Tribunal dismisses Thea Khama’s compensation claim
Mpho Mokwape | Monday February 26, 2024 06:00
Thea was arrested in 2022 with his husband former Member of Parliament for Serowe West, Tshekedi Khama and his twin brother, Anthony. The trio was allegedly arrested in relation to investigations carried by the DIS into former president Ian Khama's 'inappropriate' possession of 'weapons of war'.
Thea filed a complaint before the Tribunal seeking compensation for trauma and suffering, legal costs incurred for arrest, breach of her right to liberty and free movement and compensation for electronic items being cellphone and laptop. Before a three-member bench of Edward Mwaluka, Tsetsele Fantan and chairperson Justice Godfrey Radijeng, Thea's complaint was dismissed on grounds that her arrest and seizure of her property was in the scope of the DIS investigations.
“I agree and accept DIS submissions that given the scope of inquiry regarding the property allegedly in the possession of DIS, for which compensation is now sought, falls as asserted within the scope of the respondents' powers to investigate,” reads a decision read by Radijeng. Justice Radijeng explained that he only understood Thea in her heads of argument to contend that the failure to hand over the seized property to the police with her justified the claim for compensation.
He said he did not agree with Thea’s submissions given the indication by the DIS that the property was seized for purposes of investigation and that he accepts DIS' submissions that Thea has not established and proved the claim in the context akin to the requirements of the Rules of the High Court. “Thea has merely stated a claim for damages for electronic gadgets that have not been specifically pleaded, save generally. The DIS have succeeded on all the points of law raised and Thea's reliefs canvassed and attacked by the respondent in this ruling stand dismissed and I so order,” he said.
Background of the Complaint
According to court papers filed ,Thea filed a complaint with the Tribunal on July 15, 2022 against the DIS. She alleged unlawful detention and arrest by the DIS on March 18, 2022 and further that the spy's agent failed to hand her over to the Botswana Police Service (BPS) in terms of Section 21 (8) of the Intelligence and Security Service Act (ISS Act). Thea asserted further that owing to the latter circumstance of failure to comply with the ISS Act, the spy's agents continued thereafter, to insist on looking or seeking to engage with her without legal representation. “She alleged physical and verbal assault by DIS’ agents in the process of arrest while she did not resist,” reads the tribunal papers.
The remedies she sought are as follows; a declaration that they breached the terms of Section 21 (8) by failing to hand her to the Botswana Police to deal with her under the Section 21 (8) of the Criminal Procedure and Evidence Act, cessation of any attempt of future arrest without a warrant, legal costs incurred for the arrest. Further, a declaration that the DIS have no further powers to detain and or interview her as that is in breach of Section 21 (8) of the Criminal Procedure and Evidence Act. “Alternatively that any further interviews may be carried out in terms of Section 21 (8) and by the Botswana police in accordance with the provisions of the Criminal Procedure and Evidence Act.
She also wanted a written undertaking that of the presence of her legal representatives throughout the proceedings and the ability to consult with her attorneys privately during the interview process and an option for online interview. Thea sought compensation for emotional trauma and suffering at P160, 000, compensation for electronic items being cellphone and laptop at P50, 000 and breach of her right to liberty and free movement at P500, 000. Bogopa, Manewe & Tobedza represented the DIS whilst Makati Law Consultancy represented Thea.