Questions raised over issuance of Kgosi warrant
Mpho Mokwape | Friday January 25, 2019 12:40
Following the arrest of Kgosi, attorneys are now divided over his warrant that was supposedly issued by a magistrate in Mahalapye.
The media had reported that a magistrate sitting in Mahalapye issued the warrant of arrest that led to the arrest of former Directorate of Intelligence and Security head.
Attorneys who commented on condition of anonymity argued that if that was the case then it’s legality in terms of the case of More versus AG 1999 issued by former High Court Judge John Mosojane and reported in the Botswana Law Reports 218 is in question.
“The warrant may if the courts follow this precedent be declared invalid on this basis of this case. If it is, then the arrest was unlawful. Mosojane ruled in the More case that a warrant issued by a magistrate in one district does not have legal stand outside that district,” said a prominent attorney who did not want to be named.
“This has been accepted as the law. Of course this is not my personal view. Note that I express no opinion, but merely highlighting the current position of the law.”
Another legal mind who admitted to have not familiarised himself with the judgement, explained that in Botswana’s criminal law there is what is called ‘territorial jurisdiction’.
This means that a sitting magistrate can only deal with matters that arise in her/his jurisdiction. “If we are talking about the warrant a magistrate can only use it if the alleged offence/s are committed in his/her jurisdiction. The warrant cannot be issued in a jurisdiction the alleged offence/s is not committed,” he explained.
He further said if at all there is nothing linking Kgosi with Mahalapye, then the warrant remains invalid because it would mean that it was obtained unlawfully, which also means that his arrest was unlawful.
“I think what happened was forum shopping. They may have intended to keep issuance of the warrant secret and hence the Mahalapye route. The Mahalapye magistrate will not have jurisdiction over a matter that must properly be in Gaborone,” another prominent judicial officer who did not want to be named said.
“Why did the Botswana Unified Revenue Service (BURS) go to Mahalapye? I think they were simply a conduit for Directorate of Intelligence and Security (DIS) and others and were acting on instructions from elsewhere. The warrant should have been issued in Gaborone, if the warrant was a nullity it follows that the arrest and detention were unlawful.”
Kgosi’s attorney, Diba Diba declined to comment except to say that he was yet to familiarise himself with the Mosojane judgement.