If the cops went around detaining South Africans for making “irresponsible utterances”, the country’s police cells would be overflowing. Almost everyone who’s anyone would be behind bars, including President Jacob Zuma. His list of statements that could arguably fall into this category would be – just thinking off the top of our heads – remarks about showering after having sex with an HIV positive person and that democracy means that minorities have “fewer rights”.

The SAPS could also bag a gaggle of advertising copywriters along with a fair number of talk show hosts, civil servants, musicians, fine artists as well as opposition party politicians, Julius Malema in particular.

Thank goodness, however, we live in a constitutional democracy where making “irresponsible utterances” is not a crime. Well, at least not yet, but tell that to the SAPS who detained (the word re-entered the South African lexicon this week) at least four Vuwani residents ahead of voting for local government elections today. Community leader Nsovo Sambo has alleged that he had to flee to a safe house after police raided his home at 02:00 on Monday.

While there is no doubt that Vuwani has been the site of sustained violence and protest for some months and police are duty bound to protect the safety of citizens, this week’s arrests raise worrying questions.

In May Minister of State Security, David Mahlobo, led an inter-ministerial delegation to Vuwani after what appeared to be a well orchestrated arson campaign targeting schools: in just one week, 24 schools were torched. The protests were sparked by a municipal demarcation dispute that would have seen Vuwani, which falls under the Makhado municipality, merged into a new municipality with Malamulele.

The pro-Makhado Task Team, as it is known, announced at the weekend that it would boycott today’s elections. This too is not a crime in South Africa.

Daily Maverick approached SAPS spokesman Brigadier Mashadi Selepe to clarify charges those arrested would be facing and under which act they would be charged. Brigadier Selepe had not yet responded at the time of writing.

Constitutional law expert Professor Pierre de Vos said it was not a crime to make utterances that a police officer or intelligence service operative might find “irresponsible”.

“Inciting others to commit a crime may constitute a criminal offence, but then one would need to know what crime they incited others to commit and will have to prove intention to incite criminal behaviour,” he told Daily Maverick.

De Vos added that the involvement of intelligence services in domestic political disputes was deeply problematic as it could lead to a perception that intelligence agencies are being used to fight political battles.

“Unless there is a strong indication that the political activities of individuals in Vuwani threaten the existence of the state, the intelligence services should play no role in investigating it. Any alleged criminal action should be investigated by the police. As we do not have an IGI and have not had one for some time, there is no one to investigate whether the perception that intelligence services are being used for political ends is correct or not. This is worrying,” he said.

Police informed media on Monday that they would only provide details of the charges those who were arrested would be facing at a “later” date, which is highly irregular. Technically, those arrested are currently in detention without charge.

South Africa’s intelligence services have been a law unto themselves since Faith Radebe, the former Inspector-General of Intelligence (IGI), stepped down in March 2015.

There have been over the years several incidents that have provided a troubling glimpse into the problematic and extensive nature of how our spooks work and the lack of oversight with regard to the country’s intelligence services.

In December 2015, six intruders broke into the State Security Agency head offices in Pretoria and made off with R17-million in foreign currency. It was a serious breach which left officials red-faced. Even more so when members of the public were asked to identify one of the suspects who had been caught on camera. Later the same suspect, Albert Ramabele, who turned out to be the mastermind, repeatedly attempted to hand himself over to the Hawks but “no one was prepared to arrest him”, according to his lawyer, Sammy Mahlangu. Ramabele’s court case continues.

Then there was the recent revelation that Barnard Mokwena, Lonmin’s Executive Vice President of Human Capital and External Affairs, and a leading negotiator during the fateful strikes that resulted in the Marikana massacre, was a State Security operative.

State Security agents have also been implicated in the establishment of a rival union, the Workers Association Union, at Lonmin in an attempt to weaken Amcu during the 2013 platinum belt strikes.

The work of the country’s intelligence agencies is not only confined to infiltrating state institutions, including SARS where Barnard Mokwena’s wife, Dr Mandisa Mokwena (a former NIA operative), once worked in the Segmentation and Research Division, but extends to the lives of ordinary citizens.

A 2014 SSA top secret document that was leaked and that appears to have been a presentation by the SSA to the Justice, Crime Prevention and Security (JCPS) cluster, revealed that spying on South Africans not necessarily engaged in illegal activities is the norm.

Writing in Daily Maverick, Heidi Swart, who has investigated South Africa’s intelligence services, disclosed that the report “makes it clear that intelligence forces will not hesitate to utilise technology to reach their surveillance goals. The document states that countering the ‘most serious threats to our national security’ that require ‘immediate and sustained intelligence collection’ involves the ‘maximum use of covert human and technical means’.”

An intelligence priority for 2014 centred on national and provincial elections when the SSA Domestic Branch had been tasked with investigating and counter-planning for a “so-called ‘Arab Spring’ uprising prior to elections”.

Murray Hunter, national spokesman of the anti-secrecy group, Right2Know, said the SSA’s intelligence gathering on political activists “poses a serious risk to freedom of expression and freedom of association, because when people who are involved in protest and activism feel policed, watched or intimidated, it can clamp down on their ability to participate in democracy or campaign for their causes”.

With the possibility of their tentacles reaching deep into the lives of citizens and bearing in mind that the intelligence services in South Africa have been drawn into factional political battles in the ruling party, it is imperative then that the country’s intelligence agencies should be held to account. And it was with this in mind that the Constitution made provision for an Act – the Intelligence Services Oversight Act 40 of 1994 – which calls for the appointment of an Inspector-General of Intelligence.

The IGI’s job is to investigate complaints against members of the intelligence community from citizens as well as from within the community itself. The Office of the Inspector-General also has to monitor compliance with the Constitution by any service. Section 198 of the Constitution states that national security must “reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life”. Members of the security services may also not be partisan or prejudice a political party, while civilian oversight is stipulated.

This civilian oversight is conducted by Parliament’s joint standing committee on intelligence (JSCI) – the only committee established in law – and which Dr Laurie Nathan, of Pretoria University’s Centre for Mediation in Africa, said needed to take much of the blame for the failure of the country’s intelligence services to be held accountable.

Nathan, who was one of the commissioners on the Matthews Commission which reviewed intelligence legislation in 2008, said democratic accountability applied to all agencies and that the greatest amount of accountability should occur “where such an agency operates in secret”.

The JSCI – formerly chaired by Cecil Burgess (thrice nominated for the vacant position of Inspector-General of Intelligence by the ANC which failed to secure a two-thirds majority in Parliament on all three occasions) – has for years missed the legislated May deadline for filing its annual reports.

Burgess also chaired the ad hoc committee which dealt with the “Secrecy Bill” or the Protection of State Information Bill and was seen as a “champion” of the bill. After Burgess’ IGI bid had been unsuccessful the post was re-advertised. In April this year, six candidates were shortlisted for the position. These were advocates Unathi Bruce Bongco and Seswantsho Godfrey Lebeya, Modesta Dianne Phillips, Dr Nyelisani Clarence Tshitereke, Professor Bruce William Watson, and Brightboy Nhlakanipho Nkontwana. An appointment is still to be made.

“The breakdown,” said Nathan, “is not an accident and a consequence of the Zuma administration. There is no desire for accountability and this is a great threat and profoundly anti-democratic. And Parliament lets them get away with it.”

Nathan added that because the intelligence services had been drawn into party political battles they “take their eye off the ball” and may miss real security threats to the country which do not include, you will be thrilled to learn, “irresponsible utterances”. DM

Photo: Minister of State Security David Mahlobo during a Pre-Budget Vote media briefing, 27 April 2016 (Siyabulela Duda/GCIS)