South Africa

Op-Ed: Keep the spies out of snooping on protests

By Jane Duncan 17 November 2016

Should South Africa’s civilian intelligence agency on national security matters, the State Security Agency (SSA), be involved in monitoring protests, especially violent ones? By JANE DUNCAN.

At first glance, it may appear reasonable to argue that the SSA should be involved in monitoring protests, as violent protests threaten social stability and allow an otherwise legitimate form of democratic expression to be manipulated for criminal ends.

However, allowing the SSA to spy on these protests is dangerous for democracy. In order to understand why this is so, it is necessary to understand the purpose of the SSA. According to the General Intelligence Laws Amendment Act, the mandate of the SSA is focused on detecting threats to national security so that others organs of government and the state can act on these threats.

The SSA’s mandate is guided by the definition of what constitutes a national security threat in the Act, which includes serious violence directed at overthrowing the constitutional order. It could be argued that protests that fall into this category should rightfully be of concern to the SSA.

However, we also need to interpret the SSA’s mandate as narrowly as possible, as national security crimes are often considered to be among the most serious of all crimes. At the same time, the potential for abuse of this mandate is great. Many countries of a more authoritarian bent have abused national security to clamp down on otherwise legitimate political activity.

There is a tendency the world over for intelligence agencies to use domestic intelligence gathering mandates to stray into monitoring political activists and protest movements to advantage those in power, rather than to address public safety issues. We would be naïve to ignore this general trend.

In this regard, though, what is positive about the definition of national security in the Act is that it excludes lawful advocacy and dissent. Nevertheless, we should not rush to label threats as national security threats unless there is a clear and present danger to the constitutional order, and this caution is the greatest safeguard against the surveillance capacities of the state being misused.

Are we at the stage with the many protests in our country, including the student protests, where the constitutional order is threatened? No case has been made that we are. Protest movements that engage in violence are far too inchoate for us to be able to make this claim.

Furthermore, the case has not been made for why violent protests should not be investigated by the Crime Intelligence Division of the South African Police Service rather than the SSA. There are very real dangers in conflating the activities of the two, as this can lead to function creep, where more and more cases of criminality are recast as much more serious threats to national security, which risks escalating rather than reducing conflict.

Protests are a democratic form of expression, and often a highly political one at that, and as a result it is of the utmost importance that the policing of violent protests is as professional, accountable and de-politicised as possible, and that includes intelligence gathering to inform policing too.

There is another reason why we need to be extremely cautious about the involvement of the SSA in monitoring violent protests, and that relates to very real concerns about the accountability of the agency’s work and consequently the levels of public trust it enjoys.

There is insufficient transparency around the SSA’s work for the public to be able to assess if it is acting in the universal interest when it comes to collecting intelligence on politically sensitive matters such as the protests, or in the interests of the ruling party or even a faction of the ruling party. While intelligence work is, by its very nature, secretive, the SSA has taken secrecy to unacceptable extremes, and so should not be surprised if public trust is lacking.

As a general rule, policy and strategy should be publicly available, as these are the ground rules for the SSA’s work. The public cannot be expected to trust an organisation when its basic rules of engagement are not known. Policy and strategy documents are on such a level of generality that they will not reveal operations secrets.

Cabinet’s National Intelligence Priorities should be a public document and should even be debated in Parliament. National Intelligence Estimates should be declassified on a regular basis so that the public can assess the quality of intelligence gathering and analysis.

Operational policies should be public, especially those relating to intrusive forms of surveillance, which is especially important when it comes to the monitoring of politically sensitive areas such as protests. There are complaints that have been lodged with the oversight body for intelligence, the Inspector General of Intelligence’s (IGI) office, about SSA’s harassment of political activists.

While these complaints still need to be assessed, it should be borne in mind that in 2005, an IGI investigation into similar matters painted a picture of the then National Intelligence Agency (NIA) that was less than flattering, and pointed to the agency becoming involved in factional battles in the ruling party.

There is insufficient information in the public domain to assess whether the systemic weaknesses identified by the IGI in 2005 and a subsequent commission of inquiry into these intelligence abuses (the Matthews Commission), and that predisposed the agency to inappropriate politicisation, have been addressed.

The fact that there has been a hiatus of more than 18 months in the IGI’s office over what has been one of the most politically rocky periods in recent history has not helped one bit. The Matthews Commission pointed out that the IGI’s office lacked independence and resources, and furthermore, another oversight body, the Joint Standing Committee on Intelligence, meets in secret on a routine basis.

The National Communications Centre, which houses the agency’s bulk scanning capacity, has no legislative backdrop and so operates outside the law. A policy and legislative review to address this is overdue. None of these issues inspires confidence, and public confidence is what is needed to trust the agency to discharge its mandate in a professional, impartial manner.

Another reason why we need to be extremely cautious about rushing to label violent protests as threats to national security is that doing so is unlikely to achieve the ultimate objective of bringing down the number of violent protests. Instead, it may escalate the problem by making the case for an even stronger police and even military intervention, when what is often needed is de-escalation.

In order to understand what is needed to de-escalate situations giving rise to violent protests, we need to pinpoint the triggers of violent protests. Doing so requires us to move beyond the all-too-easy tendency to blame instigators, regime change agents or a third force: narratives which the Ministry of State Security continues to fall back on.

Local and international researchers have pointed to a range of factors disposing protesters to violence: some are internal to protest movements and some are external. I will focus here on the external factors as these are the ones that are often within the state’s control to address, and these are state non-responsiveness, closure of democratic space and police escalation.

In relation to state non-responsiveness, a general refrain that one hears from protest movements over and over again is that they are forced to escalate their protests into disruption and even violence because power-holders routinely ignore peaceful, non-violent protests.

The Minister of State Security, David Mahlobo, has himself expressed concern about a lack of leadership contributing to the violence. As the news site, the Daily Vox, has alleged in relation to one university, its administration has a “listening problem”. On more and more campuses, the phrase “burn to be heard” has become more widespread.

In relation to the general closure of democratic space, my own research into 11 municipalities points to a tendency to over-regulate protests, thereby limiting the right to assembly on grounds that are not recognised by the Regulation of Gatherings Act or the Constitution.

This forces more protesters out onto the streets anyway, often not notifying the municipalities of their intention to do so, because it has become increasingly difficult to exercise the right to protest within the prescripts of the Act.

In the case of universities, even in the earlier, more peaceful phase of the student movement, we saw many universities limiting protest rights inappropriately through over-broad interdicts that prohibited protests that were peaceful but disruptive. In this regard it should be noted that the Regulation of Gatherings Act sets the bar for police intervention at serious disruption, and even then it requires the police to negotiate with protesters before using force to disperse them.

Municipal and university over-regulation of protests inevitably leads to over-policing, which socialises students into violence and can turn otherwise peaceful protests into full-scale riots.

The Socio-Economic Rights Institute (SERI), which has represented arrested students and workers, has reported wide-scale use of arbitrary arrests, with even bystanders being scooped up in policing operations. These interventions can fuel reactive counter-violence, which contributes to the criminalisation of the movements that engage in it.

All these factors harden protester attitudes, create an impression of an inherently unjust state and delegitimise its institutions. They create fertile ground for shifts in tactics away from peaceful ones to more violent ones.

While not enough is known about the profiles of those involved in violence in protests, researchers looking at the movement uptake of violence elsewhere have shown that in the earlier phases of protest movements, violence is often used sporadically and as a means of self-defence, or as a spontaneous reaction to state and police escalations.

These tactics can frighten off more moderate protesters, contributing to a decline in its mass character, and making it more difficult for protesters to win demands using mass action. Some protesters may then be tempted to turn to tactics that do not rely on mass support, and engage in more proactive, organised forms of violence, and even go underground.

On many of our campuses, conflict has escalated to the point where it has become practically impossible to negotiate, as good faith has been destroyed, which is a very dangerous point to have arrived at. The key issue here is that things never should have been allowed to get to this point.

Violence is dividing the student movement, and many of the most prominent activists have opposed its use. The movement needs to regroup, and hold unaccountable and violent elements to account, but it cannot do so if it cannot meet. On many of our campuses, even meeting has become impossible, which amounts to an own goal for these universities as students cannot debate all-important tactical and strategic issues.

In a seminar on the role of the SSA in monitoring violent protests, held by the Institute for Security Studies (ISS) earlier this week, the Minister of State Security stated that they have evidence of students having been sent for military training. This assertion is deeply concerning as there can be no justification at this stage in our history for armed struggle. It is the most compelling argument presented so far for the SSA to be concerned with the protests.

Yet it should also be borne in mind that the minister made this assertion along with other bizarre assertions. In the same seminar, the minister blamed academics for fomenting the violence, by promoting Afro-pessimism on the pretext of embracing Afrocentrism. With a touch of McCarthyism, he claimed that the agency had a list of names of these academics. Spying on academics threatens academic freedom in profound ways, as it means that the most secretive and potentially powerful organ of the state is making ideological decisions about what is considered acceptable or unacceptable in our classrooms. It is also highly unlikely that academic speech would incite imminent violence (the constitutional test for limiting inciteful speech).

The Minister also accused unnamed non-governmental organisations of funding the protests and acting as agents of hostile foreign interests. These statements recycled tired, paranoid assumptions about foreign agents instigating domestic instability. In view of how outlandish his other statements are, it is difficult not be sceptical about the assertion of military training.

In this regard, the SSA’s excessive secrecy is self-defeating as it makes it impossible for the public to assess the quality of the agency’s intelligence: an important precondition for building public confidence. This is why it is in the agency’s interest to declassify and publicly release its National Intelligence Estimates on a regular basis.

If we understand some of the factors that got us to the point where fires are being lit in our communities and on our campuses, then it should be clear that approaching the problem of violent protests increasingly through a security lens, especially a national security lens, is likely to pour oil on these fires. And this is why it is a democratic imperative to resist the SSA’s involvement in the protests. DM

Jane Duncan is a professor in the Department of Journalism, Film and Television at the University of Johannesburg. Her most recent book, Protest Nation: the Right to Protest in South Africa, has just been released by UKZN Press. This article is an edited version of a speech given at an Institute for Security Studies seminar on whether the SSA should have a role in monitoring violent protests.

Photo: Students from Wits University stand defiant against police forces during ongoing protests against the cost of higher education in Johannesburg, South Africa, 04 October 2016. EPA/KIM LUDBROOK

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