Opinionista Nel Marais 19 June 2018

State security review panel will need the wisdom of Solomon

The establishment of a review panel to look into the work of the State Security Agency is an opportunity to build a world-class national asset.

With a number of national and provincial departments failing, the State Security Agency has received a potential lifeline with President Cyril Ramaphosa appointing a review panel into the agency’s work. The country’s intelligence services have been allowed to avoid any effective oversight for most of the life of our democratic state, and the panel, which consists of a mixed bag of former securocrats lawyers, and academics, faces a daunting task, since the agency constituted an integral part of the state capture project during the Zuma years.

In April 2018, the State Security Agency announced that its director general, Arthur Fraser – a Jacob Zuma loyalist – was being moved to the Department of Correctional Services.

This came ahead of Inspector General of Intelligence Setlhomamaru Dintwe’s planned (and unprecedented) case before the North Gauteng High Court, asking it to bar Fraser from interfering with his duties. (Strangely though, President Cyril Ramaphosa is fighting the Democratic Alliance’s challenge to his decision to move Fraser. Simultaneously he is opposing a legal fight by the government’s intelligence watchdog for greater independence.)

Then, in May 2018, Ramaphosa announced that a panel would be appointed to review the functioning, effectiveness and structure of South Africa’s intelligence bodies. He added that he had instructed Minister of State Security, Dipuo Letsatsi-Duba, whom he appointed to his first Cabinet, to take whatever steps necessary to restore the integrity of the State Security Agency. Similarly, he instructed Minister of Police, Bheki Cele, to do the same within the police. He also told Parliament that the Joint Standing Committee on Intelligence and the Inspector General of Intelligence – which oversee South Africa’s intelligence bodies – had to be empowered to do their work.

In June, this culminated in the president’s appointment of a review panel into the work of the State Security Agency. The panel is to be chaired by a former minister, Dr Sydney Mufamadi. He is a former trade unionist; former United Democratic Front activist; former safety and security minister under Nelson Mandela; and provincial and local government minister under Thabo Mbeki. In the run-up to the ANC’s national conference in December 2017, he took a strong public stance against the maladministration of the Zuma government.

The composition of the panel is obviously of great importance.

One of the crucial members of the panel will be Barry Gilder. He is a former senior intelligence official, but currently with the Mapungubwe Institute for Strategic Reflection (Mistra), where he works closely with Joel Netshitenzhe, who played a cardinal role in policy formulation during the Mbeki presidency.

Gilder joined the ANC’s armed wing – Umkhonto we Sizwe – in 1979 and in 1980, the ANC’s Intelligence Branch. From 1983 to 1989 he headed the branch in Botswana. In 1994, he was appointed to the South African Secret Service (SASS) and in January 2000 he moved to the domestic intelligence service – the National Intelligence Agency – as Deputy Director General: Operations. In May 2003 he was appointed as Director General of the Department of Home Affairs. Two years later he was appointed Coordinator for Intelligence at the National Intelligence Co-ordinating Committee (NICOC), where he served until his retirement in October 2007. Gilder has an analytical and critical mind, and although he has been “out of the game” for more than a decade, his past experience in intelligence structures will prove vital.

A second person who should have a major impact, although for different reasons, is Professor Jane Duncan. She is with the Journalism Department at the University of Johannesburg. She is a prominent media activist and former executive director of the Freedom of Expression Institute and has written widely on media policy and media freedom issues, including on South Africa’s intelligence services, often highly critically.

Professor Anthoni van Nieuwkerk is with the Wits School of Governance, where he leads the African Centre for Conflict Management. In 2015, government appointed him to the South African Council on International Relations. Although his knowledge of the intelligence world could be questioned, he is known as an “institutional architect”, which might assist the panel. He has published widely on African foreign and security policy, and reportedly has experience with advising African policymakers on foreign and national security policy processes and frameworks.

A third academic is Professor Sibusiso Vil-Nkomo, who is Research Professor in the Centre for the Advancement of Scholarship at the University of Pretoria. He is chairperson of Mistra. Although he has an impressive academic record, his involvement with Mistra might be more useful and relevant than his academic work.

Dr Siphokazi Magadla is a Senior Lecturer in the Political and International Studies department at Rhodes University. She worked as research consultant for the Security Sector Governance programme of the Institute for Security Studies in Pretoria, focusing on the role of women in peace and security.

Murray Michell is the former head of the Financial Intelligence Centre. During his tenure suspicious transactions by the Gupta family were exposed, leading to their bank accounts being closed. The centre also exposed former South African Revenue Service official Jonas Makwakwa’s irregular financial transactions.

Basetsana Molebatsi is a partner at Harris, Nupen, Molebatsi. In addition to her focus on commercial law, she has a background in advocating for access to information as a human rights lawyer and previously worked with the Open Democracy Advice Centre. She is currently the Chairperson of the Women’s Legal Centre Trust, and is a member of the Advisory Council of the Centre for the Advancement of the South African Constitution. She sits on the board of the non-governmental organisation Open Secrets and she has represented Corruption Watch.

General Andre Pruis is a retired deputy national police commissioner. He was responsible for the police’s visible policing, operational response services, protection and security services and the national inspectorate divisions. Pruis joined the police in 1989 as a brigadier. At the time of his appointment some were of the opinion that the then Director General of the National Intelligence Service, Niel Barnard, wanted Pruis in a senior position in the police to keep Barnard informed about sensitive issues in the Security Branch. Both Pruis and Barnard were previously attached to the University of the Free State.

Silumko Sokupa is a former Deputy Director General of South African Secret Service, as well as a previous coordinator for intelligence at the National Intelligence Co-ordinating Committee. He was part of the ANC’s armed wing in exile and worked with the late Chris Hani in Lesotho. Sokupa (aka Soks) rose to a senior position in the ANC’s Swaziland politico-military committee. After the 1994 election he was in charge of the amalgamation of the Eastern Cape region of the new National Intelligence Agency. He also did a two-year secondment to Correctional Services, then moved to South African Secret Service in 2000.

The answer to the question of whether the panel has the required experience and balance to help solve the mess at the State Security Agency is probably only a conditional yes. Some commentators have observed that the panel is “loaded with Mbeki and Ramaphosa people’’, without reflecting other opinions – probably referring to Zuma loyalists – but this view is at best mischievous, but more likely disingenuous; it is Zuma and his cohorts that brought the State Security Agency and other intelligence and security structures to the precipice of dysfunctionality, unable to protect themselves from corruption or prevent the state capture project.

Maybe the more relevant question is whether the panel has the right mix to ensure that the country not only ends up with an intelligence architecture that can ensure the required degree of secrecy, but also an openness and transparency that should be expected from a constitutional democracy, with Canada and Australia probably two good examples of such equilibrium. The panel does not seem too heavy on securocrats and a number of panellists could be expected to favour effective oversight and intelligence that respect civil rights and not only “state security”. This is important against the background of a warning that Professor Laurie Nathan sounded in 2017:

What is known – from revelations, leaks and investigations over the past 20 years – is that the intelligence services have not been adequately transformed since South Africa’s transition to democracy. The services have more in common with their apartheid-era predecessors than with the principles of the country’s democratic constitution.’’

In its reaction on June 17, the SA Communist Party raised another important point. The party welcomed the intelligence review panel, but also called “for a similar review of the police crime intelligence, the police as a whole, including the Hawks, as well as the prosecution, to establish how on earth the rot of corporate state capture took place as if these authorities were non-existent, and for a firm, corrective action to be taken.’’ Defence intelligence should be added to this list.  

Although President Ramaphosa probably had good reasons to limit the mandate of the panel to the State Security Agency, the inclusion of someone like General Pruis might suggest that the panel will also look at inter-agency co-operation, when it comes to intelligence priorities and activities. If not, the panel’s work might be in vain.

It is also worth noting that a somewhat similar exercise in 2008, the Matthews Commission’s report on “Intelligence in a Constitutional Democracy”, signed off by Joe Matthews, Dr Frene Ginwala, and Laurie Nathan, went into great detail about the shortcomings and weaknesses in national intelligence and crime intelligence in the police. However, the report was never recognised by the Zuma administration and its recommendations were never acted upon. In fact, Gareth Newham, head of justice and violence prevention at the Institute for Security Studies, argues, “… the opposite occurred. Instead of using the report to strengthen intelligence, ongoing interference by Zuma and his loyalists, and bad appointments to top positions in the police and security agency, resulted in far greater deterioration in their performance of their constitutional mandate and the abuse of their powers.”

That leads to the core issue – will the panel keep itself busy with the titillating elements of ‘spying’ or will it manage to remain focused on a high-level reassessment of the State Security Agency’s intelligence priorities? Another danger is that the panel could become pre-occupied with structural issues rather than guiding policies. Unless our intelligence agencies concentrate on real and legitimate national priorities, it won’t help if they follow “best practice’’ when it comes to their modus operandi.

However, prioritisation is probably much easier when it comes to foreign intelligence than domestic issues. Few would argue that intelligence should not supplement our government’s diplomatic efforts when it comes to Lesotho, Madagascar, South Sudan or even the Middle East, especially now that we will take up a non-permanent seat on the UN Security Council. In contrast, domestic issues are fraught with political complexities – the ruling party’s land expropriation policy versus the Economic Freedom Fighters’ insistence on land occupation; and claims that assassinations in KwaZulu-Natal are linked to factionalism within the ANC, to name but two examples. With this, the panel will need the wisdom of Solomon, as falling back on the argument that “anti-constitutionalism” should be the overriding focus point, is simply too vague to be of much use.

The panel is unlikely to unravel the corruption that has allegedly taken place under Arthur Fraser’s watch, as it is not a commission of inquiry. It is equally unlikely that the panel would question the need for a national intelligence architecture, but hopefully it will be able to find consensus on a number of critical issues, including the problem that the executive and the ruling party have consistently ignored the constitutional instruction to be politically non-partisan.

In addition, the panel will have to deal with the reality that the intelligence services have a culture of disregard for the law, for instance when it comes to financial regulations and the prescriptions related to the interception of communications.

Another major issue is the excessive secrecy that cloaks the State Security Agency. Unnecessary levels of secrecy lead to inadequate public scrutiny and a greater risk of abuse of power, as we have seen in recent years. Lastly, the Office of the Inspector General of Intelligence and the Joint Parliamentary Oversight Committee on Intelligence have substantial authority and powers to deal with “intelligence mischief”, but neither institution has been of much comfort. In fact, the only entities that have made a serious attempt to hold the intelligence services accountable are non-governmental organizations, for instance the Right to Know Campaign.

The panel faces a herculean task to restore the State Security Agency’s legality, credibility and legitimacy, in order to restore it to a national asset that could make a substantial contribution to President Ramaphosa’s vision of a “New Dawn”. Intelligence services in the democratic world have often proven themselves obstinate when it comes to reform and redirection and the review panel is likely to be confronted by similar challenges. DM

Dr Nel Marais served in intelligence structures from 1984 to 2000. He is the founder and managing director of Thabiti, a specialised risk consultancy company.

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