Court allows Seboko to file replying affidavit in Museveni’s case
Gaborone High Court Judge Dr. Zein Kebonang has granted Botho Seboko a chance to file his replying affidavit out of time in his case against Specially-Elected Member of Parliament Dr. Unity Dow over the controversial Facebook account of France Museveni.
Dr. Dow has accused Seboko of operating the account or working with other individuals to operate the account. She has alleged that Seboko - an officer at the Directorate of Intelligence and Security (DIS) - has the capability and capacity to operate the account. Seboko has denied knowledge of Museveni and argued that the accusation by the MP is unfair and puts him at harm from those who may believe that he is the said Museveni.
Seboko had applied to the court asking it to strike out his initial replying affidavit and that he be granted leave to file his replying affidavit out of time. In his ruling on Wednesday this week, Justice Dr. Kebonang said whether Seboko is Museveni is not a matter he is called to decide in the interlocutory proceedings.
'I am only called upon to decide what to make of the Applicant (Seboko)’s replying affidavit and the late filing of proceedings.'
He said the common facts are that on the 1st of September 2022, the Applicant instituted proceedings against the Respondent (Dr. Dow) for what he termed cyberbullying or stalking.
The proceedings were opposed, and the necessary answering affidavit was filed by the Respondent in reaction to the Applicant’s founding affidavit.
Before the Applicant could file his replying affidavit, he had to travel to the United States of America and Egypt on work-related assignments.
To meet the timelines for the filing of the replying affidavit, the Applicant received while in the United States of America a prepared replying affidavit for his signature from his attorney, Dr. Obonye Jonas.
The Applicant’s signature came in the form of an appended electronic signature. The replying affidavit was however not commissioned in the United State as he says he was not familiar with the country’s requirements or
processes on commissioning of court documents.
The judge stated that Seboko having signed the replying affidavit, sent it back to his attorney in Botswana who upon receipt had it commissioned before Professor Badale Tachilisa Balule of the Law Department, University of Botswana.
He said it was agreed that Seboko appeared before Prof Balule for administering of oath. According to the judge, another replying affidavit filed on the 28th of September 2022 was signed electronically.
Justice Dr. Kebonang said Dr. Dow accused Prof Balule and Noster Shirto who commissioned the second affidavit of fraud. He said Seboko accepted that both affidavits should not be admitted into evidence as they were both
not properly commissioned.
“He however denies any fraud and says that ‘there is long established practice that attorneys are able to have affidavits of their clients commissioned by their colleagues in the absence of the deponents and this is what happened here’.
“I must say that the case before me is unusual in the sense that, it is the Applicant and no other who is asking that his own affidavits be struck out,” Dr. Kebonang said.
According to the judge, the parties appear to agree on the nomenclature that the court must use in respect of Seboko’s commissioned affidavits.
That nomenclature is ‘fraud’, Justice Dr. Kebonang said, adding that the nomenclature loosely used by the parties appears to him however, to be overboard.
“It is my view that neither the conduct of Dr. Jonas nor the Applicant can be regarded as fraudulent and deserving to be labelled so. The use of the word fraud is simply a mischaracterisation in my view of what transpired between the parties as there has been no evidence of criminal intent in the manner in which the affidavits were commissioned. The administration of oaths in Botswana is governed by the Commissioner of Oaths Act.”
He stated in the judgement that the problem with the replying affidavits commissioned by Prof Balule and Shirto is therefore not that they do not reflect the time, date and place where they were commissioned. The problem lies in the Commissioners’ assertion that the Applicant appeared before them when he had not, added the judge.
According to the background of the case, Dr. Dow has denied that the accusations against Seboko are unfounded. She contends that she and many others have been victims of a state-sponsored cyberbullying and disinformation campaign spearheaded by Seboko using anonymous accounts and pseudonymous screen names to cloak his identity.
She said Museveni is a government operative with a license to humiliate and denigrate identified government targets. She argued that while his identity is known, those in authority have been reluctant to act against him and are in fact applauding on the side-lines while providing him with the protective veil that renders him unidentifiable to his victims.
Seboko on the other hand says he would also like to know who Museveni is and denied coordinating any project that is aimed at targeted intimidation and humiliation of anyone perceived to be an enemy of the state under the guise of whistleblowing.