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Salbany escaped 5-year jail term!

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.

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No end in sight for Nam, Botswana borderline feud

27th July 2021
Namibian-report

Despite the President Dr Mokgweetsi Masisi and his Namibian counterpart, Hage Geingob giving an impression that the borderline security disputes are a thing of the past and that diplomatic ties remain tight, fresh developments from Namibia suggest otherwise, following Geingod’s close confidante’s attack on Botswana and its army.

Giving a Zambezi region state of the affairs last week, a Geingob-appointed governor of Zambezi region, Colonel Lawrence Ampofu, a retired Colonel in the Namibian Defence Force, former plan combatant during the liberation struggle of Namibia, in a written speech, charged at the BDF and condemned their killings of the Namibians as unacceptable.

“The security situation within our borders remains calm. The incidence of the Botswana Defence Force shootings and wanton killings on the Nchindo Brothers on 05 November 2020 and other 37 Namibian lives lost since independence remain a serious challenge with our neighbor, Botswana.

Our residents living along the Chobe, Linyanti and Kwandu rivers are living under constant threats, harassment, fear, intimidation and killings and such activities are condemned and not acceptable,” he said under the safety and security title.

The attack suggests that Namibia has not bought Botswana’s story. Ampofu was part of the entourage that accompanied Geingob to the three Nchindo brothers and their cousin who were gunned down by the BDF, and is reported to be privy to the details of the unpublished Botswana-Namibia joint investigations report about the killings as a governor or political head of the region which has eight electoral constituencies.

The report contains the sensitive details of how the three Namibians referred as poachers by the BDF – and Fisherman by the Namibian government were gunned down on 5 November last year along the Chobe River.  They were Tommy (48), Martin (40) and Wamunyima Nchindo (36), and their cousin Sinvula Muyeme (44).

His views are not really in contrast to his President’s views who also described the BDF as trigger happy in a scripted report to his cabinet.

The Zambezi region is located in the extreme north east part of Namibia and covers a total of 14,667.6 square kilometres. “We share borders with Angola, Zambia to the north, Zimbabwe to the east and Botswana to the South,” he said.

Sampofu was first appointed governor of the former Caprive Region in 2010 by the former Namibian president, Hifikepunye Pohamba and was reappointed as Zambezi governor by President Dr.Hage Geingob in 2015, a term running to 2025.

37 Namibia residents killed by Botswana army so far

Sampofu is a man who continues to insist that Botswana has killed 37 residents of his region. A video posted by the Namibian Broadcasting Corporation (NBC) shows him alleging that at least 37 Namibians were killed by the BDF, after he met with the community at Impalila.

“It is true, the BDF started long ago. As we speak 37 lives have been lost here in Impalila along the Chobe river going to Linyanti and Kwado rivers up to Lizauli. All those families lost their loved ones,” Ampofu said in the video posted by NBC.

It is not known how the BDF, which has maintained their position that the Namibians were engaging in illegal activities of poaching, treats the constant attacks by the Namibian authorities, but they have repeatedly vowed to continue protecting the country’s sovereignty and natural resources.

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Masisi gives KBL the “middle finger”

27th July 2021
President Masisi

Botswana’s premier brewer and leading distributor of beer, Kgalagadi Breweries Limited (KBL), this month dragged the government of Botswana to court after President Mokgweetsi Masisi imposed an alcohol ban with immediate effect. KBL labelled the decision as unjustifiable, irrational and that it overrides the rights that are enshrined in the constitution.

This week, Masisi through attorneys representing the government disparaged the case in his written affidavit of KBL’s application, referring to it as frivolous and that it ought to be dismissed with costs on a punitive scale.

In his court papers, Masisi reminded KBL that Botswana is a Republic whose laws find validity from the constitution, and in terms of Section 17 of the constitution the President is empowered to declare a State of Emergency and that it is a common cause that Botswana is under such state.

“It is common course that there is in existence emergency powers (Covid-19) Regulations 2020 as amended from time to time which is solely designed to regulate the Covid-19 pandemic,” he said.

Masisi pointed out that he denies that the application before Court is proper such as to challenge the lawfulness and validity of a regulation made and a notice published in the exercise of a legislative function in accordance with the Emergency Powers Act which empowers the President to make regulations as appear to him to be necessary and expedient for securing public safety.

Furthermore, the President revealed that the decision to ban alcohol sales was not arrived at willy-nilly, but rather that there had been careful considerations that the risks posed by Covid-19 had increased and therefore it was expedient and necessary to suspend all liquor licenses.

Moreover, Masisi denied that the decision to reinstate the ban should be made by the Director of Health Services as indicated by KBL in their nature of the application, “the Director is to cause the notice to be published in the Gazette after consultation with the President.”

Masisi indicated that the role of the Director of Health Services is to publish a regulation made by the President.

He further, reminded KBL that the power to make regulations in a State of Public Emergency in accordance with the EPA lies with the President, “such power includes the amendment of any enactment, suspending the operation of any enactment or modification of an enactment.”

According to Masisi, his decision to ban alcohol sales was based on evidence provided by the Director of Health Services who indicated to him that there was a sudden spike in the transmission of the Covid-19 virus following the reinstatement of liquor licenses.

Another piece of advice tendered by the Director of Health to Masisi was that bars and other liquor outlets were some of the major hotspots in the sense of such being high-risk areas at which the virus spread rapidly.

“Alcohol was one of the major causes of non-compliance with the health protocols that were put in place to control the spread of the Covid-19 virus. Further, there was an indication that more arrests were made on people failing to adhere to Covid-19 protocols more particularly at places where there were gatherings,” he contended.

He pointed out that therefore, it was expedient and or necessary to preserve lives and to reduce the risks of transmissions of the virus to reinstate the suspension of liquor licenses.

Moreover, the President says that it must be noted that he avers that the Director of Health Services is a credible source on matters of public health of which he also accordingly gave due weight to the Director’s advice on deciding to reinstate the ban through the impugned notice.

“I am aware and was always aware at the time of promulgating the regulation complained of that it shall negatively affect some sectors of the economy. However, after due consideration and receipt of advice, I decided to give priority to the safety and health of the nation,” Masisi said.

He presaged KBL that it would not be prudent and in the best interest of the nation to ignore a health emergency such as Covid-19 and gave preference to trading and making of profits by the applicant. “The results would only be catastrophic to the extent that when we emerge from the scourge we would be left with a depleted and ailing nation from Covid-19 and its side effects.”

Furthermore, his written affidavit further pointed out that the decision to reinstate the ban on alcohol was taken notwithstanding understanding and appreciation of the economic hardships that would befall the country.

However, he said he deliberately made the decision based on the evidence provided to him by the Director of Health, whose evidence he believes to be credible to give public/safety and health priority over economic considerations in some sectors.

In making the decision, Masisi states that he was and considered different options including allowing for sale of alcohol consumption off premises, however the evidence he had been provided with suggested that such other alternatives would not achieve the overall objective of securing public safety and health by reducing the risk of the spread of the virus.

“By the time I imposed the ban, alcohol was already being sold for consumption off-premises. This did not work. The information provided to me by the Director and the Presidential Task-Force team demonstrated that consumers purchased alcohol and then loitered and consumed it within the peripheries of bars and other liquor outlets,” he said.

Attached to the affidavit as emphasis, were photographs and videos of Gaborone West, Phase 4 in mid-June 2021, which he explains circulated on social media and was brought to his attention.

“I need not say much about the photos as they depict a crowd exceeding 50 gathered at the parking area of a bar. There is little or no regard to Covid-19 protocols. It was clear to me and my advisors, including the Director of Health Services and members of the Presidential Task-Force team that the total ban of alcohol was necessary to manage the risk of increase in infections, to understand what seems to have led to an increase in the risk of infection when alcohol is present I was advised by the Presidential Task-Force team that scientifically there has been evidence that alcohol narrows physical distance,” he argued.

Masisi says that allegations made by KBL are serious allegations of infringement of fundamental rights yet they fail to state how imposition and reinstatement of the suspension of liquor licenses out of necessity and expediency of the health of the nation infringes on the rights as alleged.

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Gov’t gives parallel statements on COVAX

27th July 2021
COVAX---lelatisitswe

In  an embarrassing turn of events that depicts disintegration in government communication on the fight against COVID-19, President Mokgweetsi Masisi and Assistant Minister of Health & Wellness, Sethomo Lelatisitswe gave two conflicting statements on the same matter, same day, just minutes apart.

The Commander-in-Chef told health practitioners and residents in Ramotswa that the COVAX facility has scammed African countries after billions were paid in a crowd funding effort to procure COVID-19 vaccines in bulk.

“We have pumped money as developing countries of the African continent into the COVAX Facility but the returns were not satisfactory, they cheated us,” the President said in Ramotswa.

According to President Masisi, the COVAX facility Vaccine only came in bits and pieces, frustrating the continent ‘s head immunity targets amid rapidly spreading Delta Variant which is currently reversing all progress made by Africa in containing the contagious virus.

“What we are getting is very small portions of the vaccine, they keep telling us that there is shortage of supply, this is not fair, but we have paid in advance, however what can we do, we have no choice but to spend more  money and look for other avenues of securing other available vaccines,” he said.

Meanwhile in Gaborone, Assistant Minister of Health and Wellness told Parliament that vaccine from COVAX facility is anchoring Botswana’s vaccination program.

“I am not aware of such information that COVAX facility is not delivering as expected, we are actually bolstered by COVAX facility in this country,” he said responding to a question from Mahalapye West Member of Parliament David Tshere who is also Chairman of Parliament Committee On Health and HIV/AIDS.

“We have received doses as ordered from the COVAX facility, and we are still receiving more, I have not seen that information which is purported to have been revealed by the President, unless its new information, we as the Ministry we are not aware of any frustrations by the COVAX facility,” he said.

COVAX is co-led by the Coalition for Epidemic Preparedness Innovations (CEPI), Gavi and the World Health Organization (WHO), alongside key delivery partner UNICEF.

Its aim is to accelerate the development and manufacture of COVID-19 vaccines, and to guarantee fair and equitable access for every country in the world.

The facility is a global coalition that works to ensure fair and equitable access of COVID-19 vaccines around the world. So far, 190 countries have joined the COVAX initiative, including all 22 countries in the Eastern Mediterranean Region.

The COVAX Facility aims to have 2 billion doses of COVID-19 vaccines available for distribution across the globe by the end of 2021, targeting those most at risk (e.g. frontline health workers) and most vulnerable severe diseases and death (e.g. elderly and people with co-morbidities).

On other vaccination issues President Masisi revealed, still in Greater Gaborone vaccination centre visits, that Botswana has placed orders with Pfizer, a United States vaccine producer noting that they have promised to deliver next year.

Meanwhile, government kick-started phase two of the Covid-19 vaccination program this week, opening up for ages between 30 and 54.

President Masisi revealed that this was done because some elderly were reluctant to be inculcated.

“We can’t take forever trying to convince people to take vaccine, we moved to the next age segments because we cannot afford to have vaccines-which are already in shortage supply to just lie there,” he said.

On Friday, Ministry of Health revealed that it was receiving large numbers of people below the age of 55 lining up to be vaccinated.

In a statement the Ministry of Health said it, “acknowledges the huge turnout that marked the commencement of the Phase two COVID-19 vaccination program”.

Given this high turnout, especially in the Greater Gaborone region, the ministry announced an extension of operation hours in order to serve the huge crowds that had come for vaccination.

Of the nearly 85 000 doses that were being doled across the country as first doses, the majority of the Greater Gaborone vaccination sites were already getting depleted by 1800hrs on 22 July 2021.

As a result of this development, the ministry took a decision to discontinue the extended hours of operation announced yesterday for vaccination sites in Gaborone.

This means that vaccination sites in Gaborone and elsewhere in the country which still have some vaccines, will offer them in the normal working hours and days of the week.

The Ministry says it appreciates the great desire to be vaccinated shown by thousands of citizens and residents of this country and wishes to assure them that it will continue to expedite their vaccination every time vaccines become available. As has been communicated in various fora, more vaccines are expected in August 2021.

As at July 2021, Botswana has so far received 62, 400 doses of AstraZeneca/COVISHIELD bought through the Covax facility, 30,000 doses of AstraZeneca vaccine donated by the Republic of India, 19, 890 doses of the Pfizer vaccine bought through the COVAX facility, 200, 000 doses of the Sinovac vaccine, donated by the Peoples Republic of China and another 200, 000 doses of the Sinovac vaccine bought through bilateral negotiations with Sinovac company in China.

“We encourage Batswana to remain hopeful that although it’s taking longer than anticipated, enough COVID-19 vaccines will eventually arrive in our country. We urge them to always strictly abide by all COVID-19 protocols so that they protect themselves and others from this deadly virus,” the ministry said.

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