Kgosi, the founding Director General of the Directorate of Intelligence and Security (DIS), died an innocent man despite having had numerous criminal charges levelled against him since leaving office in April 2018.
He was fired from his position by President Mokgweetsi Masisi with 18 months left on his contract. What followed after he was shown the door could never have been imagined against the man who at one point in his career became the most feared civil servant in the country.
Kgosi died early last Sunday following reports that he was undergoing a colon operation at a local private hospital. Up until his death, he had criminal cases pending before Magistrate’s Courts and according to a source at the Attorney General ,Kgosi’s cases might be withdrawn.
“I gather that the Attorney General gave an opinion that all his cases be withdrawn as of last week, only for him to pass on. Recall that his gun case, the High Court already took a position, leaving the Magistrate cases to have no option but to be withdrawn,” stated the source.
However, despite all these revelations that Kgosi’s cases were going to be withdrawn, there are still pending legal issues to be understood by the masses.
The law
This week, Mmegi sought legal direction regarding legal implications following Kgosi’s death especially that some cases were allegedly still on the roll.
The reality is that any person facing criminal charges is presumed innocent until convicted in a court of law.
According to the law, all criminal cases die naturally when a person dies but civil matters can still be pursued against a person’s estate.
Othusitse Mbeha of Mbeha Attorneys told Mmegi: “Assuming the allegations of the passing away of the founding Director General of the DIS are true, what is the legal position and or state of his current civil cases pending before the courts. The position of the law is that if a litigant passes away, legal proceedings by or against him already before courts are stayed pending the appointment of an executor to continue with the litigation.
Until the appointment of an executor, the cases stand frozen without any progress. As it is now, the Directorate of Public Prosecution (DPP) or DIS shall not be able to proceed with its civil cases against the late DIS Director General until an executor is appointed. On the other hand, if there’s any criminal case against him, it automatically falls away by virtue of his death.”
In the late Kgosi’s case, he was facing many criminal charges against the State. Despite that, conviction has never been achieved against him in any of the offences he faced. In some of the cases, he has even won.
The start of Kgosi’s troubles
and how the cases came aboutKgosi’ nightmare with the law all started in January 2019 at the Sir Seretse Khama International Airport when he was first arrested in full view of the public upon his return from a wedding in India. In what was described as a Hollywood movie style arrest, Kgosi was handcuffed and taken into custody by a team of intelligence officers and other law enforcement agents.
The incident took place in full glare of his family, the media and appeared to have been well coordinated by the current DIS Director General Peter Magosi, Kgosi’s successor at the intelligence agency. Magosi personally escorted Kgosi into a convoy of waiting vehicles outside the airport.
Even though it was initially not clear at the time as to why the intelligence directorate pounced on Kgosi, there were allegations of tax evasion on his part. It was alleged that the Botswana Unified Revenue Service (BURS) subjected the former spy chief to a lifestyle audit.
Despite uttering the controversial ‘I will topple the government’ phrase, Kgosi was never charged for that and the airport arrest never culminated into any charge. Instead, the arrest led to subsequent investigation which included several raids at his properties. But, it went downhill after that as more and more charges kept coming for the departed former spy chief.
April 2019
l Kgosi’s first ever charges came on April 2019, when he was slapped with two counts of offence contrary to section 19 (b) (ii) as read with section 46 of the Intelligence and Security Service Act. Kgosi, who was arraigned before court, was accused of exposing DIS agents to the public. According to the charge sheet at the time, the two offences were the prohibition of disclosure of identity. The particulars of offence were that the accused person, Kgosi, between February 18 and 25, 2019 in Gaborone, took photographs of officers as well as the identity cards of the officers engaged in a DIS covert operation. On count two, he was charged with obstructing officers and support staff. “The accused person, Kgosi, on or about February 18, 2019 at Extension 6 obstructed x and y who were officers of the DIS in the execution of their duties by verbally assaulting them,” read the charge sheet.
Kgosi went on to win the case. Before the entire case was withdrawn by the State. Broadhurst Chief Magistrate, Oahile Lenah-Mokibe in one of her rulings where Kgosi sought his charges to be dropped, said she had found that there was no evidence relating to the accusations by the State that former spy chief allegedly took photographs of officers from DIS and exposed them to the public.
In her ruling at the time, Mokibe she said it was clear from the numerous requests by the defence team for further particulars, especially the said photographs that the State had nothing tangible to give as it failed to provide the pictures.
“It is clear that the prosecution was unable to provide the certified copies of the photographs which were allegedly taken by the accused. Additionally, there is no information relating to the person who disclosed the identity of the officers to Mmegi newspaper,” she had ruled.
This was victory for Kgosi as later the whole case was withdrawn by the Directorate of Public Prosecutions (DPP).
March 2020l When Kgosi was yet to recover from the airport arrest and his first ever arraignment before court, he was slapped with another charge. On March 2020 he was finally indicted in the National Petroleum Fund (NPF) case. He was accused number 18 in the case, which involved P250 million.
At the time it was alleged that Kgosi had requested the NPF to build fuel storage facilities. However, it was further alleged that the DIS later changed the intended purpose of the money and used the funds for anti-poaching equipment purchase while some were allegedly diverted to their own pockets.
October 2021l October 2021 was yet another time for Kgosi to face more charges. He was slapped with six counts after being accused of undermining the security of the country, which was said to be prejudicial to the interest of the country contrary to the National Security Act.
June 2022l The former deposed boss of the DIS was charged together with former president Ian Khama and others in a case reportedly linked to illegal possession of firearms. Kgosi, who seemed to have taken the hardest beating than any other former public officer, was charged with 32 counts. This case, former Commissioner of Police, Keabetswe Makgophe and former deputy permanent secretary in the Ministry of Youth, Gender, Sport and Culture (MYSC), Victor Bruno Paledi all escaped criminal prosecution after the DPP dropped the charges against them where they were charged alongside with
Khama and Kgosi.With Khama and Kgosi there was never any communication about their charges until recently.
July 25, 2022 l Kgosi was charged with a single count of corruption in relation to the alleged acceptance of over half a million pula from an electronic company to allegedly influence a decision of procurement from the Public Procurement and Asset Disposal Board (PPADB).
Particulars of the offence are that the accused person, Kgosi in 2009 then employed in the public service as the DIS Director General, indirectly “accepted for himself the sum of P687, 281.29 from Vlatacom D.O.O as valuable consideration to influence in recommending that PPADB to appoint the same company to get the tender to supply amongst other things identity card protection to the spy unit”. The worst thing to happen to him is when he complained against the State that after his property was impounded by the Receiver, majority of it was in a derelict state with cattle dying as they were not taken good care of including the Sentlhane farm, some of his cars and others had terribly deteriorated.
This was the very last case that was brought against him in 2022, and much was not yet done regarding the case, in terms of his appearance and the way forward for the trial.
