09 Jun 2020

Triple murder accused, Kativa Diwanga was on Tuesday set free after the state withdrew charges with the liberty to reinstate them upon the extradition of the co-accused.

Prosecutor Keletso Seloka from the Directorate of Public Prosecutions (DPP) told court that they had realised that it had been a year since the accused was mentioning with no progress owing to the ongoing extradition matter.

“The COVID-19 pandemic has stalled proceedings even more, and as long as the extradition has not been executed, we wish to withdraw the case,” she said.

She said withdrawing the case did not mean that investigations would be closed, but rather that the state had come to realise that the extradition would take much longer than perceived.

Ms Seloka told court that the DPP was to meet with Namibian officials to reach a common understanding on the extradition of Diwanga’s co-accused Thomas Gilala, who originates from Tanzania.

“It has not been easy to extradite Gilala as Botswana and Namibia do not have any mutual understanding, hence the long process of asking for assistance from the later,” she said.

She added that the delay has made them to consider the criminal and penal law under the Criminal Procedure and Evidence Act Section 150, Sub-section 4, which says “any person who has once been called upon to plead to any indictment or summons shall, except as is specifically provided in the act or in any other law, be entitled to demand that he be either acquitted or found guilty,” adding that in this matter they acquit the accused.

She said the Namibian DPP refused to hand over Gilala because Namibia did not allow for capital punishment.

Diwanga’s defence has always been that he was framed by Gilala and did not personally know the deceased persons.

When the matter was still new, the investigating team managed to trace the accussed’s co-accused to a small village in Namibia. They found him in possession of two Huawei cellular phones, one Alcatel and one Ket phone belonging to the deceased.

Gilala was also found wearing a camouflage jacket belonging to the deceased, and it was identified by the deceased’s nephew. Diwanga and Gilala are alleged to have on June 10, 2019 in Tsholofelo East, Gaborone, murdered Methulesi Musoliwa, Sibongile Marks and Mellissa Marks using a sharp instrument.

Diwanga’s lawyer, Mr Mishingo Jeremiah had argued that his client was not supposed to suffer because of the state’s failure to extradite Gilala.

Broadhurst Chief Magistrate, Linah Mokibe-Oahile ordered that the matter be withdrawn and the accused person discharged.

She said the accused should be aware that the state could, at any time, re-register the matter provided they had carried out the extradition or found new evidence. Ends