The Court of Appeal (CoA) has delivered a split decision in favour of Ian Khama in the case in which the Directorate of Intelligence and Security (DIS) appealed a High Court decision to dismiss their search warrant application against Khama’s official residence.
Justices Singh Walia, Isaac Lesetedi, Tebogo Tau were in the majority with Mercy Garekwe and Leatile Dambe delivering the minority judgement.
The appeal drew public attention recently following Khama’s decision not to contest on the basis of what he said was political interference with the judiciary.
Khama’s attorneys Unoda Mack, Victor Ramalepa, and Tebogo Tladi recused themselves following the refusal by Judge President Tau to constitute a panel of “neutral” judges to preside over the appeal. The matter continued anyway.
The CoA however found that the lawyers’ non-participation did not connote withdrawal of the opposition or pleadings and heads of argument filed in supplementing the record and heads of argument filed in the appeal.
The DIS had sought to appeal against the High Court judgment of justice Ranier Busang on November 21st, 2021 which dismissed their application to conduct a search of Khama’s official residence and seize items including firearms and ammunition as listed in the search warrant.
The application followed another dismissal by Justice Chris Gabanagae earlier in the day which interlocutory application aimed to add Khama’s official residence (State House 4) to the list of premises for which warrant Gabanagae had already issued. Not satisfied with the findings in the initial residences the DIS claimed in subsequent applications that they had erroneously left out State House 4.
“The Applicant (DIS) believes that there are reasonable grounds to believe that a search of State House 4 may result in the collection of evidence that is relevant to ongoing investigations. The Applicant does not mention anything about the status of evidence collected to date or anything outstanding in relation to the search of the 23rd October, necessitating a further search of State House 4,” Busang had said in his judgement.
He said as the history of the case indicated, the matter was previously before Court and it had been reinstated in what one may call “a second bite at the cherry”. Justice Busang said he needed to be satisfied that the reasons given for the omission of State House 4 in the initial application to Justice Gabanagae were sound and convincing.
Busang said (among other reasons) the statement by DIS did not say how the omission of State House 4 occurred and what caused it given that the Khama is for the most part resident at the House. “In my judgment, a bald and unsubstantiated statement would not suffice for purposes of explaining the omission.”
A majority judgement of the CoA, delivered by Justice Walia, echoed Justice Busang’s sentiments. The CoA also found that the powers of search and seizure conferred by section 22 of the Intelligence and Security Services (ISS) Act may be exercised only in relation to offences prescribed in the Act. Walia said none of the offences forming the basis of the application for the warrant are offences prescribed in the ISS Act. “They are offences under the Penal Code and the Arms and Ammunition Act.” Justice Walia said bringing those offences under the guise of threat to national security is not only disingenuous but gross abuse of power by officers of the DIS. He said there was nothing in their papers to show how or why the possession by Khama of the arms and ammunition in question presents a threat to the security of the nation.
In her dissenting judgement Justice Garekwe argued (among other reasons) that Section 22 of the Act refers to any activity directed at undermining, or directed at or intended to bring about destruction or overthrow of, the constitutionally established system of the Government of Botswana by unlawful means.
“This in a nutshell refers to the offence of treason. In the context of the justification for the State House 4 search warrant, the Appellant (DIS) has averred that there is information pointing to the commission or possible commission of offences under the Penal code and the Arms and Ammunition Act which offences constitute threat to national security.”
Garekwe said former DIS Director General Isaac Kgosi’s utterances that he will topple the Government were a trigger to what eventually led to the need to search Khama’s properties.
“The preliminary investigations have shown that he and Khama are in or likely to be in possession of arms of war, among other allegations. Arms of war can be used to topple a sitting Government. Possession of arms of war, in and of itself, is an activity or act which is a threat to national security. Possession of arms of war is in addition an offence created under the Arms and Ammunition Act.”
Justice Garekwe argued that threat to topple Government is an offence created under the Penal Code (Treason Sections 34, 36 and 37(c) thereof). The ISS Act, she said, is a relatively new piece of legislation which only came into effect in April 2008. “It necessarily ought to be read in conjunction with and interpreted with reference to other pieces of legislation.”