Opinionista Bongani Mbindwane 15 April 2015

Spooks and South Africa’s Open Democracy

Where are the Promotion of Access to Information Act, 2000 (PAIA) and The Protection of Information Bill, 2008, (PIB) submitted to Parliament by then-Minister of Intelligence Ronnie Kasrils, at conflict – and more importantly, how do they test the resilience of an open democracy?

It must firstly be noted that the proposer of the PIB, Ronnie Kasrils, is now against certain provisions of his own proposals. His opposition is so passionate that it forms part of his fundamental disillusionment with his erstwhile political home, the governing ANC.

But why? How could the proposer of the law be so dead against it now?

The prevailing legal instruments over information access, the Protection of Information Act, PAIA, and a Cabinet policy called Minimum Information Security Standards of 1998, are primarily of interest. FICA and RICA come into focus too, where information is concerned; however, these do not deal so much with state secrets that the population should have access to.

Should the State Security Agency (SSA) be more forthcoming with information and remove many of the unnecessary clouds and darkness that hang over its activities? I argue that this is very important, not only because the Constitution demands it, but because for South Africans to be safer, it is imperative to know exactly how many ISIS-bound teenagers have been stopped and why certain areas of Johannesburg are inaccessible to SAPS due to immigrant community enclaves that practise Sharia Law inside the republic.

Citizens cannot be safe without information. Likewise, citizens ought to be informed enough to understand what goes unsaid when senior ANC officials seem to say the bizarre. Why would the ANC Secretary General and the president suggest it might be best to re-evaluate the entire integration policy for immigrants? Why are certain areas of Mayfair, Johannesburg not accessible to the SAPS?

The tensions within the Hawks also involve matters that the public should have been well aware of. Why are the full details of the breach of law in the renditions that resulted in murders not out in the open? Besides confusion, secrecy lays bare how dysfunctional secrecy is in an open democracy.

On one hand, operational aspects of the intelligence units and activities should be kept secret for the security of the citizens and the integrity of operations, including the lives or identity of state agents. However, it prevents complete accountability and provides the opportunity for the abuse of power.

South Africans talk openly about policing. The SANDF publishes its Annual Reports to the entity of Parliament; so does the SAPS. The SSA only hands its Annual Reports to the Joint Standing Committee on Intelligence, and there is thus no openness, contrary to the accounting laws on public finances.

The reports of the SAPS and SANDF allow for a public debate and public ownership of these entities. The Judiciary has won an important milestone by having its own budget and department because its affairs are public and debated openly. Disclosure has been a friend to the Judiciary.

These open public reports and discussions have not avoided controversy, but this is what makes a democracy enduring and healthy.

That SSA operations and reports are secret cannot be the only reason why these are not made public to an extent. The Minister of Intelligence speaks publicly in Parliament, and so does the president, on matters of intelligence. These are never followed by rigorous public debate, and that is not good for sustaining a democracy.

The SSA should be encouraged to publish intelligence assessments and be accountable to the public. This should include the annual Cabinet assessment on intelligence priorities. These will assist the public and business community.

In any democratic country, informed public debate about all aspects of national security is important. These debates inform policies too, and assist in the prioritising of threats and allocation of resources by treasuries. I was perplexed to see Minister Nhlanhla Nene simply hiding the SSA’s budget under the Defence Budget. This means the public will have little input on the budget and their own safety.

The public is in the dark as to whether Eskom’s issues involve cyber-terrorism or not. Other than banks who routinely report cyber crimes and financial losses, the state does not report these, and the public is left thinking there are no threats, activities or incidents that occur on a daily basis. This, of course, is untrue.

Public engagement strengthens a culture of accountability and deepens democracy and ownership. The PIB may even find many friends if the state were a little more open with matters of security redacting operational items.

To make the PIB palatable, serious attention should be given to how best to manage over-classification of documents as “secret”. As in Human Rights Commissions powers over PAIA, the Inspector General of Intelligence (IG) should have the powers to accept media applications for disclosure and publication of stories containing what may be secret documents, through IG as interlocutor, a balance between fair secret and hide-and-seek could be found for such publications to either proceed or not. An important aspect to this interlocutory action should be that information passed for publication authorisation should not lead to any prosecutions of media personnel. However, the IG should rightfully inform a state organ of security breach.

There will always be a legitimate reason to protect certain state secrets from disclosure, be this diplomatically sensitive information or military and security plans and activities. The SSA must, however, be mindful that disclosure is a friend. We should be clear on the facts, so that we can sleep peacefully. DM