Sechele�s death haunts DPP in Rabana case
Tefo Pheage | Friday November 6, 2015 15:00
The late DPP boss was a key player in the case. His significance in the case was that he was the Gaborone Chief Magistrate at the beginning of the case before joining DPP as director whilst current Lobatse High Court judge, Leatile Dambe, prosecuted.
Also, Sechele had listened to and observed 17 witnesses giving evidence, compiled records and formed impressions about the credibility of the witnesses while a magistrate. While at DPP he applied for the extradition of Rabana who currently stays in South Africa, a move that was strongly opposed by Rabana’s lawyers.
The trial suffered setbacks around 2001 when both the prosecutor and presiding officer went for studies overseas.
The case had to wait for their return before it could continue, hence the mix-up and the delay. The case began in 1991 but was registered in 1995 and commenced in 2002 and faced challenges when it was nearing its end.
Rabana fled Botswana almost 13 years ago whilst facing corruption charges in connection with the awarding of BHC tenders for the construction of BHC houses in Block 5. Before his passing, Sechele ‘s involvement in the case caused a furor between Rabana’s lawyers and the DPP.
Gaborone attorney, Kgosiitsile Ngakaagae, who is representing Rabana challenged the extradition and wants the case to be nullified.
He advised that the prosecution does not have, or has ceased to have legal basis.
According to court papers submitted at the Francistown High Court recently, Ngakaagae, argued before Sechele’s demise that the DPP director who was the presiding magistrate cannot be the judge in his own case.
The DPP wanted Sechele, who was magistrate on the matter, to adjudicate on the matter.
Rabana is seeking relief from the case on the grounds that Sechele was now pursuing him and on the other hand in charge of his prosecution and therefore is conflicted.
In the court papers, which were filed before Sechele’s death, Rabana and his lawyers argued that, “Sechele was and remains, for all intents and purposes, the presiding magistrate. All the 17 witnesses called in that trial testified before him as the presiding officer. Before he assumed other career interests he was a judicial officer in particular a Chief Magistrate.”
They further said the trial, including all 17 witnesses, was concluded before and is pending before him. Furthermore, “that means that his Excellency the President will have to appoint him as such.
Essentially he will have to take leave from DPP office or quit his job as such so as to be able to try Rabana and take the matter to its logical conclusion,” argued the lawyer.
Ngakaagae further argued that alternatively, Sechele would have to wait for his contract to expire and then shift roles from being the prosecutor to a magistrate, if he is appointed as such.
“The unfairness of the aforementioned inevitable scenario is self-evident. One cannot fairly be a judge in their own case or in a case they are prosecuting or have prosecuted or have been involved in some way in a prosecutorial capacity,” argued Ngakaagae and his client.
This, he said, is for the reasons that a prosecutor must take some particular views about a suspect or an accused person even if on a prima facie basis. “While a magistrate, Sechele only had access to what was placed before him within the context of the judicial proceedings, but now he has access to everything, admissible or inadmissible, that forms part of the prosecution docket.”
His position, he further said, had compromised him gravely and irremediably. According to the documents, Sechele was no longer legally competent to return to his former function to adjudicate over the matter saying the two offices are irreconcilable.
“Given that the proceedings are no longer competent it is imperative that the record of proceedings be set aside,” he argued. Rabana and his lawyer further challenged the legality of the case, citing Section 26 of the Criminal Procedure and Evidence Act that states that the right of prosecution for any other offence except murder is barred by 20 years.
“The situation is exacerbated by the fact that it is now many years since trial started and since the last witness ceased to testify. The court’s recollection of the verbatim narrative of the witness has surely since faded,” Rabana stated.
It is understood that with Sechele gone, the law provides that a magistrate cannot be changed whilst the case has already begun and heading towards the end as this one.
The case, the law dictates, should start afresh, but Rabana’s lawyers are opposing the move arguing that then state is pursuing a dead case. The DPP however won’t relent.
Curiously, the attorney general has pulled out of the matter after being served by Rabana’s lawyers who are opposing the extradition saying the case should be left to die as it has gone beyond the 20 years lifespan as provided for by the law.
The AG said DPP is an independent entity with powers to act on its own while Rabana’s lawyers say the AG represents the DPP according to the law.
Charges against Rabana are that he had accepted bribes in order for the tender to construct houses in Block 5 to be awarded to a construction company that did not qualify for the bid.
The state alleged that, in return for that, Rabana was given air tickets for him and his family to fly to Europe and America as well as money for accommodation in luxury hotels.
He fled the country when the state was left with only two witnesses to call.
The Directorate on Corruption and Economic Crime then set out to find him and finally traced him to Johannesburg where he is reported to be residing with his family.
After he was located, he refused to return to Botswana to face trial and this led to his extradition trial.