Botswana’s Criminal Procedures and Evidence (Controlled Investigations) Bill 2022

An analysis of the Bill, the fight against it, and the outcome.

By Thapelo Ndlovu

Introduction

The Botswana Minister of Defence, Justice and Security has conceded to pressure and amended the Criminal Procedure and Evidence (Controlled Investigations) 2022 Bill. The Bill allowed for undercover investigations, including search, surveillance and interception, without a warrant. In the face of an outcry, the Minister introduced amendments[1] that overhauled the initial Bill and reintroduced judicial oversight into undercover investigations. The amended Bill has now (February 2022) passed its third reading in Parliament and awaits  the President’s assent.

The Bill was published on January 12, 2022 and on January 25, 2022, the Botswana parliament approved a certificate of urgency to rush the Bill through. A special parliament session was convened since the house was still on vacation. The Government insisted it was under pressure to act from the inter-governmental Financial Action Task Force (FAFT) recommendations[2], but critics dismissed this as a ruse to allow them to slip through a repressive Bill with much wider ramifications. The FAFT recommendations are silent on the issue of a search warrant in investigations.

FAFT’s recommendation 31.2, which is cited as the one that motivated for the drastic Bill, read as follows:

Countries should ensure that competent authorities conducting investigations are able to use a wide range of investigative techniques suitable for the investigation of money laundering, associated predicate offences and terrorist financing. These investigative techniques include: undercover operations, intercepting communications, accessing computer systems and controlled delivery. In addition, countries should have effective mechanisms in place to identify, in a timely manner, whether natural or legal persons hold or control accounts. They should also have mechanisms to ensure that competent authorities have a process to identify assets without prior notification to the owner.

There is nothing in this that justifies the original Bill, as published.

This paper discusses the context around the new Bill, its contents, the response to it and the amendments and outcome.

The Context

Botswana has for a long time enjoyed favourable international ratings on democracy and human rights. These include transparency, corruption and the rule of law. When much of Africa was at war in the 1980s and earlier, Botswana was already enjoying political stability with regular, peaceful elections, except for external threats from apartheid South Africa and the Rhodesian regime.

However, beneath the relative stability there were problematic laws that affected human rights but were not getting attention because other areas of the continent and perhaps the world were more deserving of scrutiny. As a result, even in contemporary Botswana, problematic laws continue to be passed due to a one-party dominance in Parliament since independence in 1966.

Before dwelling on the human rights legal framework, it is necessary to mention those existing measures that inhibit rights, in particular freedom of expression. This is for the purpose of understanding that it is not the first time Botswana has adopted a controversial law. In many of these cases, the state defied public outcry, let alone international condemnation.

The local Universal Periodic Review NGO working group noted in their February 1, 2022 statement[3] that they have previously raised with the United Nations Human Rights Council (UNHRC) Botswana’s reluctance to enact an access to information empowering instrument.

The group also notes that the UN Human Rights Council has raised concern that “there are no specific provisions in domestic legislation to protect journalists and human rights defenders in the course of their work”.

 While the UNHRC has advised the Government of Botswana to revise national legislation that may unduly restrict the right to freedom of expression, the country still has a number of such laws:

• The Media Practitioners Act (MPA) 2008: Close to 15 years after being passed, this law was never put to use. The government has kept it in the shelves as a scarecrow. The MPA[4] calls for the involvement of the Minister in the appointment of the committee members of the proposed media council. Another major debating point was the provision calling for registration of journalists, as this was seen as against the spirit of freedom of expression as espoused in various treaties Botswana is part of.
• The Penal Code: Certain sections in the Penal Code stifle freedom of expression and that of the media. Notably Section 192-197 (Criminal Defamation) and Sections 50 -52 (Sedition)[5]. They have been used previously to arraign and detain journalists. One editor, Outsa Mokone,[6] had to spend days in detention in 2014 before undergoing a trial of sedition after publishing a story alleging President Ian Khama was involved in a car accident. The journalist who wrote the story, Edgar Tsimane, subsequently skipped the borders into South Africa. Mokone was acquitted four years later, when the Directorate of Prosecution did not oppose an application for the matter to be withdrawn.[7]
• Directorate of Corruption and Economic Crime Act: This laws prohibits reporting on issues that are still under investigation. It has been previously used to confiscate Botswana Gazette’s computers and detain lawyer Joao Salbany, Managing Director Shike Olsen; editor Lawrence Seretse and journalist Innocent Selatlhwa. The Botswana Gazette story alleged Zambian national Jerry Chitube was involved in corrupt deals with the intelligence unit and the Botswana Democratic Party.[8]
• Cyber Crime and Computer Related Crimes Act: This is a relatively new law but has been frequently used, mainly against youth who are charged for expression on the internet, especially social media. In one of the cases, the then publicity secretary of Botswana Patriotic Front (BPF), Justice Motlhabane, and two others were arrested,[9] detained and charged for “offensive electronic communication”.
• The Emergency Powers Act: This is now defunct following the end of the Covid-19 State of Public Emergency.  The law had sections 30 and 31, which forbade relay of Covid-19 related information by anyone outside the designated office in government. The same Justice Motlhabane et al, were also charged with another count, this time for publishing statements with intention to deceive persons about Covid-19.

Relevant legal instruments

The following is the legal framework in which freedom of expression and the right to privacy are protected:

Botswana

• Botswana Constitution: Section 12 protects the right to expression, which includes access to information. Section 9 protects the right to privacy. It further indicates situations where the right could be limited when public safety and security could be at risk.
• Data Protection Act 2018: This law generally protects personal or sensitive information. The tone of the act is in favour of the data subject, who is assured of the right to consent to access of their personal information.
• Whistle Blower Act 2016: The law seeks to promote whistleblowing and protect whistle-blowers’ identities.

International treaties

• Universal Declaration of Human Rights: Article 12 provides for the right to privacy of a person, home or property. Article 19 states:

Everyone has the right to freedom of opinion and expression: this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.[10]

• The International Covenant on Civil and Political Rights: Article 17 prohibits arbitrary or unlawful interference with anyone’s privacy, their home, correspondence. “Everyone has the right to the protection of the law against such interference.”
• The African Commission’s Declaration of Principles on Freedom of Expression and Access to Information in Africa: These principles were revised to cover in detail digital rights. Of interest here are Principles 25 and 40 which providefor the protection of journalists sources as well as privacy and the protection of personal information.
• SADC Protocol on Culture, Information and Sports: This document calls on states to provide for freedom of the media as well as easy access to information.

In Media Law Handbook for Southern Africa, Justine Limpitlaw (2021) lists eighteen key instruments that establish democratic media, broadcasting and internet regulatory principles[11]. Most of these instruments are prepared with full regional and international bodies’ and member states participation. These forums are generally informed by the United Nation’s Declaration of Human Rights Charter.

The initial version of the Bill

The official object of the Criminal Procedures and Evidence Bill, as introduced by the Minister of Defence, Justice and Security was:

To make provision for controlled investigations and an undercover operations framework, including the handling of information by investigatory authorities.[12]

A number of clauses, listed below, were alarmingly offensive to freedom of expression and the right to privacy as provided in the national legal instruments and the international covenants that the country is party to. 

Undercover Operations

Part II (4) of the CPE Bill, 2022 gave an investigative officer authority to gather information in an undercover operation.

   Clause 4 (1) Where a head of an investigatory authority believes, on reasonable grounds, that the delay in obtaining an undercover warrant would defeat the object of the undercover operation, he or she may, in writing, authorise an investigating officer to engage in an undercover operation to detect, investigate or uncover the commission of an offence, or to prevent the commission of an offence.

Part ii (Clause 8, 9, 10) of CPE 22 provides for the ‘application, authorisation and issuance of assumed identity’ or pseudonyms for undercover operators.

Clause 13 (1) allows for assumed identities to be registered as normal identities. This speaks to legitimising the assumed identities by awarding them with real national identity documents.

Interception of Communications

Clause 16 (1) allows for the interception of communication without a warrant.

It read:

  Clause 16 (1) Where a head of investigatory authority believes on reasonable grounds that the delay in obtaining an interception warrant would defeat then object of the investigations, he or she may, in writing, authorise an investigating officer to intercept communications to detect, investigate or uncover the commission of an offence, or to prevent the commission of any offence.

Handling of information from controlled (undercover) investigations

Clause 26 (1) gave the head of the investigatory authority the right to “retain information obtained through controlled investigation”. The provision is very clear that the head of investigatory authority “shall retain the information” but a later clause  states that the “court may, on application by an  applicant, order that information obtained from the carrying out of a controlled investigation in respect of a serious crime related activity shall be retained.”

The campaign against the Bill

Top of the major concerns in all the statements issued in protest against the Bill related to the authorisation of undercover operations and the interception of communication by investigation officers without a court warrant. The rallying point was that Clause 4 and Clause 13, which would have legalised undercover operations and interception of communication without a warrant for a period of 14 days, were contrary to the constitution as well as international treaties.

The public outcry against the bill involved organised civil society groupings, amongst them media organisations, political parties, the Law Society of Botswana, the Universal Periodic Review working group of NGOs, as well as regional and international media organisations.

In the ensuing week, a spirited push was mounted, including media statements and direct engagements.

Local

• Botswana Patriotic Front (a political party)[13]: The first political party to release a media statement alerting the nation about the Bill. It focused on the political threat the bill posed.
• Joint Press Conference (opposition parties): This involved the Umbrella for Democratic Change – a coalition of the Botswana Congress Party, the Botswana Peoples’ Party and the Botswana National Front – the Alliance for Progressives and the Botswana Patriotic Front. All these formations are represented in parliament.

They expressed fears that the ruling party was planning to rig elections. They said this ‘spy law’ was made to coincide with the delayed national population census and was inconsistent with the constitution.

• Media organisations (a joint statement of the Botswana Editors’ Forum, MISA Botswana and the Press Council of Botswana).[14]

The statement, among other issues, said the proposed law will force disclosure of sources of information and was inconsistent with journalism ethics regarding the protection of sources.

• Universal Periodic Review NGO working group (a joint statement with 6 member logos)

“The UPR working group is concerned that without the Access to Information law, the proposed law will have a detrimental effect on freedom of expression. The NGOs have already notified the UN Human Rights Council about their displeasure even before the proposed law.”

International

• Southern African Editors forum (SAEF)[15]

SAEF states that what Botswana is advocating for is against the spirit of the SADC Protocol on Culture, Information, and sports to which Botswana is signatory. The forum further expressed concern on the lack of oversight of Botswana’s intelligence sector.

• Committee to Protect Journalists (CPJ)[16]

This international organisation joined the call to scrap the proposed law which it said threatened journalists’ ability to communicate privately. CPJ further noted that it has in the past documented the police’s use of forensic tools in 2019 and 2020 to extract thousands of files from journalists’ devices in order to identify sources of their reporting.

• African Editors Forum (AEF)[17]

AEF expressed concern that the proposed law will have a chilling impact on media     freedom as well as other civil liberties. AEF called on international bodies to sanction Botswana.

Delegation

Local media houses were joined by a Southern African regional solidarity journalism delegation comprising the Southern African Editors Forum, Media Institute of Southern Africa and the Campaign for Freedom of Expression. After getting legal opinion, the delegation compiled an appeal against the Bill and asked to meet Botswana government officials to convey their concerns.

Other interventions

The Leader of Opposition in parliament, Dumelang Saleshando, dispatched an enquiry to the Financial Advisory Task Force (FATF), whom the government had identified as the reason behind the Bill, supposedly to fight money-laundering and similar crimes. Selashando wanted to find out if indeed the organ expected the state to enact laws that disregarded human rights obligations.

The Law Society of Botswana (LSB) also sounded a warning. The society cautioned the President against assenting the Bill if it were to pass in the form it was in.

The amendments

Following a spirited campaign against the bill, the Minister introduced a set of amendments which fundamentally changed the Bill.

The amended Bill prohibits undercover operations without a warrant, including interception, surveillance and search. It now criminalises an abuse of the powers of undercover operations, with a maximum penalty of life imprisonment.

Further, the amendments respond to the outcry that privacy was under attack. Clause 6 provide for the court to ensure that a warrant for undercover operations is necessary and can only be issued if less intrusive means could not achieve the same outcome.

The new amendments provide judicial oversight on the operations of the ‘assumed identities’.  Clause 8 requires the operations of ‘assumed identities’ to be an outcome of an ex-parte application as well as the inclusion of clause 15, which criminalise misuse of the ‘assumed identity’.

The Bill introduces a Coordination Committee to provide oversight of undercover work and to act in the interest of interception subjects. It is not a parliamentary committee but technocrat-dominated with additional minister’s appointees. The committee is made up of two Permanent Secretaries; one from the Ministry of Defence, Justice and Security and the other from the Ministry of International Cooperation. There is also the Attorney General and six Minister’s appointees. It shall be chaired by a Justice of Appeal or a legal practitioner qualifying to be a judge, if not a judge already. 

Conclusion

The regional coalition of Southern African media groups which flew to Botswana in response to the Bill has indicated satisfaction with the Bill in its amended form. The delegation observed that it was an improvement for a Bill that was largely intrusive to one that now regulated covert operations.

The pressure mounted against the initial bill proved the importance of civil society solidarity on informing policy and legislative direction. The swift reversal on the matter is also an indictment on the integrity of the executive. The apparent lack of alertness in making laws to the extent of been inconsistent with national statute and international treaties is alarming. It was a false start for the executive to have left out judicial oversight, especially in the initial 14 days of undercover operations and interception of communication as the original Bill intended.

Freedom of expression is protected in the national constitution, international treaties, notably, Universal Declaration of Human Rights and International Covenant on Civil and Political Rights. It would have been amiss if the minister had not conceded.

While the formation of a Coordination Committee as an oversight organ is a move in the right direction, it would have benefited from a mixed composition, especially involving civil society or it could be elevated to a parliamentary committee. The current composition of the committee is executive-oriented and could be side tracked in its efforts to provide oversight. The six additional members are to be appointed by the minister, in consultation with the Chairperson. Except for the skills or expertise required of them, it does not prescribe for them to be from civil society. A well-intended provision would have prescribed that some of them, if not all, be drawn from civil society organisations with proven records of human rights advocacy.

Events have shown the value of the civil society solidarity delegation, though it can be strengthened and broadened to involve civil society beyond media organisation. There could also be a an early-warning system these groupings to respond to threats to human rights.

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[1] Notice of amendments to be moved at committee stage

[2] Minister Kagiso Mmusi on The Eye, Botswana Television

[3] UPR NGOs media statement

[4] Media Practitioners Act 2008

[5] Penal code

[6] CPJ Sept 12 2014 Mokone arrested

[7] Mmegi Sept 3 2018

[8] Botswana Gazette May 7 2018 journalists arrested

 

[10] Universal Declaration of Human Rights

[11] Media Law Hand book

[12] Criminal Procedures and Evidence Bill (Controlled Investigations) 2022

[13] Botswana Patriotic Front Media statement on CPE

[14] Editors Forum, Press Council Botswana, MISA media statement on CPE 2022

[15] SAEF media statement on CPE 2022

[16] CPJ media statement on CPE 2022

[17] AEF media statement on CPE 2022