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Two Death row inmates acquitted

Two death row inmates have this week escaped the hangman’s noose with a whisker after close to 10 years since their case commenced.

The duo Gagotshwane Ramotlopi and Kabo Ngwako had a sigh of relief when High Court Judge Ranier Busang this week dismissed their case on grounds of lack of sufficient evidence linking them to the murder. In the judgement, delivered on the 28th February 2018, Justice Busang stated that “It is ordered as follows; (that) the accused persons are discharged and acquitted.” It is understood that the two accused persons, Ramotlopi and Ngwako were on the 27th August 2013 charged with the offence of murder contrary to section 202 of the Penal Code (Cap 08:01).

The particulars of the offence state that; “the accused persons, Gagotshwane and Ngwako, on or about the 12th day of August 2009, at Basarwa Lands, Molepolole, in the Kweneng Administrative District of the Republic of Botswana, acting together and in consent murdered Phologo Olefile.” The accused persons it is said in court papers that they pleaded not guilty.

In his judgement, Justice Busang stated that “it is clear that not all that the prosecution lists (in their submissions) are proved facts. Some are conclusions and opinions based on the prosecutor’s interpretation of the facts.” For instance, the Judge highlighted, they (prosecutors) concluded that ‘it was undisputed that it was clear that the bench (of the donkey cart used leading to murder) was one of the items used to assault the deceased’ which is also not a proved fact but an opinion of the prosecutors on what the probabilities are.

“The prosecutors have (also) conveniently omitted other proved fact, namely; shoe prints over-stepped the donkey cart’s tyre marks. The prosecution has not made an attempt to deal with these shoe prints and exclude any link between their owners and the alleged assault on the deceased.” According to the Judge, for the accused persons to be convicted as charged there must be a proof that the deceased’s death was occasioned by their actions, and there must also be evidence excluding other persons or other causes in the demise of the deceased.

The Court of Appeal (CoA), Justice Busang reminisced that they have cautioned that circumstantial evidence be used only when it is necessary and where there are no dangers of convicting the wrong persons when it (CoA) stated that; “it has been said time and again by courts in England and South Africa and Botswana that circumstantial evidence must always be narrowly examined.”

Before drawing the inference of the guilt of an accused from circumstantial evidence, Justice Busang said it is necessary for the court to be sure that there are no co-existing circumstances which would weaken or destroy the inference. He added that the co-existing circumstances that may weaken or destroy the inference are proved facts that are inconsistent with the inference sought to be drawn; and the evidence in this case point to the presence of persons other than the accused at the scene; after the accused persons had left.

“In my view it is not safe to convict a person of murder on the basis of circumstantial evidence, only because the accused person was the last person seen in the company of the deceased. The law requires more than that, and in this case the circumstantial evidence falls short of the threshold, as it does not link the accused persons with the death of the deceased.”

In a free society such as ours, the Judge explained that the people have the right and freedom to associate and acquaint with whomsoever they choose, without fear of being accused of commission of offence by association. He continued: “I have been invited to also draw an adverse inference against the first accused for his failure to testify. For the court to draw such inference there must be prima facie evidence pointing to the guilt of the accused which calls for an answer. In casu there was no evidence sought to be used against them fell far short of what is required.”

How the murder may have occurred

According to the Directorate of Public Prosecutions (DPP) submissions (or prosecutors), the murder started when the deceased (Olefile) left Mmapina Ngwako’s place (mother to Kabo) in the company of the accused persons to buy sugar at Moatlapedi’s place and they were later all spotted at the same place (Moatlapedi’s) drinking shake shake (sorghum beer) until they all left the dwelling at 9pm.

It is understood that they then left in the donkey cart which had a bench which was used when driving a donkey cart, and in the morning the deceased was found lying on the road naked, which is the road to their homestead. The prosecutors stated that the bench that they sat on when driving the donkey cart was found in pieces just by the deceased and it was undisputed that it was clear that the bench was one of the items used to assault the deceased (ending up killing the latter).

The donkey cart was found at Mmapina’s house the following day and it had been taken there by the accused persons, the prosecutors pointed out. The prosecutors further emphasized that “it is probable to conclude that the accused persons are the ones who killed the deceased or that they know the person who killed the deceased. Reasons being that these facts put together point directly to the accused persons that they are the ones who can give a reasonable explanation about the deceased’s death.”

Judge also tears down prosecutors for shabby work and delaying justice

According to the Judge, the record of proceedings from the Magistrate’s court shows that, the accused persons started appearing in court from as far back as 19th August 2009, a week after the alleged murder of the deceased. He said they were granted bail on the 2nd March 2010 and thereafter waited for three and eight months before being committed for trial at the High Court.  

“It took the prosecution four years and fifteen days to charge them, since their arrest. It further took the prosecution another four months and three days between the indictment and committal for trial at the high Court. In the interim the accused persons became frequent guests at the Magistrates Court for mentions and status hearing, at monthly intervals,” the Judge fumed.

He also stressed out that “there is nothing on the record to explain why there was such an inordinate delay in bringing the accused for trial. I also see nothing to justify why accused persons, charged with such a serious offence have had to put up with charges hanging over their heads without being brought trial for more than four years. This state of affairs is intolerable and unacceptable.”

It is a cardinal principle of our criminal justice system that, Justice Busang continued, once a man is charged, he is constitutionally entitled to be prosecuted within a reasonable time. Meanwhile Detective Constable Mpho Lesife, as the investigating officer, gave evidence on the matter, alongside with others.  In the case, Khumoetsile Tirelo from DPP stood in for the State, Unangoni Tema was representing murder accused Ramotlopi while Mooketsi Segaise was on behalf of Ngwako.

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Civil Service volatility: Democracy vs Bureaucracy

19th April 2021
President Masisi

Here is how one Permanent Secretary encapsulates the clear tension between democracy and bureaucracy in Botswana: “President Mokgweetsi Masisi’s Government is behaving like a state surrounded with armed forces in order to capture it or force its surrender. The situation has turned so volatile, for tomorrow is not guaranteed for us top civil servants.

These are the painful results of a personalized civil service in our view as permanent secretaries”. Although his deduction of the situation may be summed as sour grapes because he is one of the ‘victims’ of the reshuffle, he is convinced this is a perfect description of the rationale behind frequent changes and transfers characterising the current civil service.

The result of it all, he said, is that “there is too much instability at managerial and strategic levels of the civil service leading to a noticeable directionless civil service.” He continued: “Changes and transfers are inevitable in the civil service, but to a permissible scale and frequency. Think of soccer team coach who changes and transfers his entire squad every month; you know the consequences?”

The Tsunami has hit hard at critical departments and Ministries leaving a strong wave of uncertainty, many demoralised and some jobless. In traditional approaches to public administration, democracy gives the goals; and bureaucracy delivers the technical efficiency required for implementation. But the recent moves in the civil service are indicative of conflicting imperatives – the notion of separation between politicians and administrators is becoming blurred by the day.

“Look at what happened to Prisons and BDF where second in command were overlooked for outsiders, and these are the people who had sacrificially served for donkey’s years hoping for a seat at the ladder’s end. The frequency of the changes, at times affecting the same Ministry or individual also demonstrates some level of ineptitude, clumsiness and lack of foresight from those in charge,” remarked the PS who added that their view is that the transfers are not related to anything but “settling scores, creating corruption opportunities and pushing out perceived dissident and former president, Ian Khama’s alleged loyalists and most of these transfers are said to be products of intelligence detection.”

Partly blaming Khama for the mess and his unwillingness to let go, the PS dismissed Masisi for falling to the trap and failing to outgrow the destructive tiff. “Khama is here to stay and the sooner Masisi comes to terms with the fact that he (Masisi) is the state President, the better. For a President to still be making these changes and transfers signals signs of a confused man who has not yet started rolling his roadmap, if at all it was ever there. I am saying this because any roadmap comes with key players and policies,” he concluded.

The Ministry of Health and Wellness seems to be the most hard-hit by the transfers, having experienced three Permanent Secretaries changes within a year and a half. Insiders say the changes have everything to do with the Ministry being the centre of COVID-19 tenders and economic opportunities. “The buck stops with the PS and no right-thinking PS can just allow glaring corruption under his watch as an accounting officer. Technocrats are generally law abiding, the pressure comes with politically appointed leaders racing against political terms to loot,” revealed a director in the Ministry preferring anonymity.

The latest transfer of Kabelo Ebineng she says was also motivated by his firm attitude against the President’s blue-eyed Task Team boys. “The Task Team wants to own the COVID-19 pandemic and government interventions and always cry foul when the Ministry reasserts itself as mandated by law,” said the director who added that Masisi who was always caught between the crossfire decided on sacrificing Ebineng to the joy of his team as they (Task Team) were in the habit of threatening to resign citing Ebineng as the problem.

Ebineng joins the Office of the President as a deputy Coordinator (government implementation and coordination office).The incoming PS is the soft-spoken Grace Muzila, known and described by her close associates as a conformist albeit knowledgeable.

One of the losers in the grand scheme is Thato Raphaka who many had seen as the next PSP because of his experience and calm demeanour following a declaration of interest in the Southern African Development Community (SADC) Secretary post by the current PSP, Elias Magosi.

But hardly ten months into his post, Raphaka has been transferred out to the National Strategy Office in what many see as a demotion of some sort. Other notable changes coming into OP are Pearl Ramokoka formerly with the Employment, Labour and Productivity Ministry coming in as a Permanent Secretary and Kgomotso Abi as director of Public Service Reforms.

One of the ousted senior officers in the Office of the President warned that there are no signs that the changes and transfers will stop anytime soon: “If you are observant you would have long noticed that the changes don’t only affect senior officers but government decisions as well. A decision is made today and the government backtracks on it within a week. Not only that, the President says this today, and his deputy denies it the following day in Parliament,” he warned.

Some observers have blamed the turmoil in the civil service partly to lack of accountable presidential advisers or kitchen cabinet properly schooled on matters of statecraft. They point out that politicians or those peripheral to them should refrain from hampering the technical and organizational activities of public managers – or else the party (reshuffling) won’t stop.

In the view expressed by some Permanent Secretaries, Elias Magosi, has not really been himself since joining the civil service; and has cut a picture of indifference in most critical engagements; the most notable been a permanent secretaries platform which he chairs. As things stand there is need to reconcile the imperatives of democracy and democracy in Botswana. Peace will rein only when public value should stand astride the fault that runs between politicians and public managers.

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Morupisi fights for freedom in court

19th April 2021

Former Permanent Secretary to the President, Carter Morupisi, is fighting for survival in a matter in which the State has charged him and his wife, Pinnie Morupisi, with corruption and money laundering.

Morupisi has joined a list of prominent figures that served in the previous administration and who have been accused of corruption during their tenure in office. While others have been emerging victorious, Morupisi is yet to find that luck. The High Court recently dismissed his no case to answer application.

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Pressure mounts on Biden to suspend Covid-19 vaccine patents

19th April 2021
Joe Biden

United States President, Joe Biden, is faced with a decision to make relating to the Covid-19 vaccine intellectual property after 175 former world leaders and Nobel laurates joined the campaign urging the US to take “urgent action” to suspend intellectual property rights for Covid-19 vaccines to help boost global inoculation rates.

According to the world leaders, doing so would allow developing countries to make their own copies of the vaccines that have been developed by pharmaceutical companies without fear of being sued for intellectual property infringements.

“A WTO waiver is a vital and necessary step to bringing an end to this pandemic. It must be combined with ensuring vaccine know-how and technology is shared openly,” the signatories, comprising more than 100 Nobel prize-winners and over 70 former world leaders, wrote in a letter to US President Joe Biden, according to Financial Times.

A measure to allow countries to temporarily override patent rights for Covid related medical products was proposed at the World Trade Organization by India and South Africa in October, and has since been backed by nearly 60 countries.

Former leaders who signed the letter included Gordon Brown, former UK Prime Minister; François Hollande, former French President; Mikhail Gorbachev, former President of the USSR; and Yves Leterme, former Belgian Prime Minister.

In their official communication, South Africa and India said: “As new diagnostics, therapeutics and vaccines for Covid-19 are developed, there are significant concerns [about] how these will be made available promptly, in sufficient quantities and at affordable prices to meet global demand.”

While developed countries have been able to secure enough vaccine to inoculate their citizens, developing countries such as Botswana are struggling to source enough to swiftly vaccine their citizens, something which world leaders believe it would work against global recovery therefore proving counter-productive.

Since the availability of vaccines, Botswana has been able to secure only 60 000 doses of vaccines, 30 000 as donation as from the Indian government, while the other 30 000 was sourced through COVAX facility.  Canada, has pre-ordered vaccines in surplus and it will be able to vaccinate each of its citizens six times over. In the UK and US, it is four vaccines per person; and two each in the EU and Australia.

For vaccines produced in Europe, developing countries are forced to pay double what European countries are paying, making it more expensive for already financially struggling economies.  European countries however justify the price of vaccines and that they deserve to buy them cheap since they contributed in their development.

It is evident that vaccines cannot be made available immediately to all countries worldwide with wealthy economies being the only success story in that regard, something that has been referred to as a “catastrophic moral failure”, head of the World Health Organisation (WHO), Tedros Adhanom Ghebreyesus.

The challenge facing developing countries is not only the price, but also the capacity of vaccine manufactures to be able to do so to meet global demand within a short time. The proposal for a patent waiver by India and South Africa has been rejected by developed countries, known for hosting the world leading pharmaceutical companies such US, European Union, the United Kingdom, and Switzerland.

According to the Financial Times, US business groups including pharmaceutical industry representatives, have urged Biden to resist supporting a waiver to IP rules at the WTO, arguing that the proposal led by India and South Africa was too “vague” and “broad”.

The individuals who signed the letter, including Nobel laureates in economics as well as from across the arts and sciences, warned that inequitable vaccine access would impact the global economy and prevent it from recovering.

“The world saw unprecedented development of safe and effective vaccines, in major part thanks to US public investment,” the group wrote. “We all welcome that vaccination rollout in the US and many wealthier countries is bringing hope to their citizens.”

“Yet for the majority of the world that same hope is yet to be seen. New waves of suffering are now rising across the globe. Our global economy cannot rebuild if it remains vulnerable to this virus.”
The group warned that fully enforcing IP was “self-defeating for the US” as it hindered global vaccination efforts. “Given artificial global supply shortages, the US economy already risks losing $1.3tn in gross domestic product this year.”

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