• Court drops serious charge, orders fumbling DPP to amend
The courts have once again issued a stern warning to the Directorate of Public Prosecution (DPP) to act according to law and independently in the case in which former Spy Chief Isaac Kgosi was accused of taking pictures of spies and publishing them in a newspaper.
In a ruling delivered this week in yet another case against Kgosi, presiding Magistrate Lenah Oahile Mokibe reminded The DPP lawyers of their constitutional duty to act professionally and independently.
“They are assumed to have the skill and knowledge to separate the chaff from the wheat. It is imperative that every investigation that precedes the charge must be thorough and capable to withstand even the most hostile cross examination in the event of a trial. Our Constitution has entrusted the DPP with the discretion to be the public conscience. To this extent, it must uphold the highest standards prescribed by the letter and spirit of the Constitution.”
“It has never been the rule or practice in this country and I hope it never will be that suspected criminals are prosecuted oblivious of the critical considerations that inform the decision to prosecute, including public interest,” the Magistrate further warned.
The former spy boss, was charged with two charges one of taking pictures of covert agents and sharing them with a newspaper.
On count two the charges were that Kgosi obstructed the agents the due execution of their duties. The state had indicated that the DIS officers had been assigned to confirm if a certain Kegone Sebina will come and meet the former Director of intelligence and Security services (DISS) boss at a certain physiotherapy clinic.
Quashing the first charge the magistrate said, “It is clear from the request that the prosecution is unable to provide the certified copies of the photographs which were allegedly taken by the accused. Additionally there is no information relating to the person who disclosed the identity of the officers to Mmegi newspaper.”
The Magistrate further noted that the cellphones which were seized from Kgosi for forensic examination did not contain any evidence relating to the case.
“In the present case, it being evident that the prosecution is unable to provide the accused with the certified copies of the photographs he is alleged to have taken in order for him to adequately prepare his defence, there is nothing to suggest that Mmegi newspaper stated as to who gave them the information, I find that this is a proper case where the charge contained in count 1 must be quashed as it is likely to prejudice the accused in his defence and I so order,” Mokibe ruled.
Turning to the second charge Mokibe said the state did not follow the correct procedure to assign a Police officer and it cannot be taken that he was fit to undertake assignment of the DIS.
“Attempts by the state to cure this with the statement of Boikhutso Innocent Dintwa, the Deputy Divisional Commander of the Southern Division Headquarters that they have cordial relations with other law enforcement departments, which include the Directorate of Intelligence and Security cannot be a cure because undertaking duties under the Directorate of Intelligence and Security is governed by the Intelligence and Security Service Act,” Mokibe said.
“It therefore follows that the allegations against the accused in so far as they relate to him having obstructed Gotshajwang Nxaikhwe cannot be allowed to stand and I accordingly quash them. The prosecution is therefore ordered to amend the charge sheet to remove the particulars in so far as they indicate that the accused obstructed him in the execution of his duty as an officer of the Directorate of Intelligence and Security,” said the Magistrate