Country dumps rule of law, adopts rule of man

… As DIS runs amok under the pretext of national security

ADAM PHETLHE ON SUNDAY

The question ‘What should Batswana make of the current legal battle between DCEC and DISS?’ is one of the key topics raised by the Botswana Centre for Public Integrity (BCPI) for a webinar discussion upon which discussants would reflect upon. The other questions: ‘Are the DCEC and DISS meeting their role and functions as per enacting legislation’ and, ‘Is there anything that the Head of State should be doing in regards to the inter-constitutional problem that the country is having? If so, what? The Objectives of the webinar conversation are to ‘contextualise recent developments in Botswana’s governance landscape, specifically; the performance of the national anti-corruption agency (DCEC) and its relations with the national intelligence organ DISS), Identify possible remedies to DISS and DCEC’S immediate governance challenges’.  By the time the webinar discussion would be underway, I would have submitted this piece to the Editor. On the backdrop of the harrowing and fierce public spectacle between the two State institutions and owing to the fact that this spectacle has captivated all and sundry here and elsewhere, I found it attractive and compelling to be part of the discussion by answering these questions. I will however not answer the third question because I do not understand it lest I do injustice to it.

I have always felt as I still do so that had the appointing authority of the heads of the two institutions in the person of the President foreseen and promptly acted, the spectacle would have been largely avoided. To add salt to the gaping wound, the President left the spectacle and went overseas for three solid weeks. Put differently, the President left these institutions engulfed by a huge inferno and in the process perhaps, hoping that the inferno extinguishes itself. Three weeks on and on his return, he finds it still ravaging and having caused close to irreparable harm. This on its own suggests the President either did not attach the expected attention and importance to the matter given the critical purposes served by the two institutions and the potential backlash therefrom or it served his political and other interests. I am acutely tempted to agree with the latter proposition. Let me deal with the questions.

What should Batswana make of the legal battle between DCEC and DIS? My simple answer is that the DIS has arbitrarily and without good cause, arrogated to itself the unfettered powers it does not lawfully have, of micro-managing other State organs under the guise of national security. It has been doing so for as long as one can remember. In the process, government lost so many millions of Pula in litigations brought about by parties the DIS had unfairly and illegally caused to lose business and so forth. There is a view out there that the DIS has influenced promotions, demotions and redeployments of senior government officials. While this is a view, it is difficult to dismiss it given the overreaching attitude and conduct owing to its arrogated unfettered powers to micromanage other State organs. But little did it know it will meet its match in the person of the Director General of DCEC Rre Tymon Katlholo. If the DCEC was headed by any other individual, DIS would have long taken custody of the files it is desperately moving mountains to obtain. The legal battle between the DCEC and DIS is consequent to the former defending its territorial space. While the founding Acts of the two institutions are arguably nowhere near perfect and had the DIS stayed on its lane nevertheless, the current impasse would have not arisen. The legal battle between the two institutions therefore, is consequent to the stern resistance of the DCEC to the DIS’ arrogated and unfettered powers of claiming to be the super institution of the State. 

Are the DCEC and DIS meeting their role and function as per enacting legislation? The primary mandate of the DCEC is provided for in Section 6 (a) Part III of the Corruption and Economic Crime Act of 1994. And that is to ‘receive and investigate any complaints alleging corruption in any public body….’ while the powers of its Director General as provided in Section 7 (a) are to ‘authorise any officer of the Directorate to conduct an inquiry or investigation into any alleged or suspected offences under this Act’. On the other hand, the DIS is founded under the Intelligence and Security Service Act of 2007. Its  primary mandate is provided for under Section 5(1)(a) which is to ‘investigate, gather, coordinate, evaluate, correlate, interpret, disseminate, and store information, whether inside or outside Botswana for the purpose of-(1) detecting and identifying any threat or potential threat to national security’. The functions or responsibility of its Director General as per Section 6 (2) are ‘for the direction, control, administration and expenditure of the Directorate while the Powers will be as per Section 7 (a) ‘be the principal advisor to the President and the Government on matters relating to national security and intelligence; (b) report to the President and the Government on threats of and potential threats to national security’. The foregoing perfectly defines without any shred of doubt, the distinct difference between the two institutions. There should be no room for each of them to encroach on each other’s lane. There is a white unbroken line between the two lanes. But out of its propensity to be a super state institution, the DIS has covered its dirty works by always pointing out national security to be the reason why it is all over the place. So what is national security?

It is perfectly explained by Prof Mogalakwe Mogalakwe in his paper called ‘Deconstructing National Security: The Case of Botswana’. He says it ‘is not something objectively present or absent, but a reflection of the views of those in power….the key argument is that the notion of national security is a contested terrain and in a one party dominant system like that of Botswana, the DIS can easily degenerate into a regime security agency, typical of most African states. The main finding is that Botswana does not have proper and effective oversight mechanisms that can insulate the DIS from political interference. The conclusion is that for DIS to maintain political neutrality, the Central Intelligence Committee (CIC) must be depopulated of ruling party apparatchicks, that the Intelligence and Security Committee must report to Parliament and not the President and that the DIS Tribunal must be chaired by a retired judge….’ The scholarly explanation of just what national security is by Prof Mogalakwe puts to bed the guise under which DIS runs roughshod over other State organs in order to perpetuate political and other considerations of the sitting political leadership.

The performance of the DCEC and its relations with the DIS is so palpable for everyone to see. In my view and particularly under the stewardship of Rre Katlholo, he has stood his ground to put the DIS where it belongs and in the process, protecting the integrity and mandate of the DCEC from external influence and manipulation by rogue institutions like the DIS which demonstrably, is protected by the highest political office in the land. It is not in doubt in my mind that the relationship between the two institutions is irretrievably broken down until and unless the political leadership specifically the Office of the President under which the two institutions directly fall under comes to the party to restore the situation for public good and not narrow political and other considerations. Otherwise the mantra of fighting corruption and economic crime will remain as elusive as is peace and tranquility in the Umbrella for Democratic Change and will inevitably be an exercise in futility.  It is evident structures meant to ensure the DIS keeps to its lane are dismally failing to do so; hence the self-created morass the country finds herself in.

The immediate possible remedies to DIS and DCEC’s governance challenges are in my view to remove the two institutions from the grip, influence and manipulation of the Office of the President and place them as Prof Mogalakwe says under Parliament; create a legal framework to render them truly independent; entrench security of tenure similar to those for judges in the Constitution in order to keep the lurking political hand far away. Over and above these, a legal framework should be created as a matter of urgency to regulate the interaction and engagement of the two institutions for cooperation and collaboration should the need arise which will avoid the big brother mentality currently displayed by the DIS. Such framework would inter alia include an alternative dispute resolution mechanism should conflict of whatever nature emerge between the two.

In conclusion, the reading of the current legal battle between the DCEC and DIS is aptly captured in Judge Lekorwe judgement when he says such ‘highlights a sharp controversy of a turf fight between the organs of State which should otherwise be cooperating. The tension between the two has, by the look of things been simmering for some time and has now matured into complicated dispute that has since broken into the public domain’. It is difficult if not impossible for the two institutions or any other for that matter to meet their roles and functions given that the DIS is intentionally and deliberately encroaching on lanes of other organs like that of the DCEC under the false pretences of national security. This in large measure disables the achievement of important virtues like accountability, transparency and the rule of law. The end result becomes the rule of man as opposed to the rule of law. The country I am afraid, is firmly entrenched in the rule of man. The President left the country for three weeks effectively leaving two of the country’s high profile institutions accountable to him at each other’s throat. His Attorney General did not help the situation from degenerating into a fully blown out morass. Botswana has become a laughing stock from the international community as a result of letting the DIS run amok under the pretext of national security. What a disgrace from a country purporting to embrace the rule of law! I am prepared to be persuaded otherwise as always. Judge for Yourself!

‘No one is safe until everyone is safe’.