THE 13TH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTIONPARTICIPANTS’
PAPERSPARTICIPANTS’ PAPERSEFFECTIVE LEGAL AND PRACTICAL MEASURES FOR COMBATINGCORRUPTION
Rehman Khan*

I. INTRODUCTION
There is no doubt that the globalization of crime via internationally organized criminal syndicates hascreated an enabling environment for corruption to thrive. Corruption manifests itself in various forms andthe causes of organized crime are also complex.1
According to the World Bank, corruption hinders economic efficiency, diverts resources from thepoor to the rich, increases the cost of running businesses, distorts public expenditure and deters foreign
investment.2
It has further been observed that corruption has the effect of distorting the allocation of resources by
sharply increasing the cost of goods and services; diverting scarce resources to lesser or non-priorities andthereby seriously neglecting fundamental needs particularly basic needs such as food, health and education;acting as a disincentive by possibly deterring prospective economic activities and investment; and lastly, ofincreasing the likelihood of other crimes.3
This is even the case in democratic systems such as the one obtaining in Botswana. Although there is noclear correlation between levels of democracy and those of corruption, democratization leads to increased
political and civil freedoms which often amounts to giving licence without responsibility to the benefit ofexisting and emerging political elites.4 It is further true that the effects of corruption are particularly harmful
in developing countries in that the few available resources are not used in the most effective and equitableway. In this way it has been observed that corruption is the cause and consequence of under-development
and poverty in general.5
In the 1960s, Botswana was listed among the world’s least developed countries due to its lack ofstrong public sector institutions or qualified citizens or personnel. Today she is listed as the least corrupt
country on the African continent and is further ranked number 37 globally.6 However, this should not be
misconstrued to mean that these low levels of corruption are tolerable or that our public institutions arevery effective in combating this phenomenon. Quite a number of government activities are vulnerable tocorruption, including: public procurement, allocation of state land, revenue collection, appointment to postsin central and local government, and local government contracts.
In 1994, the Directorate on Corruption and Economic Crime (DCEC), whose primary function andmandate is to combat corruption, was established following general indications that corrupt practices wereon the increase, as evidenced by incidents of illegal land dealings in Mogoditshane and the first biggest
corruption case to be reported to the Directorate involving Botswana Housing Corporation.

* Assistant Director of Public Prosecutions, Directorate of Public Prosecutions, Botswana.
1 World Bank, Report on governance and development, 1992 at P116.
2 The World bank Group, Corruption; a major barrier to sound and equitable development , 7 October 1996.
3 Lala Camere, Costly crimes, commercial crime and corruption in South Africa, ISS Monograph Series No 5 September 1997.
4 B. Harriss- White and G White, Corruption, liberalization and democracy IDS Bulletin 27 (2) 1996 at page 3.
5 Frisan, Corruption and development at page 4.
6 Transparency International, Corruption Perception Index, accessed on 2 August 2010 .

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It is apposite to mention that apart from the Botswana Police Service, which has powers to investigate
acts of corruption as proscribed under the Penal Code,7 the DCEC is the only public institution in the
country whose primary function and mandate is to combat corruption. The Directorate was created in termsof Section 3 of the Corruption and Economic Crime Act.8 Since its establishment, the DCEC has pursued its
mandate through a three-pronged strategy based on investigation, prevention and public education.

II. FUNCTIONS OF THE DIRECTORATEThe functions of the Directorate as listed under Section 6 of the Act are as follows:(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 discovered
during such an investigation;(c) To investigate any alleged or suspected contravention of any of the provisions of the fiscal andrevenue laws of the country;(d) To investigate any conduct of any person, which in the opinion of the Director, may be connectedwith 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 ofcorrupt practices and to secure the revision of methods of work or procedures which, in the opinionof the Director, 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 thinks necessary to reduce thelikelihood 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.
It can be observed that the Section confers a variety of functions on the Directorate, some of which arereactive and others proactive. The proactive functions listed in paragraphs (d), (i) and (j) have the potential
to bring about the greatest rewards despite being too demanding at times.

III. DEFINITION OF CORRUPTION UNDER THE ACT (CECA)
At the outset it is important to point out that the word ‘corruption’ has its origins in the Latin word
‘corruptus’ which means ‘to break’. It actually emphasizes the destructive tendency of corruption on the
moral fabric of society and the confidence entrusted to those holding public and private office.9 The Oxford
English Dictionary defines corruption as “the perversion or destruction of integrity in the discharge of the
public duties by bribery or favour; the use or existence of corruption practices especially in a state, public
corporation etc.”
The United Nations Convention against Corruption (UNCAC) does not define corruption but
acknowledges its link with other forms of crime, especially organized crime and economic crime as well as
money laundering.10 On the other hand, the Southern African Development Community Protocol against
Corruption11 defines it as any act referred to in Article 3 thereof and includes bribery or any acts performedby persons entrusted with responsibilities in order to obtain undue advantage for themselves or others.
7 Sections 99-110.
8 Act 13 of 1994.

9 Collin Nicholas QC, Tim Daniel, Martin Polaine and John Hatchard (eds) Corruption and misuse of public office (2006) Oxford

University Press at page 1.

10 See Preamble to the Convention.

11 It was signed on 14 August 2001 in Malawi by all heads of state and Government of the SADC community.

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The Corruption and Economic Crime Act (CECA) of 1994 does not define corruption but creates several
offences of corruption committed in both the public sector and private sector.12 The basic elements that run
through almost all of these offences is the receiving and offering of valuable consideration. The receivercommits corruption if he or she accepts directly or indirectly, or agrees or offers to permit his or her conduct
as a public officer to be influenced by any valuable consideration to be received by him or her, or by anyother person or from any person. The giver also commits a similar offence if the valuable consideration orpromise thereof is given with the same intention as above.
It matters not whether the gratification is received for personal gain or that of someone else. The Act
makes reference to valuable consideration which in terms of Section 23 thereof, is wide enough to cover
any conceivable thing of value that can be given to a person as an inducement to act in a certain way. The
definition extends to:(a) Any gift, benefit, loan, fee, reward or commission consisting of money or of any valuable security orof other property or interest in the property of any description;(b) Any office, employment or contract;(c) Any payment, release, discharge or liquidation of any loan, obligation or other liability, whether inwhole or in part;(d) Any other service or favour, including protection from any penalty or disability incurred orapprehended or from any action or proceedings of a disciplinary, civil or criminal nature, whether or
not already instituted;(e) The exercise or forbearance from the exercise of any right or any power or duty; and(f) Any offer, undertaking or promise, whether conditional or unconditional, of any valuable
consideration within the meaning of the provisions of the preceding paragraphs.

IV. OFFENCES OF CORRUPTION UNDER THE ACT (CECA)
Part IV of the Corruption and Economic Crime Act has five sections that deal with corruption of public
officers as follows:
•
•
•
•
•

Section 24 - Corruption by a public officer;
Section 25 - Corruption in respect of an official transaction;
Section 26 - Acceptance of a bribe by a public officer after doing the act;
Section 27 - Promise of a bribe to a public officer after doing the act;
Section 29 - Bribery for giving assistance in regard to contracts.

Four sections deal with corruption in relation to procurement, tendering and contracting namely:••••

Section 28 - Corrupt transactions by or with agents;
Section 30 - Bribery for procuring withdrawal of tender;
Section 32 - Bribery in relation to auctions conducted by or on behalf of any public body.
A ‘public body’ is defined under Section 2 of the Act as “any office, organisation, and establishment
or body created by or under any enactment; and includes any company in which 51 per cent or moreof the equity shares are owned by the Government of Botswana.”

The other offences created by the Act are “cheating of public revenue” contrary to Section 33 and“possession of unexplained property” contrary to Section 34. With regard to the last offence, it is an offence
for one to maintain a standard of living beyond one’s available legal resources. Any property or pecuniary
resources held in trust for or on behalf of an accused person, or given by the accused as a loan or gift without
adequate consideration, shall be deemed to have been under the control or in the possession of the accused
until the contrary is proved.

12 Part IV of the Act, Sections 24 - 33.

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The act does not seek to penalize the giving or acceptance of valuable consideration as a reward orcompensation for something already done in the past, as a result of which, some acts of corruption may go
unpunished.

V. CORRUPTION OFFENCES IN THE PENAL CODE (CAP 08:01) LAWS OF BOTSWANA
The Penal Code creates various offences under the heading “Corruption and the Abuse of Office” asfollows:
•
•
•
•
•
•
•
•

Section 99 - Official Corruption;
Section 100 - Extortion by public officers;
Section 101 - Public officers receiving property to show favour;
Section 102 - Officers charged with administration of property of a special character or with special
duties;13
Section 103 - False claims by officials;
Section 104 - Abuse of office;Section 384 - Corrupt practices by and of agents; andSection 385 - Secret commission on government contracts.

Other offences in the Penal Code include, “stealing by persons employed in the Public Service” (Section276), ”stealing by clerks and servants” (Section 277), “stealing by Directors or officers of companies”(Section 278), and “stealing by agents,” etc. (Section 279). Perjury and subordination of perjury areproscribed by Section 111, conspiracy to defeat justice and interfere with witnesses is proscribed by Section
120 and various offences relating to judicial proceedings are proscribed by Section 123.

VI. CUSTOMS AND EXERCISE DUTY ACT (CAP 50:01) LAWS OF BOTSWANA
Section 90 (1) (j) and (k) make it a serious offence for any person to give or promise to give, directly or
indirectly, any reward to an officer or person employed by the government in respect of the performanceof duties under the Act. An officer who demands or receives such reward in the circumstances describedabove is also guilty of an offence. Upon conviction such person shall be liable to a fine not exceeding P20,000
or treble the value of the goods in respect of which the offence was committed, whichever is greater, or to
imprisonment for a period not in excess of five years or to both.
In terms of Section 97 (A) the Director of Customs and Exercise may from time to time publish in the
Government Gazette a list of names and addresses of persons who have been convicted of offences in termsof Sections 86 to 97 of the Act and the particulars of the fines or sentences imposed.

VII. CORRUPTION STATISTICS FOR 2007, 2008 AND 2009Year

Total Reports

2006
2007
2008
2009

1778
1460
1851
1992

Report Investigatedby the DCEC
617
487
613
669

Analysis of data published by the DCEC over the past four years reveals that most of the cases ofcorruption and fraud reported and prosecuted before the courts were perpetrated by very junior officers incentral and local government such as accounts clerks, vehicle examiners, vehicle licensing officers, labour
and immigration officers and low-ranking officers of the Police Service and Army.
13 It criminalizes the discharge of duties by persons employed in the public sector who are charged with judicial oradministrative duties respecting property of special character or respecting the manufacture, trade or business of a special
character whilst having, directly or indirectly, a private interest in the property, manufacture, trade or business referred to.

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It may well be that this low-level corruption occurs as result of delegating authority to relatively juniorand poorly paid public officials to control the collection of government revenue, issuance of licences, permits
and other official documents. Lack of adequate supervisory and auditing mechanisms or absence of periodic
inspections could be other contributing factors.
Other interesting cases worth mentioning which were investigated by the Directorate include fraud
perpetrated by junior officials of the Government Central Medical Stores and certain individuals. The
government lost P21 million in payment of pharmaceutical drugs that were never delivered. The case is still
pending before court and the accused persons have been charged with several counts of obtaining by false
pretences contrary to Section 308 of the Penal Code.
Another case involves a corporate body registered under the company laws of Botswana under the nameand style “Daisy Loo (Pty) Ltd.” The company, through its managing director, conspired with some seniortechnical officers of Gaborone City Council to defraud the latter of the sum of P24 million for providing bushclearance, tree trimming and grass cutting services under some dubious contracts. The cheque that wasissued as payment by the City Council was subsequently seized by the Directorate of Public Prosecutions
as an exhibit for the ongoing trial. The accused are facing charges of conspiracy to defraud14 and giving
false information to a person employed in the public service15 in addition to a charge of obtaining by false
pretences.
Another interesting case is one involving a company called “Tourism Consortium (Pty) Ltd” and its
managing directors, one of whom committed suicide whilst proceedings were still pending before court,
and was a former boss of Botswana’s Debswana Mining Company. The case for the state is that the said
accused persons and others made false presentations to the former President of the Republic of Botswana
and Cabinet Ministers to the effect that Tourism Development Consortium (Pty) Ltd was a vehicle throughwhich Debswana (a company partly owned by Botswana) intended to contribute to the diversification of
Botswana’s economy, as a result of which the government allocated it a very big piece of land in Gaborone
when in actual fact such company was not in existence at that time.
The case is also still pending before court on charges ranging from giving false information to a person
employed in the public service, forgery, obtaining registration of a title deed by false pretences, conspiracy
to defraud, conspiracy to prevent lawful disposal of property for its lawful value, receiving unlawfully
obtained property, stealing by servant and cheating of public revenue.16
A more recent case that has raised eye brows with regard to Government tendering procedures is one
involving a company called “RFT Botswana (Pty) Ltd” which tendered for the supply to Botswana Police
Service of aviation ground support equipment. One of the directors of this company is the current Ministerof Defence, Justice and Security who holds various portfolios under his supervision, one of which is the
Botswana Police Service.
It is alleged that the minister is guilty of corruption in violation of the provisions of Section 31(1) of the
Corruption and Economic Crime Act by failing to declare his interest in the tendering as aforesaid, in his
capacity as director and shareholder of the said company that won a Government tender worth millions ofpula.17 The minister pleaded not guilty to the charge and has also resigned from his cabinet post.

VIII. CURRENT SITUATION OF PROBLEMS AND CHALLENGES IN
THE INVESTIGATION, PROSECUTION, CONFISCATION AND RECOVERY OF ASSETS
A. Challenges in Investigation of Cases
Reports obtained from the Directorate on Corruption and Economic Crime indicate that, on a yearly
14 Contrary to Section 312 as read with 24 of the Penal Code.

15 Contrary to Section 131 of the Penal Code.
16 These offences are contrary to the provisions of Sections 131(a), 344 as read with 339, 314 as read with 24, 312 as read with24, 393(c), 317 as read with 24, 271 as read with 277 of the Penal Code, respectively, as well as Section 33 of the CECA.

17 See Article 9(e) of UNCAC that, inter alia, calls for appropriate measures to be taken to deal with declaration of interest, inparticular, public procurements.

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basis, over 600 cases are classified for investigation and the proportion of such cases far exceeds thenumber of officers available to investigate them. This situation is brought about by the high attrition rate ofexperienced officers in search of better paying jobs. This results in low case completion rates.
Furthermore, the proportion of cases where the reporters prefer to remain anonymous has steadily
increased over the years and currently stands at 21.69%.18 This is a great challenge for the Directoratein that it is very difficult to follow up this type of report and thus lose out on vital information that could
advance the course against corruption. Factors that might be responsible for this unfortunate state ofaffairs could include the lack of a clear protection plan for whistleblowers and this might expose them tovictimization and, in some cases, loss of employment.
Some cases of corruption and abuse of the office19 are investigated by the police, who often lackthe necessary training and resources, resulting in compromised investigations. Legal and institutional
constraints within which the DCEC operates might in certain circumstances hinder its effectiveness. In
terms of Section 15 (2) of the CECA, the Directorate is prohibited from accessing any documents andinformation which the President deems to be likely to prejudice national security.
The Act further gives officers of the Directorate the power to arrest without warrant any person
suspected of having committed an offence under the Act20 but without making provision for post-arrest
detention. As a result such persons have to be taken before the police to be dealt with in accordance with theprovisions of the Criminal Procedure and Evidence Act. This means that accused persons have to be warned
and cautioned for offences by officers who have not taken part in the investigations.
In terms of Section 16 of the Act the Director is required to apply to a magistrate for permission to seize
travel documents of anyone suspected of having committed an act of corruption. This can lead to suspects
skipping the country once allegations or investigations of corruption come to the fore.
Furthermore, there is no provision in the Act that empowers the DCEC to tap telephones in order toobtain evidence or further investigations as is the case in other jurisdictions with similar legislation.21

B. Prosecution of Cases
No prosecution of an offence committed under Part IV of the Corruption Act can be instituted without
the written consent of the Director of Public Prosecutions22 who is the dominis litis in so far as prosecutionof criminal matters at the public instance is concerned.23 Such powers have been delegated to officers of the
DCEC in terms of Section 8 of the Criminal procedure and Evidence Act. Currently there is only one officer
handling prosecution as and when requested by the office of the DPP to assist due to manpower constraints.
Just like DCEC, the office of the DPP is also faced with massive resignations of experienced prosecutors.
This in turn results in cases taking too long to be completed and consequently loss of public confidence inthe prosecuting authority.
Lack of specialization does not only affect the magistracy but extends to the DPP’s office as well. The
absence of specialized training to deal with corruption related issues has a negative impact on capacity
building for prosecutors. In the end the quality of prosecution is compromised.

C. Freezing and Confiscation of Proceeds of Crime
The Act empowers the Director of Public Prosecutions to apply for a restraining order whenever a person
investigated for an act of corruption has been charged or is about to be charged for an offence. However,such application has to be made under Section 8 of the Proceeds of Serious Crime Act. In this connection,
identification of property representing the proceeds of crime still remains a daunting task for investigators
18 DCEC Case Statistics, Source Type Status Report compiled on 2 August 2010.

19 This is with regard to offences under the Penal Code.
20 Section 10 of CECA.
21 Article 50 of UNCAC encourages States Parties to use appropriate special investigative techniques in order to effectively

combat corruption.

22 Section 39 of CECA.

23 Section 7 of the Criminal Procedure and Evidence Act (Cap 08:02) Laws of Botswana.

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and prosecutors alike. Failure to establish a connection or link between the alleged unlawful activity andthe property concerned results in criminals getting away with proceeds of crime that they eventually use tocommit more crimes.
It is also very difficult to prove that property is an instrumentality of an offence without sufficient evidence
to show that it was used as a means or instrument in the commission of the offence, or that it was otherwise
involved in the commission of the offence.24
As far as confiscation orders are concerned, they can only be applied for by the Director of Public
Prosecutions after conviction for acts of corruption or cheating of the public revenue under the Act. The
application also has to be in terms of the provisions of the Proceeds of Serious Crime Act.25 This means thatcriminals can get away with instrumentalities and proceeds of crime in the event they are acquitted. In thisway our legal regime is not strong enough to ensure that criminals are completely stripped off the benefits ofcrime.

D. International and Regional Co-operation
The Mutual Assistance in Criminal Matters Act26 enables Botswana to get assistance with regard to
the provision and obtaining of international assistance in criminal matters. There is also the Extradition
Act,27 which allows for extradition to Botswana of persons accused of committing crimes in the country but
present in the jurisdiction of other countries to which the Act applies.
The absence of an extradition treaty with a requested state often makes it difficult to get the required
assistance. Even where these instruments are in place, various legal requirements and restrictions,jurisdictional problems and differences in criminal law and procedure often pose serious barriers toco-operation and mutual legal assistance.
Resort to informal requests which are less cumbersome and capable of yielding quick results may notalways pass constitutional muster.

IX. CONCLUSION
Botswana is one of the countries on the African continent that is replete with laws, policies andregulations aimed at combating corruption. However, much still needs to be done to make these laws
more effective in addressing modern trends of crime and conform to international best practice. For
example, there is no law that addresses bribery of foreign public officials and officials of public internationalorganizations, as recommended under UNCAC.
The absence of whistleblower and witness protection legislation makes it very difficult to get the fullparticipation and co-operation of all stake holders, particularly the public.28
Botswana’s failure or reluctance to ratify the United Nations Convention against Corruption further
makes it practically impossible to get international assistance from other countries since most of the
instruments ratified so far are not of universal application like the UN Convention.
Lack of political will on the part of politicians to declare their investments, assets and substantial gifts
or benefits is another area of great concern and this creates a lot of suspicion of corruption. This does notaccord well with Article 9(e) of the Convention.

24 See Article 31 of UNCAC which deals with freezing, seizure and confiscation of proceeds of crime, property, equipment orother instrumentalities used or to be used in the commission of crime.

25 Section 3 of the Act.

26 Act 20 of 1990 Cap 08:04, Laws of Botswana.
27 Act 18 of 1990 Cap 09:03, Laws of Botswana.

28 See Articles 33 and 32, respectively, of UNCAC.

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