Former President Lt. Gen Ian Khama’s absence in court to corroborate evidence brought by Attorney General Abram Keetshabe and Permanent Secretary to the President (PSP) Carter Morupisi, has led to a decision by the High Court to order for a payment of P1.7 million to the expelled former Permanent Secretary Dr. Micus Chimbombi.
Chimbombi’s contract as PS in the Ministry of Agriculture and Food Security was terminated in 2015, under dubious circumstances by both Keetshabe and Morupisi who were alleging to be acting on behalf of the government and employer at the time; Khama. Incidentally, Khama endorsed Chimbombi for the candidacy of Kgalagadi South under the Umbrella for Democratic Change (UDC) party ticket in the run up to the just ended 2019 General Elections.
Interestingly, when delivering judgment this week, Justice Busang said “the Attorney General chose not to subpoena Khama [the then President] to attend court and give evidence,” while adding that then “it follows therefore that consequence of such decision shall have a bearing on whether their evidence without Khama’s corroboration or confirmation is to be believed.” The Judge pointed out that it became apparent during Morupisi’s evidence that certain explanations could, only be provided by Khama (himself).
Therefore, Busang stressed that he “cannot be faulted for believing that Morupisi and Keetshabe knew more than what he knew would be detrimental to his interests if he did not do as asked.” As a result he ruled that the termination of Chimbombi’s contract of employment by the Defendants (Khama, Keetshabe and Morupisi) “was procured through undue influence and was consequently unlawful.”
He further ordered the “Defendants (government) to pay Chimbombi the total sum of P1 710 090.20, representing all the remuneration and other financial benefits which would have been due to him for the balance of his fixed term contract of employment.” The claimed sum of P1 710 090.20, he explained, is arrived at by adding the monthly salary of P55 164.20, made of P39 403.00 plus 40% scarce skills allowance. The total earnings for 28 months would have totaled P1 544 597.60; 65 days for leave days P165 492.61, the Judge highlighted.
According to the High Court Judge, Morupisi and Keetshabe took advantage and abused their positions, access and proximity to power to eject Chimbombi from the civil service. “I find that there was a mutual agreement for the termination of Chimbombi’s contract of employment, which was procured through undue influence. One of its terms was that Chimbombi would be paid the balance of his contract of employment or some reasonable amount, a term which the Defendants breached,” the Judge highlighted.
Chimbombi, he added, had no reason to disbelieve what Morupisi told him was the employer’s position in relation to his contract of employment. “Given the speed at which Keetshabe gratuitously moved and his general conduct on the 5th October, I have no doubt in concluding that the urgency with which Chimbombi was required to submit the (resignation) letter greatly influenced him,” Busang further pointed out.
The influence, he said was obtained at his expense as he was under so much pressure that he was incapable of exercising his mind to form an independent and objective opinion, and had no option but to succumb. He further observed that on the basis of the Defendant’s own contradictory pleadings with respect to the legal basis for Chimbombi’s exit; the inadequate evidence- the evidence contradicting itself and the pleadings- had no basis in law and fact for Chimbombi’s contract to be terminated.
“The discussion to mutually separate, initiated by Morupisi never touched on Chimbombi’s failure to perform. He was never told that separation is based on projects or their failure. On the basis of the Court of Appeal’s decision in Phuthego and others v Barclays Bank of Botswana Ltd, I do not see any reason why Chimbombi cannot be paid the balance of his contract and all the related contractual benefits,” Busang maintained.
His contract of employment, it is understood, provided for termination but it could be terminated if he was found guilty of misconduct; has failed by reason of infirmity of mind or body to carry out the functions of his office satisfactorily or the performance standard set under the contract relating to his appointment; if he failed to carry out the functions of his office satisfactorily, and had without the consent of the appointing authority engaged in other remunerative employment, occupation or business. However, court heard that Ministry of Agriculture got position one (1) in the reviews just before Chimbombi was asked to exit the Public Service by mutual separation.
Court also questions AG Keetshabe’s religious beliefs
The Judge pointed out that in his view Keetshabe’s conduct on the matter was unbefitting of both a Christian and a lawyer. “Christians are known to have a sense of empathy and compassion; I do not see that in the way Keetshabe approached the matter. He was in my view not motivated by any altruistic considerations; on the contrary he was serving other interests that are best known to himself,” he asserted.
He also observed that Lawyers are generally expected to conduct themselves in a manner which is professional; ethical; independent and beyond reproach at all times especially when dealing with matters that may affect other people’s legal rights, regardless of whatever hurt they shall be putting on. Lawyers are not expected when discharging their professional mandate to do anybody’s bidding. They, he added, should be courageous enough to tell their client what the law provides, and not what the clients want to hear.
“What Keetshabe did in this case was tantamount to a doctor prescribing medicine to a patient without diagnosis or ascertaining if the patient had any allergies,” Justice Busang stated. During working hours civil servants are expected to discharge their mandate in terms of their contracts of employment, Justice Busang stated while adding that, religious beliefs are private matters which should not affect public servants professional responsibilities and cloud how they discharge their professional mandate.
A heartfelt message of good wishes from Minister Mmusi Kgafela to his self-exiled brother and Bakgatla paramount chief, Kgafela Kgafela II, this week urged the latter to consider calls for his return to Botswana to visit his tribe and family.
“On behalf of our father’s people, your people, I wish to inform you that Bakgatla are thinking of you, and they miss you dearly. They request that you should find time to visit them. Please come to Botswana to spend some time with them, to see and greet them,” said Mmusi as part of his 50 years birthday message to Kgafela Kgafela II, who has vowed never to set foot in Botswana.
However, Mmusi Kgafela did not shed light on how his brother will deal with the arrest warrant, which triggers once he sets foot in Botswana.
The Bakgatla Kgosikgolo, who went on a self-imposed exile in 2012 to South Africa, faces a decade-old-plus warrant of arrest issued by the Village magistrate court after his non-appearance in Court over criminal charges relating to flogging of his subjects. Kgafela described the charges as ‘political persecution’ before jetting out to his second home in South Africa, Moruleng, where he is also a Chief.
Asked over his views on the complications around the warrant of arrest, Mmusi, a lawyer by training, said, “what people need to understand is that a warrant of arrest is not a prison sentence.”
He continued: “There is a need for reconciliation and discussions to put all these issues behind us. We need to move on. What I have also realized is that the state is not keen on pursuing the matter as they have not sought his extradition,” he said.
In 2017, the then Minister of Defence, Justice, and Security, Shaw Kgathi, told Parliament that the arrest warrant issued against Bakgatla Kgosi-kgolo is still valid.
“….because a Court order once issued remains valid and enforceable unless it is rescinded by the Court that issued it, in this case being Village Magistrate Court. It may also be revoked by a higher court being the High Court or the Court of Appeal,” Kgathi said.
As things stand, the Government will arrest Bakgatla Kgosi Kgafela II if he crosses over to Botswana, Parliament heard.
Kgathi responded to a question by the then Mochudi West Member of Parliament, Gilbert Mangole, who wanted to know if the arrest warrant imposed on Kgafela was still valid. Further, he wanted clarity on what it would take for the Government to trigger the removal of the warrant to enable Kgosi to visit his tribe in Botswana if he so wishes.
Could Mmusi be under pressure to facilitate Kgafela’s return?
Although Mmusi denies the claim, some royal sources opine that he (Mmusi) is under pressure to help President Dr. Mokgweetsi Masisi fulfill his 2019 electoral campaign pledge to the tribe. The President had pledged that he would “not rest until their chief, Kgosi Kgafela Kgafela II, is back home.”
Mmusi, however, says Masisi has not personally engaged him on Kgafela.
Kgafela’s former lawyer, Advocate Sydney Pilane, has in the past told this publication that he suspects that as the leader of the BDP, President Masisi hopes that if he brings Kgosi Kgafela back, BaKgatla may be grateful to the BDP, and benefits might accrue in consequence.
While Mmusi says the matter will need to be discussed and dealt with, private attorney Kgosiitsile Ngakaagae who was prosecuting Kgafela, warned that there is nothing to address or facilitate.
“There is no need for political intervention. Kgosi Kgafela is officially a fugitive from Justice. It’s for the Directorate of Public Prosecutions (DPP) to issue a nolle prosequi (we shall no longer prosecute) to enable his return. Constitutionally the DPP cannot be dictated to by politicians. The matter is beyond the President unless he violates the DPP’s constitutional mandate,” charged Ngakaagae.
“An arrest is intended to bring someone to Court. Secondly, a party who has become aware that a warrant has been issued against them can apply to Court before it is implemented for it to be discharged.”
The only option for the state currently, which the state is reluctant to pursue, is to drop the charges and withdraw the warrant of arrest or decide on a deliberate non-enforcement of the warrant, according to lawyers who spoke to this publication.
In South Africa, President Cyril Ramaphosa recently told his parliament that the deployment of his army to Mozambique had cost close to a billion rand, with the exact figure placed at R984,368, 057. On the other hand, the Botswana government is yet to say a word on their budget concerning the deployment.
In his National Assembly report tabled last week Tuesday, Ramaphosa said:
“This serves to inform the National Assembly that I have authorized the employment of 1,495 members of the South African National Defence Force (SANDF) for service in fulfillment of an international obligation towards SADC, to assist Mozambique combat acts of terrorism and violent extremists in the Caba Delgado province. This deployment had cost close to a billion rand, with the exact figure placed at R984,368,057.”
The soldiers, he said, are expected to remain there for the next three months.
Botswana, however, is yet to publicize its expenditure. Asked by this publication over why they have not and whether they will, the Minister of Defence, Justice, and Security, Kagiso Mmusi, said they would when the time is right.
“As you may be aware, nobody planned for this. It was not budgeted for. We had to take our BDF resources to Mozambique, and we are still doing our calculations. We also need to replace what we took from the BDF to Mozambique,” he said.
This week, President Dr. Mokgweetsi Masisi revealed that the Southern African Development Community (SADC) and the Botswana government would share the sustainment of the Mozambique military combat deployment. SADC has given Botswana its share to use according to its needs.
The costs in such deployments are typically categorized into three parts-boots on the ground or handling the system, equipment, and operational sustenance logistics.
It is unknown how much combat pay, danger pay, or sustenance allowance the soldiers will get upon return. However, President Masisi has assured the soldiers that they will get their money.
Masisi has said deployment comes when the country is faced with economic challenges that have been exacerbated to a great extent by the COVID-19 Pandemic, which is inflicting enormous health, financial, and social damage to all nations.
Botswana has sent 296 soldiers who left on Monday to Mozambique to join the SADC standby force.
Parliament fumes over being snubbed
In the 1994 Lesotho mission, the Botswana Parliament was engaged after the soldiers were long deployed. A repeat of history this week saw members of parliament grilling the executive over snubbing parliament and keeping it in the dark about the Mozambique military deployment.
Zimbabwe pledges 304 soldiers
Meanwhile, Zimbabwe has pledged 304 soldiers to the SADC Standby Force Mission in Mozambique to train an infantry battalion-size unit at a time, Defence and War Veterans Affairs Minister Oppah Muchinguri-Kashiri has said.
In a statement to journalists, Minister Muchinguri-Kashiri said the contingent would consist of 303 instructors and one specialist officer to coordinate the SADC Force Headquarters in Maputo.
Minister Muchinguri-Kashiri said that in terms of Section 214 of the Constitution of Zimbabwe, Parliament would be informed accordingly.
During the Extraordinary Summit of the 16-member regional bloc held in Maputo, Mozambique, last month, member states resolved to deploy a force to help Mozambique contain insurgency in its northern provinces where terrorists have left a trail of destruction that also threatens regional peace.
Former director general of the Directorate of Intelligence Service, Isaac Kgosi has been awarded doctorate in International and Diplomatic Studies by a Slovenian institution-New University after successfully defending his doctoral dissertation last year.
The institution‘s website shows that in February 2020 Kgosi defended his dissertation titled ‘Southern African Development Community [SADC] Diplomatic Conflict Management Response for Enhancing Human Security: The Case of Mozambique.’
“Faculty of government and European Studies hereby certifies that Seabelo Isaac Kgosi born in Francistown, on 15th December 1958 completed all obligations of the international and Diplomatic Studies doctoral programme on March 22,2021. On these grounds the Faculty of Government and European Studies is conferring upon him the scientific title of Doctor of Science in International and Diplomatic Studies, abbr:PhD,” reads the institution’s conferment certificate dated O6 July 2021.
Kgosi’s thesis was a study of SADC’s mediation and diplomacy in the Mozambican conflict that is mainly between the ruling Front for the Liberation of Mozambique (Frelimo) government and forces of the National Resistance (Renamo) that was once mediated by the late former president Sir Ketumile Masire in 2016 when it re-emerged after a revival by Renamo in 2012, driven by several grievances including allegations of economic marginalisation, regional economic imbalances and breach of the 1992 Rome General Peace Accords which had ended the post-independence civil war fought from 1977 to 1992. The escalation of conflict in Mozambique in early 2016 resulted in displacement of citizens in affected areas whilst thousands of people crossed the borders into Malawi and eastern Zimbabwe as refugees.
Efforts to search for and locate the document were unsuccessful at the time of going for press.
Kgosi’s curriculum vitae suggests that he has a Diploma in Mechanical Engineering and a Masters in Intelligence and Security obtained from Brunel University, a public research university located in Uxbridge, West London, United Kingdom. The latter qualification was obtained in 2007.
It is not yet known on whether Kgosi will use his qualifications to seek employment locally or internationally, or will decide to open a consultancy firm in line with his experience and academic achievements once the dust surrounding him goes way.
The former spy chief is currently fighting to clear his name in a series of cases against the state, which accuses him of owing the tax man, capturing images of the intelligence agents, as well as their identity between the 18th and 25th February 2019 as well as the identity cards of the officers engaged in a covert operation of the DIS. He is also accused of instructing Bank of Botswana (BoB) to open three bank accounts that were used to loot public funds amounting to over P100 billion together with former president Lt Gen Ian Khama.
Kgosi has countered on all the cases demanding the evidence which links him to the crimes levelled against him, all of which the state is currently struggling to submit before the courts. The state has lost and appealed the photographs case while the P100 billion case has been described as a big lie by various institutions.