Former Botswana intelligence agent Welheminah Maswabi, codenamed Butterfly, cried as Judge Zein Kebonang on Monday acquitted her of all charges of terrorism and money laundering she had been facing in a case that never quite got off the ground in two years. 

Maswabi shielded her face from the media as she left the court a free woman. The judgment on Monday was in the case that she had brought against those who had brought the charges against her.

Judge Kebonang found that the case against her “was a case that never was”. He criticised some in Botswana’s anti-corruption bodies and prosecuting authority.

“It was a lie orchestrated from the outset by highly ranked public officers who are accountable only to themselves. It was a brazen criminal act from those entrusted with public power that should never have been allowed to happen, the judge said.

Crucially for South African businesswoman Bridgette Motsepe, a court has now explicitly agreed that the bank accounts which the State alleged were used for money laundering never existed. 

Former Botswana president Ian Khama was also implicated without having been cited in the case as a defendant. Motsepe and Khama last year went as far as enlisting international law firm Omnia Strategy, headed by UK barrister Cherie Blair, to prove their innocence.

Directorate of Corruption and Economic Crime (DCEC) investigator Jako Hubona deposed an affidavit in October 2019 in which he said Maswabi was a signatory to “various bank accounts held in various South African Commercial Banks” under companies called Fireflies and Blue Flies, with a total balance in excess of $10-billion — roughly half of Botswana’s GDP.

Motsepe was also said to have been involved, but Judge Kebonang on Monday ruled that these bank accounts “were fabricated [by the State] and are outright false as such accounts do not exist and the said companies are also no-existent [sic].”

This aspect of the court case caused diplomatic friction with South Africa as Botswana’s prosecutions authority contracted AfriForum’s Gerrie Nel to institute litigation against the South African government for its alleged slowness to help. Botswana applied to South Africa to provide mutual legal assistance with regard to the bank accounts used for the alleged money laundering.

This month Botswana’s Director of Public Prosecutions, Stephen Tiroyakgosi, blamed South Africa’s reluctance to cooperate for his decision to withdraw the case against Maswabi and re-enrol it when there was sufficient evidence.

But Judge Kebonang was scathing on Monday, and referred Tiroyakgosi to President Mokgweetsi Masisi “to consider his removal from office of the DPP [Directorate of Public Prosecutions]” and also to the Law Society of Botswana and to the Attorney-General “for investigation and appropriate sanction”. 

Investigator Hubona was referred to the police commissioner for “prosecution for perjury” and to the DCEC director-general as his line supervisor “for disciplinary action”. 

Botswana’s Assistant Director of Public Prosecutions, Priscilla Israel, was also referred to the Permanent Secretary to Masisi and to the DCEC for disciplinary action, as well as to the Law Society of Botswana “for investigation and the appropriate sanction”.

Hubona and Israel “were persons best positioned to evaluate and assess the merits of the State’s case but purposely embarked on a road to subvert the rule of law”, the judgment read.

Nel, however, said this wasn’t the end of the road. “I am back in court in Botswana on 14 September. We will then argue the withdrawal,” he said, referring to the case earlier this month. 

“We are still on brief to monitor the Maswabi matter and to consider the South African evidence and the impact on the trial.”

The judgment also referred to the reputational damage done to Motsepe and Khama. They indicated previously that they would sue the Botswana government for defamation, but they could not be reached for comment on Monday night to establish if this case would go ahead.

The case against Maswabi was one of the fall-outs of the infighting between Khama and Masisi, who succeeded Khama in April 2018 after his decade in power expired. DM