05 Dec 2021

 The Directorate of Intelligence Services does not have powers to prosecute and has not usurped the powers of the Director of Public Prosecutions (DPP). 

Assistant Minister for Presidential Affairs, Governance and Public Administration, Mr Dumizweni Mthimkhulu  said this when responding to a question in Parliament on Friday.

He said the power to prosecute was conferred on the DPP by Section 51A (3) of the Constitution of Botswana.

These powers, he said, allowed the authority to institute and undertake criminal proceedings against any person before any court, and to discontinue the criminal proceedings before any judgment was given.  

“Section 51A (4) of the Constitution provides that the power described under subsection (3) by the DPP may be exercised by him or her in person or by officers’ subordinate to him or her acting in accordance the DPP’s general or special authority,” he said.

He noted that intelligence and security agencies were essential in a modern democracy to protect the nation against security threats and to advance the interests of the nation as a whole.

Mr Mthimkhulu said he was aware of allegations leveled against the DIS relating to citizen rights, liberties and constitutional freedoms, adding that it must, however, be noted that there were governance and oversight structures in place capable of identifying and resolving such grievances and related issues. 

He said according to Botswana Police Service between 2017 and 2021 they had received six reports of harassment and one report of fabricated charges levelled against the DIS.

He stated that five reports related  to harassment had since been closed as the complainants were reluctant to continue with the matters while one case on fabricated charges was still under investigation. He noted that according to the secretariat to the tribunal on intelligence and security there were four cases relating to harassment by members of the public. 

Mr Mthimkhulu said the Intelligence and Security Act (Cap. 23:02) had different structures upon which it conferred different functions mainly to bring governance, regulation and oversight over the operations of the directorate.

The purpose of the structures, he said, was to guard against any real or perceived unlawful operations by the DIS such as trampling on citizen rights, liberties and constitutional freedoms.

“In order to bring a level of control over the exercise of the DIS wide-ranging powers the legislature through the act establishes critical governance structures, being the Central Intelligence Committee, Intelligence and Security Council, Tribunal and the Intelligence and Security Parliamentary Committee,” he said.

Furthermore, Mr Mthimkhulu explained that Section 38 of the Intelligence and Security Act established a parliamentary committee, known as the Intelligence and Security Parliamentary Committee, to examine the expenditure, administration and policy of the directorate whilst Section 39 of the act provided for the Intelligence and Security Parliamentary Committee to have nine members appointed by the President of the country after consultations with the Speaker of the National Assembly and the Leader of the Opposition in the National Assembly.

He said it was odd that some MPs had chosen to abdicate their legal and political responsibility over DIS as they claimed to have issues that affected them or their relatives with DIS.

Takatokwane MP, Mr Tshoganetso Leuwe had asked the minister if any formal reports of harassment, unlawful arrests and fabricated charges by DIS had been received by the police, and if they had been investigated and whether the DIS had any prosecutorial powers. ENDS