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Criminal Lawyer loses 11 year battle to clear his name

The court of Appeal in Gaborone on Thursday dismissed a case in which a local attorney, Lydon Mothusi was challenging the relevance of the acquittal of his co-accused, Herbet Sikhakhane  on charges of conspiracy to obtain money by false pretences.

The court ruled that Mothusi had failed to establish that the acquittal on technical grounds of Sikhakhane destroyed any legal possibility of the continued existence of a conspiracy.

Sikhakhane and Mothusi were charged with obtaining money fraudulently from government between October 2003 and January 2004. The money amounted to several hundred thousands of Pula and Mothusi who has already served a prison term for the crime, wanted to clear his name.

He appeared before court in person and advanced legal argument in an attempt to persuade the Judges, J.G Foxcroft, Ian Kirby and Legwaila that the acquittal of fellow lawyer, Sikhakhane, resulted in the situation that any possible conspiracy conviction immediately fell away.

Both Sikhakhane and Mothusi had been tried in the Magistrate court and convicted but neither had made a confession implicating the other. For reasons which were never made clear before court, they lodged separate appeals and hearings. Justice Leburu in August 2010 set aside the sentence and conviction of Mothusi and Sikhakhane’s conviction and sentence were set aside three Months later by a different Judge. Sikhakhane’s ruling was derived from the strength of Leburu’s Judgment.

The Directorate of Public Prosecution appealed against the judgment and subsequently Justice Tafa found that there was sufficient evidence before him to justify the conviction of Mothusi on obtaining money by false pretences charge and he got an eighteen months prison sentence, twelve of which were suspended together with a fine of P1000.

However, the State could not shed light on the extraordinary fact that while Mothusi’s convictions were reconsidered on appeal , his co-conspirator, Sikhakhane has not again been brought before any court subsequent to the setting aside of his conviction.

“It is so that the decision of this court in 2011 followed as appealed by the DPP against one co-conspirator and not the other,” Justice Foxcroft pointed out.

However the state explained that the Prosecutor at the time, a certain Mr Ditodi who has since passed away could have shed light on such an extraordinary fact.

“Mr Mothusi spent some time submitting before us that the available evidence on record did not support the existence of a conspiracy at all. This argument went beyond the scope of the limited legal issue upon which he was granted leave to appeal to this court. In any event, the argument was entirely fallacious as is well demonstrated in the judgment of Justice Tafa,” Foxcroft added.

Mothusi’s attempt to raise the possibility of the missing evidence to support his case was also ruled as having gone beyond the scope of the appeal.

“It is a matter for regret that the many attempts to reconstruct the record and recover missing exhibits in this matter bore so little fruit, and that despite the direction of this court that the reconstruction exercise was to be completed by October 2011 whereupon the appeal would be argued on the material then available, this was only heard more than two years thereafter, with leave to appeal being granted by Justice Tafa on December 2014,” the Judge noted before levelling  the blame to the Magistrate who first heard the case and failed to protect the exhibits.

“Mr N. Bopa, former Chief Magistrate who first heard this case must share a good deal of the blame for not exercising proper control over his own handwritten notes and the box of exhibits in his custody at the time when they went missing. His written report on the reconstruction was inadequate and in conflict with the schedule of defects in the record later agreed between the State and Defence,” the judge expressed his disappointment.

He was irked more so by the fact that the case had dragged on before the courts for the past eleven years and Mothusi had to wait for that long to get the final result of his trial.

Mothusi told court that he had already completed his prison sentence but wanted the court to clear him of the conspiracy.  During the trial period, Mothusi who is a criminal lawyer could not practice and the Judge had made sure that the copy of the current ruling is passed on to the Law Society of Botswana which is very likely to continue prohibiting him from practice due to the existing conviction.

“I direct that since the case involved two legal practitioners, a copy of this judgement and of the appeal record is to be served upon the Botswana Law Society for information and action should it deem this to be necessary,” Foxcroft concluded the ruling in unison with other Judges.

He had in fact earlier mentioned that a scheme by the two co-conspirators to make money unlawfully was clearly demonstrated on the evidence. None the less, Sikhakhane was long cleared of the crime.

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UDC founder warns against merger

19th October 2020
Ex UDC Convener: Mpotokwane

Lebang Mpotokwane, one of the conveners who presided over the opposition cooperation talks that resulted in the formation of the Umbrella for Democratic Change (UDC), has advised against changing the current umbrella model in favour of a merger as proposed by others.

The Botswana Congress Party (BCP) leader, Dumelang Saleshando recently went public to propose that UDC should consider merging of all opposition parties, including Alliance for Progressives (AP) and Botswana Patriotic Front (BNF).

Saleshando has been vehemently opposed by Botswana National Front (BNF), which is in favour of maintaining the current model.  BNF’s position has been favoured by the founding father of UDC, who warned that it will be too early to ditch the current model.

“UDC should be well developed to promote the spirit of togetherness on members and the members should be taught so that the merger is developed gradually. They should approach it cautiously. If they feel they are ready, they can, but it would not be a good idea,” Mpotokwane told WeekendPost this week.

Mpotokwane and Emang Maphanyane are the two men who have since 2003 began a long journey of uniting opposition parties in a bid to dethrone the ruling Botswana Democratic Party (BCP) as they felt it needed a strong opposition to avoid complacency.

Tonota born Mpotokwane is however disappointed on how they have been ejected from participating in the last edition of talks ahead of the 2019 general elections in which BCP was brought on board.  However, despite the ejection, Mpotokwane is not resentful to the opposition collective.

He said the vision of opposition unity was to ultimately merge the opposition parties but he believes time has not arrived yet to pursue that path. “The bigger picture was a total merger and we agreed that with three independent parties, members might be against merger eventuality so the current model should be used until a point where they are now together for as long as possible,” he said.

“UDC should gradually perform better in elections and gain confidence. They should not rush the merger. We have been meeting since 2003, but if they rush it might cause endless problems. If they are ready they can anyway,” he advised. For now the constituent parties of the umbrella have been exchanging salvos with others (BCP and BNF).

“There are good reasons for and against merging the parties. Personally, I am in favour of merging the parties (including AP and BPF) into a single formation but I know it’s a complex mission that will have its own challenges,” Saleshando said when he made his position known a week ago.

“Good luck to those advocating for a merger, it will be interesting to observe the tactics they will use to lure the BPF into a merger,” former BNF councillor for Borakalalo Ward and former BNF Youth League Secretary General, Arafat Khan, opined in relation to BCP’s proposed position.

Mpotokwane, who is currently out in the cold from the UDC since he was ejected from the party’s NEC in 2017, said the current bickering and the expected negotiations with other parties need the presence of conveners.

“We did not belong to any party as conveners so we were objective in our submissions. If party propose any progressive idea we will support, if it is not we will not, so I would agree that even now conveners might be key for neutrality to avoid biasness,” he observed. Despite being abandoned, Mpotokwane said he will always be around to assist if at all he is needed.

“If they want help I will be there, I have always been clear about it, but surely I will ask few questions before accepting that role,” he said. UDC is expected to begin cooperation talks with both AP and BPF either this week or next weekend for both upcoming bye-elections (halted by Covid-19) and 2024 general elections and it is revealed that there will be no conveners this time around.

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BDP attaches Boko’s property

19th October 2020

The Botswana Democratic Party (BDP) moved through its lawyers to attach the property of Umbrella for Democratic (UDC) President Duma Boko and other former parliamentary contestants who failed in their court bid to overturn the 2019 general elections in 14 constituencies.

WeekendPost has established that this week, Deputy Sheriffs were commissioned by Bogopa Manewe Tobedza and Company who represented the BDP, to attach the properties of UDC elections contents in a bid to recover costs.  High Court has issued a writ of execution against all petitioners, a process that has set in motion the cost recovery measures.

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COVID-19 exposes decay in the education system

19th October 2020
Education Systm

Botswana Sectors of Teachers Union (BOSETU) says COVID-19 as a pandemic has negatively affected the education sector by deeply disrupting the education system. The intermittent lockdowns have resulted in the halting of teaching and learning in schools.

The union indicated that the education system was caught napping and badly exposed when it came to the use of Information System (IT), technological platforms and issues of digitalisation.

“COVID-19 exposed glaring inefficiencies and deficiencies when it came to the use of ITC in schools. In view of the foregoing, we challenge government as BOSETU to invest in school ITC, technology and digitalization,” says BOSETU President Kinston Radikolo during a press conference on Tuesday.

As a consequence, the union is calling on government to prioritise education in her budgeting to provide technological infrastructure and equipment including provision of tablets to students and teachers.

“Government should invest vigorously in internet connectivity in schools and teacher’s residences if the concept of flexi-hours and virtual learning were to be achieved and have desired results,” Radikolo said.

Radikolo told journalists that COVID-19 is likely to negatively affect final year results saying that the students would sit for the final examinations having not covered enough ground in terms of curriculum coverage.

“This is so because there wasn’t any catch up plan that was put in place to recover the lost time by students. We warn that this year’s final examination results would dwindle,” he said.

The Union, which is an affiliate of Botswana Federation of Public, Private and Parastatal Union (BOFEPUSU), also indicated that COVID-19’s presence as a pandemic has complicated the role of a teacher in a school environment, saying a teacher’s role has not only transcended beyond just facilitating teaching and learning, but rather, a teacher in this COVID-19 era, is also called upon to enforce the COVID-19 preventative protocols in the school environment.

“This is an additional role in the duty of a teacher that needs to be recognized by the employers. Teachers by virtue of working in a congested school environment have become highly exposed and vulnerable to COVID-19, hence the reason why BOSETU would like teachers to be regarded as the frontline workers with respect to COVID-19,” says Radikolo.

BOSETU noted that the pandemic has in large scales found its way into most of the school environments, as in thus far more than 50 schools have been affected by COVID-19. The Union says this is quite a worrying phenomenon.

“As we indicated before when we queried that schools were not ready for re-opening, it has now come to pass that our fears were not far-fetched. This goes out to tell that there is deficiency in our schools when it comes to putting in place preventative protocols. In our schools, hygiene is compromised by mere absence of sanitizers, few hand-washing stations, absence of social distancing in classes,” the Union leader said.

Furthermore, Radikolo stressed that the shifting system drastically increased the workload for teachers especially in secondary schools. He says teachers in these schools experience very high loads to an extent that some of them end up teaching up to sixty four periods per week, adding that this has not only fatigued teachers, but has also negatively affected their performance and the quality of teaching.

In what the Union sees as failure to uphold and honour collective agreements by government, owing to the shift system introduced at primary schools, government is still in some instances refusing to honour an agreement with the Unions to hire more teachers to take up the extra classes.

“BOSETU notes with disgruntlement the use of pre-school teachers to teach in the mainstream schools with due regard for their specific areas of training and their job descriptions. This in our view is a variation of the terms of employment of the said teachers,” says Radikolo.

The Union has called on government to forthwith remedy this situation and hire more teachers to alleviate this otherwise unhealthy situation. BOSETU also expressed concerns of some school administrators who continuously run institutions with iron fists and in a totalitarian way.

“We have a few such hot spot schools which the Union has brought to attention the Ministry officials such as Maoka JSS, Artesia JSS, and Dukwi JSS. We are worried that the Ministry becomes sluggish in taking action against such errant school administration. In instances where action is taken, such school administrators are transferred and rotated around schools.”

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