CHAPTER 08:05
CORRUPTION AND ECONOMIC CRIME
ARRANGEMENT OF SECTIONS
SECTION
PART I
Preliminary
1. Short title
2. Interpretation
PART II
Establishment of Directorate
3. Establishment of Director-General
4. Appointment of Director-General
5. Acting Director-General
5A. Conditions of service of Directorate
5B. Disciplinary code by Minister
5C. Conduct of officers and support staff
PART III
Functions of Directorate
6. Functions of Directorate
7. Powers of Director-General
8. Power of Director-General to obtain information
9. Special identity card
10. Power of arrest
11. Power of search and seizure
12. Procedure after arrest
13. Search with warrants
14. Search without warrant in certain cases
15. Exercise of powers of search and seizure
16. Surrender of travel document
17. Return of travel document
18. Resisting or obstructing officers
19. False reports to officers
19A. Protection of disclosure of identity
19B. Prohibition of unauthorised disclosure of information
20. Falsely pretending to be officer
21. Immunity of officers of Directorate
22. Annual report
PART IV
Offences
23. Definition of valuable consideration
24. Corruption by or of public officer
24A. Abuse of public office
25. Corruption in respect of official transaction
25A. Trading in influence
26. Acceptance of bribe by public officer after doing act
27. Promise of bribe to public officer after doing act
28. Corrupt transactions by or with agents
29. Bribery for giving assistance in regard to contracts
30. Bribery for procuring withdrawal of tender
31. Conflict of interest
32. Bribery in relation to auctions
33. Cheating of public revenue
34. Possession of unexplained property
35. Certain matters not to constitute defence
36. Penalty
37. Application for confiscation order
38. Application for restraining order
PART V
Prosecution of offences
39. Prosecution of offences
PART VI
Evidence
40. Evidence of pecuniary resources or property
41. Evidence of an accomplice
42. Presumption of corruption
42A. Endorsement of conviction in register
PART VII
Miscellaneous
43. Frivolous, false or groundless complaints
44. Prohibition of disclosure of information
44A. Sharing of information
44B. Confidentiality
45. Protection of informers
45A. Intimidation of informers
46. Liability for offences committed abroad
47. Regulations
Act 13, 1994,
Act 14, 2005,
Act 6, 2013,
Act 29, 2018.
An Act to provide for the establishment of a Directorate on Corruption and Economic Crime; to make comprehensive provision for the prevention of corruption; and confer power on the Directorate to investigate suspected cases of corruption and economic crime and matters connected or incidental thereto.
[Date of Commencement: 19th August, 1994]
PART I
Preliminary (ss 1-2)
This Act may be cited as the Corruption and Economic Crime Act.
In this Act, unless the context otherwise requires—
“agent” includes any person employed by or acting for another;
“Deputy Director-General” means the Deputy Director-General of the Directorate;
[6 of 2013, s. 3(a).]
“Director-General” means the person appointed under section 4;
“Directorate” means the Directorate established under section 3;
“principal” includes an employer;
“public body” means any office, organisation, establishment or body created by or under any enactment or under powers conferred by any enactment; and includes any company in which government has equity shares or any organisation or body where public moneys are used;
[6 of 2013, s. 3(b).]
“public officer” includes any person—
(a) holding an office by election or appointment under any enactment or under powers conferred by any enactment;
(b) who is or was at the relevant time paid from public funds; or
(c) who is or was at the relevant time responsible for the custody, safekeeping or collection of public funds or other property or public funds or other moneys; and
[6 of 2013, s. 3(c).]
“valuable consideration” has the meaning assigned to it under section 23.
PART II
Establishment of Directorate (ss 3-5C)
3. Establishment of Directorate
(1) There is established a Directorate to be known as the Directorate on Corruption and Economic Crime (in this Act referred to as “the Directorate”).
[6 of 2013, s. 4.]
(2) The Directorate shall consist of the Director-General, Deputy Director-General, other officers and support staff of the Directorate as may be appointed.
[6 of 2013, s. 4.]
(3) The Directorate shall be a public office; and accordingly the provisions of the Public Service Act (Cap. 26:01) shall apply mutatis mutandis to the Directorate and the officers thereof.
[6 of 2013, s. 4.]
4. Appointment of Director-General
(1) The President shall appoint the Director-General on such terms and conditions as the President deems fit.
[6 of 2013, s. 4.]
(2) The Director-General shall be responsible for the direction and administration of the Directorate.
[6 of 2013, s. 4.]
(3) Any decision, including investigations by the Director-General shall not be subject to the direction and control of any person or authority.
[6 of 2013, s. 4.]
(1) If the office of the Director-General is vacant or the Director-General is absent from duty, the Deputy Director-General shall, except where the President otherwise directs, act as Director-General.
[6 of 2013, s. 4.]
(2) If the Director-General and the Deputy Director-General are absent from duty, the President may appoint another person to act as Director-General until the return to duty of either the Director-General or the Deputy Director-General.
[6 of 2013, s. 4.]
5A. Conditions of service of Directorate
(1) The Minister shall prescribe such conditions of service of the Directorate setting out the terms and conditions for the appointment of officers and support staff.
[6 of 2013, s. 4.]
(2) The conditions of service prescribed under subsection (1) shall provide for—
(a) the designation and grades of officers and support staff;
(b) the scale of salaries and allowances of officers and support staff; and
(c) the promotions, resignations and termination of appointments of officers and support staff.
[6 of 2013, s. 4.]
5B. Disciplinary code by Minister
(1) The Minister shall prescribe a disciplinary code for the Directorate, which disciplinary code shall provide for—
(a) disciplinary offences;
(b) the investigation, hearing and determination of disciplinary offences and the hearing of any appeals; and
(c) the delegation, by the Director-General, to officers and support staff, of such disciplinary powers as he or she may consider appropriate.
[6 of 2013, s. 4.]
(2) The disciplinary code prescribed under subsection (1) shall provide for the following disciplinary penalties or any combination thereof—
(a) dismissal from the Directorate;
(b) reduction in rank or grade;
(c) suspension from duty for a specified period;
(d) reprimand;
(e) admonition; and
(f) recovery of the cost or part thereof in respect of any loss or damage to the property of the Directorate caused by the default or negligence of any officer subject to disciplinary proceedings where such recovery has not been effected through any other Government procedure.
[6 of 2013, s. 4.]
5C. Conduct of officers and support staff
An officer of the Directorate shall not become a member of any trade union, or any body or association affiliated to a trade union, or any body or association the object of which or one of the objects of which is to control or influence conditions of employment in any trade or profession:
Provided that an officer may become a member of any such body or association which may be constituted and regulated pursuant to this Act.
[6 of 2013, s. 4.]
PART III
Functions of Directorate (ss 6-22)
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.
(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).
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.
(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.
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 (Cap. 08:02).
(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 subsection (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.
(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.
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 to whom it may lawfully be disclosed, shall be guilty of an offence and shall be liable on conviction to a term of imprisonment not exceeding three years.
[6 of 2013, s. 5.]
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.
[6 of 2013, s. 5.]
(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.
[6 of 2013, s. 5.]
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.
(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.
PART IV
Offences (ss 23-38)
23. Definition of valuable consideration
For the purposes of this Part, “valuable consideration” means—
(a) any gift, benefit, loan, fee, reward or commission consisting of money or of any valuable security or of other property or interest in 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 in whole or in part;
(d) any other service, or favour including protection from any penalty or disability incurred or apprehended 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 any of the preceding paragraphs.
24. Corruption by or of public officer
(1) A public officer is guilty of corruption in respect of the duties of his or her office if he or she directly or indirectly agrees or offers to permit his or her conduct as a public officer to be influenced by the gift, promise, or prospect of any valuable consideration to be received by him or her, or by any other person, from any person.
(2) A person is guilty of corrupting a public officer if he or she endeavours directly or indirectly to influence the conduct of the public officer in respect of the duties of his or her office by the gift, promise, or prospect of any valuable consideration to be received by the public officer, or by any other person, from any person.
(1) A public officer is guilty of corruption if he or she directly or indirectly, uses his or her public office or position in a public body to obtain any valuable consideration whether for the benefit of himself or herself or any other person.
[6 of 2013, s. 6.]
(2) For the purposes of subsection (1), proof that a public officer in a public body has made a decision or taken action in relation to any matter in which the public officer, or any relative or associate of his or hers has an interest, whether directly or indirectly, is, in the absence of evidence to the contrary which raises reasonable doubt, sufficient evidence that the public officer has corruptly used his or her office or position in the public body in order to obtain a gratification.
[6 of 2013, s. 6.]
(3) Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding P5 000 or to imprisonment for a term not exceeding three years or to both.
[6 of 2013, s. 6.]
25. Corruption in respect of official transaction
(1) A public officer is guilty of corruption if he or she accepts, or agrees or offers to accept, for himself or herself, or for any other person any valuable consideration as an inducement or reward for doing or forbearing to do anything in respect of any matter in which he or she is concerned in his capacity as a public officer.
(2) A person is guilty of corrupting a public officer if he or she gives or agrees or offers to give any valuable consideration to a public officer, whether for the benefit of that public officer or of another person as an inducement or reward for doing or forbearing to do anything in respect of any matter in which the public officer is concerned in his or her capacity as a public officer.
(1) A person is guilty of corruption if he or she directly or indirectly promises, offers or gives to a public body or any other person, a valuable consideration, in order that the public body or the person abuses his or her real or supposed influence with a view to obtaining from that person an undue advantage for himself or herself or for any other persons own benefit.
[6 of 2013, s. 7.]
(2) A public officer or any other person shall be guilty of an offence if he or she directly or indirectly solicits or accepts, a valuable consideration for himself or herself or for another person, in order that the public officer or the person abuses his or her real or supposed influence with a view to obtaining from a public body a valuable consideration.
[6 of 2013, s. 7.]
26. Acceptance of bribe by public officer after doing act
If, after a person has done any act as a public officer, he or she accepts, or agrees or offers to accept for himself or herself or for any other person, any valuable consideration on account of such act, he or she shall be presumed, until the contrary is shown, to have been guilty of corruption in respect of that act before the doing thereof.
27. Promise of bribe to public officer after doing act
If, after a public officer has done any act as such officer, any other person agrees or offers to give to or procure for him or her or for any other person any valuable consideration on account of such act, the person so agreeing or offering shall be presumed, until the contrary is shown, to have been guilty of having, before the doing of such act, corrupted the public officer in respect of such act.
28. Corrupt transactions by or with agents
(1) An agent is guilty of corruption if he or she corruptly accepts, or agrees or offers to accept from any person, for himself or herself or for any other person any valuable consideration as an inducement or reward for doing or forbearing to do, or for having done or forborne to do, any act in relation to his or her principal’s affairs or business, or for showing or for bearing to show favour or disfavour to any person in relation to his or her principal’s affairs or business.
(2) A person is guilty of corruption if he or she corruptly gives or agrees to give or offers to give to any agent any valuable consideration as an inducement or reward for doing or forbearing to do, or for having done or forborne to do, any act or for showing or forbearing to show favour or disfavour to any person in relation to his or her principal’s affairs or business.
(3) If any person knowingly gives to any agent, or if any agent knowingly uses with intent to deceive his or her principal, any receipt, account or other document in respect of which the principal is interested, and which contains any statement which is false or erroneous or defective in any material particular, and which to his or her knowledge is intended to mislead the principal, such a person is guilty of corruption.
29. Bribery for giving assistance in regard to contracts
(1) A public officer is guilty of corruption if he or she directly or indirectly accepts or agrees or offers to accept for himself or herself or for any other person any valuable consideration as an inducement or reward for or otherwise on account of his giving assistance or using influence in, or having given assistance or used influence in, promoting, administering, executing or procuring (including any amendment, suspension or cancellation) of any contract (including a subcontract) with a public body.
(2) A person is guilty of corruption if he or she directly or indirectly gives, or agrees or offers to give any valuable consideration to any public officer as an inducement or reward for or otherwise on account of the public officer giving assistance or using influence in, or having given assistance or used influence in, promoting, administering, executing or procuring any contract (including a subcontract) referred to in subsection (1).
30. Bribery for procuring withdrawal of tender
(1) (1) A person is guilty of corruption if he or she directly or indirectly accepts or agrees or offers to accept for himself or herself or for any other person any valuable consideration as an inducement or reward for or otherwise on account of the withdrawal of a tender, or the refraining from the making of a tender, for any contract with a public body for the performance of any work, the providing of any service, the doing of any thing or the supplying of any article, material or substance.
(2) A person is guilty of corruption if he or she directly or indirectly gives or agrees or offers to give any other person any valuable consideration as an inducement or reward for or otherwise on account of the withdrawal of a tender, or the refraining from the making of a tender for such a contract as is referred to in subsection (1).
(1) A member or employee of a public body is guilty of corruption if—
(a) he or she, the immediate member of his or her family has a direct or indirect interest, in any company or undertaking with which such body proposes to deal; or
(b) he or she has a personal interest in any decision which such body is to make,
and he or she, knowingly fails to disclose the nature of such interest, or votes or participates in the proceedings of such body relating to such dealing or decision without disclosing the nature of his or her interest.
[6 of 2013, s. 8.]
(2) It is a defence to a charge under this section if the member or employee of a public body having an interest, has first made, in writing, to his or her appointing authority, the fullest disclosure of the exact nature of his or her interest and has been permitted thereafter to take part in the proceedings relating to such dealing or decision.
[6 of 2013, s. 8.]
(3) For the purposes of this section—
(a) direct interest in a company or undertaking means a member or employee of a public body or the immediate member of the family of the member or employee of a public body—
(i) holds a position in,
(ii) is an employee of,
(iii) is a shareholder in, or
(iv) gives services for remuneration or reward to, a company or undertaking referred to in subsection (1);
(b) “immediate member of the family” means the spouse, son, daughter, sibling or parent of the member or employee of a public body; and
(c) “indirect interest in a company or undertaking” means an employee, agent or nominee of a member or employee of a public body or his or her immediate member of the family has a direct interest in a company or undertaking referred to in subsection (1).
[6 of 2013, s. 8.]
32. Bribery in relation to auctions
(1) (1) A person is guilty of corruption if he or she directly or indirectly accepts or agrees to accept for himself or herself or any other person any valuable consideration as an inducement or reward for or otherwise on account of his or her refraining or having refrained from bidding at any auction conducted by or on behalf of any public body
(2) A person is guilty of corruption if he or she directly or indirectly gives or agrees or offers to give any other person any valuable consideration as an inducement or reward for or otherwise on account of that other person’s refraining or having refrained from bidding at any auction conducted by or on behalf of any public body.
33. Cheating of public revenue
A person is guilty of cheating the public revenue if as a result of his or her fraudulent conduct money is diverted from the revenue and thereby depriving the revenue of money to which it is entitled.
34. Possession of unexplained property
(1) The Director-General or any officer of the Directorate authorised in writing by the Director-General may investigate any person where there are reasonable grounds to suspect that that person—
(a) maintains a standard of living above that which is commensurate with his or her present or past known sources of income or assets; or
(b) is in control or possession of pecuniary resources or property disproportionate to his or her present or past known sources of income or assets.
(2) A person is guilty of corruption if he or she fails to give a satisfactory explanation to the Director-General or the officer conducting the investigation under subsection (1) as to how he or she was able to maintain such a standard of living or how such pecuniary resources or property came under his or her control or possession.
(3) Where a court is satisfied in any proceedings for an offence under subsection (2) that, having regard to the closeness of his or her relationship to the accused and to other relevant circumstances, there is reason to believe that any person was holding pecuniary resources or property in trust for or otherwise on behalf of the accused, or acquired such resources or property as a gift, or loan without adequate consideration, from the accused, such resources or property shall, until the contrary is proved, be deemed to have been under the control or in the possession of the accused.
35. Certain matters not to constitute defence
(1) If, in any proceedings for an offence under this Part, it is proved that the accused accepted any valuable consideration, believing or suspecting or having reasonable grounds to believe or suspect that the valuable consideration was given as an inducement or reward for or otherwise on account of his or her doing or forbearing to do, or having done or forborne to do, any act referred to in this Part, it shall be no defence that—
(a) he or she did not actually have the power, right or opportunity to do so or forbear;
(b) he or she accepted the valuable consideration without intending to do so or forbear;
(c) he or she did not in fact do so or forbear.
(2) If, in any proceedings for an offence under this Part, it is proved that the accused offered any valuable consideration to any other person as an inducement or reward for or otherwise on account of that other person’s doing or forbearing to do, or having done or forborne to do, any act referred to in this Part, believing or suspecting or having reasonable grounds to believe or suspect that such other person had the power, right or opportunity to do so or forbear, it shall be no defence that such other person had no such power, right or opportunity.
Any person who is guilty of corruption or cheating the revenue under this Part shall, upon conviction, be liable to imprisonment for a term not exceeding 10 years or to a fine not exceeding P500 000, or to both.
37. Application for confiscation order
Where a person has been convicted of corruption or cheating the public revenue under this Part, the Director of Public Prosecutions may apply for a confiscation order under section 3 of the Proceeds of Serious Crime Act (Cap. 08:03), and accordingly, the provisions of that Act shall have effect in respect of the application.
38. Application for restraining order
Where a person, who is the subject of an investigation under this Act has been or is about to be charged with an offence under Part IV, the Director of Public Prosecutions may apply for a restraining order under section 8 of the Proceeds of Serious Crime Act (Cap. 08:03), and accordingly, the provisions of that Act shall have effect in respect of the application.
PART V
Prosecution of Offences (s 39)
(1) If, after an investigation of any person under this Act, it appears to the Director-General that an offence under Part IV has been committed by that person, the Director-General shall refer the matter to the Director of Public Prosecutions for his or her decision.
(2) No prosecution for an offence under Part IV shall be instituted except by or with the written consent of the Director of Public Prosecutions.
PART VI
Evidence (ss 40-42)
40. Evidence of pecuniary resources or property
(1) In any proceedings against a person for an offence under Part IV, the fact that the accused was, at or about the date of or at any time since the date of the alleged offence, is in possession, for which he or she cannot satisfactorily account, of pecuniary resources or property disproportionate to his or her present or past known sources of income or assets, or that he or she had, at or about the date of or at any time since the date of the alleged offence, obtained an accretion to his or her pecuniary resources or property for which he or she cannot satisfactorily account, may be proved and may be taken by the court—
(a) as corroborating the testimony of any witness giving evidence in such proceedings that the accused accepted or agreed or offered to accept any valuable consideration; and
(b) as showing that the consideration was accepted or agreed or offered to be accepted as a valuable consideration as an inducement or reward.
(2) For the purposes of subsection (1) an accused person shall be presumed to be or to have been in possession of pecuniary resources or property, or to have obtained an accretion thereto, where such resources or property are or were held, or such accretion was obtained, by any other person whom, having regard to his or her relationship to the accused or to any other circumstances, there is reason to believe is or was holding such resources or property or obtained such accretion in trust for or otherwise on behalf of the accused or as a gift from the accused.
Notwithstanding any rule of law or practice to the contrary, no witness shall, in any proceedings for an offence under Part IV, be regarded as an accomplice by reason only of any payment or delivery by him or her or on his or her behalf of any valuable consideration to the person accused or, as the case may be, by reason only of any payment or delivery of any valuable consideration by or on behalf of the person accused to him or her.
Where in any proceedings for an offence under Part IV, it is proved that the accused offered or accepted a valuable consideration, the valuable consideration shall be presumed to have been offered and accepted as such inducement or reward, as is alleged in the particulars of offence unless the contrary is proved.
42A. Endorsement of conviction in register
(1) A court convicting a person under section 28 or 29 may, in addition to imposing a sentence provided for in section 36, issue an order that—
(a) the particulars of the person;
(b) the conviction and sentence; and
(c) any other order of the court consequent thereupon, be endorsed in the register kept under section 124 of the Public Procurement and Asset Disposal Act (Cap. 42:02).
[6 of 2013, s. 9.]
(2) If the person referred to in subsection (1) is a body corporate or unincorporated body, the court may in addition to the conviction, issue an order that—
(a) the particulars of the body corporate or unincorporated body;
(b) the particulars of any partner, manager, director or other person, who wholly or partly exercises or may exercise control over that body corporate or unincorporated body and who was involved in the offence or who ought reasonably to have known or suspected that the body corporate or unincorporated body committed the offence; and
(c) the conviction, sentence and any other order of the court consequent thereupon,
be endorsed in the register.
[6 of 2013, s. 9.]
(3) The court may in addition to the conviction issue an order provided for in subsection (1) in respect of—
(a) any body corporate or unincorporated body owned or controlled by the person so convicted; or
(b) the particulars of any partner, manager, director or other person, who wholly or partly exercises or may exercise control over such other body corporate or unincorporated body,
and which—
(i) body corporate or unincorporated body, partner, manager, director or other person was involved in the offence, or
(ii) partner, manager, director or other person knew or ought reasonably to have known or suspected that the body corporate or unincorporated body was involved in the offence.
[6 of 2013, s. 9.]
(4) Whenever the register is endorsed as stipulated in subsections (1), (2) and (3), the endorsement applies, unless the court directs otherwise, to every body corporate or unincorporated body to be established in the future and which body corporate or unincorporated body will be wholly or partly controlled or owned by the person or the body corporate or unincorporated body so convicted or endorsed, and the register shall in respect of every such body corporate or unincorporated body, be endorsed accordingly.
[6 of 2013, s. 9.]
(5) Where a court has issued an order under subsection (1), the clerk of such court shall forward the court order to the Public Procurement and Asset Disposal Board established under the Public Procurement and Asset Disposal Act.
[6 of 2013, s. 9.]
PART VII
Miscellaneous (ss 43-47)
43. Frivolous, false or groundless complaints
(1) At the conclusion of any proceedings for an offence under Part IV, the court may, if it is of the opinion that the complainant or any other person has knowingly, and with intent to harm the accused, made a false, frivolous or groundless allegation against him or her, so certify in writing and transmit the certificate and the record of the proceedings to the Director of Public Prosecutions.
(2) Any person who in the opinion of the court certified under subsection (1) has made a false, frivolous or groundless complaint or allegation to the effect that any person has committed or attempted to commit, or aided, abetted or counselled the commission of, or conspired with any other person to commit, any offence under Part IV, shall be guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding five years, or to a fine not exceeding P5 000, or to both.
44. Prohibition of disclosure of information
Any person who, without lawful authority or reasonable excuse, discloses to any person who is the subject of an investigation in respect of an offence alleged or suspected to have been committed by him under this Act the fact that he or she is subject to such an investigation or any details of such investigation, or publishes or discloses to any other person either the identity of any person who is the subject of such an investigation or any details of such an investigation, shall be guilty of an offence and shall be liable, on conviction, to imprisonment for a term not exceeding one year or to a fine not exceeding P2 000, or to both.
Nothing in this section shall preclude the disclosure of information by the Directorate to a comparable body in a foreign country for the purpose of assisting it in exercising functions corresponding to those of the Directorate under this Act.
[29 of 2018, s. 2.]
The Directorate shall regard, and deal with as confidential all documents and information shared under this Act.
[29 of 2018, s. 2.]
(1) In any trial in respect of an offence under Part IV, a witness shall not be obliged to disclose the name or address of any informer, or state any matter which might lead to his or her discovery.
(2) Where any books, documents or papers which are in evidence or liable to inspection in any civil or criminal proceedings under this Act contain an entry in which any such informer or person is named or described or which might lead to his or her discovery, the court, before which the proceedings are held, shall cause all such passages to be concealed from view or to be obliterated so far as may be necessary to protect the informer or such person from discovery.
(3) If in any proceedings before a court for an offence under this Act the court, after full inquiry into the case, is satisfied that an informer wilfully made a material statement which he or she knew or believed to be false or did not believe to be true, or if in any other proceedings a court is of the opinion that justice cannot be fully done between the parties thereto without disclosure of the name of an informer or a person who has assisted the Director-General, the court may permit inquiry and require full disclosure concerning the informer or such person.
45A. Intimidation of informers
Any person who threatens or intimidates another person for reporting allegations of corruption under this Act shall be guilty of an offence and shall be liable, on conviction, to a fine not exceeding P10 000 or to imprisonment for a term not exceeding five years, or to both.
[6 of 2013, s. 10.]
46. Liability for offences committed abroad
The provisions of this Act shall have effect, in relation to citizens of Botswana, outside as well as within Botswana; and where an offence under Part IV is committed by a citizen of Botswana in any place outside Botswana, he or she may be dealt with in respect of such offence as if it had been committed within Botswana.
The President may, by statutory instrument, make regulations generally for the purpose of giving effect to the provisions of this Act.