The Director of Department of National Archives and Records Peter Choto is expected to appear before the Public Accounts Committee (PAC) today (Tuesday) to explain whether the Directorate of Intelligence and Security (DIS) documents marked ‘secret’ in the National Petroleum Fund saga are classified documents or not.
This follows DIS director Isaac Kgosi’s decision to refuse to discuss the correspondences between his agency and the Ministry of Minerals after he was subpoenaed to give evidence to the PAC reviewing the National Petroleum Fund (NPF) alleged corruption scandal.
PAC Chairman Dithapelo Keorapetse said they were compelled to summon the Director of National Archives and Records because he is the custodian of government records.
A heated exchange ensued between PAC member Samson Moyo Guma and Kgosi on Friday after the latter had asked Kgosi to read letters he wrote to the Ministry. Kgosi insisted that since the letters were marked ‘secret’ this meant that they were classified. Kgosi said he could only discuss the letters after they had been declassified.
“As far as I’m concerned this document is classified and I cannot read it before this committee until it is declassified. If you look at the top left corner there is classification stamp so I cannot read it.”
Guma then asked Kgosi if he (Guma) should read the letter.
“Sir I cannot dictate it to you if you can read it or not, but unfortunately being the custodian of secrets in this country I cannot read a document that is classified and has not been declassified because I know the consequences of doing so,” said Kgosi.
“I will read it for you sir,” Guma said.
The document in question is a letter from the then Permanent Secretary Dr Obolokile Obakeng requesting that DIS reimburse the sum of P230 million which was paid into a company called Khulaco on behalf of the directorate to the NPF account. Guma said Cabinet had directed that Kgosi’s department must pay the sum of 230 million into the NPF. Obakeng had also complained to Kgosi that the funds be reimbursed because the NPF could not cope with its commitment especially the stabilization of fuel prices.
Guma also read a reply from Kgosi’s office stating that repayment of the money was part of ongoing discussions ongoing between ministry and DIS.
Guma asked if Kgosi was aware of the documents or he would not talk about them because they were classified.
Kgosi said “Mr. Chairman I would not discuss the documents because they have not been declassified. Unfortunately being the custodian of the security of this country I cannot do so.”
Guma said he was “moving away from classified documents” and asked if Kgosi was aware of the funds transferred to DIS and Kgosi answered in the affirmative.
Kgosi said he was aware of P250 million and not P230. He said the funds were transferred to a company managing petroleum fund and Guma asked which company it was and Kgosi said he could not name it because it was part of a case before the court.
At this juncture, PAC Chairperson Dithapelo Keorapetse interjected and said Kgosi had raised objection to classified documents relating to the reimbursement of the funds.
“I just want you to help us here. You agree with the documents are with the Ministry,” and Kgosi answered in the affirmative.
Kgosi said he was not aware that the documents were also with the Auditor General.
“The documents which you said are classified, who is supposed to see them?” asked Keorapetse. “Those persons who have been cleared to see them,” said Kgosi.
Keorapetse sought clarification: “what do you mean by that, who is supposed to make the clearance that so and so is supposed to see the documents.” Kgosi said the “persons in authority who have been cleared. You have to be cleared in to read documents in government. Not everyone reads classified documents.”
Keorapetse then asked; “You said whoever must see the documents must be cleared. In terms of what law or authority or who is supposed to make the authority that so and so must see the documents.”
Kgosi said that as far as he was concerned “I’m responsible for the security of documents in this Republic and if a document has been classified and has not declassified and I cannot come and declassify that document it is against the law even if it is a document that is in the archives of this Republic and it has not been declassified I cannot come and read the document here is against the law.”
Then a heated exchange ensued between the two men.
“Forget the reading. I’m saying for anyone to have access to this documents you say they must be cleared, so my simple question is, in terms of which law must the person must be cleared and which officer (must declassify the documents,” Keorapetse chided Kgosi.
Kgosi retorted thus “I cannot advise you how declassification is done. I would ask you to solicit legal advice from your counsel I cannot tell you that legal counsel will know how declassification of documents is done.”
Keorapetse said “When I need advice I would advise myself at what point I need legal advice. I’m asking you that for anyone to have access to these classified documents which are at ministry of Minerals, with auditor general, and members of the committee, they must be cleared. Is it in terms of Security and Intelligence Act?”
Kgosi said “You are putting words into my mouth I haven’t said so. I would say you solicit advice from your legal counsel.”
“No I’m asking you,” Keorapetse said.
Kgosi asked that he be given the opportunity to answer questions. But Keorapetse reminded him that he had made it clear from the beginning of the proceedings that he (Kgosi) would not dictate to the committee how it should conduct its proceedings.
“You are not going to tell me to answer this way or that I answer the way I feel is satisfactory to me to answer,” said Kgosi and Keorapetse said “Ok go ahead.”
Kgosi said he would not answer some of the questions relating to the ‘classified documents’ because the person who gave him (Keorapetse) the document should have advised him.
“I haven’t been told that the documents have been given to Auditor General or that they have been declassified.”
“Are you are aware that NPF has been audited?” Keorapetse asked. Kgosi said there was no how he could be aware of the audit because he is working at the Office of the President and not Auditor General of Ministry.
Keorapetse sought to know who had classified the documents in question. Kgosi said the responsible officer who authored the documents.
“What evidence do you have that the documents have not been declassified?” asked Keorapetse.
According to Kgosi “When a document is declassified there is a declassification stamp. The document you showed me does not have a declassification stamp.”
Keorapetse asked if it is a stamp found in government offices.“Unfortunately it is difficult to advise you. When I tried to advise you, you have repeatedly told me that you will get it from somewhere I’m just a witness here. I cannot advise you.”
Keorapetse also sought to know if “In your office, Do you have the stamp of declassification in your office.”
Kgosi replied thus, “I cannot tell you what I have in my office.”
Keorapetse lost his cool. “I find that to be rude and you are not cooperating with this committee.” Kgosi insisted that he was cooperating with the committee.
“I’m asking you, you are saying this document is marked secret but without a stamp. If there is stamp of classification, do we have a stamp for declassification?” Keorapetse asked.
Mr Chairman I cannot advise you, if you allow me to advise you then I will advise you.
Kgosi asked “Mr Chairman do you want me to advise you?”
At this stage, Keorapetse asked another PAC member, Ignatius Moswaane to chip in.
Moswaane wanted to know what constituted declassification of transferring funds from one government to another.
“What is it that is confidential about this letters? I mean transferring funds from one government to another, what is confidential about it?” Moswaane asked.
PAC member, Ndaba Gaolathe said in terms of the legislation that none of the officers from whom Kgosi sought variation from had authority to do so.
According to Kgosi, he did not have to write a letter to request for variation of the P250 million from NPF insisting that the funds belonged to his agency.
He said that because the money had already been approved to them he did not have to ask for variation of the fund from the NPF to their account.
“I only wrote that letter, which is classified, for the sake of transparency. I actually did not have to ask for variation because the funds had already been approved to us,” said Kgosi.
Gaolathe put it to Kgosi that he should have sought mandate from the Central Intelligence Committee if there was ever an issue of national security to which Kgosi answered “I make a national threat assessment report once a year, if the report is approved then there is no need for me to go back to the committee for approval.”
Kgosi is expected to resume giving evidence before PAC on Tuesday after Choto had also testified before the same committee.
Kgosi and DIS are at the centre of a deal amounting to P250 million that was intended for the construction of fuel storage tanks but the Directorate on Corruption and Economic Crime (DCEC) believes that the money ended up in Israel and other countries in a case of suspected money laundering.