The four musketeers and asset forfeiture

Kgosietsile Ngakaagae | Friday August 4, 2017 14:55

I have worked with the first two closely at the Directorate of Public Prosecutions (DPP). I use the word “Directorate” advisedly. There are some who swear that there is no such thing as the “Directorate of Public Prosecutions”. They argue that there is only a Director of Public Prosecutions who is just a member of the staff of the Attorney General’s Chambers (AGC). They deny that Parliament intended any structural independence.

As if the Constitution ever spoke of “The Attorney General’s Chambers”. By the way, Section 51 of the Constitution was deliberately drafted to file the DPP’s teeth through administrative supervision by the Attorney General.  One Attorney General argued that the DPP was an AGC Division. Welcome, Stephen Tiroyakgosi. Are you head of the DPP or of the Prosecution Division of the AGC? By the way, you have a right to remain silent.

The appointments regarding the aforesaid crown years spent in the trenches fighting for criminal justice. The former has the distinct privilege of being the country’s first Receiver, a very important post. By that position, he is the repository and administrator of proceeds of serious crimes. To illustrate, let us imagine a very pleasant scenario. The DCEC Director raids all thugs who stole the BOT50 millions and takes away their ill gotten wealth. The Receiver is the man who would be entrusted with all the loot as the DPP attends to the weeping politicians and as I defend them.

Years ago, Botswana reluctantly dumped its stone age Proceeds of Serious Crime Act for asset forfeiture better legislation. By definition, asset forfeiture, is nothing complicated. It means just that. It is quite a challenge putting it to practice, though. Previously, the only method recovering wealth amassed through proceeds of crime was by prosecuting thugs. That is Criminal Forfeiture. It doesn’t have to be that way. Thanks to our new laws, we are able to call someone and to politely ask them where they got their suspicious wealth. If they cannot, it is state property.  That is Civil Forfeiture. No criminal case. And boy, it works. 

Asset Forfeiture is real big fun. I had the privilege of training on it in my past life. For some time, I was attached to the Asset Forfeiture Unit of the National Prosecuting Authority, in Pretoria, doing just that. This is how it plays out in practice.

I mean, literally. When the Police take a Range Rover from a drug kingpin, they do not park it at the Serious Crimes Squad offices and let it fossilise before disposing it off for a hundred pula in a poorly organised auction sale. Following due process, it is painted in police colours. Then it is given to police constables to use chasing drunken drivers, cellphone snatchers, politicians and cattle thieves. That way, the thug sees it around the streets everyday. Assuming they haven’t taken his home too, one day he gets home, opens the ceiling, ties a rope to the rafters and hangs himself.  Crime solved. In asset forfeiture, you don’t take proceeds of crimes only. You also take instruments adapted to the commission of crime. If person X uses his mansion in Phakalane as a drug factory, the State raises a brown flag over it. From that day it is Phakalane Police Station. In the end, the fight against crime is self-financing and we have more Range Rovers at police stations than at the Wesbank repossession centre.

That’s the way to fight economic crime. The present court system punishes crime.  It doesn’t really fight it. Too much of law enforcement effort goes to waste. Criminals commit crime for gain. They want the nice, shiny toys. There is no point pretending to be fighting them if you don’t target the money and the toys. Prison is just an occupational hazard factored into the crime plan. So long as it is profitable to commit crimes, crimes will be committed. These men must understand that. Their success lies in asset forfeiture.

But the success of Asset Forfeiture requires a strong DPP. It is not for the typical civil servant who spends all his time attending useless boardroom meetings consuming copious amounts of tea pretending to do PMS, whatever the acronym means. It requires a person with sights trained on crime. Stephen Tiroyakgosi has the training. How far will he be willing to go? The answer lies in the womb of futurity.

And then there is the DCEC Director. Now that is an important institution. Either we have an independent DCEC or we have no DCEC at all. A non independent DCEC is a gift to the crime world. It is a shredding box for crime and evidence alike. Enter, Mr. Paledi. Will you be running a docket incinerator or a crime fighting agency? Let’s give him a chance.

An American trainer once told us that they place significance on the serious cases involving the powerful, the rich and the famous because that way they are able to send out a louder message that crime does not pay and that crime will not go unpunished. I agree.

My friends, I wish you well.

kgosi.feedback@gmail.com