A Gaborone based attorney has reasoned that the decision of Acting President Slumber Tsogwane to suspend the Director General of the Directorate on Corruption and Economic Crime (DCEC) Tymon Katlholo is unconstitutional, unlawful and insupportable at law.
Attorney Othusitse Mbeha of Mbeha Attorneys said the decision to suspend Katlholo, has not been made by the President of Botswana Mokgweetsi Masisi but the Acting President Tsogwane. The letter of suspension purports that the Acting President specifically relied on Section 112 of the Constitution of Botswana.
On Thursday the acting Permanent Secretary – Botswana Government Communications and Information Systems, John-Thomas Dipowe released a statement to the effect in the exercise of the powers conferred on Tsogwane, by Section 112 of the Constitution, as read with Corruption and Economic Crime Act, he has decided to suspend Katlholo from the performances of his duties with immediate effect until further notice.
“The decision to suspend Mr Katlholo is necessitated by the fact that in the course of his official duties, he has misconducted himself and exhibited behaviour that is incompatible with the conduct of a public officer. In this regard, established disciplinary procedures will be followed to the letter,” Dipowe said. Tshepho Pilane, Senior Assistant Director – Intelligence has been appointed the Acting DCEC Director General with immediate effect until further notice.
Attorney Mbeha said paraphrased and simplified Section 112 (1) of the Constitution provides that the power to remove (suspend) an office bearer, the likes of the Director General of DCEC shall vest in the President. “Although the Constitution should be given a wide interpretation, it’s clear that in using the word, ‘President’ under this section the intention of the lawmaker was that only the President has the powers to suspend let alone appoint or remove the Director General,” Mbeha said.
In the circumstances and consequent to the foregoing, he argued that Section 112 (1) does not give the Acting President the powers to suspend the Director General of the DCEC. This is a special preserve for the President alone and in terms of section 112(1) of the Constitution he has no right nor power to abdicate or delegate it to his Vice President or the Acting President as the case may be.
“It’s therefore my considered view that the decision of the Acting President is unconstitutional, unlawful and insupportable at law. It’s an unfortunate constitutional misstep. A careful reading of the DCEC Act that the Acting President also relied on, doesn’t give him powers to act in the manner that he did.”
In his view, he said, even assuming that he is wrong, his decision would still be wrong, at least administratively challengeable in a court of law under judicial review proceedings. “And here is why. The Acting President already has pronounced the DG guilty as charged before the contemplated disciplinary hearing.
The Acting President has coherently stated that the Director General has in the course of his duty committed a misconduct. I am not sure whether I should absolve the Acting President from blame and cast it on his Acting Permanent Secretary for a poor selection and usage of the right words.
“In letters of this ilk, it’s a grammatical offence to say such things as, ‘as a matter of fact’. What fact? Established by which independent and impartial tribunal or body? The right and permissible language to have employed should have been, ‘according to allegations of misconduct in the course of your duties it has become necessary to suspend you pending Investigations’.
Therefore in my assessment, the letter has all the wrong words giving it a bad image. If the Director General’s misconduct is already a fact, then why insinuate the need to subject him to a disciplinary hearing process?”
He continued: “I would proceed to opine that given the public tide of late building around the skirmishes relative to the Directorate of Intelligence and Security (DIS) Director General and the DCEC Director General, perhaps it’s the President’s well calculated move to jettison public backlash by using the Acting President. In my theory, the President deliberately used his absence from the country to pass his responsibility to his number two”.
In other words, he said the President wants to absolve himself from this decision. He is publicly known to be a man who does not only crave but enjoys acquitting himself from a myriad of accusations to look like a saint. In this case if the public reaction is going to be negative, he will definitely blame this decision on his Vice President and “I surmise the latter is aware”. Otherwise there is no better and clinical explication that can extricate him why this has to occur now and this way.
“My parting shot is that the Acting President’s decision is a dazzling paragon of assault to our Constitution and sheer act of misrule.”
Gaborone Bonnignton South Member of Parliament (MP) Christian Greef has submitted a letter of complaint to party chairman Slumber Tosogwane to take stern action against former minister Dr Alfred Madigele for causing chaos in the constituency.
There has been simmering tension between the two in Gaborone Bonnignton South, where former minister Dr. Madigele is said to be busy working the ground with the intention of contesting the constituency in 2024. Greef is said to have fallen out of favour with the party top hierarchy due to his association with the beleaguered party secretary general Mpho Balopi, something which he says is “unfounded”. Greef told this publication that “there are some with mischievous attempts here, but I will sort them out.”
Insiders, however, reveal that it is Madigele who has been causing unrest in the constituency as he plots his comeback to parliament in 2024. This is notwithstanding the fact that Madigele has also been promised the position of secretary general, should the party faithful ratify a proposal by the party politburo to reconfigure the position.
However, Madigele does not want to count on the SG position, hence the decision to to contest the Gaborone Bonnington South constituency. There are reports that there is a spirited campaign by some party members to reject a mulled plan to have the SG being a full-time employee of the party. This has irked Greef and has since approached the party structures for redress. “We are writing this letter to issue a complaint regarding misconduct by certain members of the BDP in our constituency.
There are several incidents where these individuals have been causing uncalled-for disruptions during party activities in Gaborone Bonnington South,” a letter penned by Greef, addressed to the regional chairperson, reads. He further added, “The group of people who are causing all these unnecessary tension in our constituency is identified and allegedly known by Madigele’s teams who is said to be campaigning for 2023 primary elections.
As the branch we witnessed the same team with similar misconduct during Bophirima Ward by election which we believe caused the party to lose the ward and continue to bring the image of the party in disrepute.” Lately, Madigele has relocated to the same constituency and that has created anxiety to Greef who is a first-time MP. Greef is concerned about how his rival was accepted in his constituency without his knowledge. If he had his wish, he would kick out Madigele from the constituency.
Greef, in another letter copied to President Dr Mokgweetsi Masisi and Chairman Slumber Tsogwane, says Madigele has brought the branch into disarray by campaigning for a parliamentary seat contrary to the party’s regulations for conduct of primary elections. “I therefore humbly appeal to you to call Dr Madigele, who is not a member of our branch, to order,” he said. Party officials in the region are aware of the matter; some say the MP’s complaint is baseless. However, the MP, according to sources, will fight to the bitter end to ensure that his arch rival is purged out.
Monthe and Marumo Attorneys who are representing suspended Director General of the Directorate on Corruption and Economic Crime (DCEC) Tymon Katlholo in a legal dispute pitting him against the Directorate of Intelligence and Security (DIS) have said that they would submit a legal bill to the agency.
This was after DCEC’s acting Director General, Tshepo Pilane had written a letter to the law firm demanding that some files and documents belonging to the agency be returned. “We refer to your letter dated 3rd June 2022 wherein you advised of termination of our mandate. In view thereof we have to file a notice of withdrawal as attorneys of record for and on behalf of the Organisation (DCEC),” Monthe Marumo Attorneys said in their letter.
The lawyers also indicated that, “the firm is in the process of finalizing your invoice and upon settlement of same, we will duly release the contents of the file, in so far as it relate to DCEC.” Pilane had informed the law firm that, “Following the Directorate’s termination of any and/or mandate between the Director General of the Directorate on Corruption and Economic Crime (DCEC) and your law firm and/or attorney of an Associate law firm of Monthe Marumo and Company on the 3rd June 2022.”
He added that, “I do hereby request that all DCEC documents in custody be returned to the DCEC on or before 12hours today the 6th June 2022. You are also informed that none of this information shall be used by your office under any circumstances.” Meanwhile Katlholo has told the High Court that the Directorate of Intelligence and Security was on the rampage as it continues to act with impunity.
He revealed this in an urgent application in which he seeks among others that Pilane, Deputy Director General of DCEC Priscilla Israel and the agency’s senior legal advisor Edwin Batsalwelang to be committed to jail for contempt of a court. The Court order had directed that a deputy sheriff should collect files and dockets from the DCEC office and place them into the custody of the Court. “Consequent to the order of his Lordship, the DISS has continued on its rampage and has arrested two officers of the DCEC and detained them in a Hitler style arrangement,” said Katlholo.
He added that, quite clearly the “DISS with the assistance of the 1st to 3rd Respondents seeks to conceal all the evidence by obstructing Judicial process.” He said his latest current application has been brought at the earliest opportunity following defiance and acts of obstruction at the instance of the respondents. Katlholo saidthe conduct of the Pilane, Israel, Batsalelwang and DIS are an aggression on the rule of law, the Constitution of Botswana and the Judiciary in general.
“The DISS clearly has every intention of continuing to defy my rights and with the due assistance of the 1st to 3rd Respondents (Pilane, Israel and Batsalelwang). To refuse an interdict, thereby allowing the perpetration of an ongoing wrong is an anathema to the principle of legality,” said Katlholo. He said, “The DISS cannot be allowed to continue acting in contravention of the law, and to fragrantly invade an act of Parliament.”
He reiterated that the files or documents or dockets remain vulnerable and there is need that they be removed from the office and placed in the custody of the Registrar. There can never be a safe place than Court, said Katlholo. “Should the matter not be heard as urgent, the likelihood of the files concerned and the information therein dissipating or being interfered with is high and once the evidence of the concerned files has been compromised or contaminated there is no other relief in law that fix such, there is therefore no alternative remedy,” he said.
Katlholo added that, “Most importantly, any unwarranted access to the files may compromise the integrity of ongoing investigations and expose informants and whistleblowers. Once they have been compromised, no court action may restore such.” He said it was necessary and extremely urgent that the Court steps in to protect the rule of law against the respondents, more particularly the DIS and its agents.
The United States through its State Department’s annual report on global religious freedoms is keeping tabs on Botswana’s decision to arrest of controversial pastor Thuso Tiego by the police.
The report was released a week ago. Tiego was re-arrested this week by the police after he allegedly attempted to spearhead a campaign aimed at shutting down some shops that are run by foreigners. The US’ State Department report says Police arrested a pastor from the Bethel Transfiguration Church September 7 when he tried to deliver a petition to President Mokgweetsi Masisi demanding his resignation over what the pastor said was mismanagement of the COVID-19 crisis.
“The pastor, Thuso Tiego, also criticized the government for restricting religious gatherings at a time when he said that individuals turned to churches for counselling and support during the pandemic,” the report says. It says Tiego was held overnight at a police station and released without charge. The report cites media reports saying that several of his supporters were beaten by police when they gathered outside the station demanding Tiego’s release.
“The national police service did not announce any disciplinary action against the officers involved,” the report says adding that, “The constitution provides for freedom of religion, with certain exceptions, and protection against governmental discrimination based on creed.” On other related issues, the report said the government continued to pursue court cases involving unregistered churches (sometimes called “fire churches”) coming into the country to “take advantage of” local citizens by demanding tithes and donations for routine services or special prayers.
“The government required pastors of some of those churches to apply for visas – even those from countries whose nationals were normally allowed visa-free entry. The government said in June 2019 that it was reviewing the visa policy for these foreign pastors, but by year’s end had not released the results of this review or announced any changes,” the report says. According to the report, former members of one of the most prominent unregistered churches forced to close in 2019, the Enlightened Christian Gathering, subsequently formed their own smaller, independent churches with local leadership that was ultimately registered by the government.
The report says, under the COVID-19 state of emergency that ended in September, the government limited attendance at religious services to no more than 50 persons at one time and limited services to twice a week. The government also banned all religious gatherings during “extreme social distancing” periods. Although the limits on religious gatherings lasted 18 months and prevented some individuals from fully practicing their faith, most religious groups did not say their freedom of religion was being restricted and stated that the extraordinary measures were necessary for public health
The report says the US Embassy officials engaged with Muslim, Buddhist, Christian, and other religious representatives to discuss religious freedom, interreligious relations, and community engagement. “Topics included government tolerance of minority religious groups, the impact of COVID-19 restrictions on religious expression, and interfaith cooperation to address community challenges,” the report says.
The report says under its broader protections of freedom of conscience, the constitution provides for freedom of thought and religion, the right to change religion or belief, and the right to manifest and propagate religion or belief in worship, teaching, practice, and observance. It says the constitution’s provision of rights also prohibits discrimination based on creed.
The constitution permits the government to restrict these rights in the interest of protecting the rights of other persons, national defense, public safety, public order, public morality, or public health when the restrictions are deemed “reasonably justifiable in a democratic society.” “The state of emergency imposed from March 2020 to September 2021 to prevent the spread of COVID-19, which capped the size of regular religious gatherings and meetings, was the first time the government ever exercised this provision,” the report says.