Evidence: Powerful tool
Mpho Mokwape | Monday September 19, 2022 06:00
Therefore, evidence gives credibility to the accusations brought before any court of law meaning that during trial evidence gathered is brought to either prove or discredit the alleged offence whether by the accused or prosecution.
In perspective, evidence holds such power that it has the ability to free or destroy one’s life therefore, it is often unfortunate at times many courts find themselves dealing with fabricated evidence.
Fabricated Evidence: Eye sore to judiciary
Sometimes fabricated evidence may be brought forward to bring about selfish reasons either by those in power any litigant.. Bringing it back home,Botswana has been embroiled in judicial controversies many times and it is not quite surprising that corrupt government officials and law enforcement officers are often caught behind the use of fabricated evidence to bring about desired results.
It is a sad reality that many cases may have come before court with fabricated evidence. The case of former Directorate of Intelligence and Security (DIS) spy agent, Welheminah 'Butterfly' Maswabi where a revelation indicated alleged fabrication.
It all started with allegations that former State president Ian Khama, former spy chief Isaac Kgosi had instructed Bank of Botswana (BoB) to open three bank accounts that were used to loot public funds amounting to over P100 billion.
Maswabi was accused of being the kingpin in the alleged heist and there were reports that she was used by Kgosi to move most of the money to foreign banks.
Butterfly Case: What really transpired?
When the allegations first surfaced, Maswabi was among others suspected to be in an intimate relationship with Kgosi. Maswabi was accused of having money in different accounts but she was adamant that the State had it all wrong.
Through her ordeal, she maintained that the State had fabricated evidence against her and was trying to ruin her.
Maswabi during her court appearances kept quiet despite being labelled 'terrorist financier' and carried the burden of what may have seemed like a prosecutorial attack. She denied ever being in any intimate relationship with Kgosi let alone having signed or wired money anywhere as alleged.
Maswabi maintained that the allegations in the charge sheet and statements contained in the affidavit of Directorate on Corruption and Economic Crime (DCEC) lead investigator, Jako Hubona were defamatory as they falsely implicated her in money-laundering and financing terrorism.
What now that Chief Justice (CJ) Terence Rannowane also cemented the same sentiments as Maswabi after recently admitting that Maswabi ‘s case was the ‘worst’ in the judicial system, and that it was done with fabricated evidence. What does it mean to the judicial system if state organs are culprits to that.
Admitting that the accused was brought to court on fabricated evidence, and that the case even it caused untold reputational damage to the criminal justice system.
“We are all aware of the Maswabi case, where the accused was brought to court on fabricated evidence. That particular case caused reputational damage to our criminal justice system, not just here at home but abroad,” he said in one of his letters to the President.
Though also embroiled in judicial controversy as the CJ he however said the case was one of the main reasons why he has been guarding the judiciary jealously.
He pointed out that the case dented the judicial image and its professional image not only in the country but also outside.
CJ was cementing the words of a judgement issued by Gaborone High Court, Justice Zein Kebonang in which he acquitted and discharged the teary Maswabi, and drew Masisi’s into the matter as he has been asking him to take appropriate action against those involved.
The judge after ripping apart the State organs for the ‘careless’ involvement in the matter without doing proper procedures went ahead to and made recommendations relevant to each involved.
Not only did Maswabi, CJ and Kebonang talk about fabrication of evidence but also South African experts who were involved in the case by Maswabi’s lawyers released findings to say the case was an absolute fabrication.
Sandton-based Basileus Consilium Professional Services (Pty) Ltd (BCPS), which was mandated to establish the authenticity of the evidence utilised in her court application whether companies Royal Bank of Scotland, Fire Flies Inc and Blue Flies Inc that were part of Maswabi’s case were registered in South Africa.
The scope of the BCPS digital forensic investigation was to establish the authenticity of the relevant evidence, particularly the e-mails, and render any related services as might be required.
In their investigative summary, they said the prosecution case was fabricated and explained in detail their findings.
“It is our conclusion that the evidence especially mentioned emails are fabricated,” BCPS’s senior digital forensic analyst, Johan Benjamin Minnaar had said at the time.
Minnaar also said at face value, the documents, that is the High Court application annexures, appeared to be fraudulent as they could very easily have been produced by a word processor such as Microsoft Word, in order to provide a veneer of authenticity to those e-mails, which are relied upon in the High Court application.
The final nail came when former SA legal hawk, Gerrie Nel told state prosecutors that they have no case after hiring him.
It was such a wonder that did state really needed someone from outside to tell it what has been clearly evident in the proceedings.
In one of his interview with this publication as to what prompted the decision to tell state to withdraw the charges, he made it pretty clear that the case was headed for a disaster right from the beginning with so many things not having been done right from the start.
Advocate Nel said the 'Butterfly' case lacked what was known as the basics of prosecution, which is simply getting the proper evidence to be able to make informed decisions about the case and its prosecution.
Though the State has indicated intent to keep fighting until Maswabi is prosecuted and the Court of Appeal recently gave them that quest it is still unclear as to what end.
Seems after suffering such a major humiliation and reputational damage they want to save face.
In conclusion, according to American Civil Rights Litigation Group, fabricated evidence could be both easy and extremely difficult to catch.
“Sometimes, the evidence is contrary to the entire narrative, while in other cases; the evidence so seamlessly blends into the story that hints of its fabrication are expertly hidden,” said the Group.
The rights group said over-zealous police, anxious prosecutors, and other officials might be in the hot seat and are being pushed for an arrest and/or conviction especially in a high-profile case or they’re just being lazy and taking the first person who crosses their path and that if you happen to fit the bill, you may be under arrest.
They pointed out that if they can create the evidence that puts you in the right place at the right time, law enforcement or other officials may be able to get the conviction they wanted, without being concerned about the right person behind bars and that you could be doing prison time for a crime you didn’t commit.