Police stop and search put officers in trouble
Mpho Mokwape | Tuesday March 22, 2022 06:00
The officers, inspector Kenneth Mange and constable Baakile Ramorethwa represented by the Attorney General, cited as the first respondent has been ordered to pay damages in the amount of P35000 to Martin Dingake for unlawful arrest and detention during a stop and search operation in 2019. On Friday Justice Godfrey Radijeng of the Gaborone High Court granted the judgment in favour of the lawyer after he took the police officers to court for arresting him while jogging or running at night following his refusal to be searched without a warrant.
The judge explained that he found the arrest unlawful after the victim led evidence that he was detained for about two hours while the police merely said that they took him to the police station for about 20 minutes. “I take the view that he was arrested on the side of the road and not at the station and that it is more probable that the period of time he was under the control of the police is as he has asserted.
This is also informed by the lack of direct evidence to controvert his evidence on the period of arrest,” he said. Justice Radijeng said an objective assessment of the evidence of the police did not lend itself to the conclusion that the suspicion that the complainant had or was about to commit an offence fell within grounds capable of explanation or frame of reasonableness. He pointed out that the police’s evidence fell short and most times they could not counter the complainant’s evidence and that he was not even persuaded that a mere fact that plaintiff came out running on the pavement and failed to stop immediately when called by the police was reasonable enough for a suspicion. “It seems to me on the basis of their evidence, that the police were on a fishing expedition and particularly so in relation to the plaintiff.
The suspicion they formed in my view falls short of the objective test and in conclusion, they have failed to discharge any reasons and I find the arrest was unlawful,” the judge said. At the heart of the dispute was that on February 2, 2019 around 8pm the lawyer was jogging along the Western Bypass towards Molapo Crossing Mall enroute from Botswana Television (Btv) roundabout when four police officers and mainly inspector Mange and constable Ramorethwa stopped him and sought to conduct a search on him. Dingake, in his papers, said the two officers operating within the scope of their work wanted to conduct a search on him without his consent and search warrant while having no reasonable belief nor basis that he was about to commit an offence or had committed an offence.
He asserted that he refused to be searched and thereupon the two officers proceeded to place him under arrest at or around 8.20pm and only releasing him at or around 10.20pm without a charge or having searched him. “The plaintiff asserts in his declaration that by placing him under arrest, they took away his liberty without justifiable cause thereby insulting his dignity and that he suffered general damages.
He asserts that despite lawful demand, the defendants have failed or refused to pay him the claim,” read the papers. The police represented by the attorney general opposed the action pleading that that the complainant was running from the bush in a crime prone area at that time of the day. They asserted that he was arrested along western bypass road during police stop, question and search operation. “The defendants asserted that they came across the plaintiff in a chase wherein he became aggressive.
They explained to him that they would like to conduct a search as he was seen running from the bush at the time of the night. He refused to cooperate and was taken to Gaborone West Police Station where search was conducted and he was released immediately,” explained police papers.