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Rabana case: Khama’s word vital

Publishing Date : 24 August, 2015

Author : TEFO PHEAGE

Ngakaagae says Sechele is conflicted in the case


It is an uphill battle for the Directorate of Public Prosecution (DPP) and Attorney General in the renewed pursuit of former Botswana Housing Corporation (BHC) deputy director, and fugitive, Gaolekwe Rabana. Rabana was charged for tender bribes.


Rabana fled Botswana almost 13 years ago whilst facing corruption charges in connection with the awarding of tenders for construction of BHC houses in Block 5. Charges against him are that he had accepted bribes in order for the tender to construct houses in Block 5 to be awarded to a construction company that did not qualify for the bid.

The State alleged that, in return for that, Rabana was given air tickets for him and his family to fly to Europe and America as well as money for accommodation in luxury hotels. He fled the country when the state was left with only two witnesses to call.


The Directorate on Corruption and Economic Crime then set out to find him and finally traced him to Johannesburg where he is reported to be residing with his family. After he was located, he refused to return to Botswana to face trial and this led to his extradition trial.


Gaborone attorney, Kgosiitsile Ngakaagae, who is representing Rabana challenges the extradition and wants to nullify the case. He has advised that the prosecution does not have, or has ceased to have legal basis.

According to court papers submitted at the Francistown High Court recently, Ngakaagae, through his client argues that, Director of Public Prosecutions, Leornard Sechele who was the presiding magistrate cannot be the judge in his own case.


According to the documents, Rabana is seeking relief from the case on the grounds that the Sechele is now pursuing him and on the other hand in charge of his prosecution and therefore is conflicted. “Sechele was and remains, for all intents and purposes, the presiding magistrate.

All the seventeen witnesses called in that trial testified before him as the presiding officer. Before he assumed other career interests he was a judicial officer in particular a Chief magistrate. The trial, including all seventeen witnesses was concluded before and is pending before him,” he said.


Furthermore, “That means that his Excellency the President will have to appoint him as such. Essentially he will have to take leave from DPP office or quit his job as such so as to be able to try Rabana and take the matter to its logical Conclusion,” argues the lawyer.


They further argue that alternatively, Sechele would have to wait for his contract to expire and then shift roles from being the prosecutor to a magistrate, if he is appointed as such.


“The unfairness of the aforementioned inevitable scenario is self-evident. One cannot fairly be a judge in their own case or in a case they are prosecuting or have prosecuted or have been involved in some way in a prosecutorial capacity,” argues Ngakaagae and his client. This they say is for the reasons that a prosecution must take some particular views about a suspect or an accused person even if on a prima facie basis.


“While a Magistrate, Sechele only had access to what was placed before him within the context of the judicial proceedings but now he has access to everything, admissible or inadmissible that forms part of the prosecution docket. His position has compromised him gravely and irremediably,” the applicants change.


According to the documents, Sechele is no longer legally competent to return to his former function to adjudicate over the matter saying the two offices are irreconcilable. “Given that the proceedings are no longer competent it is imperative that the record of proceedings be set aside,” they argued.


Rabana and his lawyer further challenge the legality of the case, citing section 26 of the Criminal Procedure and Evidence Act that states that the right of prosecution for any other offence except murder is barred by 20 years.

“The situation is exacerbated by the fact that it is now many years since trial started and since the last witness ceased to testify. The court’s recollection of the verbatim narrative of the witness has surely since faded,” Rabana stated.


The then Gaborone Chief Magistrate and now Director of the DPP, Sechele, presided over the matter whilst current Lobatse High Court Judge, Leatile Dambe, prosecuted. The trial suffered setbacks around 2001 when both the prosecutor and presiding officer went for studies overseas.

The case had to wait for their return before it could continue, hence the mix up. The case began in 1991 but was registered in 1995 and commenced in 2002 and faced challenges when it was nearing its end.

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