DIS could be spying on Khama and Kgosi

20 May 2018

On the second day of his second month as president, Mokgweetsi Masisi embarked on the second phase of his redesign of the civil service.

“I wish to announce that His Excellency the President has decided to relieve Colonel Isaac Seabelo Kgosi as Director General of the Directorate of Intelligence and Security with immediate effect and consequently appointed Mr. Peter Magosi as the Director General of Intelligence and Security Services,” read a statement by the Permanent Secretary to the President, Carter Morupisi whose incongruence suggested it may have been cobbled together in a tearing hurry.

The first redesign phase (the appointment of a new cabinet) was to be expected but the second (which included recalling a high commissioner who had taken virtual residence in London) wasn’t. With specific regard to Kgosi, his contract had been renewed by outgoing President Ian Khama and, at least to those who live outside charmed circles, April 1 gave no indication of any oncoming turbulence that could rock a ship of state that was changing captains.

Both online and offline, Kgosi’s ouster was met with great jubilation because under him, the nation’s main spy agency had taken on a manifestly Third World character in a country which, under the first three presidents and for 42 glorious years, had steadfastly shunned disagreeable Third-World norms. Nowadays, people breathe easy and speak freely both in public and on the phone. In an urban legend that is only beginning to grow legs and roam Gaborone streets, one of the very first things that the new DIS Director General is supposed to have done was to angrily yank a cord from the socket of a mass electronic surveillance gadget.

On the other hand, the President of the Alliance for Progressives, Ndaba Gaolathe, says that it is premature to celebrate Kgosi’s ouster and he worries that Masisi himself may have begun to harness the dark power of the intelligence community. To be clear though, Gaolathe credits the new president for firing Kgosi, noting that “the decision was long overdue and appropriate.” However, while Kgosi is gone, the structure and infrastructure that he built over a decade remain in place, the only work experience that some (possibly most) DIS agents have is limited to doing the horrid things that made people fearful of the spy agency and the DIS Act remains intact.

“The replacement of a Director General of the DIS 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 services with a fresh mandate from the legislature,” says Gaolathe, adding that “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.”

A little connect-the-dots exercise motivated by what the Gaborone Bonnington South MP says next has to arrive at the conclusion that the previous Director General, as well as the man he days he didn’t take orders from – former president Khama – may possibly be on the receiving end of a massive, all-seeing, all-hearing and lavishly-funded spy infrastructure that they themselves painstakingly built surveillance gadget by surveillance gadget over a painfully long decade.

“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,” says Gaolathe in a statement that has to inspire the domestication of the dramatic highpoint in an iconic 18th century Gothic novel: “Dr. Khama, meet Frankenstein - the monster you created.”

Gaolathe’s elaboration on this point is that “the current dispensation means that neither the former presidents nor the incumbents would necessarily be immune from the machinations of the intelligence community against them.” Former president Khama has been hauled over the coals for unethical, self-interested use of intelligence resources and Gaolathe fears that Masisi may himself have begun to do the same thing. A fortnight ago, Sunday Standard reported an anti-Kgosi, special-forces intelligence operation that was masterminded by Magosi (who was then a director at the Ministry of Environment, Natural Resources Conservation and Tourism) and some former senior army officers, notably former Botswana Defence Force Commander, Lieutenant General Tebogo Masire, and Brigadier Thulaganyo Masisi - who is the president’s elder brother. In an interview with Botswana Gazette the following week, Kgosi said that he was aware of such operation. Gaolathe deems this operation to have been illegal and illustrative of the extent to which the official intelligence community has been criminalised. 

Says the MP: “The hope, of course, is that the alleged operation did not take place, because if indeed the president utilised persons who are not authorised by law to guide and give instructions to special forces, this would represent not only a breach of the of the rule of law, but also signify the genuine concern, even by the incumbent, that the DIS has gone rogue.”

Such roguishness owes in no small measure, to the deficiency in oversight mechanisms that are stipulated in the act of parliament that established DIS.

“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,” Gaolathe says.

The Committee has not met since the 2014 elections, its powers are “relatively vague” and limited to “examination of expenses, administration and policy”. The Committee has not submitted the statutorily-mandated annual report and “much of the powers on direction of the DIS lie with the Central Intelligence Committee which consists of the president and his agency leaders within the executive.”  While the Act also establishes a tribunal that adjudicates on complaints against DIS, Gaolathe says that there are no meaningful security mechanisms to make those who have legitimate complaints feel safe.

“Essentially the intelligence has no meaningful oversight in the Botswana system as the executive has absolute control over the intelligence community,” he adds.

This is the system that Masisi inherits from his predecessor and as the AP leader believes, unless fundamental legislative or constitutional revisions take place, DIS will remain a bloodthirsty Frankenstein monster. While he accepts that significant intelligence work necessarily has to be carried out in secret, “transparency is the one essential of democratic practice that is indispensable.” The transparency he would like to see is one that has a mechanism to verify if the intelligence community is fulfilling its mandate, ascertain that the analysis work by the intelligence community is adequately rigorous and establish if there is adequate operational capacity and resources to fulfill the intelligence mandate. He would like to see the parliamentary committee and tribunal remodelled around an oversight configuration and framework that possesses certain basic levers such as a say in budgets for approval; the right to conduct hearings on activities including where there has been abuse; entitlement to prior notice in the case of covert action by the executive arm of government; the right to refuse approval of some intelligence community programmes; latitude to motivate or conduct investigations and generate report on them right to nominate or reject nominations of key appointments through public interviews of the nominees; and 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,” Gaolathe asserts.

In as far as benchmarking goes, he believes that the United States, Australia and South Africa “provide good case studies of direct legislative systems where the legislature has tangible powers and processes to provide significant but not debilitating oversight” over their respective intelligence communities.

“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,” says the MP, referring, by the acronym, to the Foreign Surveillance Intelligence Act, a 1978 federal law which establishes procedures for the physical and electronic surveillance and collection of foreign intelligence information between foreign powers and agents of foreign powers suspected of espionage or terrorism.

He stresses that DIS’ reconstruction must also entail “a specialized window within the judiciary without which eavesdropping and surveillance on individuals are not possible.” DIS has been faulted for making dubious vetting decisions and to deal with this issue, Gaolathe proposes the adoption of a Belgium-like system in which a permanent committee has “significant powers to reverse unfair security vetting decisions as well as deal with abuse.” Once rumoured to be an assassination target himself, Gaolathe adds that a reconstructed DIS should not have a hit squad as widely believed.

“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,” he says.