Former Director General of the Directorate on Corruption and Economic Crime(DCEC), Tymon Katlholo prevailed over the rogue Directorate of Intelligence and Security Services (DIS) over their excessive use of force when they raided and barricaded his office, and detained some DCEC officers for interrogation in 2022. The DIS purported it was looking for files regarding national security investigations. The judgement was delivered on Friday morning by a Court of Appeal (CoA) bench made of Justice Isaac Lesetedi and Justices Bess Nkabinde and Edwin Cameron. Delivering the judgement, Justice Lesetedi said this was a rare matter where two state agencies came in conflict to the extent the matter escalated to the apex court. The Judge said it was the first of its kind in Botswana.
The dispute had escalated without intervention from the powers that be despite the erstwhile DCEC Director General having made attempts to seek intervention. Consequently, the CoA ruled that: “this case concerns an egregious excess of authority and cried out for rectification and rebuke. Only the courts disposed over the power to administer these correctives. The High Court acted with propriety in granting the orders it did.” The apex court dismissed the DIS and Ministry of Justice appeal with costs.
The Attorney General had appealed the case after the Lobatse High Court, Reuben Lekorwe ruled in favour of Katlholo who initiated the suit in his personal capacity. The High Court had found that the DIS had no mandate to seal the offices of the DCEC head honcho. Lekorwe ordered that the files in his office be placed in custody for safe keeping.
Giving background to the matter, Justice Lesetedi said the case was first brought to the High Court by the then DCEC director general, Katlholo who moved an urgent application against DIS agents. Lesetedi said the case was precipitated by events that transpired when the DIS raided the DCEC offices when Katlholo was away on official duty in Rwanda on 3rd May 2022. Katlholo and another officer’s offices were sealed and labelled “crime-scene” when the DIS agents came searching for certain files it claimed were necessary for ‘investigations concerning national security of Botswana’ reads the judgement.
Despite, the repeated attempts by the DCEC boss to reach out to the Attorney General, his efforts were thwarted, as per the judgement. The DCEC wanted AG to initiate legal proceedings against the DIS, but it fidgeted. DCEC felt the AG failed to engage the DIS Director General Peter Magosi over the matter. Although the High Court ruled in favour of Katlholo, the AG were opposed to it citing that he had no mandate to institute legal proceedings on behalf of a state agency as they are represented by state lawyers. Meanwhile, Katlholo maintained that he was acting to safeguard the independence and integrity of the DCEC. But the AG believed the DIS acted legally and within its statutory mandate.
Subsequently, Katlholo was suspended pending disciplinary proceedings. The fall-out between DIS and DCEC come from way back. The two institutions have in recent memory differed over issues of national interest like the alleged P100 billion theft at Bank of Botswana. Whilst the DCEC always maintained that the prosecution was a wild goose-chase, the DIS on the other hand felt there was something to be salvaged. Both agencies are by statute empowered to help investigate. The DIS was primarily set to advise on national security while the DCEC investigates corruption and economic crimes and forwards the evidence to the Directorate of Public Prosecutions (DPP) for prosecutions.
Meanwhile, the DIS continues to lose a number of court cases. The institution labelled “rogue” for its excessive use of power, arbitrary arrests of journalists, politicians have been accused of abusing its mandate and some within the civil society, academia and opposition have called for its reforms.