'The boys were dandy, the girls cute'(Part 2)

| Friday January 21, 2011 00:00

'I am fascinated by this. Can we get different outcomes in similar cases and what would be the cause of that?,' Ngakaagae loudly wonders, frowning for a second.

Like all lawyers, Kgosietsile Ngakaagae has a penchant for making his arguments by posing questions rather than making assertions. In this way, instead of being led from the front, one is led from behind by prodding along through appeals to logical reasoning. He is making a point.

'For example, let's take two robbery suspects. Same circumstances; same everything except background. One comes from a poor background, let's say Bontleng. And the other one comes from say, The Village. Wa Bontleng o tla ko court a le shabby, he is basically ill at ease in the whole surroundings.

'The Village boy o tla a le well dressed, o tshotse dipampiri tsa gagwe, o bala sentle. He generally has the look of someone who knows what he is doing? Do these factors have any bearing firstly on the attitude of the magistrate towards either of the two, and most importantly... on the outcome of the case?'

After raising this question, Ngakaagae sits back in his chair, the way a lawyer does after making his/her strongest point in the clearest of ways. He looks down on hustle and bustle of the Main Mall below. He leans forward again, serious expression on his face. 'My fear has always been that it does. And if it does, then the justice we are giving is not justice,' he states with the finality of a judge.

Though Ngakaagae has always interrogated the efficacy of the judicial system to deliver justice in the balanced manner, one event seems to have made him even more critical. For a young man who always had a concern for the plight of the less fortunate, the judicial system was the great equalizer but also possessed the potential to further the divide between the with powerful and the marginalised.

In 1995, Ngakaagae, fresh from Tirelo Sechaba, packed his bags and went down south to join the legion of fellow post-secondary school bright-eyed boys and girls ready to take on tertiary education. The University of Botswana in Gaborone struck the young man as a big place. It had a touch of sophistication about it. 'The boys were dandy, the ladies cute,' he says. But it was the intellectual environment that young Ngakaagae found even more magnificent. The young men and women took to the introductory programme L101 like fish to water.

'That course was the basic introduction to the law programme; so if you might determine early whether law was your area of interest or not. The presentation was interesting. You learned about different schools of legal thinking; legal philosophy,' he notes. 

Ngakaagae fit in very well into the law programme, a hotbed of intellectual engagement. And the students were loud, independent-minded young and not shy to express themselves, often ruffling a few feathers in the process.

The lecturers revelled in it. 'I remember this lesson where we were basically split in two and we debated through the entire lesson. Duma Boko, who was a lecturer, enjoyed that type of thing and encouraged it,' he recalls.

Some time in his fourth year of law school, the young lawyers were taken to one of the biggest prisons in the country, the Gaborone Maximum. He found deplorable conditions. He found men defeated; men who had lost the will to fight. Young men. Some veterans of 'the system' who had developed ways and means to survive in the hostile environment. As he interacted with the prisoners, Ngakaagae realized that the poor outnumbered the more affluent preponderantly. Once again, his intellectual enquiry was ignited.

'Does it mean that poor people have a propensity to commit crime; and if so, why? Is wealth a factor in crime?

Deep within me is this fear that we have rich thugs out there who should be inside,' he concludes.

Ngakaagae often sounds as though he was pushing political arguments. But far from it, he views partisan politics as too self-focused to make a difference. I offer the suggestion whether this concern for the marginalized did not stem from his Christian faith. Afterall, to Christians, Christ is the embodiment of the outsider, the downtrodden.

Does not his role as a Christian consist of an ability to empathise and act on behalf of the downtrodden? He considers the idea for a while. 'It could be,' he says.  A Botswana Defence Force fighter plane roars overhead. We pause for a moment as the thick roar of the fighter jet echoes across the sky. Deep down, Ngakaagae is an action man, having toyed with the idea of enlisting with the BDF in the early years following his graduation. But his sister Gloria would have none of it. Ever the unwavering Christian, Gloria believes that Ngakaagae's eventual failure join the army was the result of her prayers. 'I prayed so much, waitse. 'Please don't let this boy go into the military,' I petitioned God,' she remembers.

Ngakaagae did apply for a cadet position in the army. However, the humiliating process of selection in which young men have to line up under the scorching sun turned him away from the whole idea. The Attorney General, ever more responsive to the enquiries of young law graduates, snapped him up. I look at the machine in the sky: 'You still want to fly it?,' I ask him. A mischievous smile covers his face: 'I wouldn't mind flying it,' he says, almost laughing. Nodding. For a moment, the growl of the flying machine holds our fascination and we fall silent, as if to let it sink.

But Ngakaagae has been a different soldier. As a prosecutor in the anti-corruption crusade of the state, he is the man at the heart of the Nchindo case. In 2000 when young Ngakaagae joined the legion of young lawyers there, the AG was a vibrant place led by Phandu Skelemani, himself a lawyer of distinction. Among other legal brains of note were young prosecutors like Lizo Ncqoncqo and Unoda Mack.

Matlhogonolo Phuthego says the AG was certainly the best place for a young lawyer at the time. 'You learned a lot from these people,' he says. He remembers young Ngakaagae as a driven lawyer of 'amazing zeal'. Importantly, there was rigorous debate on matters of law, making the AG's chambers an intellectual's haven. The AG perhaps gained most of its vitality from the attention it had accrued while pursuing one of the most controversial cases in the legal annals of this country - the Marietta Bosch saga.

Bosch was found guilty of the murder of Maria Wolmarans, her lover's wife, at a house in Phakalane Estate in Gaborone on June 26, 1996. She had pleaded not guilty to the charge. During her trial, it was revealed that she had used a pistol she had brought illegally from South Africa into Botswana.  Bosch claimed that she had handed the pistol to a Coetzee on arrival in Botswana as he had expressed the wish to buy it from her. According to her, Coetzee returned the pistol following Wolmarans's death, saying he had done what he had wanted to do with it.

Prosecution witnesses testified that Bosch had an affair with the deceased's husband dating back to 1993 and that the two planned to get married as soon as the deceased was out of the way. Bosch's husband, Justin, had died in a 'road accident' in South Africa in 1995.

Passing judgement, Judge Aboagye found that indeed the accused was having an adulterous relationship with Wolmarans and, moved by infatuation, had set about planning to eliminate the deceased. Bosch was subsequently convicted and sentenced to death.

The Bosch case also brought with it considerable pressure. Those at the heart of it developed thick skins to withstand this pressure that was being exerted on all sides. The international media hung onto every detail of the case, and the conviction and hanging of a white South African woman caused an uproar. President Festus Mogae, who viewed the concern for the hanging of Borsch as the concern for the sanctity of white privilege, provided cover for the AG.

However, just over half a decade later, Ngakaagae would have to stand under the media spotlight as the prosecutor leading another of Botswana's high profile cases - the Nchindo case.  Phuthego says in 2007, a decision was taken to take the Nchindo file and make something of it. 'The file had been lying around unattended,' he explains. The two built a team of six consisting of prosecutors of different levels. 'The others dropped off once the case started to take shape,' Phuthego explains. The result was that at the head of the case were Phuthego and Ngakaagae and two younger prosecutors, Gopolang Tlhabologang and Lameck Kgosieile.

The point about the Nchindo case was that it was an extremely high profile one. They had made the decision to draft charges, and the hard work began. But an initial major problem was that it was not easy to find a direct law to charge Nchindo from. 'We had to go through all statutes in order to find the appropriate one to use,' recalls Phuthego.

In the higher echelons of power, the four prosecutors had few friends, but they were shielded by the giant frame that was the no-nonsense DPP Director, Leatile Dambe. Every now and then, Dambe would have to summon an unhelpful permanent secretary or minister over to her office. ''Mma D' had that power,' Phuthego continues. 'If we encountered a problem accessing someone, she would make sure she got to that person. She provided us with all we needed and made sure that we were protected from outside influence.'

The case often held up the four in DPP offices past midnight, but they often had to be back at work by seven the next day. It took a toll on their families. Out of desperation to be with her husband, Mma Ngakaagae once went with him to the office where he got immersed in a research session that went up to midnight. 'I just stood there,' she remembers. 'I got bored because once he got engrossed in what he was doing as though he was there alone.

The next day I gave up and just stayed at home.' She says she always prayed for her husband. 'We knew that he was working on a big case, and many powerful forces out there may have wanted to bring their influence to bear on him,' she says. 'We asked God to keep him safe and upright.'

Phuthego says Ngakaagae was often deployed to do the attacking because he was good at it. True to form, he tore through former education minister Jacob Nkate with gusto. The Nchindo case was characterized by Ngakaagae's clashes with everyone from Nkate to Nchindo's advocate, Peter Hodes who had a penchant for bullying. I ask Phuthego if they achieved what they set out to do, given that at first they reduced the charge sheet when Nchindo died and had to cut it back again when they could not get certain high profile witnesses? And in the end, both Matome and Nchindo junior got what are generally perceived to be lenient sentences?  Phuthego says it was not about punishing anyone but finding justice for the nation. Their major victory is that they have managed, for now, to get Plot 55720 given back to the state, he says. They have done their part, though an appeal ahs been lodged and Ngakaagae has quit to start his own law firm. I leave Phuthego in his DPP office backed-up against the wall, books all over and files strewn on the table and note that evidence of more dedication to work would be hard to adduce from the entire civil service. He cuts a somewhat lone figure without Ngakaagae, his astute sidekick and learned friend.