DCEC versus MEDIA: The Directorate on Corruption and Economic Crime (DCEC) this week slapped News Company Botswana, publishers of The Botswana Gazette with a search warrant in a development that rocked the media industry and invited widespread criticism of the DCEC. The Publisher, Shike Olsen and his Editor and Reporter were interrogated by the DCEC offi cials while their lawyer was briefl y jailed at Mogoditshane Police Station. Read full account on Page 21 as we zoom into the DCEC Act.
The Directorate on Corruption and Economic Crime (DCEC) had a run in with a midweek publication, The Botswana Gazette, this week following publication of a story alleging collusion and corruption. The DCEC had obtained a search warrant against the News Company Botswana premises but it encountered challenges in executing the warrant because lawyers representing the organisation raised objections bordering on the legality of the search warrant.
The DCEC has also in the recent past praised the media for its work in exposing corruption, declaring that they are friends with media. But this week the civility of the corruption busting organisation was all gone as it flexed its muscles against The Botswana Gazette, an episode that led to the temporary jailing of Gazette lawyer Joao Salbany and the arrest of the publication’s Managing Editor, Shike Olsen; Deputy Editor, Lawrence Seretse; and reporter, Innocent Selatlhwa.
Many commentators viewed the development as harassment of the media and feared for the worst in so far as Media Freedom is concerned. MISA Botswana voiced out, labelling the decision by the DCEC an assault on Media Freedom; Botswana Congress Party (BCP) publicity secretary, Taolo Lucas complained about the section 44 of the DCEC Act which he labelled as draconian and going against the spirit of the Botswana Constitution; while Dr Phenyo Butale of the Umbrella for Democratic Change (UDC) had a go at a host of legislations which he said were not friendly to the media.
He said what the DCEC was doing was harassment of the media and a calculated effort to muzzle the press. The Law Society of Botswana released a statement rebuking the arrest of one of their members, Salbany and “an apparent muzzling of the media”.
LSB wrote, “… the arrest of an attorney during the discharge of his duties is an affront to the Constitution and the very basic tenets of Democracy and the Rule of Law. The arrest runs afoul of enshrined Constitutional rights of the Gazette Newspaper and the Journalist to legal representation and to adequately prepare a defence and similarly an affront to the attorney’s Constitutional rights to protect the rights of his clients.
According to the LSB, the arrest brings once again into sharp focus the culture of impunity that the Society alluded to at the Opening of the Legal Year in 2015. It further brings into question the country’s soft-spoken credentials on the Rule of Law.
Salbany, of the Law firm Bayford and Associates was arrested and detained at Mogoditshane Police Station supposedly on a charge of obstructing the officers in their investigations. According to the DCEC Act, the offence carries a penalty of imprisonment for a term not exceeding five years, or to a fine not exceeding P10 000, or to both.
This week’s raid by the DCEC further brought into sharp focus the law that set up the organization. A closer look at the Act demonstrates that the Director General of the DCEC wields a lot of power which when unleashed could leave a lot of ash on the ground.
A reading of the Act further explains why she (Director General) searched the News Company Botswana premises. Unoda Mack, a prominent lawyer who had accompanied Duma Boko to rescue Salbany intimated that the search warrant was valid, but the DCEC officers could have avoided the drama by explaining their mission. As things stand, the newspaper has done nothing wrong, the DCEC only felt that there could be evidence of a case they are working on at the premises.
After interrogating the journalists in the presence of attorneys Kabo Motswagole, Boko and Mack, the DCEC went ahead and searched the News Company Botswana premises and confiscated a computer.
Below we reproduce some sections that give the DCEC Director General powers of search and arrest, as well as subsequent prosecute:
13. SEARCH WITH WARRANTS (1) If it appears to the Directorate that there is reasonable cause to believe that there is in any premises, place, vessel, boat, aircraft or other vehicle anything which is or contains evidence of the commission of any offence under Part IV, the Director or any officer of the Directorate may make an application on oath to a magistrate for a warrant to search such premises, place, vessel, boat, aircraft or other vehicle.
(2) If a magistrate to whom an application is made under subsection (1) is satisfied that there are reasonable grounds for suspecting that there is in the premises, place, vessel, boat, aircraft or other vehicle referred to in subsection (1) anything which is or contains evidence of the commission of any of the offences referred to in Part IV, he may by warrant direct the Director, or any officer authorised by him under section 7(1)(a), to enter and search such premises, place, vessel, boat, aircraft or other vehicle and seize and detain anything which the Director, or the officer authorised by the Director, has reason to believe to be or to contain evidence of any of the offences referred to in Part IV.
14. SEARCH WITHOUT WARRANT IN CERTAIN CASES Whenever the Director, or an officer authorised by him under section 7(1)(a), has reasonable cause to believe that there is in any premises, place, vessel, boat, aircraft or other vehicle any article or document which is evidence of the commission of an offence, or in respect of which an offence has been, is being, or about to be committed, under Part IV, is being conveyed, or is concealed or contained in any package in the premises, place, vessel, boat, aircraft or other vehicle, for the purpose of being conveyed, then and in any such case, if the Director or the officer authorised by him under section 7(1) considers that the special exigencies of the case so require, he may without a warrant enter the premises, place, vessel, boat, aircraft or other vehicle, and search, seize and detain such article, document or package.
15. EXERCISE OF POWERS OF SEARCH AND SEIZURE (1) In the exercise of the powers of search, seizure and detention under section 13(2) or 14, the Director or any other officer of the Directorate may use such reasonable force as is Exercise of powers of search and seizure
(1) In the exercise of the powers of search, seizure and detention under section 13(2) or 14, the Director or any other officer of the Directorate may use such reasonable force as is necessary in the circumstances, and may be accompanied or assisted by such other persons as he deems necessary to assist him to enter into or upon any premises, or upon any vessel, boat, aircraft or other vehicle, as the case may be.
(2) Notwithstanding the provisions of sections 7, 13 and 14, the Director, or any other officer of the Directorate shall not have access to any books, records, returns, reports or other documents, or data stored electronically, or to enter upon any premises, place, vessel, boat, aircraft or other vehicle if in the opinion of the President in writing such access or entry is likely to prejudice national security.
18. RESISTING OR OBSTRUCTING OFFICERS (1) Any person who resists or obstructs an officer in the execution of his duty shall be guilty of an offence.
(2) Any person guilty of an offence under this section or section 7(2) or 8(2) shall be liable on conviction to imprisonment for a term not exceeding five years, or to a fine not exceeding P10 000, or to both.
44. PROHIBITION OF DISCLOSURE OF INFORMATION Any person who, without lawful authority or reasonable excuse, discloses to any person who is the subject of an investigation in respect of an offence alleged or suspected to have been committed by him under this Act the fact that he is subject to such an investigation or any details of such investigation, or publishes or discloses to any other person either the identity of any person who is the subject of such an investigation or any details of such an investigation, shall be guilty of an offence and shall be liable, on conviction, to imprisonment for a term not exceeding one year or to a fine not exceeding P2 000, or to both.
Despite being hailed and still regarded as a hero who saved many lives through his decision to crash the BF5 fighter Jet around the national stadium on the eve of the 2018 BDF day, the deceased Pilot, Major Clifford Manyuni’s actions were treated as a letdown within the army, especially by his master-Commander of the Air Arm, Major General Innocent Phatshwane.
Manyuni’s master says he was utterly disappointed with his Pilot’s failure to perform “simple basics.”
Manyuni was regarded as a hero through social media for his ‘colourful exploits’, but Phatshwane who recently retired as the Air Arm Commander, revealed to WeekendPost in an exclusive interview that while he appreciated Batswana’s outpouring of emotions and love towards his departed Pilot, he strongly felt let down by the Pilot “because there was nothing wrong with that Fighter Jet and Manyuni did not report any problem either.”
The deceased Pilot, Manyuni was known within the army to be an upwardly mobile aviator and in particular an air power proponent.
“I was hurt and very disappointed because nobody knows why he decided to crash a well-functioning aircraft,” stated Phatshwane – a veteran pilot with over 40 years of experience under the Air Arm unit.
Phatshwane went on to express shock at Manyuni’s flagrant disregard for the rules of the game, “they were in a formation if you recall well and the guiding principle in that set-up is that if you have any problem, you immediately report to the formation team leader and signal a break-away from the formation.
Manyuni disregarded all these basic rules, not even to report to anybody-team members or even the barracks,” revealed Phatshwane when engaged on the much-publicised 2018 incident that took the life of a Rakops-born Pilot of BDF Class 27 of 2003/2004.
Phatshwane quickly dismisses the suggestion that perhaps the Fighter Jet could have been faulty, “the reasons why I am saying I was disappointed is that the aircraft was also in good condition and well-functioning. It was in our best interest to know what could have caused the accident and we launched a wholesale post-accident investigation which revealed that everything in the structure was working perfectly well,” he stated.
Phatshwane continued: “we thoroughly assessed the condition of the engine of the aircraft as well as the safety measures-especially the ejection seat which is the Pilot’s best safety companion under any life-threatening situation. All were perfectly functional.”
In aircrafts, an ejection seat or ejector seat is a system designed to rescue the pilot or other crew of an aircraft in an emergency. The seat is propelled out of the aircraft by an explosive charge or rocket motor, carrying the pilot with it.”
Manyuni knew about all these safety measures and had checked their functionality prior to using the Aircraft as is routine practice, according to Phatshwane. Could Manyuni have been going through emotional distress of some sort? Phatshwane says while he may never really know about that, what he can say is that there are laid out procedures in aviation guiding instances of emotional instability which Manyuni also knew about.
“We don’t allow or condone emotionally or physically unfit Pilots to take charge of an aircraft. If a Pilot feels unfit, he reports and requests to be excused. We will subsequently shift the task to another Pilot. We do this because we know the risks of leaving an unfit pilot to fly an aircraft,” says Phatshwane.
Despite having happened a day before the BDF day, Phatshwane says the BDF day mishap did not really affect the BDF day preparations, although it emotionally distracted Manyuni’s flying formation squad a bit, having seen him break away from the formation to the stone-hearted ground. The team soldiered on and immediately reported back to base for advice and way forward, according to Phatshwane.
Sharing the details of the ordeal and his Pilots’ experiences, Phatshwane said: “they (pilots) were in distress, who wouldn’t? They were especially hurt by the deceased‘s lack of communication. I immediately called a chaplain to attend to their emotional needs.
He came and offered them counselling. But soldiers don’t cry, they immediately accepted that a warrior has been called, wiped off their tears and instantly reported back for duty. I am sure you saw them performing miracles the following day at the BDF day as arranged.”
Despite the matter having attracted wide publicity, the BDF kept the crash details a distance away from the public, a move that Phatshwane felt was not in the best interest of the army and public.
“The incident attracted overwhelming public attention. Not only that, there were some misconceptions attached to the incident and I thought it was upon the BDF to come out and address those for the benefit of the public and army’s reputation,” he said.
One disturbing narrative linked to the incident was that Manyuni heroically wrestled the ‘faulty’ aircraft away from the endangered public to die alone, a narrative which Phatshwane disputes as just people’s imaginations. “Like I said the Aircraft was functioning perfectly,” he responded.
A close family member has hinted that the traumatised Manyuni family, at the time of their son’s tragedy, strongly accused the BDF ‘of killing their son’. Phatshwane admits to this development, emphasising that “Manyuni’s mother was visibly and understandably in inconsolable pain when she uttered those words”.
Phatshwane was the one who had to travel to Rakops through the Directorate of Intelligence Services (DIS) aircraft to deliver the sad news to the family but says he found the family already in the know, through social media. At the time of his death, Manyuni was survived by both parents, two brothers, a sister, fiancée and one child. He was buried in Rakops in an emotionally-charged burial. Like his remains, the BDF fighter jets have been permanently rested.
A matter in which former President Lt Gen Ian Khama had brought before Broadhurst Police Station in Gaborone, requesting the State to charge Directorate on Corruption and Economic Crime (DCEC) lead investigator, Jako Hubona and others with perjury has been committed to Headquarters because it involves “elders.”
Broadhurst Police Station Commander, Obusitswe Lokae, told this publication this week that the case in its nature is high profile so the matter has been allocated to his Officer Commanding No.3 District who then reported to the Divisional Commander who then sort to commit it to Police Headquarters.