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Explosive leaks put DPP, DIS, DCEC credibility on trial

Explosive leaks put DPP DIS DCEC credibility on trial

A few weeks after the courts threw out the highly anticipated National Petroleum Fund (NPF) money laundering cases, damaging audio clips have now surfaced from a heated meeting between the Directorate on Corruption and Economic Crime (DCEC) and Directorate of Public Prosecutions (DPP) putting the credibility of key crime fighting institutions at stake.

With doubts and trust in DPP and DCEC as well as the notorious Directorate on Intelligence and Security (DIS) having been at their lowest ebb, the latest development could have dealt with what remained of the trio’s reputation.  When the audio clips from the DCEC and DPP meeting surfaced this week, it appears the DCEC through their Senior Investigator Lebogang Moshasho long told DPP that they do not have enough evidence to prosecute.

“We received documents from the investigating officer, but looking at them we couldn’t get sufficient evidence, we then requested to all the parties involved including DPP to say if the matter is already at court, it means maybe we are missing evidence from this file. We wanted assistance and guidance from the DPP. We also agreed to have a case conference so that we can have a common understanding until today,” the investigator stated.

Moshasho said they requested on several occasions to be given all the documents, including evidence that prompt the charges but until today, they do not have it. Assistant Director of the Directorate of Public Prosecutions (DPP) -Priscilla Israel who is the guiding prosecutor- is heard bulldozing and using her ‘senior’ tag position quashing Bareetsi’s submissions.

“I don’t understand when you say there is no evidence because from the file that I have seen from Hubona, there is enough evidence as the prosecutor. There are only few issues that you needed for particular charges that are before court. That is what was supposed to be taken except for the terrorism matter,” she said.

Israel continued to say that they had a prosecution guided plan with the Procedures, Guidance and Information guidelines: “This is what we did with CMB, NPF and Morupisi’s matter. All these other technicalities we don’t know where they are coming from.” Moshasho maintained that there is a write-up from Bank of Botswana indicating that they are not missing any money, so there is no evidence.

“Again we were told that there is a certain house, and we found that it was allocated to Butterfly by Kweneng Land board and she sold the plot under value of standard, then we can’t say she is living beyond her means. Another plot was given to her by her father so there is no living beyond means there,” she said. She continued to say there is an alleged P48 million purported to be in South Africa but the account holder has denied these allegations.

In December 2020, charges of financing terrorism levelled against Welheminah Maswabi codenamed Butterfly were dropped. While many had shifted their eyes from the NPF case considering how it was going, the State dropped another bombshell when it dropped the main charge in Butterfly’s case. The State indicated complexity of investigations as the main reason for the request to drop the charge.

The 47-year-old Welheminah Maswabi now remains charged with two counts of possession of unexplained property and false declaration for a passport. Also in December last year, Magistrate Kamogelo Mmesi freed all the accused persons in the NPF case.

Delivering the ruling, Mmesi referred to the charges as bogus. “I am inclined to side with the defence that the charges are defective. Some of the charges are speculative, as they don’t mention which accused person fitted where.’’

The controversial NPF case had a total of 14 accused persons including amongst others; businessman Bakang Seretse, former Director of Directorate of Intelligence and Security (DIS) Isaac Kgosi, former Minister Sadique Kebonang, High Court Judge Zein Kebonang, Kenneth Kerekang, Kago Stimela, Mogomotsi Seretse, Thato Bojelo and their companies with sixty- six (66) charges including amongst others financing terrorism, money laundering and corruption.

In the leaked audios, DCEC legal advisor Tsholofelo Bareetsi said when it comes to the accounts that they created at BoB, the team has requested him to raise a communication to BoB to try and set a meeting so that they can establish how the bonds were set-up.

“They believe that the bonds could have been where the leakages were and if not careful it is worth those investments that when they matured then they got diverted. They have not really been able to establish what really transpired. So the issue of the accounts honestly when it comes to accounts that were established, we do not have any progress on it from the DCEC side,” he said.

Bareetsi also told the DPP that Magosi is still holding critical information from Germany and UK and awaiting authorisation. According to the contents of the meeting, the highly classified blue file registered docket 508 is empty, void of any evidence.

A prominent lawyer, Busang Manewe who is representing some of the accused persons in the case wrote on social media after the audio leaks: “I have listened to the leaked tapes of an alleged explosive meeting between DIS, DPP and DCEC in relation to major corruption cases before our courts. Obviously my heart is sore. My client (s) names cropped up.

I was neither shocked nor surprised about the contents of the tapes. I pray hard that the Lord Almighty should help me zip my mouth and not say what is exactly in my mind about these cases. It isn’t pleasant for the truth isn’t always pleasant. So help me God.”

Reeling from the damage, DCEC released a statement of Thursday, confirming the authenticity of the meeting as well as assuring that the crime busting agency is still focused on its mandate. “The DCEC further wishes to state that within all lawfully permissible limits, and necessary, reasonable and operational means, it will cooperate with any government agency to get the truth and have those responsible held to account, noting that neither official government business generally, nor matters related to investigations in particular, can be conducted in this carefree fashion where the end justifies the means,” said the agency spokesman, Lentswe Motshoganetsi.

While the charges against prominent businessman Bakang Seretse were dropped in December 2020, his attorney who is one of the leading defence lawyers in the matter, Kgosietsile Ngakaagae, had told journalists that the charges were politically motivated.

Former President Ian Khama, former spy chief, Isaac Kgosi and former spy agent Welheminah ‘Butterfly’ Maswabi last year issued individual statutory notices demanding P85 million from government in damages for defamation of character. The trio issued statutory notices for defamatory allegations levelled against them in the Butterfly case by the State.

Besides the money, the trio is also demanding a public apology and retraction and an undertaking by the State that it will desist from making, and publishing or cause to be published any further defamatory statements.  Khama demands P25 million while Kgosi and Maswabi demand P30 million each.

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BONELA speaks on same-sex decriminalization case

18th October 2021
BONELA

In June 2019, a case involving the Attorney General was brought before the High Court, in which the applicant Letsweletse Motshidiemang challenged Sections 164 (a) and 167 of the Penal Code. The applicant contended that these sections are unconstitutional because they violate the fundamental rights of liberty and privacy. 

The applicant argued that these sections violated his right and freedom to liberty as he was subject to abject ignominy. These laws subjected the LGBTIQ community to brutal and debasing treatment through social control and public morality. On the 1st of November 2017, the Botswana High Court further allowed Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) to join the case as amicus curiae.

However, in July 2019, the respondents, in this case, i.e. the Government, filed an appeal against this iconic High Court ruling seeking re-criminalization of homosexuality. Human Rights Group has criticized this move of the Government all over the world.  The appeal was heard before five judges at the Court of Appeal on Tuesday. The State was represented by Advocate Sidney Pilane, while LEGABIBO and Letsweletse Motshidiemang were represented by Tshiamo Rantao and Gosego Rockfall Lekgowe, respectively.

Non-Governmental Organizations advocating for the LGBTIQ+ community joined the two parties at the Court of Appeal during this case. They argue that the minority group should enjoy their rights, especially the right to privacy and health. Botswana Network on Ethics, Law and HIV/AIDS (BONELA) Chief Executive Officer, Cindy Kelemi says the issues being raised by LEGABIBO are that as individuals belonging to the LGBTIQ community, they have and must share equal rights, including the right to privacy, which also speaks to being able to involve in sexual activities, including anal sex.

“Those rights are framed within the constitution, and therefore a violation of any of those rights allow them to approach the courts and seek for redress. We do not need the law to be regulating what we do in the privacy of our homes. The law cannot determine how and when we can have sex and with who, so the law does not have any business in that context. What we are saying is that the law is violating the right to privacy,” she said on the sidelines of the decriminalization case in Gaborone on Tuesday.

The first case involving the homosexual act was the Utjiwa Kanane vs the State in 2003. Contrary to section 164(c) of the Penal Code, Kanane was charged with committing an unnatural offence and engaging in indecent practices between males, contrary to section 167. The conduct at issue involved Graham Norrie, a British tourist, and occurred in December 1994. (Norrie pleaded guilty, paid a fine, and left the country.)

Kanane pleaded not guilty, alleging that sections 164(c) and 167 both violated the constitution. The High Court ruled that these sections of the Penal Code did not violate the constitution. Kanane then appealed to the Court of Appeal. BONELA CEO recalls that in its judgment then, the High Court indicated, Batswana were not ready for homosexual acts. Twenty years later, the same courts are saying that Batswana are ready, she says.

“They gave the explicit example that shows that indeed Batswana are ready. There are policies and documents in place that accommodate people from marginalized communities and minority populations. The question now is that why is it hard now to recognize the full rights of an individual who is of the LGBTI community?” She further says intimacy is only an expression. The law that restricts homosexuality makes it hard for LGBTIQ members to express themselves in a way that affirms who they are.

“We want a situation where the law facilitates for the LGBTIQ community to be free and express themselves. The stigma that they face in communities is way too punitive. They are called names; some have been physically violated and raped at times. It shows that the law doesn’t not only prevent them from expressing themselves, it also exposes them to violence.” The law on its own, Kelemi submits, cannot change the status quo, adding that there is a need for more awareness and education on human rights and what it means for an individual to have rights.

“As it is now, it is very tough for some to do that because of a legal environment that is not enabling. We also want to see a situation where LGBTIQ+ people can access services and be confident that they are provided with non-discriminatory services. It is challenging now because health care providers, social workers and law enforcement officers believe that it is illegal to be homosexual. What we are saying is that if you have an enabling law, then that will facilitate for people to be able to express themselves, including accessing health services,” Kelemi said.

“As we are doing this advocacy work, one of the issues that we picked up is that there is lack of capacity, especially on the part of healthcare workers. We noted that when we provide services or mobilize Men who have sex with other men (MSM) to access health facilities, health care workers are not welcoming, forcing them to hideaway. We must put an end to this to allow these people the freedom that they equally deserve.”

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Masisi warns Gov’t officials

18th October 2021
President Masisi

The President, Dr Mokgweetsi Masisi, has declared as an act of corruption the attitude and practice by government officials and contractors to deliver projects outside time and budget, adding that such a practice should end as it eats away from the public coffers.

For a very long time, management problems and vast cost overruns have been the order of the day in Botswana, resulting in public frustrations. Speaking at the commissioning of the Masama/Mmamashia 100 Kilometres project this week, Masisi said: “There is a tendency in government to leave projects to drag outside their allocated completion time and budget. I want to stress that this will not be tolerated. It is an act of corruption, and I will be engaging offices on this issue,” Masisi said.

In an interview with this publication over the issue, the Director-General of the Directorate on Corruption and Economic Crime (DCEC), Tymon Katholo, says, “any project that goes beyond its scope and budget raises red flags.” He continued that: “Corruption on these issues can be administrative and criminal. It may be because government officials have been negligent or been paid to be negligent by ignoring certain obligations or procedures. “This, as you may be aware has serious implications on not only of the economy but even the citizens who use these facilities or projects,” Katlholo said, adding that his agency is equally concerned.

According to the DCEC director, the selection, planning and delivery of infrastructure or projects is critical. In most cases, this is where the corruption would have occurred, leading to a troubled project. A public finance expert at the University of Botswana (UB), Emmanuel Botlhale, attributes poor project implementation to declining public accountability, lack of commitment to reforming the public sector, a decline in the commitment by state authorities and lack of a culture of professional project management.

In his research paper titled, ‘Enhancing public project implementation in Botswana during the NDP 11 period,’ Botlhale stated that successful implementation is critical in development planning. If there is poor project implementation, economic development will be stalled.
Corruption is particularly relevant for large and uncommon projects where the public sector acts as a client, and experts say Megaprojects are very likely to be affected by corruption. Corruption worsens both cost and time performance and the benefits expected from such projects.

Speaking during this week’s Masama/Mmamashia pipeline commissioning, Khato Civils chairman said Africans deserve a chance because they are capable, further adding that the Africans do not have to think that only Whites and Chinese people can do mega projects.  During his rule, former president Ian Khama went public to attack Chinese contractors for costing the government a move that ended up fuelling tensions between China and Botswana after Khama dispatched the then Minister of Foreign Affairs, Pelonomi Venson Moitoi, to China to register Botswana’s complaints with Chinese government-owned construction companies.  Botswana had approached the Chinese government for help in its marathon battle with Chinese companies contracted to build, among others, the failed controversial Morupule B power plant and refurbishment of Sir Seretse Khama International Airport (SSIK).

 

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Guma’s battle for millions of Pula give Court headache

18th October 2021
Guma Moyo

A legal battle between former Botswana Democratic Party (BDP) legislator Samson Moyo Guma and First National Bank (FNB) over a multimillion oil refinery project intensified this week with Justice Zein Kebonang referring the matter to Court of Appeal for determination.  The project belongs to Moyo Guma’s company called United Refineries which he has since placed under judicial management.

The war of words between Moyo Guma and FNB escalated after the company’s property worth millions of Pula were put up for sale in execution by the bank and scheduled to take place on 8th October. It emerges from Court papers that the bank had secured an order from the High Court to place the company’s property under the hammer.

Moyo Guma then also approached the High Court seeking among others that the public auction scheduled for 8th October 2021 be stayed. He contended that the assets that were to be sold belonged in reality to United Refineries and that as the company had been under judicial management at the time of the attachment, the intended sale in execution was unlawful.

He also sought the Court to declare that the writs of execution against the properties of guarantors and sureties of United Refineries Botswana Holdings Propriety Limited (the company) are unlawful.  Moyo Guma also sought a stay of the execution against the property known as Plot 43556 in Francistown, that is, the land buildings, plant and machinery which make up the property and any all immovable or movable property belonging to the guarantors and sureties of the company pending finalization of the winding up of United Refineries.

But FNB disputed Moyo Guma’s assertions and submitted that the properties in question belonged to TEC (Pty) Ltd and not United Refiners. TEC Pty Ltd which is one of the shareholders in United Refineries is one of the sureties and co-principal debtors of a debt amounting to P24 million owed by United Refineries to FNB.  FNB argued in papers that the properties belonged to TEC because it was TEC which had passed a covering mortgage bond in its favour over the property it now sought to execute.

Moyo Guma submitted that the covering mortgage bond passed in favour of FNB did not tell the full story as the property in question was in truth and fact owned by United Refineries and not TEC Pty Ltd. He maintained that the shares had been had been passed by the company in exchange for the properties in question and that the parties had always been guided by the spirt of the share agreement in dealing with each other despite delays in the change or transfer of ownership of plots 43556 and plot 43557 in Francistown.

Kebonang said it was clear to him that the two plots (43556 and 435570 belonged to United Refineries notwithstanding that TEC (Pty) Ltd had passed a mortgage bond over them in favour of FNB.  “For this reason the properties were immune from attachment or sale in execution so long as the judicial management order was in place,” he said.

The background of the case is that Moyo Guma together with five other investors, namely Elffel Flats (Pty) Ltd; Mmoloki Tibe; TEC (Pty) Ltd; Profidensico (Pty) Ltd and Tiedze Bob Chapi, each bound themselves as sureties and co-principal debtors in respect of a debt owed by a company called United Refineries Botswana Holdings (Proprietary) Limited (the Company), to First National Bank Botswana (FNBB) (1st Respondent).

FNB had extended banking facilities to the company in the amount of P24 million which was then secured through the suretyship of Moyo Guma and other shareholders.  Court records show that Moyo had on the 11th February obtained a temporary order for the appointment of a provisional judicial manager in respect of United Refineries and it was confirmed by the High Court on 24th September 2019.

In terms of the final court order by the High Court issued by Justice Tshepho Motswagole all judicial proceedings against the company, execution of all writs, summons and process were stayed and could only proceed with leave of Court. Court documents also show that First National Bank had sued the company and the sureties for the recovery of the debt owed to it and through a consent order, the bank withdrew its lawsuit against the company.

But FNB later instituted fresh proceedings against Moyo Guma and did not cite the company in its proceedings.  “There is no explanation in the record as to why the Applicant was now reflected as the 1st Defendant and why the company had suddenly been removed as the 1st Defendant. There was no application either for amendment or substitution by the bank,” said Justice Kebonang.

FNB had also argued that it sought to proceed to execute against Moyo Guma and other sureties on the basis of the suretyship they signed and that by signing the suretyship agreement, Moyo and other sureties had renounced all defence available to them and could therefore be sued without first proceedings against the principal debtor (United Refineries).  The question, Kebonang said, was that can FNB proceed to execute against Moyo Guma and other sureties on the basis of the suretyship contracts they signed?

“The starting point is that the Applicant (Moyo Guma) and others by binding themselves as sureties became liable for debts of the principal debtor and such liability is joint and several. He said the consequences of placing the company under judicial management means that every benefit extended to it should also extend to sureties.

“If the company is afforded more time to pay or its debt is discharged, reduced or compromised or suspended the obligation of sureties is to be likewise treated. It follows in my view that where judicial proceedings are suspended or stayed against the company, then any recourse against the sureties is similarly stayed or suspended,’ said Kebonang.

He added that “In the circumstances of this case, it seems to me that so long as the company is under judicial management, the moratorium that applies to it must also apply to its sureties/guarantors and no execution of the writs should be permitted against them. Any execution would be invalid.”

“Mindful that there is judicial precedent on this point in Botswana, at least none that I am aware of, and given its significance, I consider it prudent that the Court of Appeal must provide a determinative answer to the question whether a creditor can proceed against sureties where a company is under judicial management,” said Kebonang.

Pending the determination of the Court of Appeal, he issued the following order; the execution of writs issued in favour of FNB against Moyo and other sureties/guarantors of United Refinery are hereby stayed pending the determination of the legal question referred to the Court of Appeal.

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