12 Jul 2018

Parliament has passed the Criminal Procedure and Evidence amendment Bill that was on Wednesday presented by Minister of Defence, Justice and Security Mr Shaw Kgathi.

When presenting the Bill, Minister Kgathi had stated that the bill was critical as it would enhance and facilitate investigative processes for anti-money laundering and counter-terrorism offences created by most of the laws recently passed by Parliament including the Illicit Traffic in Narcotic Drugs and the Psychotropic Substances Act.

He said the Criminal Procedure and Evidence Act was amended to make provision for a specific clause on parallel financial investigations. 

Mr Kgathi said currently there was no legal provision on the procedure for conducting parallel financial investigations.

He said the proposed amendment was therefore meant to accommodate a clearly spelt out provision to allow financial investigations to run parallel to the investigations of predicate criminal investigations, saying for instance, in a criminal investigation of a human trafficking offence, there could be millions of Pula in proceeds from that criminal activity being laundered through the financial system. 

“If focus remained only on the predicate offence of the human trafficking, the issue of financial gain from proceeds of the main offence would escape the attention of law enforcement authorities and therefore defeat the ends of justice,” he explained.

The minister said the amendment would therefore empower law enforcement and investigative authorities to also conduct parallel financial investigations alongside the main offences being investigated. 

Mr Kgathi said another proposed amendment was in relation to the taking of witness statements during investigations.

He said currently under the Act, there was no clearly spelt out provision authorising the taking of witness statements during investigations. 

He pointed out that while the law did not exclude the taking of such statements during investigations, there was urgent need for a clear and specific legal provision empowering law enforcement and investigative authorities to record witness statements during investigations.

The sole MP who debated the bill, Advocate Duma Boko of Gaborone Bonnington North noted that the Constitution protected every citizen against self-incrimination, as such neither a statement nor a confession could be extracted from any person if the said person did not want to make the statement or confession.

Therefore, he said the proposition in the amendment Bill that seemed to introduce a mandatory requirement that where a person was under investigation in relation to a possible criminal prosecution, such person could plead the right against self-incrimination and that would not help the investigating authority in any way.

Adv. Boko said even in the case of a confession under the Criminal Procedure and Evidence Act, such confession must be freely and voluntarily made, indicating that it appeared that the proposed amendment provided otherwise. BOPA