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

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

Publishing Date : 12 June, 2018

Ndulamo Anthony Morima
EAGLE WATCH



This week we discuss sections 7(e) to 17 of the Intelligence and Security Services Act, 2007. Section 7 (e) provides that as far as is reasonably practicable, the DG shall take steps to ensure that intelligence collection methods, sources of information and the identity of the members of staff of the Directorate are protected from unauthorized disclosure.



This section cannot be faulted as it is common procedure to protect the sources and methods for all intelligence agencies the world over. Sources and methods are the corner stone of intelligence work and without protecting them intelligence work comes to naught. Section 8 of the Act provides for divisions of the Directorate, headed by directors, of (1) Internal Intelligence (2) External Intelligence and (3) other divisions as may be necessary for the proper performance of the functions of the Directorate under this Act. Therefore, this section cannot be faulted.


Section 9(1) provides that there shall be personal protection officers who shall protect - (a) the President and the Vice President, and their immediate families, and former Presidents and their spouses. It provides that this shall be done provided that- (i) in the case of a spouse of a former President, protection shall terminate upon his or her divorce from, or death of, the former President, and (ii) should the death of a President occur whilst in office or within one year after leaving the office, the spouse shall receive protection for one year from the time of such death.


It also provides for personal protection of (b) visiting heads of foreign states or foreign governments; and (c) other distinguished foreign visitors to Botswana and senior Government officials when the President directs that such protection be provided. This section, too, cannot be faulted because the lives of the concerned individuals may be at risk because of the nature of their positions.


Section 9(2) provides that notwithstanding anything to the contrary contained in any other law, intelligence and personal protection officers may carry and use such firearms as may be prescribed and may, in the course of their duties, use such arms in circumstances where the use of the arms is necessary and reasonably justifiable.


This section cannot be faulted because considering the nature of their duty, both intelligence and personal protection officers and their clients are continuously exposed to danger and the officers need firearms in the event the danger materializes. Section 10 provides that there shall be such officers and support staff as the DG may consider necessary for the proper and efficient discharge of the functions of the Directorate. Section 11 of the Act provides for powers and functions of such officers and support staff. These sections, too, cannot be faulted.


Section 12 provides for the making and subscription to oaths or affirmations by the DG, the Deputy DG (DDG) and every officer and support staff on being appointed to the Directorate. This section, too, cannot be faulted. Section 13 provides that the DG shall cause to be issued to the DDG and every officer and support staff, on appointment, a certificate of identity and appointment in such form as the DG may prescribe which certificate shall be prima facie evidence of such appointment for the purposes of this Act.


This section, too, cannot be faulted since it protects members of the public from imposters who may commit crimes or terrorize members of the public by claiming to be officers of the Directorate when they are not. Section 14 provides that the DG shall prescribe a scheme of service of the Directorate setting out the terms and conditions for the appointment of the officers and support staff which scheme of service shall provide for (a) promotions, resignations and termination of appointments of officers and support staff; (b) scales of salaries and allowances of officers and support staff; and (c) the designation and grades of officers and support staff.


Section 15 (1) provides that the DG shall issue and maintain a disciplinary code for the Directorate which disciplinary code shall provide for -(a) disciplinary offences; (b) the investigation, hearing and determination of disciplinary offences and the hearing of any appeals; and (c) the delegation, by the DG, to officers and support staff, of such disciplinary powers as he or she may consider appropriate.


Section 15 (2) provides that the disciplinary code shall provide for the following disciplinary penalties or any combination thereof- (a) dismissal from the Directorate; (b) reduction in rank or grade; (c) suspension from duty for a specified period; (d) reprimand (including severe reprimand); (e) admonition; and (f) recovery of the cost or part thereof in respect of any loss or damage to the property of the Directorate caused by the default or negligence of any officer or support staff subject to disciplinary proceedings where such recovery has not been effected through any other Government procedure. This section, too, cannot be faulted.


Section 16 (1) provides that an officer or support staff shall not- (a) engage in the activities of any political party or act as an agent of such party; or (b) in the performance of his or her functions or the exercise of his or her powers under this Act- (i) subject any person to torture or to any other cruel, inhuman or degrading treatment; or (ii) enter or search any private premises except with a warrant issued pursuant to section 22. Section 16 (2) provides that an officer or support staff who contravenes the provisions of subsection (1) shall be guilty of an offence.


The former DISS Director General, Isaac Kgosi, has been accused of acting in furtherance of the ruling Botswana Democratic Party (BDP)’s objects. It has also been alleged that he intended to use the Electronic Voting Machines (EVMs) to rig the 2019 general elections in favour of the BDP.


In view of sections 16(1) and (2) supra, such conduct is frowned upon by the Act. So, if Kgosi, or his staff, indeed acted as alleged such cannot be blamed on the Act, but on them personally though government will, of course, be held vicariously liable if they acted as such in the course of their employment.


During Kgosi’s tenure, especially between 2011 and 2014, there were allegations that DISS operatives subjected suspects to torture and other cruel, inhuman or degrading treatment. There were also allegations that DISS operatives entered into and searched private premises of suspected criminals without a warrant issued pursuant to section 22 of the Act.


If this indeed happened, it is not the Act that is to blame since section 16 (1) of the Act expressly proscribes such conduct. It is Kgosi, or his staff, who would be to blame and though government would be vicariously liable for their conduct they would also be held liable in their personal capacities should litigation ensue therefrom.
 

Section 17 provides that a person who, without the prior written approval of the DG, in connection with any activity carried on by him or her takes, assumes, uses or in any manner publishes any name, description, title or symbol which is calculated, or is likely to lead other persons to believe or infer that such activity is carried on under or by virtue of the provisions of this Act or under the patronage of the Directorate, shall be guilty of an offence. This section, too, cannot be faulted. Without it, individuals, especially criminals and criminal syndicates, may, for instance, publish names, descriptions, titles or symbols related to the Directorate in furtherance of crimes to the detriment of our people. 
 

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