Wesbank

NPF scandal can only be conclusively resolved through courts

SHARE   |   Monday, 29 January 2018   |   By Adam Phetlhe
NPF scandal can only be conclusively resolved through courts

From what we know so far, the unfolding events attached to the financial scandal at the National Petroleum Fund (NPF) could suggest a ‘web of criminality’ on one hand by high political office bearers and two civil servants, and on the other by those in the corporate world. At this stage, we know that two corporate individuals – Bakang Seretse and Botho Leburu – are before a court of law to answer for their part together with a public official, Kenneth Kerekang while the other public official who allegedly features in the scandal as the originator and procurer of the P 250 m– Director General of Intelligence Services Isaac Kgosi is not before court.  Minister Sadique Kebonang’s name lurks in the background allegedly by virtue of his business association with Seretse. I still wonder, probably as much as you do, why Kgosi is not in court with the other three given his alleged prominence in the scandal. Your guess is as good as mine! By virtue of the three appearing in court and currently on high value bail conditions, together with the High Court freezing Seretse’s bank accounts, it suggests for now that they have a criminal case to answer in court. But why did the scandal occur? The DIS has since its inception, failed to have mechanisms in place in terms of Parliamentary Oversight Authority to oversee internal controls which would in turn ensure that funds allocated to it are used for the intended purpose(s). It is suggested that the funds were initially requested for fuel storage facilities. This would immediately be changed to the acquisition of weapons. Food for thought! When the DIS Bill was read for the second time around 2007, the then Minister of Justice, Defence and Security Rre Phandu Skelemani informed Parliament in an assuring manner that “with appropriate legislation, we should be able to guard against abuse.” This has not been the case. It would later emerge that a Parliamentary Committee on Intelligence and Security (PCIS) was established. This structure has never functioned. As it stands, the executive control of the DIS is exercised by the President through the Central Intelligence Committee (CIC). Other members of this committee are amongst others, the Vice President, Minister responsible for Intelligence, Minister of Foreign Affairs, the Permanent Secretary to the President, the Attorney General, Director General of DIS and others – (Intelligence and Security Service Act). The CIC would therefore, in the absence of PCIS, be in a position to know why the P250 m triggered in a Hollywood style and dramatic manner, the scandal. The CIC, as matters stand, is the only living authority that can tell us how other funds previously procured by the DIS were so procured. You can bet your last Pula that access to this information will be as hard as extracting water from a rock.  

   
In the wake of the revelation of this scandal, the Public Accounts Committee (PAC) has been called upon to investigate it. A Judicial Commission of Inquiry has also been suggested as the other structure that could deal with the matter. On paper, these structures should be competent enough to conclusively deal with the matter and bring it to finality. The PAC has so far been seized with a wide range of matters whose conclusions and outcomes are yet to be known, let alone effected. We should ask: where and how would the suggested PAC have mustered the courage to do the right thing this time around? It should be noted firstly that this is a political structure whose outcomes and implementations are dependent on the political will (which is hard to find) of the political party with a majority in parliament. They say history is the best teacher. History sadly tells us that the PAC and its cousin, the Public Enterprises and Statutory Bodies, have since time immemorial been toothless dogs. Nothing suggests as remotely as it could be imagined, that the suggested PAC can now deliver. Secondly, most if not all matters under the radar of the PAC would directly or indirectly affect and implicate executive members of government whereupon action against them becomes highly impossible. Political expediency has become central in the PAC and as a consequence, nothing worth writing home about would emerge from the PAC would it be seized with the NPF scandal. Just recently, some information on Minister Tshekedi Khama in relation to how he has allegedly been micro-managing the Botswana Tourism Organisation, which information is sought by the PAC, is said to have disappeared from all places, the National Assembly. In this regard therefore, such crucial and critical information may never be retrieved wherever it may be whereupon the Minister will go scot free. The Judicial Commission of Inquiry, and while it could investigate matters like this scandal depending on its terms of reference, is also in my view not a viable structure to effect punitive measures on those criminally found guilty of wrong doing like a court of law would. One legal scholar, Pierre de Vos who teaches Constitutional Law at the University of Cape Town Law Faculty, observes that “the findings of a commission has (sic) no legal standing and do not automatically lead to criminal prosecution or other consequences”. If this observation is to be believed, the end result of a commission of inquiry in the subject matter is unlikely to achieve an outcome in the public interest. In the circumstances surrounding the present scandal and like I have alluded to above with specific reference to those holding high public office, they are the ones setting the terms of reference of the inquiry which in most cases, I argue, are so narrow and arguably crafted to present a desired outcome which does not implicate the setters of the commission should that be the case. In this respect, it could be a given that all the truth in matters investigated would not be unearthed because they could implicate those holding high political office should that be the case. Further to this, the findings and recommendations of an inquiry are not binding on those who set it up. Consequently, it is unlikely that given the actors in this scandal, the outcomes of such an inquiry and whatever they may be, would serve any valuable purpose. As some would say, the juice is not worth the squeeze.   

           
On the contrary, the courts of law are the best placed arbiters in the circumstances of this scandal given the already and seemingly unfair approach where other active actors are yet if any, to be indicted. This already says to us that were a commission to be established, these other actors would in all likelihood, not be probed. Like alluded to above, three actors in this scandal are already before a court of law presumably because a criminal activity at this stage, appears to have taken place. One of the actors is suspected to have contravened the Public Finance Management Act and/or the Fund Order (Statutory Instrument Act No. 96 of 2010) while others may be facing Money Laundering and related charges. For these to stand and be tested, the three have to go through impartial court processes where those holding high political offices do not have the latitude to influence them (processes) as they would in PAC and possibly judicial inquiry structures.  Information or evidence implicating the fat cats in this scandal may emerge where at the end of the day, they may also be criminally charged as accomplices or accessories. It is more probable that those already before court would have compelling and hard-to-ignore evidence which the law by itself cannot ignore that could drag others to face charges on the basis that, and as it appears to be the case, were part of the ‘web of criminality’. Strong allegations show that the other one not yet charged played a significant role in either ‘aiding and abetting’ the scandal or stood to benefit therefrom in some way. In any event, why would the three elect to face the legal music alone when supposedly, they were not alone in the procurement and acquisition of P250m. While structures like the PAC and judicial commissions of inquiry would be desirable and competent to deal with and get to the bottom of the NPF scandal, politicians have overtime abused these structures for narrow political gains. Over and above this view, these structures and particularly the PAC have successfully been used by the ruling party politicians to shield their colleagues from accountability of their actions and to circumvent processes for a particular and desired outcome. This would explain why so many government projects have failed, why there is so much unnecessary and unaccounted for fruitless and wasteful expenditure in ministries and so on. It is my considered view therefore that the NPF scandal can only be conclusively resolved through courts of law because allegations will be laid bare to be tested for their veracity. Other process would be conveniently compromised with justice and fairness the casualties. Ruling politicians have made us lose confidence in structures solely under their purview. As a last resort, courts have largely become the only hope where justice and fairness is sought.  Let everybody who has played a role, criminal or otherwise in this scandal, have his/her day in court to say their sides of the story. The law will punish offenders and safeguard the innocent. Judge for Yourself! Send your comment to:  This email address is being protected from spambots. You need JavaScript enabled to view it.