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ONE YEAR AFTER ZONDO OP-ED

How to unmuzzle the watchdogs that failed to rein in a captured State Security Agency

How to unmuzzle the watchdogs that failed to rein in a captured State Security Agency
President Cyril Ramaphosa receives the fifth and final Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State Report at Union Buildings on 22 June 2022 in Pretoria, South Africa. (Photo: Gallo Images / Alet Pretorius)

The intelligence and security services are a powerful tool in the hands of those who control them. South Africa’s intelligence legislation must be amended as a matter of urgency in order to effect greater transparency and effective oversight over them.

During the Zondo Commission of Inquiry into State Capture, witnesses testified how the State Security Agency (SSA) was hijacked to become Jacob Zuma’s personal spy service and piggy bank. This was largely possible because of apartheid-era legislation (still in place today) that made it near impossible for effective external oversight of the agency’s activities and finances.

Read more in Daily Maverick: Smash the State Security Agency piggy bank – and its apartheid roots

But that’s not the whole story. Those tasked with keeping our intelligence services in line have also fallen short; much of that has to do with post-apartheid legislation.

Register to join the Daily Maverick webinar on Thursday, 6 July 2023: Covert Funds and Public Money One Year After Zondo

Take, for instance, the Joint Standing Committee on Intelligence — the JSCI. The committee is comprised of representatives from various political parties, and it’s responsible for parliamentary oversight of intelligence services.

But it has repeatedly failed to do its job. This was revealed by two state-sanctioned inquiries into the SSA’s troubles. The first of these was the 2018 High-Level Review Panel (HLRP), established by President Cyril Ramaphosa. The second, of course, was the Zondo commission into State Capture. Both inquiries found the JSCI to have been ineffective during Zuma’s presidential tenure, for various reasons.

For one, the JSCI has, time after time, failed to act on the reports of the Inspector-General of Intelligence (IGI), whose task it is to investigate complaints from the public about corruption and abuse of power by the intelligence services.

The Zondo Commission also heard testimony that the JSCI took no action after it was briefed extensively by Ambassador Mzuvukile Maqetuka about the problems he experienced when he was the director-general of the newly birthed SSA; the agency was established by merging the domestic (National Intelligence Agency) and foreign (South African Secret Service) intelligence organisations, a move that put a single director-general in charge of all intelligence bodies, leaving it vulnerable to corrupt forces.

Chief Justice Raymond Zondo found that, in ignoring such warnings, Parliament itself contributed to State Capture, with his final report stating that “its failure to do its job meant that acts of State Capture and corruption were allowed to spread and deepen”.

But inertia is not the only problem with the JSCI.

Hampered by restrictions

The JSCI is governed by the Intelligence Services Oversight Act 40 of 1994. Among other things, this act provides that the JSCI is to consider and report on the appropriation of revenue or monies for the functions of the intelligence services, including the SSA.

However, one can immediately see that the JSCI’s work may be hampered by the restrictions that the act places on the committee’s access to internal SSA documents. For instance, the act limits the committee’s access to documents to only those that are “necessary” for the performance of its functions.

In the context, the party who determines which documents are “necessary” could only be the SSA itself. Therefore, the existing legislation provides that crucial information may be withheld from the JSCI, simply because the director-general of the SSA deems it to be unnecessary.

The Intelligence Services Oversight Act also provides for the Office of the Inspector General of Intelligence (IGI). The IGI has several functions. These include monitoring the intelligence services’ compliance with the Constitution and applicable laws and policies, reviewing intelligence and counter-intelligence activities, and investigating complaints from the public about the intelligence service.

However, as the State Capture Report points out, the IGI’s office has been inhibited by various obstacles. These include a limited budget, and the fact that it has had no budget independent of the SSA — the very body over which it has oversight. In addition, the IGI’s recommendations appear not to be binding. Thus, Parliament’s JSCI simply ignored them during the State Capture years.

Classified documents

The Auditor-General (AG) can also provide oversight through proper auditing of the intelligence services’ accounts. However, a practice has developed where the AG has issued only qualified audits for the SSA. This is mostly due to the fact that the AG hasn’t had access to the internal SSA documents it needs for proper scrutiny as a result of the SSA classifying those documents.

Thus, the Chief Justice has recommended in his State Capture Report that “the role of the IGI, the AG, and Parliament through its Joint Standing Committee on Intelligence, must be sharpened. Secrecy should not be used to hide criminal activity.”

In light of this recommendation, South Africa’s intelligence legislation must be amended as a matter of urgency in order to accommodate greater transparency and effective oversight. Some ideas for these amendments have already been recommended, and others can be borrowed from other jurisdictions.

For example, in line with the recommendations of the 2008 Matthews Commission — an inquiry into the intelligence services established by then intelligence minister Ronnie Kasrils — the SSA should have their own vote in respect of monies approved annually by Parliament and should present their annual budgets and financial reports to Parliament.

In line with the 1994 White Paper on Intelligence — which was meant to reorientate a democratic South Africa’s intelligence services towards a human-rights approach — it is important that Parliament has access to the information it needs to determine whether budgetary allocations for intelligence services are warranted.

At the same time, it should be acknowledged that the full business of the intelligence services cannot be made public if it is going to be effective in its work.

Other jurisdictions

So, in order to achieve sufficient transparency without compromising security, an intelligence budgeting model such as that of the Dutch model should be adopted. This would require giving the JSCI full access to classified information, including intelligence services’ annual projects and plans.

A broad, public report on intelligence services may be received by Parliament for debate, but Parliament must be able to rely on the JSCI to have an informed debate on the intelligence services’ budgetary vote. The JSCI must therefore have the final say on which projects and operations undertaken by the intelligence services receive funding, based on whether — in the JSCI’s view — such projects are in the national interest.

SA’s intelligence accountability mechanisms could also benefit from an additional independent committee to evaluate the day-to-day operations of intelligence services. This body, an evaluation committee of sorts, should oversee the object of all secret service operations as well as the means by which the object is to be achieved, and evaluate whether they are in the national interest or not.

This would not be unique to South Africa. For instance, similar functions are served in the Netherlands by the Independent Review Board for the Use of Powers (aka the “TIB” — Toetsingscommissie Inzet Bevoegdheen) and in Canada by the National Security and Intelligence Review Agency (Nsira).

Like the TIB and the Nsira, a South African evaluation committee should evaluate the proportionality of the means employed by the intelligence services against the intelligence goal. This committee should have the authority to recommend to the JSCI that funding should or should not be granted for specific projects in the future.

The committee should also have the power to terminate a particular project immediately if it finds that the means employed by the intelligence service to execute a project are unlawful.

Covert operations and human rights

While the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (Rica) does appear to require the intelligence services to seek warrants where the right to privacy may be infringed, it is unclear to what extent the SSA has been forced to obtain warrants for its covert activities in the past.

From the evidence before the State Capture Commission, it seems unlikely that warrants were sought by the SSA during the Principal Agent Network years or where the SSA used “grabber” devices.

Legislation should be strengthened to compel state intelligence services to seek judicial approval prior not only to communications interception, but to any covert operations where human rights may be infringed. Here, the powers of the IGI could also be extended to be more akin to those of an Intelligence Commissioner in the Canadian system.

The IGI could therefore also be responsible for reviewing the applications for warrants in these circumstances. The IGI may also be empowered to issue warrants in certain urgent situations. In addition, it is important that the powers of the IGI are extended such that their recommendations are binding on intelligence services.

The State Capture Commission recommended that the Auditor-General must have certain personnel with sufficient security clearance to conduct a proper audit of the SSA — an important step towards accountability.

On top of this, the JSCI should also have access to full audit reports and any additional documents, whether classified or not, in order for it to fully evaluate the intelligence services’ budget vote. The AG’s audit report must be provided to the evaluation committee as well.

Finally — and this is clear from other jurisdictions — each of the entities involved in intelligence and the oversight thereof must be fully supported with the offices, funding and expertise they need to carry out their work. With such support and resources, each entity can also be expected to produce annual reports which may be made public.

Where information needs to remain classified, such information can be included in the classified annexure to the report which would only be read by the president, the IGI, the evaluation committee and the JSCI.  

The intelligence and security services are a powerful tool in the hands of those who control them. History has already shown us that, in the wrong hands, they can be used to perpetrate human rights abuses, corruption and State Capture.

The only way to avoid that eventuality is to implement proper oversight by independent bodies with the means to do their work effectively. If we miss the opportunity to make these reforms now, we run the risk of history repeating itself in the near future — an eventuality that we as a country simply cannot afford. DM

This article is based on a recent report compiled by Vicky Heideman titled ‘Secret Funding and the State Security Agency: Holding Intelligence Services Accountable’.

Advocate Vicky Heideman (Rivonia Group of Advocates) was an evidence leader at the Zondo commission into State Capture. She played a key part in drafting the legal team’s submissions to the Chief Justice in respect of the SSA evidence.

This article was commissioned by Intelwatch, a non-profit organisation based in South Africa and dedicated to strengthening public oversight of state and private intelligence actors in Africa and around the world.

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