There is something particularly refreshing about the High Court Judgement in the matter of former Minister, Sadique Kebonang and Judge Zein Kebonang, presently on a leave of absence.
It is not simply that the two Applicants, have been effectively cleared of the malicious allegations of money laundering and corruption, a fact of which I am very pleased. It is mainly for the reason, that, for the first time, the High Court has come out succinctly to state legal principles that must govern the exercise of prosecutorial discretions. As until the monumental judgement, that lawyers will be using for a long time to come, there was an awareness on prosecutors as to what the very basic expectations were in deciding whether or not to proffer charges. Several cases had articulated the roles of prosecutors in criminal litigation; none had been as succinct as the one instant.
The near-absolute prosecutorial powers conferred on the DPP by section 51 of the Constitution, make the DPP one of the most essential offices in our legal system. The fact that in exercising his professional mandate he is not under the control and authority of any person, puts him at the same level with, perhaps, Judges of the High Court, in terms of their power over those affected by their decisions.
It was important for these powers to be clearly delineated, firstly in order that the DPP may be constantly reminded of the parametres within which he must exercise his constitutional mandate, and secondly, in order that those affected by his decisions may know clearly, the circumstances on the basis of which they are entitled to judicial redress when they feel hard done by the all-important office. The DPP must not sulk at the decision but must celebrate it. So should all who believe in the rule of law. The decision restores confidence in the rule law.
Those who follow my commentary, would be aware that I have been amongst the many who have been shouting their voices hoarse that the DPP’s office has completely lost its bearings, and that its glory has departed. I have been insistent that the office has become a shadow of itself and that the institution is being led from the back by people who have never been in a law class. It is led from the back by the clueless and vindictive DCEC office whose capture is legendary, and the Office of the President, in its deathly grip onto petty quarrels. A strong DPP office will not only save itself, but will keep both the DCEC and the Office of the President on the leash and help promote their dignity. Presently, the situation seems to be and is in fact the exact opposite.
A friend of mine, a fellow lawyer, said immediately after the delivery of the judgement by Phuthego J, that the DPP needs to call itself to a crisis meeting in order to find its true essence and to and must hastily set sail to find its lost soul. He could not have been more correct. The prosecutorial policy of the DPP seems to be more founded on suspicions and OP vendetta, than professional judgement.
Years ago, the FBI arrested Dominique Strauss Kahn, former World Bank Governor, on allegations of sexual abuse made by a hotel maid. The case gained global notoriety not just because sexual assaults are grave by nature, but also, on account of the profile of Kahn, and the comparatively disadvantaged status of the complainant.
As the days ticked on, with Kahn having suffered jail, and under serious movement restrictions, his hopes of the French Presidency having faded, it became clear to the prosecutors that the evidence of the supposed victim was deficient of credibility in very material particulars, rendering a prosecution undesirable. The prosecutors, came out clear on their evidential conundrum and before a global audience, withdrew the matter against Kahn, accepting that the evidence on hand was not enough to put Kahn through further hardship. Had Kahn been arrested for the offence in Botswana, he would still be mentioning now after five years, before a magistrate court with the DPP or Police prosecutor coming before court every 14 days, to say that investigations are continuing and that his remand warrant be extended.
What I wish to note is that the aforesaid act by the prosecutors, did not bring disrepute to the prosecutorial office, or to the FBI. In fact, same asserted the inherent fairness of the American legal system to uphold good faith and to be guided only by only ethics and professional considerations. Our DPP office must have the same humility and fortitude; to advance fearlessly when circumstances warrant so; and to retreat fearlessly, when circumstances warrant so. To be fair to the Directorate they are well aware of these imperatives. Many of them are honourable lawyers who seek only good. But there is a category of senior officers who seem just too eager to curry favour with politicians by virtually licking their boots, persecuting their opponents on their behalf, and pursuing on their behalf a fake anti corruption public relations drive. I celebrate the monumental judgment.