Financial spy agency gets presidential spying powers on political parties
- Masisi to move FIA under Office of President
- How FIA will snoop on Political Party finances
- FIA lacks independence
- Right to privacy at risk
In the murky world of espionage, transparency and accountability are viewed by intelligence agencies as being counter intuitive. As currently experienced with the unfolding saga over the National Petroleum Fund and the maladministration of its funds by the Directorate of Intelligence Services (DIS)the lack of parliamentary and structural oversight has led to the whittling down of state resources that negatively impacts on people’s day to day cost of living, unseen however is the impact of the lack of oversight in espionage legislation and state agencies intrusions into the realm of human rights of privacy and human dignity of all persons in the country.
Crime prevention agencies and government oversight bodies such as the Directorate on Corruption and Economic Crime (DCEC), the Botswana Police Service (BPS) the Directorate of Public Prosecution (DPP), the Directorate of Intelligence and Security Services (DIS) and the Office of the Ombudsman were all made to fall under the Office of the President under the Khama administration, the remaining spy entity, the Financial Intelligence Agency had escaped the web of political oversight, until now.
The Minister of Finance and Economic Development Matambo and the Non-Bank Financial Institutions Regulatory Authority have called upon the private sector to comment on the proposed amendments to the Financial Intelligence Act.
Among the most controversial of the proposed amendments to the financial spy agency’s authority is the change of the appointing authority of the Director (to be renamed Director General) from the Minister of Finance to the State President. Another controversial move in the proposed amendment is the inclusion of political parties among the listed entities over which the Financial Intelligence Agency will have oversight.
The amendment, which is expected to be placed before parliament unchanged, will grant the Executive, the State President, the authority to appoint the head of the agency, a move that ensures the state president has ultimate control over all national spy agencies despite their institutionalised and legislatively proscribed independence.
Administrative FIUs, such as the Botswana model are not completely independent as they are often attached to some supervisory authority. Prior to the proposed amendment the FIA fell under the Ministry of Finance, in other jurisdictions they may fall under the treasury or Central Bank. The oversight and appointing authority of a FIU, experts note, raises concerns over its independence from political influence, abuse or undue influence in carrying out its work, all directly linked to the issue of its accountability. Under the proposed legislation, the authority to appoint the Director General of the FIA is being moved from the Minister of Finance to the Office of the President under clause 6 of the amendment. In addition, the proposed legislation makes it possible, according to the draft legislation on the grounds of openness and transparency, for the president to suspend and fire the Director General.
While experts in the field of FIU’s recognise that FIU’s will be accountable to some degree to the authority to which it is attached, they must retain independence in its functions in order to protect itself from abuse of information at its disposal. This independence has become all the more pronounced now that the proposed legislation introduces oversight over political parties, noted a commentator discussing the legislation with The Botswana Gazette.
The financial intelligence unit, as with other such similar international bodies, is mandated to monitor all financial transactions within specified areas of the private sector to curb financial crimes/ money laundering and prevent funding for terrorism. To achieve its mandate, the FIA may legitimately gain access to personal information, however due to the lack of independent oversight, research reveals that such information can also be used to suppress speech and political dissent.
The currently proposed legislation does not address the need to protect against such potential government abuse as individuals and organisations subject to FIA scrutiny may not even be aware of it and therefore have no recourse to Courts, which in turn do not have oversight into the agency’s information gathering and reporting mechanisms.
FIU legislation in other jurisdictions, works in conjunction with legislation that protect access to information, privacy rights and provides protection to individuals. Research by The Botswana Gazette reveals that unlike such countries, Botswana has extremely limited legislation for the protection of personal data. Criticism of the proposed legislation by various attorneys, trade unions and political organisations interviewed by The Botswana Gazette, has been broadly based on the lack of recognition in the Constitution of the right of privacy. According to one commentator who elected to remain anonymous, “the constitution only recognises the right of privacy in a very limited manner, it prohibits the state or state agencies from taking possession of or acquiring private property, but data is of value without “acquiring” it or “taking possession” of it. There have been no cases yet where the High Court has been called upon to determine whether the right to privacy includes ‘personal data’ and whether the current FIA legislation violates the constitution in that information may be “used” by such agencies without first obtaining a court order.”
Within the European Union information privacy is considered a fundamental right on equal footing as freedom of expression, “European legislators are under a constitutional duty to protect the right to information privacy,” noted the commentator “this constitutional right remains questionable without a judgement by our courts. What is concerning however is that in the (unlikely) event the courts do not find the privacy provisions of the constitution sufficient to deal with personal information and what is meant by taking “possession” of or “acquiring” personal information, the proposed amendment would supersede some of the very limited privacy protection clauses found in other legislation, as it introduces a provision that states ‘In the event of any conflict or Act when inconsistency between the provisions in conflict with those of this Act and any other legislation, other laws the provisions of this Act shall take precedence’.”
Without judicial or parliamentary oversight and the ability of private individuals who have been subjected to FIA scrutiny, have no ability to challenge the factual basis of the information and the quality of the information gathered may be therefore be questionable. Experts in the field of intelligence reveal that such data is particularly troubling in the domain of national security and law enforcement, in which reliance on inaccurate data can lead to wrongful surveillance, detention, deportation, prosecution, and even convictions.
The lack of oversight and transparency in the information gathering and dissemination; there is no need for the FIA to obtain a court warrant, undermines the right to procedural due process as a primary guarantee against wrongful government determinations, cautioned another legal commentator, who also opted for anonymity.
Critics hold that this form of global surveillance is one of the most dangerous intrusions into the basic rights of peoples. At the domestic level, secrecy and national security imperatives have placed intelligence agencies beyond legal and democratic oversight, while on a global level, accountability is entirely absent. Global cooperation among national intelligence agencies remains opaque.
The nature of the international system compounds the problem: FIU actors do not operate within robust institutional frameworks that promote democracy and human rights. Safeguarding rights in the transnational realm when governments conspire to spy, detain, interrogate, and arrest is no easy matter. The proposed FIA legislation only allows for it to be a member of Egmont Group, an international financial data sharing body.
The proposed amendment to the FIA legislation introduces greater power to the financial spy agency to analyse and investigate individuals. Traditional free-standing FIU’s are vested with the authority to receive and distribute information to other national security agencies, but do not have authority and responsibility of conducting an independent analysis of the information obtained. Under the traditional model the FIU does not actively seek intelligence from the participating states, scrutinize that intelligence to guarantee its accuracy, or assess its relevance for crime-fighting purposes. The proposed legislation shifts away for this model making the FIA more intrusive, this introduction of additional powers to compel information, without a warrant and at the demand of the agency makes the urgency of legislation to protect the of rights of individuals all the more pressing, noted the attorney consulted by this publication.
“To safeguard peoples private rights and interests, most countries have enacted information privacy laws, or data protection laws. Such laws specify the conditions under which the government may collect personal information. Individuals must either consent to the collection and the intended uses of their information, or a piece of legislation must specify the public reasons for mandating personal data processing, this is lacking in our jurisdiction creating a real potential for abuses.”
Without privacy laws, information gathered by The Botswana Gazette shows that there is nothing to restrict the amount and type of personal information that may be collected, and the limit on the time during which personal information may be retained by government. Similarly, there is no restriction on putting such information to uses different from those originally contemplated or shared with other government agencies, unless the original purposes of the data collection are met or to satisfy overarching national security needs.
Individuals do not have the right to apply to government agencies to ensure that information stored in their government files is accurate and that it is being used in accordance with the law. Enforcement of privacy rights is generally entrusted to an independent body with the power to hear individual complaints, initiate investigations, and conduct other forms of oversight, all lacking in the current legislation.
The aim of privacy protection clauses is to ensure that as little personal information as possible is available to government, and that the personal information that absolutely must be stored in government computers is reliable. If only limited amounts of reliable information are available, the theory goes, abuses of government power are less likely.
The International Monetary fund notes in its Overview of Financial Intelligence Units (FIU), that “An FIU is a central national agency responsible for receiving, analysing, and transmitting disclosures on suspicious transactions to the competent authorities” the IMF goes on to emphasise that “Financial institutions hold critical information on transactions that may hide criminal schemes. Although this information is covered by necessary confidentiality regimes, it has to be made accessible to law-enforcement agencies to enable them to trace criminal money channels.”
The Institute for Security Studies qualifies the role of FIU “There is as yet no international harmonisation on the role and functioning of FIUs. While there are various models of FIUs, countries need to take cognisance of their basic features, which are that they should be consistent with a country’s supervisory, legal and administrative framework and with its financial and technical capabilities.”