High Court declares Khama ‘fugitive’
Mpho Mokwape | Monday February 19, 2024 06:00
'Yes, I am a fugitive from injustice. I have not read the judgment because I don’t waste my time reading something that was predetermined. That is a fact,' he said.
The High Court, delivered the judgment on Tuesday, through Justice Barnabas Nyamadzabo, declaring Khama a fugitive from justice and asserting that he has no right to bring any action to court.
Responding to inquiries from Mmegi, Khama explained that he considered himself a 'fugitive from injustice' citing instances like the recent boycott of the Legal Year by the Law Society of Botswana (LSB), examples of judicial capture, and what he claimed was the Directorate of Intelligence and Security (DIS) intimidating judicial officers. He stated that such incidents have been reported to the Chief Justice (CJ), who, however, has failed to investigate.
Khama also mentioned being a fugitive from attempts on his life orchestrated by the DIS on President Mokgweetsi Masisi's instructions, as well as fabricated charges such as the Wilheminah 'Butterfly' Maswabi allegations and current firearms charges, with new ones reportedly in the pipeline.
“I have no problem attending cases in court even on fabricated charges if I knew I would get a fair trial without influence from the Office of the President (OP). These days you never know,” he said.
Acknowledging that some judges are principled and credible professionals, Khama noted that those who adhere to fairness and independence are targeted if they rule against the state. He indicated that the purpose of the review was to challenge and expose the fabrication, and considering that it was successful but ignored, the issue of appealing is under consideration.
“We are in an election year. So everything and anything and anyone will be done or used to try to hang onto power. Absolutely anything to keep me out of the country or locked up,” he said.
Meanwhile, in the judgment, Justice Nyamadzabo said: 'Similarly, as regards the state's arguments, I uphold the argument as well and find that Khama is a fugitive from justice who does not have locus standi in this and other courts of Botswana during his status as a fugitive from justice'.
When reading the judgment, the judge explained that the question was whether Khama ought to be deemed a fugitive from justice, as contended by the state. He pointed out that in Khama’s averments, he said he ought not to be deemed a fugitive from justice because, according to him, he left Botswana in November 2021, many months before the charges were levelled against him. “He avers further that the reason for leaving the country was because he feared for his life as there have been attacks on his life, including some dating all the way back to 2019, that made it insufferable for him to continue his presence in Botswana at the time,” outlined the judge.
Nyamadzabo said that while Khama has alluded that many national media publications both here and in South Africa, including interviews that he did at the time he went to South Africa, show that he feared for his life, it cannot, however, be a coincidence that his relocation from Botswana occurred at the same time or on the same day he was given a deadline to hand over his firearms and ammunition to law enforcement agencies on November 8, 2021.
He explained that in his view, if before November 2021 and from as far back as the year 2019, there were any threats to the former president’s life in the nature that he alluded to, it is doubtful that he would have waited until November 8, 2021, to take flight on that day.
“That being the case, there is a causal link between his flight on November 8, 2021, and the deadline given to him by the law enforcement agencies to hand over his firearms and ammunition on that day. This is unconnected to any threat to his life either on that date or previously as claimed by Khama,” he said.
The judge further noted that, in essence, the former president absconded from Botswana on November 8, 2021, not because he feared for his life but because he believed that he might be arrested on that day.
He explained that it was apparent from the state’s record of proceedings, with its accompanying statements of the state’s potential witnesses, that Khama knew or ought to have known before November 8, 2021, that he was being investigated for possession of 26 improperly registered firearms and ammunition (amongst other charges).
Nyamadzabo stated that it was because search warrants against his properties had already been issued in favour of the law enforcement agencies, with November 8, 2021, being the culmination of such investigations.
“A decision which I agree with is that some coercive powers of the state, such as criminal charges or a warrant of arrest, should have been put into motion or issued for a person who spirits himself or herself away from the jurisdiction of the court to be regarded as a fugitive from justice. He emphasised that consequently, whether there were any criminal charges in existence at the time or there was no warrant of arrest then, not to mention the absence of an order for his extradition, that is immaterial.
The judge said that what was clear, however, is that despite the absence of such a warrant of arrest or criminal charges at the time that he left the country, Khama nevertheless anticipated that it was only a matter of time before such coercive powers of the state were put in motion against him, more so that search and seizure warrants had already been issued against him, hence his decision to abscond from Botswana on November 8, 2021. Nyamadzabo explained that, as rightly contended by the State, all the facts show that Khama is a fugitive from justice and that it is apparent from the following, amongst others: That he is beyond the jurisdiction of the courts in Botswana. He left Botswana unceremoniously as far back as November 8, 2021, and he has not returned to Botswana since. At the time of his unceremonious departure from Botswana, search warrants had already been issued concerning several of his properties, and he knew or ought to have known that criminal charges against him were imminent. He is now aware of the current charges against him, but he has not made himself available to be served with the court process and appear in the Magistrates' Court to answer those charges. A warrant of arrest has now been issued against him by the Directorate of Public Prosecutions that he is fully aware of, but there is no indication as to when, if ever he will bring himself within the jurisdiction of the Magistrates' Court. The judge concluded it was common cause from Khama’s application papers that he does not dispute possession of the arms and ammunition forming the subject matter of the criminal charges against him, and that his core argument is that the firearms and ammunition were registered.
He said as it is and as rightly contended by the state given that he admits possession of the said firearms, he must therefore prove before the trial court that he acquired the licences for the arms and ammunition in his custody or possession per the governing legislation dealing with the arms and ammunition.
“It is before the trial court where witnesses on both sides will be called and cross-examined that evidence will be led as to whether the said licences were properly issued. And the strength or lack thereof of the state’s evidence will hence be tested before the court.