Saturday, June 3, 2023

Legality of police arbitrary searches put in the spotlight

A formal complaint has been lodged with Police Commissioner Thebeyame Tsimako and Security Minister Ndelu Seretse over the legality of arbitrary searches conducted by police officers on people.
These searches mainly apply to people using public transport.

The Human Rights Group, Ditshwanelo, has also been roped in to consider the matter given that such searches by police have become habitual and widespread.

Mr. Richard White of Gaborone says sometime on the 14th April 2009, during the Easter Holidays, AT&T Monnakgotla bus from Gaborone in which he was a passenger was stopped at a road block near Khisa along the Tsabong road.
The police ordered all passengers to leave the bus and to produce their identity cards as well as to submit their luggage for searching

Mr. White said he immediately pointed to the officer in charge that what was happening appeared to be an arbitrary search, which is contrary to the provisions of the Constitution of Botswana.

“I then asked what lawful authority the officers had to be searching passengers and was informed that searches are permitted under the penal code,” said Mr. White.

He said he disputed this and pointed out that a search without warrant is only permitted in restricted circumstances where an officer has reason to believe that a particular person may have specified unlawful items in his possession.

“I also pointed out that such general or random searches are an abuse of police power and a violation of the citizens’ rights.”

Asked what it was that they were searching for, the officers replied that they were searching for “anything illegal”.

“I pointed out that such a search is completely unlawful. It constitutes a fishing expedition which is clearly prohibited under the Constitution,” said Mr. White.

“I was then informed that if I did not permit the officers to search my baggage I would be prevented from re-boarding the bus and detained at Khisa until such time as I agreed to be searched. A standoff ensued until I eventually agreed under duress, which I clearly expressed. The entire contents of my bag, including my medication were then picked over by the officers in full public view. I was not the only passenger to be subjected to this indignity, which is a blatant abuse of my rights as a citizen,” says Mr. White before adding that “this procedure, which is commonplace, is a blatant infringement of the citizens’ rights to privacy and to protection from arbitrary detention and search”.

Mr. White said when he called Minister Seretse to complain, the minister replied that so far as he was concerned, the police were acting lawfully in setting up roadblocks and searching all and sundry who pass.
The minister said he has no problem with what is going on and that the public should be grateful to the police for being vigilant and proactive, before adding that “any lawyer who holds otherwise is merely hoping for a fee”.

Contacted by Sunday Standard on the legality of such searches, a law lecturer at the University of Botswana who teaches Criminal Procedure, Mr. Kabelo Lebotse, said random searches that are not informed by suspicion lack legal pedigree, “unless of course there is a reason to suspect that people who travel by bus are given to committing crime”.

Mr. Lebotse said stop and search should depend on circumstances like when a person is found to be “carrying equipment or implements at night”.
Another law lecturer at the University of Botswana, Mr. Bugalo Maripe, concurred saying general, routine searches are illegal.

“Routine searches shouldn’t be right. Searches should only be informed by solid grounds of suspicion,” he said.


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