Spies, Lies And Secret Tapes
blurb:isstoday:300309spies
30 March 2009: Spies, Lies And Secret Tapes
Once again scandal and dirty political tricks risk tarnishing the barely recovering image of the South African intelligence community. Three years ago the Billy Masethla/ hoax e-mail scandal rocked the South African intelligence sector, causing the then Minister for Intelligence Services, Ronnie Kasrils, to instigate the Ministerial Review Commission on Intelligence to review legislation, policies and internal regulations related to the use of intrusive methods of investigation, mechanisms of control, non-partisanship and levels of secrecy.
The detailed report of the Commission was published in September 2008, quite literally being slipped into the public domain as Kasrils was making a premature exit from office. Since then, nothing has been seen or heard of the Commission’s Report nor of the recommendations for tighter controls on the use of special powers that are detailed therein.
Last week, national media broke the story that ANC president Jacob Zuma’s legal team were in the possession of taped telephone conversations – the content of which could prove that former President Thabo Mbeki colluded with the National Prosecution Authority in the prosecution of Zuma. This would go a long way to prove the accusation that is so often brought forward of political interference in the prosecution of Zuma and the exertion of undue influence by Mbeki on the proceedings. The taped conversations are allegedly products of interceptions conducted against former Scorpions boss Leonard McCarthy, former National Director of Public Prosecutions Bulelani Ngcuka, businessmen Saki Macozoma and Mzi Khumalo and others by state intelligence agencies.
In a statement released to The Times, Ngcuka – one of the alleged targets of the intercepted communications - pointed to the invasion of privacy that had occurred and questioned how the product of such surveillance had fallen into the hands of civilians outside of the state intelligence structures.
Regarding the infringement of the Constitutional right to privacy, there is a clear legislative framework that outlines the conditions under which such infringements can occur. The Regulation of the Interception of Communication and Communication Related Information Act (RICA) spells out the requirements for interception and the grounds for issuing interception directives. Because the interception of communication is an infringement of a Constitutional right, it can only be employed as a method of information gathering as governed by the law, i.e. by RICA. Any interceptions that do not adhere to the process and principles outlined in RICA are unconstitutional and illegal.
There are two basic concerns when considering the use of intrusive methods of investigation, in general, and the interception of communication in particular: (1) justification and (2) authorisation. RICA details that the state intelligence community (civilian, military and police intelligence) is allowed to intercept communication if authorised by a judge. The Act details conditions for the issuing of interception directives/ warrants and limitations on authorisation. For example, the judge must be satisfied that the information to be collected cannot be collected by non-intrusive means and that there are grounds to believe that ‘the gathering of information concerning an actual threat to the public health or safety, national security or compelling national economic interests of the Republic’.
According to the Report of the Ministerial Review Commission on Intelligence, the National Intelligence Agency (NIA) has an internal operational policy on the interception of communication, which states that these methods ‘shall only be applied where there is demonstrable reason to believe that criminal or unconstitutional acts are about to be committed or have already been committed’.
Furthermore, following the abuse of the power to intercept communications associated with Project Avani and the hoax e-mail scandal, a further restrictive principle was added that requires high-level authorisation for high-risk operations involving the use of intrusive methods of investigation. Because Project Avani involved the conducting of surveillance of high-level political actors in South Africa and the ensuing scandal that was caused, former Minister Kasrils instructed the services to seek ministerial authorisation for projects and targets that relate to political intelligence.
As citizens we should either be able to put our trust in the institutions of the state or in the processes by which state activities are conducted. Public trust in the intelligence organisations is generally not high in the world. Africa, including South Africa, is no exception. Years of abuse have tarnished the image of information providers as political police and tools of repression. The inability to trust that the combination of power, competition and the ability to operate in secret will not be abused has resulted in the establishment of checks and balances on the use of special powers by the secret services. When the processes for democratic control fail, the very legitimacy of the state intelligence function is called into question.
Concerns relating to the current scandal, emanate from the possible abuse of state resources and that the intercepted communications were leaked and made available for use outside of the state. In the first instance, if there were no judicial authorisation for the interceptions, it would indicate that there has been an abuse of power and resources. If there is a warrant and the process through which it was obtained is in line with RICA, then it was a legal phone tap. If it is legal, questions can be raised as to why these individuals were under surveillance and what threat did/ do they present to national security.
There are mechanisms in place to hold the intelligence community to account. The Inspector General for Intelligence can be called on by any member of the public to investigate misconduct. The Joint Standing Committee on Intelligence is legally bound to receive an annual report on the use of intrusive methods of investigation – in particular a report from the judge responsible for the issuing of interception directives. The Minister for Intelligence is answerable to the public through Parliament for the conduct of the intelligence community. If the Billy Masethla case taught anything, it is that there are processes for accountability and they can be used effectively to curb misconduct.
However, what is most concerning is that had the Report of the Ministerial Review Commission resulted in reforms within the intelligence community, the current situation would not be occurring. No real commitment to further entrench a culture of non-partisanship and non-involvement in domestic political affairs appears to be present. For as long as the resources of the state intelligence structures can be called upon to settle political scores, there is no protection of the integrity and legitimacy of the state intelligence function.
Lauren Hutton, Researcher, Security Sector Governance Programme, ISS Tshwane (Pretoria)
