Former South African prosecutor Gerrie Nel has spoken against regulation of social media, indicating that Government should instead try to figure out how to use it to prove that crime has been committed.
Recently Minister of Defence, Justice and Security Shaw Kgathi confirmed to this publication that Government plans to adopt an aggressive law to counter cyber-bullying especially on social media. According to the Minister the proposed cybercrime law is aimed at addressing a number of concerns emanating from the abuse of social media by some users. Cyber-bullying, which is considered the use of the Internet, cell phones, or other technology to spread hurtful or embarrassing pictures and messages about other people is said to be among the top five offenses most experienced by young adults.
“There have been few criminal matters as far the use of social media is concerned except slander and cimen injuria, which could be dealt with under the civil law. From criminal perspective there is no need to regulate except on issues of real big crime matters such as murder, corruption and fraud,” said Nel. “Instead we should consider taking advantage of social media to use it to prove that people have committed crimes. The more people use the social media and traverse the law the better for the prosecutor. The debate should be how we can use social media to prove that the crime has been committed.”
Nel was in Botswana on Thursday, to participate in the Social Media and Cyber Security Symposium organised by e-Learning Botswana-Hlanganani ICT. Nel led the prosecution in the trial of former national police commissioner and Interpol president Jackie Selebi, who was convicted of corruption in 2010 and also received attention during the Oscar Pistorious case as the prosecutor. Nel said social media could come in handy in investigations of real crime matters such as corruption, murder and fraud as it can help evidence be obtained easily when those crimes were being planned and committed.
“Facebook is the best tool for obtaining evidence. It is easy to study the suspect’s activities on Facebook, and know their friends, and other people they associate with.” The tenacious prosecutor said during the Pistorious case, whatsApp conversations were used as evidence before the case, something which he indicated as having been helpful. Nel spoke in support of rather coming up with ways in which social media can be used to provide more evidence in criminal cases. He is against the state regulating the usage of social media by controlling what people write and post on social media.
“I am against ‘let’s limit and let’s control’ social media. To me freedom of speech is important and should not be regulated. Let’s use what is in the cyber space to investigate people who commit crimes. We should make laws that adapt to technology not that oppose it,” he said. He however admitted that the digital space has made it easier for people to commit crime but argues that in the same manner the digital space has helped to easily investigate crime. Nel said he is against the hacking of private individuals’ social media accounts except in a situation where it is the only means to explore to have that kind of evidence.
BROADCASTING OF HIGH PROFILE CASES
Nel said he initially was unsure about the importance of broadcasting court proceedings especially in high profile cases that generate interest from the large section of the society. He said initially in the Pistorious case, he opposed the broadcasting of the court proceedings but concurred with media houses that pointed out that the constitution requires all cases to be held in public courts where everyone can have access to. “They argued that if a person in Pretoria can walk in to watch proceedings of the court, those who are not in Pretoria may also want to watch the case,” he said.
Nel said broadcasting of court proceedings promotes transparency and accountability, and also allows citizens to form an opinion on the matter either by criticizing or praising. In South Africa, parliament proceedings are also broadcasted live.
The Directorate of Public Prosecutions (DPP)’s decision to reject and appeal the High Court’s verdict on a case involving High Court Judge, Dr Zein Kebonang has frustrated the Judicial Service Commission (JSC) and Judge Kebonang’s back to work discussions.
JSC and Kebonang have been in constant discussions over the latter’s return to work following a ruling by a High Court panel of judges clearing him of any wrong doing in the National Petroleum Fund criminal case filed by the DPP. However the finalization of the matter has been hanged on whether the DPP will appeal the matter or not – the prosecution body has since appealed.
Botswana Democratic Party (BDP) top brass has declined a request by Umbrella for Democratic Change (UDC) to negotiate the legal fees occasioned by 2019 general elections petition in which the latter disputed in court the outcome of the elections.
This publication is made aware that UDC Vice President Dumelang Saleshando was left with an egg on his face after the BDP big wigs, comprising of party Chairman Slumber Tsogwane and Secretary General Mpho Balopi rejected his plea.
“He was told that this is a legal matter and therefore their (UDC) lawyer should engage ours (BDP) for negotiations because it is way far from our jurisdiction,” BDP Head of Communications, Kagelelo Kentse, told this publication.
This spelt doom for the main opposition party and Saleshando who seems not to have confidence and that the UDC lawyers have the dexterity to negotiate these kind of matters. It is not clear whether Saleshando requested UDC lawyer Boingotlo Toteng to sit at the table with Bogopa Manewe, Tobedza and Co, who are representing the BDP to strike a deal as per the BDP top echelons suggested.
“From my understanding, the matter is dealt with politically as the two parties are negotiating how to resolve it, but by far nothing has come to me on the matter. So I believe they are still substantively engaging each other,” Toteng said briefly in an interview on Thursday.
UDC petitioners saddled with costs after mounting an unprecedented legal suit before the court to try and overturn BDP’s October 2019 victory. The participants in the legal matter involves 15 parliamentary candidates’ and nine councillors. The UDC petitioned the court and contested the outcome of the elections citing “irregularities in some of the constituencies”.
In a brief ruling in January 2020, Judge President Ian Kirby on behalf of a five-member panel said: “We have no jurisdiction to entertain these appeals. These appeals must be struck out each with costs including costs of counsel”. This was a second blow to the UDC in about a month after their 2019 appeals were dismissed by the High Court a day before Christmas Day.
This week BDP attorneys decided to attach UDC petitioners’ property in a bid to settle the debts. UDC President Duma Boko is among those that will see their property being attached with 14 of his party members. “We have attached some and we are on course. So far, Dr. Mpho Pheko (who contested Gaborone Central) and that of Dr, Micus Chimbombi (who contested Kgalagadi South) will have their assets being sold on the 5th of February 2021,” BDP attorney Basimane Bogopa said.
Asked whether they met with UDC lawyers to try solve the matter, Bogopa said no and added. “Remember we are trying to raise the client’s funds, so after these two others will follow. Right now we are just prioritising those from Court of Appeal, as soon as the high court is done with taxation we will attach.”
Saleshando, when contacted about the outcomes of the meeting with the BDP, told WeekendPost that: “It would not be proper and procedural for me to tell you about the meeting outcomes before I share with UDC National Executive Committee (NEC), so I will have to brief them first.”
UDC NEC will meet on the 20th of next month to deal with a number of thorny issues including settling the legal fees. Negotiations with other opposition parties- Alliance for Progressives and Botswana Patriotic Front (BPF) are also on the agenda.
Currently, UDC has raised P44 238 of the P565 000 needed to cover bills from the Court of Appeal (CoA). This is the amount in a UDC trust account which is paltry funds equating 7.8 per cent of the overall required money. In the past despite the petitioners maintaining that there was promise to assist them to settle legal fees, UDC Spokesperson, Moeti Mohwasa then said the party has never agreed in no way to help them.
“We have just been put in debt by someone,” one of the petitioners told this publication in the past. “President’s (Duma Boko) message was clear at the beginning that money has been sourced somewhere to help with the whole process but now we are here there is nothing and we are just running around trying to make ends meet and pay,” added the petitioner in an interview UDC NEC has in December last year directed all the 57 constituencies to each raise a minimum of P10, 000. The funds will be used to settle debts that are currently engulfing the petitioners with Sheriffs, who are already hovering around ready to attach their assets.
The petitioners, despite the party intervention, have every right to worry. “This is so because ‘the deadline for this initiative (P10, 000 per constituency) is the end of the first quarter of this year (2021),” a period in which the sheriffs would have long auctioned the properties.
President of the Umbrella for Democratic Change (UDC) Duma Boko’s alliance with former President Lt Gen Ian Khama continues to unsettle some quarters within the opposition collective, who believe the duo, if not managed, will once again result in an unsuccessful bid for government in 2024.
While Khama has denied that he has undeclared preference to have Boko remaining as leader of UDC, many believe that the two have a common programme, while other opposition leaders remain on the side-lines.