AG failed to protect DCEC – Katlholo
Mpho Mokwape | Monday February 19, 2024 06:00
Katlholo, who in May 3, 2022 while out of the country woke up to the news of the DIS raiding and sealing the DCEC office said he had to spring into action in his own personal capacity to protect his then agency contrary to State argument that he has no right to bring an action or appear in court on behalf of the DCEC. “I had every right to file an application for interdict against the DIS on account of failure by the AG to act and his obligations to protect the office as statutorily enjoined to do so,” he said. The former DG, who allegedly sought help and protection from the AG at the time without any success, explained that as at the time he was the DG, and the nature of accusations directed at him personally, he had every right to bring action to court. He said he had to protect himself, the integrity of the office and the classified files that the DIS was seeking to obtain when they raided and sealed his office.
In his court papers, Katlholo stated that the Corruption and Economic Crime Act (CECA) unequivocally provides for the independence and the autonomy of the DCEC and that any decision by the DG shall not be subject to questioning by any person or authority though it is accepted that a decision by the DG may be subjected to review by a court of law in appropriate circumstances. “The DCEC DG has autonomy not only during investigations but the entire scope of the organisation albeit that the DCEC falls under the auspices of the civil service,” he said. He emphasised that the CECA avails to the DG broad rights that extend beyond the scope of investigations of which Section 4 confers upon the DG independence of action and answerability from the government. Katlholo argued that with the AG’s failure to act and exercise his obligation, it would have been unpleasant and against the rule of law for the legislature having conferred rights and obligations on him to be stranded without a method of enforcement or protection of such rights. He stated that the common law principle recognise the notion that any person legal or natural who has been wronged has absolute right to take action or seek redress within the legal system to seek protection
. “In seeking to protect the sanctity of the rule of law, the courts provide various remedies for the breach of legal wrongs, including an inherent power of superior courts, in appropriate circumstance to fashion novel remedies where existing ones are inadequate to redress violations of rights. This is discretionary power conferred on the High Court and Court of Appeal,” he said. He stated that it is acknowledged, however, that in order to invoke its inherent jurisdiction, the High Court must be protecting the violation of a recognised right from wrong, simply put, the High Court must be granting remedial relief. Further, his court papers revealed that he acknowledges that the rights conferred on him under Section 4 of the CECA are not absolute and that he accepts that the sanctity of the office of the DG of DCEC may in appropriate cases be open to scrutiny by an appropriate authority operating within the scope of legislation empowering the authority to act. Katlholo submitted, however, that in the case, the DIS had no authority to seal his office and that its officers acted unlawfully.
“The DIS does not have, under the Intelligence and Security Service Act, the authority to conduct search and seizures under any other scenario without a warrant. In all other instances, the DIS and its agents must obtain a warrant from court for a search and seizure,” read the papers. Katlholo submitted that the authority of the DIS agents to conduct a search and seizure without a warrant is strictly limited to incidences where an arrest is simultaneously conducted. In respect to Jet Mafuta, the DIS lead investigator (a police officer seconded to the DIS), Katlholo noted that in his affidavit he claimed two competing grounds for sealing his office, first being that the sealing of the offices was necessitated by the lack of cooperation and stalling by him and secondly that it was necessitated due to the DIS investigations into the former DG of DIS Isaac Kgosi wherein Kgosi was alleged to have threatened to topple the government and ((a company known as Seleka Springs.)) According to court papers, Kalholo said in respect of the allegation by Mafuta that he did not cooperate with the DIS investigations and was obstructing them, it was shocking that as an officer of the DIS he did not invoke the provisions of Section 23 of ISS Act.
The Section states that, 'A any person who assaults, resists or obstructs any officer of the Directorate or any person acting under the direction of such officer in the due execution of his or her duties under this Act shall be guilty of an offence and liable to imprisonment for a term not exceeding 5 years'. He pointed out that Mafuta was conspicuously silent in reference to Section 23 of the ISS Act and that it was noteworthy that Section 23 is an offence creating provision and would need to be investigated and such investigation would logically fall to the Botswana Police Service and not the DIS. The former DG submitted that the High Court correctly found that the investigative authority of the DIS under ISS Act is limited to collecting and collating information. “The investigative power of the DIS is to be used in support of the other law enforcement agencies and provide them with intelligence to assist such agencies in the fulfilment of their respective mandates,” he concluded.
Meanwhile, the facts of the case are that Katlholo was at the material time the DG of DCEC and on May 3, 2022 the DIS officers led by Mafuta sealed his office at the DCEC, on grounds that he was ‘deliberately stalling and obstructing investigations by the DIS into Seleka Springs and Kgosi and further a threat to national security’. According to court documents at the time, Katlholo was out of the country and upon his return launched an urgent legal proceedings against the Attorney General to protect the integrity and contents of his office and place them in the custody of the High Court. The interdict was granted which gave rise to the current appeal by the AG. Dutch Leburu and Phenyo Sekape represented Katlholo while the State was represented by Thabiso Olatotse. Judgment was reserved to a date to be announced.