27 Mar 2007: ISS Today: South Africa: Smoke, Waiting for the Fire?

27 March 2007: South Africa: Smoke, Waiting for the Fire?

The Billy Masetlha scandal continues to rock the ANC hierarchy as the National Executive Committee’s (NEC’s) “independent” investigation into the “hoax e-mail scam” found the e-mails to be genuine, contradicting the report of the Inspector General for Intelligence, which firmly laid the blame for the “fake” e-mails at the door of Billy Masetlha, the then head of the National Intelligence Agency (NIA).

 

The saga revolves around the unlawful interception of phone calls and the conduct of illegal surveillance of prominent business people, high-level ANC members and the parliamentary office of an opposition party, which occurred during the course of Project Avani. Project Avani was a Political Intelligence National Stability Assessment Project legally constituted under the provisions of the National Strategic Intelligence Act, 1994 (Act 39 of 1994) and the Intelligence Services Act, 2003 (Act 65 of 2003). The mandate of the project was “to gather, correlate, evaluate and analyse intelligence in order to identify any threat or potential threat posed by the presidential succession debate, foreign services interests therein, the impending Jacob Zuma trial and poor service delivery impacts and dynamics to the security and stability of the Republic and its people” (1) . Initially the project did not identify any specific targets and was conceived of as a 360-degree scan of the political horizon.

 

Although the project was legally constituted, the Minister of Intelligence denies having given consent it, and it was planned and implemented by the Director-General of the National Intelligence Agency (NIA). Masetlha claimed in his affidavit, presented to the Pretoria High Court at the end of 2006, that the project was carried out in response to a request from Cabinet for an investigation into the public unrest directed against local authorities and the causes of such unrest. Sources close to Masetlha revealed in 2005 that he was instructed by President Mbeki to use the NIA to find evidence against Jacob Zuma and those backing him (2). There is at present no legal obligation to obtain authority from the political head (the Minister for Intelligence) for operations such as this. Consequently, although both the Minister and the Inspector-General of Intelligence (IGI) agree that the operation was legitimate, the Minister “terminated it after discovering its consequences” (3).

 

During the course of Project Avani physical surveillance operations were launched against at least three civilians, and voice communications of at least thirteen people were intercepted. On 5 September 2005, Minister Kasrils received a complaint from Saki Macozoma, member of the ANC National Executive Committee and a leading South African politician turned businessman, that he and his family had been harassed by the NIA between 29 and 31 August 2005. Two days later the Minister received an interdict from Mr Macozoma’s lawyers to stop the NIA from further disturbing him and his family.  On 20 September 2005, the Minister formally requested the Inspector-General to investigate the allegations made by Mr Macozoma.

 

The IGI found that the physical surveillance operation of Mr Macozoma was not authorised in terms of existing NIA operational policy, was deployed without proper justification and, therefore, lacked legitimacy (4). However, according to Barry Gilder, Coordinator of the National Intelligence Coordinating Committee (NICOC), physical surveillance requires authorisation only from either a Director-General or a Deputy Director-General, (5) which means that Masetlha was operating within his authority to order physical surveillance. Furthermore, the interception of voice communication by means of the National Communications Centre (NCC) was found by the IGI to be, not only a gross abuse of the facilities of the NCC, but also illegal as the requisite authority of a judge for the interception of such communications was not obtained. The NCC focuses primarily on the interception of foreign communications and should not have been used for the domestic interception of bulk voice communication. At the time, however, Masetlha was the Acting Executive Director of the NCC.

 

The conduct or misconduct of surveillance associated with Project Avani is further complicated by what became known as the e-mail hoax. Masetlha is accused of having fabricated a conspiracy through the “interception” of e-mails, which supported the notion of a grand conspiracy against former Deputy President, Jacob Zuma, the Secretary General of the ANC, Kgalema Montlanthe and Billy Masetlha. Masetlha outsourced the interception of e-mails of selected targets to a private third party, which is a statutory convention of intelligence operating procedures, and effectively placed the e-mail surveillance outside of the oversight regime (6). Furthermore, the authenticity of the e-mails was not examined as part of Project Avani. The conspiracy agenda fed to Project Avani by the e-mails outlined two groups working to assume political control through subversion. The first group, known as the Xhosa Faction, was alleged to be led by Mr Macozoma and included members of business and government. Their primary objective was to assume political and economic control and to destroy any who impeded the implementation of their solution (7). Those targeted for “destruction” included Zuma, Montlanthe and Masetlha.

 

The second group consisted of the leader of the opposition, Tony Leon, prominent members of the media and white reactionaries in the Scorpions. Coincidentally, this group also targeted Zuma, Montlanthe and Masetlha in order to ferment the alleged division within the ANC (8). The e-mails obtained by the NIA outlined a conspiracy between these two groups as they cooperated in pursuit of the mutual goal of discrediting and ousting Zuma, Montlanthe and Masetlha.

 

In the investigation by the IGI, it was found that the interception e-mails, which outlined a political conspiracy, were in fact “faked mock ups” (9). This conclusion was based both on the technical feasibility of the e-mails having been intercepted as well as an analysis of the style and language used. In other words, the e-mails were not intercepted but were actually fabricated. 

 

The IGI’s Report provided the basis for the dismissal of Masetlha and for bringing charges of fraud against him. This report was, however, largely dismissed by the ANC’s National Executive Committee (NEC) which then ordered an “independent” investigation into the Masetlha saga and the surveillance that occurred as part of Project Avani. Billy Masetlha was relieved of his position but was paid out the remaining two years of his contract. The ANC internal report was presented at the NEC meeting held on 15-18 March 2007.

 

The NEC investigation team found that the e-mails were in fact genuine and identified the responsible individuals, although they could not release the names after the full NEC rejected the report. The first observation is that if the e-mails are genuine, then those responsible are those accused of conspiracy by Masetlha: the Macozoma faction and the white conspiracy. But the NEC report found that none of those originally identified as authors of the mails was responsible.

 

The NEC had valid reasons for rejecting the report, based both on the limited technical capacity of the task team and procedural irregularities, which included Masetlha’s involvement in the questioning of witnesses. There are two important issues, however, which have been bought to the fore by this entire debacle. The first is that the ANC hierarchy does not place trust in the democratic oversight mechanisms of the intelligence community. The Inspector General for Intelligence’s investigation was accepted by Cabinet and should have been respected by the NEC. This indicates that it suited the interests of certain elements within the NEC to prove a conspiracy to oust Zuma, Montlanthe and Masetlha. This leads to the second issue at stake: the ANC succession debate is far more serious than some might think. There is a real race for position and power within the ruling party that over-flowed into the functioning of a democratic intelligence regime.  

 

It is in the interest of public oversight that the NEC report be made public. At the moment this seems unlikely as it has the potential to sow wide discontent and to enhance the gulf emerging within the ANC. Whether or not there was a political conspiracy depends on which side of the succession debate one supports. All we can say for sure is that there are two powerful and well-resourced camps within the ANC, spilt largely on the Zuma/ Mbeki lines, each vying for political power and economic prosperity at the risk of damaging the country’s young democratic structures and institutions.

 

Lauren Hutton: Defence Sector Programme, ISS Tshwane (Pretoria)

1. Office of the Inspector General of Intelligence, Executive Summary of the Final Report of an Investigation into the Legality of the Surveillance Operations carried out by the NIA on Mr S Macozoma. 23 March 2006, p15

2. Why is Billy Masetlha still at large? Sam Sole, Nic Dawes and Rapule Tabane. Mail & Guardian, 31 March 2006, http://www.mg.co.za/articledirect.aspx?articleid=268165&area=%2fins

3. Rules of the spying game to change. Moshoeshoe Monare. The Pretoria News, 4 May 2006, p5

4. Office of the Inspector General, op cit, p14

5. Monare, op cit

6. Office of the Inspector General, op cit, p18

7. Ibid, p20

8. Ibid, p20

9. Ibid, p24