Botswana Defence Force (BDF) members who were involved in the killing of Namibians and their Zambian cousin could be arraigned before the International Criminal Court (ICC) in the event that President Mokgweetsi Masisi is not held liable for the shoot to kill policy.
The deceased are Martin Munilweye Nchindo, Ernest Nchindo, Tommy Sinvula Nchindo and Sivula Munyeme. The four deceased persons died on the night of the 5th November 2020, in the waters of the Chobe River (Southern Channel) near Sedudu/Kasikili Island in Botswana.
In a letter addressed to the ICC’s Prosecution Unit, the secretary general of Namibian pressure group, Caprivi Concerned Group, Edwin Samati states that Botswana has a policy of shoot to kill which is applied by the BDF in the force’s operations or war against poaching. “This policy”, Samati said, entails shooting suspected poachers with the intent to kill without bringing them through a judicial process,” he said in fresh documents seen by Sunday Standard.
Samati said if the shoot-to-kill policy exists in Botswana’s legal system with clear objectives and rules of application, then the soldiers responsible, should not be prosecuted but rather the “principle respondeat superior should apply if the policy is not consistent with international human rights or humanitarian law, or the ICC Statute.”
In legal terms, the respondeat superior is a doctrine that makes a master liable for the wrong of a servant.
Samati’s letter states that in the event that the principle respondeat superior is applied, either BDF Commander in Chief, Masisi, or BDF Army General, Lieutenant General Placid Diratsagae Segokgo, or BDF Joint Task Force Commander for the Chobe and Ngami District, Lieutenant Kennel Samuel Okgethilwe Tselayakhumo be held accountable.
However, if such policy does not exist in the national laws of Botswana, members (Unit) of Botswana Defence force who were involved in the operation or incident, whose names are mentioned in Kasane Regional Magistrate Taboka Mopipi inquest ruling, should be investigated and prosecuted for murder under the ICC statute.
Samati said then BDF members who killed the four fishermen are the ones to be held individually liable for the deaths if Botswana has no policy of shoot to kill in anti-poaching operations or acted outside internationally recognised procedures to deal with unarmed suspects.
He said they are: “Lieutenant Moreri Kenneth Mphela, Sergeant Ndingisano Nfazo Sergeant Puisano Pistor Kgokong, Private Mbikiso Tafila, Private Emmanuel Moganetsi Majuta, Private Barulaganyi Rannosang and Private Oromilwe Motlhabi.”
Samati stated further that: “This case requires an extensive and independent investigation to ensure the international standard of justice. It can also assist in preventing unlawful killing of human beings with impunity by BDF members, and to help the families of the deceased to find closure over the case.”
He said as a civil rights petitioner in Caprivi Strip, Caprivi Concerned Group (CCG) submits that the Prosecutor at “the International Criminal Court investigates the recent case of extrajudicial killing or murder involving four fishermen who were killed by BDF anti-poaching unit on 5 November 2020 in Chobe River, as a crime against humanity under the International Criminal Court statute, and ensure Justice.”
He said while Botswana claims that the deceased in the November 5 2020 incidence were armed, a joint investigation by Botswana and Namibia could not retrieve the firearm(s) carried or used by the fishermen in the area where they were shot dead.
“Botswana authorities instituted an inquest in this case to determine, inter alia, the cause of death for the four fishermen and the probability of the perpetrators to be held criminal liability, and the court found that the fishermen all died from gunshot wounds by the BDF but further ruled that the perpetrators would not be held criminally liable for the deaths,” he said.
Samati said Botswana signed and ratified the ICC Rome Statute on 8 September 2000. He said Botswana failed to genuinely carry out an investigation in the matter, as evidenced in the Magistrate ruling on the inquest in the killing of the four men.
“The decision not to prosecute the perpetrators was based on a claim by the state that the injuries leading to the death of the four fishermen were incurred when BDF returned fire, a claim that was not corroborated by any evidence and which could not be corroborated by an incomplete investigation,” Samati informed ICC. He argued that basing a decision on incomplete investigation and without relevant or convincing evidence on a serious case as this one suggests unwillingness of the State genuinely to prosecute.
“Apart from an incomplete investigation, the post-mortem was deliberately not done impartially and or independently and the court disregarded the post mortem findings of a Namibian doctor,” said Samati. He added that; “The right to life is codified in major international human rights treaties, and is now a jus cogens. Deprivation of life is a serious crime under international law, a crime against humanity under the Statute of this Court.”
He said the killings or the policy, that Kasane Regional Magistrate Taboka Mopipi referred to as the “Standard of Operation Procedures”, in her ruling “enjoy the influence and protection of the political and military authority of Botswana, and is mainly applied (targeted) to foreigners.”
“The finding in paragraph 114 of the ruling that the action of the seven BDF members did not amount to negligence to constitute criminal liability for the deaths of the four fishermen suggests that the perpetrators complied with the “Standard of Operation Procedures” which requires them to shoot with the intention to kill, without judicial process whether the victim is armed or not,” said Samati.
Replying to Samati’s letter, Head of Information and Evidence Unit Office of the Prosecutor at ICC, Mark Dillon, stated in a letter dated 1st August stated that; “We will give consideration to this communication, as appropriate, in accordance with the provisions of the Rome Statute of International Criminal Court.”
He added that; “As soon as a decision is reached, we will inform you, I writing, and provide you with reasons for this decision.”
Immediate comment from the Ministry of Foreign Affairs and International Cooperation was not available.
