Saturday, November 2, 2024

Government ducking and diving on new intelligence directorate

The Ministry of Defence Justice and Security engaged in PR fancy footwork this week in an apparent attempt to deflect attention from a draft bill that seeks to subvert independent judicial oversight of Botswana’s surveillance state.

In a press release under the heading, “Rebuttal – Response to Sunday Standard Story titled Masisi Creates his own deepstate?” the Ministry claims that “at this time a Bill does not even exist since no sanction has been granted on the on-going effort  to  address Botswana’s identified deficiencies on FATF Recommendation 31.2; neither has any decision been taken on the form, content, appropriate style and context of the envisaged legislative  intervention.”

The Ministry however omitted to mention that it has already put together a draft bill which is currently being debated by the Directorate of Intelligence and Security Services (DIS) The Directorate on Corruption and Economic Crime (DCEC) Botswana Police Service (BPS) and Botswana Defence Force (BDF).

The Sunday Standard has in its possession a copy of the Criminal Investigations and Surveillance draft Bill which is sponsored by the Ministry of Defence Justice and Security.

In the rebuttal, the Ministry further claims that, “It is a blatant untruth to suggest that the Government has any intentions to subvert any oversight institution. It is equally false and preposterous to suggest that the Government may ever consider to subvert the constitutionally entrenched separation of powers or interfere with the independent governance arms of the Judiciary and the Legislature. The Constitution also protects the entrenched Bill of Rights, which would not permit surreptitious interference by Government. Entrenched constitutional provisions cannot be amended in a whimsical and capricious manner.”

The ministry again omits to mention that the “Criminal Investigations and Surveillance draft Bill” seeks to create a new directorate whose Director General will be appointed by the president, and that the new directorate will usurp the current role of the judiciary in overseeing requests by the DIS, DCEC, BPS and MI for intrusive surveillance warrants. That the draft bill effectively does away with judicial oversight at the point where electronic secret state surveillance is ordered.

Curiously, the Ministry  steered away from addressing the Sunday Standard report that the draft bill proposes that “the DIS, DCEC, BPS and MI’s requests for warrants to eavesdrop on citizens’ private conversations should no longer be overseen by High Court judges, but by the new directorate whose Director General will be appointed by the President for a period of five years.”

The Sunday Standard stands by its story which stated in part: “the new directorate will be tasked with among other things, issuing warrants for the DIS, the MI, the DCEC and BPS to wire tap citizens cellular phone conversations, wireless communications and e-mails.

Parliament will also be closed out of overseeing the new directorate which will be supervised by a committee comprising the Director General of the DCEC, the Commissioner of Police and the Permanent Secretary in the Ministry of Defence Justice and Security.

Under the proposed law the DIS, DCEC, MI and BPS will only require a court order to mount sting operations, appoint undercover operatives and create false IDs for spies working as moles.”

The rebuttal by the ministry further states that, “ It should  be  noted  that  FATF Recommendation 31  requires that  among others, “•..authorities conducting investigations should be able to use a wide range of investigative techniques for the investigation of money laundering, associated predicate offences   and terrorist financing, including: (a) undercover operations; (b) intercepting communications; (c) accessing  computer systems…”

The Ministry again omits to mention that FATF never recommended that government should do away with judicial oversightat the point where electronic secret state surveillance is ordered and that the issuing of surveillance warrants should be made by the new directorate which will be supervised by the executive.

Indications are that on FATF Recommendation 31; is being used as a stalking horse to deliver oversight of Botswana’s surveillance state to the executive (The President and his cabinet).

The Ministry’s response has been published in its entirety on the opinion pages.

RELATED STORIES

Read this week's paper