Can Masire be prosecuted?

TSHIRELETSO MOTLOGELWA
Staff Writer | Friday February 26, 2010 00:00

 

'Corrupt politicians make the other 10 percent look bad'.

It has become common to associate politicians with corruption to the extent that those engaged in the trade are often found guilty by profession.

This week the opposition Botswana Congress Party (BCP) released a strongly worded statement condemning former president Ketumile Masire for his indiscretions relating to his financial assistance by De Beers during his presidency. However they did not just castigate, they promised to do something about this sorry episode in the history of this country's presidency.

They threatened legal action. The party resolved 'to explore all legal and political avenues to ensure that former president Masire, De Beers, Debswana...are made to account for their actions'.

'Former President Masire used the Presidency to advance his personal financial interests and it is highly probable that national interests were compromised. De Beers and former President Masire were involved in transactions that amount to possible money laundering' concluding with the promise of action, 'BCP will be approaching the law enforcement agencies, in particular the DCEC and the Botswana Police, to investigate De Beers, BDP and Masire for possible money laundering and corruption'.

The public seems to have warmed up to the BCP's proposed method perhaps with the view that at least the matter will cease to be just a news story, but would become an opportunity to have something done about the sorry state of our political leadership.

The party has quite a limited scope on the political front with options ranging from parliamentary action where the opposition is ridiculously outnumbered and the Botswana Democratic Party united against anything for good or worse, to holding matches and delivering petitions. The political avenue offers scant consolation though, beyond the use of the story for use as fodder in political rallies and debates. The question then becomes - What legal avenues are there for the BCP or anyone with an interest in seeing the alleged perpetrators brought to book? Legal minds seem to be at odds as to what legal instruments are available.

Lawyer Duma Boko argues that the only viable option would be a criminal case, ruling out any civil process. 'The problem with a civil approach would be the question of the claimant - who is the claimant? What did he lose in this?' he says.

He says that would make it impossible to pursue a civil case.

Boko argues that the issue of money laundering would not be a viable option because money laundering starts with the use of proceeds of illegal activity. He gives the example of profits gained from the drug trade. 'If an individual was to use those funds to say purchase real state and then proceed to sell that, he is said to have 'cleaned' the funds, thus the word money laundering. Pursuing money laundering charges against Masire would not be a viable option given that the funds released from De Beers were not products of a criminal activity.

He thinks the charge to pursue should be related to Corruption and Abuse of Office.

The Penal Code outlines corruption as when, 'Any person who being employed in the public service, and being charged with the performance of any duty by virtue of such employment, corruptly solicits, receives, or obtains, or agrees or attempts to receive or obtain any property or benefit of any kind for himself or any other person on account of anything already done or omitted to be done, or to be afterwards done or omitted to be done, by him in the discharge of the duties of his office.'

The Penal Code further indicates, 'Any person who, being employed in the public service, receives any property or benefit of any kind for himself, on the understanding, express or implied, that he shall favour the person giving the property or conferring the benefit, or anyone in whom that person is interested, in any transaction then pending, or likely to take place, between the person giving the property or conferring the benefit, or anyone in whom he is interested, and any person employed in the public service, is guilty of an offence and is liable to imprisonment for a term not exceeding six months'

Boko believes that by funding Masire, De Beers could be found to be seeking to influence the decision-making. 'By having access to such goodwill the president's probity when dealing with matters relating to De Beers might be said to have been compromised' he argues.

He says the BCP could approach the Directorate of Public Prosecution to pursue the issue. 'It is the only body with the powers to pursue a prosecution, however if the DPP turns the offer down, then anyone is allowed to pursue the matter as a private prosecution,' he says.

At that point the party could then take the matter to court as a criminal case.

While attorney Boingotlo Toteng agrees that there are some legal instruments in place to pursue the matter he argues that from a purely practical perspective it would be difficult to launch such a case.

'Firstly on the part of government there would be no motivation whatsoever to pursue this matter. After all you would be putting it into question. The second point is much more practical. Where do you get your witnesses? You would need people to come forward. You would need to dig out the financial histories of those companies involved. Where do you get your evidence? Given that witnesses would have to come from the same parties who might not be friendly to this case how will you get them?' he explains.

Toteng says this case is only good as a purely political matter. 'This is a political matter and can only be pursued that way,' he concludes.

While many have argued that something needs to be done to stem what they see as a descent into a crisis of leadership the BCP could have its work cut out, in its attempt to find which side of the Kissinger demarcation of politicians Masire falls into.