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The origins of the sins of Maboane: Crimes that nations pay for parliamentary disobedience

The Old Testament reminds us that spying is the second oldest profession. Moses’s successor Joshua sent two agents out of Shittim to spy on ancient Jericho. This was at the twilight of the exodus by the children of Israel in pursuit of the Promised Land.

In a bizarre convergence, the spies were sheltered by the madam of a local brothel. Rahab, of course, was engaged in oldest profession. Joshua’s example has been followed ever since in a milieu where lessons are learnt and then forgotten.

The era of founding Director General (DG) of the Directorate of Intelligence and Security (DIS) Isaac Kgosi was littered in troubles. Botswana did not glimpse into lessons from Peru and beyond the Zambezi River into Zambia.

Gaborone is a late entrant to proving legal oversight framework for spying. The original sin surrounding the iniquities of the Intelligence and Security Services (ISS) Act of 2007 lies with the drafters of the piece of legislation. Watching their cups runneth over, obligation to rule of law tossed out the window, these drafters rolled into motion a foundationally defective statute.

Debates around ISS Bill were with controversy. For an almost carbon-copy of the United Kingdom’s Intelligence Services Act of 1994, it was the initial conspicuous absence of parliamentary oversight mechanisms in the first draft that was contentious.

Professionals make mistake because they forget the achievements – and failures – of their predecessors. For a nation that traditionally believed in seers and bone-tossing inyangas chanting sweet nothings we paid the price of paying insufficient attention to the influence of intelligence or lack thereof on events.  Isaac Kgosi is gone. Like a deposed boxer, his last cameo a knockout arrest remembered for handcuffs sinking into his flesh. The flashlights are focused on successor Brigadier Peter Magosi.  Are we witnessing the craft of an angel or a new henchman in the making?

Every rule in the book was thrown away when arresting Kgosi. A warrant of arrest is preceded by a charge being laid or reasonable suspicion of a commission of an offence. The accused should be taken before the court within 48 hours. An application for further remand or granting the accused bail follows the court appearance. How Magosi deviated from such protocol remains a mystery. The DIS were the arresting officers, complainants, prosecution and judge. Magosi was ‘kind’ enough to offer house arrest and release after 72 hours in exchange for Kgosi’s cooperation.

Chain of command is very critical in the handling of evidence. The unprecedented assault into Kgosi’s residence by various personalities some of whom not trained in handling prima facie criminal exhibits including Kgosi’s attorney clearly points to a very clumsy exercise. Will the evidence collected withstand the test of time when collection was so haphazard?

The ‘girls see me’ arrest is further soiled by media reports suggesting Magosi left some things which could implicate Kgosi. In his own words Magosi says he was an observer! How the DIS head did not secure a potential crime shows defects. This in part also owes to the obfuscate nature of investigation in which civil and criminal matters are muddled up in a directionless battering seemingly sponsored from the highest echelons of power.

The presence of the media during the arrest points to an invitation by the DIS. It cannot be coincidence that majority of newsrooms stumbled upon the arrest in that competitive environment. Post arrest fraternising with the media by Magosi confirms this ugly truth.

These are signs of a rogue institution which operates through its whims. Scaringly enough, is a DIS operating like a junta in the infancy of a new regime. Two things obtain. Will the DIS always be headed by former gun-toters who appear ill

equipped to administer the intelligence agency effectively? Should the leadership style be dictated by the desires of the individual at the helm? In short, this is a question about the suitability of Magosi as head honcho of DIS. The answers lie in the roots of the DIS.

The limitations in agenda-setting role of Parliament when passing the ISS Act was woefully inadequate. So powerless was the legislature that subsequent bodies tasked with providing oversight were rendered ineffective. The Parliamentary Committee on Intelligence and Security (PCIS) is appointed by the head of another arm of government. Without independence and access to information this oversight mechanism is compromised. The PCIS has never tabled a report before Parliament. The Tribunal also suffers the same executive overreach of appointment by the President and a conflicted looping feedback mechanism back to the Head of State.

The Central Intelligence Committee (CIC) fortifies the President’s stranglehold on the intelligence cluster. Direction of the DIS is provided by the CIC. The President chairs this Committee which comprises Vice President, Ministers responsible for Intelligence and Foreign Affairs, Permanent Secretary to the President, Attorney General, and heads of the army, police and military intelligence. The common thread with this mix of politicians, civil service and security chiefs is that they are political appointees serving at the behest of the President.

The National Intelligence Committee and Intelligence and Security Council cluster power on the DG much to the exclusion of other intelligence gathering agencies. In an already compromised environment where the President is participatory and appointer of weakened oversight mechanisms, it is also the unilateral appointment of the DG that opens avenue for henchman who will pursue personal and political bidding of master. An unintended collision course with consequence sees the Public Accounts Committee (PAC) emerge as the only body to exercise significant oversight extending the DIS. Money troubles for the DIS were apparent as early as at birth. In 2008/09, the DIS ate P13million drawn from the National Disaster Relief Fund within three months. In quick succession, an additional P3 million was granted followed by another P11 million. All monies devoured with their audit trail.

The DIS is best summed up as pet project in which former President Ian Khama exercised too much control. Political manipulation and abuse were glaring. In the same vein, having the DIS exist beyond effective scrutiny delivered it to the doorstep of becoming a law unto itself and a state within the republic. Given these deficiencies, would any reasonable man have survived the temptations of superfluous power? Early similarities between events in different epochs show Magosi falling into the trappings of bountiful money needing no accounting and undue influence. Angel or henchman – the question remains.

Winston Churchill once said, “The further backwards you look, the further forward you can see”. There is peril ahead. Lessons of the past provide some hope that we may anticipate danger in the future. Israel celebrates Rahab and the two spies as heroes. Rahab was rewarded for her kindness and married Joshua and in the process earning her rank of a righteous convert.

President Mokgweetsi Masisi has passed himself as a reformist. If recent changes in liquor regulation are anything to go by, one remains hopeful that should Parliament revisit the animal that is ISS Act, a favourable sojourn to rectify errors of past would be embarked on.

Oh righteousness! We can only hope for the best!

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