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.
President Dr Mokgweetsi Masisi and the Directorate of Intelligence (DIS) came under the lens of the United Nations Human Rights Committee during the just ended dialogue between committee members and the Botswana delegation.
Scores of issues, among them the country’s reports on topics including whether Masisi abused the State of Emergency Act during the COVID-19 pandemic and alleged surveillance and harassment of members of the public by DIS, were addressed at the session.
A Committee expert asked about legislation in the Penal Code allowing the Government to investigate people who expressed opinions against public figures, particularly the President. How many cases were there of journalists who had been investigated, prosecuted and tried? Concerning the COVID-19 Emergency Powers Act, there was a provision for a fine or a five-year jail term for journalists using “source(s) other than the Director of Health Services or the World Health Organization” when reporting on COVID-19. The Committee Expert asked for the number of cases and other measures taken under this Act.
Another committee expert wanted to know that the scale and scope of electronic surveillance, which had sharply increased in recent years, was concerning. Furthermore, the Committee was troubled at the lack of a sufficient independent oversight mechanism over the Directorate of Intelligence and Security Services that reportedly had contributed to a growing climate of fear and chilling effect on journalists, human rights defenders and opposition politicians. In this respect, a Committee Expert asked about the measures taken by Botswana during the COVID-19 pandemic to ensure that the right to privacy was protected (collection and management of personal data).
The Expert also enquired about a database website, which was not functioning but was supposed to contain documents of Botswana’s international human rights commitments. In terms of the freedom of assembly, while the Constitution of the State party guaranteed it, the Committee had received information that, in practice, the Public Order Act required citizens to apply to the nearest police for a permit to hold an assembly, and police had sometimes denied requests for unclear reasons.
The Committee Expert asked if the Public Order Act of the State party had been applied in conformity with those tests. Would the State party indicate the measures it had taken and/or intended to take to make the application of the law in question strictly compatible with the requirements under article 21? Furthermore, the Committee had also received allegations that police officers sometimes used force to compel gathering people to disperse. In this regard, the Expert asked for information on legal provisions and practical guidelines under which police officers may resort to force and any training programme if any, for police and other law enforcement officers to respect and ensure the right of peaceful assembly.
A Committee Expert asked about cases of holding people for longer periods under pre-trial detention than the maximum period provided for in legislation, 36 months, instead of six. Were there any plans to shorten the duration of pre-trial detention in legislation? The Committee noted that there was no provision for local community broadcasting. What measures were the State party taking to ensure that the local communities could also communicate in their language in the media?
What measures had been undertaken by Botswana to increase sustainable development in the country regarding climate change in particular. What efforts had been undertaken to ensure that customary courts worked up to speed? A Committee Expert asked about children in rural areas who travelled a long way to their schools. The delegation was asked about the independence of the Ombudsman Office, including provisions for appointing the Ombudsman. What budget was envisaged for this Office?
The Expert acknowledged the established procedures and institutions for anti-human trafficking but expressed concerns about the lack of reported cases. The Expert asked about the accountability of the public prosecution, as well as the intelligence services. Replying, the Botswana delegation, led by Presidential Minister Kabo Morwaeng, said there was an ongoing consultation for revising provisions that would ensure better protection for journalists and media freedom in Botswana.
Still, the delegation said, freedom of expression was assured in the State party without any restrictions, including in Parliament. There was an education programme providing the opportunity for children in primary school to be taught in their mother tongue. It also explained that the Ombudsman would be dealing with issues of human rights promotion and protection.
“National policies and procedures were envisaged to control the distribution of natural resources. Botswana was also taking measures to increase the access of minority groups to education. Regarding pre-trial detention, the delegation explained that the criminal procedure assured justice was preserved in the country,” said the delegation.
On the issue of torturer and alleged use of unreasonable force on suspects, the Botswana delegation explained that police officers were trained to use minimal force, ensuring that human rights were preserved, including in the cases of assemblies. On the use of surveillance, no legal provisions were breached, and such measures were used in accordance with national legislation. Legal aid was very costly, and it was not possible to keep the record in detail as asked by the Committee.
Morwaeng told the Committee that the Government maintained a robust consultative approach to policy development and legislative process. He said this was a system of governance that ensured that the voices of ordinary citizens were respected and taken into account in the social, economic and political process that affected them the most, giving full effect to the full enjoyment of human rights across the board. The delegation took due note of the views of the Committee, including the importance of harnessing information technology to give a broader appreciation of the provisions of the Covenant.
The P1 billion water project launched by President Dr vMokgweetsi Masisi this week is said to be critical to the success of key projects planned in Lobatse – the Lobatse Milk Afric and Leather Park. After commissioning the multi-million Pula Masama-Mmamashia water project last week following its completion, on Thursday, Masisi performed ground-breaking ceremony of yet another major water project, the Lobatse Water Supply Master Plan (LWSMP1).
The water project was conceptualized in 2009 to address water shortage in areas along the Greater Gaborone zone. These areas include Ramotswa, Otse, Mogobane, Mankgodi, Manyana, Goodhope, Lekgolobotlo, Mmathethe, Molapowabojang and villages surrounding. It was said that some major upcoming projects in Lobatse such as Lobatse Leather Park, Milk Afric and the Pioneer Border Gate are dependent on the success of this project, in order for them to take off and operate effectively. The two projects have been struggling to take-off despite government having put the necessary resources.
The Lobatse Leather Park is anticipated to create about 4700 jobs at the initial stage and 7000 jobs at full capacity. The project entails the development of a complex for different tanneries with the support of state-owned beef company, Botswana Meat Commission. It will comprise primary infrastructure such as a common effluent treatment plant, sewage treatment plant, and others.
When operational, the park is expected to supply the private sector with hides and skins, raw to finished leather tanneries, and the manufacturing of different leather products. These products include shoes, belts, jackets, and others, thereby playing an instrumental role in stimulating economic activity. Leather Beneficiation Park is seen as important for the leather industry as it would ensure that Botswana moves from exporting raw leather to finished leather goods. It is said research has established that there are plenty of hides and skins in the country from the three million cattle and 1.8 million goats.
Meanwhile, Milk Afric dairy farm project which was expected to be complete by the second half of 2018, is in the wilderness after the initial partnership between Botswana Development Corporation (BDC) and Milk Afric failed to bear fruits. BDC has been searching for a new partner for the project. Once fully operational, the farm will produce a total of 21.9 million litres or one third of the national milk demand, which is 65 million litres a year. At present, Botswana imports over 58.8 million litres from South Africa at a cost of P345 million annually.
The P120 million project is a Public Private Partnership deal between Lobatse Town Council (LTC), with 10 percent shareholding through leasing its 1375.4 ha farm for 25 years; and 26 percent (P40 million) by Botswana Development Corporation (BDC). When speaking at the groundbreaking ceremony held in Ramotswa, Masisi said, in addition to improving the water supply for domestic needs and livelihoods, this infrastructural development will facilitate major projects in the Lobatse region, which are critical to the ailing, old town.
“Our objective as a country is to align developments with the National Vision 2036 Pillar 3 on Sustainable Development, which recognizes water as a very scarce resource which requires strategic management by key players.” Botswana is a developing country with an increasing population, Masisi said, adding that an increase in population naturally causes exponential growth in the demand for water. This is a reality that Botswana is faced with and challenged to address for sustainable water supply, the President said.
He indicated that this is why they are continuously witnessing major water projects undertaken by government, in collaboration with key partners. “Gaborone and surrounding areas have been experiencing an acute water supply deficit due to infrastructure that has outlived its potential to meet the growing demand for water by citizens. This particular project entails the construction of a Pump Station at Forest Hill in Gaborone, a 57 kilometre pipeline from Gaborone to Lobatse and a new Northern reservoir.”
The project, awarded China State Construction and Engineering Corporation/Van and Truck Hire Joint Venture at over P1 billion, is currently at 49% of its completion stage. There are 637 jobs created by this water project. “The transmission pipeline will convey 63 million litres of water a day from Gaborone to Lobatse. This is a great improvement compared to an average supply of 14 million litres of water that has been supplied to Lobatse, Borolong and surrounding areas,” Masisi said.
The United Nations Committee on Human Rights has taken Botswana to task over what it considers to be discrimination laws against lesbians and gays and delay in prosecuting suspects in the infamous Sebina defilement case. The Botswana delegation led by Presidential Minister Kabo Morwaeng found itself against the wall before the United Nations Human Rights Committee of experts in Geneva, Switzerland.
First to take Botswana head-on was the UN Committee member, C SOH, who noted that the recent ruling of the High Court pays particular attention to the penal code penalising same-sex sexual conduct as it found that it infringed on the constitutional rights, dignity, liberty and privacy of the LGBTI persons (lesbians and gays). “Nonetheless, I note with deep concern that those discriminatory provisions of the of the penal code remain in effect and regrettably the government stated in its periodic review before deciding whether or not to repeal section 164 it would still await the final determination of the court of appeal in the case of Motshidiemang vs State,” said Soh.
According to Soh, “This statement makes us cast doubt on the will of the government to vigorously” strike out section 164, which criminalises sex between people of the same sex. “In this respect, I would like to ask the delegation to explain what the intended goal by the government was when it filed an appeal against the unconstitutionality ruling of the High Court,” he said. Soh said the Botswana Government had also explained that no persons had been convicted under this provision, section 164, ever since the penal code was enacted.
“However, media reports indicate that in August 2016, the government of a Gaborone Magistrate Court sentenced a man three years in prison who had been charged and convicted under section 164 for engaging in unnatural acts. Can the delegation explain these discrepancies relating to persons who have been convicted and sentenced under section 164 of the penal code,” he said. He also wanted the Botswana delegation to explain how the government addresses how customary courts have been discriminating against LGBTI persons.
Another member of the UN Committee, Duncan Muhumuza, expressed concern that the Directorate of Public Prosecution (DPP) has taken more than four years to prosecute suspects in the Sebina saga in which a councillor was alleged to have slept with a student who was also a minor. Replying to concerns raised by the UN experts, Mogakolodi Segwagwa, chief state counsel at the Attorney General Chambers, noted that one of the UN committee members has “become fearful that the fact that government appealed the case could be a sign that there is lack of will or doubt on the part of the government as to abolishing or outlawing of same-sex relations.”
“But I would like to assure the panel that Botswana has over the years proved itself at all times to be compliant with court orders. There are many examples I could put forward where the government had to make sure that court orders were executed. That is the assurance I can give out to the committee,” said Segwagwa. He said there was a good reason for appealing the decision of the High Court in which it outlawed section 164.
“This was a High Court decision, and as you know in our jurisdiction when a judge is at the same court with his brothers and his sisters and fellow judges, whatever decision he puts out so far as that particular court is concerned, it is not law because it is not binding on his fellow brothers and sisters and it is not binding on fellow judges,” explained Segwagwa. He added that “It is merely persuasive so much so that some other judges may choose to when a similar case comes before him or her, depart and ignore the position that that particular judge espoused, and he or she can do so with ease.”
Segwagwa further explained that “There was a very pressing need for this matter to be appealed to the Court of Appeal for purposes of crystalising the law and for purposes of ensuring that if there is any aspect of the law that the High Court had overlooked in arriving at this particular decision, then such an aspect can be taken into consideration by the Court of Appeal.” “So we are waiting for that judgement, and once it comes, it will be implemented. I take it that the committee would like the Court of Appeal to uphold the decision below and strike out this particular section.”
He assured the UN experts that when the High Court struck out section 164 in 2019, the country did not erupt into violence, adding that this was an “indication that we don’t have anything against people of LGBT. They are our brothers and sisters, and we co-exist with them.” Regarding the Sebina saga, Segwagwa said the painful case “where this councillor was said to have had sexual intercourse with a child is the police dealt with a matter as it is the law and we all know that the police are bound by their Act to do so without fear and prejudice.”
He said Upon completion of their investigation, “the matter was handed over to the prosecuting authority, as Mr Muhumuza had indicated, it has been four years and we concede that four years is a long time and that it is unreasonably a long time and that it defeats the whole adage that justice should be sweetest and freshest so much so that the case needed to be speeded along.”
He added that “But the problem we have which is not a problem in the sense of it being a problem, but the impediment we have in the sense that the Constitution created the Office of the Director of Prosecutions under section 51 subsection A and if you go to that particular section and you read subsection six, the director shall not be subjected to the control of another authority.”
Segwagwa said, “this is the section that was inserted in this constitution to safeguard the independence of the Director of DPP to ensure that he or she prosecutes matters without fear, favour and prejudice and it presents impediment where we can’t try and say to the DPP, go and register or indicate your position now, tomorrow or next year and that is why it has taken all this time, but we believe attempts are being made that it finds its way to the court.”