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LSB statement regarding criminal procedure & evidence (controlled investigations) bill

Correspondent | Monday February 7, 2022 06:00

In the spotlight: Mmusi PIC: PHATSIMO KAPENG
 
In the spotlight: Mmusi PIC: PHATSIMO KAPENG

The Society recognises the obligation of the Parliament to promulgate laws that are meant to sufficiently prevent crime and punish perpetrators.

These laws would, of necessity, include laws meant to detect intention to commit crime.

It is in the interest of the nation that it does so. Failure to do so would be an abdication of its responsibility and would render the country lawless and ungovernable.

The Society is also aware of the recommendations made to Governments by the Financial Action Task Force (FATF) and the pressure to implement such recommendations, especially with regard to combating money laundering and financing of terrorism.

Failure to implement the recommendations, where possible, results in a country being blacklisted by being added to a list of non-cooperative countries.

FATF however, does not, expressly, or implicitly; erode the right of individual countries to promulgate laws that are peculiar to their own national environment.

The nations retain their sovereignty and power to promulgate laws that are subject to the Constitutions of their states.

With the above in mind, the Society applauds the efforts of the Government to comply with the recommendations of FATF.

Failure to do so, to the extent necessary and possible, would not be in the best interest of the nation.

However, in an effort to comply with FATF recommendations, Parliament should be careful not to promulgate laws that erode the civil liberties of its citizens and promote abuse of power and statutory processes.

The Society takes the view that while laws of the nature of the Criminal Procedure & Evidence (Controlled Investigations) are recommended by FATF and have been introduced in other countries, the Bill tabled by Minister Mmusi, requires that the Minister should go back to the drawing board to re-think the Bill.

The following are but some of the grave concerns that are apparent from the Bill and call for its re-thinking:

  • The Bill places a greater human resource and intellectual burden on already overwhelmed courts. Courts are presently inundated with backlog and shortage of manpower. If such a Bill is to be passed, there is a need for the Bill to provide for the creation of specialised courts to deal with issues related to the Bill.
  • The Bill seems to assume that judicial officers are fully equipped to deal with issues related to the Bill. Special training of judicial officers assigned to deal exclusively with cases related to the Act would ensure the judicial officers are able to dispense justice, on an exparte basis, and avoid abuse of the processes under the Bill, and safeguarding the rights of the subjects, who would not be aware of proceedings against them in court.
  • The Bill empowers investigating officers to exceed the authority granted to them by the courts, knowing that evidence obtained outside of the mandate of the court may ultimately be admitted in evidence.
This it does by making provision for the admission of evidence obtained in excess of the authority granted by the court.

There might never be a case where investigating officers do not exceed their mandates under the warrants issued by the courts.
  • The Bill empowers the minister to give directions as to the retention of records and information obtained under the Bill that is not required for investigative or evidentiary purposes, for such purpose and period as he may determine.
The minister is a political operative and should have no role at all in the use or retention of information obtained during criminal investigations.

That is the role of the courts and investigating and/or prosecuting authorities.
  • The Bill proscribes the institution of legal proceedings against persons who carry out duties under the Bill.
This is a licence to the abuse of the law, with the full knowledge that there will be no consequences for the abuse.

The Constitution entitles citizens and any person in the Country to protection of the law, and the right to sue where the law has been violated in respect to them.

It is doubtful if the prohibition to institute legal proceedings against those who abuse and violate the law would pass the constitutional test.

The Bill empowers heads of investigatory authorities to usurp the role of the courts, by granting authority to operate under cover without the authority of the courts.

There is no reason why the courts cannot be empowered to, under a certificate of urgency consider the granting of warrants, while other available laws are employed to mitigate for any possible prejudice to the cause of justice.

Heads of investigatory authorities are persons with interests to criminal investigations and should not be given the appearance of arbiters.

They have been shown in various decisions of courts to not only misconstrue the law but abuse it as well.
  • The Bill does not make provision for applications for freedom of information and appears to proscribe the release of information even to those aggrieved by the abuse of the provisions of the Bill.
Such a law is not desirable in a constitutional democracy like Botswana.
  • The Bill seeks to legitimise fake identities. While the employment of assumed
identities is a necessity for undercover investigations, going to the extent of registering the assumed identities (fake names) is taking it too far. Assumed identities should have their separate registers and should not in any way be mixed with real identities as suggested in the Bill. The abuse of these assumed identities may never be detected, for as long as the names appear in official registers and public registers.
  • The Bill leaves it to investigating officers and to some extent the court on review, to determine if a cancellation of the assumed identity is necessary. We may have a situation where owing the oversight or negligence of either or both the court and investigating officer, an assumed identity is perpetually legal and valid even after it has outlived its purpose. There will therefore be many people that exist on paper, but not in reality.
  • The Bill criminalises the disclosure of information obtained under it, except if the disclosure is under any written law or under an order of the court. It, however, fails to state who is entitled to approach the court for an order to compel the disclosure, and the circumstances under which the court may order the disclosure. This appears to be a veiled repeat of the tenure of the Bill to deny aggrieved persons to information obtained under the Bill.
  • While the Bill is said to be motivated by the need to implement recommendations of FATF, the Bill relates to offences attracting fines as little as P500 and imprisonment of six months. While the Society does not trivialise any criminal offence, the extent of the overreach of the Bill into the privacy of citizens should be reserved for sufficiently serious offences, to avoid the abuse of the Bill under the guise of going after petty crimes that can be effectively dealt with under already existing laws. Examples of offences that may not warrant the egregious encroach into civil liberties include the following:
a. expression of hatred contrary to section 92 of the Penal Code (attracting a fine of not more than P500);

b. Discrimination contrary to section 94 of the Penal Code (attracting a fine of not more than P500 or a sentence of not more than six months or both);

c. Destruction of Statutory documents contrary to section 135 of the Penal Code (attracting a fine of not more than P500 or a sentence of not more than six months); and

d. Idle or disorderly persons contrary to section 179 of the Penal Code (attracting a fine of not more than P500 or a sentence of not more than six months or both).

In the event Minister Mmusi does not heed the plea to re-think the Bill, the Society implores all Members of Parliament to vote against the Bill. In the event the Parliament passes the Bill, we implore His Excellency the President of the Republic of Botswana, Dr. Mokgweetsi Eric Keabetswe Masisi to withhold his assent to the Bill under section 87 (2) of the Constitution.

*Issued by the Council of the Law Society of Botswana on February 2, 2022