Butterfly malicious prosecution: A greater negative for Botswana
Mompati Tlhankane | Monday August 30, 2021 09:25
Maswabi was charged with financing terrorism, possession of unexplained property and false declaration of a passport. The financing terrorism charge was dropped late last year and before Kebonang’s judgement this week, Maswabi was fighting to be acquitted of the remaining two charges.
The court has seriously outlined that the country itself has suffered immense harm from ‘these contrived prosecutions’. The Directorate of Public Prosecutions’ (DPP) inability to prosecute the real offenders of charges means that the criminals remain in the wind. This framing of innocent persons like Maswabi seriously jeopardises national security. Fabrication and frame-ups are not anomalies because as recent court losses show, they have become the very heart and soul of the DPP now. “The case against the applicant was a case that never was. It was a lie orchestrated from the onset by highly ranked public officers who are accountable only to themselves. It was a brazen criminal act from those entrusted with public power that should have never been allowed to happen,” Kebonang highlighted in the judgement.
Unfortunately for Maswabi the path of securing justice has been so tortuous and disentangling herself from the evil manipulations of the State has been challenging. Victims like Maswabi tend to suffer the most harrowing of experiences for varying lengths of time. As outlined by the court, the trauma of a wrongful arrest and prosecution based deliberately on falsified charges by the State extends over the lifetime of the victim.
“Not only can it affect one’s mental health, but can cause depression and other related post-traumatic disorders. Adaptation to life as an accused person is no doubt difficult and has clear negative psychological effect on the accused person,” further read the judgement.
After victory, victims of cases like these struggle to build their life back, businesses destroyed and broken family members who have suffered the humiliation and trauma of being associated with ‘terrorists’. In one of the plainest indictments of the DPP, the court ripped apart the prosecution, pointing out scores of shocking revelations.
The court observed that the prosecution of the applicant was clearly for an ulterior and dishonourable purpose. The court further observed that the first respondent and DPP Director, Steven Tiroyakgosi knew well at the time he decided to charge Maswabi that there was no evidence against her.
“He chose in breach of his constitutional obligations to deliberately cause harm to the applicant by falsifying and fabricating evidence against her.”
This case also shows that the State is sometimes responsible for the toils of the citizens and the untold horrors the prosecution mounds on them. “Citizens must never be terrified of their own government and those who exercise public power must do so honestly,” Kebonang emphasised. Whether acting on their own or at the behest of some political or powerful people, these high-ranking officers abuse the power to register a case and investigate.
“The actions of first respondent, Priscila Israel and Jack Hubona constitute misconduct and abuse of office. They did not accidentally or negligently withhold information and material exculpatory of the applicant but did so intentionally in order to maliciously and wrongfully prosecute her,” said Kebonang.
With cases such as Butterfly’s and similar others, the issue is not that the prosecutions failed. The issue is that the prosecutions failed because the entire edifices were maliciously built upon falsehoods.
Therefore, the court further outlined that the actions of the respondents have brought disrepute to the administration of justice. Kebonang recalled an unfortunate incident where Maswabi was denied bail as a result of the fabricated case.
He said various courts have expended resources towards adjudicating a case that was falsified from the beginning.
In most of the decided cases, the courts eventually find entire investigations to be foul and worse still these bodies proceed to arrest people simply to put them through public humiliation.
Since these falsified cases escalated there is a growing grave concern over wrongful prosecution and incarceration of innocent persons, and their acquittal after many years of court and trial turmoil.
While the court has already made it clear that innocent persons such as Maswabi have been subjected to suffer the ignominy of criminal prosecution and to suffer shame and humiliation, it now sends a positive message to would-be wrongdoers because the court has consequently ordered that erring officials like Tiroyakgosi, Israel and Hubona be punished.
“The type of misconduct by all those involved in the prosecution of the applicant is so severe that it calls into question the integrity of the entire legal system. It shocks one’s conscience and demands that those involved must be held accountable,” read the judgement, which indicated that the errant officials be punished.
While there are many ways and means to take appropriate steps against the erring officials, the fact that Kebonang ordered that Tiroyakgosi, Hubona and Israel face disciplinary action and possible dismissal sends a positive message that wayward officials must account to their deeds.
Now that the judiciary has not viewed or dealt with this lightly, it shows that the fabricated cases and false prosecutions need to be stemmed with a stern hand.
Since people responsible for all these have been pointed out by the courts, perhaps no one would ever claim a breakthrough in some high-profile case when such is not the matter as is in the case with Maswabi’s matter.
Maswabi has prevailed against agents of powerful lobbies and for her it must have been quite a tortuous path of securing justice. Whether or not she will be compensated, no one can take back the suffering she went through. People who wanted to get undeserved praise from the media and the public, including recognition from the government by labelling her a financier of terrorism wanted to assert their power over her but failed.
On another level, as a result of the fabricated cases Botswana has been on the global anti-money laundering greylist for three-year now.
Even though the Financial Action Task Force (FATF) recently noted strong progress by the country in addressing deficiencies in the country’s anti-money laundering structures, it is cases like these that might delay Botswana from being cleared from the dirty money greylist.
Botswana’s continued negative listing by the global bodies has dulled the country’s much-hailed investment climate and carefully curated brand as the jewel of Africa, at a time when COVID-19 is already depressing the economy and country’s competitiveness.
The listing increases the risk of local financial institutions doing business with international banks and other organisations due to the higher due diligence that will be applied to them. There are also delays in funds being transferred to and from Botswana, due to the need for greater due diligence.
These cases have also created paranoia of Botswana being under attack from all sorts of terrorists and insurgents and as it turns out this ‘was a case that never was’.