Khama loses stay criminal proceedings
Mpho Mokwape | Monday August 14, 2023 06:00
Khama who faces 13 criminal charges ranging from unlawful possession of firearms, arms and ammunition together with others, former spy boss Isaac Kgosi and suspended Commissioner of Police Keabetswe Makgophe made an application on notice of motion before Gaborone Regional Magistrate’s Court last week Wednesday.
He sought that the criminal proceedings against him by the Directorate of Public Prosecutions (DPP) to be stayed pending hearing of a review application filed at High Court.
Through the review he is challenging the decision to charge him with various counts.
When dismissing Khama, Regional Magistrate for South, Mareledi Dipate said to uphold the application, the court would be obliged to make a determination that there are prospects of success in the review application and that the Magistrate’s Court lacked jurisdiction to entertain Khama’s application.
“Needless to say, this would be an obligation that this court would be placing on itself unnecessarily.
The High Court is a superior court of court of record with supervisory powers over this one. On this point alone, the application is liable for dismissal as it is this court’s view that it cannot make a pre-determination of a case before a superior court,” he said.
The Magistrate further explained that the starting point was to acknowledge that the institutional independence of the office of Director of Public Prosecutions (DPP) is guaranteed by Section 51A (6) of the Constitution, which provision stated that in exercising his powers under Section 51A (3) the director of DPP shall not be subject to the direction and control of any other person or authority.
He explained that it would be obvious that in making any decision of whether to prosecute, withdraw charges or stay proceedings for whatever reasons, the DPP was not subject to the control of anyone or any institution, except as she/he may be expected to consult the Attorney General when dealing with matters of national importance as provided for under Section 51A (6) (b) of the Constitution.
“Despite the foregoing, the court is still expected to deal with any and every point raised by the parties in an attempt to reach a just outcome. It has been contended that for this court to make any decision on the application seeking a stay of proceedings, it will necessarily have to touch on the prospects of success of the review application pending before the High Court,” he noted.
Dipate said it will create a danger of the lower court disagreeing with the High Court, upsetting the hierarchy of the judicial system where the lower court is inferior to the High Court, whose decisions bind it.
He pointed out that the counter argument by the DPP was that the High Court was not seized with the criminal proceedings. But it is rather limited to the review of the administrative decision for Khama. He said that though it is indeed appreciated that there was a distinction between the criminal proceedings before her court and the application for review before the High Court, sight should not be lost of the fact that an order of the High Court upholding the application before it will have the effect of terminating the proceedings in his court.
On the right to bring the application by Khama as a fugitive, Dipate said it has been argued that Khama was a fugitive from justice, having fled to South Africa to evade justice.
He pointed out that both parties have agreed that fugitives from justice have no locus standi to seek protection from the courts and that Khama however, argued that he was not a fugitive from justice as he left Botswana before criminal proceedings against him were commenced. Coupled with that no application for his extradition was pending, Khama added.
“To the court’s mind this is a crucial averment, such that the applicant cannot be said to be a fugitive. He can thus approach the courts from wherever he is to assert his rights. This point is dismissed,” said the Magistrate.
Regarding the non-citation Of the Attorney General which point was argued by Khama’s attorneys, Magistrate Dipate noted that the point was liable for dismissal on the basis that the DPP was the main prosecutor in criminal cases and any other applications incidental to the such cases. Dipate further explained that Khama’s request on interim interdict failed because his point of law brought with it weighty matters of law.
He argued that for one to succeed in demonstrating that he is entitled to a temporary interdict, they would need to show that they have a prima facie right, apprehension of irreparable harm, the balance of convenience favours them and lastly that there is no other satisfactory remedy available for them.
“From the documents filed, as well as the heads of argument, the applicant has not gone far enough to demonstrate that granting of an interdict pending the finalization of his matter before the High Court. His papers are just bare on his demonstration of his entitlement to be granted such relief,” he said.