The Directorate of Intelligence and Security Services (DISS) through its Director General launched an ex parte application against the former President General Ian Khama before Justice Ranier Busang on Friday 19th November 2021. Because of some defects in documents submitted by DISS amongst others, Justice Busang dismissed the application with no costs order. Some legal experts have questioned whether the DISS Director General as a public officer had the necessary locus standi defined in law as ‘the right to bring an action, to be heard in court, or to address the Court on a matter before it’ to appear in court. In terms of Section 51(a) of the Constitution of Botswana, the primary mandate of the Directorate of Public Prosecutions is the prosecution of criminal cases before all courts of the land.
It therefore stands to reason that only the DPP had the lawful and legal standing to be the Applicant in the case in question than the DISS. If the argument that DISS did not have the necessary locus standi stands as a matter of fact and law, the urgent application should have been dismissed straightaway without hearing the merits. I am interested in legal scholars unpacking for us the poor souls why the DISS has been allowed by different judges as will be shown below, to so appear.
Given how this case developed and evolved since Friday, the legal representatives of former President Khama being the Ramalepa Attorneys, cried foul to the effect that they were not officially aware of the case against their client. Had they fully been involved in the case in terms of arguing and defending their client, it is probable the question of whether DISS as the Applicant was rightfully before Justice Busang would have arisen as a point in limine.
I am relying on the judgement of Garekwe J in the matter of defamation launched by Welheminah Mphoeng Maswabi commonly known as Butterfly (CVGBG-003015-20) as the Plaintiff and Six Defendants being Jako Hubona, DPP, DCEC, DISS, Botswana Police Services and the Attorney General on one hand and the opinion of Attorney Uyapo Ndadi on the other who sees everything wrong with the DIS appearing in court without the cover of DPP. Standing out in the Butterfly’s prayer was prayer 7 to the effect that ‘The Defendants are ordered to pay Plaintiff damages in the sum of P 30,000,000.00, jointly and severally, the one paying the others to be absolved’. In the end, Garekwe J held at paragraph 108 of her judgement that ‘To add to the above list, the Plaintiff has cited the wrong litigants. Her suit ought to have cited only the Attorney General and none of the first five Defendants’. If therefore the DISS could not be cited by Butterfly, it stands to reason the very same DISS could not be cited as the Applicant pursuing the Khama matter on the ticket of urgency. Could the difference be brought by the fact that Butterfly’s case was civil in nature while others bore a criminal aspect? I am unfortunately not competent to provide an answer.
Because the legality or otherwise of the DISS appearing before the judge is not mentioned anywhere in the judgement, I assume it was not raised by him during oral interactions with the DISS Counsel. If indeed this is the case, wouldn’t it have been appropriate for the judge to have raised it for the benefit of members of the public. I am just thinking aloud. I must hasten to say I am looking at this matter as an ordinary fellow from the next door and not someone law-savvy.
The DISS was also permitted to appear before Justice M. C. Gabanagae in the Case No UAHGB-000281-2 in which application to search and seize items listed in the search warrant from the properties of Khama, Kgosi and Sehunelo Khunou was granted. The Director General and the Directorate of Intelligence and Security Service was the Applicant. The DPP appears nowhere as the Applicant. Attorney Uyapo Ndadi wrote over the weekend that ‘I wonder where the DIS derive powers to prosecute or appear in court from. The Constitution gives the Attorney General (AG) powers to handle civil matters for or against the government and the DPP to prosecute. The DIS is just an office under OP, it is not a separate legal entity. OP can’t sue by themselves without AG and DPP, but the DIS can’. Strange! ’ I must hasten to point out that this is a loaded statement from Attorney Ndadi.
My layman’s interpretation of the same is that the DISS did not have the power to appear in court in the manner it did (save when represented by the DPP) nor does it have such power to do so. In the recent case (Case No CCMMVL-000168-21) in which the DISS was the prime mover in respect of the intelligence agency seeking the High Court concurrence to remove Magistrate Lindiwe Makgoro from the Issac Kgosi case and the bail she granted to him withdrawn, the DPP was rightfully cited some would posit as Applicant instead of the DISS. A question should be posed: what action if any did the the DPP take when one of its structure in this case the DPP arrogated to itself the powers it did not have based on the opinion of Attorney Ndadi? Has a precedent been set where other State structures will in future go to court to argue their cases by by-passing the DPP?
Based on the judgement of Garekwe J on Welheminah Mphoeng Maswabi’s defamation case and on the opinion of Attorney Uyapo Ndadi, it is fair and reasonable to conclude that the DISS did not have the locus standi to appear before Justices Busang and Gabanagae as an entity as opposed to being represented by the DPP. It is noted however that Garekwe J’s judgement dealt with a civil matter while other judges dealt with matters with criminal aspects. Whether these differences mean anything to determine the appropriateness or lack thereof of the locus standi is up to the legal scholars to determine. I am prepared to be persuaded otherwise as always. Judge for Yourself!
‘No one is safe until everyone is safe’. Covid-19 virus is still very much in our midst. Let us all adhere to all Covid-19 health and safety protocols to avoid the much talked about threat of the 4th wave.
