Investigations still faraway from being concluded Courts can not afford DPP luxury to cover behind the investigation
DIS agent Welheminah “Butterfly” Maswabi stands charged with possession of the unexplained property, financing terrorism and false declaration for a passport
The Directorate of Public Prosecution ( DPP) advanced one step ahead towards getting assistance from their South African counterparts in an effort to crack the spider’s web during a case during which Wilhelmina Maswabi is facing several criminal charges of corrupt practice.
Last October, the state slapped Maswabi, also mentioned as “Butterfly” with three charges of possession of the unexplained property, financing terrorism, and false declaration of a passport.
But nothing much has been done since the DPP claimed its investigations revealed the cash had been laundered through various accounts around the world in an attempt to cover it from enforcement agencies, not just in Botswana but also altogether other involved jurisdictions.
DPP says they submitted requests for mutual legal assistance concerning what they term Bank of Botswana fraud case between October 2019 and should 2020, but no tangible results from their South African counterparts are forthcoming.
But the Ministry of Justice and Correctional Services in South Africa argues that it’s long responded through the stipulated official protocols. On Tuesday in the week the Ministry circulated a media statement accusing the DPP of getting promised to form a replacement request. “This new request has not been received yet”.
It remains to be seen how DPP will proceed with this case, which is currently pending before the Broadhurst Magistrate Court with subsequent date of appearance set for 17th November 2020 on which date the prosecution is predicted to offer a comprehensive report of the status of the investigations – this being the last time the prosecution is afforded such luxury.
DPP argues that the importance of assistance from South African authorities is extremely crucial to the fate of this matter.
Maswabi’s attorney Uyapo Ndadi has submitted to the court that the state must drop the fees because it is failing to prove its case.
Some legal experts say watching the magnitude of the investigations, there’s an opportunity that DPP might separate charges of laundering and terrorism once they next appear in court so as to stay their case alive.
Speaking to Botswana Guardian DPP deputy director, Advocate Priscilla Israel said they submitted on 17th September 2019, an invitation for mutual legal assistance concerning the “Bank of Botswana fraud case.” Numerous enquiries were made between the month of October 2019 and should 2020 on the fate of the MLA with none tangible update.
“The long and in need of it’s been that the NPA has informed the office of the DPP Gaborone that they had not been ready to execute the MLA because it has not reached their office. Several enquiries are made with our counterparts at NPA and Ministry of Justice to follow abreast of the MLA without much success.
“On that account, the office of the DPP saw it fit find other means of building the fate of the MLA.
The reason for appointing Advocate Gerry Nel was therefore to help the Republic of Botswana in facilitating and making follow-ups on the said request.
The request requires tons of legal processes within the Republic of South Africa and intrinsically it requires the DPP to possess legal representations within to seem out for its interests as Botswana attorneys haven’t any right of audience within the Republic of Botswana”.
Israel said DPP Botswana has over the years enjoyed very cordial relations with its SA counterparts.
“Our expectations were that this is often a status investigation with far reaching implications which in our view should are attended to promptly. Failure or the shortage of the expected promptness has raised tons of questions hence the engagement of an attorney in South Africa for assistance.
From time to time we’ve lodged complaints of slow or delayed response by the Central Authority in South Africa through the JPCC then BiNational Commission forum”.
It is a standing tradition that DPP because the central authority can communicate with its counterpart (Ministry of Justice S.A – Central Authority) and even send Mutual Legal Assistance requests to at least one another without the need for the requests or communication to be sent via the diplomatic channel.
This is the position that has been communicated time and again by the South African Central Authority to Botswana.
“We made a search concerning the request sent in 2019 to the Central Authority in South Africa which was copied to NPA and therefore the response was to the effect that the request couldn’t be located. On account of this, the office of the DPP decided to draft another MLA whilst awaiting feedback on the fate of the initial one from the Ministry of Justice in South Africa which request remains at the Botswana High Commission in Pretoria pending its dispatch to the Ministry of Justice in SA. We received information that some funds were being transferred from Absa SA by the accused persons”.
On Tuesday, spokesperson for the Ministry of Justice and Correctional Services, Chrispin Phiri released a media statement titled ‘BOTSWANA’S REQUEST FOR MUTUAL LEGAL ASSISTANCE’ stating that the Minister of Justice and Correctional Services, Ronald Lamola, confirms receiving a mandamus application from AfriForum on behalf of the Republic of Botswana. the appliance contains confirmatory affidavits purportedly signed by the Director of Public Prosecutions and Head of International Cooperation Unit at the Directorate of Public Prosecutions within the Republic of Botswana respectively.
This follows a spate of reports that AfriForum, a non-state actor who has been briefed to act on behalf of the Republic of Botswana to get mutual legal assistance from South Africa’s Central Authority for Mutual Legal
Assistance (MLA) and Extraditions, which is that the Department of Justice and Constitutional Development.
Mutual legal assistance in criminal matters may be a process by which States seek and supply assistance to other States in servicing of judicial documents and gathering evidence to be used in criminal cases. These requests are conventionally transmitted through diplomatic channels to supply for direct communication between central authorities of concerned states.
Lamola stated that under normal circumstances, each state usually appoints a Central Authority to receive assistance requests and therefore the Central Authorities communicate with one another directly and forward the requests for assistance to the competent authority in their respective States.
South Africa receives numerous Mutual Legal Assistance ( MLA) requests per annum from states everywhere the planet.
The enlisting of the help of a non-governmental organisation, to affect such matters which are purely of a diplomatic and bilateral nature is unprecedented, he said.
Lamola said that in the law of nations, the SADC Protocol on Mutual Legal Assistance in Criminal Matters – makes no provision for non-governmental entities to function intermediaries between States whether solicited or not since bilateral relations is that the “exclusive preserve of sovereign nations”.
The minister added that South Africa and Botswana enjoy strong historical relations, dating back to the times of the struggle against apartheid. To underscore the purpose , he said that within the past year alone, South Africa has provided Botswana with mutual legal assistance on six matters.
“We have taken note of the court application by Afriforum. The Minister of Justice and Correctional Services has subsequently instructed the state’s attorney to oppose the appliance. The Mutual Legal Assistance request during this case refers to an alleged element of cash laundering. due to the character of the alleged crime which may be a serious crime in South Africa, there’s legal requirement for enforcement agencies to conduct a preliminary investigation, as such, an invitation of this nature may become protracted and sophisticated by the multiplicity of enforcement agencies involved.
“This isn’t peculiar to South Africa; it’s standard practice across the planet. In our case the procedures on how such matters are to be facilitated are provided for within the International Cooperation in Criminal Matters Act, 1996 ( Act 75 of 1996). As sisterly nations do, we’ve been communicating directly with the Central Authority in Botswana, the Director of Public Prosecutions and Head of International Cooperation Unit at the Directorate of Public Prosecutions within the Republic of Botswana respectively.
“To this end, the Republic of Botswana, through these established channels of communication has indicated that, on this matter especially, a replacement request are going to be made. This new request has not been received yet”.
Speaking to Botswana Guardian in an exclusive interview on Wednesday, Phiri confirmed receipt of the DPP request.“We advise that we received the updated request today. By saying that we’ve been in touch with them, it follows that they always knew that we had the primary request.
“The updated version came straight to the Central Authority even the initial one that we had received came through the diplomatic channels and therefore the response was given to them through the diplomatic channels’’.
Asked to verify or deny reports they need right along been refusing to require request documents at Botswana High Commission citing COVID-19 reasons, Phiri said: “As we know it , the Botswana High Commission dropped the documents off to our offices today because we had indicated to them that when there are challenges they’ll communicate directly with the Central Authority which is us which has been the character of how we beat many years”.