Former Botswana National Front (BNF) executive secretary James Mathokgwane is now a free man after his conviction and 10-year prison sentence for rape was overturned by the High Court in Lobatse yesterday.
Mathokgwane was in the second month of his sentence after being convicted by Broadhust Principal Magistrate Nehemiah Mugoni of raping a nine year-old girl at Old Naledi on March 30, 2006.
Mathokgwane appealed to the High Court. In his appeal, he said the trial magistrate court had made numerous mis-directions on matters of fact and law. It was submitted that the magistrate did not analyse the evidence in an objective fashion.
Delivering judgment yesterday at the Lobatse High Court, Justice Gabriel Rwelengera said after assessing the evidence, he was of the view that the decision to convict Mathokgwane was unsafe to uphold because there was a lot of doubt in the state's case.
He said the young girl's statement that Mathokgwane was not the one who raped her created a lot of doubt in the state's case.
Justice Rwelengera said although Mugoni based his decision on the fact that the little girl pointed at Mathokgwane as her assailant when the girl and her mother had visited Extension II Clinic in Gaborone, this was not enough because it contradicted the girl's testimony in court where she contradicted her earlier statement.
"This is not our law," said Rwelengera.
Rwelengera said the trial magistrate did not make any attempt to direct the little girl during cross-examination, pointing out that a complainant who exonerates the accused person creates doubt in the state's case. He said the procedure that should have been adopted was to guide the little girl on how events unfolded or to declare her a hostile witness.
Mugoni was also criticised for convicting Mathokgwane without properly addressing the issue of the man initially arrested as the prime suspect. The presence of another James cast doubt on the identity of the man who raped the young girl and it was wrong for Mugoni to treat this as a simple case of mistaken identity.
Justice Rwelengera said the state's case was only dependent on Mathokgwane's
He said that although the child was allegedly grabbed and thrown into a car before being raped, the trial magistrate did not assess the issue of the vehicle that was used when the girl was raped.
From the evidence, Mathokgwane's car was parked at Old Naledi Shopping complex and never moved during the time he had disappeared from those he was drinking with.
Rwelengera also criticised Mugoni for saying there was damning evidence against Mathokgwane, saying this was not true because the little girl had exonerated Mathokgwane and DNA test results did not link Mathokgwane to the crime.
The judge said Mugoni had misunderstood some legal authorities when he convicted Mathokgwane and there was no need for Mathokgwane to have taken the witness box to explain his whereabouts on the night of the rape.
Advocate Sidney Pilane, who represented Mathokgwane during the appeallant's submissions, was not present in court yesterday. However, other lawyers on Mathokgwane's legal team, including Moses Kadye, Tshiamo Rantao and Sadique Kebonang, were present.
Pilane had argued that the conviction against Mathokgwane was dangerous and deserved to be quashed. Mugoni's approach to the case, he said, was marred by bias as displayed by his readiness to accept any fact that implicated Mathokgwane, and that Mugoni was quick to explain away and discount any evidence that undermined the prosecution's case.
After saying Mugoni was not impartial because he had cried in open court when he delivered his verdict on Mathokgwane, Justice Rwelengera noted that judicial officers were human beings like anyone else; magistrates and judges could only urge themselves not to get emotionally involved in the cases they heard by adhering to their work ethics.