Monday, August 8, 2022

Parliament loses control of DIS activities ÔÇô research

The Parliamentary Committee on Intelligence and Security (PCIS) has lost its oversight role in ensuring that the Directorate of Intelligence and Security (DIS) operates within its mandate following the resignation of its members from the opposition party, a research paper by a Botswana scholar based at Brunel University has found.

Lesego Tsholofelo’s research paper titled “A Critical Evaluation of the Intelligence Oversight Regime in Botswana” also found that PCIS has never laid a report before Botswana’s National Assembly since the inception of DIS saying the Committee is ineffective.

The researcher says the ineffectiveness of the PCIS is demonstrated by their failure to deliver on their obligations as spelt out in Intelligence and Security Service (ISS) Act.

“An inference could be drawn here that such lack of confidence probably explains why, after five years of existence, the Tribunal is yet to adjudicate over any case…In the five years of DIS’s existence there is no case over which the Tribunal has adjudicated,” says Tsholofelo.

Either way, he says, such a scenario does not inspire confidence in the DIS and the judicial oversight mechanism in place.

The researcher says that the fact that no known investigations have been carried out, despite numerous allegations reported in the local media, not only perpetuates a negative perception about the DIS’s credibility, but also casts aspersions on the effectiveness of the Tribunal as an oversight mechanism.

Tsholefelo also found that missing from the PCIS’s functions is the oversight on the activities or operations of the Directorate.

“Without access to at least some operational information, the question arises as to how the committee ensures the DIS’s activities are consistent with their mandate. While it is acknowledged that there are inherent dangers with exposing intelligence matters to parliamentary scrutiny, it cannot be overstated that in a well-functioning liberal democracy no area of government is a “no-go” for the legislature,” he said.

The ISS Act therefore, clearly falls short in that it does not empower the PCIS to examine the operations of the DISS.
He said, consequently, the concerns over this lack of independence on account of the PCIS’s appointment by the President have led to Opposition MPs resigning from the committee in protest.

Currently there is only one Opposition MP (MP Bagalatia Arone) of the Botswana Congress Party (BCP) remaining in the committee.

“With its current composition the committee has lost its effectiveness as premised on credibility emanating from its inter-party posture. The MPs have not been replaced and as such the effectiveness and efficiency of this committee as an oversight mechanism has been greatly compromised,” he said.

The non-replacement of the members further renders the committee non-compliant with section 39 (1) which stipulates membership of nine MPs. With the “shall” wording, it is peremptory in its requirement of nine members.

“All the resigned members are yet to be replaced and like the Tribunal it has failed to comply with the ISS Act on the submission of a report for onward tabling in parliament. The study says independence from the executive, as an important variable in a parliamentary oversight, is lacking owing to the appointment of the committee by the President. Exacerbating this, the researcher says, is the committee’s lack of access to the Directorate’s core activities,” says the scholar.

With respect to (professional ethos and institutional norms), the researcher found that the DIS does not have a Code of Conduct in place. 

“The exclusion of other intelligence gathering institutions from the oversight regime that is currently in place for the DIS presents another major challenge in Botswana’s intelligence governance. The Botswana Police Service, Botswana Defence Force (BDF) and the Directorate on Corruption and Economic Crime (DCEC) have intelligence units within their structures but the ISS Act is silent on how their secret activities are overseen and controlled,” said Tsholofelo.

┬áNotwithstanding the veracity of allegations that have come to be associated with the DIS, the public perception as it stands threatens Botswana’s democratic credentials, he says.

In light of this apparent negative perception, the effectiveness of the DIS may also be under threat. “As an institution of government, the Directorate needs to be given the capability through resourcing to effectively execute its mandate. However, given the perception that has in effect demonized it in the eyes of the very citizens it is to protect, it becomes a challenge. Its funding almost always elicits controversy,” he says.

Tsholofelo found that unlike back in 1977 when the formation of the BDF was widely backed across party lines, the DIS creation lacked national consensus and buy-in. As a consequence of this, suspicions and mistrust have continued to plague the Directorate, he says.

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