In 2008 the Directorate of Intelligence and Security (DIS) was formed following the passing of the Intelligence and Security Services Act, 2008.
Amongst others, the role of the DIS is to investigate, gather, co-ordinate, evaluate, correlate, interpret, disseminate and store information, whether inside or outside Botswana, for the purposes of detecting and identifying any threat or potential threat to national security, reads the DIS Act.
The Directorate advises the President and the government of any threat or potential threat to national security, and further takes steps to protect the security interests of Botswana whether political, military or economic.
Back then when the DIS was formed, the then Minister of Defence and Security, now Speaker of Parliament, Phandu Skelemani said there would be checks and balances to ensure that the DIS did not abuse its mandate. That was before the spy agency was set up.
“As far as we are concerned, the Constitution is clear about your rights. You can’t flout people’s rights under the disguise of intelligence. The Directorate’s law does not supersede the Constitution on the right to privacy. If you invade my privacy without authority, I will sue you,” Skelemani said at the time.
Responding to the State of the Nation Address (SONA) this week, Specially Elected Member of Parliament (MP), Unity Dow expressed fear that the DIS has derailed from its core functions and therefore must be subjected to a Commission of Inquiry and look into its policies, regulations, activities with a view to examining the reasons for the failings of the current accountability mechanisms.
She said Botswana is approaching a deep pit and if ‘we are not careful as a country we will fall inside the pit’. “Re mo letshitshing la lemena. If there is anyone who does not agree that DIS is a law unto itself then, I don’t know which country they come from,” she indicated. Dow said the law that came into effect on April 1, 2008 created a creature (DIS) and the same creature formed by the government has led to the latter failing to deliver good governance.
In any state, strong supervision of security and intelligence services is an essential feature of a well-functioning and healthy democracy. Looking back, the issue of lack of oversight did not start with the current administration.
“I don’t report an operational matter to the President or Vice President,” these are the famous words by former DIS director general, Isaac Kgosi before he was fired by President Mokgweetsi Masisi in 2018.
Kgosi was then appearing before at the Public Accounts Committee (PAC) on the inquiry into the National Petroleum Fund (NPF) loot.
He blatantly told the PAC that the buck stops with him and was solely responsible for all the accounting at DIS. “I don’t need anyone to make decisions,” he told the PAC. Kgosi who was untouchable at the time unequivocally refused to answer questions the Pac threw at him indicating that the matters were ‘classified’. The lack of oversight has not been kept in check for a long time and now more than ever the meddlesome nature of the DIS services into citizens’ lives has spiraled out of control. Speaking of spiraling out of control, Dow said they have allowed the DIS to operate outside the law.
“Absolutely no one, not even a judge, has the power or should have the power to arrest, detain, search and generally interfere with personal liberties, outside legally laid down procedures,” she said.
This comes after the DIS’ recent search at the Khama compound in Kenmoir Farm and the arrest of former top spy chief, Kgosi.
While the latter has accused the State of going on a fishing expedition to find something to use against him, Dow said DIS is an institution like any other therefore it has absolutely no mandate to disregard the law. “It is doing that because it can and because we are all failing in our collective duties to reign it in,” she added. Members of the opposition have in the past accused the DIS of being used as an instrument of power by Botswana’s political elites and, in particular, the president, to whom the DIS reports.
The DIS has in the past been also accused of human rights abuses, particularly random detentions with oversight over it has been minimal. When the current Director General Brigadier Peter Magosi took over from Kgosi in 2018, he promised the organisation’s Act would undergo review to root out any elements that may have impeded it from fully delivering on its mandate. He said that was in line with giving the DIS a face lift and bringing Batswana closer to the critical security organ.
Three years on, that has not materialised and Dow further reiterated that the government failed to influence the public’s perception of the DIS from the get go.
“The public has always viewed the DIS as a monster; we feared it and that became a self-fulfilling prophesy. We speak about it in whispers we expect that they are listening to us as we converse on what should be private phones. Good governance is about transparency and there is absolutely little, if anything transparent, about the DIS,” she said.
Other legislators agreed with Dow that oversight is particularly important for Botswana given the vast powers enjoyed by the DIS. Bobonong MP Taolo Lucas said he agreed with what Dow had presented to the parliament and wished everyone could do the same.
“DIS e hetogile Kgogomodumo mo lefatsheng la rona,” he said. For his part, Francistown South MP, Wynter Mmolotsi said what is happening now may be happening to people some do not like but in the future it will come around.
He said as a country, they are not prepared for a situation where someone leaves office and they are chased unlawfully like in the case of Kgosi. “Ke bone bobonta bone bo, bogoma, le bokgokgontshi,” Mmolotsi added. He described it as another pandemic which should be dealt with.
Selibe-Phikwe East MP, Kgoberego Nkawana said everyone should express their opinion on DIS and MPs should not be afraid. While other legislators admitted that DIS is a bull being held by its horns, Dow said it is hurting that that there should be a bull to hold by its horns.
“A bull should not even be there because the law has always been there,” she said. Dow further emphasized that the DISS is not a BDP organ and no BDP member can support it when it violates the law which was made by the parliament.
Another thing Magosi promised when he took over was to request for the services of the Auditor General to audit the DIS, which had never been audited since its inception to ensure effective service delivery.
He said his intention as the then new leader was to have an oversight committee, elected by Parliament, established. Magosi said the security agency would ensure that there is accountability because there was no legal instrument in Botswana to enable undertaking of a specialised financial audit.
Now, Dow has since suggested that a nine member Parliamentary Committee on Intelligence and Security examine the expenditure, the administration and the policies of the DIS. “We all must care because when the DIS flouts the law, you and I pay the price, monetary or otherwise because Botswana is suffering reputational harm.”
Speaking of reputation harm, Botswana has not so long ago been removed from a three-year global negative listing for money laundering.
In its nature oversight is fundamentally about accountability and transparency, and, by extension, the legitimacy of state institutions. It is the citizens through their elected representatives, who provide democratic legitimacy over the security services.
While legislators like Thamaga-Kumakwane’s Palelo Motaosane admitted that they have not looked at the Intelligence and Security Services Act of 2008, the act outlines that the DIS is not invincible and it should be answerable to entities within the government.
The DIS on the other side maintains that it does not operate with impunity but it’s the nature work attracts scrutiny. In Botswana it is a common misconception that DIS agents have unlimited authority and operate above the law. But everything that the agency does must be authorised and monitored by several different government agencies that are in place to ensure that its operations are carried out legally. Dow emphasised that everyone gets their power from somewhere therefore a commission of enquiry is needed to deal with the DIS root.
As recent events have shown, the more power enjoyed by a security service, the stronger the oversight system should be in place. It is not only about Kgosi and former President Ian Khama who are allegedly being ‘harassed’ by DIS but this will help to protect citizens’ fundamental rights and freedoms against the abuse of such powers. In the end, oversight is about protecting the very foundation of a democratic society like Botswana’s.