Mutual Assistance In Criminal Matters - Preliminary (Ss 1-8)

Link to law: http://www.elaws.gov.bw/desplaylrpage1.php?id=482

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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]




Part:I Preliminary (ss 1-8)




[Ch0804s1]1. Short title

This

Act may be cited as the Mutual Assistance in Criminal Matters Act.

[Ch0804s2]2. Interpretation

(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.

[Ch0804s4]4. Object of Act

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.