HOW INNOCENT MEN GO TO JAIL: The Injustice of Police False Forensic Tests


The gross incompetence by a technician at the Botswana Police Service (BSP) Forensic Science Lab nearly robbed a Mogoditshane man his freedom after his livestock medicine was wrongfully diagnosed as dagga (cannabis).
According to court documents, 50-year-old Mosarwa Pitso, a driver at Botswana Bureau of Standards (BOBS) was stopped by the police at a road block along Tsabong/Omaweneno road just on the outskirts of Tsabong village where he had gone on an official trip on 17th February 2016. A contingent of Police officers and soldiers, led by the then Tsabong Station Commander Superintendent Modo Howard instructed Pitso to alight from the truck he was driving whereupon his luggage was searched and a greenish substance was found in his bag.
Court papers indicate that Superintendent Modo ‘‘jumped to a conclusion that the substance was cannabis (dagga) despite the explanation by Pitso that the said substance was a traditional herb’’. Pitso is said to have even provided the police with the name and telephone number of the person who supplied him with the traditional herb but the law enforcement officers would not budge. ‘‘Mr Modo did not care to establish the truth or otherwise about the existence of the person who supplied our client with the herb’’, reads part of the court documents presented by attorney Nelson Ramaotwana of Kambai Attorneys who represented Pitso in the matter. Ramaotwana states in the papers that his client tried to reason with the Police Chief who threatened that soldiers would shoot him while forcefully confiscating his phone.  ‘‘Our client was handcuffed in full view of the public and portrayed as hard-core criminal’’, Ramaotwana told the court.
Pitso was detained at Tsabong Police station for 3 hours before he was released. He later, on 26th February 2016, protested the ill-treatment he suffered at the hands of Superintendent Modo and his charges but 3 months later, on 5th May 2016, the Police Commissioner wrote Pitso a letter dismissing his grievances. The letter from the Police Headquarters reads in part, ‘‘Due to your aggressive behaviour, the police handcuffed and eventually detained you to enable them to carry out investigations. Although armed BDF officers were present at the road block, they never took part in your arrest. It is therefore unfortunate that you felt intimidated and threatened by their presence’’. That signalled the beginning of Pitso’s troubles with the law.
On 30th June 2016, Sub-Inspector Gosego Kolare of the Botswana Police Service Forensic Science Laboratory produced an affidavit stating that the greenish plant material found in Pitso’s bag was cannabis (dagga). Pitso was then slapped with a charge of being found in possession of dagga weighing 23.9 grams and was arraigned in the Tsabong Magistrate Court on 6th September 2016. Adamant that he was innocent, Pitso engaged attorney Ramaotwana to apply to court for re-test of the greenish substance by a private Forensic Scientist. The court granted the re-test and ordered that Kolare( the BPS Forensic Scientist who performed the initial analysis) must be present when the independent expert hired by Pitso performs the re-test.
A private Forensic Scientist, David Sethatho of Forensic & Allied Service (PTY) LTD was then engaged and his analysis proved that the greenish substance found in Pitso’s possession was not dagga (cannabis) as initially recorded by the Police Forensic Laboratory. A Savingram from Director of BPS Forensic Science Services Dr Helen Tumediso-Magora dated 10th November 2016 and addressed to the Tsabong Station Commander confirms that indeed the Botswana Police had submitted wrongful analysis that led to Pitso being dragged to court and facing possible jail term. ‘‘The case file for the above-mentioned exhibit was reviewed following this request (re-test) and it was established that an error occurred at report writing stage as the notes taken during analysis indicate that the sample suspected to be cannabis (dagga) was indeed NOT cannabis’’, reads part of the letter from Director of the Police Forensic Laboratory.
Following the findings of the private expert, which the Botswana Police admitted to be correct, Tsabong Magistrate Atlanang Baleseng discharged and acquitted Pitso from the criminal charges levelled against him. In an interview with Botswana Gazette, the soft spoken Pitso told of how the case has drained him emotionally, physically and financial. ‘‘I am just a driver; I had to sell all my livestock to secure my freedom because I never doubted my innocence’’, Pitso said.  He said the case has affected him financially because he had to pay his lawyers and the private expert that was engaged in the re-analysis of the substance found in his possession.  ‘‘I didn’t go far in school and I was using my cattle to pay for my son’s school fees at a private English medium school. Now they are all gone because of this case,’’ a visibly dejected Pitso said. He explained that the greenish substance found in his possession was a traditional herb used as supplementary cattle feed to boost fertility.
Pitso’s lawyers have since served the Attorney General with statutory notice of intention to sue the Commissioner of Police and Sub-Inspector Gosego Kolare. Pitso is seeking to be compensated for suffered damages in the sum of P455, 000. He said he was disappointed that there has been no response from government with suggestion to resolve the matter amicably, after more than 30 days expiry of his notice. Pitso’s lawyers contend in their notice papers that his case depicts a ‘‘general lackadaisical attitude from the investigations stage up to the Forensic Laboratory’’.  They argue that their client utilized all avenues to demonstrate how innocent he was; but the police did not bother to follow up the alleged supplier of the substance. ‘‘Police investigations were malicious and degrading treatment meted out to our client,’’ Pitso’s lawyers posit. They also raised concern about possible other cases of innocent souls who might have been convicted and are currently serving false imprisonment due to the incompetence and negligence of the Police Forensic officers.
Established in 1988, the Botswana Police Service (BPS) Forensic Science Laboratory was meant to curb the outsourcing of forensic analysis services to foreign agencies outside the country. In 2016, government splashed P267 million on the construction of a modern state of the art forensic Science laboratory facility for the Botswana Police.