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FOUR POLICE OFFICERS CHARGED OVER THABANI’S DEATH

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MBABANE – The names Mohammed Bouazizi and Thabani Nkomonye have something in common – they both catalysed political unrests.

For Bouazizi, it was the Arab Spring of pro-democracy protests that took place in the Middle East and North Africa in 2010 and 2011; for Nkomonye, it was nationwide protests that escalated into Eswatini’s political unrest.Tunisian Fruit and vegetable vendor Bouazizi, 26 years old in 2010, set himself on fire in the town of Sidi Bouzid and triggered the Arab Spring, University of Eswatini law student Nkomonye, aged 25 in 2021, died under mysterious circumstances following a traffic accident at night and a #JusticeForThabani movement began, as blame was apportioned on the police for his death. It is now just over a year since May 8, 2021, when Nkomonye is believed to have died, and the Royal Eswatini Police Service (REPS) has since acted on this death.


An impeccable source within the REPS revealed that as per the recommendation of Coroner Nonhlanhla Dlamini, disciplinary action has commenced against the four police officers who were on duty on the night of Nkomonye’s death and they all face a charge of negligence.Dlamini presided over the inquest into the circumstances surrounding the death of Nkomonye and further compiled a report of the findings.The officers who have been charged are: Constable Bhoncozi Kunene, who was the investigator of the road traffic accident; Constable Isaac Msibi, who attended the accident with Kunene; another officer identified as Thusi, who was part of the team that attended the accident; and Sergeant Ntombikayise Sithole, who was the senior officer on duty that night. Kunene, Msibi and Thusi are from the Matsapha traffic police department and they attended the scene of the accident on May 8, 2021 and towed Nkomonye’s motor vehicle to the Matsapha police station, where it was kept until his body was discovered at the scene of the accident five days later (May 13, 2021).

Coroner’s recommendations

The coroner made the following recommendation, which was one of four: “Administrative disciplinary action should be taken against all the officers who were involved in this matter, to answer for their failure to follow procedure and for their negligence.” The highly-placed source said it was now expected that the four officers would now appear before a tribunal that consists of the police executive, where their matter will be dealt with. Chief Police Information and Communications Officer Superintendent Phindile Vilakati did not refute the information that the officers had since been charged. “The National Commissioner is working on the recommendations as articulated by the Coroner. Reports will be submitted to a relevant body if need be,” she said.   

During the inquest, the evidence of Constable Kunene was considered of most relevance in determining the circumstances surrounding the traffic accident that caused Nkomonye’s death.
Kunene testified that he was in the company of officers Msibi and Thusi when they came across the road accident at Nhlambeni along the MR9 Public Road – Yithu Abantu Highway, while on routine road patrol around Hlobile-Masundvwini area. Upon their arrival at the scene, Kunene said they found members of the public already gathered and searching for the driver of the motor vehicle. It was his testimony that the report they got at the scene was that the driver was not found in the car or at the scene, immediately after the accident.
“It is the evidence of this officer that the driver of the motor vehicle could not be located at the scene of accident despite a search, which lasted for about two hours. According to the officer they searched for the driver for a distance of seven metres from where the car had landed and also about 18 metres from where the car had landed to where it had veered off the road. After they failed to locate the driver, it was then that they directed that the motor vehicle be towed to the police station, where it was kept until May 13, 2021, when the body of Thabani was found at the scene,” reads the coroner’s report.

Officer Kunene told the inquest that after failing to locate the driver, they assumed that he might have fled the scene since they found empty beer bottles, which led them to conclude that he might have been intoxicated at the time of the accident.Kunene stated that the motor vehicle was seriously damaged, had its front left wheel missing and had a visible hole on the right rear bumper.He also observed that the motor vehicle veered off the road and overturned several times before it landed on a branch at the scene. He further stated that he prepared a draft sketch plan showing where the vehicle veered off and also identifying the point of impact and also where the car landed thereafter. A developed plan was later prepared, which identified the position of the driver at the time he was discovered on May 13, 2021.

“The officer stated that he noted the accident on the Occurrence Book and further compiled a docket for the road traffic accident. The motor vehicle was registered at the police station as an exhibit. The accident was reported to the supervisors in the morning of May 9, 2021. The evidence of the Occurrence Book was tendered as exhibit G,” the coroner’s report states.
During cross examination, Kunene ‘failed dismally to give a response’ when asked to explain the procedure during the search and also specify the range or radius which should be covered during the search. It was put to Kunene that he failed to follow procedure when investigating the accident and that he was involved in the death of Nkomonye, but he denied that he was involved in the student’s demise.

The coroner noted that during his appearance, Kunene ‘exhibited arrogance when being cross-examined by counsel regarding his failure to follow procedure during the course of his investigations’. Kunene also failed to present a docket for the accident despite having said he had compiled one, and had been questioned at length about it. The coroner wrote: “The evidence by officer Kunene that he had compiled a docket cannot reasonably be true, since the witnesses found at the scene were never recorded statements on the day in issue and or on any earlier day. The witnesses were recorded statements after the body of Thabani was found on May 13, 2021. The sketch plan the officer presented was for the day the body of Mr. Nkomonye was discovered.”

It was also found that Kunene never sourced information from the government data system to identify the owner of the motor vehicle, despite that within the police force there are such facilities under the Serious Crimes Unit.“The officer exhibited serious ignorance when he was questioned about his duties as a traffic officer and procedure he must follow when attending to an accident,” wrote the coroner.

Cop’s incomplete docket

The evidence of Sergeant Lucas Motsa, who was the acting Head of the Matsapha Traffic Department, at the time the accident occurred, was that the docket compiled by Kunene was incomplete. Kunene was found to have left an incomplete docket in the morning of May 9, 2021 after he had attended to the accident and proceeded to take his day off, notwithstanding that the matter had not been investigated and the occupant(s) and/or driver of the car had not been located. The coroner’s report adds that Kunene, even though he stated that due to the seriousness of the damage to the vehicle, he was troubled by the fact that the driver could not be located, he never went back to the scene in the morning of May 9 and he never made a follow up on the matter when he resumed duty on May 12, 2021, nor did he investigate the matter further after that. Kunene told the inquest that his supervisor detailed other officers to revisit the scene on May 9.Constable Msibi, who is among those who have been charged, confirmed before the inquest that he was one of the officers who attended to the accident together with officer Kunene. Msibi’s evidence was found to corroborate that of Kunene on all material aspects, in that he confirmed that they were patrolling around Hlobile/Masundvwini, when they came across the accident; confirmed that the driver was not located at the scene; and that they searched the scene before towing the car to the police station.

Did assumptions kill the cat?

Sergeant Sithole – the senior officer on duty that night – conceded that there was laxity in the manner in which her department handled the accident. “She admitted that there was gross negligence on her part and also on the part of the officers, who attended the scene of the accident. According to the officer, they assumed that the driver was intoxicated and had fled the scene of the accident, based on the presence at the scene and also within the car,” states the coroner’s report. Officer Sithole revealed to the inquest that she never received the contents of the motor vehicle driven by Nkomonye, despite the fact that she was the sergeant on duty. According to Sithole, she reported the accident to Sergeant Lucas Motsa who had the duty to report to the station commander and the latter would then further report the matter to the regional commander.

When asked about the missing person report notice, Sithole stated she became aware of it on May 13, 2021. Sithole told the inquest that on May 8, 2021 ‘they took things for granted’ and assumed this to be what usually happened in accidents, where drivers were not found. The coroner then wrote: “Officer Sithole admitted that there was negligence in the manner in which they handled Mr. Nkomonye’s accident. The officer revealed that this incident has been an eye opener for them as police not to take for granted accidents which occur on a daily basis.”     
The evidence of Sergeant Motsa (then acting head of the Matsapha Traffic Dept) was that the docket of the traffic accident, which was made to him by Sithole, had challenges and did not contain crucial information that would have enabled further investigation of the matter. According to Motsa, despite being the immediate supervisor to Kunene, he failed to enforce compliance of police procedures by his subordinates.’ he failed to recall Kunene to attend to the docket and did not make means to facilitate further investigations of the read traffic accident. Motsa also conceded that there was gross negligence on the part of his department in the manner in which they handled the accident.  

The power to discipline police officers rests with the National Commissioner, as provided for in Section 189 (3) of the Constitution, which reads: “Subject to any lawful superior orders, the command and overall superintendence of the Police Service shall vest in the Commissioner of Police who shall also be responsible for the administration and discipline of the Police Service.” The Police Act, in Part V, addresses the subject of ‘discipline’ and in Section 47 states that the National Commissioner, as per his constitutional powers, shall establish administrative boards in all or selected police stations, including regional police headquarters and at other posts as deemed necessary and with similar or varying powers and responsibilities. It is these boards that deal with officers who have committed a breach or an offence.

Section 49(1) (c) (i) states that; ‘A police officer commits a disciplinary offence or the officer neglects duty, that is, if the officer having a duty to attend to, or to take action on any matter, neglects to do so, without good cause’. When conducting a disciplinary hearing or trial, a board, as per section 53 of the Act, shall not be bound by the strict rules of judicial procedure but shall be guided by the rules applicable in disciplinary tribunal and shall honestly apply its mind on any issue which is the subject matter of the hearing and observe the requirements of natural justice.The accused officer, according to Section 54, shall be entitled to be represented by a lawyer who shall be paid by the accused officer, or be represented by another officer.

Punishments for police offences

There are varying punishments that the boards might impose and these include: (a) reprimand and/or maximum E1 000 fine; (b) reprimand and/or maximum E800 fine; (c) reprimand and/or maximum E600 fine; (d) reprimand and/or E400 fine plus maximum 14 days confinement to police lines or quarters with or without extra guards, fatigues or other duty in addition to normal duty. Also, the board may, in addition to the punishments, order such police officer to make restitution or make good any loss or damage to government or person who suffered loss or damage. Section 60 provides that board may, upon conviction of the officer, in addition or in lieu of any of the penalties, recommend that the officer be dismissed from the police service or be reduced to a lower rank in the case of a police officer above the rank of constable but below the rank of deputy national commissioner.

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