Fresh court records show how the Directorate on Corruption and Economic Crime (DCEC) senior officials S and B (for legal reasons names withheld) had sought permission from the agency’s Director General Tymon Katlholo to sue the Directorate of Intelligence and Services (DIS) for abuse of office.
According to the court record in the form of a complainant dated 14th January 2022, the two senior officials also sought to drag the spying agency to court for what they deemed to be unlawful dissemination of classified information contrary to Section 44 of CECA (Corruption and Economic Crime Act).
This arose from their alleged unlawful detention by the DIS and its officers. Court records show that the DCEC officers were advised to report to the Sebele office of the DIS consequent to a savingram request by the agency to interview the officers on undisclosed grounds.
They also indicate that the DIS interviews were premised on information divulged during the course of official DCEC work product.
In the official complaint against DIS filed with Katlholo, the two officers stated that, “We further request leave to institute a civil suit against the DIS and its above mentioned officers, and invariably the State for inhuman and degrading treatment suffered by ourselves; unlawful detention; 4.3. A declaratory seeking a sanction against the DIS and BPS and clarification of the role of BPS officers seconded to DIS.”
They said the envisaged suit against the BPS and DIS officers and the DIS will inevitably centre on investigations done by the DCEC and the scope of the protection availed to DCEC officers for conduct done in the course and scope of DCEC official duties.
The duo indicated that it is self-evident from the conduct of the DIS officers that there was nothing urgent about the information required by the DIS, justifying “our detention at its Sebele facility from 0830 hrs on the 16th December 2021 until 0200hrs on the 17th December 2021.”
“The information required by the DIS could have been obtained by a simple request to the DG-DCEC. What the DIS did was to seek to intimidate officers of the DCEC whom they knew were carrying out investigations against some of the DIS officers who were part of their investigation team,” the two officials of the DCEC stated.
They stated that this turn of events has a chilling effect not only on the functioning of the DCEC but also on the official conduct of officers of the DCEC as to how they conduct their official duties.
“In the events the request to sue is granted, we would further request to be advised as to the provision of legal representation as the unlawful detention and the degrading and inhuman treatment by the DIS was in relation to matters conducted by and on behalf of the DCEC,” they said.
Court documents in the form of minutes relating to the interrogation of the two DCES officers by DIS officers indicated that at about 2030hrs, on the 8th December 2021, both S and B received a call, from Deputy Director General-Operations (DDG-Ops) Israel, instructing them to report to the DIS Sebele Offices the following day, the 9th December 2021, at 0830hrs in connection with a “BURS (Botswana Unified Revenue Services) investigation relating to some guns.”
They state individually and separately inquired as to whether or not the Director General had authorised them to share information in respect of a “possible” (the reason behind the DIS request for a meeting was not known) investigation with the DIS officers.
“When they were advised that DDG-Ops had not yet consulted the DG, both requested her to speak to the DG-DCEC about the matter and obtain his consent,” the documents state.
In spite of requests as to what the interview was in connection with the DIS officers declined to give an answer, the documents said.
The DIS officers all declined to give their names and said they were conducting investigations into a matter of “National Security” and that the names of the two DCEC officers had come up during the investigations and they wanted to “close the investigation gap, the documents indicate.
“(B) requested to be formally advised as to whether they were going to be interviewed by DIS as suspects or whether they were going to be interviewed on something they had done in the course and scope of their official duties,” the documents state.
The documents also indicated that Katlholo had advised S and B that they ought to go and attend at DIS Sebele as requested; and that if the interview related to DCEC classified information or investigation cases, such information was protected by Section 19B of CECA and that they were not authorised to discuss same.
When they arrived at Sebele, nobody attended to B and S or informed them why they were called to DIS, save for the guard who told them that they had to wait at the parking lot until they were to be called to the office building.
The documents state that B and S on their own initiative went to the office building and requested to be allowed to go back to their office because no one seemed to have interest in attending to them.
They indicate that “one N (DIS Officer) then responded to them and said that he had been calling B’s phone the previous day and he didn’t answer, so B “must just wait.”. B then asked him whether he was punishing him for not answering his phone the previous day as he alleged; and N(officer of the DIS) responded by saying that they must just wait.
“B then demanded to know from him whether we were under arrest because if they were not under arrest then we must be allowed to leave; (N)’s response was that we must respect him,” the documents in the form of minutes also stated.
They show that S advised N that respect worked both ways and that it was disrespectful to be told to come for a meeting at 9am and then kept waiting for almost 3 hours without the courtesy of being advised the reasons for the delay, particularly so as the previous evening the time had been agreed and the need for punctuality was emphasised.
B and S again enquired from K (DIS officer) why they were kept at DIS offices without any explanation nor interest to attend to them and that they wanted to leave. She responded by saying that the officers were going to attend something at a road block by Sebele and they will attend to them when they come back.
The documents also indicate that B and S met DIS Director General at one of the event and related their DIS Sebele ordeal to him.
They informed him that they had been kept waiting by his officers at Sebele office since 0830 hrs without being attended to nor any explanation and not being allowed to leave.
Magosi then said it was discourteous of his officers to do that and that he was not aware of the interview since he only arrived in the country the previous day.
He then assured B and S that he would call his officers to order and that in fact when he concludes his meeting he would go to DIS Sebele.
The documents show that assured by Magosi’s comments, B and S reported to DIS Sebele the following day where they were again left unattended until when they insisted again that they want to leave. The guard at the gate refused to open the security gate for them to leave insisting that he was under instruction not to allow them to leave.
S made various calls to N requesting that they be allowed to leave as firstly, that they were not under arrest and had been specifically informed that they were not and secondly that it was clear that the DIS was not ready to conduct the interviews.
“(N) refused to allow them to leave. To which (S) advised that such conduct amounted to an unlawful detention,” the documents state.
It also emerges from the documents that during the course of S’ interview, he requested to be advised as to the nature of the interview and whether he and B were being treated as suspects or if the exercise related to DCEC official duties.
DIS officer, S (DIS officer) advised him that they were not suspects and that they were conducting an enquiry into matters of National Security and that they needed to “close all gaps in their investigations.”
The court records indicate that S advised the DIS officers that under the ISS (Intelligence and Security Services) Act they had no authority to investigate criminal matters; to which he was informed that that was understood and hence the presence of Botswana Police Service Officers seconded to DIS at the interview. S further advised that DIS had authority to investigate under the Arms and Ammunition Act.
Questions then arose as to an “investigation into Khama and Kgosi’s guns.”
S explained that the DCEC did not investigate “Guns”. N insisted that they, the investigation team were advised that B and S had investigated the alleged “Guns”.
The documents show that it was explained to them by S that if the team sought specific information it would be helpful to understand what exactly they were looking for.
“It was then disclosed, by the DIS officers, to (S) that they sought information into an investigation conducted by the BPS into various firearm imported into Botswana,” the document state.
They state that S advised the team that the DCEC had an investigation into an allegation of “abuse of office” but since that was an official investigation information into that matter, it would have to be obtained from the DCEC Director General, as the lawful custodian of DCEC Investigation Files.
“(S) further advised that despite various meetings with officials from BURS, there was no information or evidence warranting the matter being looked at further and that after consulting the then DG DCEC, Brig. Matambo (former DCEC Director General) that matter was shelved until the DIS, the source of the initial information to BPS would provide more clarity into the matter,” the documents state.
It was emphasised that Magosi had informed Matambo, S and B that the BPS investigations had been concluded and that the matter was ready for prosecution.
“That information was incorrect as the BPS investigations did not warrant prosecution on the evidence that they had at the time. (S) advised the team that for any information regarding the said investigations the team would have to seek it from DG (Director Genera) -DCEC,” the documents stated.
The team also focused on whether one government agency could “instruct” another to close an investigation or not pursue it further. As this was a legal issue more than an operational one, S advised them that such, as with the converse, could not be done lawfully. This appeared to cause the team some consternation, the documents show.
The documents indicate that B continued to state that upon meeting Botswana Police Deputy Commissioner Lesola and assessing the investigation docket, they then informed Commissioner Lesola that the matter does not relate to their mandate but for what it is worth they would request copies of the documents, of which he furnished being; savingrams, rifle licence and import documents.
B informed the DIS officers that he and S then informed their principal of their assessment of Commissioner Lesola’s docket, who in turn informed them to put it aside pending whatever developments may ensue from Commissioner Lesola’s investigation and further information from the DIS; the instruction was followed.
The result is that S and B believed that they were detained due to the fact that their freedom of movement was curtained and they were not permitted to leave the DIS Sebele compound.
“The difficulty that faces the conduct of the DIS in its interview of (S) and (B) is that the DCEC officers were treated as “suspects” in the course of the interviews even though it was purported that they were not so,” the documents indicate.
The interviews were conducted without a warrant permitting them to conduct interviews after 6pm.
“It cannot be gainsaid that the manner in which the information was sought was not conducted through normal information sharing channels. Had the information sought been conducted under the prevailing MoU and or under the respective provisions of CEC and ISS Acts the appropriate channels of DG to DG would have had to have been followed,” the documents said.
They were not, the documents indicated.
“In consequence therefore the detention of the DCEC officers was unlawful, the information obtained (such as it may have been) was unlawfully obtained. Neither the BPS (Botswana Police Services) officers nor those of the DIS followed due process and abused their purported authority to detain fellow law enforcement officers to the detriment of the said DCEC officer,” the document said.
