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Was the problem with Kgosi or the ISS Act, 2007? (Part I)

Ndulamo Anthony Morima

The tenure for the former Director General (DG) of the Directorate on Intelligence & Security Services (DISS), Colonel Isaac Kgosi, was marred with controversy, with many labelling him is the law onto himself.

Appearing before the Public Accounts Committee of Parliament on the National Petroleum Fund debacle, Kgosi himself is reported to have stated that he accounts to no one, and refused to answer most questions citing national security and that the matters were sub judicae since they were pending before the courts. While many believed the problem was Kgosi himself, Kgosi claimed that he was merely implementing the Intelligence and Security Services Act, 2007(“the Act”) and that any prudent DG will act in the manner he does.

The question, therefore, is: was the problem with Kgosi or the Act? In this four part series, we try to answer this question. In order to educate the reader about the Act, which is largely unknown, we do so by reproducing the relevant sections of the Act and then expressing our opinion them. This is critical because while there is hope that Kgosi’s successor, Peter Magosi, will bring improvement to the DISS he may be hamstrung if the problem lies with the Act. Magosi’s promise of openness, as promised during the historic press conference of 25th May 2018, may remain hollow if the problem is with the Act.

Also, the employment of a Public Relations Officer (PRO), as promised by Magosi, may be in vain if the PRO is going to be muzzled by the Act and fail to disseminate information to the media and the public as PROs do. In this part we deal with sections 5 to 7(d) of the Act. In part II we discuss sections 7(e) to 17. In part III we discuss sections 18 to 21(7). In part IV we discuss sections 27(8) to 24.

Section 5(1) provides that, subject to subsection (3), the DISS’s functions are to (a) investigate, gather, coordinate, evaluate, correlate, interpret, disseminate and store information, whether inside or outside Botswana, for the purposes of- (i) detecting and identifying any threat or potential threat to national security,(ii) advising the President and the Government of any threat or potential threat to national security and (iii) taking steps to protect the security interests of Botswana whether political, military or economic.

The DISS’s functions are also to (b) gather ministerial intelligence at the request of any Government ministry, department or agency and, without delay, to evaluate and transmit as appropriate to that ministry, department or agency, such intelligence and any other intelligence at the disposal of the Directorate which constitutes ministerial intelligence.

The DISS also has a function to (c) regulate, in cooperation with any Government ministry, department or agency entrusted with any aspect of the maintenance of national security, the flow of intelligence and security, and the coordination between the Directorate and that ministry, department or agency of functions relating to such intelligence.

It also has a duty to (d) advice Government, public bodies and statutory bodies on the protection of vital installations and classified documents; (e) carry out security vetting investigations for the security clearance of persons who have or may have access to any sensitive or classified information. Further, it has a duty to (f) make recommendations to the President in connection with-(i) policies concerning intelligence and security, (ii) intelligence and security priorities, and (iii) security measures in Government ministries, departments or agencies.

The aforesaid sections cannot be faulted because every country requires intelligence to protect its citizens from local and external threats. No wonder all countries, including such mature democracies as the United States of America (USA) and Great Britain have such intelligence agencies as Central Intelligence Agency (CIA) and MI5 respectively.

It is also the DISS’s duty to (g) provide personal protection to the former President, the former President’s immediate family, the President, the President’s immediate family, the Vice President, the Vice President’s immediate family, visiting dignitaries and such other persons as the President may determine; and (h) subject to any other written law, perform such other duties and functions as may, from time to time, be determined by the President to be in the national interest.

In my view, functions (a) to (g) are appropriate for such a security and intelligence organization as the DISS. Function (h) is, however, problematic because in a case where we have an unrestrained President it can be abused by having the DISS perform functions which infringe on citizens’ rights under the guise of national interest.

Section 5(2) provides that the Directorate shall not, in the performance of its functions, be influenced by considerations not relevant to such functions and no act shall be performed that could give rise to any reasonable suspicion that the Directorate is concerned in furthering, protecting or undermining the interests of any particular section of the population or of any political party or other organization in Botswana.

One of the complaints against the DISS has been that it is used for political purposes to spy on the Opposition. If this is true, it would be clearly in violation of section 5(2) supra. But, an unrestrained President can achieve such purpose in terms of section 5(1) (h) above. Section 5 (3) provides that subsection (1) shall not be construed as- (a) derogating from any power, duty or function conferred upon or entrusted to any person or authority other than the Directorate by or under any other written law.

It also provides that it shall not be construed as (b) limiting the continuation, establishment or functions of an intelligence capability connected to any Government ministry, department or agency in respect of any function relating to ministerial intelligence and (c) derogating from any duty or function of any body or committee instituted by the President.

One of the complaints against the DISS is that it has usurped the powers of such other security and intelligence agencies as the Botswana Police Service (BPS), the Botswana Defence Force (BDF)’s Military Intelligence unit and the Directorate on Corruption and Economic Crime (DCEC). The question is: if it did indeed do that is that permissible under the Act? The answer is no because section 5(3) explicitly prohibits that. So, if that happened during Kgosi’s tenure, it was not because of the Act, but because of Kgosi himself.

Section 6 provides that (1) there shall be a DG who shall be appointed by the President on such terms and conditions as the President may, on the recommendation of the Council, determine and (2) the DG shall be responsible for the direction, control, administration and expenditure of the Directorate. This section cannot be faulted.

Section 7 provides that without prejudice to section 6, the DG shall (a) be the principal advisor to the President and the Government on matters relating to national security and intelligence and (b) report to the President and the Government on threats and potential threats to national security. This section, too, cannot be faulted.

It further provides that (c) in consultation with the President and the Government, the DG shall ensure that a good relationship is established and maintained between the Directorate and every
Government ministry, department or agency and any other institution approved by the President.

One of the complaints relating to the DISS has been that it has not work well with other government ministries and departments. If that is true, the blame cannot be on the Act, but on Kgosi himself because section 7 (c) supra explicitly promotes good relations not only with government ministries and department, but also with any other institution approved by the President. 

Further that the DG shall (d) take all reasonable steps to ensure that the actions of the Directorate are limited to those necessary for the proper performance of its functions under this Act or any other written law and that no information is gathered by the Directorate except as may be necessary for the proper performance of its functions. The other complaint regarding the DISS has been that it is a law on its own; engages in activities which are beyond its mandate and gathers information from citizens, especially those in the Opposition, to use for irrelevant purposes.

But, section 7 (d) supra prohibits that. This can, however, be achieved through section 5(1) (h) which provides that ‘subject to any other written law, the DISS shall perform such other duties and functions as may, from time to time, be determined by the President to be in the national interest.’ In terms of section 5(1) (h), if the President, alone, determines that it is in the national interest that a particular person’s communications be intercepted for purposes of gathering information such action will be lawful in terms of the Act.

Of course, such action will be subjected to any other written law, for instance, section 9 the Constitution on protection for privacy of home and other property, but invocation of the limitation of such right on the national interest will often take precedence, especially that the President may not even be forced to give reasons for such action.

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Is COVID-19 Flogging an Already Dead Economic Horse?

9th September 2020

The Central Bank has by way of its Monetary Policy Statement informed us that the Botswana economy is likely to contract by 8.9 percent over the course of the year 2020.

The IMF paints an even gloomier picture – a shrinkage of the order of 9.6 percent.  That translates to just under $2 billion hived off from the overall economic yield given our average GDP of roughly $18 billion a year. In Pula terms, this is about P23 billion less goods and services produced in the country and you and I have a good guess as to what such a sum can do in terms of job creation and sustainability, boosting tax revenue, succouring both recurrent and development expenditure, and on the whole keeping our teeny-weeny economy in relatively good nick.

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Union of Blue Bloods

9th September 2020

Joseph’s and Judah’s family lines conjoin to produce lineal seed

Just to recap, General Atiku, the Israelites were not headed for uncharted territory. The Promised Land teemed with Canaanites, Hittites, Amorites, Perizzites, Hivites, and Jebusites. These nations were not simply going to cut and run when they saw columns of battle-ready Israelites approach: they were going to fight to the death.

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Security Sector Private Bills: What are they about?

9th September 2020

Parliament has begun debates on three related Private Members Bills on the conditions of service of members of the Security Sector.

The Bills are Prisons (Amendment) Bill, 2019, Police (Amendment) Bill, 2019 and Botswana Defence Force (Amendment) Bill, 2019. The Bills seek to amend the three statutes so that officers are placed on full salaries when on interdictions or suspensions whilst facing disciplinary boards or courts of law.

In terms of the Public Service Act, 2008 which took effect in 2010, civil servants who are indicted are paid full salary and not a portion of their emolument. Section 35(3) of the Act specifically provides that “An employee’s salary shall not be withheld during the period of his or her suspension”.

However, when parliament reformed the public service law to allow civil servants to unionize, among other things, and extended the said protection of their salaries, the process was not completed. When the House conferred the benefit on civil servants, members of the disciplined forces were left out by not accordingly amending the laws regulating their employment.

The Bills stated above seeks to ask Parliament to also include members of the forces on the said benefit. It is unfair not to include soldiers or military officers, police officers and prison waders in the benefit. Paying an officer who is facing either external or internal charges full pay is in line with the notion of ei incumbit probation qui dicit, non qui negat or the presumption of innocence; that the burden of proof is on the one who declares, not on one who denies.

The officers facing charges, either internal disciplinary or criminal charges before the courts, must be presumed innocent until proven otherwise. Paying them a portion of their salary is penalty and therefore arbitrary. Punishment by way of loss of income or anything should come as a result of a finding on the guilt by a competent court of law, tribunal or disciplinary board.

What was the rationale behind this reform in 2008 when the Public Service Act was adopted? First it was the presumption of innocence until proven otherwise.

The presumption of innocence is the legal principle that one is considered “innocent until proven guilty”. In terms of the constitution and other laws of Botswana, the presumption of innocence is a legal right of the accused in a criminal trial, and it is an international human right under the UN’s Universal Declaration of Human Rights, Article 11.

Withholding a civil servant’s salary because they are accused of an internal disciplinary offense or a criminal offense in the courts of law, was seen as punishment before a decision by a tribunal, disciplinary board or a court of law actually finds someone culpable. Parliament in its wisdom decided that no one deserves this premature punishment.

Secondly, it was considered that people’s lives got destroyed by withholding of financial benefits during internal or judicial trials. Protection of wages is very important for any worker. Workers commit their salaries, they pay mortgages, car loans, insurances, schools fees for children and other things. When public servants were experiencing salary cuts because of interdictions, they lost their homes, cars and their children’s future.

They plummeted into instant destitution. People lost their livelihoods. Families crumbled. What was disheartening was that in many cases, these workers are ultimately exonerated by the courts or disciplinary tribunals. When they are cleared, the harm suffered is usually irreparable. Even if one is reimbursed all their dues, it is difficult to almost impossible to get one’s life back to normal.

There is a reasoning that members of the security sector should be held to very high standards of discipline and moral compass. This is true. However, other more senior public servants such as judges, permanent secretary to the President and ministers have faced suspensions, interdictions and or criminal charges in the courts but were placed on full salaries.

The yardstick against which security sector officers are held cannot be higher than the aforementioned public officials. It just wouldn’t make sense. They are in charge of the security and operate in a very sensitive area, but cannot in anyway be held to higher standards that prosecutors, magistrates, judges, ministers and even senior officials such as permanent secretaries.

Moreover, jail guards, police officers and soldiers, have unique harsh punishments which deter many of them from committing misdemeanors and serious crimes. So, the argument that if the suspension or interdiction with full pay is introduced it would open floodgates of lawlessness is illogical.

Security Sector members work in very difficult conditions. Sometimes this drives them into depression and other emotional conditions. The truth is that many seldom receive proper and adequate counseling or such related therapies. They see horrifying scenes whilst on duty. Jail guards double as hangmen/women.

Detectives attend to autopsies on cases they are dealing with. Traffic police officers are usually the first at accident scenes. Soldiers fight and kill poachers. In all these cases, their minds are troubled. They are human. These conditions also play a part in their behaviors. They are actually more deserving to be paid full salaries when they’re facing allegations of misconduct.

To withhold up to 50 percent of the police, prison workers and the military officers’ salaries during their interdiction or suspensions from work is punitive, insensitive and prejudicial as we do not do the same for other employees employed by the government.

The rest enjoy their full salaries when they are at home and it is for a good reason as no one should be made to suffer before being found blameworthy. The ruling party seems to have taken a position to negate the Bills and the collective opposition argue in the affirmative. The debate have just began and will continue next week Thursday, a day designated for Private Bills.

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