The Court of Appeal (CoA) has ruled that the search warrant executed by the Directorate of Intelligence and Security (DIS) against Anthony Khama in 2021 is not enforceable or executable against his exclusive personal property. The Court found that the seizure of his personal property from Kenmoir Farm on the strength of the search warrant was irrational and unlawful, adding Anthony is entitled to the return of all his property seized during the search conducted in October 2021 at the farm, registered under his elder brother and former President Ian Khama. On October 21st, 2021, the DIS applied in terms of section 22 of the Intelligence and Security Service Act for entry, search and seizure warrant against former president Ian Khama, former DIS Director General Isaac Kgosi, and one Sehunelo Khunou.
The search warrant sought to seize 18 firearms and ammunition registered in the names of the three and/or firearms and ammunition possessed by them and believed to be illegally possessed or believed to constitute evidence of various crimes listed therein. The search warrant listed the specific firearms. The application was granted and a search warrant was issued against several immovable properties of the Khama, Kgosi, and khunou. Kenmoir Farm in which Anthony resided was also the subject of the entry, search and seizure warrant. The Court heard how (acting on the strength of the warrant) the DIS searched Kenmoir Farm and seized several properties belonging to the Anthony. Aggrieved by the entry, search and seizure, the Anthony lodged an urgent application on October 29, 2021.
He sought, among others: an order declaring that the search warrant is not enforceable or executable against his exclusive personal property or that of his immediate family; An order declaring that the seizure of his personal property from Kenmoir Farm on the October 27, 2021 on the purported strength of the search was unlawful; An order declaring that the he is entitled to the immediate return of all his personal property seized during the searches. Anthony’s urgent application was however successfully opposed by the DIS.
Anthony filed an appeal at CoA in December 2021 on the grounds that-The search warrant granted against the specified individuals being Ian Khama, Kgosi, and khunou was not executable against his (Anthony) exclusive personal property seized from Kenmoir Farm in October 2021; that the Court below further erred in law in holding that he was not entitled to the return of all his personal property seized during the search conducted at Kenmoir Farm on the 27th October 2021; The High Court ought to have held that the search warrant did not, in light of the search warrant application, authorized the seizure of the his exclusive property; and that he was entitled to the return of all his personal property seized during the search. “Section 8 of the Constitution of Botswana protects a person against compulsory taking of possession of his or her property by the State unless it is necessary to do so for the purpose of investigation,” CoA said in its ruling.
“Law enforcement agencies should be authorized by the court through issuance of warrants to take possession of properties of individuals in the cause of criminal investigations unless where the law provides otherwise under limited circumstances (See for instance section 52 of the Criminal Procedure and Evidence Act) and even there, there is judicial oversight.”
The three judge panel of Justices Tebogo Tau, Isaac Lesetedi, and Singh Walia cited Section 9(1) of the Constitution saying it also protects individuals against unlawful searches. It provides that :”( 1) except with his or her own consent, no person shall be subjected to the search of his or her person or his or her property or the entry by others on his or her premises.” The DIS however argued that the warrant was structured to include the search and seizure of anything which is or contains evidence of the commission of any offence referred to in the Intelligence and Security Act, the Penal Code and the Arms and Ammunitions Act.
They argued further that the important part of the investigations of crime is obtaining of evidence through search and seizure and that such search warrants serve an important purpose in the fight against crime. The CoA however found that is a creature of statute and its powers are prescribed and circumscribed by the DIS Act. That the powers of search and seizure conferred by Section 22 of the Act can only be exercised in relation to offences stipulated in the Act. “None of those offences form the basis of the application for the warrant. The warrant was therefore unlawfully obtained,” the tree Justices ruled unanimously. The DIS are to pay the costs of the application.