Published: 1990-11-09
Key Benefits:
ARRANGEMENT OF SECTIONS
PART I
Preliminary
SECTION
1. Short title
2. Interpretation
3. Application of Act
4. Object of Act
5. Refusal of assistance
6. Assistance may be provided subject to conditions
7. Requests by Botswana
8. Request by foreign country
PART II
Assistance in relation to Taking of Evidence and Production of Documents or other Articles
9. Requests by Botswana
10. Requests by foreign countries
PART III
Assistance in relation to Search and Seizure
11. Requests by Botswana for search and seizure
12. Requests by foreign countries for search and seizure
PART IV
Arrangements for Persons to give Evidence or Assist Investigations
13. Requests for removal of certain persons to Botswana
14. Custody of certain persons
15. Immunities
16. Status of person prosecuted for offence committed after departure from foreign country
17. Limitation on use of evidence given by certain persons
18. Release of certain persons upon request by foreign country
19. Escaping
20. Arrest of person who has escaped from custody
21. Requests for giving of evidence at hearings in foreign countries
22. Requests for assistance in relation to investigations in foreign countries
23. Effect of removal to foreign country on prisoner's term of imprisonment
PART V
Custody of Persons in Transit
24. Transit
25. Escaping
26. Arrest of person in transit
PART VI
Proceeds of Crime
27. Requests for enforcement of orders
28. Requests for issue of orders in foreign countries
29. Requests for enforcement of orders
30. Requests for search and seizure warrants in respect of tainted property
31. Requests for restraining orders
32. Requests for information gathering orders
PART VII
Service of Documents
33. Service of documents
PART VIII
Miscellaneous
34. Delegation
35. Evidence
36. Authentication of documents
37. Regulations
38. Act not to cover arrest or extradition
Act 20, 1990,
Act 14, 2005.
[Date of Commencement: 9th November, 1990]
This Act may be cited as the Mutual Assistance in Criminal Matters Act.
(1) In this Act, unless the context otherwise requires-
"approved form" means a form approved by the Director of Public Prosecutions in writing for the purposes of the provision in which the expression occurs;
"arrangement" includes a convention, protocol, agreement, scheme, or treaty;
"committal proceeding", in relation to a foreign offence, includes-
(a) any proceeding to determine whether a person should be tried for the offence (whether or not a particular person is specified at the commencement of that proceeding as the person in relation to whom the determination is to be made); and
(b) a proceeding that is, in accordance with the regulations, to be taken to be a committal proceeding for the purposes of this Act;
"confiscation order" has the meaning assigned to it under section 5 of the Cap. 08:03 Proceeds of Serious Crimes Act;
"criminal investigation" means an investigation into an offence (whether the offence is believed to have been committed, to be being committed or to be likely to be committed);
"criminal matter" includes-
(a) a criminal matter relating to taxation, customs duties or other revenue matter or relating to foreign exchange control;
(b) a matter relating to the forfeiture or confiscation of property in respect of an offence; and
(c) a matter relating to the restraining of dealings in property, or the freezing of assets, that may be forfeited or confiscated in respect of an offence,
whether arising under the laws of Botswana or a law of a foreign country;
"criminal proceeding", in relation to an offence, means a trial of a person for the offence or a committal proceeding in respect of offence;
"foreign forfeiture order" means an order, made under the law of a foreign country, for the forfeiture of property in respect of an offence against the law of that country;
"foreign prisoner" means a person who is being held in custody pending trial for or sentence for, or is under a sentence of imprisonment for, an offence against a law of a foreign country, but does not include a person who is at large after having escaped from lawful custody;
"foreign restraining order" means an order, made under the law of a foreign country, restraining a particular person, or all persons, from dealing with property, being an order made in respect of an offence against the law of that country;
"foreign offence" means an offence against a law of a foreign country;
"foreign serious offence" means a serious offence against a law of a foreign country;
"magistrate" means any person appointed as a Magistrate Grade I or over in accordance with the Cap. 04:04 Magistrates' Courts Act;
"money laundering offence" has the meaning assigned to it under section 14 of the Cap. 08:03 Proceeds of Serious Crime Act;
"offence" includes an offence against a law relating to taxation, customs duties or other revenue matters or relating to foreign exchange control;
"offence under the ordinary criminal law of Botswana" means an offence against the laws of Botswana other than an offence under the military law of Botswana;
"police officer" means a member of the Botswana Police Force;
"premises" includes-
(a) a structure, building, aircraft, vehicle or vessel;
(b) a place (whether enclosed or built upon or not); and
(c) a part of premises (including premises of a kind referred to in paragraph (a) or (b);
"prison" includes gaol, lock-up or other place of detention;
"production order" has the meaning assigned to it under section 17 of the Proceeds of Serious Crime Act;
"restraining order" has the meaning assigned to it under section 8 of the Proceeds of Serious Crime Act;
"serious offence" has the meaning assigned to it under section 2 the Proceeds of Serious Crime Act;
"tainted property", in relation to an offence, means-
(a) property used in, or in connection with, the commission of the offence; or
(b) proceeds of the offence.
(2) Where in this Act reference is made to the Commissioner of Police, such reference shall be deemed to include any person specially or generally authorized by the Commissioner of Police in that regard.
[Ch0804s3]3. Application of Act
(1) Where an arrangement has been made with a foreign country for mutual assistance in criminal matters, the Minister may by statutory instrument make regulations that this Act shall apply to that country.
(2) Regulations made under subsection (1) may provide that the application of this Act to a foreign country shall be subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to an arrangement made between Botswana and that country.
The object of this Act is to facilitate the provision and obtaining by Botswana of international assistance in criminal matters, including-
(a) the obtaining of evidence, documents or other articles;
(b) the provision of documents and other records;
(c) the location and identification of witnesses or suspects;
(d) the execution of requests for search and seizure;
(e) the making of arrangements for persons to give evidence or assist investigations;
(f) the confiscation of property in respect of offences;
(g) the recovery of pecuniary penalties in respect of offences;
(h) the restraining of dealings in property, or the freezing of assets, that may be confiscated, or that may be needed to satisfy pecuniary penalties imposed, in respect of offences;
(i) the location of property that may be confiscated, or that may be needed to satisfy pecuniary penalties imposed, in respect of offences; and
(j) the service of documents.
[Ch0804s5]5. Refusal of assistance
(1) A request by a foreign country for assistance under this Act shall be refused if, in the opinion of the Director of Public Prosecutions-
(a) the request relates to the prosecution or punishment of a person for an offence that is, or is by reason of the circumstances in which it is alleged to have been committed or was committed, an offence of a political character;
(b) subject to subsection (3), there are substantial grounds for believing that the request has been made with a view to prosecuting or punishing a person for an offence of a political character;
(c) there are substantial grounds for believing that the request was made for the purpose of prosecuting, punishing or otherwise causing prejudice to a person on account of his race, sex, religion, nationality or political opinions;
(d) the request relates to the prosecution or punishment of a person in respect of an act or omission that if it had occurred in Botswana, would have constituted an offence under the military law of Botswana but not also under the ordinary criminal law of Botswana;
(e) the granting of the request would prejudice the sovereignty, security or national interest of Botswana;
(f) the request relates to the prosecution of a person for an offence in a case where he has been acquitted or pardoned by a competent tribunal or authority in the foreign country, or has undergone the punishment provided by the law of that country, in respect of that offence or of another offence constituted by the same act or omission as that offence; or
(g) except in the case of a request under section 10, the foreign country is not a country to which this Act applies.
(2) A request by a foreign country for assistance under this Act may be refused if, in the opinion of the Director of Public Prosecutions-
(a) the request relates to the prosecution or punishment of a person in respect of an act or omission that, if it had occurred in Botswana, would not have constituted an offence against the laws of Botswana;
(b) the request relates to the prosecution or punishment of a person in respect of an act or omission that occurred, or is alleged to have occurred, outside the foreign country and a similar act or omission occurring outside Botswana in similar circumstances would not have constituted an offence against the laws of Botswana;
(c) the request relates to the prosecution or punishment of a person in respect of an act or omission where, if it had occurred in Botswana at the same time and had constituted an offence against the laws of Botswana, the person responsible could no longer be prosecuted by reason of lapse of time or any other reason;
(d) the provision of the assistance could prejudice an investigation or proceeding in relation to a criminal matter in Botswana;
(e) the provision of the assistance would, or would be likely to, prejudice the safety of any person (whether in or outside Botswana); or
(f) the provision of the assistance would impose an excessive burden on the resources of the State.
(3) An offence is not an offence of a political character-
(a) if it is an offence in accordance with the provisions of any international convention to which Botswana and the foreign country to which this Act applies are parties and there is an obligation on each party to afford mutual assistance in investigation and prosecution of such offence;
(b) if it is an offence against the life or person of a Head of State or a member of his immediate family, a Head of Government, or a Minister or any related offence;
(c) if it is murder or any related offence.
(4) For the purposes of subsection (3)(b) and (c), "related offence" means aiding and abetting, counselling or procuring the commission of, being an accessory before or after the fact to, or attempting or conspiring to commit that offence.
[Ch0804s6]6. Assistance may be provided subject to conditions
Assistance under this Act may be provided to a foreign country subject to such conditions as the Director of Public Prosecutions may determine.
[Ch0804s7]7. Requests by Botswana
Requests by Botswana for international assistance in criminal matters may be made by the Director of Public Prosecutions.
[Ch0804s8]8. Request by foreign country
(1) A request by a foreign country for international assistance in a criminal matter may be made to the Director of Public Prosecutions or a person authorised by the Director of Public Prosecutions, in writing, to receive requests by foreign countries under this Act.
(2) A request made under subsection (1) shall be accompanied by-
(a) the name of the authority concerned with the criminal matter to which the request relates;
(b) a description of the nature of the criminal matter and a statement setting out a summary of the relevant facts and laws;
(c) a description of the purpose of the request and of the nature of the assistance being sought;
(d) details of the procedure that the foreign country wishes to be followed by Botswana in giving effect to the request, including details of the manner and form in which any information, document or thing is to be supplied to the foreign country pursuant to the request;
(e) a statement setting out the wishes of the foreign country concerning the confidentiality of the request and the reasons for those wishes;
(f) details of the period within which the foreign country wishes the request be complied with;
(g) if the request involves a person travelling from Botswana to the foreign country, details of allowances to which the person will be entitled, and of the arrangements for accommodation for the person, while the person is in the foreign country pursuant to the request;
(h) any other information required to be included with the request under an arrangement between Botswana and the foreign country; and
(i) any other information that may assist in giving effect to the request; but failure to comply with this subsection is not a ground for refusing the request.
(3) Where a request by a foreign country is made to a person authorised under subsection (1), the request shall be taken, for the purposes of this Act, to have been made to the Director of Public Prosecutions.
