Kgosi exposes DIS espionage activity
Sharon Mathala | Monday October 24, 2022 06:00
In an explosive affidavit seen exclusively by Mmegi, Kgosi admitted that the government engages in illegal communication breaches some of which he termed as “amateurish”.
In a damning and highly classified security report, Kgosi details how the DIS system can clone individuals’ phones and access personal information.
The DIS has been accused of illegal communication breaches in the past by individuals, politicians, businesspersons, senior civil servants, and other Batswana, both under Kgosi and the current DG, Peter Magosi.
Government on several occasions, however, has disputed this. Of recent, coming to government's defence was Minister for State President, Kabo Morwaeng who said those who accuse DIS of spying on them through its devices are scared of their own shadows.
Morwaeng also said the complainants are usually a small number of people who make loud noise. Morwaeng further said instead of complaining, people should learn to read the law and understand how some organs like DIS operate.
Kgosi’s admission is set to expose the state and bring to light how the government is capable of illegally breaching communication, something, which is against human rights.
“Yes, Botswana has that capability, there are six systems at the DIS capable of cloning, these facts as contained in the report fall within my personal knowledge as I legally bought the equipment for the organisation. Yes, I am trained and qualified to operate and use the equipment," Kgosi details in the security report.
The former DG went further to state, “I am aware of some breaches which were amateurish in my tenure as the Director General, and after I left the service, these are Major General Mokgware’s mobile phone which was targeted by the Botswana Defence Force Military Intelligence unit, I presided over the enquiry and the matter was settled out of court in favour of Gen Mokgware. The second one was my iPhone, which was targeted and the matter was recently concluded after four years.”
Kgosi also stated that the latest victim to DIS cloning was Magosi’s second in command, and the now-suspended Kenamile Badubi.
Detailing how the DIS clones targeted individuals’ phones, the former spy chief says, “Yes, you can clone any iPhone or any other gadget, by doing so, you will have access to WhatsApp, Facebook, Instagram, Snapchat, opening microphone to listen to conversations, email, call logs, GPS, social etc..”
Kgosi further states that this can be done through, “Over the Air (OTA), Trojan Horse, there is no need for a jailbreak if you are trained and yes it will work with all iOS versions to name but a few. Having cloned the target phone, you can manipulate and fabricate any content on the target phone.”
In the spine-chilling confidential report, Kgosi further stated that after cloning one's device the DIS can view copies of every text that has been sent to and received by the target device even if it is deleted.
Kgosi further states that even deleted pictures from the device, whether taken or received and can retrieve them.
“You can view websites visited, their addresses and duration. You can view all that is happening on the target phone 24/7. You can switch in the microphone and listen to conversations as and when you want without the target phone realising that either on or off,” the former DG said.
He further stated that even the locations visited by the device could be traced.
“From your dashboard, you can view all locations of the target device on Google maps and can be tracked within 50 feet. You can view every email sent to or received by the target device, the time, date and contact information,” said Kgosi.
Responding to Kgosi's allegation on the report, the DIS spokesperson Edward Robert said: "The DIS is a creature of the statutes. It gets legitimacy and authority from the law that established it. We are established to protect the country's national interests. It cannot be in the interest of the nation for the DIS to trample on the rights of the citizens. Where we have reasonable grounds to seek to subject any of the citizens to an investigation of an intrusive nature the agency is obliged to seek and obtain judicial authorisation."
Asked if the DIS clones phones he responded: "The DIS does not clone individuals' phones. We are a law enforcement entity and we have no law that authorises us to do so. Section 22 of the DIS Act gives guidance on the procedure to follow in the event it becomes necessary to conduct investigations of an intrusive nature as the one you are referring to. The law obliges us to obtain judicial authorisation."
In a similar matter, University of Botswana academic, Professor Tachilisa Balule expressed worry and advised that Botswana must pay heed to the call by the UN General Assembly to enact a comprehensive law on communications interception that complies with its international human rights obligations.
The research paper critically assesses the legal framework regulating the surveillance of digital communications by law enforcement agencies in Botswana. The paper aimed to determine whether the legal framework meets the standards required by international human rights law for the protection of the right to privacy.
Currently, two provisions in two different statutes permit specified judicial officers to grant communications interception orders for law enforcement purposes. One provision is found in the Counter-Terrorism Act.
The act provides, amongst others, measures to prevent and combat terrorism, including the financing of terrorism.
Another is found in the Intelligence and Security Services Act, 2007 (ISSA) which has a provision under which a communications interception order may be obtained.
The sections in the Counter-Terrorism Act and ISSA are the only ones that permit courts of law in Botswana to issue communications interception orders for law enforcement purposes. Any interception not based on the two provisions will thus not have any basis in law and therefore is unconstitutional.
Balule argues that the critical question is whether the two provisions that permit interception of communications meet the threshold required by section 9 (2) of the Constitution.
“A determination of this question requires that the provisions be assessed against the constitutionality test. Due to the unavailability of local case law on the subject, the discussion will borrow from international human rights law jurisprudence. This approach is in line with the principle that has been laid down by the courts of law in the country that, when interpreting the provisions of the Constitution, a broad, generous, and purposive approach should be adopted,” Balule has written.
He continued: “This will entail, amongst others, that when interpreting a provision in the Constitution, it is important to investigate how similar issues have been resolved in other jurisdictions. It must be noted that the absence of case law on the application of the two provisions does not mean the provisions are not used or are rarely used. There is so much secrecy in the application of the provisions such that those who are targeted never get to know and are thus deprived the opportunity to seek redress in the courts,” he wrote.
In his conclusion, Balule found that the right to privacy in Botswana is guaranteed under the Constitution in a way that is consistent with the guarantee of the right under international human rights law.
“The right is not absolute and the Constitution contains a stringent test which any limitation on the right must comply with. Any law that purports to limit the right to privacy must comply with the standards emanating from the limitation clause. International human rights law has developed substantial jurisprudence elaborating on the standards on limitations on the right to privacy. Botswana has not developed case law on the limitation clause on the right to privacy in the Constitution. The State of Botswana is however under an obligation to enact laws that are in compliance with its obligations under international treaties. Courts of law in the country are also under an obligation to interpret domestic laws in a manner which is consistent with the international obligations Botswana has undertaken,” he stated.
Balule concluded that it is disappointing that the State of Botswana does not have a comprehensive legal framework regulating the issue of interception of communications data for law enforcement purposes.