16 Jan 2023

Judge Dr Godfrey Radijeng of Gaborone High Court has on Friday dismissed with costs and application by former President Lt Gen. Dr Seretse Khama Ian Khama.

Khama had approached the court with an application seeking the court to set aside the decision to prosecute him  and that a warrant of arrest that was issued for his arrest be set aside or stay pending owing to finalisation of the review application.

The applicant avers that on or about April 19, 2022 the 1st respondent (Director of Public Prosecutions) issued a criminal summons and a charge sheet against him. He states that he was charged on various criminal offences including unlawful possession of firearms, procuring the registration of firearms by false pretences and ownership of unregistered firearms.  

Judge Radijeng said the applicant contends that he has never been personally served with the charge sheet and summons as he was out of the jurisdiction of the court.

Additionally the applicant has indicated that on August 19, 2022, he filed a review application challenging the decision  to prosecute him and that the said application was currently awaiting a ruling before Judge Gaolapelwe Ketlogetswe.

He contended that the DPP could have first waited for the verdict of the review application before Judge Ketlogetswe.

The court further learnt that the 1st respondent proceeded with matter and further on December 20, 2022 applied for a warrant of arrest of the applicant. “The warrant of arrest was issued on December 29, 2022,” said Judge Dr Radijeng.

As such, Dr Radijeng said the applicant has declared that the said warrant of arrest issued by the second respondent (Regional Magistrate, Southern Region) on December 29, 2022 invalid and unlawful.

Judge Dr Radijeng also indicated that the applicant has requested the court to treat his affidavit as an urgent application.

The applicant further contended that the application for a warrant of his arrest failed to disclose sufficient facts for the grant of the warrant of arrest thus making it illegal, unreasonable and unlawful and that it was bound to violate his constitutional rights such as that of liberty, security of the person, freedom of movement and dignity.

In opposing the affidavit, the respondents, being the Director of Public Prosecutions, Regional Magistrate (Southern Region), Mr Mareledi Dipate and the Attorney General averred that the applicant left Botswana on November 08, 2021 for South Africa and has not yet returned.

The respondents indicated that since the applicant was outside Botswana it made it impossible for the summons and charge sheet to be served on him. Additionally the respondents added that since the applicant has not applied for stay of criminal proceedings before the Regional Magistrate, the 1st respondent was entitled to make the application for the issuance of a warrant of arrest.

“The respondents averred that the only way to bring the applicant to justice was to secure the warrant of arrest, which will lead to his extradition to Botswana,” said Judge Dr Radijeng. The respondents argued that the applicant was incompetent and not urgent and that it has failed to meet the requirements of an interim interdict.

Additionally, Dr Radijeng indicated that the respondents argued that the application was defective in that no factual basis has been laid for the review and setting aside of the warrant of arrest. The respondents further argued that the application for setting aside the warrant of arrest should have been brought before the judge dealing with the merits of the review application.

Judge Dr Radijeng was of the view that the applicant has not fully dealt with the issue of irreparable harm, other than making a bald statement that if the interim interdict was not granted, he stands to suffer harm.

Therefore, Dr Radijeng said the relief sought was dismissed with costs and that the applicant will bear the costs of the application.

Isaac Seabelo Kgosi, Khama, Keabetswe Makgophe, Victor Paledi and Sehunelo Khunou are facing varied counts relating to among others failure to register firearms, registering firearms by false pretense and aiding or abetting unlawful possession of a firearm.  

According to the charge the first accused person, Kgosi is facing counts failure to register a firearm, unlawful possession of silencer, procuring the registration of a firearm by false pretences, unlawful possession of a firearm, unlawful possession of ammunition, aiding and abetting unlawful possession of a fire arm, unlawful possession of a passport belonging to another, possession of armory vests resembling those of the Botswana Police and possession of battle bags and two tactical backpacks resembling those of the DIS without lawful authority.

The second accused person, Khama is facing counts of unlawful possession of a special firearm, ownership of an unregistered firearm, receiving stolen property and possession of battle vests and tactical backpacks closely resembling those of the DIS without lawful authority.

While Makgophe and Paledi are charged with three and two counts of aiding and abetting unlawful possession of fire arm respectively.

The fifth accused person, Khunou is charged with a single count stealing by a person employed in the public service. Particulars of the offence are that on or about March 01, 2016, the accused person at cargo unit at SSKIA stole one Jericho rifle and its accessories valued at  P12 960. 18 (US$1 017) which came into his possession by virtue of his employment. ENDS