In December 2017 the country woke up to allegations that P250 million belonging to the National Petroleum Fund (NPF) had been stolen and that three suspects were in custody. The suspects were Bakang Seretse, Botho Leburu and Kenneth Kerekang.
In weeks and months to pass, the allegations extended to claims that the then Minister of Mineral and Green Technology had abused his office by awarding a contract to his brother Justice Zein Kebonang.
The contract was to manage the NPF fund. Until the Kgori Capital judgement last week, everyone believed that Botswana’s criminal justice system as infallible.
The accused have consistently maintained that the criminal trial against them was actuated by malice and was a deliberate attempt to destroy them.
They argued that the P250 million was money given to the Directorate of Intelligence and Security (DIS) service to procure military and security equipment from Israel and that they were merely caught up in an internal dispute at the Office of the President (OP).
Evidence regarding the contractual dealings between the DIS and the Dignia System were kept out of the public. Goods supplied to government by Dignia were never disclosed to the Directorate on Corruption and Economic Crime (DCEC) and Directorate of Public Prosecutions (DPP) despite them knowing that such goods had been received. Attorneys for the accused maintained that investigations against the accused were biased and there was deliberate non-disclosure of exculpatory evidence by both the DCEC and DPP.
The Kgori Capital case is a reminder that the criminal justice system is not infallible and that institution bias and political agendas can lead to a miscarriage of justice and that we need to worry about innocent people being wrongly subjected to criminal proceedings.
In the Kgori judgement, the Court of Appeal (CoA) confirms that the NPF contract had been lawfully awarded to Basis Points Capital in December 2015 and that Kerekang had been lawfully authorised to deal with Basis Points Capital.It also confirms that Kgori could not have managed the NPF for free. These findings of fact are not consistent with the narrative that the NPF had been looted. The findings also negate the view that Sadique has abused his office by awarding the NPF consultancy to his brother Zein.
It can only be so because he was not the minister in December 2015 responsible for the ministry of minerals. Surely, this fact was not difficult to establish. It is safe to say it was an inconvenient truth that did not align with the coordinated agenda to destroy him and his brother.
The same can be said about the Khulaco contract. Was the fund manager Seretse expected to do it for free? Why is DIS not in court to answer for the contract? Why has government hidden the contract with Dignia and the equipment it received from Israel and the training that accompanied the delivery of such goods? Why is Kerekang being prosecuted when he had been formally authorised to act on behalf of government? If there was any looting of funds, why is President Mokgweetsi Masisi not being prosecuted.
What about all other service providers that Seretse dealt with? Why seek to prosecute Kgori and its directors for a mandate lawfully given to them? What about the former spy chief Isaac Kgosi who signed the DIS/Dignia deal?
To any objective bystander, it is clear that the prosecution of the accused is based on a lie, distortion of the facts and contamination of the evidence.
While the DPP and the DCEC may have sought to profile themselves at the expense of the accused, what is clear is that for the accused, this malicious prosecution against them has blighted their lives. Any person who cares about the rule of law must be concerned about this abhorrent abuse of state power.
As the Kgori judgement warns, courts and prosecutors must guard against the emotional weight that the prosecution narrative about a case may carry.
To do so would allow false allegations to be made and accepted as truth. In the NPF case, much has also been made about the expenditure incurred by Seretse.
This is what the CoA calls a spending spree. But as the CoA pointed out, to focus on that is indicative of a legal misunderstanding of what the State needs to prove in a criminal prosecution.
As one commentator pointed out, “Both the DCEC and DPP have been caught up in a current of prejudice so powerful that they have been unable to objectively and properly assess the evidence before them.
Unfortunately, some courts have been caught up in this too. They have treated the State more sympathetically and have not allowed themselves to be emotionally and professionally detached. What we have seen in the past year has been a series of shocking and frightening events”.