No show for AG in The Gazette, DCEC case
It was a no show for the Attorney General Chambers (AG) in a case in which local newspaper, The Botswnaa Gazette is challenging the Directorate of Corruption and Economic Crime (DCEC) for search warrants used by the directorate to raid the publication sometime in May this year.
Asking the Lobatse High Court Judge Michael Leburu for postponement , the applicant’s attorney Carlos Salbany said the AG took lightly the case and that the lawyers should also be held in contempt of court. “ We express outmost displeasure at how the AG’s have handled the matter which has significant constitutional implications. Not only did they file their answering affidavits three weeks after our last session but they have also failed to turn up,” Salbany said. According to Salbany, he learnt while at court that AG’s attorney, Motsioeme Taunyane was no longer handling the case and it has since been handed one Rammidi. Judge Leburu said both the AG attorneys should show cause why they should not be held in contempt of court. The matter was rescheduled to the 15th October 2015.
At the center of the case is the search warrants which were produced by the DCEC officials when they raided The Botswana Gazette premises following a story the paper had published. The publication is of the view that it was improper for the DCEC to have engaged the Attorney General Chambers and the Attorney General in the proceedings as DCEC has prosecutorial functions and should be represented by Directorate of Public Prosecutions (DPP). According to the publication, the DPP is a completely autonomous department. The AG has a different view, that DPP is a department within it. Furthermore, the publication believes that by AG representing the DCEC and the Broadhurst Magistrate Court ( which issued the search warrant) , it is violating the publication’s rights to a fair and partial hearing at the court and is usurping the power of Section 51(a) of the Constitution.
In his founding affidavit, the publication’s Managing Editor, Rudolf Olsen stated that the State Proceedings Act does not apply in the proceedings of the matter as AG is mandated to act on behalf of government and officers but not as them , and that he avers that the AG acts in civil matters in which government department or official is being sued personally on a criminal claim.
“I aver that only the Director of Public Prosecution can delineate the administrative policing powers of the DCEC, not the Attorney General,” he said, adding that it is only the DPP and its officers that are responsible for criminal justice. He said the warrants (to enter and search) used by the DCEC can only arise pursuant to criminal proceedings as was the case in the matter of the publication.
In her answering affidavit, DCEC Director Rose Seretse denied criminal proceedings against the applicant, saying the respondents were in fact empowered by the DCEC Act to search the applicant’s premises. On the issue of why the AG’s was representing the DCEC, Seretse said all government organs are equal and are equally entitled to representation by the AG.
DCEC officials presented ‘enter and search’ warrant to the The Botswana Gazette following a story published on alleged dealings to supply oil to Botswana. Those implicated in the story were one deported Jerry Chitube, former Botswana Democratic Party (BDP) Member of Parliament and current Southern District Council chairperson, Mephato Reatile and Director at Ministry of Energy, Ezekiel Moumakwa. The deal, had it gone through, could have been valued at around P150 million.
According to the DCEC officials, the matter was still under investigation and having published the story was in contravention of Section 44 of the Corruption and Economic Crime Act (CECA) which prohibits disclosure of information on an ongoing case.