Self-exiled Former President Ian Khama has launched an urgent application before the High Court to challenge a Warrant of Arrest issued against him by Broadhurst Regional Magistrate, Mareledi Dipate on December 29th, 2022.
Citing the Directorate of Public Prosecutions and Dipate as First and Second Respondents respectively, Khama argues that the criminal case leading to the issuance of the warrant be reviewed and set aside.
He also argues that Regional Magistrate Dipate should dispatch a record of proceedings within 14 days or avail a written explanation for lack of the record.
He wants the arrest warrant to be declared invalid and unlawful and that “any other steps that may have been taken based on the said warrant of arrest are hereby set aside or stayed pending the finalization of this application and the review application lodged and registered under High Court Case Number: MAHGB-000673-22, filed on the 19th of August 2022”.
However, the DPP has dismissed the urgency of the application saying it is fatally flawed in that it did not comply with procedures and requirements of a civil suit and should be struck off the roll or dismissed with costs.
The DPP further says Khama has failed to demonstrate the urgency of his application, or to provide reasons for the urgency.
“His allegation that his arrest is imminent is palpably untrue. The supporting affidavits filed in support hereof demonstrate that the arrest or the ultimate arrest of the applicant is a long-drawn-out process. The applicant’s alleged strong belief that his arrest is imminent is ill founded”.
SADC PROTOCOL ON EXTRADITION
The DPP argues that the arrest warrant is consistent with the 2002 SADC Protocol on Extradition.
“The applicant has not even alleged that he intends to return to Botswana any time soon. In any event upon return the applicant may still be arrested without a warrant and brought before Court given that the offences with which he is charged do not fall within Part II of the First schedule to the Criminal Procedure and Evidence Act. It is therefore clear that the warrant of arrest is only required for the purposes of extraditing the applicant in terms of the relevant legislation and treaties”.
Meanwhile, Article 4 (b) of the SADC Protocol on Extradition says if the Requested State has substantial grounds for believing that the request for extradition has been made for purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, ethnic origin, political opinion, sex or status or that the person’s position may be prejudiced for any of those reasons, then it may be refused.
The Article further says the extradition may be refused, “If the offence for which extradition is requested constitutes an offense under military law, which is not an offence under ordinary criminal law.
Lastly, the DPP further argues that Khama has not demonstrated that his arrest will result in irreparable damage to his dignity and a well-grounded apprehension of a prejudicial act on the part of the respondent.
Justice Dr Godfrey Radijeng is expected to make a ruling on Friday on the validity of the Arrest Warrant.
