New clauses to the Bill establish an oversight committee and prohibit undercover operations or communications interception without a warrant from a court.
The removal of some sections of the Bill comes after a firestorm of outrage from local legal experts, media and political parties as well as pressure from across Africa and the world against the government’s initial plans.
News24, one of the continent’s biggest media platforms, ran an article last week entitled Botswana seeks to fast track 'worst piece of legislation', which sparked further outrage on the intrusive law being proposed by cabinet.
The second reading of the new Bill, containing the latest amendments is due before Parliament anytime from today for debate, which will then lead to the Committee Stage and a final vote after the third reading.
The original Criminal Procedure and Evidence (Controlled Investigations) Bill allowed investigators to conduct undercover work and intercept anyone’s private communications without a court warrant if it delayed investigations. It also allowed for investigators to assume multiple false identities with the home affairs directors instructed to assist with the relevant documents.
Mmegi has established that the justice ministry has made several amendments to the original Bill, which it will present to legislators soon. The changes will see the removal of a clause that allowed heads of investigative authorities to grant their officers the right to go undercover and/or intercept people’s communications without the need for a warrant if waiting for a court’s authorisation would delay the investigation.
Undercover operations or eavesdropping without a court warrant now becomes an offence under the new amendments. It carries a fine of not more than P10,000 and imprisonment of 12 years or both.
Under the new amendments, Defence, Justice and Security minister, Kagiso Mmusi is proposing the introduction of an oversight committee chaired by a judge and populated by people with expertise in human rights, finance, law enforcement, ICT and other related fields.
“The function of the committee will be to protect the interests of interception subjects and receive and hear complaints in respect of the use of warrants,” the amended Bill reads. “The committee is also empowered to impose administrative sanctions.”
The committee will also have the power to administrate penalties or compensation not exceeding P500,000.
The clauses on investigating officers assuming fake identities have largely been kept intact in the new amendments, although Mmusi is proposing a new clause that will impose life imprisonment for an officer who intentionally or recklessly misuses the fake identity.
The minister, however, is pledging to tighten up protocols around the issue of false identities.
“I will be bringing amendments at committee stage to address these concerns by introducing provisions that set out the procedure for an application for an assumed identity and highlights the fact that such an application must be operation-specific,” the minister said.
“Furthermore, such an application has a limited period for which it remains valid.”
Ahead of the new amendments being tabled for a second reading, it appears the changes do not go far enough to allay legislators’ concerns.
Selebi-Phikwe West legislator, Dithapelo Keorapetse said more time should have been given for more stakeholders to scrutinise the amendments and suggest further improvements. The MP also said even with the new changes, the proposed Bill fell far short of the mark.
“We welcome the amendment but still feel they are inadequate,” he said.
“The minister should have withdrawn the Bill and re-gazette it to not circumvent the consultation process.”
He said the oversight committee proposed in the new changes will be appointed by the Executive and there are also no guarantees that its members will be impartial.
“The Directorate of Intelligence and Security (DIS) Tribunal, which has no known secretariat and offices, which had a ruling party activist as its inaugural chairperson and which has failed dismally to protect the rights and freedoms of Batswana, serves as a clear example that the so-called oversight structures seldom work under this government,” Keorapetse said.
He added that the Bill has no clear parliamentary oversight mechanism established through amendments to make law enforcement officers and oversight structures ultimately accountable to the people’s representatives.
In addition, Keorapetse said there remains nothing in the updated Bill to explicitly ensure that assumed or fake identities do not make their way into the election voters' rolls. He said a clear clause on this was needed together with a clause punishing any such attempts.
He said there is also a need for investigators' code of practice, which sets out clear guidelines on what they have to do including their boundaries in order to enhance professionalism.
“There are some safeguards in the DIS Act, albeit inadequate, but there are still problems of DIS operating outside the law. “What guarantees do we have that the implementation of this Bill won’t come with that abuse and criminal activities by agents notwithstanding the safeguards,” he said.
Keorapetse praised civic society, local media, trade unions, opposition parties and Batswana in general for what he said was their strong resistance to an attempt to 'legitimise state terrorism'.
