Gov’t must reform the law to make DIS accountable
Prof TACHILISA BALULE | Monday February 17, 2025 12:48
The promise came hot on the heels of damning Court of Appeal judgment in which the Directorate of Intelligence and Security (DIS) was found to have acted unlawfully by usurping the powers of the Directorate on Corruption and Economic Crime (DCEC) in the investigation of acts of alleged corruption (Attorney General v Tymon Katlholo, delivered on June 28, 2024). The Court of Appeal held in the case that the functions and powers of the DIS are limited and do not permit general investigating powers of the police or even extend to that of other crime fighting organisations such as the DCEC. The court found the conduct of the DIS an egregious excess of authority, which called for rectification and rebuke. Nothing seems to have changed since the delivery of the judgment as it appears the agency is still carrying out investigating powers of the police and other specialised law enforcement agencies. Since its establishment in 2008, the DIS has been dogged by controversy.
The agency has been accused of violation of human rights, including, among others, unlawful interception of communications of journalists and opposition politicians. The unlawful interception of individuals’ communications infringes upon their rights to privacy, freedom of expression and freedom of association. The interception of journalists’ communications also inhibits media freedom because surveillance of journalists puts the confidentiality of journalistic sources at risk and exposes both journalists and their sources to physical harm. Security agencies such as the DIS are indispensable in modern states. These institutions play a key role in ensuring the security and stability of a State by detecting and preventing internal and external threats to the State. Many of the threats to the security of a State are often covertly organised and intelligence services need intelligence to counter such threats. In detecting and preventing threats to the security of the State, security agencies may have to resort to covert measures, some of which may be intrusive and infringe upon human rights. This results in a tension between the protection of human rights and national security. National security and the protection of human rights are, however, not mutually exclusive. The protection of national security should not be at the expense of the respect for human rights, and vice versa. While the protection of national security may displace human rights in certain instances, it is important to remember that the maintenance of national security underpins and is the foundation of all human rights. National security is worthy of protection in a derivative sense, because of its purported necessity for the wellbeing of its citizens. Consequently, covert methods of gathering intelligence by security agencies, especially those that intrude on human rights must only be used where there is a pressing social need for their use, justified by an overriding public interest. A delicate balance must be struck between the use of intrusive methods of gathering intelligence and the protection of human rights. Accountability of security agencies is one of the ways that can lead to maintaining an appropriate balance between the two competing interests. Accountability exists when there is a relationship where an institution is subject to another’s oversight. It demands that an institution must be both obligated to answer questions regarding its decisions or actions and there must be means for enforcing consequences for failing to be accountable. An appropriate legal framework is a precondition for effective and accountable security sector governance. In democratic societies, intelligence governance spreads responsibilities of control and oversight on the various organs of government and include executive control, legislative oversight, and judicial review. The Intelligence and Security Service Act, 2008 (ISS Act), the law which establishes the DIS, provides for some measures of control and oversight over the DIS.
The critical question is whether these measures are sufficient to ensure accountability of the agency. Executive control over the DIS is provided by the Central Intelligence Committee (CIC). This is a 13-member committee chaired by the President and includes, among others, the Vice President, ministers responsible for intelligence and security, and foreign affairs, respectively, and heads of both the Botswana Police Service and the Botswana Defence Force. The function of the CIC is to guide the DIS on matters relating to national security and intelligence interests and advise the President on policy and policy formulation in the interest of national security. Members of the CIC are all presidential appointees, which raises concerns over its independence. Another contentious issue is the unilateral appointment of the Director General of the DIS by the President, which has led to concerns that he/she may appoint someone at his/her own personal bidding instead of the national interest. Legislative oversight on the DIS is in the form of the Parliamentary Committee on Intelligence and Security (PCIS).
The committee consists of nine Members of Parliament who are not Cabinet members appointed by the President after consulting the Leader of Opposition. The mandate of the PCIS is limited only to examining the expenditure, administration, and policy of the DIS. The committee does not have oversight on the activities or operations of the institution. The independence of the PCIS is also questionable. Unlike other parliamentary committees, whose members are appointed by the Parliamentary Selection Committee, members of the PCIS are appointed by the President and it reports to him/her annually on the discharge of its functions. The ISS Act provides for judicial oversight on the DIS in the form of a Tribunal. The Tribunal is established to receive and adjudicate complaints from any person who feels aggrieved by an act or omission of an officer of the DIS. Members of the Tribunal are appointed by the President after consultation with the Leader of Opposition, and consists of three members: a judge or retired judge of the High Court, or a legal practitioner who qualifies to be a appointed a judge of the High Court, and two persons, one of whom shall have considerable knowledge of the subject matter of the complaint and operation of security agencies. The independence of the Tribunal is questionable with the major concern being the President’s involvement in the appointment of its members. Judicial oversight on the DIS further comes in the form of a requirement of a warrant in cases where there is need by the institution to use intrusive methods in the investigation of threats to national security.
In such cases, the institution must apply to a Senior Magistrate or High Court for a warrant. There, however, continues to be persistent public concerns that, even though the Act requires the DIS to obtain a warrant to intercept communications, the institution is still monitoring activities of some politicians, journalists, and civil society activists without authorisation. There is no information publicly available on the use of this provision and there is need for transparency in its use to promote accountability of the DIS. The oversight mechanisms on the DIS provided for under the law have failed to ensure that the agency is accountable in the performance of its duties. The DIS has been accused of State capture and politicisation and that it often protects the sitting President and not the citizenry. In the past, the agency was used to monitor opposition politicians and even members of the ruling party who were perceived to be not aligned to the President. There are also cases where the DIS was used to vet out people who had applied for appointment to the public service or membership of boards of State-owned entities in controversial circumstances. The DIS is also notorious for allegedly monitoring electronic conversations of journalists.
The agency has persistently refuted these allegations. Unfortunately, it is difficult to prove the allegations because the DIS cannot be compelled to disclose information on surveillance targets. Furthermore, none of the oversight mechanisms over the agency provided for under the law have powers to review the operational activities of the DIS to ensure legal compliance and propriety. The decision of the Court of Appeal in the case of Attorney General v Katlholo is a watershed in the debate on the accountability of the DIS. If the agency was able to engage in unlawful activities under the of nose of both the executive and legislative controls in place, this points to an oversight deficit. This deficit stems from the lack of powers of the existing mechanisms to scrutinise the activities of the DIS for compliance with the law and respect for human rights. Such a mechanism would also hold the intelligence agency and its employees to account for any violations of the law. It is travesty that an institution that should be working for the protection of human rights turns out to be a threat to the very same rights it is supposed to protect. In Australia and New Zealand, they each have in place an office of Inspector-General of Intelligence and Security (IGIS), which are independent oversight bodies whose mandates are to provide the public with assurance that the activities of the security agencies are legal and respect human rights. The IGIS are responsible for reviewing the operational activities of the intelligence agencies to ensure legal compliance and propriety.
These offices may initiate an inquiry into activities of the security agencies at the request of the responsible minister, on its own motion, and in response to a complaint. In his media briefing of November 25, 2024, the Minister for State President, Moeti Mohwasa, promised the nation a review of the law regulating the DIS. Although he did not offer details of the review, he said they will be a review of the DIS ‘to execute its mandate to oversee matters of counterintelligence and internal security.’ One area that demands immediate attention is the strengthening of oversight on the agency. If the DIS had effective oversight mechanisms, it will not be suffering the credibility crisis it is currently experiencing. The agency would not have engaged in illegal activities as found by the Court of Appeal. It is also very disturbing that in a democracy where accountability is a hallmark, there were no consequences whatsoever suffered by the leadership of the DIS following the finding that the agency had engaged in illegal activities. As the government is planning a review of the law on the DIS, it should look carefully into the issue of oversight.
The current mechanisms have proved inadequate to ensure the agency’s compliance with the law and respect for human rights. The government should consider putting in place measures akin to the IGIS in Australia and New Zealand that will have power to review the operational activities of the DIS to ensure legal compliance and propriety. TACHILISA BADALA BALULE (PhD), is Associate Professor of Law, University of Botswana (This article is an output of a surveillance research project supported by the British Academy’s Global Professorship Programme through the School of Social and political Sciences at the University of Glasgow)