bank’s control systems…..The Bank of Botswana Governor Moses Pelaelo has distanced the central bank from the P 100 billion which the state claims was looted directly from the bank by former President Ian Khama and former Director General of the Directorate of Intelligence and Security Services (DISS) Isaac Kgosi.’
With the above background and context, the immediate and compelling question should arise: With the BOB denying on several occasions that no public funds have disappeared (presumably with the $ 48 million included) under its custody, how would the Director of Public Prosecutions continue pursuing such funds when its custodian says no such funds have disappeared? It’s like a bank customer going to the police to report that his/her money has been stolen from their account while the bank says there is no such thing.
I am imagining as a layperson to the legal processes like MLA that the Requesting State in this instance Botswana should be in possession of verified and authenticated documentation from BOB ready to be submitted to the Requested State in this instance South Africa to demonstrate beyond any reasonable doubt that indeed public funds have been stolen from BOB hence the imperative to pursue such funds with a MLA. BOB and the DPP are both government institutions which expectedly, should be singing from the same Hymn sheet in a matter as serious and sensitive as the one pursued by the MLA. But they are not at least to the extent of BOB public statements referred to above.
Botswana has of late and through DPP publicly complained that South Africa is not expediting the MLA submitted in September 2019 hence her instruction to the racist AfriForum to pursue the matter on her behalf. By complaining it must be said, Botswana is complying and rightly so with Article 4.7 of the SADC Protocol which states that ‘The Requested State shall promptly inform the Requesting State of the outcome of the execution of the request. If the request cannot be successfully executed in whole or in part, the Requested State shall inform the Requesting State of the reasons thereof.’ This is where Botswana’s problems with South Africa seem to begin. I am not privy to the behind-the-scenes activities regarding this complex matter particularly with the structure and contents of the DPP’s MLA. But I cannot help but to imagine that South Africa may very well be saying: hang on, BOB Governor under whose watch the alleged public funds allegedly disappeared under his watch is saying no such funds have disappeared. Which funds and from where are you then referring to and to which you seek assistance?
Assuming without conceding for purposes of this conversation that South Africa is posing these questions, how does Botswana respond? With BOB expectedly a central institution and authority in the missing public funds, does it not reason that without it confirming the alleged missing public funds stand to collapse or delay the processing of the MLA? Would South Africa be unreasonable, given the double speak between BOB and DPP on the disappearance or lack thereof of the said public funds, to demand a written confirmation from BOB that indeed public funds sought by the DPP through the MLA have disappeared from the former? If South Africa was pursuing the same MLA under similar circumstances to Botswana, would Botswana be unreasonable and perhaps be viewed as acting in bad faith to pose the same questions to her wherein South Africa would feel hard done as Botswana currents feels? It may very well be the case that South Africa has demanded a confirmation from the Governor which confirmation is not forthcoming because of the position of the Governor-that no public funds have disappeared. If this is the case, the MLA could still be in the pending tray awaiting such confirmation for action to begin in earnest. It is like a bank loan application submitted without other requisite documents. The bank will put that application aside pending the submission of those documents. Otherwise it will remain unattended.
The introduction of AfriForum into the equation could possibly be another massive stumbling block for the DPP. The DPP is arguing that it has hired Advocate Gerrie Nel and not AfriForum. And the predictable reason is to try to play down firstly, the tainted and racist image of AfriForum and all that it stands for and secondly, the predictable and deteriorative diplomatic stand-off between Gaborone and Pretoria the AfriForum/Nel partnership poses. If the DPP is saying Nel should be separated from AfriForum, Advocate Tiroyakgosi must be separated from the DPP as well. During the virtual meeting between the DPP and Afriforum, the CEO of the racist mafia Kallie Kriel sat next to Gerrie Nel. It was the unholy alliance between Afriforum and the Government of the Republic of Botswana on display. Enlisting the services of AfriForum is as good as enlisting the services of Al Qaeda or Boko Haram. However and how much spin-doctoring is attempted on legitimising the enlisting of the racist mafia, South Africa or any other country for that matter cannot be expected to take it kindly.
The Mutual Legal Assistance Botswana hopes to use to recover the mysterious P100 billion from South Africa; the position of the BoB Governor who is digging in his heels that no such public funds have disappeared from his bank and the enlisting of Gerrie Nel/AfriForum partnership could very well be the reasons why I argue that Botswana could be chasing a wild goose. It is fair to posit that the country has been on the back foot since the beginning of chasing the P 100 million consequent to the seemingly many false starts. I must state that Botswana should and must chase stolen public funds if at all but must do so with the finest of finesse to do so. The present circumstances I am afraid, seem to suggest that finesse is pitifully lacking. At the end of it all, Botswana could be chasing a wild goose. I am prepared to be persuaded otherwise as always. Judge for Yourself!
We are not out of the woods yet. Health protocols are still our only available best defence to fight against the Covid-19 pandemic. Wash your hands with soap and clean water frequently, ensure social distancing and continue to wear your masks at all times.