I was taught at the University of Botswana, by citizen lecturers, most of them younger than me, that in interpreting a penal statute, a provision that subtracts from human rights must be interpreted strictly, that is narrowly. I understand that to mean that such a provision should not be interpreted to have a wide application, allowing unlimited intrusion into or subtraction from human rights.
I was also taught that procedure, adjectival law, does not generally intrude into substantive rights. It only facilitates how issues are to be resolved. I believe the current Criminal Procedure and Evidence Act does not as a rule subtract from substantive human rights, it strives to be fair to the accused person and the State. I will therefore have difficulty with a position that does not create a balance between investigation powers and human rights.
Our constitution does allow some subtraction from our rights, so long as such subtraction is acceptable in a democratic society. It is this subtraction from our rights, and references to a democratic society, that confuses some. The truth is that our constitution has to be interpreted just like any other statute. This means where a power to subtract from human rights is bestowed by the constitution, such power must have a narrow application. The constitution by this mechanism limits parliament’s power to make law.
In the current situation we seem to have an anomaly, where parliament is trying to take a wide approach to its power to make law, and a narrow view of the limitation of the laws it can make. This by any measure is against judicial rules regarding interpretation of statutes. Parliament is in terms of judicial authority, that I believe parliament counsel has access to, constrained to make laws that intrude into human rights. Interception of private communications, which is an intrusion into privacy, cannot be an exception to these rules that limit parliament’s power to make law. Such intrusion must be minimal or constrained.
When the Court of Appeal held that the appeal by DISS in its matter with former president Ian Khama was not urgent, there was little attention given to the fact that the court was very much aware of the fact that parliament makes law, but the courts interpret the law. Interpretation is a process of giving meaning to the intention of the law giver. The effect of this rule is that even if DISS may conclude that a national security issue is involved, the court may, after hearing the DISS, hold that there was no national security issue involved. It is this whisper by the court, asserting its place in the greater scheme of things that has not been given the publicity that I believe it should.
I try to give breath of the whisper in this manner. I heard a story, years back, that during the late Sir Ketumile Masire’s presidency he instructed the Ministry of Wildlife to export some rhinos to Taiwan. Ian Khama then deputy commander of BDF heard about the instruction. It was said he came by convoy to the Ministry and instructed the Ministry that it was not to comply with the order. It was said that from that day the late Mr. Kgoroba feared the man. Quite obviously Ian Khama could not have been said to be exercising any constitutional or statutory power. But his word prevailed over a sitting president. Obviously his ability to exert force must have played into the civilian minds.
When Ian Khama became president and DISS became operational, its founding head was a soldier, Isaac Kgosi, later promoted to colonel I believe. When he was dismissed by His Excellency Mokgweetsi Masisi his replacement was another soldier, a former brigadier. The point I am trying to develop is that the character of DISS at the top is therefore military. The issue for me is whether if a civilian is appointed head of DISS, its posture as to what constitutes national security, will be the same as the current position, developed under the leadership of products of the military establishment.
We therefore really have only a military perspective of the DISS. This situation in my view puts us in a place where we do not know how operatives and personnel of DISS will behave or conduct themselves under civilian leadership of DISS.
I listened to an interview on Gabz fm radio involving General Pius Mokgware, retired deputy commander of BDF. His approach to security was very revealing in that it gave me a perspective of how the culture of leadership at BDF might be with regard to national security. He gave as examples of our vulnerability, the weak security at our dams and water treatment plants. He also decried the reduction in manpower or deployment of BDF Military Intelligence and blamed armed robberies for this. I never heard him mention of striking a balance between his solutions for our vulnerabilities and other national interests such as schools, health facilities and food supply.
The current Director General of the DISS is a former brigadier at the BDF. This means that he was up there in the leadership circles of the BDF. If General Mokgware’s exposition on national security is reflective of the BDF leadership thinking, the culture under which the Director General of the DISS is grounded, then we have a situation where from the nascent days of BDF to when its products headed newly established security organs we have never had space to have civilian perspective of national security dictating the posture of newly established security organs.
Of course His Excellency is the commander in chief of the BDF, has executive power and is a civilian. I however believe without ever having been president when the DISS was led by a civilian, he, like all of us, has never had opportunity to have a “civilian culture grown leadership” giving him briefs on national security, without being junior to a product of the military establishment.
I must not be understood to be suggesting that products of the military are not qualified to serve as Director General of the DISS. I just want us to see whether we have an evolving situation that we may have to plan for. The point is that if regard is had to what is alleged to have happened during the Masire/Ian Khama era, and the structural/institutional developments thereafter, we may from a national security policy perspective have to consider whether we do not have a biased national security posture that presents risks to the very national security that we seek to ensure.
I am of course not an insider into the ruling circles of this country, so if I was asked to list the number of times that a civilian president has rejected a national security recommendation coming from a head of National Intelligence Services, who is a product of the military, I will not be able to answer. But there are historical references of countries where a civilian head of state has not followed a national security recommendation of the security establishment, and relied on his instinct or advice of civilians. Have we matured to such a position, and if not, what are we doing to reach this stage. The point being we need to create and secure space for a president.
I also question the wisdom of the DISS having access to Ian Khama’s mind, through arrest and interrogation. Such access will of necessity provide access to His Excellency Mokgweetsi Masisi’s mind, which I believe from a constitutional position DISS is not entitled to. There may be certain national security and national interest matters that only Ian Khama and His Excellency know, by virtue of their former positions, and would be protected for so long as no one else has access to their minds. I think this matter should be looked at with sober minds, for it raises the question of how much can the DISS, irrespective of who leads it, civilian or military product, be trusted not to use what they learn against His Excellency, and by extension Botswana. After all he who knows the past and the present controls the future. What national security organs, legal frameworks, and governance mechanisms do we have in place to guard against this?
Can the military readily agree to be subject to a civilian Director General of DISS, and a civilian president? Ian Khama may be out, but what stops the military from treating him as a necessary sacrifice for maintenance of military products in control of security institutions. The reason why he is out of the country may not be about his fear of DISS, but rather his knowledge that as civilians we do not appreciate a military culture that will not subject itself to civilian control on what national security is as happened with the rhino saga. That they never give up power once they get it. They got it in 2008, through him and the late General Mompati Merafhe.
As a people we have ability to draw pictures, and undertake what some call thought experiments. If we fear doing that, because we believe the security establishment will do us harm, or that we will not be appointed Board Members of state owned enterprises, then we are already in prison, and talk about protecting our privacy is like a prisoner asking for privacy when he goes to the bathroom, which is subject to the facilities provided by the jailer, and that by any measure is not exercise of any rights.
