Intelligence and Security Services Bill, No 23 of 2007

Some observations concerning the Bill. BOCONGO and DITSHWANELO – The Botswana Centre for Human Rights. 19 July 2007.

Botswana became independent from Great Britain in September 1966. The development plans, policies, as well as legislative and judicial frameworks, are all aimed at realising Botswana as a functioning democracy. Democracy should be recognised in both theory and practice, in all spheres of operation of the country – including the security sector. All legislation should be framed within the context of the Constitution of Botswana. This means that the fundamental rights as enshrined in the Constitution cannot be violated by any law. A participatory democracy should be predicated upon the concepts of accountability to the citizenry by those elected into positions of authority and transparency of administrative processes.

Any legislation-creating process can and should therefore be subject to public scrutiny. As Botswana civil society, we seek to understand the implications of the current Bill and point out these following challenges:

1. What is in ‘the national interest’ or what is ‘national security?’

2. How to ensure that there is a balance between secrecy and transparency?

3. How to ensure ‘political neutrality’ to ensure that the institution is not used for party political reasons to favour one party at the expense of others?

4. How to separate policy making processes from those of intelligence?

5. How to implement a code of ethics?

I National security and threats to national security

The object of the Bill is to establish a Directorate of Intelligence and Security, a Central Intelligence Committee, a National Intelligence Community and an Intelligence and Security Council. The reason provided for the creation of these bodies is the change in the regional and global environment which has necessitated a review in Botswana’s approach to national security concerns. The memorandum to the Bill states that ‘ Botswana faces a number of threats or potential threats to its national security, political systems and its economy, all of which may be destabilised through subversive activities from the country’s detractors’.

This statement concerning threats is the justification for the creation of the Bill. It should therefore be subject to public debate. Without adequate information to support this argument, the creation of such a Bill, which by necessity will erode certain aspects of our fundamental human rights, should not be effected without the legislature exercising its duty towards the electorate.

Clarity is required in terms of the definition of terms, such as subversion (B257 (a)), national security and threat to national security. The lack of a clear definition and common understanding opens the way to potential abuse. It also makes it difficult for easy monitoring to be done of the workings of the Directorate. However, it should be noted that the other elements of what constitute ‘threat to national security’ are clear. The provisions are good. They emphasise illegality under B257.

There needs to be a process which determines that the suspicion concerning a threat to national security is reasonable. The role of the judiciary needs to be clearly defined in terms of the issuing of an order to enable the intelligence officers to conduct their work. Without such controls, intrusive methods of intelligence work could seriously erode fundamental human rights and create a culture of intimidation, fear and suspicion. Intelligence work, by nature, limits certain rights, including the right to privacy. Limitation of a right ought to be done in accordance with legal procedures and for a limited period of time. Arrest without a warrant is therefore a cause for serious concern as it enables the violation of fundamental rights. Provisions such as these have been used in the region to abduct individuals for political reasons, e.g. apartheid South Africa.

The difference between ‘national security’ and ‘human security’ should be consciously maintained. However, the link between the military, political, economic, social, technological and environmental aspects cannot be ignored.

II The balance between secrecy and transparency

The overall weakness of the Bill is the absence of parliamentary oversight. This is one of the recognised basic principles of intelligence - the principle of legislative sanction, accountability and parliamentary control.

It is a truism that intelligence and security service activities are by nature secretive and not all accessible to public scrutiny. However, it is essential that within a ‘functioning democracy’, there be essential values which form the guiding tools for ensuring oversight. There also needs to be clarity concerning the relationship between the executive and the legislature. Which powers does each body possess? How binding are the decisions of the one on the other? Without a common understanding of the extent of the distinct and separate powers and operations of these bodies, parliament runs the risk of becoming a toothless watchdog.

Public accountability is essential because it provides a democratic means to monitor and control the conduct of government. It provides the political representatives of the people, information which is necessary for judging the effectiveness of the conduct of the government. It also provides the necessary checks and balances to ensure that abuse or potential abuse of the institutions is identified and acted upon. In Botswana, a Select Parliamentary Committee should play this role and provide oversight. Areas which could be made subject to parliamentary scrutiny include: budgetary allocations; receive reports; order investigations; hold hearings on matters relating to intelligence and national security. The Committee would then submit reports to Parliament concerning its work.

Withholding of information from the public is of particular concern in Botswana, where there is no Freedom of Information Act. Without established mechanisms to monitor the working of the Directorate, such ability to withhold information could be used to conceal maladministration and abuse of state power. While ‘aggrieved’ persons may make use of the High Court, without universal access to justice and legal representation in Botswana, such provision is rendered ineffective.

III Political Neutrality

In accordance with the Bill in its current form, the Director General of the Directorate of Intelligence and Security is directly accountable to The President of Botswana. The National Intelligence Community is an advisory body to the Director General and is directly accountable to the Director General. The Intelligence and Security Council is headed by the Permanent Secretary to the President, who should be accountable to the Minister in the Office of the President and ultimately to the President.

Both the Director General and the Deputy Director General are members of the Intelligence and Security Council. This indicates that the Council cannot be viewed as an independent body.

Political neutrality can be more readily attainable through the establishment of a mechanism for parliamentary oversight. A Standing Committee comprising representatives of different political parties could be created. The modalities of what is to be reported and when could be determined as it is a reality that there will doubtless be aspects of security which it would be strategic not to have discussed beyond certain parameters.

It is laudable that Section 5 of the Bill states that the Directorate should not be engaged in a partisan political manner. However, without specific provision for parliamentary oversight, it will be difficult to ensure that this does indeed occur.

IV Separation of policy making processes from those of intelligence

What is not clear is whether with its line of direct accountability to the President, the Directorate of Intelligence and Security can be viewed as a department under the Office of the President. While the Minister of Presidential Affairs and Public Administration has been responsible for tabling the bill, it is not clear why the Director General would not be accountable to the Minister. Currently, the Directorate appears to be imbued with Executive powers. The Minister should have the power to authorise the activities of the Directorate.

In Part III, the Central Intelligence Committee, (headed by the President), has the President, the Minster for Foreign Affairs and the Minister for Presidential Affairs as the only members of the Executive. The majority of members are to be the security heads and their deputies. This blurs the distinction between those engaged in policy-making and those responsible for intelligence services. With the rest of the Executive excluded from this Committee, the role of the Executive risks becoming subservient to the whims of the President and his/her two Ministers to the exclusion of the rest of the Executive. In a functioning democracy, collective responsibility of the Executive is a significant requirement.

The National Intelligence Community to be headed by the Director-General described in Part IV, has no clearly stated mandate. There is no specific Act which regulates this Community, making if impossible for accountability to be determined.

V Code of Ethics

While it is assumed that the Directorate will be staffed by professional officers, it will be essential that there be a clearly stated and understood code of ethics to facilitate implementation of duties, monitoring of execution and guidance of remedial action to be taken, where required.

The Code should be based on a set of values and principles of the rule of law, respect for human rights, the promotion of a functioning and participatory democracy. The right of the individual to privacy and dignity should be paramount. Limitations of these rights can only be justifiable in the case of a threat to national security where the reason is satisfactory to an officer of the court and a warrant has been issued. The philosophy underlying the creation of the Bill as well as the Code should be included in the Bill. This would provide a useful indicator of the commitment of the Government to the principles of democracy and how this is reflected in the arena of security.

Conclusion

While there is a need for security legislation, there is also need for clarity concerning how executive power is to be exercised. Parliamentary oversight aimed at ensuring ethical, professional work by the Intelligence Service, would ensure that accountability. The continuing tension between the need to protect the rights of the individual, access to information, accountability and transparency on the one hand, and the need to ensure that where necessary, secrecy obtains, can only be dealt with through a system which recognises the centrality of the law. Without a warrant to enable intelligence work which will intrude into the lives of individuals, the State should have no right to limit the freedoms of the individual.

Mark Bovens, Public Accountability – A framework for the analysis and assessment of accountability arrangements in the public domain. Unpublished paper for Connex. Belfast 2005, 25.