I could not quite appreciate what the fuss was with the Commission of Enquiry being appointed by the President. The findings can be reviewed by the High Court if they are irrational. A Commission of Enquiry that is open to the public, enables the public to judge for itself where the loot has gone to. The public is not obliged to treat the findings and recommendations of the enquiry as the biblical truth. Those who do public interest litigation would appreciate what I am talking about. We have done several cases where President Ian Khama was cited as a respondent and some of those have been argued before a Judge President appointed by him without consulting anyone. A Judge President who also happens to be a family friend of the President. This has not discouraged us in anyway from presenting our argument, because in public interest litigation winning is not everything. An important aspect of it is to sensitize the public. Several months ago we argued against the President and the Judicial Service Commission (JSC) before the Court of Appeal, before a bench specificially appointed by the President for the case following a recommendation by the JSC, that the manner in which Court of Appeal judges were being appointed was unconsititutional. Because the case was also about sensitising the public about issues surrounding independence of our judiciary, we did not allow issues of how the court had been constituted to discourage us from litigating.
The Botswana Congress Party (BCP) has brought a complaint against the President before the Ombudsman, about abuse of state resources. The Ombudsman is a public officer employed on a fixed-term of contract. He has no security of tenure, and may at any point in time be transferred to another department. His findings are not binding on the executive, yet it was seen fit to report the President's conduct to him. Although the complaint to the Ombudsman can never yield any result that is enforceable, it is nonetheless a great way of keeping the issues surrounding Mosu in the public domain and opening the eyes of the public to what happened there. The case in respect of which statutory notice has been issued for the return of the funds paid out of the National Petroleum Fund (NPF), is unlikely bring to light any new information that the public is not already aware of. There is no dispute that payment out of the NPF was unlawful and all parties concerned readily accept this. The case does not seek to investigate the issue of who the beneficiaries of the loot were. The relevant Minister will not be called upon to account for what his role in the whole saga was, nor will the issue of whether any members of cabinet benefited from the loot be considered. Kulaco and Mr. Seretse have not been cited as respondents and will therefore not be called to give an explanation of why they got a commission of BWP 50 million and who they shared it with. It is simply an action that seeks to declare the removal of funds unlawful and seeks a return of the funds from the relevant Ministry, PS and the Director General. The PS in the relevant Ministry is said to have asked for the return of the funds, and DIS has undertaken to return the funds in the new financial year. The public is therefore unlikely to learn anything new from the case. A Commission of Enquiry would have enabled many quesitions which will forever remain unanswered to be posed.
Chilisa is a Gaborone based attorney