Justice Zein Kebonang of the Gaborone High Court has told the Directorate of Public Prosecutions (DPP) that charges against former spymaster, Isaac Kgosi are just abuse of power and done in bad faith.
In a recent ruling between the Attorney General, the Botswana Police Service, the Directorate of Intelligence and Security (DIS) and Kgosi, Justice Kebonang said on the basis of documents before him, he has no hesitation to conclude that the charges against Kgosi arising from the registration and licensing of his firearms are in bad faith and a glaring abuse of power.
“The charges are doomed to fail. On the documents before me, I have no hesitation arriving at the conclusion that charges against Kgosi are nothing but abuse of power”, he said.
The judge was making a ruling on an interlocutory application made by the State in which they sought to have a case in which Kgosi is fighting for his guns back that were seized by the State in 2019. They wanted the case to be declared moot in argument that Kgosi and others have been charged before the Magistrate’s Court in relation to the same guns.
Subsequently, when dismissing the application Justice Kebonang explained that the DPP has a duty to protect the integrity of the courts by ensuring that courts function as courts and not forced to preside over ill-fated cases.
“The DPP has a duty in discharging her prosecutorial functions to protect the integrity of the courts by ensuring that courts function as courts and are not co-opted into presiding over ill-fated cases that do not meet the requisite threshold for successful prosecution”, he said.
Since the State, according to court papers, is questioning the registration and licensing of Kgosi's firearms and have brought charges against him, Justice Kebonang said it was common cause that Kgosi has not been convicted of violating any of the provisions of the Arms and Ammunitions Act.
He stated that it was also known to the parties that Kgosi has the necessary licenses issued by the police in respect of his firearms and ammunitions and that the police as the licensing authority have not recalled or cancelled the licenses issued to him.
“Based on the presumption of regularity, Kgosi’s assertion of ownership and lawful possession can never therefore, be considered moot. It is live. A case is moot when there is no longer a live dispute or controversy between the parties, which would be practically affected in one way or another by a court's decision or which would be resolved by a court's decision. A case is also moot when a court's decision would be of academic interest only," explained the judge.
He further noted that there was no evidence that either the provisions of the Intelligence and Security Service Act or the Arms and Ammunitions Act have been violated by the former.
Justice Kebonang indicated that criminal proceedings against Kgosi and others do not invalidate either his ownership or possession of his firearms in light of the existence of validly issued permits by the police.
“The Constitution of Botswana entitles the respondent to due process and protects him from an overzealous State and State's arbitrariness. Through the various licenses issued to him, Kgosi has in my view been able on a balance of probabilities, to discharge the onus that he is the holder of the licenses issued in accordance with the law,” Justice Kebonang pointed out.
He emphasised that the presumptions of innocence, regularity and the constitutional proprietary rights of the former spy chief remain extant and are unaffected by the institution of criminal proceedings against him especially that there is nothing before him that suggests that the police through the office of either the Commissioner and/or Deputy Commissioner of Police, acted improperly in licensing and registering his firearms.
“There is nothing before me to suggest or to doubt the regularity or lawfulness of the police service's authority in licensing and registering Kgosi’ firearms. Equally, there is no evidence before me to suggest that Kgosi or the police service acted in abuse of office, colluded and/or engaged in a corrupt scheme to register firearms in favour of Kgosi”, said the judge.
JusticeKebonang also explained that the police service as the licensing authority has elected not to rebut the presumption of regularity and that strangely, a third party who is not clothed with the necessary licensing mandate seeks to do so through speculation and conjecture.
He pointed out that it was equally evident from the Act that one can only have their license or arms forfeited to the State upon being convicted but stated that a conviction would, however, not necessarily lead to a confiscation or loss of a license or firearm where the person convicted under this Act is not the owner of the firearms or ammunitions in relation to which the offence has been committed, he or she may order the return of those firearm or ammunitions to the rightful owner.
“Any person whose license or certificate has been cancelled in accordance with the provisions of this section shall, within 14 days from the date of the notification of the cancellation, surrender the license or certificate to the Registrar”, stated Justice Kebonang.
The decision of the secondnd Applicant remains valid and effective.
The judge concluded that when one has regard to the charges submitted by the State against the former DIS boss and others pending before the Gaborone Regional Magistrate's Court, these appear ex facie to lack reasonable and probable cause to justify them explaining that given the presumption of regularity, the charges are prima facie and abuse of prosecutorial authority
Regarding the warrant issued by the Magistrate Court, Justice Kebonang said it should have been apparent to the State that it did not authorise the seizure of Kgosi's firearms and that without a court order, the State’s conduct amounts to self-help and is in breach of the law.
the State has not adduced any evidence negating Kgosi's lawful ownership and possession of the firearms in question, nor have they negated the legal and statutory authority of either the police service, the Police Commissioner or Deputy Police Commissioner or the Arms Board to register and issue the necessary licenses.
Im the end the judge dismissed the application giving way for the case to be heard.
