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VOLUME: II
MUTUAL ASSISTANCE IN CRIMINAL MATTERS
CHAPTER: 08:04


Part:III Assistance in relation to Search and Seizure (ss 11-12)

[Ch0804s11]11.     Requests by Botswana for search and seizure


            (1) This section shall apply to a proceeding or investigation relating to a criminal matter involving a serious offence against the laws of Botswana if there are reasonable grounds to believe that a thing relevant to the proceeding or investigation may be located in a foreign country to which this Act applies.

            (2) Where this section applies to a proceeding or investigation, the Director of Public Prosecutions may request an appropriate authority of the foreign country to obtain a warrant or other instrument authorising a search for a thing relevant to the proceeding or investigation and, if such a thing, or any other thing that is or may be relevant to the proceeding or investigation, as the case may be, is found pursuant to such a search, authorising the seizure of that thing.

            (3) A request shall be accompanied by an affidavit by a person verifying the grounds on which the request is made.


[Ch0804s12]12.     Requests by foreign countries for search and seizure


            (1) Where-

     (a)     a proceeding or investigation relating to a criminal matter involving a serious offence has commenced in a foreign country;

     (b)     there are reasonable grounds to believe that a thing relevant to the investigation or proceeding is located in Botswana; and

     (c)     the foreign country requests the Director of Public Prosecutions to arrange for the issue of a search warrant under this section in relation to that thing,

the Director of Public Prosecutions may authorise a police officer, in writing, to apply to a magistrate in the district in which that thing is believed to be located for the search warrant requested by the foreign country.

            (2) Where a police officer authorised under subsection (1) has reason to believe that the thing to which the request relates is, or will, at a specified time, be-

     (a)     on a person;

     (b)     in the clothing that is being worn by a person; or

     (c)     otherwise in a person's immediate control, the police officer may-

           (i)       lay before a magistrate an information on oath setting out the grounds for that belief; and

          (ii)       apply for the issue of a warrant under this section to search the person for that thing.

            (3) Where an application is made under subsection (2), the magistrate may, subject to subsection (6), issue a warrant authorising a police officer (whether or not named in the warrant), with such assistance, and by such force, as is necessary and reasonable-

     (a)     to search the person for the thing; and

     (b)     to seize any thing found in the course of the search that the police officer believes, on reasonable grounds, to be relevant to the proceeding or investigation.

            (4) Where a police officer authorised under subsection (1) has reason to believe that the thing to which the request relates is, or will, at a specified time, be, upon any land, or upon or in any premises, the police officer may-

     (a)     lay before a magistrate an information on oath setting out the grounds for that belief; and

     (b)     apply for the issue of a warrant under this section to search the land or premises for that thing.

            (5) Where an application is made under subsection (4), the magistrate may, subject to subsection (6), issue a warrant authorising a police officer (whether or not named in the warrant), with such assistance, and by such force, as is necessary and reasonable-

     (a)     to enter upon the land, or upon or into the premises;

     (b)     to search the land or premises for the thing; and

     (c)     to seize any thing found in the course of the search that the police officer believes, on reasonable grounds, to be relevant to the proceeding or investigation.

            (6) A magistrate shall not issue a warrant under this section unless-

     (a)     the informant or some other person has given to him either orally or by affidavit, such further information, if any, as he requires concerning the grounds on which the issue of the warrant is sought; and

     (b)     he is satisfied that there are reasonable grounds for issuing the warrant.

            (7) There shall be stated in a warrant issued under this section-

     (a)     the purpose for which the warrant is issued, including a reference to the nature of the criminal matter in relation to which the search is authorised;

     (b)     whether the search is authorised at any time of the day or night or during specified hours of the day or night;

     (c)     a description of the kind of things authorised to be seized; and

     (d)     a day, not being later than one month after the issue of the warrant, on which the warrant ceases to have effect.

            (8) If, in the course of searching, under a warrant issued under this section, for a thing of a kind specified in the warrant, the police officer finds another thing that he believes on reasonable grounds-

     (a)     to be relevant to the proceeding or investigation in the foreign country or to afford evidence as to the commission of a criminal offence; and

     (b)     is likely to be concealed, lost or destroyed if it is not seized,

the warrant shall be deemed to authorise him to seize the other thing.

            (9) Where a police officer finds, as a result of a search in accordance with a warrant issued under this section, a thing which he seizes wholly or partly because he believes the thing on reasonable grounds to be relevant to the proceeding or investigation in the foreign country, he shall deliver the thing into the custody and control of the Commissioner of Police.

            (10) Where a thing is delivered into the custody and control of the Commissioner of Police under subsection (9), the Commissioner shall arrange for the thing to be kept for a period not exceeding one month from the day on which the thing was seized pending a direction in writing from the Director of Public Prosecutions as to the manner in which the thing is to be dealt with (which may include a direction that the thing be sent to an authority of a foreign country).

            (11) A police officer who executes a search warrant issued under subsection (3) or (5) shall, as soon as practicable after the execution of the warrant, give to the person, or give to the owner or occupier of the land or premises or leave in a prominent position on the land or at the premises, as the case requires, a notice setting out-

     (a)     the name and rank of the police officer;

     (b)     the name of the magistrate who issued the warrant and the day on which it was issued; and

     (c)     a description of any things seized and removed in accordance with the warrant.

            (12) A police officer acting in accordance with a warrant issued under subsection (3) may remove, or require a person to remove, any of the clothing that the person is wearing but only if the removal of the clothing is necessary and reasonable for an effective search of the person under the warrant.

            (13) A person shall not be searched under a warrant issued under subsection (3) except by a person of the same sex.

            (14) Where a police officer is authorised, under a warrant issued under subsection (3), to search a person, the police officer may also search-

     (a)     the clothing that is being worn by the person; and

     (b)     any property in, or apparently in, the person's immediate control.