Case built on ‘a lie’ by investigators, prosecutors ‘gone rogue’ – judge clears former Botswana intelligence agent of charges

Read judgment

Frankly, I have never read a judgment like this. Everything is turned on its head. Where a court would normally go through the evidence of witnesses and the accused, and point out the consistencies and inconsistencies, in this case, the court trawled through the evidence put together by the director of public prosecutions and his team, and critiques the content of their reports and their integrity in cobbling together ‘evidence’ against an accused that appears to have had no basis in reality whatsoever.

The judgment is also a sobering reminder of how much courts depend on the good faith and proper behaviour of the prosecuting team. In this case, for example, bail was initially refused for Welheminah Maswabi, the intended accused who was a member of the country's intelligence services, because the prosecuting team put up such a convincing argument as to the amounts of money which she had allegedly stolen from the Botswana government, that bail became unthinkable.

Maswabi was said to pose a significant threat to the state. She was ‘a signatory’ to 17 bank accounts including the accounts of two companies that between them held more than USD10billion ‘belonging to the government of Botswana’ and which had been ‘stolen’ from the Bank of Botswana.

‘Stolen’

The investigators also claimed that Maswabi had nine personal ‘global accounts’ with more than USD 390m in them. Altogether, the money that she had ‘stolen’ was a great deal more than the whole of Botswana’s gross domestic product, the court was told.

Given these allegations, the judge refused to grant bail to Maswabi. But, according to the new judgment, it was all fabricated evidence, based on absolutely nothing.

And it wasn’t only Maswabi. Jako Hubona, employee of the directorate on corruption and economic crime (DCEC) who had the job of persuading the court not to grant her bail, also implicated the former president of Botswana, Ian Khama, another top official, Isaac Kgosi, and prominent South African business woman Bridgette Radebe.

‘Misappropriated’

He claimed to have information that the Bank of Botswana had been instructed by Khama and Kgosi, who was the director general of the directorate of intelligence and security services, to create three special foreign accounts.

All this was done without the knowledge of the accountant general and the accounts were used as a conduit to move funds ‘misappropriated’ by Khama and Kgosi. None of which, it subsequently emerged, had any basis in fact, let alone truth.

But it was sufficiently compelling for the judge to refuse bail for Maswabi.

‘No records’

Then the tide began to turn. Maswabi applied for bail again. This time her application was heard by a different judge. Maswabi produced an affidavit by Khama denying that he had ever issued instructions to bank officers to create special accounts. Moreover, Maswabi pointed out to the judge that the bank itself had not produced any proof that the three accounts alleged to have been created on the instructions of Khama, even existed.

One of the accounts that Hubona had identified and associated with Maswabi was with South Africa’s Absa Bank. But Absa wrote a letter, shown to the court, saying it had no records of the account numbers referred to by Hubona, and that the documents attached, purporting to have come from Absa, had not been ‘generated’ by the bank.

Other accounts at the centre of the stolen money case, and said to have been held with Nedbank, also seemed not to have existed, with Nedbank saying they could not find any accounts in the names mentioned by Hubona, and that there was no record of any accounts with the numbers he had produced.

‘Non-existent accounts’

Nedbank concluded that all the alleged signatories to the accounts mentioned by Hubona – Khama, Maswabi and others – could not in fact have been signatories because these were ‘non-existent accounts’.

To these, and other equally devastating responses in Maswabi’s affidavit, the DPP filed no opposing papers. And, at last, she was granted bail.

But despite all these documents showing that the state’s charges against her were based on trumped up information, the DPP continued with criminal charges against her before, sometime later, dropping one of the three charges she was facing.

‘Unexplained properties’

When Maswabi subsequently brought a review application, the DPP had to provide a review record, showing all the DPP’s information in relation to the case against Maswabi and at what point that information was acquired.

Just as a taste of what was then exposed, the review record included a list of ‘unexplained properties’ that Maswabi was said to possess.

However, the registrar of deeds was asked to search for the title deeds of the contentious properties and these documents showed, according to the court, that the charges against Maswabi in relation to these properties were ‘unsupported by the evidence and were in fact contrived’.  As to the vehicles she was said to be in possession of without explanation, two belonged to her and the rest were owned by the government of Botswana.

Audacity

‘It baffles the mind’, said the judge, why the DPP, given the information he had, instituted criminal proceedings against Maswabi. ‘There was no iota of evidence of probable cause to charge [her] at all.

‘The only conclusion one reaches is that [the DPP] abused his office and deliberately set out to pursue a false and malicious prosecution against [Maswabi]. The audacity of the conduct is astounding.’

After a lot more of the same, showing that the investigating team deliberately falsified or hid information in order to bolster a charge against Maswabi, the judge said he found ‘intentional misconduct’ by those involved in the investigation and prosecution of Maswabi. The concerned state organs and the named officials had ‘simply gone rogue’.

‘Dishonourable’

As a result of the actions of the prosecuting team, everyone concerned suffered reputational harm, including Maswabi, Khama and Motsepe, as well as the banks involved.

The judge found that Maswabi’s prosecution was clearly for ‘an ulterior and dishonourable purpose’, and that the DPP knew when he decided to charge her that there was no evidence against her. ‘He chose, in breach of his constitutional obligations, to deliberately cause harm to [Maswabi] by falsifying and fabricating evidence against her.’

Describing the aborted prosecution as ‘a case that never was’, the judge added, ‘It was a lie orchestrated from the outset by highly ranked public officers who are accountable only to themselves. It was a brazen criminal act [by] those entrusted with public power that should never have been allowed to happen.’

‘Outright false’

He declared that the allegations in the charge sheet against Maswabi were ‘fabricated and are outright false’. Similarly, the allegations about the bank accounts were ‘outright false’. The decision to prosecute Maswabi for ‘possession of unexplained property’ was irrational and set aside, and he acquitted Maswabi on all counts.

However, those responsible for the debacle were not let off. The DPP was referred to the President of Botswana, as the appointing authority, to consider his removal from office. The DPP was also referred to the law society of Botswana for investigation ‘and appropriate sanction’, as well as to the attorney general for investigation and ‘possible prosecution’.

Others involved in the abortive prosecution were also referred for disciplinary action.

But this is far from the end of the matter. According to media reports, Khama wants to sue his successor as president, Mokgweetsi Masisi, saying that he (Masisi) should resign for what Khama called a dirty tricks campaign to discredit him (Khama) before the 2019 poll. Given the judge’s finding of bad faith action, others who had been named as co-conspirators in the debacle may well also decide to sue.