DPP digs his heels in to nail Kgosi
● Wants Kgosi’s review action dismissed ● Kgosi insists he is innocent
The Director of Public Prosecutions (DPP), Stephen Tiroyakgosi, is opposing an application in which the founding head of DISS, Isaac Kgosi, wants his indictment in the National Petroleum Fund (NPF) corruption case reviewed and set aside because neither his office nor that of the Attorney General was served within the 30 days statutory notice required for civil applications, The Business Weekly & Review can reveal.
According to the DPP, the state intends to proceed with the prosecution within reasonable time.
Court documents seen by this publication, which were filed before the Gaborone High Court on the 1st September 2020, show that Tiroyakgosi intends to leave no stone unturned in his quest to nail Kgosi and his co- accused in the alleged fleecing of Botswana’s strategic petroleum funds.
However, Kgosi is unfazed and considers his charges “irrational.” Botswana’s former top spy has filed a counter-affidavit to this effect. In this high stakes affair, Tiroyakgosi says he took an oath to abide by the constitution and that the oath is binding on his conscience.
“I, as such, advise the committal proceedings against the applicant at the Magistrates’ Court in Case No cmmrs-0000-3-19 and the notice to indict the applicant has been served upon him in terms of Section 96 of the Criminal Procedure and Evidence Act, Cap 08:02 on 2 counts,” the DPP states in his affidavit. “The applicant, as per his notice of motion, seeks an order to review and set aside my decision to prosecute and commit him for trial on charges of corruption by a public officer in abuse of office, alternatively, abuse of office as aforementioned.”
The DPP intends to prove that the review application by Kgosi is erroneous in that the first and second respondents, the DPP and the Attorney General, were not duly served by the applicant (Kgosi). “I have been advised by my attorneys of record, and the 2nd respondent, and I do verily believe that review proceedings brought in terms of Order 61(1) are civil in nature and therefore place a peremptory duty on the applicant to serve a 30-day statutory notice upon the Attorney General in terms of Section 4 of the State Proceedings (Civil Actions By or Against Government or Public Officers) Act, Cap 10:01,” Tiroyakgosi argues in his affidavit.
“I therefore have been further advised by the 2nd respondent and I do verily believe that no such statutory notice has been filed upon him or his office before commencement of these proceedings and accordingly this review must be dismissed for non-compliance with the aforesaid Act.”
The DPP is insisting that the decision to prosecute the erstwhile director of the DISS is rational because all evidence against him will be brought out in court. “I am unable to respond to the balance of the contents of these paragraphs as doing so will prejudice the very same case for which the applicant stands charged and which is to be tried by this honourable court,” says Tiroyakgosi in his papers before court.
According to the DPP’s head honcho, the prosecution must be done within a reasonable time as the accused has been served with witness statements and correspondence and documents implicating him. “The decision to prosecute was based on investigations conducted by the Directorate on Corruption and Economic Crimes (DCEC) investigators who found that the applicant and other co-accused before this honourable court in another matter, was acting jointly and in common purpose with one Kenneth Kerekang in Counts 8 and 9 of the criminal charges before the magistrate,” he writes in his affidavit. He argues that his decision is rational “based on the evidence which will be adduced during the criminal trial before this court and that evidence cannot be produced or led at this stage”.
In Tiroyakgosi’s view, Kgosi’s review application has been overtaken by time and is a delaying tactic because the matter is already before the court. The state, he asserts, intends to commit the matter to the High Court for trial. parade
Kgosi and a cohort of politically other powerful men stand accused of embezzlement of NPF funds in what the state alleges was a well-orchestrated scheme. The Kgosi founding director of DISS was served with two counts of corruption and abuse of office in March this year but he has since challenged the DPP to withdraw charges against him as he maintains that he is not guilty of any offence.