The case in which the former director general of Directorate of intelligence and Security (DIS), Isaac Kgosi is challenging the decision to prosecute him for abuse of office and alleged corruption in the National Petroleum Fund (NPF) case is moving forward on Monday before Justice Michael Leburu of the Gaborone High Court.
Kgosi denies all allegations of wrongdoing and wants the charges against him quickly dropped. He stated that at all material times he was acting in his official capacity and for the benefit of the State. In the review application, Kgosi is challenging his prosecution on the basis that it is malicious. The reasons for the challenge include the fact that, the equipment ordered has been received by the State, his successor Peter Magosi is deliberately refusing to receive the balance of the equipment much to the prejudice of the State and that money allocated to the DIS was lawfully done and has not been lost.
Kgosi who was indicted in March 5, 2020 said the decision of State to prosecute him for the DIS dealings is irrational and unreasonable. The former spy chief who is charged amongst other crimes, for corruption and abuse of office, denies any abuse of funds allocated to DIS.
In his founding affidavit, Kgosi wants the decision of the State reviewed and set aside saying the decision to prosecute him on allegations of corruption or abuse of office was done in bad faith.
“I deny that I have abused my former office or acted corruptly either in the procurement or utilisation of the funds allocated to DIS. The application seeks a review and set aside the decision to institute criminal proceedings against me,” he said. Kgosi explained that most of the dealings of the DIS were done for the State and that the transfer of funds from government entity to another cannot constitute abuse of office or corruption. He pointed out that most of the funds allocated to DIS were expended for a lawful purposes and for activities that were beneficial to the State.
“DIS is a government security organ. The contract entered between DIS and other entities was for the benefit of the State. It was not unusual for DIS to enter into such contracts,” he explained.
According to his affidavit some of the contracts the State is premising the criminal proceedings on is a contract between DIS and Dignia Systems, which the spy organ procured equipment from and another being funding for a petroleum storage facilities and funds for the building of petroleum storage facility. He said none of the funds allocated had been lost and that the contract between DIS and Dignia was terminated unilaterally by the current director general Magosi much to the prejudice of the State.
“The DIS is a security organ and most of the activities are extremely sensitive and covert. In terms of its security mandate the DIS is autonomous body and is not restricted and in terms of reporting structure, it reports directly to the Head of State,” he said.
More on the funds allocated to DIS, Kgosi explained that the funds were ring-fenced so that they would not be lost to the treasury at the end of the financial year for lack of utilisation.
He said for the DIS to ensure that it could successfully carry out the construction of its petroleum facilities, the funds were ring-fenced through a company known as Khulaco. Kgosi also said the decision was undertaken on the advice of the fund managers who were at the time managing the NPF on behalf of government. “The funds ring-fenced by Khulaco were used for the intended purpose, that is for payment of equipment and services provided by Dignia through a lawfully executed contract. The funds were part of the DIS Special Operations Fund over which I had oversight. Those were not part of the normal budget allocation to DIS and could be used in a manner determined by DIS director,” Kgosi explained. He also noted that in dealings with allocated funds, he never at any point authorised payment of any commission to any party including Khulaco.
In his replying affidavit, Director of Public Prosecutions, Stephen Tiroyakgosi submitted that review proceedings brought in terms of Order 61 (1) are civil in nature and therefore place a peremptory duty on the applicant to serve a 30-day statutory notice upon the Attorney General in terms of Section 4 of the State Proceedings Act.
“I therefore have been further advised by the second respondent [Attorney General] and I do verily believe that no such statutory notice has been filed upon him or his office before commencement of thee proceedings and accordingly this review application must be dismissed for non-compliance with aforesaid Act,” Tiroyakgosi said.
Notwithstanding that his powers are reviewable, he hastened to add that these proceedings are not a good candidate for review because the matter is already before court.
“The decision the applicant seeks to review has been overtaken by time and events more particularly that the criminal trial process against the applicant has commenced and is before the Magistrate’s Court,” Tiroyakgosi said.
He further said at this stage of the criminal trial process the applicant cannot review his decision to prosecute him upon any grounds including on the grounds of irrationality, impropriety, unlawfulness or illegality.
“In fact my decision is rational based on the evidence which will be adduced during criminal trial before this Court and that evidence cannot be produced or led at this stage.” He prayed that the review application be dismissed with costs.