The question – who guards the guardians – is at the heart of Tuesday’s court hearing on the protection sought by Inspector-General of Intelligence Setlhomamaru Dintwe after State Security Director-General Arthur Fraser revoked his security clearance. It’s an unprecedented situation: Fraser, who is subject to constitutionally mandated and legislated accountability, has stripped Dintwe of the ability to do oversight. But it goes further as the withdrawal of Dintwe’s security clearance effectively sets the grounds for Inspector General's removal from office, if the political winds so blow.
The revocation of Inspector-General of Intelligence (IGI) Setlhomamaru Dintwe’s security clearance – his top secret certificate was valid until January 2022 – may be what drove him to seek a court interdict, but it’s just the latest twist in a difficult road over the past year in which his office experienced obfuscation, non co-operation and was left begging for money.
An additional twist to the saga is that Dintwe in May 2017 was asked by DA Chief Whip John Steenhuisen to investigate State Security Director-General Arthur Fraser for his role in the Principle Agent Network (PAN) programme, effectively the duplication of state intelligence structures using outsourced companies and persons. Daily Maverick article Spooks and Spies: the PAN programme, Arthur Fraser and eight years of investigations, outlines how Fraser’s appointment as spy boss from 26 September 2016 came in the wake of some eight year’s investigations, by both the then IGI and an SSA internal probe requested by former state security minister Siyabonga Cwele as far back as 2009 that found sufficient reasons for criminal prosecutions. Six months after Steenhuisen laid the initial complaint in May 2017, he again wrote to Dintwe requesting an update.
The complaint was lodged with the IGI shortly after Fraser’s appointment as spy boss from 26 September 2016 in the wake of some eight years of investigations, by both the then IGI and in an including an SSA internal probe requested by former state security minister Siyabonga Cwele as far back as 2009 which found sufficient reasons for criminal prosecutions.
Jacques Pauw’s book The President’s Keepers, published in October 2017, first triggered a cease-and-desist lawyer’s letter and then charges against the author for being in possession of classified information.
Dintwe’s court documents filed in the North Gauteng High Court link his loss of security clearance, also for being in possession of classified documents, and the PAN programme probe.
“On what I know, there is at least a prima facie case for Mr Fraser to answer. If, by his conduct, he is preventing the ventilation of that case through a statutorily created body, it is of extreme importance for a court to step in and prevent the apparent illegality perpetrated by a body that should be upholding the law.”
But the court documents also outline how oversight is being frustrated. Scheduled visits from September 2017 to March 2018 to the various State Security Agency (SSA) divisions – all but the intelligence academy are headed by acting deputy director-generals – did not take place as planned. And the requested “SSA structure operational document” has yet to be handed over.
Information requested from the SSA for at least two investigations into complaints about unlawful interception took more than eight months for a response. Follow-ups in a complaint over outstanding monies paid by a former intelligence boss, submitted to Dintwe’s predecessor in 2014, eventually led to the SSA telling him it could not find the paperwork. There are also issues with the OIGI funding, including the announcement of a R10-million allocation on 30 January 2018, which a day later was described as a miscommunication as it actually was allocated to the ministry.
Fraser has denied acting unlawfully or unconstitutionally – or obstructing the IGI – in his replying affidavit:
“It is my view that the purported investigation is malicious and at the whims of political parties aimed ad discrediting me, the agency and the political leadership.”
And Frasers says not only is he legally entitled to withdraw Dintwe’s security clearance, he was also justified doing so given information about the IGI that has come to light late last year. “Given the allegations against the inspector-general, I submit the withdrawal of his security clearance was made in the best interest of the Republic of South Africa.”
In a letter to Dintwe on 8 November 2017, Fraser wrote that the SSA had “received information from sources that representatives of political parties in Parliament are in unlawful possession of classified information regarding matters related to the agency or its activities and have presented the information to the Office of the Inspector-General of Intelligence”.
It is unclear what this information refers to – the PAN project, or a complaint by DA MP Dirk Stubbe, a member of Parliament’s Joint Standing Committee on Intelligence (JSCI), to probe the attendance of SSA operatives at party political meetings between 2014 and 2017. That the IGI has tried to do, according to Dintwe’s court documents, requesting information in a letter in July 2017 without luck. Or it might be something completely different.
The stand-off between the SSA DG and the IGI quickly escalated. Seven days after the first letter, Fraser announced Dintwe’s re-vetting in a letter dated 15 November 2017.
On 13 November 2017 Fraser again wrote to Dintwe, attaching the Daily Maverick article Spooks and Spies: the PAN programme, Arthur Fraser and eight years of investigations, to state the IGI was in possession of classified information. It was “self-evident such political representatives have obtained the classified information unlawfully from members and/or former members and may be complicit in perpetrating such unlawful conduct”. (Note: Steenhuisen says the SSA has not been in contact with him yet).
Then, in a letter dated 15 November 2017, Fraser announced Dintwe’s re-vetting.
“I received information which suggested that the applicant (Dintwe) personally and without authority disclosed classified information to representatives of political parties in Parliament,” Fraser says in his court papers, adding he was not at liberty to disclose the source.
Finally, Fraser withdrew the IGI’s security clearance on 28 March 2018. If Dintwe wanted a remedy, Fraser argues in his court papers, he should have followed the Intelligence Services Act and the National Strategic Intelligence Act and appealed to the SSA director-general and the minister respectively. That he did not do so showed Dintwe “misconstrued” the law.
It’s a high-stakes poker game. Fraser invokes bits from various intelligence laws to back his actions and also exploits a legal vacuum – the IGI’s security vetting has been left to SSA even though the legislative intent, never realised, was for the state security minister and the JSCI to deal with that.
By withdrawing the IGI’s security clearance, Fraser has set the legal ground for Dintwe’s removal by the president. Other grounds are misconduct, incapacity, poor performance or incompetence.
But the political winds have changed with the election of Cyril Ramaphosa, first as ANC president at the party’s December 2017 national conference and then as South Africa’s president in February 2018. It’s by no means a done deal – factionalism is deeply entrenched in the governing party – but the certainties of those deployed by the Jacob Zuma administration to run key structures in the intelligence and security structures are shaken up.
Since the start of the year, police crime intelligence boss Richard Mdluli has departed via early retirement after over six years on suspension as tax boss Tom Moyane has been suspended and prosecutions head Shaun Abrahams is on notice following a December 2017 court ruling that his appointment is invalid.
State Security Minister Dipuo Letsatsi-Duba, who expressed concern at these unprecedented developments “bound to affect the discharge of all constitutional and legal mandates”, last week also announced she’d take (unspecified) steps to ensure it’s all dealt with within the legal framework to “ensure that we maintain good governance as is expected of us”.
Dintwe was left to turn to the court.
Dintwe Affidavit on Scribd
It’s a bizarre situation. The IGI accounts to the parliamentary intelligence committee, and in many ways to the state security minister as the political boss, not the SSA director-general. That is clear from the legislation that also sets out wide-ranging statutory powers, including access to any and all documents, intelligence, reports or information and premises, according to the 1994 Intelligence Services Oversight Act.
The IGI’s functions include monitoring constitutional compliance, reviewing intelligence and counterintelligence activities, investigate complaints from the public or operatives on “alleged maladministration, abuse of power, transgressions of the Constitution, laws and policies…”
Coincidentally, the intelligence service regulations expressly state that classified information may not be used to conceal violations of the law or to shield someone from embarrassment.
And so it’s also peculiar to impute MPs in illegality by submitting classified information to the IGI. MPs enjoy privilege – no MP has been approached by SSA over this – and JSCI members are security vetted in line with the Intelligence Services Oversight Act that established Parliament’s only oversight committee enshrined in law.
While the JSCI’s statutory annual reports that must be tabled in Parliament provide a glimpse into the intelligence services, they read more like accounts of day trips. Information on finances is limited and redacted although it’s clear the auditor-general gave SSA a qualified audit opinion in the 2016/17 financial year. Although the number of telephonic interceptions is recorded, not even the simplest explanation as to why is provided.
That the JSCI treads gently rather than exercising its statutory powers – it can, for example, initiate investigations and summon anyone to appear before it – is perhaps more telling of the securitisation of the state. And how MPs may have bought into, or were intimidated, by the regime change rhetoric that hinted at the involvement of civil society groups and opposition parties.
South Africa’s spooks and spies have long enjoyed being able to do what they want, including dabbling in power and politics, more specifically the ANC’s factional politicking. And co-operation with the OIGI has been lacklustre at best.
This was evident in the run-up to the 2007 Polokwane ANC national conference, marked by what’s known as the “Macozoma affair”, the surveillance of businessman Saki Macozoma found unlawful by then IGI, who also dismissed as a hoax the emails on a ploy to discredit then president Thabo Mbeki’s rival contestant for the ANC presidential office, Jacob Zuma.
In March 2006 Mbeki sacked spy boss Billy Masetlha, who unsuccessfully challenged this, losing in the Constitutional Court in October 2007.
“… the Inspector-General prepared a written report in which he informed the minister that the surveillance of Mr Macozoma was unauthorised and unlawful and that it had not been undertaken for the reasons given by the Agency operatives but for another purpose. The report notes that Mr Masetlha had deliberately sought to mislead the Inspector-General’s investigation team and the minister in this regard,” that judgement said.
The National Intelligence Agency (NIA) was restructured into the State Security Agency (SSA), but there was little stability. Its three top officials – director-general Jeff Maqetuka and the heads of foreign and domestic intelligence, Mo Shaik and Gibson Njenje respectively – all departed within a short time from each other from late 2011 in an apparent political fallout.
Dintwe was not the first choice for the IGI post, previously held by many who chose not to rock the boat. ANC MPs on the JSCI wanted Cecil Burgess, a former committee chairperson and chair of the ad hoc committee that processed amendments to the general intelligence laws.
Today a whole range of activities, including violent strikes, can be deemed a threat to national security. Persistent opposition to Burgess by opposition parties meant a tactical political retreat for the governing party. Dintwe was approved as IGI by Parliament at the end of November 2016, followed by the official presidential appointment in March 2017.
But the politicking had left an almost two-year gap without legislated oversight of the SSA. And the costs of this, alongside the long-standing instability and politicisation of the SSA, raises key questions about legislated and constitutionally mandated oversight at the heart of the pending court battle. DM
Photo: State Security Director-General Arthur Fraser (eNCA screen grab)