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

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

Publishing Date : 26 June, 2018


In this last part of our series, we deal with sections 21(8) to 24 of the Intelligence Services Act, 2007(“the Act”). Section 21 (8) provides that an officer or support staff shall, as soon as is reasonably practicable, take a person arrested under this section to a police station to be dealt with in accordance with the provisions of the Cap. 08:02 Criminal Procedure and Evidence Act.


Section 21 (9) provides that an officer or support staff who takes a person arrested under this section to the police station in terms of subsection (8) shall, at the same time that he or she takes that person, also hand over, to the Police, anything seized in terms of subsection (6) (b).


Sections 21(8) and 21(9) cannot be faulted since they oblige the DISS to refer the matter to the agency mandated with investigations, the Botswana Police Service (BPS), who would refer the matter to the Directorate on Public Prosecutions (DPP) for prosecution if need be.


This dispels the myth that in terms of the Act, the DISS is a law into itself, and can, in terms of the Act, usurp, without lawful cause, the powers of any law enforcement agency as it pleases. Therefore, if under Kgosi’s leadership the DISS usurped the powers of the BPS it is Kgosi who is to blame, not the Act.


Section 22 (1) provides that where the Director General (DG) of the DISS believes, on reasonable grounds, that a warrant under this section is required to enable the Directorate to investigate any threat to national security or to perform any of its functions under this Act, the DG shall apply to a senior magistrate or a judge of the High Court for a warrant in accordance with this section.


Section 22 (2) provides that if the magistrate or judge to whom an application is made under subsection (1) is satisfied that there are reasonable grounds for suspecting that there is in the premises, place, vessel, boat, aircraft or other vehicle anything which is or contains evidence of the commission of any of the offences referred to in this Act, he or she may by warrant direct the DG, or any officer or support staff authorised by the DG under this Act, to enter and search such premises, place, vessel, boat, aircraft or other vehicle and seize and detain anything which the DG, or the officer or support staff authorised by the DG, has reason to believe is or contains evidence of any of the offences referred to in this Act.


Sections 22(1) and 22(2) provide checks and balance for the DISS’s use of its powers of search and seizure in that they provide for judicial oversight of the exercise of such powers thereby avoiding abuse of such powers.


Section 22(3) provides that whenever the DG, or an officer or support staff authorised by him or her under this Act, has reasonable cause to believe that there is in any premises, place, vessel, boat, aircraft or other vehicle any article or document- (a) which is evidence of the commission of an offence referred to in this Act; (b) in respect of which an offence has been, is being, or is about to be committed under this Act;

(c) is being conveyed, or is concealed or contained in any package in the premises, place, vessel, boat, aircraft or other vehicle, for the purpose of being conveyed, then and in any such case, if the DG, or the officer or support staff authorised by him or her under this Act considers that the special exigencies of the case so require, he or she may without a warrant enter the premises, place, vessel, boat, aircraft or other vehicle, and search, seize and detain such article, document or package.


This section is an exception to the provision for judicial oversight over the DISS’s powers of search and seizure. The question is: is this exception justified. In my view, it is justified because to avert a terrorist attack, for instance, which may result in serious loss of life, a DISS official may have to exercise such powers without a warrant.


Section 22 (4) provides that the court mentioned in subsection (1) may, on application made by the DG or an officer or support staff authorised by him or her to do so, issue a warrant under this section authorising the taking of such action as may be specified in the warrant in respect of anything so specified if the court considers it necessary for that action to be taken in order to obtain information which- (a) is likely to be of substantial value to the Directorate in the discharge of its functions;

and (b) cannot be reasonably obtained through other means: provided that in the event the Directorate wishes to conduct an investigation of a personal or intrusive nature such as searches or interception of postal mail, electronic mail, computer or telephonic communications, the DG or an officer or support staff authorised by him or her shall show cause to a court of Senior Magistrate or above or a Judge of the High Court and obtain an order in a secret hearing.


One of the main complaints about the DISS under Kgosi’s era was that it intercepts telephone communication involving leaders of opposition political parties. In view of section 22(4) above, if the DISS indeed did that it can only have done so after obtaining a court order to that effect.


Of course, some people question the provision to the extent it provides that such an order is sought and granted in a secret hearing. But regard being had to the fact that such applications invariably involve top secret matters and that there is trust in our judicial system, such provision is justified since it is rationally connected to its purpose.


Section 22 (5) provides that in the exercise of the powers of search, seizure and detention under this section, the DG, or any other officer of the Directorate may use such reasonable force as is necessary in the circumstances, and may be accompanied or assisted by such other person as he or she considers appropriate to assist him or her to enter into or upon any premises, place, vessel, boat, aircraft or other vehicle, as the case may be.


Section 22 (6) provides that a magistrate may, on the application, ex parte, of the DG, by written notice require a person who is the subject of an investigation in respect of an offence alleged or suspected to have been committed by him or her to surrender to the DG any travel document in his or her possession.


Section 22 (7) provides that if a person on whom a notice under subsection (6) has been served fails to comply with the notice, he or she may be arrested and taken before a magistrate. Sections 22(6) and (7) are integral if any state is to avoid or at least reduce fugitives of justice and can, therefore, not be faulted.


Section 22 (8) provides that where a person is taken before a magistrate under subsection (7), the magistrate shall, unless such person complies with the notice under subsection (6) or satisfies the magistrate that he or she does not possess a travel document, by warrant commit him or her to prison where he or she shall be safely kept until he or she complies with the notice.


Sections 22(1) to (8) cannot be faulted, especially that they provide for judicial oversight in their invocation, and, therefore, provide for checks and balances to avoid abuse by the DISS.

Section 22 (9) provides that a person who has surrendered a travel document under this section may at any time make a written application to the DG for its return, and every such application shall contain a statement of the grounds on which it is made.

Section 22 (10) provides that the DG may, within 14 days of receipt of the application referred to in subsection (9)- (a) grant the application either without conditions or subject to such conditions as to the further surrender of the travel document and the appearance of the applicant at any time and place in Botswana as may be specified by the DG in a written notice served personally on the applicant; or (b) refuse the application.


Section 22 (11) provides that a person aggrieved by the refusal of the DG to return his or her travel document to him or her may appeal to a magistrate. Section 22(10) cannot be faulted, especially that section 22(11) provides for judicial oversight in its invocation, and, therefore, provides for checks and balances to avoid abuse by the DISS.
 

Section 23 provides that a person who assaults, resists or obstructs any officer of the Directorate or any person acting under the direction of such officer in the due execution of his or her duties under this Act shall be guilty of an offence and liable to imprisonment for a term not exceeding three years. This section cannot be faulted since it affords protection to officers in the course of their duties.


Section 24 provides that no action shall be brought against a member of staff of the Directorate (or any other person authorised by the DG to perform any act under this Act, in respect of any act or thing done or omitted to be done in good faith, upon reasonable grounds, in the exercise of his or her duties under this Act.


This section cannot be faulted, especially that the immunity provided is not absolute, but is relative and only applies in respect of any act or thing done or omitted to be done in good faith, upon reasonable grounds, in the exercise of his or her duties under this Act. Having considered all the sections of the Intelligence Services Act, 2007, one can conclude that contrary to the general perception that the Act is draconian and unconstitutional, it is not. It is in keeping with international best practice.


Therefore, in instances where there was public outcry on the operations of the DISS it is not the Act that was the problem. The problem was the former DG of the DISS, Isaac Kgosi. One can, therefore, only hope that the new DG, Peter Magosi, addresses the concerns that Batswana have in relation to the DISS.  

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