Lobatse High Court Judge Gaolapelwe Ketlogetswe says the Directorate of Intelligence and Security (DIS) and Botswana Police violated the law when they arrested and detained Member of Parliament for Lobatse Dr. Thapelo Matsheka without a warrant.
Dr. Matsheka was last week Tuesday arrested by the law enforcement agencies and detained for a period exceeding 48 hours.
He was released from custody on Sunday after his wife Veronica Matsheka took DIS (1st Respondent) and the Police (2nd Respondent) to court challenging the lawfulness of her husband’s arrest and detention and demanded that he be released.
When ordering the release of Dr. Matsheka, the judge said the basis of his arrest, as presented by the respondents is founded on allegations that he may have been complicit in the alleged murder of one Tlotso Karema, a small boy, who until his disappearance on the 18th March, 2022 was a resident of Lobatse, a town for which Matsheka is a Member of Parliament, has been allegedly murdered in what is suspected to have been a ritually-motivated killing.
He explained that the basis of the allegation of the unlawfulness of his arrest and detention is said to be that he was arrested without a warrant of arrest and that he has been in detention for a period in excess of 48 hours, and in breach of the provisions of section 36 of the Criminal Procedure and Evidence Act (Cap 08:02 of the Laws of Botswana), particularly sub-sections (1) and (2) thereof.
Justice Ketlogetswe stated that it is common cause that after his arrest on the 2nd August, 2022, Dr. Matsheka has not been taken to any court of law nor has he been charged with any offence.
The Judge said the respondents have not stated why the alleged warrant of arrest and detention could not be availed to the Court.
“Matsheka has been in custody, and Veronica Matsheka, his wife (the applicant), has approached the High Court on a writ of habeas corpus, demanding not only the production of her husband to the court, but also that he be released from custody forthwith, and that the basis for his arrest and
detention be proffered to the court.
“It is clear to me that the reference to herself as the person whose right to liberty has been violated, by the applicant was a genuine but non-fatal mistake on the part of the applicant. It has always been clear to the respondents that the subject matter of the application was Matsheka and it could not, by any stretch of imagination be taken that application was about the applicant herself,” said Justice Ketlogetswe arguing that it is disingenuous for the respondents to want to cling on an obviously innocuous erroneous description of the real subject of arrest and detention on the part of the applicant.
The point in limine disputing the locus standi of the applicant on this ground is, in my view without merit and it is dismissed, he added.
He noted that the applicant's averments, which have not been disputed by the respondents, and which in point of fact have been admitted by the respondents, are that Matsheka's arrest on the 2nd August, 2022, was effected without a warrant of arrest.
“Section 36 of the Criminal Procedure and Evidence Act, supra, to the extent material, provides at sub-sections (1) and (2) thereof as follows: "36. (1) No person arrested without a warrant shall be detained in custody for a longer period than in all the circumstances of the case is reasonable; and such period shall not (subject to the provisions of sub-section (2)) unless a warrant has been obtained for the further detention upon a charge of an offence, exceed 48 hours, exclusive of the time necessary for the journey from the place of arrest to the magistrate's court having jurisdiction in the matter. The above section is clear as to what should happen in relation to a person who has been arrested without a warrant of arrest.”
According to the Judge, the section mandates that such a person shall be detained for no more than 48 hours, whereafter the person should be taken to a magistrate for his or her further detention.
He stated in the judgement that it is clear that while section 36, supra, authorises arrests without warrants of arrest, it imposes a strict obligation on the person arresting to ensure that the arrest is subjected to judicial authority as soon as it is practicably possible. The provision, he said, clearly prohibits detention of persons arrested without a warrant of arrest beyond 48 hours.
Emphasised Justice Ketlogetswe “this was clearly in violation of the law, and the respondents have conceded, as already stated that the further detention of Matsheka was and remains unlawful.
“The position of the law in this jurisdiction is such that all arrests, being interference with the subject's constitutionally protected right to liberty, are prima facie unlawful, unless the arrest is founded on a reasonable and probable cause.
The burden to justify an arrest and detention lies with the person who would have effected same, in this case, the respondents”.
He said the question that remains is whether or not the arrest of Matsheka, as explained by the respondents, was on reasonable and probable cause, or put differently not an act in fraudem legis (that is a circumvention of the law or rules for ulterior motives) as alleged by the applicant.
He pointed out that the applicant has averred that the arrest of Matsheka is politically motivated and that it is an attempt by his alleged political opponents or competitors to soil his name.
“This has been denied by the respondents. The respondents have, through the answering affidavit of Goitseone Anita Esely, who describes herself as an Intelligence Officer in the employ of the first Respondent, explained the basis of Matsheka's arrest.”