Ndaba Gaolathe
AN INSTUTITION THAT HAS GONE ROGUE
The actions and culture of the DISS have, since formation, constituted some of the more serious blights in Botswana’s much praised yet stagnant democratic practice. Through opaque practices, the DISS exercises a grip over almost every sphere of life in Botswana’s society: they exercise a disproportionate say in the allocation of permits in the immigration system; most tenders for multi-million projects in some sectors are awarded to companies “vetted” by them or those perceived not to be hostile to the ruling elite; allegations of covert operations against those seen to pose any political threat to the system persist; and there are sufficient grounds to believe some public monies and resources are diverted to oil the ruling political machinery to sustain their ailing grip over power.
The assassination of Kalafatis in 2008 was a watershed moment that awakened ordinary citizens to the reality that Botswana had legislated an institution with powers so infinite that they almost had the right, without question, to pursue covet operations, conduct intelligence collection, intelligence analysis and deploying any method of their liking without any constraints occasioned by budgets, or human rights considerations.
The combination of a President with an authoritarian management style, a grossly flawed piece of legislation, a superficially termed “three-armed Government” whose only real power lies with the Executive, and a DISS Head whose loyalty is only to the President that installed him, and not to the country, conspired to cultivate a Government agency that has instilled fear and fertilized a breeding ground for corruption. The recent dismissal of the long-serving Director General of the DIS by the recently inaugurated President of Botswana, inspired widespread jubilation across all segments of the social, economic and political divide.
There can be no qualms that the decision was long overdue and appropriate. Yet, this decision alone is no cure for the culture of unfairness, corruption, opaqueness and injustice that this state agency has grown to represent and perpetuate. In particular, the inherent skewedness of our democratic institutions are ill-configured to provide the type of firm and insightful oversight that any intelligence agency requires to meaningfully and effectively pursue its mandate to secure or protect the nation’s interests against an undue economic and security onslaught.
In fact, Botswana, the country, and its people, will continue to face the same risks under and as a consequence of the current culture cultivated and perpetuated by the DIS under the previous Director General, unless fundamental legislative or even constitutional revisions or overhaul take place. The current legislative framework does not provide adequate oversight nor does it offer adequate safeguards against a raft of possible abuse of power by the agency and its agents.
THE NATURE AND WEAKNESSES OF OUR INTELLIGENCE SERVICES OVERSIGHT SYSTEM
To date the Botswana system has been a Parliamentary model, albeit with excessive powers placed with the President. The President appoints the Parliamentary Committee on Intelligence and Security and theoretically he does so in consultation with the Leader of Opposition. In practice, the recent past President has not consulted the Leader of the Opposition on this Committee and hence the explanation why the Committee has not functioned, due to the absence of opposition members such as myself who were not willing to take up what they deemed illegitimate appointments.
Consequently, the Committee has not met since the 2014 elections or has rarely met if ever it has been meeting before 2014. Its powers are relatively vague and limited to “examination of expenses, administration and policy”. It has consistently failed to submit the mandated annual report. Much of the powers on the direction of the DIS lie with the Central Intelligence Committee which consists of the President and his agency leaders within the Executive. Essentially the intelligence has no meaningful oversight in the Botswana system as the Executive has absolute control over the intelligence community.
The Tribunal that looks into complaints is also appointed by the President. It looks at complaints but there are no meaningful security mechanisms to make those who have legitimate complaints feel safe.
TO BE EFFECTIVE, INTELLIGENCE COMMUNITY ALWAYS NEEDS OVERSIGHT
Established democracies have had in the past and continue to grapple with challenges entailed with the existence of the intelligence community, which every nation has to embrace given the associated benefits. Scholars suggest the existence of a pattern in the evolution of these agencies in relation to the overall governance of these democracies.
The United States in the post- cold war order had to contend with a rogue intelligence community, so did other countries especially in Eastern Europe. It was common for those in power to use intelligence services against their adversaries. The overhaul, reform and revitalization of intelligence oversight legislation and systems has been a vital component of developing effective and successful intelligence communities that pursued their legal and constitutional mandates amicably.
The tension between policy-makers and the intelligence community is natural, and others may go as far as to suggest that intelligence is antithetical to democracy. It is widely accepted that for intelligence activity to be effective, significant work has to be carried out in secret, to unravel plans of enemies and competitors. In this way intelligence activity is an important aspect of protecting and even nourishing democracy.
A more visionary use of intelligence capabilities could even focus on sources of power, potential sources of instability, economic opportunities and areas of national strength. Information secured by intelligence operatives potentially forms the basis for conducting forecasts on competitiveness, economic opportunity, security circumstances an d stability.
Yet in the same breadth, transparency is the one essential of democratic practice that is indispensable. This flows from the simple premise that the man or woman on the streets, needs a constant supply of honest, correct and insightful information on the basis of which to make daily life decisions for themselves, families and communities.
History is so replete, almost always, in every part of the world with instances of leaders that have been willing to use intelligence institutions well beyond their legal or constitutional mandates. In the same fashion intelligence officers willing to pursue assignments beyond their brief are rarely in short supply. This is how intelligence services commonly lend themselves to the assassinations or economic crippling of or covet negative propaganda operations against political adversaries by those firmly in power.
Intelligence services also provide a means to provide those in power with unfair access to monetary and non-monetary advantage over their political adversaries, This process often leads to the looting of public coffers and the compromise of the culture of excellence in functioning of institutions that are vital to economic prosperity and effective governance.
These reasons alone, which if left unattended could impoverish a nation and even collapse its entire governance system, are adequate justification for a sound oversight framework and mechanism for the intelligence community in any serious minded democratic state.
HOW MEANINGFUL EFFECTIVE OVERSIGHT LOOKS LIKE
So, the intent of the oversight imperative has to focus on several key tenets including a mechanism to a) verify if the intelligence community is fulfilling its mandate or whether it reflects policy or vision b) ascertain that the analysis work by the intelligence community is adequately rigorous c) establish if there is adequate operational capacity and resources to fulfill the intelligence mandate.
To be effective, the oversight configuration and framework should possess certain basic levers such as: a) a say in budgets for approval b) right to conduct hearings on activities including where there has been abuse c) entitlement to prior notice in the case of covert action by the executive arm of government d) right to refuse approval of some intelligence community programmes e) latitude to motivate or conduct investigations and generate report on them f) right to nominate or reject nominations of key appointments – through public interviews of the nominees.
d) space to deliberate on alignment of budgets or plans to national priorities and national security strategy. Botswana has generally lacked these levers since the inception of the intelligence services. Essentially, this is how the new Botswana intelligence eco-system must look like.
It is common for the intelligence community and the Executive to resist any serious effort to install oversight mechanisms. Those in power often forget that the intelligence community does possess the expertise and capabilities – eavesdropping, surveillance and other operations – all conducted under the cloak of secrecy, that could be used against them too.
So, there is no argument that intelligence services always require mechanisms to guide, review, monitor, and supervise their work. Such oversight is also necessary to bring to light any instances of abuse, misdirection of funds and focus, lack of professionalism, inefficiency and sheer wastefulness. There is no body of work by any legitimate authority in Botswana, that has ever systematically advanced or brought to light the intelligence service’s misdemeanors despite the deep legitimate public suspicions that the DIS has gone rogue.
It is a consequence of the intelligence community sense of invincibility that that they have been able to ferment a dark cloud of fear over the people of Botswana. The way to remove this cloud cover entails more than just the removal of the DIS Head. What the country needs to condense this dark cloud is a fundamental overhaul and revitalization of the oversight configuration and mechanism over the intelligence community, with the necessary powers and resources at both the legislative and judicial levels.
This means Botswana needs a fresh intelligence service with a clear and fresh mandate for the legislature, as well as an oversight mechanism to ensure that such an organization pursues that mandate meticulously.
THE OVERSIGHT MODELS
There are of course various models of oversight over the intelligence community. They may be categorized as direct legislative oversight systems of indirect oversight systems. The United States (Senate Select Committee on Intelligence and House Permanent Select Committee on Intelligence) and Australia (Parliamentary Joint Committee on Australian Security and Intelligence Organization, Secret Intelligence Service and Defense Signals Directorate) provide good case studies of direct legislative systems where the legislature has tangible powers and processes to provide significant but not debilitating oversight over the intelligence community. South Africa is also a good example, coupled with the role of its Inspector General of the intelligence community.
In these systems, the judiciary has a role, including for purposes of issuing warrants relating to surveillance or eavesdropping on individuals. These courts are called FISA courts in the United States. Canada, Belgium and to some extent the United Kingdom are more inclined to an indirect oversight system in which a body delegated by Parliament exercises the oversight function.
In the United Kingdom, the Intelligence and Security Committee (CISC) drawn from both houses oversee the Secret Intelligence Service (SIS), in accordance with the UK Intelligence Services Act of 1994. The oversight body has limited access to classified information and the Prime Minister has a domineering say, and so this system is not highly regarded as a potentially effective oversight system.
Belgium has entrusted the oversight function to the Permanent Committee for the Control of the Intelligence Services, and members are full-time. It has more extensive reach to classified information than the British system, and also has significant powers to reverse unfair security vetting decisions, as well as deal with abuse. Canada’s indirect system has empowered the Canadian Security Intelligence Review Committee (SIRC) to play the oversight role, although there is an occasional sitting of a parliamentary select committee to play some oversight function.
OVERHAUL, REFORM & REVITALIZATIONS OF THE BOTSWANA INTELLIGENCE COMMUNITY
So, it is clear that the replacement of a Director General of the DISS by no means represents the construction of an intelligence services ecosystem that Botswana and its people need to flourish as a democracy and an economy. Botswana needs a reconstructed intelligence service with a fresh mandate from the legislature.
For such an intelligence community to develop the right culture, capacity and capabilities to pursue its mandate for the people, it must have the right oversight configuration and mechanisms backed by adequate resources. Such a reconstruction must also entail a specialized window within the judiciary without which eavesdropping and surveillance on individuals are not possible. Our system should also be explicit on the illegality of assassinations. If this does not take place, even the appointment of any extraordinary Head would not cure the symptoms of an organization gone rogue, let alone craft a foundation for a flourishing democracy and economy.