Intelligence And Security Service - Directorate Of Intelligence And Security (Ss 4-24)

Link to law: http://www.elaws.gov.bw/desplaylrpage1.php?id=1383

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PART II
Directorate of Intelligence and Security (ss 4-24)

[Ch2302s4]4. Establishment and composition of Directorate

(1) There is established, under the Office of the

President, a Directorate to be known as the Directorate of Intelligence and

Security.

(2) The Directorate shall comprise-

(a) a

Director General;

(b) a

Deputy Director General;

(c) directors;

and

(d) such

other officers and support staff as are referred to in section 10.

[Ch2302s5]5. Functions of Directorate

(1) Subject to subsection (3), the functions of

the Directorate are to-

(a) investigate,

gather, coordinate, evaluate, correlate, interpret, disseminate and store

information, whether inside or outside Botswana, for the purposes of-

(i) detecting

and identifying any threat or potential threat to national security,

(ii) advising

the President and the Government of any threat or potential threat to national

security,

(iii) taking

steps to protect the security interests of Botswana whether political, military

or economic;

(b) gather

ministerial intelligence at the request of any Government ministry, department

or agency and, without delay, to evaluate and transmit as appropriate to that

ministry, department or agency, such intelligence and any other intelligence at

the disposal of the Directorate which constitutes ministerial intelligence;

(c) regulate,

in cooperation with any Government ministry, department or agency entrusted

with any aspect of the maintenance of national security, the flow of intelligence

and security, and the coordination between the Directorate and that ministry,

department or agency of functions relating to such intelligence;

(d) advise

Government, public bodies and statutory bodies on the protection of vital

installations and classified documents;

(e) carry

out security vetting investigations for the security clearance of persons who

have or may have access to any sensitive or classified information;

(f) make

recommendations to the President in connection with-

(i) policies

concerning intelligence and security,

(ii) intelligence

and security priorities, and

(iii) security

measures in Government ministries, departments or agencies;

(g) provide

personal protection to the former President, the former President’s immediate

family, the President, the President’s immediate family, the Vice President,

the Vice President’s immediate family, visiting dignitaries and such other

persons as the President may determine; and

(h) subject

to any other written law, perform such other duties and functions as may, from

time to time, be determined by the President to be in the national interest.

(2) The Directorate shall not, in the performance

of its functions, be influenced by considerations not relevant to such

functions and no act shall be performed that could give rise to any reasonable

suspicion that the Directorate is concerned in furthering, protecting or

undermining the interests of any particular section of the population or of any

political party or other organisation in Botswana.

(3) Subsection (1) shall not be construed as-

(a) derogating

from any power, duty or function conferred upon or entrusted to any person or

authority other than the Directorate by or under any other written law;

(b) limiting

the continuation, establishment or functions of an intelligence capability

connected to any Government ministry, department or agency in respect of any

function relating to ministerial intelligence; or

(c) derogating

from any duty or function of any body or committee instituted by the President.

[Ch2302s6]6. Director General

(1) There shall be a Director General who shall be

appointed by the President on such terms and conditions as the President may,

on the recommendation of the Council, determine.

(2) The Director General shall be responsible for

the direction, control, administration and expenditure of the Directorate.

[Ch2302s7]7. Powers and functions of Director General

Without prejudice to section 6, the Director

General shall-

(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 and potential threats to

national security;

(c) in

consultation with the President and the Government, ensure that a good

relationship is established and maintained between the Directorate and every

Government ministry, department or agency and any other institution approved by

the President;

(d) take all

reasonable steps to ensure that the actions of the Directorate are limited to

those necessary for the proper performance of its functions under this Act or

any other written law and that no information is gathered by the Directorate

except as may be necessary for the proper performance of its functions; and

(e) as far

as is reasonably practicable, take steps to ensure that intelligence collection

methods, sources of information and the identity of the members of staff of the

Directorate are protected from unauthorised disclosure.

[Ch2302s8]8. Divisions of Directorate and directors

(1) There shall be an Internal Intelligence

Division of the Directorate which shall be responsible for gathering domestic

intelligence in the execution of the functions of the Directorate under this

Act.

(2) There shall be an External Intelligence

Division of the Directorate which shall be responsible for gathering-

(a) foreign

intelligence and counter intelligence including information otherwise

unobtainable;

(b) intelligence

on political, economic, sociological and technical aspects of foreign

intelligence affecting national security; and

(c) intelligence

in relation to organised crime.

(3) There shall be such other divisions of the

Directorate as may be necessary for the proper performance of the functions of

the Directorate under this Act.

(4) Each of the divisions of the Directorate shall

be headed by a director who shall be the administrative head of the division,

and shall, subject to the control and directions of the Director General, be

responsible for the efficient management, administration and control of the

division.

[Ch2302s9]9. Personal protection officers

(1) There shall be personal protection officers

who shall protect -

(a) the

President and the Vice President, and their immediate families, and former

Presidents and their spouses:

Provided that-

(i) in

the case of a spouse of a former President, protection shall terminate upon his

or her divorce from, or death of, the former President, and

(ii) should

the death of a President occur whilst in office or within one year after

leaving the office, the spouse shall receive protection for one year from the

time of such death;

(b) visiting

heads of foreign states or foreign governments; and

(c) other

distinguished foreign visitors to Botswana and senior Government officials when

the President directs that such protection be provided.

(2) Notwithstanding anything to the contrary

contained in any other law, intelligence and personal protection officers may

carry and use such firearms as may be prescribed and may, in the course of

their duties, use such arms in circumstances where the use of the arms is

necessary and reasonably justifiable.

[Ch2302s10]10. Officers and support staff

There shall be such officers and support staff as

the Director General may consider necessary for the proper and efficient

discharge of the functions of the Directorate.

[Ch2302s11]11. Powers and functions of officers and support staff

The officers and support staff may exercise such

powers and shall perform such functions as are conferred upon them by or under

this Act or any other written law and shall, in the performance of their

functions, obey all lawful directions which they may from time to time receive

from any person having the authority to give such directions.

[Ch2302s12]12. Oaths

The Director General, the Deputy Director General,

every officer and support staff on being appointed to the Directorate shall,

before assuming the duties of his or her office, make and subscribe to the

oaths or affirmations prescribed in the Schedule-

(a) in the

case of the Director General, before the President; and

(b) in the

case of the Deputy Director General, every other officer and support staff,

before the Director General.

[Ch2302s13]13. Certificate of identity and appointment

The Director General shall cause to be issued to the

Deputy Director General and every officer and support staff on appointment, a

certificate of identity and appointment in such form as the Director General

may prescribe which certificate shall be prima facie evidence of such

appointment for the purposes of this Act.

[Ch2302s14]14. Scheme of Service of Directorate

The Director General shall prescribe a scheme of

service of the Directorate setting out the terms and conditions for the

appointment of the officers and support staff which scheme of service shall

provide for-

(a) promotions,

resignations and termination of appointments of officers and support staff;

(b) scales

of salaries and allowances of officers and support staff; and

(c) the

designation and grades of officers and support staff.

[Ch2302s15]15. Disciplinary code

(1) The Director General shall issue and maintain

a disciplinary code for the Directorate which disciplinary code shall provide

for -

(a) disciplinary

offences;

(b) the

investigation, hearing and determination of disciplinary offences and the

hearing of any appeals; and

(c) the

delegation, by the Director General, to officers and support staff, of such

disciplinary powers as he or she may consider appropriate.

(2) The disciplinary code shall provide for the

following disciplinary penalties or any combination thereof-

(a) dismissal

from the Directorate;

(b) reduction

in rank or grade;

(c) suspension

from duty for a specified period;

(d) reprimand

(including severe reprimand);

(e) admonition;

and

(f) recovery

of the cost or part thereof in respect of any loss or damage to the property of

the Directorate caused by the default or negligence of any officer or support

staff subject to disciplinary proceedings where such recovery has not been

effected through any other Government procedure.

[Ch2302s16]16. Conduct of officers and support staff

(1) An officer or support staff shall not-

(a) engage

in the activities of any political party or act as an agent of such party; or

(b) in the

performance of his or her functions or the exercise of his or her powers under

this Act-

(i) subject

any person to torture or to any other cruel, inhuman or degrading treatment; or

(ii) enter

or search any private premises except with a warrant issued pursuant to section

22.

(2) An officer or support staff who contravenes

the provisions of subsection (1) shall be guilty of an offence.

[Ch2302s17]17. Prohibition of false representations as to association with

Directorate

A person who, without the prior written approval

of the Director General, in connection with any activity carried on by him or

her takes, assumes, uses or in any manner publishes any name, description,

title or symbol which is calculated, or is likely to lead other persons to

believe or infer that such activity is carried on under or by virtue of the

provisions of this Act or under the patronage of the Directorate, shall be

guilty of an offence.

[Ch2302s18]18. Offences in connection with officers and support staff

A person who-

(a) not

being a member of staff of the Directorate, by words, conduct or demeanour

falsely represents himself or herself to be such a member of staff;

(b) exercises

or attempts to exercise undue influence over a member of staff of the

Directorate which is calculated to prevent such member of staff from carrying

out his or her duties or encouraging him or her to perform any act which is in

conflict with his or her duties; or

(c) is an

accomplice to the commission of any act whereby any lawful order given to any

officer or support staff or any regulation or directive or other rule may be

evaded,

shall be guilty of an offence.

[Ch2302s19]19. Prohibition of disclosure of identity

A person who discloses the identity of another

person which he or she has obtained or to which he or she has had access by

virtue of-

(a) the

performance of his or her duties or functions under this Act; or

(b) his or

her position as a person who holds or has held any office in the Directorate,

and from which the identity of any person who-

(i) is

or was a confidential source of information to the Directorate, or

(ii) is

or was an officer or support staff engaged in covert operational activities of

the Directorate,

can be inferred, and who discloses such information to any person other

than a person to whom he or she is authorised to disclose it or to whom it may

lawfully be disclosed, shall be guilty of an offence.

[Ch2302s20]20. Prohibition of unauthorised disclosure of information

(1) Without prejudice to any other written law, an

officer or support staff shall not disclose or use any information gained by

him or her by virtue of his or her employment otherwise than in the strict

course of his or her official duties or with the authority of the Director

General.

(2) No officer or support staff shall be required

to produce, before any public body other than a Parliamentary Committee

established under the Standing Orders of the National Assembly, any document or

other evidence where-

(a) it is

certified by the Director General-

(i) that

the document or other evidence belongs to a class of documents or evidence, the

production of which is injurious to public interest, or

(ii) that

disclosure of the evidence or of the contents of the document will be injurious

to public interest; or

(b) the

Central Intelligence Committee certifies-

(i) that

the document or other evidence belongs to a class the production of which is

prejudicial to national security, or

(ii) that

disclosure of the evidence or of the contents of the document will be

prejudicial to national security.

(3) A person aggrieved by a decision of the Director

General or the Central Intelligence Committee may apply to the High Court for

determination whether the production, or the disclosure of the contents, of the

document or other evidence would be injurious to the public interest or, as the

case may be, prejudicial to national security.

(4) A person who, by warrant, is authorised to

obtain or seize any information, material, record, document or thing or any

other source material or is requested to give any information, material,

record, document or thing or any other source material or to make the services

of other persons available to the Directorate shall not disclose the warrant,

or disclose or use any information gained by or conveyed to him or her when

acting pursuant to the warrant, otherwise than as authorised by the warrant or

by the Director General.

(5) A person who acquires knowledge of any

information knowing that it was gained as a result of any warrant or seizure in

accordance with such warrant shall not disclose that information otherwise than

in the course of his or her duties.

(6) A person who contravenes any of the provisions

of this section shall be guilty of an offence.

[Ch2302s21]21. Powers of arrest

(1) An officer or support staff authorised in that

behalf by the Director General may, without warrant, arrest a person if he or

she reasonably suspects that that person has committed or is about to commit an

offence referred to in this Act.

(2) Where, during an investigation by an officer

or support staff, of a suspected offence, another offence is disclosed, the

officer or support staff may, without warrant, arrest a person if he or she

reasonably suspects that such person is guilty of that other offence, and he or

she reasonably suspects that such other offence was connected with, or that

either directly or indirectly its commission was facilitated by, the suspected

offence.

(3) An officer or support staff may-

(a) use

such force as is reasonable in the circumstances in effecting an arrest under

this section; and

(b) for the

purpose of effecting an arrest, enter and search any premises or place if he or

she has reason to believe that there is in the premises or place a person who

is to be arrested.

(4) An officer or support staff shall not enter

any premises or place under subsection (3) unless the officer or support staff

has first stated that he or she is an officer or support staff and the purpose

for which he or she seeks entry and produced his or her identity card to any

person requesting its production.

(5) On compliance with the provisions of

subsection (4), the officer or support staff may enter the premises or place by

force, if necessary.

(6) Where an officer or any support staff has

arrested a person under this section, he or she may-

(a) search

that person and the premises or place in which that person was arrested;

(b) seize

and detain anything which such officer or support staff has reason to believe

to be, or to contain, evidence of any of the offences referred to in this Act.

(7) A person referred to in subsection (6) shall

only be searched by a person of the same sex.

(8) An officer or support staff shall, as soon as

is reasonably practicable, take a person arrested under this section to a

police station to be dealt with in accordance with the provisions of the Cap. 08:02

Criminal Procedure and Evidence Act.

(9) An officer or support staff who takes a person

arrested under this section to the police station in terms of subsection (8)

shall, at the same time that he or she takes that person, also hand over, to

the police, anything seized in terms of subsection (6) (b).

[Ch2302s22]22. Powers of entry, search and seizure

(1) Where the Director General believes, on

reasonable grounds, that a warrant under this section is required to enable the

Directorate to investigate any threat to national security or to perform any of

its functions under this Act, the Director General shall apply to a senior

magistrate or a judge of the High Court for a warrant in accordance with this

section.

(2) If the magistrate or judge to whom an

application is made under subsection (1) is satisfied that there are reasonable

grounds for suspecting that there is in the premises, place, vessel, boat,

aircraft or other vehicle anything which is or contains evidence of the

commission of any of the offences referred to in this Act, he or she may by

warrant direct the Director General, or any officer or support staff authorised

by the Director General under this Act, to enter and search such premises,

place, vessel, boat, aircraft or other vehicle and seize and detain anything

which the Director General, or the officer or support staff authorised by the

Director General, has reason to believe is or contains evidence of any of the

offences referred to in this Act.

(3) Whenever the Director General, or an officer

or support staff authorised by him or her under this Act, has reasonable cause

to believe that there is in any premises, place, vessel, boat, aircraft or

other vehicle any article or document-

(a) which

is evidence of the commission of an offence referred to in this Act;

(b) in

respect of which an offence has been, is being, or is about to be committed

under this Act;

(c) is

being conveyed, or is concealed or contained in any package in the premises,

place, vessel, boat, aircraft or other vehicle, for the purpose of being

conveyed,

then and in any such case, if the Director General, or the officer or

support staff authorised by him or her under this Act considers that the

special exigencies of the case so require, he or she may without a warrant

enter the premises, place, vessel, boat, aircraft or other vehicle, and search,

seize and detain such article, document or package.

(4) The court mentioned in subsection (1) may, on

application made by the Director General or an officer or support staff

authorised by him or her to do so, issue a warrant under this section

authorising the taking of such action as may be specified in the warrant in

respect of anything so specified if the court considers it necessary for that

action to be taken in order to obtain information which-

(a) is

likely to be of substantial value to the Directorate in the discharge of its

functions; and

(b) cannot

be reasonably obtained through other means:

Provided that in the event the Directorate

wishes to conduct an investigation of a personal or intrusive nature such as

searches or interception of postal mail, electronic mail, computer or telephonic

communications, the Director General or an officer or support staff authorised

by him or her shall show cause to a court of Senior Magistrate or above or a

Judge of the High Court and obtain an order in a secret hearing.

(5) In the exercise of the powers of search,

seizure and detention under this section, the Director General, or any other

officer of the Directorate may use such reasonable force as is necessary in the

circumstances, and may be accompanied or assisted by such other person as he or

she considers appropriate to assist him or her to enter into or upon any

premises, place, vessel, boat, aircraft or other vehicle, as the case may be.

(6) A magistrate may, on the application, ex

parte, of the Director General, by written notice require a person who is the

subject of an investigation in respect of an offence alleged or suspected to

have been committed by him or her to surrender to the Director General any

travel document in his or her possession.

(7) If a person on whom a notice under subsection

(6) has been served fails to comply with the notice, he or she may be arrested

and taken before a magistrate.

(8) Where a person is taken before a magistrate

under subsection (7), the magistrate shall, unless such person complies with

the notice under subsection (6) or satisfies the magistrate that he or she does

not possess a travel document, by warrant commit him or her to prison where he

or she shall be safely kept until he or she complies with the notice.

(9) A person who has surrendered a travel document

under this section may at any time make a written application to the Director

General for its return, and every such application shall contain a statement of

the grounds on which it is made.

(10) The Director General may, within 14 days of

receipt of the application referred to in subsection (9)-

(a) grant

the application either without conditions or subject to such conditions as to

the further surrender of the travel document and the appearance of the

applicant at any time and place in Botswana as may be specified by the Director

General in a written notice served personally on the applicant; or

(b) refuse

the application.

(11) A person aggrieved by the refusal of the

Director General to return his or her travel document to him or her may appeal

to a magistrate.

[Ch2302s23]23. Resisting or obstructing officers and support staff

A person who assaults, resists or obstructs any

officer of the Directorate or any person acting under the direction of such

officer in the due execution of his or her duties under this Act shall be

guilty of an offence and liable to imprisonment for a term not exceeding three

years.

[Ch2302s24]24. Indemnity of members of staff of Directorate

No action shall be brought against a member of

staff of the Directorate (or any other person authorised by the Director

General to perform any act under this Act), in respect of any act or thing done

or omitted to be done in good faith, upon reasonable grounds, in the exercise

of his or her duties under this Act.