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VOLUME: II
CORRUPTION AND ECONOMIC CRIME
CHAPTER: 08:05

Part:III Functions of Directorate (ss 6-22)

6.       Functions of Directorate

            The functions of the Directorate shall be-

     (a)     to receive and investigate any complaints alleging corruption in any public body;

     (b)     to investigate any alleged or suspected offences under this Act, or any other offence disclosed during such an investigation;

     (c)     to investigate any alleged or suspected contravention of any of the provisions of the fiscal and revenue laws of the country;

     (d)     to investigate any conduct of any person, which in the opinion of the Director-General, may be connected with or conducive to corruption;

     (e)     to assist any law enforcement agency of the Government in the investigation of offences involving dishonesty or cheating of the public revenue;

     (f)      to examine the practices and procedures of public bodies in order to facilitate the discovery of corrupt practices and to secure the revision of methods of work or procedures which, in the opinion of the Director-General, may be conducive to corrupt practices;

     (g)     to instruct, advise and assist any person, on the latter's request, on ways in which corrupt practices may be eliminated by such person;

     (h)     to advise heads of public bodies of changes in practices or procedures compatible with the effective discharge of the duties of such public bodies which the Director-General thinks necessary to reduce the likelihood of the occurrence of corrupt practices;

     (i)      to educate the public against the evils of corruption; and

     (j)      to enlist and foster public support in combating corruption.

7.       Powers of Director

            (1) For the performance of the functions of the Directorate, the Director-General may-

     (a)     authorise any officer of the Directorate to conduct an inquiry or investigation into any alleged or suspected offences under this Act;

     (b)     require any person in writing to produce, within a specified time, all books, records, returns, reports, data stored electronically on computer or otherwise and any other documents relating to the functions of any public or private body;

     (c)     require any person, within a specified time, to provide any information or to answer any questions which the Director-General considers necessary in connection with any inquiry or investigation which the Director-General is empowered to conduct under this Act.

            (2) Any person who fails-

     (a)     to produce any matter required under subsection (1)(b); or

     (b)     to provide any information, or to answer any questions, or wilfully provides any false information or makes any false statement in answer to a question, under subsection (1)(c),

          shall be guilty of an offence and shall be liable to the penalty prescribed under section 18(2).

8.       Power of Director to obtain information

            (1) If, in the course of any investigation into any offence under Part IV, the Director-General is satisfied that it would assist or expedite such investigation, he or she may, by notice in writing, require-

     (a)     any suspected person to furnish a statement in writing-

           (i)       enumerating all movable or immovable property belonging to or possessed by him or her in Botswana or elsewhere or held in trust for him or her in Botswana or elsewhere, and specifying the date on which every such property was acquired and the consideration paid therefor, and explaining whether it was acquired by way of purchase, gift, bequest, inheritance or otherwise;

          (ii)       specifying any moneys or other property acquired in Botswana or elsewhere or sent out of Botswana by him or her or on his or her behalf during such period as may be specified in such notice;

     (b)     any other person with whom the Director-General believes that the suspected person had any financial transactions or other business dealing, relating to an offence under Part IV, to furnish a statement in writing enumerating all movable or immovable property acquired in Botswana and elsewhere or belonging to or possessed by such other person at the material time;

     (c)     any person to furnish, notwithstanding the provisions of any other enactment to the contrary, all information in his or her possession relating to the affairs of any suspected person and to produce or furnish any document or a certified true copy of any document relating to such suspected person, which is in the possession or under the control of the person required to furnish the information;

     (d)     the manager of any bank, in addition to furnishing any information specified in paragraph (c), to furnish any information or the originals, or certified true copies, of the accounts or the statements of account at the bank of any suspected person.

            (2) Every person on whom a notice is served by the Director-General under subsection (1) shall, notwithstanding any oath of secrecy, comply with the requirements of the notice within such time as may be specified therein, and any person who without reasonable excuse fails to so comply shall be guilty of an offence and shall be liable to the penalty prescribed under section 18(2).

            (3) Where in any proceedings for an offence under Part IV, it is proved that the person charged with the offence refused to furnish a statement required under paragraph (a) of subsection (1) when requested to do so, his or her refusal shall, unless reasonable cause thereof is shown, be treated as supporting any evidence given on behalf of the prosecution, or as rebutting any evidence given on behalf of the defence as regards the manner of his or her acquisition of the properties mentioned in the said paragraph (a).

9.       Special identity card

            The Director-General may issue to an officer of the Directorate a special identity card which shall be prima facie evidence of appointment as an officer of the Directorate.

10.     Power of arrest

            (1) An officer authorised in that behalf by the Director-General may, without warrant, arrest a person if he or she reasonably suspects that that person has committed or is about to commit an offence under this Act.

            (2) Where, during an investigation by an officer of the Directorate of a suspected offence under this Act, another offence is disclosed, the officer may, without warrant, arrest a person if he or she reasonably suspects that that person is guilty of that other offence, and he or she reasonably suspects that such other offence was connected with, or that either directly or indirectly its commission was facilitated by the suspected offence under this Act.

            (3) An officer referred to in this section may-

     (a)     use such force as is reasonable in the circumstance in effecting an arrest under this section; and

     (b)     for the purpose of effecting an arrest, enter and search any premises or place if he or she has reason to believe that there is in the premises or place a person who is to be arrested.

            (4) No premises or place shall be entered under subsection (3) unless the officer has first stated that he or she is an officer and the purpose for which he or she seeks entry and produced his or her identity card to any person requesting its production.

            (5) On compliance with the provisions of subsection (4), the officer may enter the premises or place by force, if necessary.

11.     Power of search and seizure

            (1) Where an officer has arrested a person under section 10, he or she may-

     (a)     search that person and the premises or place in which he or she was arrested;

     (b)     seize and detain anything which such officer has reason to believe to be or to contain evidence of any of the offences referred to in Part IV.

            (2) A person shall not be searched under subsection (1) except by a person of the same sex.

12.     Procedure after arrest

            A person arrested under section 10 shall be taken as soon as practicable to a police station to be dealt with in accordance with the provisions of the Criminal Procedure and Evidence Act.

13.     Search with warrants

            (1) If it appears to the Directorate that there is reasonable cause to believe that there is in any premises, place, vessel, boat, aircraft or other vehicle anything which is or contains evidence of the commission of any offence under Part IV, the Director-General or any officer of the Directorate may make an application on oath to a magistrate for a warrant to search such premises, place, vessel, boat, aircraft or other vehicle.

            (2) If a magistrate to whom an application is made under sub-section (1) is satisfied that there are reasonable grounds for suspecting that there is in the premises, place, vessel, boat, aircraft or other vehicle referred to in subsection (1) anything which is or contains evidence of the commission of any of the offences referred to in Part IV, he or she may by warrant direct the Director-General, or any officer authorised by him under section 7(1)(a), to enter and search such premises, place, vessel, boat, aircraft or other vehicle and seize and detain anything which the Director-General, or the officer authorised by the Director-General, has reason to believe to be or to contain evidence of any of the offences referred to in Part IV.

14.     Search without warrant in certain cases

            Whenever the Director-General, or an officer authorised by him or her under section 7(1)(a), has reasonable cause to believe that there is in any premises, place, vessel, boat, aircraft or other vehicle any article or document which is evidence of the commission of an offence, or in respect of which an offence has been, is being, or about to be committed, under Part IV, is being conveyed, or is concealed or contained in any package in the premises, place, vessel, boat, aircraft or other vehicle, for the purpose of being conveyed, then and in any such case, if the Director-General or the officer authorised by him or her under section 7(1) considers that the special exigencies of the case so require, he or she may without a warrant enter the premises, place, vessel, boat, aircraft or other vehicle, and search, seize and detain such article, document or package.

15.     Exercise of powers of search and seizure

            (1) In the exercise of the powers of search, seizure and detention under section 13(2) or 14, the Director-General or any other officer of the Directorate may use such reasonable force as is necessary in the circumstances, and may be accompanied or assisted by such other persons as he or she deems necessary to assist him or her to enter into or upon any premises, or upon any vessel, boat, aircraft or other vehicle, as the case may be.

            (2) Notwithstanding the provisions of sections 7, 13 and 14, the Director-General, or any other officer of the Directorate shall not have access to any books, records, returns, reports or other documents, or data stored electronically, or to enter upon any premises, place, vessel, boat, aircraft or other vehicle if in the opinion of the President in writing such access or entry is likely to prejudice national security.

16.     Surrender of travel document

            (1) A magistrate may, on the application ex parte of the Director-General, by written notice require a person who is the subject of an investigation in respect of an offence alleged or suspected to have been committed by him or her under Part IV to surrender to the Director-General any travel document in his or her possession.

            (2) If a person on whom a notice under subsection (1) has been served fails to comply with the notice forthwith, he or she may there-upon be arrested and taken before a magistrate.

            (3) Where a person is taken before a magistrate under subsection (2), the magistrate shall, unless such person thereupon complies with the notice under subsection (1) or satisfies the magistrate that he or she does not possess a travel document, by warrant commit him or her to prison there to be safely kept until he or she complies with the notice.

17.     Return of travel document

            (1) A person who has surrendered a travel document under section 16 may at any time make a written application to the Director-General for its return, and every such application shall contain a statement of the grounds on which it is made.

            (2) The Director-General may-

     (a)     grant the application either without conditions or subject to such conditions as to the further surrender of the travel document and the appearance of the applicant at any time and place in Botswana as may be specified by the Director-General in a written notice served personally on the applicant; or

     (b)     refuse the application.

            (3) A person aggrieved by the refusal of the Director-General to return his or her travel document to him or her may appeal to a magistrate.

18.     Resisting or obstructing officers

            (1) Any person who resists or obstructs an officer in the execution of his or her duty shall be guilty of an offence.

            (2) Any person guilty of an offence under this section or section 7(2) or 8(2) shall be liable on conviction to imprisonment for a term not exceeding five years, or to a fine not exceeding P10 000, or to both.

19.     False reports to officers

            Any person who knowingly-

     (a)     makes or causes to be made to an officer a false report of the commission of any offence; or

     (b)     misleads an officer by giving false information or by making false statements or accusations,

shall be guilty of an offence and shall be liable on conviction to a term of imprisonment not exceeding three years.

19A.  Protection of disclosure of identity

            Notwithstanding the provisions of section 21, a person who discloses the identity of another person which he or she obtained or to which he or she has had access by virtue of-

     (a)     the performance of his or her duties or functions under this Act; or

     (b)     his or her position as a person who holds or has held any office in the Directorate, and from which the identity of any person who

           (i)       is or was a confidential source of information to the Directorate, or

          (ii)       is or was an officer or support staff engaged in covert operational activities of the Directorate, can be inferred,

and who discloses such information to any person other than a person to whom he or she is authorised to disclose it to or towhom itmay lawfully be disclosed, shall be guilty of an offence and shall be liable on conviction to a termof imprisonment not exceeding three years.

19B.  Prohibition of unauthorised disclosure of information

            (1) Without prejudice to any other written law, an officer or support staff of the Directorate shall not disclose or use any information gained by him or her by virtue of his or her employment otherwise than in the strict course of his or her official duties or with the authority of the Director-General.

            (2) A person who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a term of imprisonment not exceeding three years.

20.     Falsely pretending to be officer

            Any person who falsely pretends-

     (a)     that he or she is an officer of the Directorate or has any of the powers of an officer under this Act or under any authorisation or warrant issued under this Act; or

     (b)     that he or she is able to procure an officer of the Directorate or to do or refrain from doing anything in connection with the duty of such officer,

shall be guilty of an offence and shall be liable on conviction to a term of imprisonment not exceeding three years.

21.     Immunity of officers of Directorate

            No action shall be brought against the Director-General or any other officer of the Directorate (or any other person authorised by the Director-General to perform any act under this Act), in respect of any act or thing done or omitted to be done in good faith in the exercise of his duties under this Act.

22.     Annual report

            (1) The Director-General shall, on or before 31 March in each year, or by such later date as the President may allow, submit to the President a report on the activities of the Directorate in the previous year.