Khama was a security threat – Garekwe
Mpho Mokwape | Monday November 28, 2022 06:00
In a dissenting judgement she issued for the DIS appeal against Khama about the search warrant for his State House, Justice Garekwe disagreed with her counterparts Judge President Tebogo Tau, Justices Isaac Lesetedi, Lakhvinder Singh Walia and was backed by Leatile Dambe. The three judges had made a judgement agreeing with the High Court that the DIS had no right to search the State House because there was non-disclosure of information before Justice Ranier Busang of the High Court. But Justice Garekwe is of the opinion that the judges should have looked more into the security of the country than Khama’s privacy especially that the DIS was looking for arms and ammunition.
Justice Garekwe explained that with the suspicion that Khama was likely to be in possession of arms of war and one such being an Ak-47 assault rifle, it should have been enough for the warrant to be issued because the gun was not licensed for ownership by individuals in the country. “If Khama is in possession of such A weapon, how did he possess same and for what purpose? The DIS affidavits have linked Khama to Isaac Kgosi’s search, which was conducted after he threatened to topple the government,” Garekwe questioned. She pointed out that it was then discovered that between Khama and Kgosi, a substantial number of firearms inclusive of arms of war have been procured under circumstances that boarder on unlawfulness. For instance, she said some were not licensed or were improperly licensed but never inventorised or found their way into the state armoury.
The judge also noted that it was then unnecessary for the DIS, for purposes of laying a justification for issuance of a search warrant, to go into great length to give full description of the arms of war included in the list of the firearms. “I gave the above example in order to cement my disagreement with the conclusion that it is not clear from the DIS’s affidavit that the arms and ammunition in Khama’s possession present a threat to national security because it does,” she said. Moreover Justice Garekwe pointed out that the possession of an arm of war was a threat to the security of the nation and one needs not to make verbal or physical threats first before he was taken to task on the basis of such possession. On the non-disclosure of information by the DIS that the majority judgement focused on, Justice Garekwe said she did not agree with the conclusion that the non-disclosure of the striking out of the second application before High Court’s Justice Chris Gabanagae was a material fact in the Justice Busang application. She explained that it should have not been the deciding factor in the matter though her dissenting judgment failed to stand due to the majority rule. “The undisclosed information was not material to a just and informed decision to be made by the court neither would the information have swayed the court to come to a decision detrimental to Khama,” she said. Garekwe explained that the purpose of the search warrant sought was simply to aid the ongoing investigations and that in taking part of such investigations, the DIS was not seeking to prosecute the matter as that was a role for the Directorate of Public Prosecutions after investigations were completed.
“I find that the requirements of a need to search State House 4 have been satisfied and that the High Court ought to have done more than just confine itself to looking at Khama’s right to privacy without weighing such right with the security needs of the country as a whole,” she said. In her reasons, Justice Garekwe said the DIS was not usurping the powers of the other law enforcement agencies but worked in collaboration with such agencies because the founding affidavit to the search application was deposed to by a duly attested member of the Botswana Police Service seconded to the DIS and the lead investigator in the matter. She pointed out that the draft search warrant itself entitled any duly authorised officer of the DIS, the police, the Botswana Defence Force and the Botswana Revenue Services to execute such warrant. Pointing to the majority judgement, Justice Garekwe indicated that there was a suggestion that the DIS should be criticised for usurping the role of ‘proper crime prevention force’ such as the police, the statement being made in the context of the present proceedings which could therefore only relate or understood to relate to the seeking of the search warrant by the DIS in the manner it has.
“The majority unfortunately has not elaborated on this point. It is, however, important to observe that, in the context of what was in this court, the DIS has not sought to usurp the powers of the ‘proper crime prevention force’. It is part of the proper crime prevention force,” Garekwe noted. She emphasised that the DIS has powers to investigate numerous crimes and seek warrants of search and seizures to aid such investigations and that it has the power to gather ministerial intelligence at the request of any government ministry, department or agency. Moreover she said the DIS has power to regulate the flow of intelligence and security in cooperation with any ministry, department or agency entrusted with any aspect of maintenance of national security. In finality Justice Garekwe reckons that Khama should not make threats first before he is taken to task because clearly he was a security threat. She believes the DIS has every right to search the State House 4.