This is a bill that seeks to make it legal for state law enforcement agencies to use undercover operations to conduct telephone communications interceptions, access to computer systems and use of controlled devices in the investigation of money laundering and related crimes. . There are many loud protests from different stakeholders in Botswana’s democracy, ranging from the media, academics, civil society human rights groups and ordinary citizens over the likely impact of the proposed human rights law (the right to privacy) and other civil liberties of ordinary people in the past. 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 human rights principles such as civil liberties and right to privacy. They lament the fact that these types of violations have no place in a modern democratic state but are synonymous with authoritarian states.
These then highlight the importance and role of oversight institutions, particularly the oversight of state security agencies. It is important to note that it is the fundamental responsibility of a state to ensure the national security of citizens, especially in the modern era, in the face of multiple and complex security threats such as terrorism, cyberattacks and sophisticated criminal networks. Advances in technology have also made their work more complex, and the transnational nature of today’s threats has made it even more difficult. If the state fails in its responsibility to keep citizens safe amid these complex threats, then questions of state legitimacy arise with the likelihood of destabilization or possibly violent domestic conflict.
It is in this context that state security agencies, particularly intelligence services, play a leading role in protecting national security. It should be noted that security agencies providing intelligence services are, by definition, covert. They collect and process information for the purpose of supporting decision-making and their data collection methods (and the data itself) are usually classified because they are often considered important for national security. Covetousness and the covert nature of intelligence operations are the two main issues that give rise to deep suspicions that if the criminal procedure and evidence bills become law, they could allow the abuse of citizens by those who are supposed to ensure their safety.
The question that needs to be asked is how to strike a balance between national security and protection against human rights violations? Tapia Valdes (1982) quoted in Tsholofelo (2014) states that “the kinds of problems that the national security expert must tackle are difficult, even insoluble, because he must determine what threats exist, how many restrictions the citizen must- he expect to tolerate due to national security requirements and how far should the people know the reasons and measures of national security policies”. As Valdes notes above, finding a balance between the paradoxes of intelligence on the one hand, and transparency and accountability on the other, is a complex thing. Faced with this dilemma, my arguments are that despite this necessary high level of secrecy, security organs such as intelligence services should not be exempt from surveillance oversight in order to provide checks and balances that will ensure accountability and respect of the rule of law. Democratic nation states develop surveillance systems to ensure that the use of intelligence methods by various state security agencies is always carried out with respect for their citizens’ rights to privacy and confidentiality.
These control mechanisms should be multiple and diverse, including controls of the executive, judicial, legislative and independent specialized bodies. To be effective, these control bodies must be provided with adequate resources to fulfill their mission. These include independence from political interests, access to relevant classified information and the power to conduct their investigations. In addition, surveillance systems must guarantee the preservation of secrecy, as is necessary in the particular area they control. More importantly, with the presence of an effective monitoring system, aggrieved citizens will have the opportunity to seek justice if they feel they have been abused in some way. For some within the state security services, these oversights may be seen as unnecessarily restrictive for the work of security agencies, but it could be the opposite because when these agencies are provided with a clear legal framework within which to operate , these agencies increase both their effectiveness and their legitimacy. In addition, the control system will make it possible to measure their performance and earn them the confidence of democratic institutions.
This line of thinking is also shared by scholars such as Jean-Jacques Urvoas who argue that bringing state security agencies (in this case intelligence services) more under effective democratic control will be beneficial. not only for democracy in general within a nation-state. but also to national security and the state security agencies themselves. Urvoas has this to say, “by bringing state security organs such as intelligence services out of obscurity, the public will better understand its benefits, as the opacity and suspicion of what secret field will decrease”. We must, however, recognize the fact that the challenges of effective control and oversight of state security agencies are significant and daunting, particularly in contemporary environments where the perception of threats to national security is ever heightened. . The paradox of the search for transparency in an intrinsically secret domain and the degree of professional discretion that effective intelligence requires are central questions.
Nevertheless, the fundamental values and norms of democratic systems require that intelligence services and other state security agencies be accountable and subject to internal oversight and external oversight. By way of farewell, I affirm that the democratic control of state security agencies should be anchored on the active engagement of democratic institutions, primarily parliament and its relevant committees, civil society, the media, the government executive and the security sector itself, in the formulation, implementation, monitoring and formulation of a national security policy. In addition, there should be special ombudspersons who should be independent from the state security command structure, to exercise oversight ensuring that good governance principles and practices are adhered to. Their primary role will be to handle complaints regarding inappropriate and abusive behavior in state security as well as deficiencies in security procedures for corrective action. In addition, these ombuds institutions should play a broad oversight role, which includes assessing the quality of security provided to citizens by the security sector, as well as respect for human rights and other basic international standards and legislation by the security sector.