Khama loses stay of prosecution case

Former President Ian Khama has lost a case in which he wanted criminal proceedings against him stayed pending review application.

In the main case, Khama is charged on a criminal indictment containing not less than 45 counts alongside Isaac Seabelo Kgosi for alleged unlawful possession of firearms and ammunition.

Khama made an application on notice of motion, where he sought that the criminal proceedings against him instituted by the Director of Public Prosecution (DPP) under case number CMMRRS-000007-21 be and are hereby stayed pending the hearing of the review application that he (Khama) launched under case number MAHGB-000673-22 in which he is challenging the decision of the DPP to charge him with various counts.

Regional Magistrate South, Mareledi Dipate has dismissed with costs the application. He said from the documents filed, as well as the heads of argument, Khama has not gone far enough to demonstrate that granting of an interdict pending the finalisation of his matter before the High Court.

The magistrate stated that Khama’s papers are just bare on his demonstration of his entitlement to be granted such relief.

“To uphold the present application this court would be obliged to make a determination, prima facie, that there are prospects of success in the review application before the High Court.

“Needless to say, this would be an obligation that this court would be placing on itself unnecessarily. The High Court is a superior court of record with supervisory powers over this one.

“On this point alone, the application is liable for dismissal as it is this court’s view that it cannot make a pre-determination of a case before a superior court”, Dipate said in his ruling.

In his founding affidavit, Khama stated that he has applied for a review of the decision by the DPP to prefer the charges against him, arguing that there has been no criminality in his acquisition of arms and ammunition that are in his possession, same having been legally obtained.

Dipate stated “the acquisition of arms and ammunition forms the bulk of the charges against him. The Applicant argues that proceeding with the case in this court will prejudice him as there is the possibility of two courts issuing contradicting orders.

“In terms of the hierarchy of the courts, he argues that this court should defer to the High Court, which is seized with the review application mentioned above. Any order issued by the High Court will necessary bind this court.”

Dipate said Khama goes further to argue that he has an arguable case on the merits in the matter filed before the High Court and will suffer irreparable harm if stay of proceedings is not ordered.

“Needless to say, this application is strongly opposed. The thrust of such opposition is that an application for stay of proceedings cannot be premised by the knowledge by any of the parties of pending proceedings.

“If anything such should have been made at the High Court, where the review application is pending. They thus seek a dismissal of the application, arguing that no prejudice has been demonstrated by the applicant who they describe as a fugitive from justice, having placed himself beyond the reach of this court’s jurisdiction.

“This, by implication means he has no locus standi to bring these proceedings to court”, the Magistrate said.

DPP has argued that Khama is a fugitive from justice, and thus lacks locus standi to institute any type of application before any court in Botswana; and that the Applicant has not met the requirements for an interim interdict.

According to Dipate, as a starting point, it must be acknowledged that the institutional independence of the office of the Director of Public Prosecutions (DPP) is guaranteed by Section 51A (6) of the constitution.

This provision, he said, states that in exercising his powers under Section 51A (3) The Director of Public Prosecutions shall not be subject to the direction and control of any other person or authority.

“It would thus be obvious that in making any decision of whether to prosecute, withdraw charges or stay proceedings for whatever reasons, the DPP is not subject to the control of anyone or any institution, except as she may be expected to consult the Attorney General when dealing with matters of national importance as provided for under Section 51A (6) (b) of the Constitution”, the magistrate said.