REJECT horrendous, regressive Criminal Procedure and Evidence law
It’s shocking the President who promised to be liberal, sees nothing wrong with the Bill - Botswana Editors Forum
Intercepting of calls has been happening, now it will obviously be widespread and with impunity - Ndadi
Ease of doing business in the country will be greatly affected- UDC
It must be countered even if it means taking to the streets - BOMAWU
The Criminal Procedure and Evidence ( Amendment) Act, 2022 has been met with resistance by the public as it is seen as an invasion of civil liberties.
The Bill whose object is to enact the Criminal Procedure and Evidence ( Controlled Investigations) Bill to make provision for controlled investigations and an undercover operations framework including the handling of information by investigatory authorities, has been rejected by all sectors of the society arguing that it is regressive.
The Bill which has been tabled by the Minister of Defence, Justice and Security Kagiso Mmusi on certificate of urgency at the ongoing Parliament session, provides for undercover operations framework and formalises the collection of information through undercover operation orders and assumed identities.
It allows the Registrar of Births and Deaths, the Registrar of National Registration, and the Registrar of Marriages to make entries into their registers by order of the court for purposes of controlled investigations.
It further makes provision for travel documents to be issued under assumed identities. The Bill provides for an interception of communications framework, which authorises the interception of communications by investigatory authorities and sets out the role of the service providers in controlled investigations for the gathering of criminal evidence.
Botswana Editors Forum ( BEF) Chairman Spencer Mogapi stated that like many other Batswana they too are shocked by this piece of law. He told Botswana Guardian that
what makes everything worse about it, is that it is brought under certificate of urgency meaning that its sponsors do not want it subjected to interrogation and public scrutiny, notwithstanding its massive implications.
He pointed out that Batswana have proved time after time that they are willing to help the state to fight all forms of crime. But this law has nothing to do with fighting crime, he argued.
“It has everything to do with making security services unacceptable. At a time when there is so much public anger at dwindling freedoms and liberties, we are shocked that a president, who came to power promising to be a liberal, sees nothing wrong with the wholesale taking away of basic civil liberties by the state.
“We hope Batswana will do everything in their power to reject this law. And those sponsoring it will have second thoughts about it, no matter how strongly they feel about their designs,” said the BEF Chairman, who is also Deputy Editor at Sunday Standard newspaper.
Uyapo Ndadi, Managing Partner at Ndadi Law Firm said he could have never imagined that during his lifetime, a horrendous Bill like this could come before Parliament. He told this publication that the speed at which the Executive wants it to be passed is telling as it is brought on urgency.
“The law basically says the population of Botswana can triple because one person can have two or more identities. One would not be able to tell the real or fake name. A person can go to court and say you charged the wrong person, I’m so and so, and that would be the end of the case.
“A person can register to vote as many times as their number of identities, if you have four, you can vote four times. A mother can unknowingly put a fake name as the identity of the father of the child. And then when she sues for maintenance a different name appears denying paternity or even claiming alibi,” he said.
Ndadi stated that intercepting of calls has been happening, “now it will obviously be widespread and with impunity.” That is without shame and with no consequences, he said adding that no checks and balances have been put in place.
Ndadi explained that the constitutional right to privacy has been thrown out of the window, and it doesn’t exist anymore. He pointed out that it would seem the executive is tired of being held accountable by the courts and it is cutting corners.
“Laws like these should be challenged in court and see if they meet the constitutional standard. I am convinced a sober court would find it unconstitutional as it lacks any justification in a constitutional democracy.
“Only dictatorship regimes can be at peace with such draconian laws. I’m calling upon the conscience of leaders to wake up in its slumber if at all it is sleeping, and defeat this Bill. Failing which history will judge them harshly,” he stated.
President of the Botswana Media and Allied Workers Union ( BOMAWU) Phillimon Mmeso said the Bill should be rejected by all who have the interest of the country at heart as it is a threat not only to civil liberties but will also affect the work of journalists who work as watchdogs and should hold leaders accountable.
“It must be countered. Not only must we challenge this at court, but we must also take to the streets to defend our rights,” Mmeso said.
Botswana Patriotic Front ( BPF) Publicity Secretary, Lawrence Ookeditse said by now everyone is aware of the tendency of this government to fake news, and simply not tell the truth. He said the BPF never thought the government would stoop to such low levels.
He explained that the Bill entrusts a rogue government that thrives on leaking information with which it cannot be trusted not to recklessly disclose or blackmail Batswana with.
“The Bill will also allow the Registrar of Births and Deaths and Registrar of National Registration and Registrar of Marriages to make fake entries into their registers. In effect, it means fake identity cards and other registries such as marriages and deaths will legally be permitted.
“These pseudo persons being unleashed on society may vote and may even be employed as returning officers for purposes of elections. The foundations of this country on trust and democracy are being badly eroded by a gang of extraordinary thieves.
“The national security implications of this army of pseudo persons are huge and farreaching,” the BPF spokesperson said. The BPF, he said, calls upon all opposition parties, civil society, the courts, businesses, and citizens to reject this Bill.
Botswana Council of Nongovernmental Organisations ( BOCONGO) Chief Executive Officer Monametsi Sokwe said the law is regressive. He explained that there is a need for further consultation and assurances that it won’t be abused.
“Our take is that Batswana and indeed civil society is concerned about these laws despite it targeting criminals.
The issue of why it is sending shivers down the spine of Batswana is that they don’t trust their government and as such are more worried that the government is going to abuse the law to target their civil liberties and for political gain,” he said.
Sokwe indicated that under normal circumstances if one is not a criminal, they shouldn’t be worried but now with issuing of fake IDs the question is, is the ballot paper safe?
For his part Umbrella for Democratic Change’s Head of Communications Moeti Mohwasa argued that the whole essence of democracy is respect for and acknowledgement of civil liberties and citizens’ right to privacy.
“It is not surprising that the current BDP government is now turning this whole country into a “Big Brother house”. The tragedy is that this is not a popularly elected government. It is a government that lacks legitimacy and wants to cling on to power at all costs,” argued Mohwasa adding that, through the Bill government wants to gatecrash its way into “your conversations, bedrooms, offices, meetings, business dealings and all other spheres of your lives.”
Ease of doing business in this country, according to Mohwasa will also be greatly affected. “Which serious businessman will invest and do business in this kind of an environment? Confidentiality in business dealings has to be respected and it will be asking for too much if we expect this regime not to invite itself to virtual business meetings or intercept strategic business communication, armed with this Bill,” he said.