Court frees Kgosi
Mpho Mokwape | Friday November 27, 2020 15:36
Gaborone High Court Judge, Michael Leburu has described the decision by the Directorate of Public Prosecutions (DPP) to charge and prosecute Kgosi as irrational and unreasonable.
In his judgement yesterday, Leburu said the decision by DPP to charge Kgosi and his co-accused Kenneth Kerekang was irrational and liable to be reviewed and set aside. “In the absence of any trigger to the exercise of executive power and evidence before Court, the decision to charge Kgosi is illogical, hence irrational,” he said.
Leburu explained that, in the absence of evidence by the DPP regarding the authorisation of transfer of P250 million and the transfer of 20% commission to Bakang Seretse and Khulaco company as alleged by the DPP, the charges were brought in bad faith.
He said the DPP failed to provide any evidence of such transactions, but rather chose to say bringing evidence would prejudice the case pending before the Magistrate’s Court.
“There is no evidence either direct or circumstantial that Kgosi and Kerekang authorised the payment of 20% upfront commission, or authorised the transfer of P250m. It is fallacious for the DPP to say they will provide evidence at trial,” he said.
Leburu also said Kgosi had explicitly explained that the funds were sought for the purpose of combating fuel shortage and later rampant poaching and that DPP failed to point out that the funds were lost along the way.
The Judge noted that according to the records, it showed that the contracts for the purpose of the funds were fulfilled and that there was no evidence that the accused persons had any beneficial interest from those funds and that there was no objection to the procurement of the equipment.
“There is no proven case from the record and pleadings how initial request for petroleum storage and the subsequent purchase of security equipment amounted to an abuse of office,” he said.
Leburu said even the Intelligence and Security Council being the body that oversees the expenditure, administration complaints against the DIS and its legal framework did not raise any alarm, or cry or complain against the procurement of such security equipment and services.
He said in simple terms, the record of proceedings by the DPP was littered with irrelevant documents that ran foul to the requirement for sufficiency and materiality of evidence.
Leburu further said it was factual and common cause that Kgosi requested the funding from Ministry of Minerals and Green Technology for construction of storage fuel facilities in his capacity as the head of the DIS, and that the acting Permanent Secretary approved such funding.
He explained that according to Kgosi’s records, upon approving the transfer of P250 million, the fund managers advised Kgosi that the funds needed to be ring-fenced through Khulaco and that the assertion was not controverted.
The Judge said the funds kept by the company were then used by DIS to purchase goods and services from Dignia Security Company in Israel.
“A contract evidencing such procurement of goods by the two parties is there. Some of the goods purchased have been delivered to the DIS while outstanding ones have not been delivered yet after the current DIS director terminated the contract,” he said.
Leburu said so the decision to charge Kgosi and Kerekang with corruption was irrational therefore ought to be reviewed and set aside.
The decision by the Judge to set Kgosi free who was indicted on March 5, 2020 on charges including corruption and abuse of office comes after he filed a review application.
He had made an application challenging the decision of the State to prosecute him for the DIS dealings. The former spy chief denied any abuse of funds allocated to the DIS saying the decision to prosecute him was irrational and unreasonable.