Sentencing awaits in pension heist's sole CoA conviction
Mpho Mokwape - Mbongeni Mguni | Friday December 6, 2024 06:00
A hefty document, the partnership agreement dated November 11, 2014 and signed by the Botswana Public Officers Pension Fund (BPOPF) and asset management firm, Capital Management Botswana (CMB), has landed Carter Morupisi, in turbulent times. The former PSP is a storied civil servant once hailed as an anti-corruption hero for allegedly snubbing a P250, 000 bribery attempt by Chinese nationals in 2011. Later today, Morupisi will find out what sentence the Court of Appeal has decided he should face after confirming his conviction for three counts of corruption and money laundering. The November 11, 2014 contract, apparently innocuous and par for the course for a pension fund and its chosen asset manager, has returned to haunt a man who as PSP was the top most civil servant from 2014-2020. It was in that role that Morupisi manoeuvred to award a P500 million private equity mandate from the BPOPF to CMB. The contract would later descend into a web of illicit transactions and dealings, crossing over borders, with millions of pensioners’ pulas being misdirected, mis-invested and diverted. Even today, liquidators are still scrambling to recover funds that were irregularly invested. In a condemnatory 67-page judgment recently, the Court of Appeal found that Morupisi, with the assistance of carefully placed allies, connived to award CMB the P500 million contract, in return for a kickback being a brand-new Land Cruiser valued at over R630,000. In an even more damning finding, the CoA ruled that Morupisi had set about to cover his tracks with an elaborate ruse designed to make it appear that he had legitimately acquired the vehicle.
The court found that Morupisi, then BPOPF Board chair, ignored the absence of a board resolution and rushed to award the contract to CMB, where allies had been strategically placed beforehand. “What triggered the rushed signing of the contract when a final resolution had not been made by the board on the contract involving millions of public officers’ pension funds? “The appellant (Morupisi) did not shed light on this matter. “An inescapable inference, in the circumstances, is that the rushed signing was a sine qua non (necessary condition) for the anticipated receipt of a valuable consideration. “Evidently, the subsequent receipt of the Land Cruiser could in the circumstances only be a quid pro quo for the appellant’s signing of the contract to facilitate a diversion of pension funds...,” ruled the CoA. The CoA was originally scheduled to hand down Morupisi’s sentence last week, but the former PSP’s new lawyers requested and were granted an opportunity to make more arguments in favour of their client.
However, judging by the comments at that hearing, Morupisi could face a fate worse than what was handed down initially by the High Court in November 2022. The High Court, then, had sentenced the former PSP to a sentence of two years suspended and a cumulative P130, 000 fine. Morupisi, rather than take the sentence from the High Court, decided to appeal his conviction. Instead, in their latest remarks, the CoA bench, comprising CoA President Tebogo Tau and Justices Lakhvinder Singh Walia and Baaitse Nkabinde, came down on High Court judge Chris Gabanagae, for failing to apply himself when sentencing Morupisi and not giving him a custodial sentence. The trio said counts of corruption and money laundering are considered serious crimes in the country that carry jail terms and fines. Under the law, any person who is found guilty of corruption is considered liable to imprisonment for a term not exceeding 10 years or to a fine not exceeding P500 000, or to both. The judges said money laundering is considered bad for the country as it significantly undermines economic development. Any person found guilty of money laundering is liable to imprisonment for a term not exceeding 15 years or to a fine not exceeding P1, 500, 000, or to both.
The judges said they were baffled why, in the light of the severity of the offences and possible sentences, the minimum had been handed down without tangible reasons why. Justice Nkabinde had numerous questions saying the CoA was having a hard time with the High Court sentence as they did not know what informed the judge’s decision. “We have difficulty with the High Court sentence because the judge did not apply himself and give reasons as to how and why he arrived at the sentence he gave out,” said Justice Nkabinde. She explained that there was clear misdirection on the part of the judge because looking at the severity of the crime, the High Court did not do justice in explaining the sentence. Justice Nkabinde also said Morupisi’s own submissions cited cases where the convicts were given custodial sentence regardless of their age, further questioning why the former top civil servant could not be given the same. The judge further said the situation was aggravated by the fact that Morupisi had shown no remorse to warrant the CoA tempering justice with mercy. “There is a talk about remorse and what makes it difficult is that there was no remorse shown. Now that there is a possibility of custodial sentence all of a sudden it is said that he is remorseful,” she said.
Justice Walia also weighed in on the mercy factor, saying that there is a degree to how much can be applied and this depends on what the court deems fit. “There is a degree to mercy. The court may find out that a custodial sentence is mercy especially if the convict is not working and is a pensioner; he might not have the means to pay the money,” he said. Morupisi’s new attorney, Dr Obonye Jonas, in trying to persuade the CoA for a non-custodial sentence said his client was “living on borrowed time” as an elderly person and prison might not be the best place for him.
He said Morupisi was old, a pensioner and had no source of income to pay the fines imposed on him, let alone go to prison. “Not to say we are not alive to the severity of the crime but we request that you temper justice with mercy for the reasons given. “If the court finds that there was misdirection with the sentence, we plead that he be given the fine rather than a custodial sentence. “Though he does not have any means to earn an income as a pensioner he can run around and see what to do,” Jonas said.
Jonas stressed that he believed the High Court judge used its discretion on the sentence and this was not a misdirection warranting a variation of the sentence. He pointed out that his client appealing the High Court sentence did not mean he was unremorseful, but rather that he had chosen to fight and not concede.