Op-Ed: How state spying enables state capture
- Jane Duncan
- South Africa
- 17 Aug 2017 12:17 (South Africa)
Recently, the public has been seized with the capture of state institutions by the Gupta family. What has not received enough attention, though, are the ways in which systemic weaknesses in how the security services are being regulated, have contributed to the problem. While those who are responsible for plundering the public purse must be brought to book, these systemic weaknesses must be addressed, too, otherwise others will simply take their place at the trough. By JANE DUNCAN.
Two court cases, one still running and one concluded, raise some disturbing questions about the state of South Africa’s intelligence services. The first is a civil case brought by Thebe Maswabi, a founding member of a new union, the Workers’ Association Union (WAU).
He has claimed that President Jacob Zuma reneged on an agreement with him to pay him for forming the WAU as a bogus shell union, to destabilise the Association for Mineworkers’ and Construction Union (AMCU) in the platinum belt. He also claimed that he was tasked to spy on AMCU by the State Security Agency (SSA), and that they said they would continue “using” him even after the settlement agreement.
The second case involved two Sunday Times journalists, Stefan Hoffstatter and Mzilikazi wa Afrika, whose communications were intercepted by the Crime Intelligence Division of the South African Police Service (SAPS).
Last month, Crime Intelligence official Bongani Cele was found guilty of spying illegally on the journalists, after having lied to a judge about who their cellphone numbers actually belonged to.
It has also emerged that a husband and wife team, both apparently on the payroll of the SSA, turned up as Lonmin’s head of human resources and South African Revenue Service’s head of risk management division respectively.
All these cases suggest abuses of the intelligence-gathering capacities of the state for political purposes, to harass journalists for their journalism and to advantage the ruling faction of the ruling party.
Yet at the same time, crime is spiralling out of control, and the agencies that could arrest the problem have either been run down, or are seized with other matters. Killings of political activists and whistle-blowers have become regular occurrences.
SAPS claims to be intelligence-led. Yet, the acting head of Crime Intelligence, Lesetja Mothiba, stated in Parliament recently that the division is in such a poor state that its officers weren’t getting the information they needed to fight crime, while “…you can go into any car wash in any township and get information there for free”.
The Office for Interception Centres (OIC) and its parent body, National Communications (NC), which incorporates the National Communications Centre (NCC), have both complained that they lack the capabilities to intercept communications.
The OIC claims that most of its equipment dates back to its establishment in 2002. The running down of the OIC should be of concern because it undertakes targetted interceptions in terms of the Regulation of Interception of Communication and Provision of Communication-Related Matters Act (Rica).
The NCC, on the other hand, is responsible for bulk foreign signals intelligence gathering. If local numbers are intercepted in the course of its work, then they are meant to follow the Rica process.
The number of interception directions practically doubled in the most recent reporting years (2013-14 and 2014-15), especially applications from the SSA, so we should be concerned if the agency tasked with their implementation lacks the resources necessary to undertake its job.
The predictable result is a growing crime wave, including serious organised crime. According to the Institute for Security Studies, organised crime syndicates are expanding their reach: syndicates that could be tackled by an effective Crime Intelligence Division. The recent Gupta email leaks have pointed to state corruption on a massive scale.
Crime Intelligence has been without a permanent head for the past five years, and its previous head, Richard Mdluli was, without doubt, a political appointee who wreaked havoc in the division. Yet after six years, disciplinary proceedings against him have not been concluded.
Yet, we also know that the South Africa has serious surveillance capabilities. For instance, we know that a European arms manufacturer sold large-scale mass surveillance software in the form of an Internet Protocol (IP) Network Communications Surveillance software suite, to a South African government department for serious crime and national security purposes.
This equipment allows the agency that purchased it to undertake network communications interception and analysis. In 2014, the unnamed state agency also purchased a licence for upgrades and maintenance of the system, so clearly the software has been in use.
We also know that by 2014, South Africa was the third largest named user of intrusive hacking software Finfisher, after Slovakia and Estonia, with a total of 23 licences. Three base licences allowed the South African licence holder to hack up to 300 devices, take control of these devices, seize any information on them, and even turn their microphones and cameras on.
The University of Toronto’s Citizenlab has detected Finfisher command-and-control servers on the Telkom network in 2013. More seriously, in 2015, it detected a master server in South Africa. This detection meant that not only was Finfisher present in South Africa, but that it was most likely being operated by a government department, given that the manufacturers only sell to governments.
Citizenlab’s discovery strongly suggested that the South African government continued to be a Finfisher user beyond the expiry of the last recorded base licence in 2014. Citizenlab has been unable confirm which government department was using Finfisher.
However, three sources with links to the South African security establishment confirmed to journalist Heidi Swart that the government was using Finfisher, with one claiming that the NCC was a holder of a base licence, and the other claiming that the SSA was.
The source that claimed that the NCC was a base licence-holder also argued that South Africa had a strong reputation for using malware to spy on people, with journalists, politicians and activists being key targets. Ironically enough, recently, when Swart was working on a story on Finfisher in South Africa, her own laptop was hacked, although it is not clear by who.
According to the source, undertaking widespread mass surveillance along the lines of the National Security Agency (NSA) or Government Communication Headquarters (GCHQ) was simply not the SSA’s style, as they knew who their people of interest were.
As crime and corruption spirals, we need to ask the question, what are these powerful surveillance instruments, paid for by the taxpayer, being used for? The activities of the NCC, and state surveillance more generally, are shrouded in inappropriately high levels of secrecy. But the fact that the available evidence suggesting that the NCC is more well-resourced than the OIC should concern us. This is because the NCC remains under-regulated.
The Constitution requires that a right such as privacy must be limited only by laws of general application. For all its flaws, Rica does just that, and further provides for the establishment of the OIC. No law provides for the establishment of the NCC, though, which means that it is desperately under-regulated.
It should be borne in mind that in 2005, the NCC used its bulk scanning equipment to spy on local politicians and businesspeople; in fact, the-then National Intelligence Agency (NIA) became embroiled, unacceptably, in the succession battle in the ruling African National Congress (ANC). It used a 2009 expansion of the NIA’s mandate, to include political and economic intelligence-gathering, to do so. So there is a precedent for the NCC’s abuse.
It should also be borne in mind that no-one has been held responsible for the leaking of the “spy tapes”, that eventually saw corruption charges being withdrawn against President Jacob Zuma. It is hard to believe that the investigative organs of state lack the capacity to bring those responsible to book; if they were leaked from state surveillance entities, then the officials who accessed them could be tracked through audit trails.
The under-regulation of the NCC and other systemic failures in Rica, are the subject of a constitutional challenge brought by the amaBhungane Centre for Investigative Journalism. So this is very much a legal case to watch.
But the fact of the matter is that the NCC lacunae should have been addressed a long time ago, and the agents of state capture must be very happy that it hasn’t been. For the past seven years, the Ministry of State Security has been promising a review of intelligence policy and a brand new State Security Agency Bill. The public is still waiting.
The Department of Security has argued that the extent to which foreign signals intelligence should be regulated is a policy matter, and should be dealt with through a policy review. They have claimed that surveillance for national security purposes should be less tightly regulated than surveillance for criminal justice purposes, as national security surveillance needs to be more wide-ranging.
In 2013, the Department even opposed an attempt to have the NCC regulated on an interim basis, through a General Intelligence Laws Amendment Act (GILAA). Consequently, the state with the greatest capacity to conduct intrusive surveillance, is the one that is least well regulated by law.
Either by default or design, the NCC has remained under-regulated over a period when the state has become captured by corrupt elements for private accumulation purposes. In the current political climate, it is reasonable to at least be concerned about the potential for abuse.
Undoubtedly, the agents of state capture have also benefited hugely from the fact that until recently, and during a crucial two-year period when state capture appeared to intensify, there was a hiatus in the Office of the Inspector-General of Intelligence. In fact, in what has become a trend, many key positions in the investigatory and prosecutorial services remain vacant, and staffed by people in acting positions, limiting their effectiveness.
When Jacob Zuma first came to office in 2009, one of his first priorities was to restructure the intelligence services to form a single State Security Agency (SSA), ostensibly to increase efficiency and accountability. After all, as a former head of intelligence in the ANC in exile, he clearly knew the strategic importance of intelligence.
Up to that point, the domestic branch of the intelligence services, the NIA, and the foreign branch, the South African Secret Services (SASS), operated separately. The decision to establish two separate agencies was supported by the White Paper on intelligence, which argued that this separation allowed the services to focus on their respective mandates, and reduced the potential for political control that could go along with centralisation.
Under former Minister of Intelligence, Lindiwe Sisulu, the services ballooned; new institutions were added and budgets increased. Support services were duplicated, leading to wasteful expenditure. The Zuma administration wanted to streamline the agencies.
The department also justified the establishment of the SSA by referring to international intelligence failures. They argued that US intelligence agencies failed to uncover the plot that led to the 9/11 terrorist attacks, because inter-agency competition for status and resources prevented them from co-operating with one another.
In order to court the favours of powerful politicians, US intelligence operatives stove-piped raw intelligence directly to them. In doing so, these operatives undermined their own professional intelligence analysts.
The department maintained that it wanted to prevent catastrophic failures like these in South Africa, by consolidating all the services into one entity. It argued that the establishment of the SSA amounted to consolidation, not centralisation.
The department also fought tooth and nail for political intelligence-gathering to remain part of its mandate. This was in spite of the fact that a Commission of Enquiry into the 2005 intelligence failures argued that this mandate was almost always going to be abused to harass political critics. The Department argued that national security threats must be dealt with, wherever they come from.
Parliament mitigated the dangers of the political intelligence-gathering mandate being misused by forbidding the SSA from spying on individuals and organisations engaged in legitimate, lawful advocacy.
Eight years down the line, has the establishment of the SSA led to a more effective intelligence product? It would appear not. Significant intelligence failures are not episodic; they are systemic.
Granted, there have been intelligence successes, too. The fact that the services are making gains in the war against rhino poaching and other aspects of the illicit economy, is an indication of this. But when rhino poaching is compared to the failures around the systematic capture of the state by corrupt elements, then the successes pale in the face of the failures.
The Gupta emails show that classified documents have been stovepiped to the Guptas, in spite of the fact that the SSA has been tasked with maintaining their secrecy. They show that Atul Gupta knew of allegations that former Public Protector Thuli Madonsela was a Central Intelligence Agency (CIA) spy days before State Security Minister David Mahlobo announced an investigation into the allegations.
In South Africa, the battle for an impartial, professional intelligence service that serves the universal interest (if there ever can be such a thing), has been a long, hard one. The country has a sorry, apartheid history of being run by securocrats. These were senior officials in the security establishment (especially in the military), who exercised undue influence over national policy.
According to academic Kevin O’Brien, former president PW Botha elevated military intelligence above police and civilian intelligence agencies, vesting the strategic intelligence function in the Military Intelligence Division (DMI) of the old South African Defence Force (SADF). Strategic intelligence is distinct from tactical and operational intelligence, in that governments can use it to formulate high-level policy and strategy, while the agencies generally use tactical intelligence to formulate plans to implement strategy.
Strategic intelligence is the visionary component of intelligence cycle. Consequently, it should be developed by civilian agencies that are not operational, as agencies that both develop and act on intelligence experience intolerable conflicts of interest. Yet the Military Intelligence Division was highly operational.
PW Botha also elevated the State Security Council above Cabinet as the strategic decision-maker on policy. This restructuring led to the widespread militarisation of society from the late 1970s onwards. It also prevented the emergence of political (as opposed to military) solutions to South Africa’s crisis, at least until the late 1980s.
It was only once cabinet reasserted authority over the SSC, and the civilian National Intelligence Service (NIS) – the apartheid predecessor to the NIA, and ultimately the SSA – assumed greater control over strategic intelligence, that political solutions became imaginable.
Democratic South Africa has a very different intelligence architecture to the one that existed under apartheid. Military intelligence is a shadow of what it was. As the catastrophic 2013 mission to the Central African Republic showed, it struggles to perform even basic intelligence functions. On its own admission, the Crime Intelligence Division of SAPS is in tatters.
The SSA remains the lead agency on strategic intelligence matters, though, through the National Intelligence Coordinating Committee (Nicoc), which remains subordinate to cabinet. So, clearly, it cannot be argued that military securocrats are running South Africa.
In any event, Zuma cannot trust the military, even if he has deployed trusted individuals to key positions. The military remains a wild card as it is industrialised and unionised. As a result, many soldiers have a consciousness of themselves, not just as soldiers, but as workers. Consequently, they cannot be trusted too much to repress other workers.
Yet, Zuma does not need the military to exercise securocratic control over democratic South Africa. All he needed to do was to capture the strategic intelligence function, weaken it by undermining whatever professional culture existed, and point it away from the most important threats. The available evidence points to him having done that very well.
In his most recent budget vote speech, Mahlobo argued that the pre-eminent threats to national security are domestic and political in nature. He flagged violent industrial, student and community protests as looming threats. However, consistent with a securitised approach to social problems, he failed to reflect on the reasons why protests have turned violent, such as the general closure of democratic space and police violence.
He also identified another threat, namely of foreign powers collaborating with “negative domestic forces” to “drive a wedge amongst the public” and effect unconstitutional regime change. This is a very serious allegation, as those responsible could be charged with subversion, and even treason.
According to Mahlobo, “…(Their) general strategy they use a range of role players to promote their agenda and these include, but are not limited to certain mainstream media; non-governmental organisations and community-based organisations; foreign and multinational companies; funding of opposition activities; infiltration and recruitment in key government departments; religious bodies, prominent influential persons; and punning (sic) of covert intelligence networks and covert action on our soil”.
Now, it can be assumed that this paranoid nonsense is an attempt to deflect the agency’s attention away from the most serious threat to national security – namely state capture – and to justify the SSA straying into surveillance of lawful advocacy, in spite of the narrowed definition of national security in GILAA.
The military does not need to control South Africa, as civilians are applying a security and military mindset to social problems. The Maswabi case would suggest that the SSA is not confining itself to passive intelligence gathering, but is, in fact, becoming operational. Firm conclusions should not be arrived at until the case has been decided, though.
Security actors have also seen a business case for talking up domestic political national security threats. A recent Privacy International investigation has exposed a revolving door between the intelligence agencies, the mining industry, and private security companies in the communications surveillance sector.
In other words, spies leave the employ of the intelligence agencies and set up private security companies that ply their trade in the private sector, especially in the mining industry where some of these players also have business interests. This collusion appears to have intensified in the wake of the Marikana massacre. So the more domestic threats they can manufacture, the more they can cash in on the other side by providing security “solutions” for these “problems”.
Recently, the public has been seized with the capture of state institutions by the Gupta family. What has not received enough attention, though, are the ways in which systemic weaknesses in how the security services are being regulated, have contributed to the problem.
While those who are responsible for plundering the public purse must be brought to book, these systemic weaknesses must be addressed, too, otherwise others will simply take their place at the trough.
The surveillance capacities of the state must be brought under democratic control, and to this end, Rica needs to be reformed. The announcement by the Department of Justice and Constitutional Development that it intends to do just that, is welcome.
Cabinet’s national intelligence priorities must be publicly released and debated, as must the operational policies for activities such as intrusive surveillance and the infiltration of organisations. The new White Paper on Intelligence and the State Security Agency Bill must be brought forward and released as soon as possible. Until these urgent tasks are attended to, then the new-order securocrats will continue to drag us all down as a country. DM
Jane Duncan is a professor in the Department of Journalism, Film and Television at the University of Johannesburg. This article is based on a presentation she gave at the Foundation for Human Rights Annual General Meeting, 4-5 August 2017
Photo: State Security Minister David Mahlobo is seen in conversation with President Jacob Zuma at the final session of the ANC’s 5th National Policy Conference which was held at the Nasrec Expo Centre in Johannesburg. Picture: IHSAAN HAFFEJEE