The Kebonang judgement - Where do we go from here?

Kgosietsile Ngakaagae | Monday August 30, 2021 06:00

At the beginning of the so-called National Petroleum Fund, case, I ran battles with the State on what I considered heavy handed conduct on the part of its officials. I knew that the State did not really believe that my clients had stolen P250 million from government.

The paper trail directly negated such a conclusion. After all, the State had received the services, the guns and the drones purchased with the amounts. They withheld the evidence from the court, and from the defence. We only discovered the evidence later, and filed it with the court. Spite, was the motive.

All professionalism had been lost. One man they had attempted to recruit as an accomplice witness had told them he knew nothing about the alleged offences. And truly, he didn’t. He would say to me; “I do not know anything about what they say. I will not lie against anyone.”

For his refusal, they charged him with an offence.

They then started pursuing his wife in order to break him, but she stood her ground too, inspite of being threatened with criminal charges. And, she was completely innocent. They attempted, to recruit another client of mine, an accused person, as an accomplice witness. When he refused, they charged his wife with an offence in order to break him. What they could not achieve with the evidence, they employed the ever willing Botswana Unified Revenue Service (BURS), to finish the dirty job. When Judge Ketlogetswe ordered that my clients be given their money, BURS knocked at their door the very next day, seeking to erase the court victory through a tax accusation.

We told them to take a hike. Professionalism had been altogether lost. The politicians had usurped the Constitutional Section 51, mandate from the Directorate of Public Prosecutions (DPP).

They had usurped the Directorate on Corruption and Economic Crime (DCEC) mandate, and had usurped the DCEC, mandate. Many of the people on the State’s side, were professionals of many years standing, who until then, had unblemished records.

The politicians ruined it all. And, I do not say the professionals were guiltless, for allowing it. Once I had a chat with a very senior government official, in the administration of justice. “Kgosi”, she said; “our country is going through an integrity crisis”. I agreed. I had a debate with friends the other day on what stance professionals ought to maintain in the face of political interference. Many insisted, that professionals must remain true to their professional oaths, or ethics. Again, I entirely agree. But, I insist that professionals deserve protection. When institutions are captured, like the BURS, the DCEC and the DPP, ethics are put under enormous strain. I have been there.

My erstwhile colleagues at the DPP, and I, found ourselves in a difficult position once. Thankfully, we had leadership.

The leadership absorbed all the political pressure, allowing us, to do our work, without fear, or favour. I recall a meeting with my then boss, in her then office. The subject was her persecution, for refusing political influence in her decision, and allowing us to charge the untouchables of the system.

My prosecution team and I, bluntly told her that we depended on her to protect us as we went about our work, and that if she took the lucrative offer she was being entised with to leave her post, she would lose our respect, completely, and that of the nation. The politicians had lost control of the DPP, and wanted same, at all costs. She flatly refused to cede, even an inch of ground. But I do wonder how it would have been had she succumbed to the pressure. We would have been left exposed, as attorneys.

We would have been squashed. All the politicians ever needed to do was transfer me, and my team, to a by law office in Gantsi, or Maun. They could even deploy us to the Department of Sanitation and Waste Management, where they likely thought we properly, belonged. And, they had the powers. When efforts to remove our boss failed, ministers, on whom we depended for evidence, withdrew departmental support, for us. For the first time, our portfolio minister, deposed to an affidavit in favour of the defence, rubbishing our case. Another player, a former minister, who had agreed to testify for the prosecution, turned against us in the witness stand and agreed with the defence in just about everything. He gave no warning, whatsoever. Our case was in shambles. My fellow prosecutor and I, stood outside court after his evidence, wondering what to do.

I had never felt so despondent, in my career. I said to team I was happy to lose my job, than have them have the last laugh. We all agreed that was a preferable option. I told the junior ones if push came to shove, I would take ownership of the decision to challenge Honourable Nkate. My senior and better, now Judge Phuthego, gave the greenlight. When our job was done, I resigned from the DPP. I knew, I had no future in the service. It is for institutional heads to protect their charges against political interference. And politicians, must stay out of investigative and prosecutorial work. They bring nothing but toxicity. Look, where we are now. The meddling, must stop.