Broadhurst Chief Magistrate, Oahile Lenah-Mokibe found no evidence relating to the accusations by the State that former spy chief, Isaac Kgosi allegedly took photographs of officers from Directorate of Intelligence and Security (DIS) and exposed them to the public.
Mokibe on Monday delivered a ruling in which she dropped a crucial charge against Kgosi on grounds that the State failed to provide any evidence of the photographs it accused the Kgosi of taking.
Kgosi, who was accused of contravening the DIS Act and slapped with two counts, being prohibition of disclosure of protected identity and obstructing officers and support staff. He now remains charged with a lesser charge of obstructing officers and support staff.
According to Mokibe’s ruling, 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.
There is thus a lacuna in the prosecution evidence,” she said.
According to the charge sheet, count one of the offences being the prohibition of disclosure of identity, Kgosi is accused of capturing images of the agents as well as their identity.
Particulars of offence is that the accused person Kgosi between the 18th and 25th February 2019 at Gaborone took photographs of officers as well as the identity cards of the officers engaged in a covert operation of DIS and the information was published in Mmegi publication.
On count two, he is charged with obstructing officers and support staff and the particulars of the offence is that, “The accused person, Kgosi on or about 18 February 2019 at Extension 6 obstructed x and y who are officers of the DIS in the execution of their duties by verbally assaulting them”.
The State alleges that Kgosi exposed names and images of the employees who allegedly harassed him being officers Sergeant G Nxaikhwe of Botswana Police Services and Bashi Moreba of the DIS.
The Magistrate also explained even the cellular phones that were seized from the accused person for forensic examination and the results in the form of an affidavit by one Kealeboga Keeditse indicated that the two devices/cellular phones, which were received for analysis, had nothing in them.
She said both phones, which were iphones, did not contain any evidence relating to the case. “There is no indication that they have been used to take pictures sought by the investigation and no web history or applications history of communication was recovered from both phones. On the other hand the accused intimates that he is entitled to the photographs to make his own investigation relating to them, which he is lawfully entitled to do in preparation of his defence,” she said.
Mokibe further pointed out that it was evident that the prosecution was unable to provide the accused with the certified copies of the photographs he is alleged to have taken in order for him to adequately prepare his defence, coupled with the prosecution evidence which was adverse to the State case to the effect that the cellular phones which were seized from the accused were not used to take the photographs relating to this case.
She said it was even hard to follow the State’s case as there is no evidence pointing to the person who disclosed the identities of the officers to Mmegi as there was nothing to suggest that Mmegi newspaper stated as to who gave it the information.
“I find that this is a proper case where the charge contained in count 1 must be quashed as it is likely to prejudice the accused in his defence and I so order,” she said.
Mokibe when touching on the remaining charge against Kgosi,, which is the obstruction of officers and support staff said the attestation form for Gotshajwang Nxaikhwe clearly indicated that he was a member of the Botswana Police Service and not of the DIS.
She noted that attempts by the State to cure that with the statement of Boikhutso Innocent Dintwa, the Deputy Divisional Commander of the Southern Division Headquarters that they have cordial relations with other law enforcement departments which include the DIS could not be the cure because undertaking duties under the DIS was governed by the Intelligence and Security Service Act.
Mokibe explained that it was evident that Gotshajwang Nxaikhwe was not appointed in terms of the said Act; therefore it followed that he could not have been undertaking duties under the said Act.
“It therefore follows that the allegations against the accused in so far as they relate to him having obstructed Gotshajwang Nxaikhwe cannot be allowed to stand and I accordingly quash them,” she said
Mokibe then ordered the prosecution to amend the charge sheet to remove the particulars in so far as they indicated that the accused obstructed him in the execution of his duty as an officer of the DIS.
Kgosi had made an application last year seeking for his charges to be quashed.
Through his defence team Unoda Mack and Thabiso Tafila he argued that the charges were just ridiculous especially that the State has nothing solid to be charging his client with.
The case has been set for March 23, 2021.