The Directorate of Public Prosecutions (DPP) has appealed Justice Dr Godfrey Radijeng’s judgment in which he had ruled in favour of asset manager, Bakang Seretse in his P82 million civil forfeiture application case against the State.
Dissatisfied by the decision made by Justice Dr Radijeng on August 12, 2021, the DPP noted an appeal and appointed a well-known private attorney Busang Manewe to move this application. The matter is likely to be heard in the next session of the Court of Appeal (CoA) since the parties on December 3, 2021 proceeded with settling of the record of appeal among other things before the Registrar of the CoA.
Among the grounds of appeal, the appellant says Justice Radijeng erred in fact and in law by holding that the facts averred by the DPP do not disclose any offence. “The court a quo erred in fact and in law by holding that the mere fact that there were internal violation of processes of disbursement of the monies from National Petroleum Fund (NPF) does not mean that the owners of affected properties participated in the said violations,” Manewe argues.
The DPP also says the High Court Judge erred in fact and in law by holding that Seretse did not have a role to play in the decision making of the disbursement of the initial amount of P250 million from the NPF. The DPP also says the Judge errored by holding that there was no proof that the further distribution of the P250 million amounted to serious crimes.
“The court a quo erred in fact and in law by holding that the appellant ought to have sourced an affidavit from the Minister to confirm that there was no authorisation from him. The court a quo erred in fact and in law by holding that Bakang Seretse was entitled to assume that Kenneth Kerekang and Dr Obolokile Obakeng had, as senior government officers, requisite authority to authorise the disbursement of the funds.”
Manewe also says the Judge erred by holding that the interested parties to the restrained properties were not aware of the internal processes pertaining to authorisation for disbursement of funds. Also that he erred by not finding that the interested parties were not engaged in serious crime related activities.
Lastly, Manewe says Justice Dr Radijeng erred in fact and in law by holding that the restrained properties were in fact proceeds of serious crime related activities. Manewe is seeking an order upholding the appeal and setting aside the order of the High Court dismissing the application. He says it should be replaced with the following:
“*The application has proven on a balance of probabilities that the restrained properties and/or monies are proceeds of serious crime related activities;
*The retrsined properties are forfeited to the government and to be dealt with by the Receiver in terms of the law.
*All the affected parties are to pay the costs of the application jointly and severally, one paying the other to be absolved, on an ordinary scale”.
According to Justice Dr Radijeng, the State cannot continue hiding behind the law to hold on to Seretse’s property before explaining that the Proceeds and Instruments of Crime Act (PICA) that the State was using to keep the property has timelines. He said given the scope of restraint defined in PICA, the property is restrained for a particular purpose and statute defines the timelines within which secondary activity following the restraint must be commenced.
He explained that once the forfeiture proceedings are commenced, the timeline must be the primary question to assess and not to request for the amount to remain restrained pending the conclusion of investigations that are uncertain as to time to conclude. He said: “To grant the state’s prayer on this point would defeat the objects of PICA as to the purpose of restraint and timelines for commencement of the forfeiture process”.
“The respondents’ submission persuades me as PICA is instructive that if the property is found to fit the threshold, whether in whole or part, then it is a serious crime-related activity. The amount in question on the facts is a part of the amount allegedly disbursed from the NPF.” He was not persuaded that the respondents had failed to demonstrate how they accessed the money and who authorised it, noting that the onus remained with the State to make its case on the facts and adduce evidence to support its conclusions.
He said the State had not placed evidence before court that established that Seretse was present when the decision approving the disbursement or altering the use of the funds was made. He was persuaded that Kereng as a senior government official at the level of Director in the Department of Energy had the authority to represent and bind it.
“I find it reasonable in the facts set out that Bakang Seretse and any other person implicated as having committed some wrong would not, knowing the existence of the technical advisory contract and even on the standalone authority of the Director, not to question the authority or status of a person who transacted on behalf of government.”
Over 2,000 civil servants in the public sector have been interdicted for a variety of reasons, the majority of which are criminal in nature.
According to reports, some officers have been under interdiction for more than two years because such matters are still being investigated. Information reachingÂ WeekendPostÂ shows that local government, particularly councils, has the highest number of suspended officers.
In its annual report, the Directorate on Corruption and Economic Crime (DCEC) revealed that councils lead in corrupt activities throughout the country, and dozens of council employees are being investigated for alleged corrupt activities. It is also reported that disciplined forces, including the Botswana Defence Force (BDF), police, and prisons, and the Directorate of Intelligence and Security (DIS) have suspended a significant number of officers.
The Ministry of Education and Skills Development has also recorded a good number of teachers who have implicated in love relationships with students, while some are accused of impregnating students both in primary and secondary school. Regional education officers have been tasked to investigate such matters and are believed to be far from completion as some students are dragging their feet in assisting the investigations to be completed.
This year, Mmadinare Senior Secondary reportedly had the highest number of pregnancies, especially among form five students who were later forcibly expelled from school. Responding to this publicationâ€™s queries, Permanent Secretary to the Office of the President Emma Peloetletse said, â€śas you might be aware, I am currently addressing public servants across the length and breadth of our beautiful republic. Due to your detailed enquiry, I am not able to respond within your schedule,â€ť she said.
She said some of the issues raised need verification of facts, some are still under investigation while some are still before the courts of law.
Meanwhile, it is close to six months since the Police Commissioner Keabetwe Makgophe, Director General of the Directorate on Corruption and Economic Crime (DCEC) Tymon Katlholo and the Deputy Director of the DIS Tefo Kgothane were suspended from their official duties on various charges.
Efforts to solicit comment from trade unions were futile at the time of going to press.
Some suspended officers who opted for anonymity claimed that they have close to two years while on suspension. One stated that the investigations that led him to be suspended have not been completed.
â€śIt is heartbreaking that at this time the investigations have not been completed,â€ť he toldÂ WeekendPost, adding that â€śwhen a person is suspended, they get their salary fully without fail until the matter is resolvedâ€ť.
Makgophe, Katlholo and Kgothane are the three most high-ranking government officials that are under interdiction.
Botswana Democratic Party (BDP) and some senior government officials are abuzz with reports that President Mokgweetsi Masisi has requested his Vice President, Slumber Tsogwane not to contest the next general elections in 2024.
The impacts of climate change are increasing in frequency and intensity every year and this is forecast to continue for the foreseeable future. African CEOs in the Global South are finally coming to the party on how to tackle the crisis.
Following the completion of COP27 in Egypt recently, CEOs of Africa DFIs converged in Botswana for the CEO Forum of the Association of African Development Finance Institutions. One of the key themes was on green financing and building partnerships for resource mobilization in financing SDGs in Africa
A report; “Weathering the storm; African Development Banks response to Covid-19” presented shocking findings during the seminar. Among them; African DFI’s have proven to be financially resilient, and they are fast shifting to a green transition and it’s financing.
COO, CEDA, James Moribame highlighted that; “Everyone needs food, shelter and all basic needs in general, but climate change is putting the achievement of this at bay. “It is expensive for businesses to do business, for instance; it is much challenging for the agricultural sector due to climate change, and the risks have gone up. If a famer plants crops, they should be ready for any potential natural disaster which will cost them their hard work.”
According to Moribame, Start-up businesses will forever require help if there is no change.
“There is no doubt that the Russia- Ukraine war disrupted supply chains. SMMEs have felt the most impact as some start-up businesses acquire their materials internationally, therefore as inflation peaks, this means the exchange rate rises which makes commodities expensive and challenging for SMMEs to progress. Basically, the cost of doing business has gone up. Governments are no longer able to support DFI’s.”
Moribame shared remedies to the situation, noting that; “What we need is leadership that will be able to address this. CEOs should ensure companies operate within a framework of responsible lending. They also ought to scout for opportunities that would be attractive to investors, this include investors who are willing to put money into green financing. Botswana is a prime spot for green financing due to the great opportunity that lies in solar projects. ”
Technology has been hailed as the economy of the future and thus needs to be embraced to drive operational efficiency both internally and externally.
Executive Director, bank of Industry Nigeria, Simon Aranou mentioned that for investors to pump money to climate financing in Africa, African states need to be in alignment with global standards.
“Do what meets world standards if you want money from international investors. Have a strong risk management system. Also be a good borrower, if you have a loan, honour the obligation of paying it back because this will ensure countries have a clean financial record which will then pave way for easier lending of money in the future. African states cannot just be demanding for mitigation from rich countries. Financing needs infrastructure to complement it, you cannot be seating on billions of dollars without the necessary support systems to make it work for you. Domestic resource mobilisation is key. Use public money to mobilise private money.” He said.
For his part, the Minster of Minister of Entrepreneurship, Karabo Gare enunciated that, over the past three years, governments across the world have had to readjust their priorities as the world dealt with the effects and impact of the COVID 19 pandemic both to human life and economic prosperity.
“The role of DFIs, during this tough period, which is to support governments through countercyclical measures, including funding of COVID-19 related development projects, has become more important than ever before. However, with the increasingly limited resources from governments, DFIs are now expected to mobilise resources to meet the fiscal gaps and continue to meet their developmental mandates across the various affected sectors of their economies.” Said Gare.