Mmegi

Khama, Motsepe, ‘Butterfly’ corner DPP

Maswabi
Maswabi

Former president Ian Khama, South African business magnate, Bridgette Motsepe, and Directorate on Intelligence and Security (DIS) agent, Welheminah Maswabi, have given the Directorate of Public Prosecutions (DPP) an ultimatum to criminally prosecute some public officers

According to a demand letter from the trio’s attorney Unoda Mack of Mack Bahuma Attorneys, if the DPP does not take action within 30 days from the date of service, their clients intend to exercise their rights under Section 14 of the Criminal Procedure and Evidence Act ("CP&E Act") and institute charges against some public officers who have as yet and quite inexplicably, faced no sanction despite overwhelming evidence. “Section 14 of the CP&E is simple and clear in its terms. Anyone who has personally suffered harm, as a result of the criminal conduct of some other person, may prosecute the offender for the alleged offence where (or when) the DPP declines to prosecute. In our clients' case, the Director of Public Prosecutions has not prosecuted those responsible for causing them harm. In light of the significant harm they have suffered, our clients have elected to bring a private prosecution under Section 14 of the CP&E Act, unless the Director of Public Prosecutions prosecutes those responsible for the harm caused,” he states.

Background

According to Mack, their clients are innocent victims of grave but false accusations at the instance of public officials. These false accusations, he says, were stated through a charge sheet dated October 1, 2019 against Maswabi and then followed by an affidavit deposed to by Jako Hubona, an Investigator with the Directorate on Corruption and Economic Crime (DCEC), on or around October 28, 2019, which was used by the DPP to oppose a bail application by Maswabi at the High Court in case No: UCHGB-000388-19. “In essence, public officials manufactured a baseless and politically motivated investigation against our clients, which led to the improper arrest, detention and prosecution of Maswabi and caused unquantifiable harm to all three of them,” he submits. Mack further submits that it was alleged without substantiation or evidence that, in 2008, Khama supposedly with the assistance of the late Isaac Kgosi, former Director of the DIS, opened a series of accounts at the Bank of Botswana; used those bank accounts to funnel over USD10.1 billion of public funds out of the State's coffers; and laundered those funds to various international bank accounts of which Motsepe and Maswabi are alleged to be signatories. Maswabi was charged with the offences of: Possession of unexplained property; financing of terrorism; and a false declaration concerning a passport.

According to Mack, these fantastical and outrageous allegations have since been discredited. “First, on 23rd August 2021, in a judgment of the High Court in Maswabi v the Director of Public Prosecutions and the Attorney General, Justice Zein Kebonang found that the accusations in the charge sheet and the Hubona affidavit were deliberately fabricated. These findings were subsequently confirmed and upheld by the Court of Appeal,” he states. Secondly, Mack submits that international firms Omnia Strategy and Alaco published an expert report following a thorough investigation of the allegations, finding no legal basis to any of the allegations advanced against Maswabi, Khama or Motsepe. “That report demonstrated in forensic detail how the evidence relied upon by Hubona was fabricated, unreliable and misleading. Former South African Public Protector, Thuli Madonsela, then independently reviewed the evidence and found that it exonerated Khama and Motsepe and represented a stain on the reputation of Botswana's judiciary,” he submits. Thirdly, Mack submits that retired Cape High Court judge (and former judge president of the Competition Appeal Court) Judge Dennis Davis separately reviewed the evidence independently, finding unequivocally that the case, on all evidence available, was predicated on baseless allegations which have no place in a court of law. Fourthly, Mack states that Chief Justice Terence Rannowane condemned these baseless allegations in a letter to President Masisi.

He quotes Rannowane stating that “the accused was brought to Court on fabricated evidence. That particular case caused untold reputational damage to our criminal justice system, not just here at home but abroad." Finally and most recently, Mack quotes new allegations that have surfaced in court papers filed on September 16, 2024 in the case of Pulane Pretty Kgoadi and Paul Desmond Setlhabi v the Attorney General, the DIS and the Botswana Police Service (BPS). He quotes a paragraph from Kgoadi and Setlhabi’s papers. The claimants allege that: "The 2nd Defendant's (DIS) Director General and one Deputy Director General at the Directorate on Corruption and Economic Crime are the architects behind the fake ‘Butterfly’ P100 billion theft story. The 2nd Defendant's Director General originated the false intelligence report that commenced the ‘Butterfly’ case. The 2nd Defendant's Director General paid nearly P10 million for the fake intelligence [from] which the report was generated. The 2nd Defendant did that in order to lie to His Excellency the President and to impress him as there never existed evidence of a missing P100 billion at the Bank of Botswana. Even when it was clear that the lies of the 2nd Defendant's Director General were unsustainable he insisted on the prosecution of the fake story, which he was able to sustain with the active help of the Deputy Director at the DCEC."

The harm caused

According to Mack, there is no doubt that their clients have suffered immense reputational and other harm as a result of the spurious allegations of the theft of public funds, money laundering and financing domestic terrorism. The Alleged Scheme, he states is as serious and damaging in nature as it is outlandish and all the more consequential for the role played by senior public officers. “This notwithstanding, and despite the findings in a ruling by Kebonang J (confirmed by the Court of Appeal), the DPP has taken no steps to address the harm caused to those affected - one of whom has now died before justice could be served. It is in light of the DPP's continuing failure to act that our clients will be forced to bring a private prosecution,” he states. By preparing the charge sheet as well as the Hubona affidavit and presenting them to Court, Mack submits the public officers behind these documents and those who directed them committed various offences and ought to be prosecuted for such offences.

These offences include, but are not limited to:

Abuse of office, contrary to section 104(1) and punishable under Section 33 of the Penal Code (cap 08:01);

Perjury, contrary to Section 111(1) of the Penal Code (cap 08:01);

Subornation of Perjury, contrary to Section 111(3) of the Penal Code (cap 08:01); Fabricating evidence, contrary to Section 116 of the Penal Code (cap08:01);

Conspiracy to defeat justice, contrary to Section 120 (a) of the Penal Code (cap 08:01).

Mack argues that any exercise of public power must be done lawfully, honestly and properly in order to maintain good governance and the rule of law. “Unlawful or illegal conduct must be dealt with in accordance with the law and should be sanctioned accordingly. It is in view of the above that our clients request that the DPP should immediately initiate criminal proceedings against all these public officers who prepared and presented the charge sheet and the Hubona affidavit to court as well as those who directed them,” he states. Accordingly, Mack submits that should the DPP fail to act against the perpetrators within 30 days from the date of service, then their clients will conclude that the DPP has declined to prosecute and they will bring a private prosecution at a time of their choosing. “In the event that the DPP declines to prosecute, our clients request that they should be issued with a certificate to that effect in terms of Section 18 of the CP&E Act.,” he states.

Editor's Comment
The people have spoken

In fact, early election results in some areas across the country, speak to large voter turnout which suggests that voters crowded at polling stations to decide appropriately. The Independent Electoral Commission (IEC) revealed that 80% of the 1,037,684 people who had registered to vote turned up to exercise their right.It’s unfortunate that at the time of cobbling this editorial comment, results had just started trickling in. We recognise that...

Have a Story? Send Us a tip
arrow up