Key Benefits:
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.
(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.
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.
