Operate within the law—Court tells DIS
Mpho Mokwape | Tuesday November 8, 2022 06:00
The Court of Appeal said on Friday the DIS was "a creature of statute and its powers are prescribed and circumscribed by the Act" when it ordered that the spy unit returns Anthony Khama’s property to him.
The DIS had seized Khama's property including personal firearms in 2021 after searching his Kenmoir Farm. Now the CoA bench of Judge President Tebogo Tau and Justices Isaac Lesetedi and Lakhvinder Singh Walia has said the search warrant used against Khama was unlawfully obtained.
“The powers of search and seizure conferred by the Act can only be exercised in relation to offences stipulated in the Act.
None of those offences formed the basis of the application of the warrant. Therefore, the warrant was thus unlawfully obtained,” said the bench. Justice Tau, when reading the judgment, explained that Khama was entitled to the return of all his property seized during the search conducted on October 27 and 28, 2021 at Kenmoir Farm.
She ordered the DIS to pay the costs of Khama’s appeal pointing out that the search warrant was not enforceable or executable against Khama’s exclusive personal property and that the seizure on the strength of the search warrant was irrational and unlawful. The judge emphasised that Khama was not part of the DIS investigations therefore his personal property should have never been taken in the first place.
She added, more so that law enforcement agencies should be authorised by the court through issuance of warrants to take possession of properties of individuals in the cause of criminal investigations unless where the law provides otherwise under limited circumstances. “The Constitution of Botswana protects a person against the compulsory taking of possession of his or her property by the State unless it is necessary to do so for the purpose of investigation.
"The Constitution also protects individuals against unlawful searches while the common law has also developed principles to safeguard individuals against abuse by law enforcement officers by providing for strict scrutinisation of search warrants." She further explained that there was no dispute that the search warrant did not name Khama (Anthony), his firearms and any items belonging to him which were not listed or described in the search warrant. Also, there was no reasonable suspicion against him or evidence of him having been subject to investigations and none of the items seized by the search team belonged to any of those listed on the search warrant.
“The warrant did not include the property of Khama. In striking the balance between his interests of him and those of the State, I am of the view that his interests to be protected against invasion of his privacy far outweigh those of the State, especially as there was no reasonable suspicion that he has committed any offence nor was there information justifying resort to the seizure of his property.
The High Court judge was therefore wrong in his findings that the search warrant permitted the search of Khama’s property,” she explained. Khama’s (Anthony) victory at the highest court follows his fight since 2021 to have the DIS return his property.
The seized properties were his firearms, computers, pellet guns, air guns, and portable radios.