Inside the Kalafatis murder case

TSHIRELETSO MOTLOGELWA
Staff Writer | Monday April 26, 2010 00:00

 

* Accused men turn violent on journalists* Case sent to High Court

The long-awaited case on the brutal shooting of Gaborone man, John Kalafatis, started in earnest on Friday morning before Magistrate Lot Moroka.

According to the particulars of the offence, the accused BDF corporals Dzikamani Mothobi, Goitsemang Sechele, Ronny Matako and Boitshoko Maifala on May 13, 2009 at or near Moonland Shopping Complex, in Gaborone, 'acting together and in concert murdered John Kalafatis,' reads the charge sheet.

On the morning of Friday, the four men were brought before Moroka, in perhaps one of the most anticipated cases to ever be brought before the Magistrate. If convicted, the men face a death sentence. The lawyer for the accused Phadza Kgalemang firstly argued that the matter be put up for constitutional review.

Kgalemang argued that the accused had not been accorded the full benefits of rights as stipulated in the constitution, especially looking at section of the constitution which states, 'Fundamental rights and freedoms of the individual. Whereas every person in Botswana is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest to each and all of the following, namely-  (a) life, liberty, security of the person and the protection of the law'

'Are you saying that a killing charged in lawful duty should not be a charge?' asked Moroka. Kgalemang argued that the decision of the Directorate of Public Prosecutions (DPP) Director, Leatile Dambe, to charge the four men should be put under scrutiny.

But when Moroka wondered whether Kgalemang was arguing that Dambe may not have overlooked the fact that the killing may have been lawful given that the officers were performing their legal duties when the murder occurred, Kgalemang also said he was not exactly saying that. But Kgalemang argued that the DPP director's decision to prosecute without looking at the circumstances should be reviewed.

Kgalemang argued that it is possible that the killing may have been lawful, if at all the officers used the lawful force required to apprehend a wanted suspect. Thus, he argued that the case should be dropped while the decision of the DPP to pursue the case in its form is reviewed.

'If you can show that the [DPP] Director  has not applied her mind to these issues...,' said Kgalemang.

'Are you saying that this entire prosecution is a violation of the accused's rights?' asked Moroka to which Kgalemang agreed.

However, representing the prosecution, Ambrose Mubika argued that the decision of the DPP Director to prosecute [the case] cannot be put to question, saying the independence of the Director is guaranteed in the law. 'The DPP enjoys unfettered right to prosecute any offence done within this jurisdiction,' argued Mubika.

'The Dircetor shall not be subject to control of any person or authority. No authority can challenge this decision. This is the law of the land,' said Mubika.

Mubika maintained that a charge was not a conviction and as such it was upto the court to decide whether the four were guilty or not, and that putting them up for prosecution was not in itself a guilty charge and thus could not be said to violate any right. Kgalemang retorted that the DPP is not a law unto itself but rather that the law would permit any court to intervene on any course of action taken by the DPP if deemed unlawful. However, Moroka accepted that both sides were right in that the DPP had unfettered rights to prosecute any case but also that the courts had jurisdiction to review any decision made by the DPP. However, he concluded that the defence had not shown any evidence that by committing the accused to a prosecution, the DPP had violated any of their rights.

'I have tried in vain to locate a particular right the accused would be denied by this decision to prosecute the accused and I could not find one. The decision to charge cannot be called violation of a right, for itself is a pursuit of a constitutional mandate. I therefore find the application frivolous. The matter shall proceed,' concluded Moroka.

At the conclusion of the matter, it was agreed that the four men be committed to detention, and that the case be referred to the High Court. Moroka committed the four men to a trial at the High Court.

The court adjourned and the case is to be heard by the High Court in the near future.

At the adjournment, the four men although committed to an arrest and custody order by Moroka, remained free. One of the men became violent attacking photographers outside the court building.