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

Ndulamo Anthony Morima
EAGLE WATCH

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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Parricide at Herod’s Court

25th January 2021
SAILI

A wife, uncle, and two in-laws fall at the hands of Judah’s despot

The pre-eminent Jewish chronicler, Flavius Josephus, said of Herod the Great that he was “blessed with every gift of looks, body, and mind” but he was a “slave to his passions”. This was in the context of a gloating bloodlust.

His sword knew no sacred cows: neither his own kids, wives, in-laws, next of kin, nor bosom friends were immune from it. He is on record as pestering Caesar Augustus with a barrage of letters seeking permission to execute his own flesh and blood, prompting the Roman emperor to at one time quip that, “It is better to be Herod’s pig than his son”, which was apt: as a “Jew”, Herod did not eat pork and therefore in the event that he kept any pigs, they would never have to be killed.

You are by now well-apprised of the death of Hyrcanus II by the same Herod, General Atiku, in 30 BC. Hyrcanus, a Hasmonean ruler of Judah twice over, was actually the grandfather of Mariamne I, Herod’s most beloved wife and his second of up to 10 wives. It was Mariamne’s own mother Salome, who dreading Herod’s pathological savagery, pitched Mariamne to Herod in the hope that that would insure her family from Herod’s murderous caprices.

Now, Mariamne, General, was as much a stunning beauty as her younger brother Aristobulus III was breathtakingly good-looking. Having tied the knot with Herod in 37 BC, Mariamne had prevailed over her husband to install Aristobulus as High Priest. The post had fallen vacant on the death of Antigonus in 37 BC and Herod had appointed one Ananel, who had no ties whatsoever to the Hasmoneans, the first such in more than a century, in his place. Unable to resist the spirited entreaties of his beloved wife, who had also lobbied Queen Cleopatra of Egypt and her beau Mark Anthony, Herod gave in and replaced Ananel with Aristobulus, who was only 16 years old, in 36 BC.

Because of his enormous charisma and overall affability, Aristobulus was a hit with the masses despite his tender age and Herod was envious of the young man’s rock star-like popularity. To make doubly sure the young man did not harbour a seditious ace up his sleeve, the morbidly paranoid Herod had his spooks watch on both Aristobulus and his mother round the clock. Sensing imminent danger, Aristobulus contacted Cleopatra, asking for a pre-emptive safe passage to Egypt and there enjoy absolute freedom. When Herod got wind of this, he decided to get rid of Aristobulus as he did not wish him to be a perennial thorn in his flesh from the utter safety of self-imposed exile.

The opportunity came at a banquet in Jericho which was organised by Aristobulus’ mother. There, Herod had one of his henchmen cause Aristobulus to drown during a dusk time horseplay in a swimming pool. Of course Herod would forever maintain the drowning was accidental when everybody knew it was in truth a tactical elimination. Poor Aristobulus was only 17 years old having been born in 56 BC. He was the last Hasmonean High Priest and was replaced by the previously deposed Ananel, who was to remain in that position till 29 BC.

HEROD ACQUITTED OVER THE ARISTOBULUS DEATH

It need not be over-emphasised, General, that Mariamne and her mother Alexandra did not take Herod’s line over the all too untimely demise of Aristobulus lying down. If he had reckoned that with the death of Aristobulus he had gotten rid of potentially the most potent threat to his omnipotence, he was totally mistaken. Herod had actually simply fanned the flames of intrigue against him, for mother and daughter confronted him and accused him of murdering their boy in cold blood.

Nor did the two Iron Ladies end matters there: Alexandra wrote a lachrymal letter to Cleopatra to get her to bring her influence to bear on Mark Anthony so that Herod paid dearly and likewise for his nefarious act. Anthony, who at the time was the Roman colossus in charge of the whole of the Middle East, was persuaded and during a visit to Laodicea (in modern-day Turkey, though some accounts say it was Rhodes in Cyprus), he commanded Herod to report to him forthwith and exculpate himself over the affair.

Although Herod put a brave face on the matter, General, he was rather unsure of his eventual fate after the trial. He also suspected rightly or wrongly that Anthony had a thing for the voluptuously beautiful Mariamne and the last thing Herod wanted was for any other man to bed his beloved Mariamne even in death. So before he set off for Laodicea, Herod instructed his uncle Joseph, who was married to his sister Salome, to make sure that in the event that Anthony sentenced him to death, he should immediately put her to the sword. He also detailed a certain Sohemus, a most trusted aide, to stand sentry over the entire womenfolk at the palace.

Herod, however, had the nine lives of a cat, General. Using his immense rhetorical skills and the time-honoured palm greasing, he won himself an acquittal. Meanwhile, the Judean rumourville was abuzz with chatter that Herod had been summarily executed by Anthony, as a result of which people became spendthrifts of their tongues.

Both Joseph and Sohemus disclosed to Mariamne the instructions Herod had left them with in relation to her fate once he was no more. Mariamne was both livid and distraught that her husband regarded her as so easily expendable when outwardly he cherished her beyond words. To her mind, his arrangements with Joseph had nothing to do with love but sprang from sheer monstrosity. She probably thanked God that he was dead, but the fact of the matter was that he was not and when he at long last turned up, she did not want to have anything to do with him, including the conjugation which he so eagerly pined for after such an extended absence.

HEROD KILLS HIS WIFE AND HIS UNCLE

Now, if Herod had a kind of Svengali, General, it was his youngest sister Salome. Salome (65 BC-10 AD) was the most powerful woman at Herod’s court. A sly, scheming, and manipulating vixen, she arguably more than any other living being had the most sway in a negative sense on her brother, who took practically whatever she said as gospel truth.

Let us nevertheless, General, take stock of the fact that the bulk of what we learn about Salome comes from Flavius Josephus, who himself relied on the writings of Herod’s court historian Nicolaus of Damascus. For one reason or the other, Nicolaus did not see eye to eye with Salome and it is therefore possible that much of what Nicolaus relates of her is embellished to smear her before the court of history.
Upon his return, Herod was told of the rumours of his death and so was surprised to find Mariamne alive when Joseph and Sohemus should in the circumstances have had her killed if indeed they were loyal to him. In fact, Joseph had even put Mariamne and Alexandra into the safe custody of Roman legions stationed in Judea just in case Jewish malcontents who abhorred Herod turned their wrath on them.

But there was more. Salome reported to Herod that Mariamne, who she hated like the plague, had had sexual relations with both Joseph and Sohemus, this being Mariamne’s reward to them for dishing out to her the dirt on Herod, and that she had on several occasions before attempted to poison him. Now, no one would hump Herod’s most beloved wife and get away scotfree. It is therefore small wonder that Herod straightaway ordered the execution of Joseph and Sohemus. Joseph was 61 years old at the time of his death in 34 BC, having been born in 95 BC. In the case of Mariamne herself though, he had her subjected to a formal court trial not on charges of adultery but of attempted regicide.

Herod had hoped that the court would acquit her, whereupon he would make bygones be bygones so great was his love for the woman, but sadly for him, General, she was found guilty and sentenced to death. Even then, Herod tactfully dilly-dallied on signing the writ of execution and simply had his wife detained at a fortress for some time until Salome prevailed over him to execute her at long last. Writes Josephus: “Thus, with the death of the noble and lovely Mariamne ended the glorious history of the Hasmonean High Priest Mattathias and his descendants.”

For a long time to come though, General, Herod was haunted by the death of his wife to the point of even sometimes coming across as if he had lost his mind. “When Herod realised what this meant (the death sentence passed on Mariamne), he tried in vain to have the verdict changed, but Salome did not rest until the death penalty was carried out,” Josephus informs us. “Herod was heartbroken; nothing could comfort him for the loss of his lovely wife.

For seven years he refused to have her body buried, and held it, embalmed, in his palace. Afterwards, he became so melancholy and despondent, nothing interested him or could arouse any enthusiasm in him for living … He was so far conquered by his passion, that he would order his servants to call for Mariamne, as if she were still alive, and could still hear them … He tried hard to forget his trouble by going hunting and banqueting, but nothing helped. Herod built new cities and erected temples and palaces. He also named a tower in honour of Mariamne.”

HEROD SLAYS SISTER’S EX-HUBBY

Mariamne’s death was not the only one which Herod perpetrated through the instrumentality of Salome. There were actually several and included those of her own husband Costobarus. Salome was married four times, to her uncle Joseph (45 BC); Costobarus (34 BC); Sylleus (circa 27 BC); and Alexas (20 BC).

Like the Herod clan, Costobarus was of Idumean stock. It was Costobarus Herod had made governor of Idumea and Gaza and upon Joseph’s death had him tie the knot with Salome, with the couple eventually siring two children, Berenice and Antipater III. Costobarus, though, soon began to harbour monarchical ambitions of his own and wrote to Cleopatra beseeching her to persuade Mark Anthony to make Idumea independent of Herod and install him (Costobarus) as Rome’s client King of the territory.

Of course upon learning of this, Herod was not amused. It was Salome who pleaded with him not to put her husband to the sword. Next time, however, a dumped Costobarus was not so lucky. Seven years after their marriage, Salome and Costobarus parted ways and a possibly hurt Salome decided to exact vengeance. She informed her brother that he had been harbouring two fugitives from Herodian justice for a full 12 years at his own farm.

The two were simply known as the Sons of Baba. Baba ben Babuta, their father and clan patriarch, was related to the Hasmonean ruler Antigonus, who Herod had replaced and killed in 37 BC with the help of Roman legions. Baba and his sons had resisted Herod at the time, with his sons henceforth persisted in insurrectionist activity against Herod. Baba himself had been captured and blinded by Herod but spared anyway as he no longer posed any threat. Writes Josephus: “Now the Sons of Babas were of great dignity, and had power among the multitude, and were faithful to Antigonus, and were always raising calumnies against Herod, and encouraged the people to preserve the government to that royal family (the Hasmoneans) which held it by inheritance.”

Costobarus had provided the Sons of Baba an indefinite lair “supposing that their preservation might be of great advantage to him in the changes of government afterward”. Following the Salome tip, Herod had Costobarus and the Sons of Baba summarily executed “so that none was left alive of the family of Hyrcanus (the Hasmonean), and the kingdom was wholly in Herod’s power, there being no one of high rank to stand in the way of his unlawful acts” per Josephus.

NEXT WEEK: HEROD’S WRATH ON HIS OWN SONS

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WHAT’S UP WITH WHATSAPP?

25th January 2021

In early January, WhatsApp, part of Facebook Inc., began alerting its 2 billion users to an update of its privacy policy which, should they want to keep using the popular messaging app, they have to accept. Much of the policy, which is about commercialising WhatsApp, states ‘WhatsApp receives information from, and shares information with, the other Facebook Companies.

We may use the information we receive from them, and they may use the information we share with them, to help operate and market services’. WhatsApp is now reserving the right to share data it collects about you with the broader Facebook network, which includes Instagram, regardless of whether you have accounts or profiles there, claiming it needs it to help operate and improve its offerings. More broadly, almost all of the $21.5 billion in revenues which Facebook generated in the third quarter of 2020 came from advertising and there is currently none in WhatsApp.

The company now wants to be able to serve more targeted ads to people on Facebook and Instagram by also garnering their usage habits on WhatsApp and enabling businesses take payments via WhatsApp for items that were selected on other Facebook sites. For long-time users, the option to share data with Facebook was made available in 2016, but it was just that: optional and temporary. It was now to become mandatory for everybody from Feb. 8 but owing to a massive backlash, the company has delayed that to May 15 to try and persuade users to sign up to the new Ts and Cs.

WhatsApp on Monday attempted to address the uproar over privacy concerns with a post on its website, explaining that the update was designed to aid businesses on its platform, as it reiterated in Friday’s post.

“We want to be clear that the policy update does not affect the privacy of your messages with friends or family in any way. Instead, this update includes changes related to messaging a business on WhatsApp, which is optional, and provides further transparency about how we collect and use data.”

These new terms have caused an outcry among technology experts, privacy advocates, billionaire entrepreneurs and government organisations and triggered a wave of defections to rival services. Elon Musk has urged his followers to switch to Signal and the governments of Turkey and India have threatened to block the app if it insists on proceeding.

‘WhatsApp’s updated privacy policy verges on user surveillance and threatens India’s security’, a petition filed in an Indian court said on Thursday, presenting another legal challenge for the Facebook Inc. -owned messenger. “It virtually gives a 360-degree profile into a person’s online activity,” lawyer Chaitanya Rohilla told the Delhi High Court. Many Indian users have began installing rival apps like Signal and Telegram, pushing WhatsApp to begin a costly advertising campaign to calm its 400 million customer-base, the largest of any country. The change has also met with a challenge in Turkey with the country’s Competition Board this week launching an investigation into the messaging service and its parent company.

Elsewhere too, in spite of Whatsapp protestations, millions of its users are already migrating to alternative platforms. Signal saw 7.5 million downloads last week,  a 4,200% spike since the previous week and large swaths of users also jumped to Telegram, as the platform gained 9 million new users last week, up 91% from the previous week. Both apps are now topping Google and Apple’s app stores,

Facebook could possibly learn a lesson from history here. Every past empire – Aztec, Mayan, Greco-Roman, Sumerian, Mongol, Chinese, Ottoman and more recently British, all saw their star rise, their glory swell, their boundaries grow and yet each eventually fell, often the instigators of their own downfall.

They expanded too far too fast and could not control what they had initially conquered. And now it looks like the same fate might await this large tech giant. Parent company Facebook has also come under fire recently for overt and covert censorship policies with questions raised as to partisanship and curtailment of freedom of speech. Thus one would have to question the wisdom of the timing of this new Whatsapp privacy policy, if nothing else.

To understand its influence and control one only has to check out the un-smart sector of the mobile phone industry which for some time has offered handsets a small step up from the basic starter sets with Facebook and Whatsapp as default screen app settings. These limited internet access options have allowed millions of users to connect with affordable data bundle packages.

And for Google smartphone subscribers, the search engine automatically connects its base to Whatsapp and Facebook – one big, happy family. Facebook is also seamlessly linked to Paypal offering contact-less charges for its boosted post advertising, a somewhat sinister partnership which accesses their Paypal log-in and authorisation details without the need to inform the payee – the transaction is simply deducted automatically from the registered credit card. This is Big Brother with a blue logo.

The bottom line here is that if you have any privacy issues at all – and you probably should – you might as well make the switch now before you are forced to sign away your rights in May. And the plus part is that both Signal and Telegram have the technological edge over Whatsapp anyway, the latter even being accessible on multiple platforms simultaneously, not just on your phone.
Empires take time to crumble and Facebook is not in imminent danger but information is a weapon that can be used in any war, even a virtual conflict, so don’t give this giant any more ammunition than it already has.

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The Daring Dozen at Bari

8th December 2020
JEFF---Batswana-smoke-unit

Seventy-seven years ago, on the evening of December 2, 1943, the Germans launched a surprise air raid on allied shipping in the Italian port of Bari, which was then the key supply centre for the British 8th army’s advance in Italy.

The attack was spearheaded by 105 Junkers JU88 bombers under the overall command of the infamous Air Marshal Wolfram von Richthofen (who had initially achieved international notoriety during the Spanish Civil War for his aerial bombardment of Guernica). In a little over an hour the German aircraft succeeded in sinking 28 transport and cargo ships, while further inflicting massive damage to the harbour’s facilities, resulting in the port being effectively put out of action for two months.

Over two thousand ground personnel were killed during the raid, with the release of a secret supply of mustard gas aboard one of the destroyed ships contributing to the death toll, as well as subsequent military and civilian casualties. The extent of the later is a controversy due to the fact that the American and British governments subsequently covered up the presence of the gas for decades.

At least five Batswana were killed and seven critically wounded during the raid, with one of the wounded being miraculously rescued floating unconscious out to sea with a head wound. He had been given up for dead when he returned to his unit fourteen days later. The fatalities and casualties all occurred when the enemy hit an ammunition ship adjacent to where 24 Batswana members of the African Pioneer Corps (APC) 1979 Smoke Company where posted.

Thereafter, the dozen surviving members of the unit distinguished themselves for their efficiency in putting up and maintaining smokescreens in their sector, which was credited with saving additional shipping. For his personal heroism in rallying his men following the initial explosions Company Corporal Chitu Bakombi was awarded the British Empire Medal, while his superior officer, Lieutenant N.F. Moor was later given an M.B.E.

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