On discovering a data breach, which regulators or other government agencies should be notified?
The Information and Data Protection Commission.
TerraLex Cross-Border Guide to Global Crisis Management Regulatory Guide
Welcome to the TerraLex global crisis management regulatory guide
When a crisis hits your organisation, you need to take action quickly. What practical steps can you and your team take to minimize the impact on your business? What are your reporting requirements in the relevant jurisdiction(s)? What legislation applies there?
Our guide provides you with the answers to these questions in relation to key jurisdictions and it supports your understanding of the relevant local legal framework. It also provides high level practical guidance for those crucial first 72 hours, together with contact details of the local TerraLex firm for when you need specialist advice.
A crisis, by its nature, is both serious and unexpected and your response and actions within the first 72 hours will most likely define its impact on your organisation.
It is therefore important to have in place robust procedures that, if followed, will help minimize the adverse consequences.
The crisis checklist below includes next steps which are common across all jurisdictions. Please refer to the chapter for the relevant jurisdiction for more detailed guidance on your obligations in that country.
How to Use: You can use the tools below to create bespoke reports for the jurisdiction(s) and topic(s) covered. Click into single jurisdiction for one location or use the compare tool to compare multiple jurisdictions. Select the jurisdictions and topics of interest to create your unique report. You also have the option to print or download using the ellipsis button in the top right corner.
Botswana Global Crisis Management Regulatory Guide Guide
- Firms:
- Fairbridges (Botswana)
- Authors:
- Bob Groeneveld, Rahim Khan
- Date posted:
- 04/04/2023
- Last update:
- 05/04/2023
Data breach
What legislation, relating to both criminal offences and civil wrongs, covers such a breach?
The Data Protection Act No 32 of 2018 (the “Act”). The Act was meant to come into force after a “grace” period which was set end on the 15th of October 2022. However, this period has now been extended by one year as the Data Commissioner has noted that more time is needed to set up their office and enforce the Act.
"Dawn" raids
What agencies have the power to conduct dawn raids on private sector companies? What legislation gives those agencies the power to undertake those inspections?
The Competition and Consumer Authority Botswana (the ‘Authority’), per The Competition Act, 2018.
On what bases, including privilege and/or confidentiality, may organisations refuse to permit the seizure of documents?
Where the Authority reasonably suspects that a practice constitutes an infringement of the outright prohibited horizontal agreements or vertical agreements or amounts to the abuse of a dominant position in the market, it may initiate an investigation, either of its own accord, or on receipt of information or a complaint.
Written notice of an investigation must be served on all the affected parties as soon as practicable, unless the Authority considers that it would materially prejudice the initial stages of the investigation. In this regard, provision is made for “dawn raids”, by allowing for the Authority to authorize the entry and search of the premises of an enterprise in certain circumstances.
No enterprise or person is required to disclose any information or document which they would be entitled in court to refuse to disclose or produce on the grounds of legal profession privilege.
Whistleblowing
What are the circumstances under which an employee is entitled to protection when reporting an alleged wrongdoing?
Disclosure must be deemed to be made in good faith; there must be a reasonable belief that the disclosure is substantially true; and that it has been made to an authorised person or agency who has discretion to investigate and act on the disclosure.
What legislative protection does that employee enjoy?
Constitution of the Republic of Botswana; Whiste Blowing Act No 9 of 2016
Anti-bribery and corruption
What are the main anti-corruption laws and regulations in your jurisdiction?
Corruption and Economic Crime Act, 1998 (the “CECA”)
Does the legislation have extra-territorial effect?
Section 46 of the CECA governs the liability for offences committed abroad. The provisions of the CECA shall have effect, in relation to citizens of Botswana, outside as well as within Botswana; and where an offence is committed by a citizen of Botswana in any place outside Botswana, it may be dealt with if it had been committed within Botswana.
What are the main enforcement bodies?
In this jurisdiction, the Directorate on Corruption and Economic Crime has the responsibility to investigate allegations of corruption and economic crime, educate the public on the effects of corruption and prevent corruption itself.
Internal investigations
Is there any duty to report the issue, for example to a regulator?
Yes.
What is the protection from disclosure for documents generated as part of the investigation (for example, privilege)?
Section 44 of the CECA contains penalties for public disclosure of someone being under investigation for possible corruption. The rationale behind section 44 is to protect investigations and reputation during lengthy procedures which require care and fairness. Disclosure of the identity of the person under investigation would pre-empt and interfere with the investigation. The press is free to report on any case as long as it is officially before a court as part of ongoing litigation.
Is the advice given by an in-house lawyer in relation to the investigation privileged and/or confidential?
See above.
Disclaimer: This guide contains summaries of general principles of law. It is not a substitute for specific legal advice and should not be relied upon in relation to the application of the law or subject matter covered.