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


Part:IV Arrangements for Persons to Give Evidence or Assist Investigations (ss 13-23)

[Ch0804s13]13.     Requests for removal of certain persons to Botswana


            (1) Where-

     (a)     a proceeding relating to a criminal matter has commenced in Botswana; and

     (b)     the Director of Public Prosecutions is of the opinion that a person who is in a foreign country to which this Act applies-

           (i)       is a foreign prisoner;

          (ii)       is capable of giving evidence relevant to the proceeding; and

          (iii)       has given his consent to being removed to Botswana for the purpose of giving evidence in the proceeding,

the Director of Public Prosecutions may request the foreign country to authorise the attendance of the person at a hearing in connection with the proceeding.

            (2) Where-

     (a)     an investigation relating to a criminal matter has commenced in Botswana; and

     (b)     the Director of Public Prosecutions is of the opinion that a person who is in a foreign country to which this Act applies-

           (i)       is a foreign prisoner;

          (ii)       is capable of giving assistance in relation to the investigation; and

          (iii)       has given his consent to being removed to Botswana for the purposes of giving assistance in relation to the investigation,

the Director of Public Prosecutions may request the foreign country to authorise the removal of the person to Botswana for the purpose of giving assistance in relation to the investigation.

            (3) Where the Director of Public Prosecutions makes a request under subsection (1) or (2), he may make arrangements with an appropriate authority of the foreign country for the purposes of-

     (a)     the removal of the person to Botswana;

     (b)     the custody of the person while in Botswana;

     (c)     the return of the person to the foreign country; and

     (d)     other relevant matters.


[Ch0804s14]14.     Custody of certain persons


            Where-

     (a)     a person is to be brought to Botswana from a foreign country pursuant to a request under section 13; and

     (b)     the foreign country requests that the person be kept in custody while he is in Botswana,

the person shall, while he is in Botswana or travelling to or from Botswana pursuant to the request, be kept in such custody as the Director of Public Prosecutions directs in writing.


[Ch0804s15]15.     Immunities


            (1) Where a person is in Botswana-

     (a)     pursuant to a request under section 13; or

     (b)     to give evidence in a proceeding, or to give assistance in relation to an investigation, pursuant to a request made by or on behalf of the Director of Public Prosecutions (not being a request under section 13) for international assistance in a criminal matter,

the person, subject to subsection (2), shall not-

      (i)     be detained, prosecuted or punished in Botswana for any offence that is alleged to have been committed, or that was committed, before his departure from the foreign country pursuant to the request;

      (ii)     be subjected to any civil suit in respect of any act or omission of his that is alleged to have occurred, or that occurred, before the person's departure from the foreign country pursuant to the request; or

     (iii)     be required to give evidence in any proceeding in Botswana other than the proceeding to which the request relates, if any.

            (2) Subsection (1) shall cease to apply to a person if-

     (a)     he has left Botswana; or

     (b)     he has had the opportunity of leaving Botswana and has remained in Botswana otherwise than for-

           (i)       the purpose to which the request relates;

          (ii)       the purpose of giving evidence in a proceeding in Botswana certified by the Director of Public Prosecutions, in writing, to be a proceeding in which it is desirable that he gives evidence; or

          (iii)       the purpose of giving assistance in relation to an investigation in Botswana certified by the Director of Public Prosecutions, in writing, to be an investigation in relation to which it is desirable that he gives assistance.

            (3) A certificate given by the Director of Public Prosecutions for the purposes of subsection (2)(b)(ii) or (iii) has effect from the day specified in the certificate (which may be a day before the day on which the certificate is given).

            (4) This section binds the State.


[Ch0804s16]16.     Status of person prosecuted for offence committed after departure from foreign country


            (1) Where a person has come to Botswana pursuant to a request by Botswana under section 13 he shall be taken, for the purposes of this Act, to be in Botswana pursuant to the request during any period during which he remains in Botswana for the purpose of being tried for a criminal offence under the laws of Botswana that he is alleged to have committed after his departure from the foreign country.

            (2) Without limiting the generality of subsection (1), the person shall be kept in such custody as the Director of Public Prosecutions directs under section 14.


[Ch0804s17]17.     Limitation on use of evidence given by certain persons


            (1) Where-

     (a)     a person is in Botswana-

           (i)       pursuant to a request under section 13; or

          (ii)       to give evidence in a proceeding, or to give assistance in relation to an investigation, pursuant to a request made by or on behalf of the Director of Public Prosecutions (not being a request under section 13) for international assistance in a criminal matter; and

     (b)     he has given evidence in the proceeding to which the request related or in a proceeding certified by the Director of Public Prosecutions under section 15(2)(b)(ii) in relation to him,

that evidence shall not be admitted or otherwise used in any prosecution of him for an offence against the laws of Botswana, other than the offence of perjury in relation to the giving of that evidence.

            (2) This section binds the State.


[Ch0804s18]18.     Release of certain persons upon request by foreign country


            Where-

     (a)     a person is being held in custody in accordance with a direction of the Director of Public Prosecutions under section 14; and

     (b)     the foreign country from which he has been brought requests his release from custody,

the Director of Public Prosecutions shall direct that he be released from custody.


[Ch0804s19]19.     Escaping


            Any person who escapes from lawful custody while in Botswana pursuant to a request under section 13 shall be guilty of an offence and liable to imprisonment for a term not exceeding two years.


[Ch0804s20]20.     Arrest of person who has escaped from custody


            (1) Any police officer may, without warrant, arrest a person, if he has reasonable grounds to believe that the person-

     (a)     has been brought to Botswana pursuant to a request under section 13; and

     (b)     has escaped from lawful custody while in Botswana pursuant to the request.

            (2) A person who has been arrested pursuant to subsection (1) shall be returned to custody in accordance with this Act.


[Ch0804s21]21.     Requests for giving of evidence at hearings in foreign countries


            (1) Where-

     (a)     a proceeding relating to a criminal matter has commenced in a foreign country;

     (b)     the foreign country requests the attendance at a hearing in connection with the proceeding of a prisoner who is in Botswana (whether or not in custody);

     (c)     there are reasonable grounds to believe that the prisoner is capable of giving evidence relevant to the proceeding; and

     (d)     the Director of Public Prosecutions is satisfied that-

           (i)       the prisoner has consented to giving evidence in the foreign country; and

          (ii)       the foreign country has given adequate undertakings in respect of the matters referred to in subsection (3),

the President may direct that the prisoner be released from prison for the purpose of travelling to the foreign country in the custody of a police officer or prison officer appointed by the Director of Public Prosecutions to give evidence at the proceeding.

            (2) Where-

     (a)     a proceeding relating to a criminal matter has commenced in a foreign country;

     (b)     the foreign country requests the attendance at a hearing in connection with the proceeding of a person who is in Botswana;

     (c)     there are reasonable grounds to believe that the person is capable of giving evidence relevant to the proceeding; and

     (d)     the Director of Public Prosecutions is satisfied that-

           (i)       the person has consented to giving evidence in the foreign country, and

          (ii)       that country has given adequate undertakings in respect of the matters referred to in subsection (3),

the Director of Public Prosecutions may make arrangements for the travel of the person to the foreign country.

            (3) The matters in relation to which undertakings are to be given by a foreign country for the purpose of a request that a person give evidence in the foreign country are-

     (a)     that he shall not-

           (i)       be detained, prosecuted or punished for any offence against the law of the foreign country that is alleged to have been committed, or that was committed, before his departure from Botswana;

          (ii)       be subjected to any civil suit in respect of any act or omission of the person that is alleged to have occurred, or that occurred, before his departure from Botswana; or

          (iii)       be required to give evidence in any proceeding in the foreign country other than the proceeding to which the request relates,

              unless he has left the foreign country and returned voluntarily; or he has had the opportunity of leaving the foreign country and has voluntarily remained in that country otherwise than for the purpose of giving evidence in the proceeding to which the request relates;

     (b)     that any evidence given by him in the proceeding to which the request relates will be inadmissible or otherwise disqualified from use in the prosecution of him for an offence against a law of the foreign country other than the offence of perjury in relation to the giving of that evidence;

     (c)     that he will be returned to Botswana in accordance with arrangements agreed by the Director of Public Prosecutions;

     (d)     in a case where he is being held in custody in Botswana and the Director of Public Prosecutions requests the foreign country to make arrangements for his keeping him in custody while he is in the foreign country-

           (i)       the making of appropriate arrangements for that purpose;

          (ii)       that he will not be released from custody in the foreign country unless the Director of Public Prosecutions notifies an appropriate authority of the foreign country that he is entitled to be released from custody under the laws of Botswana; and

          (iii)       if he is released in the foreign country as mentioned in subparagraph (ii), that his accommodation and expenses pending the completion of the proceeding to which the request relates will be paid for by the foreign country; and

     (e)     such other matters, if any, as the Director of Public Prosecutions thinks appropriate.


[Ch0804s22]22.     Requests for assistance in relation to investigations in foreign countries


            (1) Where-

     (a)     an investigation relating to a criminal matter has commenced in a foreign country;

     (b)     the foreign country requests the removal of a prisoner who is in Botswana (whether or not in custody) to the foreign country for the purpose of giving assistance in relation to the investigation;

     (c)     there are reasonable grounds to believe that the prisoner is capable of giving assistance in relation to the investigation; and

     (d)     the Director of Public Prosecutions is satisfied that-

           (i)       the prisoner has consented to being removed to the foreign country for the purpose of giving assistance in relation to the investigation; and

          (ii)       the foreign country has given adequate undertakings in respect of the matters referred to in subsection (3),

the President may direct that the prisoner be released from prison for the purpose of travelling to the foreign country in the custody of a police officer or prison officer appointed by the Director of Public Prosecutions to give assistance in relation to the investigation.

            (2) Where-

     (a)     an investigation relating to a criminal matter has commenced in a foreign country;

     (b)     the foreign country requests that a person who is in Botswana travel to the foreign country to give assistance in relation to the investigation;

     (c)     there are reasonable grounds to believe that he is capable of giving assistance in relation to the investigation; and

     (d)     the Director of Public Prosecutions is satisfied that-

           (i)       he has consented to travel to the foreign country for the purpose of giving assistance in relation to the investigation; and

          (ii)       the foreign country has given adequate undertaking in respect of the matters referred to in subsection (3),

the Director of Public Prosecutions may make arrangements for him to travel to the foreign country.

            (3) The matters in relation to which undertakings are to be given by a foreign country for the purpose of a request that a person be removed to, or travel to, the foreign country for the purpose of giving assistance in relation to an investigation are-

     (a)     that he shall not-

           (i)       be detained, prosecuted or punished for any offence against the law of the foreign country that is alleged to have been committed, or that was committed, before the person's departure from Botswana;

          (ii)       be subjected to any civil suit in respect of any act or omission of his that is alleged to have occurred, or that occurred, before his departure from Botswana; or

          (iii)       be required to give evidence in any proceeding in the foreign country,

              unless he has left the foreign country, and returned voluntarily or he has had the opportunity of leaving the foreign country and has voluntarily remained in that country otherwise than for the purpose of giving assistance in relation to the investigation to which the request relates;

     (b)     that he will be returned to Botswana in accordance with arrangements agreed by the Director of Public Prosecutions;

     (c)     in a case where he is being held in custody in Botswana and the Director of Public Prosecutions requests the foreign country to make arrangements for keeping him in custody while he is in the foreign country-

           (i)       the making of appropriate arrangements for that purpose;

          (ii)       that he will not be released from custody in the foreign country unless the Director of Public Prosecutions notifies an appropriate authority of the foreign country that he is entitled to be released from custody under the laws of Botswana; and

          (iii)       if he is released in the foreign country as mentioned in subparagraph (ii), that his accommodation and expenses pending the completion of the investigation to which the request relates will be paid for by the foreign country; and

     (d)     such other matters, if any, as the Director of Public Prosecutions thinks appropriate.


[Ch0804s23]23.     Effect of removal to foreign country on prisoner's term of imprisonment


            Where a prisoner who is serving a term of imprisonment for an offence against a law in Botswana is released from a prison pursuant to a request by a foreign country under section 21 or 22, the prisoner shall, while in custody in connection with the request (including custody outside Botswana), be deemed to be continuing to serve that term of imprisonment.