Controversial former Botswana Democratic Party (BDP) National Youth Executive Committee Chairperson Contender Jerry Chitube has been cleared of criminal activities in Botswana.  

Chitube is a Zambian national who was declared a prohibited immigrant after he raised eye brows as a surprise runner for the BDP Youth Wing congress in Masunga raising some shock waves in the party. At the time Chitube was little known in the party but splashed a lot of cash and commanded massive respect until the February 2015 when security agents pounced on him as he readied himself for the BDP youth league chairmanship ballot vote.

Information turned up suggests that the Zambian master spy, who was also linked to the national secret agency Directorate of Intelligence and Security Services (DISS), had infiltrated the BDP and had striking ambition that rocket much higher than the position of chairperson of the BDP Youth League. He claimed that the BDP was grooming him to be president. Local media was awash with news that thereafter the contentious Chitube was deported after alleged corrupt deals with some senior ruling BDP members.

Before deportation, a criminal trial was registered on the 17th May 2014 in which two of the witnesses in their statements “implicated Chitube as a key player in committing an offence of obtaining (huge sums of money) by false pretences” and as a person to whom they handed the sums of money to.

In the case that just ended in the highest court in the land last week, the appellants; Moment Chidube, Biki Ishmael Kadimo and Thabiso Mokgadi and several others are facing a criminal trial before the Magistrate’s court on several offences related to and arising from a criminal enterprise in which a company named Lodisa (Pty) Ltd was allegedly defrauded of substantial sums of money and one of its officers robbed.

At the heart of the appeal was the issue of whether the State has violated the appellants right to a fair trial enshrined under section 10(2) (e) of the constitution by excluding Chitube on the matter as he was deported. When arguing the matter, Chitube’s attorney Advocate Mpho Morapedi pointed out that although Chitube was implicated as a key offender he was neither cited as an accused nor listed as one of the prosecution witnesses.

Counsel submitted that as Chitube was a key role player but was neither charged nor listed as a witness the defence intended to call him as their witnesses. He informed the court that it was common cause that Chitube was no longer in the jurisdiction he having been declared a prohibited immigrant and deported from the country. He sought an undertaking from the prosecution for Chitube to be allowed back into the country to give evidence on behalf of the defence should the defence need him.  

When making a ground breaking judgement on the marathon case on Friday, Court of Appeal panel of 5 Judges; Justice Ian Kirby, Justice Isaac Lesetedi, Justice Singh Walia, Justice Jacobus Brand and Justice Craig Howie ruled that: “in such cases there is no prejudice which can be shown let alone resulting in an unfair trial.”

The Judges continued: “the appellants have failed on this test, the referral stood to fail and the High Court having so found, it is unnecessary to consider whether the High Court was in error in finding that the requirements for the grant of a permanent stay of prosecution had not been me by the appellants.”

They highlighted that it has not been shown that Chitube having been shown to be a necessary and material witness required by the president for restricted re-entry in this regard and if so that such has been refused, or that such an application if made is bound to fail. “For it will be an abuse of right to put the State to expense in bringing from abroad a prohibited immigrant who may either be unwilling to give evidence e or whose evidence is not material or favorable to the party seeking to call it.”

It will even be inimical to the rule of law and the public interest to permanently stay a criminal prosecution on such serious charges merely because of the absence of a witness whose evidence may not be material to the trial let alone favourable to an accused who merely alleges that he will be prejudiced by the absence of the witness, the Judges insisted.

Essentially three grounds were advanced on the appeal, which cleared Chitube that “High Court fundamentally misdirected itself in law in holding that the appellants failed to demonstrate that their constitutional right to a fair trial will be prejudiced by the unavailability of Jerry Chitube.”

In addition the CoA ruled that the High Court erred in holding that the materiality of Jerry Chitube has not been sufficiently traversed to enable the court to fathom and determine the materiality and favourability of such testimony to the appellants’ case. Advocate Mpho Garebatho and Lore Morapedi stood in for the appellants while the State was represented by Gonayaone Ketlhapetswe. Meanwhile Chitume still remains a prohibited immigrant.