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

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

Publishing Date : 05 June, 2018

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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