Kgosi increases his wins against DIS

Mpho Mokwape | Monday June 10, 2024 08:00

Justice Zein Kebonang of the Gaborone High Court ordered the DIS to return the guns and ammunitions they long seized from Kgosi’s residence in 2019.

“The confiscation of these firearms, ammunitions and licences was therefore without just cause, unlawful and illegal. DIS simply took the law into its own hands in seizing them,” he said. Justice Kebonang ordered that the guns be returned with immediate effect explaining that they were legally acquired especially that the Botswana Police Service (BPS), cited as the second respondent in the matter enabled the guns’ registration.

He said DIS at the time of seizing the guns knew it did not have a warrant to do so but that did not constrain or restrain it from acting unlawfully and in complete disregard of the law.

The judge added that DIS by so doing undermined the rule of law and due process.

In the judgment, Kebonang had strong words against the DIS and its alleged conduct emphasising that the intelligence agency like any entity, is not above the law.

“To exempt it, is to set a dangerous cause for the country. To allow DIS or any state institution to seize properties without a court order is to take a long step down the totalitarian path.

No court should ever water down constitutional guarantees and give agencies of the State, in particular, the DIS and the Police, an upper hand,” he added. Kebonang stated that individuals must be beyond the reach of all government agencies unless a reasonable ground exist to believe that a crime has or is about to be committed.

He said Kgosi’s firearms and ammunitions were properly acquired, registered and licensed. “I also find that the BPS properly and lawfully complied with the enabling legislation in registering and licensing the said firearms and ammunitions,” he said.

Kebonang’s judgment follows a previous judgment by former High Court judge, Abednego Tafa who ordered the guns to be returned within three days.

Tafa in his judgment said Kgosi had the requisite licences to possess the firearms and that the issue was a clear case of lawful possession and/or ownership. “There is no evidence on the record that the dispossession was justified. It is the duty of the court to ensure that citizens are not dispossessed of what appears, on the face of it, to be their property by anybody including agents of the State. “No legal basis or reasonable ground for the continued keeping of the firearms has been presented by the state,” he asserted.

According to the case, Kgosi’s guns were seized on February 15, 2019, following a raid at his residence in Phakalane. Kgosi said on that fateful day he had a rude awakening when officers from the BPS and the DIS served him with a warrant of entry, then searched and seized his property without explaining to him why, and what charges he was facing. The former DIS head explained that during the raid, the officers took his firearms and ammunition in different models that he legally owned.

In his filed papers before court, Kgosi said there has been a pattern of harassment against him, which explained the seizure of his firearms and ammunition. “The State has not at any point attempted to provide the reasonable basis for holding onto my property, they have failed to indicate what offence they are investigating or why it is necessary to hold onto the property for the purposes of any investigation if any,” he said.

The guns to be returned:

300 rifle serial numbers 710-9550, 12 gauge double barrel shotgun serial number 0505544, 9mm Jericho pistol with 2 magazines 14.A, 30/06-rifle serial number C700521Bruno, 308-rifle number 3433854, O/U shotgun 12g serial number 09137 NP153, 9mm pistol serial number 857992, Combination 12/76 and 3006 serial number 4/8666 4 4R 04838, 50mm pistol serial number 41201234, 12 gauge shotgun serial number 63529 PR 152. Meanwhile, Kgosi who has been having a fight of his life against the backdrop of numerous cases brought by the DIS, have already won two cases while some are still pending with nothing much moving forward.

In 2022, Kgosi won a case against DIS where he was charged with three counts that included exposing DIS agents. Prosecution at time withdrew the case after failing numerous times to furnish Kgosi with documents he sought and the Magistrate also giving the DIS ultimatums. He has been fighting to clear his name from numerous accusations ranging from unlawful possession of firearms and threat to national security.