The 2014 general elections have come and gone. Thanks to all stakeholders – the Independent Electoral Commission (IEC), the security wings, the media and the general public – the elections closed in a dignified manner, vindicating Botswana’s international ranking as a thriving democracy and oasis of peace.
The public was polarized on various pre-election issues. There was a stark apprehension, fed by frenzied media reports that, perhaps, the elections might be manipulated by the security agencies. Despite the polar views, Batswana voted in peace – their wishes clearly expressed through the ballot,the results unanimously endorsed by leading local and international analysts as free and fair.
Generally, many analysts agree that the 2014 results reflected the country’s pre-election mood. The lack of evidence to remotely suggest that the security organs meddled with the election outcome, contrary to pre-election fears, shows how speculative media reporting that the security apparatus is there to just keep tabs on citizens can cause unnecessary alarm.
Sensational reporting by the media on intelligence security services can stigmatize the work of a country’s intelligence services, leading to dire consequences for the country’s competitiveness and overall security.
This article strives to create awareness about the essential functions of intelligence services in protecting a democratically elected government and a commercially competitive state.
The nation needs to appreciate and render support to the positive aspects of intelligence services and the challenges intelligence personnel face on the frontline when fighting various forms of threats to national security.
The importance of an intelligence system in a democracy cannot be over emphasized.There is more to intelligence services than simply keeping a political party in power. Like the 2014 elections have now shown, the ruling Botswana Democratic Party is in power today courtesy of a split of the opposition vote. Batswana demonstrated they have a voice in the affairs of the country through the ballot without any interference from any security organs contrary to public perceptions.
While the public easily accepts the police, soldiers and other security operatives, there is always a measure of mistrust and phobia when it comes to living side by side with the intelligence services, fueling a rocky relationship with debates that sometimes seem to tear the country apart.
The stigma towards security intelligence services, fueled by the media’s disdain, combines to isolate intelligence services from main stream governance functions. These factors ultimately have the potential to weaken and demoralize the fight against organized crime in the country, let alone to attract talent in this vital national undertaking.
As an integral part of governance in a modern state, Intelligence services do not necessary exist exclusively for a sitting President. Among other things, they support the policy positions of a democratically elected government. Any citizen who ascends to the highest office of the land would need efficient security wings, not only to shield the state from all forms of sophisticated crime, but also to protect an elected government to complete its mandated constitutional term of office and deliver on its policy priorities without any forms of sabotage.
In other words all state security organs, including the intelligence wings, exist together to protect the choices of the society through an elected government in power,regardless of which party that wins an election.
All democratic states worldwide, from super powers such as the United States of America to impoverished countries of the third world, retain security intelligence services to defend them against various threats to national security. Democracy as amodel of governance in itself needs to be defended and protected, not only through the ballot and the media, but by state intelligence agencies too.
The mandate of a security intelligence service therefore has a more complex and broader function of defining and developing adequate intelligence on present and future threats to national security. In any democracy such as Botswana’s, this task is carried out with due care to ensure respect for human rights and protect fundamental freedoms of nationals. Law abiding citizens should therefore never live in uncalled for fear or phobia of the intelligence wings.
In the United States of America, the Federal Bureau of Investigation (FBI) is directed or authorised by Presidential statements and directives to obtain information about activities threatening American security from time to time. America has seen it all in the world of threats. Intelligence agencies in the United States require to be very vigilant, well financed and always on their toes in order to be a step ahead of a complex web of different manifestations of criminals that could bring the world’s top economy to its knees if the intelligence organs fail to function efficiently. September 11 is a case in point.
Botswana has its own unique challenges in terms of national threats. Glaring high profile project failures in the economy give the impetus to increase the surveillance capacity of the local intelligence community in order to provide the executive timely and vital information for decision making on key national projects.
The country has lost millions of Pula in failed mega projects.The Hyundai plant, the collapse of the Fengyue glass project in Palapye and the struggling Mmamabula power project are cases which if stakeholders (executives) had engaged and fully collaborated with the intelligence community in screening partnering companies perhaps it would have yielded a different story.
Organized crime syndicates are always calibrating their schemes and it calls for a well resourced and passionate intelligence service to counter these emerging threats in the national interest.
A clearly defined mandate helps a security intelligence service to function efficiently. What must be avoided though is when the rhetoric of “national security” is used to justify clamping down on dissent and civil liberties. At the same time, the relevant legislation defining the threats to national security should be flexible and broad enough to allow a security intelligence service to scan the horizons and prepare for looming threats in the ever changing complex world of criminals. These threats may well be terrorism arising from new conflicts, or serious crime and financial fraud undermining the economy of a democratic state, or people attacking communications and computer systems.
In defining the roles of Intelligence services in a democratic state, this article deals with two forms of threats that a state intelligence system needs to define and develop strategies against. Later articles will investigate other forms of threats to national security that the intelligence services have to contend with, concluding with the relationship between the public, the media and the intelligence services.
Espionage and sabotage With a view to protecting national security, sensitive information concerning political, economic, scientific or military affairs of the state must be kept secret. All countries have secrets that other states seek to acquire in order to advance their objectives. Any unauthorised attempt to obtain such information for a foreign power is an indication of possible espionage. Sabotage is considered as activities conducted for the purpose of endangering the safety, security or defense of vital public or private property, such as installations, structures, equipment or systems.
In countering espionage, a security intelligence service catches spies, thereby disrupting activities of hostile intelligence services.
Countering espionage is the “oldest” task of most of the world’s security intelligence services. For example, the British Security Service was set up in 1909 (it was then known as the “Secret Service Bureau”) specifically to counter the espionage threat. The FBI was founded in 1908 (it was then known as the “Special Agent Force”) to investigate particular federal crimes, but during World War I was given responsibility for espionage and sabotage.
Most intelligence experts today agree that a state can do away way with countering espionage since the majority of information can come from analyzing open sources of information such as foreign publications, broadcasts, routine diplomatic reporting and newspaper reports.
However, one category of espionage that has not declined but rather expanded is economic espionage. In the competitive global economy, acquiring scientific and technological information for the purpose of gaining an economic advantage has become increasingly important for many countries. Economic espionage is defined as the use of, or facilitation of, illegal, clandestine, coercive or deceptive means by a foreign government or its surrogates to acquire economic intelligence. Economic espionage can expose the targeted state’s companies to unfair disadvantages, jeopardizing the jobs, competitiveness of the state, and hampering its research and development investment.
Business and governmental representatives generally agree that the cost of economic espionage activities to individual firms and the economies that host them is very expensive. Among the most sought-after information include research and development strategies, manufacturing and marketing plans, and customer lists. Information and technology that has been the target of economic espionage includes trade and pricing information, investment strategy, contract details, supplier lists, planning documents, research and development data, technical drawings and computer data-bases.
Some analysts suggest considering an international effort to ban active economic espionage by way of an international treaty that does for economic spying like what the General Agreement on Tariffs and Trade aims to do for protectionism. The treaty might even actively encourage openness and the sharing of information, the better to promote scientific research, technological breakthroughs, and economic development.
However, in the light of the rise in economic-related crimes, Botswana has to transform its national requirements for security intelligence to reflect this modified threat environment. Economic security is now one of the main priorities of a security intelligence service. While it’s easy to vilify the government for not allowing certain individuals access to the country, many countries in the world prevent certain foreign visitors, students and delegates suspected of intelligence activities from gaining access to the country. We may not know everything behind immigration choices on certain individuals.
Therefore, notwithstanding the decline in espionage and related activities after the end of the Cold War, countering espionage and sabotage must remain one of the principal tasks in the mandate of a security intelligence service. The service could also keep a careful watch on economic and industrial espionage conducted by other countries and their companies within the state and warn the domestic firms that have been targeted. Defending the state’s economic secrets can reveal interesting facts itself; if a particular country is targeting a specific industry that may indicate something about that country’s economic priorities.
The public, the media and academics need to support Botswana’s intelligence community in the fight against organized crime. There is need to call on government to increase the capacity of the intelligence system to support the development of the state. The intelligence community may fail to attract talent if it is viewed negatively. Botswana should guard against tainting its intelligence and security organ.
In June 2019, a case involving the Attorney General was brought before the High Court, in which the applicant Letsweletse Motshidiemang challenged Sections 164 (a) and 167 of the Penal Code. The applicant contended that these sections are unconstitutional because they violate the fundamental rights of liberty and privacy.
The applicant argued that these sections violated his right and freedom to liberty as he was subject to abject ignominy. These laws subjected the LGBTIQ community to brutal and debasing treatment through social control and public morality. On the 1st of November 2017, the Botswana High Court further allowed Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) to join the case as amicus curiae.
However, in July 2019, the respondents, in this case, i.e. the Government, filed an appeal against this iconic High Court ruling seeking re-criminalization of homosexuality. Human Rights Group has criticized this move of the Government all over the world. The appeal was heard before five judges at the Court of Appeal on Tuesday. The State was represented by Advocate Sidney Pilane, while LEGABIBO and Letsweletse Motshidiemang were represented by Tshiamo Rantao and Gosego Rockfall Lekgowe, respectively.
Non-Governmental Organizations advocating for the LGBTIQ+ community joined the two parties at the Court of Appeal during this case. They argue that the minority group should enjoy their rights, especially the right to privacy and health. Botswana Network on Ethics, Law and HIV/AIDS (BONELA) Chief Executive Officer, Cindy Kelemi says the issues being raised by LEGABIBO are that as individuals belonging to the LGBTIQ community, they have and must share equal rights, including the right to privacy, which also speaks to being able to involve in sexual activities, including anal sex.
“Those rights are framed within the constitution, and therefore a violation of any of those rights allow them to approach the courts and seek for redress. We do not need the law to be regulating what we do in the privacy of our homes. The law cannot determine how and when we can have sex and with who, so the law does not have any business in that context. What we are saying is that the law is violating the right to privacy,” she said on the sidelines of the decriminalization case in Gaborone on Tuesday.
The first case involving the homosexual act was the Utjiwa Kanane vs the State in 2003. Contrary to section 164(c) of the Penal Code, Kanane was charged with committing an unnatural offence and engaging in indecent practices between males, contrary to section 167. The conduct at issue involved Graham Norrie, a British tourist, and occurred in December 1994. (Norrie pleaded guilty, paid a fine, and left the country.)
Kanane pleaded not guilty, alleging that sections 164(c) and 167 both violated the constitution. The High Court ruled that these sections of the Penal Code did not violate the constitution. Kanane then appealed to the Court of Appeal. BONELA CEO recalls that in its judgment then, the High Court indicated, Batswana were not ready for homosexual acts. Twenty years later, the same courts are saying that Batswana are ready, she says.
“They gave the explicit example that shows that indeed Batswana are ready. There are policies and documents in place that accommodate people from marginalized communities and minority populations. The question now is that why is it hard now to recognize the full rights of an individual who is of the LGBTI community?” She further says intimacy is only an expression. The law that restricts homosexuality makes it hard for LGBTIQ members to express themselves in a way that affirms who they are.
“We want a situation where the law facilitates for the LGBTIQ community to be free and express themselves. The stigma that they face in communities is way too punitive. They are called names; some have been physically violated and raped at times. It shows that the law doesn’t not only prevent them from expressing themselves, it also exposes them to violence.” The law on its own, Kelemi submits, cannot change the status quo, adding that there is a need for more awareness and education on human rights and what it means for an individual to have rights.
“As it is now, it is very tough for some to do that because of a legal environment that is not enabling. We also want to see a situation where LGBTIQ+ people can access services and be confident that they are provided with non-discriminatory services. It is challenging now because health care providers, social workers and law enforcement officers believe that it is illegal to be homosexual. What we are saying is that if you have an enabling law, then that will facilitate for people to be able to express themselves, including accessing health services,” Kelemi said.
“As we are doing this advocacy work, one of the issues that we picked up is that there is lack of capacity, especially on the part of healthcare workers. We noted that when we provide services or mobilize Men who have sex with other men (MSM) to access health facilities, health care workers are not welcoming, forcing them to hideaway. We must put an end to this to allow these people the freedom that they equally deserve.”
The President, Dr Mokgweetsi Masisi, has declared as an act of corruption the attitude and practice by government officials and contractors to deliver projects outside time and budget, adding that such a practice should end as it eats away from the public coffers.
For a very long time, management problems and vast cost overruns have been the order of the day in Botswana, resulting in public frustrations. Speaking at the commissioning of the Masama/Mmamashia 100 Kilometres project this week, Masisi said: “There is a tendency in government to leave projects to drag outside their allocated completion time and budget. I want to stress that this will not be tolerated. It is an act of corruption, and I will be engaging offices on this issue,” Masisi said.
In an interview with this publication over the issue, the Director-General of the Directorate on Corruption and Economic Crime (DCEC), Tymon Katholo, says, “any project that goes beyond its scope and budget raises red flags.” He continued that: “Corruption on these issues can be administrative and criminal. It may be because government officials have been negligent or been paid to be negligent by ignoring certain obligations or procedures. “This, as you may be aware has serious implications on not only of the economy but even the citizens who use these facilities or projects,” Katlholo said, adding that his agency is equally concerned.
According to the DCEC director, the selection, planning and delivery of infrastructure or projects is critical. In most cases, this is where the corruption would have occurred, leading to a troubled project. A public finance expert at the University of Botswana (UB), Emmanuel Botlhale, attributes poor project implementation to declining public accountability, lack of commitment to reforming the public sector, a decline in the commitment by state authorities and lack of a culture of professional project management.
In his research paper titled, ‘Enhancing public project implementation in Botswana during the NDP 11 period,’ Botlhale stated that successful implementation is critical in development planning. If there is poor project implementation, economic development will be stalled. Corruption is particularly relevant for large and uncommon projects where the public sector acts as a client, and experts say Megaprojects are very likely to be affected by corruption. Corruption worsens both cost and time performance and the benefits expected from such projects.
Speaking during this week’s Masama/Mmamashia pipeline commissioning, Khato Civils chairman said Africans deserve a chance because they are capable, further adding that the Africans do not have to think that only Whites and Chinese people can do mega projects. During his rule, former president Ian Khama went public to attack Chinese contractors for costing the government a move that ended up fuelling tensions between China and Botswana after Khama dispatched the then Minister of Foreign Affairs, Pelonomi Venson Moitoi, to China to register Botswana’s complaints with Chinese government-owned construction companies. Botswana had approached the Chinese government for help in its marathon battle with Chinese companies contracted to build, among others, the failed controversial Morupule B power plant and refurbishment of Sir Seretse Khama International Airport (SSIK).
A legal battle between former Botswana Democratic Party (BDP) legislator Samson Moyo Guma and First National Bank (FNB) over a multimillion oil refinery project intensified this week with Justice Zein Kebonang referring the matter to Court of Appeal for determination. The project belongs to Moyo Guma’s company called United Refineries which he has since placed under judicial management.
The war of words between Moyo Guma and FNB escalated after the company’s property worth millions of Pula were put up for sale in execution by the bank and scheduled to take place on 8th October. It emerges from Court papers that the bank had secured an order from the High Court to place the company’s property under the hammer.
Moyo Guma then also approached the High Court seeking among others that the public auction scheduled for 8th October 2021 be stayed. He contended that the assets that were to be sold belonged in reality to United Refineries and that as the company had been under judicial management at the time of the attachment, the intended sale in execution was unlawful.
He also sought the Court to declare that the writs of execution against the properties of guarantors and sureties of United Refineries Botswana Holdings Propriety Limited (the company) are unlawful. Moyo Guma also sought a stay of the execution against the property known as Plot 43556 in Francistown, that is, the land buildings, plant and machinery which make up the property and any all immovable or movable property belonging to the guarantors and sureties of the company pending finalization of the winding up of United Refineries.
But FNB disputed Moyo Guma’s assertions and submitted that the properties in question belonged to TEC (Pty) Ltd and not United Refiners. TEC Pty Ltd which is one of the shareholders in United Refineries is one of the sureties and co-principal debtors of a debt amounting to P24 million owed by United Refineries to FNB. FNB argued in papers that the properties belonged to TEC because it was TEC which had passed a covering mortgage bond in its favour over the property it now sought to execute.
Moyo Guma submitted that the covering mortgage bond passed in favour of FNB did not tell the full story as the property in question was in truth and fact owned by United Refineries and not TEC Pty Ltd. He maintained that the shares had been had been passed by the company in exchange for the properties in question and that the parties had always been guided by the spirt of the share agreement in dealing with each other despite delays in the change or transfer of ownership of plots 43556 and plot 43557 in Francistown.
Kebonang said it was clear to him that the two plots (43556 and 435570 belonged to United Refineries notwithstanding that TEC (Pty) Ltd had passed a mortgage bond over them in favour of FNB. “For this reason the properties were immune from attachment or sale in execution so long as the judicial management order was in place,” he said.
The background of the case is that Moyo Guma together with five other investors, namely Elffel Flats (Pty) Ltd; Mmoloki Tibe; TEC (Pty) Ltd; Profidensico (Pty) Ltd and Tiedze Bob Chapi, each bound themselves as sureties and co-principal debtors in respect of a debt owed by a company called United Refineries Botswana Holdings (Proprietary) Limited (the Company), to First National Bank Botswana (FNBB) (1st Respondent).
FNB had extended banking facilities to the company in the amount of P24 million which was then secured through the suretyship of Moyo Guma and other shareholders. Court records show that Moyo had on the 11th February obtained a temporary order for the appointment of a provisional judicial manager in respect of United Refineries and it was confirmed by the High Court on 24th September 2019.
In terms of the final court order by the High Court issued by Justice Tshepho Motswagole all judicial proceedings against the company, execution of all writs, summons and process were stayed and could only proceed with leave of Court. Court documents also show that First National Bank had sued the company and the sureties for the recovery of the debt owed to it and through a consent order, the bank withdrew its lawsuit against the company.
But FNB later instituted fresh proceedings against Moyo Guma and did not cite the company in its proceedings. “There is no explanation in the record as to why the Applicant was now reflected as the 1st Defendant and why the company had suddenly been removed as the 1st Defendant. There was no application either for amendment or substitution by the bank,” said Justice Kebonang.
FNB had also argued that it sought to proceed to execute against Moyo Guma and other sureties on the basis of the suretyship they signed and that by signing the suretyship agreement, Moyo and other sureties had renounced all defence available to them and could therefore be sued without first proceedings against the principal debtor (United Refineries). The question, Kebonang said, was that can FNB proceed to execute against Moyo Guma and other sureties on the basis of the suretyship contracts they signed?
“The starting point is that the Applicant (Moyo Guma) and others by binding themselves as sureties became liable for debts of the principal debtor and such liability is joint and several. He said the consequences of placing the company under judicial management means that every benefit extended to it should also extend to sureties.
“If the company is afforded more time to pay or its debt is discharged, reduced or compromised or suspended the obligation of sureties is to be likewise treated. It follows in my view that where judicial proceedings are suspended or stayed against the company, then any recourse against the sureties is similarly stayed or suspended,’ said Kebonang.
He added that “In the circumstances of this case, it seems to me that so long as the company is under judicial management, the moratorium that applies to it must also apply to its sureties/guarantors and no execution of the writs should be permitted against them. Any execution would be invalid.”
“Mindful that there is judicial precedent on this point in Botswana, at least none that I am aware of, and given its significance, I consider it prudent that the Court of Appeal must provide a determinative answer to the question whether a creditor can proceed against sureties where a company is under judicial management,” said Kebonang.
Pending the determination of the Court of Appeal, he issued the following order; the execution of writs issued in favour of FNB against Moyo and other sureties/guarantors of United Refinery are hereby stayed pending the determination of the legal question referred to the Court of Appeal.