Dick Bayford looks out the window overlooking the main gate into his double storey mansion, and a frown flitted across his face. For the umpteenth time this evening, he asks why the outdoor security light is not working. We are seated around his TV room coffee table, batteries disgorged from our cell phone handsets to ensure that our conversation remains private. This is not some neurotic impulse from a lawyer who is paranoid about security, far from it. Who Dick Bayford meets and what they discuss is a national security issue. Well, maybe not a national security issue, but it is enough to excite the interest of national intelligence agents. His client’s register can pass for the hit list that is currently being whispered in intelligence circles.
Among his clients is former Botswana Defence Force (BDF) Commander of the Ground Forces Major General Pius Mokgware. When Mokgware decided to fight the army command for unfair dismissal and tapping his phones, his first stop was Bayford’s office. Bayford was the first man John Kalafatis’ family thought of after their son was shot in cold blood by BDF Military Intelligence officers. Currently, he is representing former BDF intelligence officers, Brigadier Peter Magosi and Sergeant Dzikimani Mothobi who are being investigated by the army over alleged missing spy equipment.
For Dick Bayford, removing batteries from cell phone handsets when consulting clients is all in the day’s work. As public chum number one, the brave lawyer who is always fighting the corner of the small man against the unforgiving system in the prevailing Orwellian climate, Bayford has to constantly look over his shoulder. He remembers that, only seven years ago he would not even think twice about welcoming a stranger knocking on his door at 12 o clock midnight. In less than 10 years, President Ian Khama has transformed Botswana into a surveillance state and citizens have lost the very peace of mind he claimed to be protecting. There is fear and paranoia in everyone.
Even Chairman of the Parliamentary Committee of the Intelligence and Security (PCIS) and Botswana Democratic Party MP, Kagiso Molatlhegi confirms the prevailing psychological effect of a surveillance state, that spine-chilling feeling of Big Brother watching you. “Indeed civil liberties have been affected but only due to the perception that has been created which as we know is false. These days as a politician when you talk to someone over the phone and as soon as you get into issues that may seem controversial they immediately request discussing the issue in person instead.
So that indicates to you that people are not free to express themselves because they believe someone is listening to their conversations.” In her academic paper, “ a critical Evaluation of the Intelligence Oversight Regime in Botswana” Lesego Tsholofelo states that, “real or perceived as Molatlhegi argues it is, the reality is that such a perception is actually having an effect on how the citizens handle their day-to-day interactions. To the extent that people believe they are living under constant surveillance is an indictment to a state of free society that democracy must guarantee.” There is a sense that the weak oversight of the PCIS over the Directorate of Intelligence Services (DIS) exposes the Office of the President’s purported concern over national security as a complete sham.
Raising concern over the PCIS weak oversight role, Tsholofelo points out that, “the President appoints members of the Parliamentary Committee (PCIS) tasked with overseeing the intelligence. The Botswana Parliamentary oversight however is not allowed anywhere near operations of DIS, therefore an opportunity exists for possible manipulation by the executive on DIS tasking and direction.” The paper further states: “Secondly the independence of the PCIS also calls for close observation. Notwithstanding that the committee is referred to as parliamentary and endowed with the same powers and privileges as other parliamentary committees as per the National Assembly (Powers and Privileges) Act, it fundamentally differs with them. The president appoints members of the committee after consulting the Speaker of the National assembly and the Leader of Opposition. This is in contrast with the appointment of other parliamentary committees where it is the Parliamentary Select Committee that is seized with such a task.” Critics have cast aspersions over this arrangement with former Speaker of the National assembly, Matlapeng Ray Molomo branding it, a “special presidential committee.” At the core of Molomo’s and other skeptics’ concern is the committee’s lack of independence from the executive.”
Tsholofelo concludes that, “the Botswana Parliamentary oversight committee fails on the key elements of access and independence in that the PCIS is clueless on what DIS operations entail, over and above the fact that it is in effect it is accountable only to the executive through its appointments and reporting processes.” So in one of Africa’s most respected and stable democracies, there exists a system of “oversight” that would be at home in any authoritarian regime.
Opposition MPs have even resigned from the committee protesting that it is not independent. The DIS has not been presenting annual reports to parliament as required by law sparking suspicions that it may be concealing some wrong doings. This has not been helped by media reports of missing spy equipment which provided the government with a tool for the electronic surveillance of Batswana that has ushered in an age of constitutionally questionable intrusion into the lives of citizens. Among the missing equipment are CellBrite UFED phone data spying device that gives intelligence organizations vast and evasive surveillance capabilities. The device is like something out of a James Bond movie and intelligence officers using it can lift the contents from your phone in less time than it takes to conduct a normal traffic stop. It circumvents all your passwords and encryptions as well as retrieving data you have deleted long ago. Call history, text messages, internet history, bookmarks and even hidden or encrypted data is no match for the CelleBrite UFED.
Indications are that these surveillance arrangements are being carried out in secret, far from the watchful eye of the citizenry or the democratic oversight of the judiciary, because the equipment is illegal in Botswana. The missing gadgets which are the subject of a BDF Board of Inquiry have revealed a thriving surveillance state which is more pervasive than most people though, and operates with little accountability or restraint. The academic paper by Tsholofelo also questioned the unilateral appointment of the Director General by the president. “In most liberal democracies such an appointment, including those of other security chiefs require confirmation by Parliament or consultation with the opposition representation.” Tsholofelo warns that, “for instance, a president who may harbor ill intentions on the use of the Directorate may appoint someone who once in office, would be at both his own personal and political bidding instead of national interest.” The current Director General of the DIS, Isaac Kgosi was once President Khama’s batman while the president was still a BDF general. When Khama became Vice President he brought Kgosi with him from the army and made him his private secretary in a move that touched off national controversy.
The debate on whether Khama uses the intelligence forces to serve personal interests first came up after the extra-judicial execution of John Kalafatis. The Kalafatis family lawyers, Dick Bayford and Duma Boko wrote to President Khama requesting a sworn statement from him to clarify his relationship with a Phakalane resident known as Allan West. In the letter West is described as a long time family friend of the President. John Kalafatis was shot in cold blood by intelligence operatives for being a suspect in a burglary at Allen West’s home.
“John’s family needs His Excellency’s assistance with respect to both the anticipated private prosecution and the civil claim. A statement from His Excellency regarding his relationship with West, and the latter’s authority to issue instructions directly to members of the DISS, BPS and BDF, would enable a proper evaluation of the case,” reads a statement. In the letter, it is alleged that the BDF and the DIS components of the search team were given strict instructions to kill Kalafatis. “Prior to his death, the search team had opportunities to arrest Kalafatis in public, but chose not to do so because they wanted to kill him at a place of their choosing where shooting at, and executing him, would not present a danger to members of the public,” reads the letter to the President.
The perception that the DIS is Khama’s private project however is as old as the DIS itself. “As an MP when we discussed the Bill in 2007 I did not subscribe to it. My reasons were amongst others, that it is being done to meet the needs of an individual, the Head of State,” Isaac Mabiletsa, opposition Botswana Congress Party (BCP) MP is quoted saying in Tsolofelo’s paper.
“It is a perception that has taken root in the country. Uyapo Ndadi, a Gaborone-based human rights lawyer says whilst he welcomes and sees the need for a DIS, he contends that its introduction was not properly handled. He says, “It was deemed to be a Khama project for protection of his interests and this was not dispelled. The question of ‘why now?’ was never answered. Why do we now have to have a creature like this? What has changed? What triggered it? So that question needs to be answered.” The DIS which one of the emblems of President Khama’s tenure came into being on April 1 2008, the day Khama was sworn in as the fourth president of Botswana.
