As wars rage across the world, claiming innocent lives from Sudan, Myanmar and Ukraine, the Government has taken steps to recognize that, ‘A war crime committed elsewhere is a war crime committed in Botswana.’
Through a Serious Crimes of International Concern Bill of 2023 that is waiting for final stages before being passed into law, the Ministry of Justice has taken bold steps to extradite, or prosecute people suspected of involvement in war crimes on behalf of other countries.
It also seeks to make it easy to handover proceeds of crimes suspected to originate in foreign countries, as well as recognise a crime of aggression among other crimes.
Once made into a law, it would facilitate Botswana law enforcement agencies to cooperate with the International Criminal Court in carrying out joint investigations with any other foreign law enforcement agency in the interest of national security.
“In this regard, the Mutual Assistance in Criminal Matters Act was also amended to facilitate the provision and obtaining by Botswana of international assistance in joint criminal investigation of an offence, i.e., investigation of an offence conducted by Botswana and foreign counterparts,” reads part of the Bill.
“In this regard, the Amendment of the Extradition Act provides for instances where Botswana is unable to extradite, for DPP to instead prosecute on behalf of the foreign country where it is determined that there is enough evidence to prosecute, and the sharing of suspected proceeds of crime and confiscated property with other countries,” reads the Bill.
The amendment of the Mutual Assistance in Criminal Matters Act (MACMA) will empower the DPP to enter into agreement for reciprocal sharing of property with a competent authority in a foreign land.
The law will also empower the police to enter into agreements with their foreign counterparts for investigations, sharing of information and intelligence and even conduct joint operations in the interest of National Security.
The new law will also make the Extradition process simple and quicker, unlike the present arrangement which is cumbersome and time consuming.
According to the Minister of Justice, Machana Shamukuni, the new law seeks to ensure that Botswana, as a State Party, “Conforms to and implements her obligations as set out under the Rome Statute of the international Criminal Court, in as far as such conditions do not conflict with Botswana’s Constitution”.
Once in operation, the law will recognize genocide, war crimes, crimes against humanity, and crimes of aggression. “A person who conspires in Botswana to commit an offence, in or outside the territory of Botswana, or who conspires outside Botswana to commit a crime in Botswana commits an offence and is liable to the same penalty for the actual offence” reads Section 8 of the Bill.
The new law will make it impossible for the aforementioned crimes to be subjected to the Prescriptions Act, meaning there is no timeframe within which a person can be tried for their crimes.