Response to Questions received from the Botswana Guardian newspaper on the subject of oversight of the Directorate of Intelligence and Security

source: Republic of Botswana (16/2/09): TAUTONA TIMES no 3 of 2009
The Weekly Electronic Press Circular of the Office of the President "Democracy, Development, Dignity and Discipline"

C2) 11/2/09: Response by BGCIS to Questions received from the Botswana Guardian newspaper on the subject of oversight of the Directorate of Intelligence and Security (DIS)

Reproduced below are the full responses to questions received from the Botswana Guardian newspaper. The responses were partially reflected in an article published in the 13/2/08 edition of the newspaper:

The Guardian reporter wrote -

We at Guardian are in the process of putting together an article that attempts to weigh the need for a certain level of secrecy in the DIS as a means for effective operation vis-à-vis the equally important issue of scrutiny and accountability on the part of the organ, especially on the costs of operations. May you therefore assist us by answering the following questions:

Question 1: The DIS has been allocated about P2 million [sic] from the recent budget. We are well aware of the fact that the organ is merely starting and therefore might require a larger chunk for start-up equipment and infrastructure. The question however is would there be any accountability/scrutiny at the end of the year to determine how much was used and for what purposes?

Answer: Absolutely, the DIS like any Government organ is held strictly accountable for its expenditure. In this respect it is subject to oversight by both the Executive and Legislative braches, as well as the Auditor General. Such Oversight is, moreover, explicitly provided for in the Intelligence and Security Service Act of 2007.

Question 2: Who would undertake such scrutiny?

Answer: In addition to the Constitutionally mandated responsibilities of Parliament, which of course must approve the budget, and the Auditor General, the 2007 Act provides for an Intelligence and Security Council consisting of the Permanent Secretary to the President, who is of course also the Cabinet Secretary, and the Attorney-General, as well as the DIS Director General. The functions of this Council include "examine the expenditure, administration, complaints by, and oversee the legal framework of, the Directorate." (see also Parliamentary Committee below)

Question 3: After that, where or to whom would the scrutiny document be presented to? And Question 5: What is the role of the Parliamentary Committee on Intelligence?

Answer: From our phone conversation we assume that question 3, as well as 5 are focused on the Establishment and Function of the Parliamentary Committee on Intelligence and Security and the circulation of its Annual Report, which are both defined under Part VII of the Act, where it is affirmed that the said Committee shall have the same powers and privileges as set out in the National Assembly Act.

This Committee, we would hear wish to emphasise, should NOT be confused with the Tribunal, a separate oversight body also provided for in the Act, which is tasked with handling public complaints.

Section 38 (1) of the Act States that - "There is to be established a Parliament Committee, to be known as the Intelligence and Security Parliamentary Committee, to examine the expenditure, administration and policy of the Directorate.

With respect to the Annual report of the Parliamentary Committee it must be presented to both H.E. the President and before the National Assembly. This is covered in Section 40 of the Act, which is explicit in stating that:

"(1) The Parliamentary Committee shall make an annual report on the discharge of their functions to the President and may at any time report to him or her on any matter relating to the discharge of those functions.

(2) The Minister responsible for intelligence and security shall lay before the National Assembly a copy of each annual report made by the Parliamentary Committee under subsection (1) together with a statement as to whether any matter has been excluded from that copy in pursuance of subsection (3)

(3) If it appears to the Minister, after consultations with the Parliamentary Committee, that the publication of any matter in a report would be prejudicial to the continued discharge of the functions of the Directorate, the Minister may exclude that matter from the copy of the report as laid before the National Assembly."

Question 4: Can this document be made available o the general public?

Answer: Yes - as provided for above, it becomes a public document when it is placed before Parliament.

Question 6: Who are the people who make up this committee?

Answer: According to the Act the composition of the Committee must be reflective of the numerical strengths of political parties represented in Parliament. The members themselves elect their Chairperson.

In the above context its current membership is: Moeng Pheto (Chair), Thebe Mogami, Khumongwana Maoto, Robert Molefabangwe, Oreeditse Molebatsi, Mephato Reatile, Charles Tibone, Botlogile Tshireletso, Slumber Tsogwane.

Question 7: Lastly, we are well aware of the fact that an organ of this nature requires a certain level of secrecy in order to be effective. But how is government going to make sure that such secrecy does not become the very basis for misuse of public funds by the organ?

Answer: DIS like any public institution exists under the law. Misuse of funds in any Government Department is unacceptable and may constitute an offence. In this respect the Intelligence and Security Act provides for additional safeguards to other applicable legislation.

This point is further underscored in Section 11 of the Act, which explicitly states that: "The officers and support staff may exercise such powers and shall perform such functions as are conferred upon them by or under this Act or any other written law and shall, in the performance of their functions, obey all lawful directions which they may receive from any person having the authority to give such directions." In this context DIS personnel are, for example, like all other public officers, subject to such legislation as the Corruption and Economic Crime (DCEC) Act and the Finance and Audit Act, whose section 6 governs the control of monies.