A case of mistrust between a spy agency and its former spymaster
Gaborone High Court Judge, Dr Zein Kebonang has accused the state apparatus of abuse of power in the controversial firearms and ammunition case against former Directorate of Intelligence and Security (DIS) Director General Isaac Kgosi.
The Attorney General (1st Applicant) representing Botswana Police Services (2nd Applicant) and Directorate of Intelligence and Security (DIS) have approached the high court seeking an order to declare moot, an application by Kgosi to have his firearms and ammunition returned to him.
According to Justice Dr Kebonang, on the basis of the documents before him, he has no hesitation in arriving at the conclusion that the charges against the Kgosi arising from the registration and licensing of firearms are malafide and a glaring abuse of power. He stated in his judgement that the charges are doomed to fail.
The judge described the case as one of mutual dislike and mistrust between a spy agency and its former spymaster. This, he said has negatively affected the smooth functioning of the different agencies in the web of government.
According to Justice Dr Kebonang, every facet of public and private life has felt this impasse. He indicated that the fallout permeates every layer of government and many careers and lives have been unfairly destroyed as a result.
With no end in sight, it weighs on the rule of law and the sanctity of institutions, he said, adding, that allowed to continue, it will take the country with it, if it has not already done so.
“The current case before me, originates from an application filed by the Respondent on the 1st December 2020 (The Kgosi Application), in which he sought the immediate return of his firearms and ammunitions together with
their corresponding permits; cost of suit, further and alternative relief.
“The Kgosi application which had been determined by Tafa J was appealed by the Applicants to the Court of Appeal whereat it was remitted to this court for hearing on a complete set of pleadings,” the judge said.
He explained that these have since been filed and are now closed. He said the matter now awaits a hearing date.
“Subsequent to the Kgosi Application, the Applicants filed an interlocutory application seeking to have the Kgosi Application declared moot, hence the present interlocutory ruling. The Applicants have only raised points of law to demonstrate the mootness of the Kgosi Application”.
He said there is no evidence that either the provisions of the Intelligence and Security Services (ISS) Act or the Arms and Ammunition Act have been violated by Kgosi. The judge explained that criminal proceedings against Kgosi and others do not invalidate either his ownership or possession of his firearms in light of the existence of validly issued permits by the Police.
“The Constitution of Botswana entitles the Respondent to due process and protects him from an overzealous State and State's arbitrariness. Through the various licenses issued to him, the Respondent has in my view been able on a balance of probabilities, to discharge the onus that he is the holder of the licenses issued in accordance with the law.
“The presumption of innocence, regularity and the constitutional proprietary rights of the Respondent remain extant and are unaffected by the institution of criminal proceedings against him,” the Judge said.
He contended that there is nothing before him that suggests that the Botswana Police through the office of either the Commissioner and/or Deputy Commissioner of Police, acted improperly in licensing and registering
Kgosi’s firearms. He said the police as the licensing authority, has elected not to rebut the presumption of regularity.
Strangely, a third party who is not clothed with the necessary licensing mandate seeks to do so through speculation and conjecture. This in his view, is completely untenable. Justice Dr Kebonang added that the decision of the Police remains valid and effective.
“When one has regard to the charges submitted by the Applicants against the Respondent and others pending before the Gaborone Regional Magistrate Court, these appear ex facie to lack reasonable and probable cause to justify them.
“Given the presumption of regularity, the charges are prima facie an abuse of prosecutorial authority. The DPP has a duty in discharging her prosecutorial functions to protect the integrity of the courts by ensuring that courts function as courts and are not co-opted into presiding over ill-fated cases that do not meet the requisite threshold for a successful prosecution.'
Giving the facts of the case, the judge stated that on the 15th February 2019, heavily armed members of the Directorate of Intelligence and Security (DIS) (3rd Applicant) and the Botswana Police Service (2nd Applicant) raided the Respondent's home. Firearms, ammunitions and gun licenses belonging to the Respondent were seized as part of the raid.
He said the raid and seizure of firearms and licenses appears to have been pursuant to a warrant of entry, search and seizure issued by the Extension 2 Principal Magistrate, Gaborone. The warrant, he said, was obtained ex parte by the DIS with the Botswana Police playing no role in it. He pointed out that the warrant so obtained, specified the properties to be searched and/or seized.
The properties specified in the warrant largely immovable properties connected to Silver Shadows (Pty) Ltd; Shathani July; Bash Carriers (Pty) Ltd; Otshegeditse Basiami; John Little; Thatayaone Seduke; International Aviation Solutions (Pty) Ltd; Kalahari Flying Club (Pty) Ltd, Defence Concepts (Pty) Ltd; Welheminah Maswabi; Tshepo Sebina; Bango Trading (Pty) Ltd; Asphalt Botswana and Moffat James.
In relation to Kgosi, the properties identified in the warrant were Portion 83 (portion of 78) of Sentlhane Farm, Mokolodi, Plot 61299 situated at Phakalane, Farm (tshimo) situated at Maboane and Plot 17658 situated at Gaborone West Phase 1, Gaborone.
Justice Dr Kebonang stated that the firearms, ammunitions and their permits seized by the Police and the DIS from Kgosi’s house were not specified in the warrant issued. According to the judge, depending on where one sits, the Applicants are determined to drag Kgosi and everyone associated with him through a criminal trial. On the other hand, Kgosi considers himself a victim of persecution and malicious prosecution.
“In their affidavit, they assert that they are entitled to seize the Respondent's firearms as part of their investigative work. They maintain that they are law abiding and that the Respondent's firearms and licenses were seized pursuant to a lawfully issued warrant by the Extension 2 Magistrate Court.
“This however cannot be true because the seized firearms and ammunition were not part of the paraphernalia contained in the warrant issued by the Extension 2 Magistrate Court,” the judge said in his ruling.
Kgosi on the other hand contends that he is the lawful owner of the firearms and ammunitions seized by the Applicants. He denies that these were either unlawfully imported, acquired, licensed or registered. He stated that they were lawfully registered and licensed by the Botswana Police Service and that there was no legal basis for their seizure.
According to the judge, the rule on regularity provides that where administrative decisions have been made by government officials, there is presumption of regularity. He said in other words, the presumption is that all preceding statutory requirements have been complied with and that the decision made is binding and has legal consequences.
Justice Dr Kebonang emphasised that once the licenses were issued, and the firearms registered, then the presumption of regularity that all the preceding statutory requirements had been complied with kicks in.
“In the absence of clear evidence to the contrary, the court is entitled to presume that the 2nd Applicant had properly discharged its official duties. On the record, there is no evidence of impropriety to support the Applicants' claim or to rebut the presumption of regularity. There must be meaningful evidentiary material shown before doubts can be entertained about the integrity of official acts.”
He stated that the DIS’s totally unsupported suggestion and speculation that the Police (because that is really what they are saying) acted improperly or unlawfully in issuing and registering Kgosi’s rifles cannot impugn the integrity of the Police, in the absence of any evidence to the contrary.
The judge explained that the warrant of entry, search and seizure obtained by the DIS was applied for and issued under section 22 of the Intelligence and Security Service Act of 2007. He said Kgosi’s properties being Portion 83 (portion of 78) of Sentlhane Farm, Mokolodi, Plot 61299 situated at Phakalane, Farm (tshimo) situated at Maboane and Plot 17658 situate at Gaborone West Phase 1, Gaborone identified in the warrant obtained
by the DIS cannot be classified as constituting a threat to national security.
“There does not appear from the record to have been any real and tangible evidence that the provisions of the DISS Act had been violated by the Respondent or that the parties listed in the warrant had or were engaged in espionage activities, or were planning to overthrow the government or were acting as agents for foreign governments.
“In any event, the properties forming the subject of this application were not even mentioned in the said warrant,” he said, adding that there is nothing in the record that suggests that the Police as the licensing authority, had requested the DIS to investigate Kgosi’s licenses or their origin.