Khama, Kgosi challenge decision on criminal charges
Mpho Mokwape | Monday November 7, 2022 06:00
The two, facing 20 [Kgosi] and 13 [Khama] criminal charges, ranging from unlawful possession of firearms, arms and ammunition, and stealing by a public officer want the charges reviewed and set aside on grounds that they are outright irrational, made without any iota of evidence and overly politically and maliciously motivated.
Khama recently instructed his lawyers to walk out of the Court of Appeal in a civil case against the Directorate of Intelligence and Security. However, in the matter before Village Chief Magistrate, Murray Dipate, Khama decided to exercise his legal rights.
In a deposed affidavit Khama said he was forced to apply for a review of his charges on account that by virtue of the criminal summons being served to his attorneys despite his absence, the State has decided to charge him with several counts.
“[The] Summons and charge sheet were apparently served on my attorneys on account of the fact that I was outside the country at the material time. In this respect, I am yet to be served with the same. Advised by my attorney, by virtue of the aforesaid criminal summons and charge sheet, State has taken the decision to charge me with several counts, some of which are purportedly continuing offences allegedly ranging from as far back as July 17, 2008,” he said.
On the grounds of review, the former president explained that the director of DPP's decision to prefer charges against them was liable to be reviewed and set aside because it was patently irrational and outright abuse of process. He emphasised that there was no reason to charge them because the firearms and ammunition which form the subject matter are duly registered and licensed and that the registration certificates are kept at his residence namely State House No. 4 which now and has always been under the control of the DIS officers.
Khama further explained that the decision to charge them was a clear abuse of process because it was “made under influence and coercion of third parties namely the DIS operating under the Office of the President”.
“I state that the decision was undoubtedly rendered for an improper and dishonest purpose, a clear contravention and abuse of the DPP director’s constitutional discretion,” he submitted.
He pointed out that the decision was inherently reviewable because aside from being politically and maliciously motivated, there were no reasonable and probable grounds for his prosecution because the firearms are registered and licensed.
Khama said it was evidenced by the allegations in some of the charges relating to obtaining registration of firearms by false pretences which suggested that the firearms are registered contrary to the allegations.
On alternative remedy, Khama said there was none available to him and in that regard, he would be subjected to criminal trial which was a long and arduous affair, which was likely to occasion much psychological pain and suffering together with reputational damage to him and tremendous costs in defending the same.
“I further state that I am advised by my attorneys that where the court is able to intervene and engage in a less long process such as the judicial review presently sought, there is a duty to choose the least gruelling avenue with the view of achieving justice and preserving the integrity of the judicial system,” he submitted.
Kgosi also deposed his affidavit with the same content as that of Khama and said he prays that they are offered the relief they seek in terms of the Notice of Motion and draft order.
Meanwhile, the draft order states that: “The decision of the director of DPP to institute criminal charges against the applicants be reviewed and set aside. Costs of the suit on attorney and client scale. Court to provide further or alternative relief."