CoA says DIS is a threat to Republic of Botswana
The Court of Appeal (CoA) has declared that the Directorate of Intelligence and Security (DIS) Director General Brigadier Peter Magosi acted unlawfully by barricading and sealing the offices of the Directorate on Corruption and Economic Crime (DCEC) in June 2022.
Furthermore, the Court unanimously agreed that the DIS acted unlawfully by summoning DCEC officers to its offices where they were interrogated on the investigations they were handling at the time.
Justices Isaac Lesetedi, Baaitse Nkabine and Edwin Cameron said the DIS acted like it was the law unto itself and breached the foundational tenets on which the country was established – the rule of law.
The Court found that the Attorney General at the time failed to perform his duties to bring the warring State organs under one roof to find a solution to their stand-off, instead of allowing the matter to escalate to the courts.
When dismissing the appeal by the AG, the court said that the DIS had no legal right to conduct itself the way it did and that they overstepped its mandate and breached international practice.
“The DIS was therefore not lawfully entitled to what it sought. To have what it required as it purported to do in its letters to the DCEC to have its officers gain access to information in the DCEC records which were obtained in the course of the performance of its duties was not only unlawful, but it was also an act to procure those officers to commit. The mandate of the DCEC is one which is of international concern,” the Judges said.
The judges said the DCEC mandate is recognized by the United Nations, African Union, and SADC which bodies Botswana is a member of and signatory to their conventions and protocols.
The Court said that no individual or entity has a right to interfere with DCEC investigations and that the DIS is no exception to this prohibition.
They emphasized that nowhere in the laws establishing the two entities is it stated that the DIS has powers to interfere with DCEC operations, nor does the DIS Director General have any special powers to do such, as he attempted to rely on Section 24 of the Intelligence and Security Act.
“This case concerns an egregious excess of authority and cried for rectification and rebuke. Only the courts disposed over the power to administer these correctives. The High Court acted with propriety in granting the orders it did. For these reasons the appeal must fail with costs,” they said as they dismissed the appeal by AG.
The standoff led to confiscation of DCEC files, and suspension of Katlholo who was later replaced as DG of DCEC.
TIMELINE OF THE DCEC, DIS SAGA
14 December 2021 – DIS requests for the release of Bareetsi Pilane , Joao Salbany, and Priscila Israel. The latter two voluntarily go into DIS custody and are released on 17th December 2022.
7th – 8th February 2022 – DIS demands five more officers to come for interviews being Matsietsa, Tshupoeng, Dibotelo, Mpofu, and Bareetsi. DCEC responds to ask for a meeting with DIS to discuss working together and the disturbing demands. DIS insists that the officers should come for interrogation.
17th February 2022 – DCEC responds to oppose the request for the officers to be released to DIS explaining the importance of meeting face to face as earlier requested.
5th April 2022 – DIS writes to DCEC demanding information on whether it has any contract with Seleka Springs or any other information on the company.
12th April 2022 – DCEC responds to state that the only information they had on Seleka Springs is that the company collected an Invitation to Tender (ITT) on behalf of CRPTO AG who supplied DCEC with an encryption software in 2015.
18 April 2022 – DCEC Director General Tymon Katlholo travels to Rwanda to attend Africa Summit on Corruption.
25 April 2022 – DIS demands additional information on the encryption software supplied by CRPTO to DCEC, which was provided three days later.
29 April 2022 – DIS demands officers Pilane and Mogapane to present themselves at their offices.
3rd – 4th May 2022 – DCEC offices sealed and a day later DIS demands to see DCEC officers Mfaso, Ntu, Mmipi and Ramokate. DCEC Director General writes to the Attorney General asking for his intervention in the simmering dispute. AG declines through a letter the following day.
