Monday, December 6, 2021

Top lawyer says stand-off between Gazette and DCEC could have been avoided

The two day stand-off between officers from the Directorate on Corruption and Economic Crime (DCEC) and The Botswana Gazette could have been avoided if the officers had simply indicated that the newspaper had published an article that could possibly compromise DCEC investigations, Sunday Standard can reveal. DCEC and Gazette were embroiled in a two day public spat over an article that the newspaper had published detailing corrupt activities by Botswana Democratic Party (BDP) heavyweights and high ranking government officials relating to a P150 million fuel supply tender at Botswana Oil.

On Wednesday last week, DCEC officers descended on the Gazette offices brandishing a search and seize warrant and demanding access to the Gazette premises. Sunday Standard can reveal that on many occasions during the two day standoff, Gazette attorney Joao Salbany gave DCEC officers numerous occasions to state whether the Gazette was under investigation for any corrupt acts and whether the newspaper had obstructed investigations by publishing any articles, but to no avail.

“They simply said they didn’t need to tell us anything because they had a warrant. We stood our ground and we were arrested,” said Salbany in an interview. After securing the release of the Gazette journalists, attorney Unoda Mack also said the stand-off could have been avoided if the DCEC officers had simply revealed that the Gazette had compromised investigations. “The matter was simple and straightforward. I still don’t understand why they failed to reveal that they were conducting investigations into individuals who were named in the article. We only agreed to grant them access to the Gazette premises and secure the release of the journalists after they told us that they were conducting investigations. They also feared that the Gazette will publish additional information that would further compromise their investigations,” said Mack. He explained that they were obliged by the law not to compromise DCEC investigations.

On May 7th the DCEC released a media statement confirming that that Shike Olsen, Innocent Selatlhwa and Lawrence Seretse, together with their attorney Salbany were “brought in for questioning” in connection with Section 44 of the Corruption and Economic Crime Act (CECA) which prohibits divulging information on an ongoing investigation. The DCEC stated that Gazette had contravened the Act by publishing an article related to Botswana Oil.

“The Gazette wrote an article insinuating that the DCEC was investigating a matter involving a deported Zambian national Jerry Chitube while their lawyer was detained for obstructing justice,” read the DCEC release. When responding to the DCEC press statement, Salbany said: “It’s really shocking that they released a statement like that because we gave them numerous opportunities over the last two days explain, but they refused.”

He further said the charges were unsustainable because DCEC failed to caution Gazette not to publish the story when responding to a questionnaire from the newspaper. In the said article, the Gazette quotes a DCEC officer saying he “could not confirm or deny” allegations that they were investigating the matter. Signed by a Magistrate, the DCEC warrant authorised them to enter, search the premises and seize or detain anything they had reason to believe contains evidence of offences related to Part IV of the Corruption and Economic Crime Act (CECA).

However, Salbany advised the officers to seek further legal advice because their warrant was ambiguous as it did not refer to any particular article or particular computer to be seized. He also reminded them that they were obliged to inform Gazette if they filed a new application so that the newspaper could respond to their application in court. Around 3 pm, the officers left to seek further instructions from their superiors.

They returned at around 6 pm, armed with a new warrant, and immediately demanded access to the Gazette premises. They only produced the new warrant at 7:30 pm, at which time Salbany reminded them that section 51(2) of the Criminal Proceedings and Evidence Act states that warrants should not be effected at night. The DCEC officers then produced a warrant of arrest for Gazette journalist Innocent Selatlhwa. “Innocent had been available throughout the day but they never tried to arrest him. So I told them that they were acting in bad faith,” said Salbany. The DCEC officers then proposed as deal in which they would not arrest Selatlhwa if they were granted access into the Gazette premises. Salbany and his clients refused, saying Selatlhwa was available and ready to be arrested.

In the end, it was agreed that the DCEC officers could seal off the Gazette premises. The two parted ways at 8 pm with an agreement to meet the next morning. While resting at his home on Wednesday night, Salbany got a chance to peruse the warrant of arrest against Selatlhwa and the search warrant against the Gazette premises. He realised that Selatlhwa’s warrant of arrest was issued under section 44 of the DCEC Act, which deals with revealing information that is part of DCEC investigations and falls under Part VI of the CECA. On the other hand, the search and seizure warrant against the Gazette was issued pursuant to a complaint by DCEC that the newspaper had committed an offence against Part IV of the Act.

“The search warrant was a part IV and not part VI warrant. I immediately advised the DCEC officers that they had erred. I also advised them to inform Gazette reporters if they were being investigated for corruption or their story had compromised investigations. They refused to heed my advice,” said Salbany. After a protracted argument over the law, the DCEC officers arrested Olsen, Selatlhwa and Seretse. At the DCEC offices, Salbany once again explained to the DCEC officers that all what they needed to know was if they were being investigated for any corrupt acts and whether by publishing the article they had obstructed any DCEC investigations. “Once again they refused to indicate such.

They simply said they didn’t need to tell us anything because they had a warrant,” he said. While at DCEC offices, Salbany was arrested for obstructing justice and later released after his lawyer, Duma Boko intervened. During his arrest and detention, Unoda Mack took over as the Gazette attorney and managed to extract an admission from DCEC officers that they were investigating a matter relating to the Gazette story. It was then that he agreed to grant them access to the Gazette premises in return for the release of the Gazette trio.

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