Accused in NPF case to appeal DCEC’s constitutional authority to prosecute
Mpho Mokwape | Monday July 13, 2026 06:00
The appeal centres on whether the DCEC has constitutional authority to prosecute criminal cases and whether the prosecution against the accused was lawfully initiated. Seretse, Sharifa Noor, Alphonse Molamu Ndzinge, Kgori Capital (Pty) Ltd and Kgori Holdings (Pty) Ltd are jointly facing a 63-count indictment that includes charges of stealing by an agent, forgery of an official document, conspiracy to defraud and money laundering.
In their grounds of appeal, Seretse and his co-appellants argue that the DCEC is an investigative body established by an Act of Parliament and that its functions do not include prosecuting criminal cases. 'The DCEC is an investigative body. It is not a prosecutorial body. This is what is found in its Act,' Seretse and company said. The appellants contend that the Constitution vests prosecutorial authority exclusively in the Director of Public Prosecutions (DPP) and officers subordinate to the DPP. 'The duty to prosecute, in terms of the law, is bestowed on the DPP. This power comes from the Constitution.
In terms of the Constitution, only the DPP and officers subordinate to him may prosecute,' Seretse said. According to the appeal, the DCEC is not subordinate to the DPP because both institutions are created under separate legal frameworks. 'DCEC is not subordinate to DPP. They are both created by law. One by an Act of Parliament, one by the Constitution,' they said.
The appellants also challenge the manner in which the prosecution was authorised. They argue that the charges were initiated through a certificate to prosecute issued by the Deputy Director of Public Prosecutions, who subsequently delegated the authority to a DCEC prosecutor, Mr Malambane.
Seretse and his co-accused argue that the Deputy DPP had no authority to sub-delegate those powers and that there was no evidence before the court showing that the Director of Public Prosecutions personally authorised the delegation.
'The said Deputy DPP decided to sub-delegate that delegated power to Mr Malambane of DCEC. This decision was not made by the DPP, but the Deputy. I challenged the sub-delegation of this function. Strikingly, even the sub-delegation was not confirmed by the DPP himself, neither by affidavit nor any document,' they further said.
In the appeal, Seretse also argues that although the court appeared to accept that sub-delegation was problematic, it relied instead on a statutory instrument issued by a former Director of Public Prosecutions, which it found authorised DCEC officers to charge suspects and commence prosecutions.
According to the appellants, that finding introduced a new legal basis that was not relied upon when the prosecution was initiated. 'The prosecution itself was started by way of a specific document, being a certificate to prosecute. Not at any point in the charge sheet was reference made to the statutory instrument. I hold a respectful view that the court erred for failing to realize this sudden shift,' Seretse said.
The appeal further argues that even if the statutory instrument is valid, it requires the Director of Public Prosecutions to issue directions whenever the DCEC intends to prosecute a matter. 'Assuming that the said statutory instrument is sufficient, the same document requires the authority of the DPP to give directions from time to time whenever DCEC intends to prosecute. In my case, no such directions were given. It is the DCEC that decided to charge,' Seretse said.
The appellants also argue that the Constitution does not confer prosecutorial discretion on the Deputy Director of Public Prosecutions. 'I repeat that the Constitution makes no mention of the Deputy,' Seretse said.
Seretse further contends that the High Court failed to properly examine the statutory instrument and its provisions before relying on it in its ruling. 'The court failed to interrogate the said instrument and its terms, in light of the argument I raised,' he said.
The appeal also questions whether the Director of Public Prosecutions has legal authority to issue statutory instruments. 'Furthermore, the DPP is not clothed with any power to make statutory instruments. The court ought to have taken cognizance of this,' Seretse said.
In addition to the appeal, Seretse said he intends to institute a constitutional challenge against any law that authorises institutions or individuals who are not subordinate to the Director of Public Prosecutions to prosecute criminal cases.
'I further argue that the said document is unconstitutional. It is the Constitution that tells who can exercise discretion to prosecute. The Constitution has to prevail over any Act of Parliament or instrument,' he said. He added that any legislation permitting the DCEC, the Botswana Police Service or other independent bodies to prosecute without being subordinate to the DPP should be declared unconstitutional.
'I will bring a constitutional challenge to laws that authorize any person not subordinate to the DPP to prosecute,' Seretse said. According to the appeal, the Commissioner of Police and the Director General of the DCEC are independent office holders and are not subject to the authority or control of the Director of Public Prosecutions.
'Being subordinate means being a junior or subject to someone's control. Neither the Police Commissioner nor the DCEC Director General are subject to the DPP. These are all distinct officers,' Seretse said.
Through the appeal, Seretse and his co-accused are asking the appellate court to overturn the magistrate's ruling and determine whether the DCEC has constitutional authority to prosecute criminal cases and whether the statutory instrument relied upon by the court is valid under Botswana's Constitution.