This is a Bill, which seeks to make it legal for law enforcement organs of the state to use undercover operations to make interceptions to telephonic communications, access to computer systems and the use of controlled devices in the process of investigations of money laundering and associated crimes. There are many loud protests from different stakeholders in Botswana’s democracy ranging from the media, academics, human rights civil society groups and ordinary citizens on the likely impact of the Bill on human rights (the right to privacy) and other civil liberties of ordinary people once put into law. There is a common call from those who are skeptical of the Bill that without proper oversight mechanisms the Bill will lead to disastrous violations of the tenets of human rights such as civil liberties and the right to privacy. They lament the fact that these types of violations have no space in a modern democratic state but are synonymous with authoritarian states.
These then brings into sharp focus the importance and role of oversight institutions especially the oversight of the state security agencies. It is important to note that it is a core responsibility of a state to provide national security to citizens especially in this modern era on multiple and complex security threats such as terrorism, cyber-attacks and sophisticated criminal networks. Technological advancements have also made their work more complex, and the transnational nature of today’s threats has made it ever more challenging. If the State fails the responsibility of provision of security to citizens amid these complex threats, then questions of legitimacy of the State arise with a likelihood of destabilisation or possibly violent domestic conflict.
It is within this context that state security agencies especially the intelligence services take a leading role in helping to protect national security. Worthy of note is that security agencies providing intelligence services, by definition are covert and secret. They collect and process information with the purpose of supporting decision-making and their methods of data gathering (and the data itself) are usually classified as they are often regarded as important to national security. The covet and secret nature of intelligence operations are the two main issues that breed deep suspicions that if the Criminal Procedure and Evidence Bills becomes law, it has the potential to allow abuse of citizens by those who are expected to provide them with security.
The question that needs to be asked is how do we create a balance between provision of national security and guarding against human rights abuses? Tapia Valdes (1982) cited in Tsholofelo (2014) states that “the kinds of problems that the national security expert must tackle are difficult, if not insoluble, as he must determine what threats exist, how many restrictions should the citizen be expected to tolerate because of national security demands and how much should the people know about the reasons and measures of national security policies”. As Valdes notes above, the pursuit of a balance between paradoxies that is intelligence on one hand, and transparency and accountability on the other is an intricate nature. Faced with this dilemma, my points of arguments are that despite this necessary high level of secrecy, security organs such as intelligence services should not be exempted from oversight control so as to provide checks and balances that will ensure accountability and adherence to rule of law. Democratic nation-states develop systems of oversight to ensure that the use of intelligence methods by various state security agencies are always carried out while respecting their citizens’ rights to privacy and confidentiality.
These oversight mechanisms should be multiple and diverse, including controls from the executive, judiciary, legislative powers and independent specialised organisms. In order to be effective, these oversight bodies need to be given the adequate means to fulfill their mission. These include independence from political interest, access to relevant classified information and the authority to conduct their investigations. In addition, oversight systems must guarantee the preservation of secrecy, as is needed in the particular field they are controlling. Most importantly with the presence of an effective oversight system, there will be a provision of that possibility for aggrieved citizens to seek legal recourse if they feel that they have been abused in one way or the other. For some within the state security services, these oversights may be deemed to be unnecessarily restrictive to the work of the security organs, but this might be the opposite because when these agencies are provided with a clear legal framework in which to operate, these agencies will increase both their efficiency and legitimacy. In addition, the oversight system will allow for their performance to be measured and earns them the trust of democratic institutions.
This line of thinking is also shared by scholars such as Jean – Jacques Urvoas who argue that by bringing state security agencies (in this case the intelligence services) further under effective democratic oversight will be beneficial not only to democracy in general within a nation-state but also to national security and the State security agencies themselves. Urvoas have this to say, “by bringing state security organs such as intelligence services out of the darkness, there will be an increase in public understanding of its benefit, as opacity and suspicion over this covert field diminish”. We, however, must acknowledge the fact that the challenges of effective control and oversight of state security agencies are significant and daunting, particularly in contemporary environments where perceptions of threats to national security are always heightened. The paradox of striving for transparency in an inherently secretive area and the degree of professional discretion that effective intelligence requires are central issues.
Nevertheless, the values and norms which are fundamental to democratic systems require that intelligence and other state security agencies should be accountable and subject to internal control and external oversight. As a parting shot, I aver that democratic oversight of state security agencies should be anchored on the active engagement of democratic institutions, principally the Parliament and its relevant committees, civil society, the media, the government executive and the security sector itself, in formulating, implementing, monitoring, and formulating a national security policy. Additionally there should be special Ombudsmen who should be independent from the state security command structure, to exercise oversight ensuring that principles and practice of good governance are observed. Their primary role will be to address complaints about improper and abusive behaviour in the state security as well as the shortcomings in security procedures for corrective action. Moreover these Ombuds institutions should play a broad oversight role, which includes evaluating the quality of the security provided to the citizens by the security sector, as well as the respect of human rights and other basic international standards and legislation by the security sector.
