Conflict between former President Ian Khama and the former Directorate of Intelligence and Security Services (DIS) Rre Isaac Kgosi and the intelligence agency has been intensely in the public domain after the two left their public offices in 2018. Khama and Kgosi are claiming the DIS under the current Director General Peter Magosi and with the concurrence of the President Dr M.E.K. Masisi are pursuing an agenda clothed with the hallmarks of political persecution. The DIS on the other hand argues it is lawfully pursuing weapons of war against the two which weapons the DIS verily believes, the two possess unlawfully. As a consequence, the DIS as recently as last week, launched and successfully obtained an ex parte application with the High Court in which Seretse Khama Ian Khama, Isaac Seabelo Kgosi and Sehunelo Khunou are the Respondents. In this conversation, I will argue on the legal and political aspects of the matter because they appear to be bed fellows.
The DIS legal argument
The DIS is perfectly within its rights to launch the ex parte application against the Respondents if it genuinely believes they unlawfully possess the weapons of war as mentioned in the application. This will be the basis upon which Justice Gabanagae granted the DIS the right to search and seize such weapons at designated places should it find them. In Justice Gabanagae’s words, he orders the DIS ‘….To conduct a search of Respondent’s premises and seize any items as per the search Warrant of record.’ The Respondents should they be found in possession of the said items, will have to appear in a court of law to explain the circumstances under which they took possession of those items. For the Respondents to mount a defence, the DIS will have to lay bare all the facts and evidence upon which they relied upon to seek and be granted the ex parte application.
But the DIS in particular and other security agencies in general have not covered themselves in glory in a similar incident when it approached the same High Court where at some point Justice Gabanagae was told a lie in the infamous P 100 billion case in which Khama and Kgosi were said to have played a telling part. That lie is that the person who was arrested and initially denied bail, Wilheminah Maswabi, was involved in orchestrating terrorism against this Republic. It has since emerged in a judgement of Justice Kebonang that the case launched by the DIS was mere fabrication hence the discharge and acquittal of Maswabi. The same DIS made an application before a Gaborone Magistrate Court where it sought permission to confiscate property belonging to the Sebina brothers.
When the evidence to substantiate the confiscation of the said property was sought by the Magistrate, the DIS dismally failed to do so. In the course of seeking to arrest Kgosi at the airport which it succeeded, the DIS is reported to have forged a Palapye Chief Magistrate’s signature in that regard. The Chief Magistrate reports continue, is contemplating suing those who effected the said forgery. There are many other instances where the DIS was embarrassingly found wanting on the legalities of its activities. In the current ex parte application against the named Respondents, wouldn’t it be fair and reasonable to hold the view that the DIS has again fabricated the current case against Khama and Kgosi? Your guess is as good as mine. Only time will tell.
The political cloud over the DIS
The DIS has been accused by some members of society to be intrinsically tied to the politics of the country ever since it was established by Khama back then. That is, it is used by those in power to amongst others, settle political scores against political opponents together with those who constructively or otherwise criticise the political leadership of the time. The Kalafatis murder case wherein the murderers were convicted by the High Court to jail terms and subsequently released under a convenient Presidential pardon has been argued as case where the DIS and other security agencies were used by Khama to settle scores in one form or the other.
The trajectory of the DIS has seemingly continued under the current administration because nothing notable to suggest the contrary obtains. It still remains under the firm direction and control of the sitting President with its head and officers blindly loyal to the President than the Constitution. Because of this blind loyalty to the sitting President than to the Constitution, it is fair to argue that some in the DIS are still blindly loyal to Khama and Kgosi. With the relationship between the President and his predecessor collapsed possibly to the point of irretrievability, it is not far- fetched to suggest the incumbent will use anything at his disposal to get even with the predecessor and his associates. The present and past skirmishes between the protagonists could very well explain the turn of events as a continuation of the same. While other actors in the cast could be deemed as collateral damage to some extent, the main target is Khama given the collapsed relationship between him and the President. The recently published Khama letter to Cyril Ramaphosa could be the last straw that has broken the camel’s back. I accept this view will be highly contested and rejected with contempt by the powers that be. But it is based on the said collapsed relationship because had it not done so, this endless drama wouldn’t have emerged.
With the DIS firmly in the crosshairs of political atmosphere owing to its close proximity to political leadership than to the Constitution and ably complemented by its blind loyalty to such leadership, it is hard if not impossible for it to avoid the temptation of playing along with the political trajectory. It will be remembered that the current DIS head was fired by Khama and subsequently brought back by the current President in large measure ‘to help him fight his political battles’ with his predecessor.
While courts will not be able to resolve the political aspect of the ex parte application, it will certainly be seized, and expected to decisively deal with the legal aspect. Owing to the doctrine of ‘he who alleges must prove’, the DIS will be duty bound to lay bare all the facts and evidence as captured with affidavits that accompanied the application. It is my ardent hope that the DIS has learnt the hard way in previous legal matters like the fabricated P 100 billion scandal such that this time around, its case is credible and water tight. That said, one is not oblivious to the many and costly school boy errors the DIS has committed and will continue to commit as long as it remains at the mercy of the political leadership in power whether by commission or omission. In the process, it becomes hard if not impossible to fire DIS heads as it was the case during Khama’s administration much as it is the same under this administration because these heads know where the dead bodies are buried. I can’t wait to watch how the current drama pans out in court. Judge for Yourself!
‘No one is safe until everyone is safe.’ Religiously complying with all Covid-19 protocols and taking jabs still remain our last line of defence.
