No need for State to apologise, compensate ‘Butterfly’ – Mmusi
Mpho Mokwape | Tuesday September 3, 2024 08:43
She was subsequently arrested at one of the spy unit's offices at the Commerce Park area in Gaborone and taken in for questioning, then later suspended. Following her suspension, she had back-to-back legal battle with the State up until 2021 when South African Afriforum Advocate Gerrie Nel advised the State to drop her charges due to lack of evidence. Now, in a new update before Parliament, Mmusi says there is no need for the State to apologise or pay anyone compensation especially that investigations are still ongoing. “There is no basis for the State to apologise nor pay anyone compensation. I do not know if Cabinet was ever briefed about the Butterfly case,” he said. The minister emphasised that since investigations are ongoing and crucial information is being sought, the State is keeping its distance and will never interfere with investigations.
On the roping in of Advocate Nel to the ‘Butterfly case’, Mmusi first explained that the office of the DPP is a constitutional office and in terms of Section 51A (6) of the Constitution, the DPP in the exercise of her functions vested in her is not subject to the direction or control of any other person. He stated that it means the DPP is not answerable to anybody for the actions she takes in any criminal proceedings, and that is why the offer was extended to Advocate Nel. “The DPP, in the exercise of functions vested in her by the Constitution of Botswana, is not subject to the direction or control of any other person. The offer to represent the DPP was extended to some of the best advocates in South Africa especially around Johannesburg and Pretoria and Gerrie Nel was readily available to take up the matter,” he said. The minister said when they approached Advocate Nel, he gladly took up the matter more so that he is vested with the requisite experience and expertise in criminal law and investigation of trans-boundary organised crimes. He emphasised that he was now a private practitioner with a vast knowledge on issues of mutual legal assistance and alternatives to mutual legal assistance and he assisted the DPP to get the Mutual Legal Assistance (MLA) cases going. “The DPP's engagement of Advocate Nel was solely on the basis of his reputation as a former prosecutor and legal practitioner and not account of his relationship with the Afriforum,” Mmusi said.
Mmusi revealed that Advocate Nel was engaged as a South African private legal practitioner to follow all the necessary processes to enquire from all relevant authorities in South Africa, the fate of the MLA as well as to get the said authorities to act on the MLA expeditiously. On him being with Afriforum, a South African non-governmental organisation, which mainly focuses on the interests of Afrikaners, a subgroup of the country's white population, Mmusi said they were mindful that he is associated with the organisation as part of their 'private prosecution team.' “We, however, do not know the same to be providing legal services but as some kind of advocacy or pressure group in South Africa,” he said. He explained that all the work done by Advocate Nel on behalf of Botswana so far was Pro bono (for the public good or free of charge) noting that the understanding is that Advocate Nel will issue a fee note, which will be normal fees of attorney to client as regulated by the law, for appearing in court and that currently he has not issued the Attorney General Chambers with any fee note so far.
Mmusi further said he did not know if Advocate Nel ever visited the President as it has been alleged. About allegations levelled against senior investigator at the Directorate on Corruption and Economic Crime (DCEC), Jako Hubona, of fabricating evidence against ‘Butterfly’ and ultimately being taken to court for that, the minister said Hubona should not be the subject to be discussed in Parliament as he was not present to answer for himself. “Where an individual such as Jako Hubona is not present to be able to discuss in person or defend any issue brought against him in Parliament, it cannot be a subject of discussion especially as it relates it issues of law and has consequential damages on the integrity and reputation of the person concerned,” he said. He explained that the contention that Hubona be charged with perjury for manufacturing evidence was overruled by the Court of Appeal (CoA) following a concession by Counsel for the Respondent that it was improper for the Court to issue such an order without affording the parties an opportunity to address it where such issue was raised out of mere impulse.
Mmusi also said he was not aware that Hubona ever visited His Excellency the President. “Mr. Speaker, the case has not been concluded as the State still await crucial evidence that it has requested from other jurisdictions,” he said. In regards to prosecuting ‘Butterfly’ using alleged fabricated evidence, the minister said prosecution is conducted when the State is of the opinion that the evidence at hand establishes prima facie case against an accused person. He noted that the State has the right to disregard or not use any piece of evidence that it believes it is irrelevant to prove its case and in that regard it does not preclude the suspect/accused from using the same evidence for their defence. “As I alluded before, the case has not been concluded as the State still awaits crucial evidence that it has requested from other jurisdictions,” he concluded.
Mmusi was answering questions from Member of Parliament for Jwaneng/Mabutsane, Mephato Reatile. The latter had asked the minister many questions regarding the ‘Butterfly case’ and Advocate Nel.