01 Nov 2007: ISS Paper 154: Looking Beneath the Cloak, An Analysis of Intelligence Governance in South Africa, Lauren Hutton

Looking beneath the cloak
An analysis of intelligence governance in South Africa

Lauren Hutton

 

Occasional Paper 154, November 2007

 

 

Introduction

 

To paraphrase Hans Born (2005) in the introduction to Who’s Watching the Spies? the study of intelligence oversight calls for connecting the seemingly divergent worlds of democracy and secrecy. Evaluating and understanding a system of governance for the intelligence community involves a multidisciplinary approach that entails interpreting national legislation, understanding organisational and bureaucratic behaviour, applying lessons from strategic and security studies and utilising the principles of participatory democratic oversight. In general, the intelligence governance debate is concerned with the democratic control of the intelligence services and implies a need to balance commitments to democracy with those to security. A debate of this nature, however, situates democracy and security as competing forces instead of interrelated elements.

The study of intelligence governance needs to be based on a recognition that strengthening the democracy, transparency and accountability of intelligence services should not come at a cost to the efficiency and effectiveness of the secret services. The efficacy of the intelligence services in a democracy would, in fact, have to be measured in terms of the behaviour of the intelligence community; this behaviour should be consistent with accepted democratic practices and the rule of law. The underlying premise is that the intelligence services will become more efficient when they operate under a mandate in line with the democratically defined security needs of the state and that excesses will be avoided through better coordination and accountability.

The challenge of intelligence governance is therefore ultimately concerned with harnessing the tools of covert and coercive power for the purposes of the state and society as a whole. However, if intelligence services are uncontrolled, poorly managed and not held to account, there could be a risk of the misuse of state security structures for personal or group interest and the activities of the intelligence services could actually threaten the security of citizens. Ultimately, the prevalence of secrecy and lack of accountability increases the risk of impropriety and, in the long term, threatens democracy.

Intelligence governance

Good governance has become an important benchmark for emerging and democratising states, especially in view of the expanded security paradigm and the increasing acknowledgement of the relationship between security and development. As part of increased security sector reform activities, improving the mechanisms of governance is seen as essential to controlling the exercise of state power. Ensuring sufficient mechanisms of control over the use of force should, in democratic theory, guard against the misuse of the state security arsenal for personal or group interest at the expense of individual security. As the potentially most dangerous weapons in the state security arsenal, the intelligence services should be bound by the same principles of good governance as the other tools of statecraft, and constant vigilance is required to ensure that the covert use of power does not infringe on national values, human rights and personal freedoms.

Governance of the intelligence sector refers to the processes of decision making and those by which decisions are implemented within the intelligence apparatus of a state. Thus governance includes aspects of policy formulation and generation of policy priorities and alternatives; the levels of authorisation required, especially for covert operations; the use of intrusive methods of investigation; and the mandates and functioning of the structures that implement the decisions, for instance the intelligence agencies. As Smith and Stacey (1997:79) indicate, the governance debate is usually referred to in terms of the ‘efficacy of formal structures to ensure a degree of cooperation sufficient to bring about order in human affairs’.

In a democracy, oversight mechanisms such as the judiciary and the legislature are essential elements of the governance framework as they monitor and regulate the decision-making environment and confirm that the decision-making and implementation processes function in accordance with the constitutional, legal and normative framework of the state. Furthermore, oversight mechanisms review performance and expenditure to ensure that public funds are allocated to and spent on stated goals in agreement with national values.

When evaluating the efficacy of the formal structures, one generally accepts good governance to have the following key characteristics: It is participatory, accountable, transparent, responsive, effective and efficient, and equitable and inclusive, and it follows the rule of law. The good governance agenda presents unique challenges to the management and control of intelligence services, especially given the covert nature of intelligence operations and the inherent need for secrecy.

The definition of governance provided by Smith and Stacey (1997) indicates that good governance necessarily focuses on issues of efficacy, which would include the transparency and accountability of the formal structures of government. These ‘refer to an operational diffusion point that will transform expressed needs and political objectives into concrete actions’ (‘Governance Debate’ 1997). Furthermore, the definition highlights the requirement for cooperation among the formal structures. The final key element of governance is its ability to bring order to human affairs: The structures of government have as primary function the creation of conditions of stability and a degree of predictability in human affairs.

Although this discussion focuses on the intelligence apparatus of the state, it is cognisant of an expanded notion of security in which the ultimate preoccupation of the state security apparatus is not personal or group interest but rather the achievement of order in human affairs. As such, the state-centric approach is couched in human security rhetoric in which the intelligence services are viewed as non-partisan tools of the state, serving the security interests of the citizens and not personal, group or party agenda; hence the need for consultation and participation and the building of a national consensus on the role of intelligence in the greater national security debate. To achieve consultation and participation, however, a level of transparency is required and the public needs to have access to information to make an informed contribution to the decision- and policy-making processes.

Therefore, the issue of governance is closely tied to the internal order and political culture of a state. The governance structures are a product of the political evolution of the state and bear the fruits of or scars inflicted by previous regimes. Within this context the discussion analyses the South African intelligence governance structures and highlights important features of the system of governance and the manner in which democratic control of the intelligence services is currently exercised. Initially, however, it needs to briefly describe the intelligence apparatus and governance structures in the predemocratic period: first, to create an appreciation of the degree of reform that has in fact taken place and, second, to provide the necessary historical perspective of the culture and perceptions of the intelligence community in South Africa.

Intelligence and the apartheid state

The political environment of a country largely determines the activities of the intelligence community, or of any state department. This key variable determines not only the nature and structure of the intelligence community but also its priorities and operations. The internal and external political and strategic security environment tends to dictate the level of involvement of intelligence agencies in the domestic and foreign arenas, and the nature of the threats largely determine the nature of the intelligence agency involved, be it civilian, military or police.

When the survival of a ruling party is under threat and the maintenance of political power is the prevailing preoccupation of state security structures, however, the suppression of domestic political dissent frequently becomes an intelligence priority. In authoritarian, undemocratic, dictatorial or autocratic regimes, intelligence often becomes an essential tool of oppression and control. The general trend seems to be that the more insecure a regime or ruling party, the greater is the domestic role of intelligence services. The apartheid state was not unique in this regard.

At an academic conference in August 1992, Joe Nhlanhla (1992), at the time director of the African National Congress (ANC) Department of Intelligence and Security and the first Minister of Intelligence Services of democratic South Africa, identified the following deeply embedded features of the apartheid intelligence services:

• A militaristic and racist culture where interests served have been those of the ruling Nationalist government and not those of the people as a whole
  
  

• A culture of secrecy and lack of transparency and a total absence of accountability to the public
  
  

• An undermining of basic human rights and freedoms, including the freedom of speech, thought and action, and the right to privacy
  
  

• Repressive and criminal methods including the use of detention and torture, assassination and kidnapping in pursuit of the interests of state security
  
  

• An inward-focused approach where the greatest threat to national security was seen to come from fellow South Africans
  
  

• The wanton infiltration of organisations and disinformation against anti-government organisations
  
  

• The deliberate misleading of the pubic through the use of front organisations to achieve ignoble intelligence objectives
  
  

• The abuse of taxpayers money and many excesses

The state intelligence services of the early 1990s comprised three main units: the civilian agency, the National Intelligence Service (NIS), the Security Branch of the South African Police (CIS) and the Division of Military Intelligence (DMI). These services characteristically invaded the privacy of individuals; conducted various forms of surveillance without judicial authorisation; were unaccountable to Parliament; and were involved in political violence, suppression and the manipulation of the domestic political environment. A further important aspect of the apartheid state intelligence services was the level of competition between the agencies for positions of relative influence and the perception that each was encroaching on the others’ brief (Africa 1992a). Furthermore, the NIS, CIS and DMI were not the only structures engaged in intelligence activities with the Department of Foreign Affairs: Escom, the prison services and the Human Sciences Research Council, among others, providing intelligence to the National Intelligence Interpretation Branch of the State Security Council (Africa 1992a).

Owing largely to the highly militarised security environment at the time, the boundaries and functions of the civilian, military and police intelligence and security services became blurred. Consequently, problems in regard to coordination and cooperation arose, and these were complicated by a lack of clearly defined mandates for the intelligence agencies and the creation of alternative intelligence and security structures such as the Civil Cooperation Bureau (CCB) and Vlakplaas1. Furthermore, especially during the Botha administration, the militarised security intelligence services became insulated from judicial and legislative scrutiny and acquired a high degree of autonomy from policy makers (Dombroski 2006).

When former President De Klerk took office in 1989, he undertook a transformation of the intelligence services, which included the establishment of ministerial-level oversight and control of the intelligence sector. This considerable departure from the Botha regime meant that intelligence was no longer under the direct control of the State President and the National Security Council. Furthermore, President De Klerk relied heavily on the NIS, especially in initiating negotiations with the ANC, and the power of the DMI, predominant under Botha, was severely curtailed. Consequently, the civilian intelligence agency began to take responsibility for the majority of domestic political intelligence activities.

The period between 1989 and 1993 in many ways laid the foundation for the massive intelligence reforms that were to take place in the post-1994 era. However, the reforms under the De Klerk government did little to overcome the legacy of state oppression and the heightened role of the state security and intelligence apparatus in maintaining minority rule. Furthermore, the 1990s were characterised by tumultuous domestic upheavals and increasing levels of political violence in South Africa. Little doubt remains that the apartheid era security services were involved in the violence that broke out across the country. The apartheid state intelligence structures have been implicated in the hostel and township violence on the Vaal Triangle and the activities of the Inkatha hit squads that operated in KwaZulu Natal.
The historical antagonism and mistrust between the intelligence community and the population continues to have an impact on public perceptions of intelligence in South Africa. The intelligence services were largely unaccountable and were involved in human rights abuses. Furthermore, the legacy of the state intelligence apparatus is deeply imbued with a high level of secrecy, plausible deniability and a lack of cooperation among agencies.

African National Congress intelligence apparatus

By 1994, the ANC intelligence apparatus included directorates for strategic intelligence analysis; counterintelligence; and military intelligence as part of the activities of Umkhonto we Sizwe (MK), the military arm of the liberation movement. Much information on the functioning of the ANC intelligence branches can be gleaned from the ANC submission to the Truth and Reconciliation Commission, Operations Report: The Department of Intelligence and Security of the African National Congress (1997).

The ANC first established a military intelligence capacity within MK in the 1960s with the primary function of infiltrating trained MK cadres back into apartheid South Africa and selecting targets for armed attacks. Initially, no counterintelligence mandate was given. However, the armed struggle continued to face setbacks, which indicated that the apartheid state was well informed of MK’s plans and had infiltrated the ranks of the exiled liberation movement. The mandate of the Department of Intelligence and Security (DIS) included protecting human and material resources; establishing training camps in Africa; arranging training courses and assuming certain correctional services functions in the training camps; protecting important persons; and screening vetting exiles.

The DIS is reported to have begun to build it strategic intelligence capability from the late 1970s and was able to forewarn the leadership of enemy movements. In the 1980s, the DIS successfully weeding out infiltrators linked to South African and Western intelligence networks in training camps in neighbouring states. A key task was the screening and investigating of comrades and cadres. However, given the broad mandate assigned to the DIS and lack of resources and insufficient training, the reputation of the DIS during the struggle is marred by reports of abuses, especially by its prison services function.

By 1985, the ANC National Executive Committee (NEC) recognised the need to reorganise and improve the functioning of the DIS, with special focus on halting abuses in training camps and the maltreatment of prisoners. The reorganisation was deemed necessary as problems were encountered with unclear and undefined reporting lines, issues of command and control, and cooperation and coordination among the DIS and other MK structures.

An interesting development in the evolution of the ANC intelligence capacity was the creation of a new permanent directorate of the DIS in 1987, which consisted of Joe Nhlanhla, director; Jacob Zuma, deputy director; Sizakele Sigxashe, head of Central Intelligence Evaluation Sector; Simon Makana, administrator; and Tony Mongalo and Daniel Oliphant (heading the Counterintelligence division). This development signalled a new era in the organisation of the ANC intelligence structures along clearly defined functional areas: Intelligence, Counterintelligence and Processing and Security. Furthermore, intelligence became a highly centralised executive-controlled activity with most members of the directorate holding seats on the NEC. In addition, the reorganisation resulted in the separation of intelligence from justice and the tasks of the DIS were confined to investigations.

Transforming the South African intelligence apparatus

One of the most challenging tasks facing the ANC and the Government of National Unity (GNU) in 1994 was the integration and transformation of state security services. Discussions between the NIS and the ANC’s DIS in 1993 set the stage for the integration and intelligence sector reform that officially began in 1994. The principles and guidelines adopted by the new dispensation were largely based on those developed during the ANC Annual Policy Conference of 1992. These principles were further entrenched in the intelligence community through the White Paper on Intelligence and the legislation that was developed.

In terms of the restructuring and design of the new intelligence community, the Sub-Council on Intelligence of the Transitional Executive Council and the GNU legislators studied various international models and compared different organisational structures. One of the predominant concerns was the creation of an intelligence community that could be held to account, as stipulated in the Constitution, by a parliamentary committee and an inspector general (IG), without impeding operational efficiency. As with the Australian, Canadian and British models, executive control ultimately rests with the President and through the Cabinet Committee for Security and Intelligence Affairs with the Ministry for Intelligence Services; the latter was established in 1996 as the centre of intelligence policy making. Also at executive level is the National Security Council (NSC), established in June 2000 and consisting of the President, the deputy president and the Ministers of Safety and Security, Defence, Intelligence, Foreign Affairs, Home Affairs, Treasury and Justice, together with other ministers, if deemed necessary. The NSC is an executive-level coordinating mechanism charged with the development and implementation of national security policy. In addition, interdepartmental coordinating mechanisms have been implemented at director–general (DG) level.

The outcomes of the transformation process include the delineation of intelligence functions by geographic scope, for instance, the creation of the National Intelligence Agency (NIA) for domestic intelligence activities and the South African Secret Service (SASS) for foreign intelligence activities. One needs to note that during the transformation, strategic intelligence capacity was devolved to civilian intelligence structures, which have no powers of arrest or detention. Operational and tactical intelligence remain functions of the state security agencies.

Two further intelligence agencies were therefore defined: Defence Intelligence (DI) within the South African National Defence Force (SANDF) and the Directorate for Crime Intelligence (CI) within the South African Police Service (SAPS). The activities of all the intelligence agencies are coordinated through the National Intelligence Coordinating Committee (NICOC). The Joint Standing Committee on Intelligence (JSCI) conducts parliamentary oversight of the intelligence community.

The focus of this discussion is the system of governance of the intelligence services, and further detail about the structure and functioning of the intelligence community emerges during the course of the document. The post-1994 transformation of the South African intelligence community was comprehensive and fundamental and executive, legislative, judicial and civilian oversight systems and procedures were established. The structure, functions, mandates and system of governance and control were formalised through the National Strategic Intelligence Act 39 of 1994, the National Intelligence Services Oversight Act 40 of 1994 and the Intelligence Services Act 65 of 2002.

Intelligence governance in South Africa

One needs to note that intelligence reform entails more than the organisational restructuring of the intelligence services. The sustainability of intelligence reform and the creation of well-managed, accountable and professional intelligence services that operate in support of national interest (as opposed to personal or party interest) lie in changing the culture of intelligence practitioners and power relations in the larger political environment. As Wilson (2005) notes, the organisational changes have been implemented but the culture and power politics transformations are taking much longer to materialise:

We might only see the benefits of these reforms once a new breed of officers and overseers has grown up in the system and adopted its values, and it might take generational change for the formal structures not to be overwhelmed by the hidden wiring left over from the liberation movement.

The Meiring, Masetlha and Browse Mole scandals indicate that the intelligence community is still fighting to change the culture and power politics of the services.

In trying to evaluate the state of governance of the intelligence sector in South Africa, one needs to look beyond the organisational change and the scandals that are sensationally presented by the media. This is an attempt to produce a holistic and realistic assessment that is cognisant of the realities faced by the public service and security sectors of South Africa, the challenges of transforming a liberation movement into a political party and the legacies of the state security structures. The discussion on governance highlighted several important features of good governance that can be used as benchmarks for the analysis of intelligence governance in South Africa. Therefore, the following key elements have been selected for further analysis:

• Participation in policy making

• Legal mandate of the intelligence structures

• Coordination of activities

• Mechanisms of control

• Balance between secrecy and transparency

Intelligence policy making in South Africa

The most fundamental experience in intelligence policy making in democratic South Africa was gained with the drafting of the White Paper on Intelligence in 1995. The goal of the White Paper has been identified as ‘the creation of an effective, integrated and responsive intelligence machinery that can serve the Constitution and the government of the day, through the provision of relevant, credible and reliable information’ (White Paper on Intelligence 1995: paragraph 1). Furthermore, in terms of the culture of intelligence, the White Paper on Intelligence acknowledges that transforming the intelligence dispensation in South Africa entails more than organisational restructuring but ‘should start with clarifying the philosophy, redefining the mission, focus and priorities of intelligence in order to establish a new culture of intelligence’ (White Paper on Intelligence 1995: paragraph 3.1).

The purposes of intelligence in democratic South Africa as outlined in the White Paper on Intelligence (1995: paragraph 3.2.3) are the following:

• To provide policy-makers timeous, critical and sometimes unique information to warn them of potential risks and dangers
  
  

• To identify opportunities in the international environment, through assessing real or potential competitors’ intentions and capabilities. This competition may involve the political, military, technological, scientific and economic spheres, particularly the field of trade
  
  

• To assist good governance, through providing honest, critical intelligence that highlights the weaknesses and errors of government

The mission of the South African intelligence community, according to the White Paper on Intelligence (1995: paragraph 3.2.4), is to provide evaluated information with the following in mind:

• The safeguarding of the Constitution
  
  

• Upholding the Bill of Rights
  
  

• The promotion of the interrelated elements of security, stability, co-operation and development, both within South Africa and in relation to Southern Africa
  
  

• The achievement of national prosperity whilst making an active contribution to global peace and other globally defined priorities for the well-being of humankind
  
  

• The promotion of South Africa’s ability to face foreign threats and to enhance its competitiveness in a dynamic world

Given that the White Paper on Intelligence is meant to be an overall guiding document, one generally does not expect a high degree of detail. However, as indicated in the above extracts, the White Paper on Intelligence is vague and largely fails to capture the essence of intelligence activities, which is to provide decision makers with credible, relevant information on which to base policy decisions. Furthermore, there is an incongruity between an intelligence community, which serves the government of the day, and an intelligence service, which acts as a watchdog highlighting the weaknesses and errors of the government. Also absent in the White Paper on Intelligence is an acknowledgement of the essential role that the intelligence services play in terms of security vetting and the setting of minimum security standards for state personnel, information and infrastructure.

The White Paper on Intelligence has received criticism as being an empty set of principles that contribute little to the transformation of the intelligence services (Nathan 2007:98). In a comparative analysis of the White Paper on Intelligence and the White Paper on Defence, Nathan (2007:98–99) highlights the following weakness in the process of development and pinpoints deficiencies in the content of the White Paper on Intelligence:

• The White Paper on Intelligence does not progress much beyond principles, values and norms and does not provide sufficient guidance on objectives and strategies and is thus too abstract for implementation.
  
  

• The Intelligence White Paper was prepared by a single drafter with little departmental debate and consequently, there is no sense of ownership of the policy document and principles by the intelligence community.
  
  

• There was a lack of political leadership. At the time there was no ministerial portfolio for intelligence and it fell within the Ministry of Justice. The Deputy Minister for Intelligence was preoccupied with the integration of the various intelligence services and failed to develop an agenda for transformation beyond integration.
  
  

• The White Paper on Intelligence was published without any parliamentary engagement nor any public debate or consultation.
  
  

• At the time civil society was largely silent on intelligence, tacitly viewing it as lying outside the realm of public debate.

Embracing a holistic view of security, the White Paper on Intelligence enunciates current liberal security rhetoric but fails to translate the conceptual understanding of the expanded security paradigm into the roles and functions of the intelligence community in pursuit of a human security agenda. Southall (1992) notes the following: In a deeply divided country such as South Africa, is it very difficult to determine national interest and common good and the danger is that in attempting to counter subversion, the intelligence agencies may become perverted by a narrowly partisan definition of national interest.

Furthermore, while evincing a commitment to participation and a determination to arrive at consensus, the White Paper on Intelligence process was distinctly lacking in consultation with Parliament and civil society. As Africa (1992) notes, when questioned publicly about intelligence matters, the South African government’s standard response has been that it is not in the public interest to discuss such matters. This attitude has prevailed in the South African intelligence environment into the twenty-first century.

A final point on the White Paper on Intelligence needs to be made on the issue of transformation. The sensitive nature of intelligence possibly meant that although massive organisational reforms took place, especially in the structure and mandate of the agencies and the large-scale human resource restructuring and demobilisation of approximately 10 000 intelligence operatives, very few efforts originally focused on changing the political and cultural orientation of the intelligence community.

The priorities of the political leadership at the time focused largely on continuity and integration and on attempts to avoid the potentially catastrophic destabilisation of the transitional state with widespread revelations of the activities of the apartheid and liberation intelligence structures. Furthermore, one should consider that the apartheid intelligence infrastructure inherited by the democratic state would have been a vast, technologically advanced network, which the new democratic government would surely have seen as a valuable asset. Many in the ANC recognised that the apartheid intelligence structures possessed valuable information, assets and sources, especially pertaining to the domestic political situation, and the domestic intelligence structures were largely kept in tact through a mutual agreement between the NIS and the ANC. The primary purpose of this arrangement was to ensure a constant flow of intelligence and a balance between continuity and change (O’Brien 2005:207).

Whereas organisational restructuring is a relatively short-term activity, the culture change has been a long-term one. With the White Paper on Intelligence, a Code of Conduct was developed for intelligence workers. Creating a document of this nature is not common practice in the global intelligence community, and the event marked a concerted effort to instil a changed culture in the practitioners. Over the years, the Code of Conduct has become institutionalised primarily through training programmes. The post-apartheid intelligence services, although dogged by accusations of impropriety, have not faced allegations of human rights abuses. However, allegations have been made about intimidation and about a lack of professionalism, the poor quality of intelligence products and the misuse of position to seek personal or interest group gain. A renewed effort to improve the professionalism of the intelligence community was launched in 2006 and a pilot Civic Education Programme was implemented in 2007 through the South African National Intelligence Academy.

Given the sensitivities surrounding intelligence and the heightened sensitivity in the immediate post-apartheid period because of the role of the state intelligence structures in the maintenance of the regime, the degree of transformation that was brought about is commendable. That the intelligence community has not rested on the laurels of organisational transformation is equally commendable. Through increased public consultation in Parliament and mechanisms such as the Ministerial Review Commission on Intelligence, civil society is now increasingly able to play a significant part in the intelligence debate and contribute to fundamental questions about the role of the intelligence services in democratic South Africa. The role of intelligence in this country should be continuously contested, and regular evaluation is required to ensure that the intelligence services are able to respond to the strategic political realities of the time.

Legal mandate of the South African Intelligence Services

Under the South African Constitution (Act 108 of 1996), the President may ‘establish what intelligence services are required’. Whereas a great deal of detail was accorded to the mandates and functioning of the defence and policing sectors, the Constitution is notable silent on aspects relating to the mandate, structure and functioning of the civilian intelligence dispensation. According to O’Brien (2005:204), the lack of clear definition of South Africa’s intelligence services in the Constitution is indicative of the problems that the constitutional assembly encountered in debating the role of the intelligence services and their placement in the Constitution. The role, mandate and related issues of the intelligence services should have been clearly defined in the Constitution, ‘especially given not only their specialised capabilities but also the fact that ongoing events relating to the post-transition intelligence services have clearly indicated that problems exist in their use by the executive’ (O’Brien 2005:205).

In any state, intelligence agencies are put in place for the purpose of gathering foreign-, domestic- and military-related information as part of their functions in support of national security. Their activities include conducting covert intelligence operations and keeping files on individuals or organisations. Domestically, however, intelligence services run the risk of infringing on civil liberties and citizen rights whenever such powers are put to use without sufficient reason or adequate controls. Therefore, intelligence services generally have fairly circumscribed domestic roles and powers.

In the context of foreign intelligence, the notion of political intelligence is reasonable as it is in the national interest to have information about the political stability and political affairs of neighbours and states of power or interest. Domestically, however, it becomes difficult to separate political intelligence from partisanship and meddling in domestic political processes. Political intelligence is an ill-defined concept, which is probably central to arguments about the activities a domestic intelligence agency may undertake in pursuit of political stability. Broadly, political intelligence may be described as intelligence concerning the foreign and domestic policies of governments and the activities of domestic political movements and actors.

In the NIA’s 2002/2003 annual report, the gathering of political intelligence is recognised as one of the key domains of domestic intelligence work. Political intelligence is defined by the NIA (2003:13) as the monitoring of developments in the political sphere from the perspective of maintaining South Africa’s domestic stability and security. Furthermore,

… typical issues that might attract intelligence attention include political intolerance, inter and intra party conflict of a violent or disruptive nature or, opposition to democratisation. Any instability resulting from transformation in government structures and parastatals, or from social transformation in general, would also attract NIA’s attention. (NIA 2003:13)

The 2003/2004 annual report defines political intelligence as a focus on political dynamics to ensure political stability in order that government goals and objectives can be realised both at economic and at cultural level (NIA 2004:21) without specifying what threats to political stability might entail. Allowing domestic political intelligence to remain prevalent in the national intelligence apparatus makes misuse of intelligence agencies by government or political interest groups and interference in the political life of citizens by intelligence agencies difficult to prevent. As the debate on political intelligence mostly relates to domestic intelligence, one needs to review the legislation that has empowered the NIA to conduct political intelligence operations. The National Strategic Intelligence Act 39 of 1994 (NSIA) defines the functions of the National Intelligence structures such as NICOC, NIA, SASS, DI and CI.

Section 2(1) of the NSIA outlines the functions of the NIA as follows:

• To gather, correlate, evaluate and analyse domestic intelligence in order to identify any threat or potential threat to the security of the Republic or its people and to supply intelligence regarding any such threat to NICOC
  
  

• To fulfil the national counter-intelligence responsibilities and for this purpose to conduct and co-ordinate counter-intelligence and to gather, correlate, evaluate, analyse and interpret information regarding counter-intelligence in order to:
  
  

  • Identify any threat or potential threat to the security of the Republic or its people
    
    

  • Inform the President of any such threat
    
    

  • Supply where necessary intelligence relating to any such threat to the SAPS for the purposes of investigating any offence or alleged offence
    
    

  • Supply intelligence relating to national strategic intelligence to NICOC

Furthermore, the NSIA defines domestic intelligence as ‘Intelligence on any internal activity, factor or development which is detrimental to the national stability of the Republic, as well as, threats or potential threats to the constitutional order of the Republic and the safety and well-being of its people’. There is a notable inconsistency in the NSIA in terms of the interchangeability of the terms security and stability. In the body of the act, intelligence functions are defined in terms of threats to the security of the Republic. In the definitional section, however, domestic intelligence is defined in terms of national stability. This seemingly semantic difference is relevant because stability is a far more reflexive and subjective term than security. Furthermore, threats to stability are far broader than those to security.

A contentious issue in regard to the mandate of the NIA is that of counterintelligence activities. The NSIA (Section 1) defines counterintelligence as

… measures and activities conducted, instituted or taken to impede and to neutralise the effectiveness of foreign or hostile intelligence operations, to protect intelligence and any classified information, to conduct security screening investigations and to counter subversion, treason, sabotage and terrorism aimed at or against personnel, strategic installation or resources of the Republic.

In Section 2(1) of the NSIA, the NIA is charged with the duty to gather, correlate, evaluate, analyse and interpret information about counterintelligence to identify threats or potential threats, inform the executive authority and supply the information to the SAPS and NICOC. In terms of the definition of counterintelligence, however, the NIA is empowered to take measures and actions to counter subversion, treason, sabotage and terrorism. Nonetheless, analysing, evaluating and interpreting information about such threats are far different from being empowered to take action to counter them. The following question needs answering: Without the power of arrest, what activities and measures can the NIA (lawfully) institute to counter such threats?

Interestingly, although the SASS has a counterintelligence mandate outside the Republic, it conducts this function in consultation with the NIA. The NIA is the final authority on counterintelligence matters inside and outside South Africa (Dlomo 2005). Given that allegations have been made against the NIA about a lack of capacity and professionalism and a pursuit of personal interest, statements such as Dlomo’s give rise to concern. The NIA has been primarily responsible for the setting of the Minimum Information Security Standards (MISS). Although difficulties with the implementation of MISS had originally been experienced in all government departments, the Minister for Intelligence Services announced that the appointment of security managers trained and supported by the NIA had brought about a rise in the implementation of MISS from 53 per cent in 2004 to 80 per cent in 2007 (Kasrils 2007). The challenge, however, apart from implementing minimum standards, is keeping up with technological developments and being able to effectively counter the latest electronic intrusion technologies.

Coordination of activities

The coordination of intelligence activities presents a challenge to most states. South Africa experienced this challenge in the pre-1994 dispensations of the ANC and apartheid state. In response to duplication, unhealthy competition, poor coordination and the absence of a collective approach to the conduct and production of strategic intelligence (Dlomo 2005), NICOC was established as part of the organisational restructuring of the intelligence sector.

According to the White Paper on Intelligence (1995: paragraph 6.2) and the NSIA (Section 4), NICOC was established as an interdepartmental coordinating mechanism to ‘co-ordinate the activities of the intelligence community’ and to ‘act as the key link between the intelligence community and policy-makers. NICOC consists of the national coordinator for Intelligence, the directors-general of the NIA and SASS and the heads of crime and defence intelligence units within the SAPS and the South African National Defence Forces (SANDF) respectively. Furthermore, members of other departments can be coopted to NICOC as necessary on a permanent or an ad hoc basis. The directors-general of the Presidency and Foreign Affairs currently participate in NICOC. The coordinator for Intelligence chairs NICOC.

The functions of NICOC, according to the NSIA (1994: Section 4.2), are

 

• To co-ordinate the intelligence supplied by the various agencies and interpret such intelligence for use by the State and Cabinet in order to be able to detect or identify threats and protect and promote national interests
  
  

• To produce and disseminate intelligence that may have an influence on any state policy
  
  

• To co-ordinate the flow of national strategic intelligence between departments
  
  

• To co-ordinate the gathering of intelligence at the request of any department and to evaluate and transmit such intelligence to the department concerned
  
  

• To make recommendations to Cabinet on intelligence priorities

As illustrated by the functions of NICOC, the committee has been given a broad scope of activities. Although the committee has been charged with coordinating intelligence, the law is distinctly vague about what the duty entails and which powers are ascribed to NICOC to fulfil this task. Furthermore, although the term coordinate is not defined in the NSIA, evaluate is defined as ‘the process of determining and assessing whether or not information is possibly correct, probably correct or factually correct’ (NSIA 1994: Section 1). Evaluation is generally a task assigned to intelligence operatives and analysts within the agencies concerned. According to the wording of the NSIA, NICOC is charged with the duty of double-checking and cross-checking the accuracy of intelligence supplied by the agencies before transmitting it to the relevant authority. This has important implications for the human and financial resource capacity of NICOC.

As part of the priority programmes implemented throughout the intelligence community since 2004, NICOC embarked on a drive to build analytical capacity. In 2007, Minister Kasrils announced that NICOC had built such capacity through fostering relationships with civil society experts, establishing an association bringing together analysts from across the services to share best practice, and head-hunting additional specialists (Kasrils 2007). Interaction takes place between civil society and NICOC, and civil society experts have been involved in conflict and situational briefings; in addition, representatives from the intelligence community are regular participants in public seminars on various security themes. The results of building the capacity of NICOC through measures such as these have been complemented by the creation of interdepartmental project teams organised around intelligence priorities such as Sudan, Burundi and the Democratic Republic of the Congo. These project teams incorporate representatives from a range of departments, including Foreign Affairs, Defence, Crime and the Treasury (Kasrils 2007). The impact of these efforts to enhance the capacity of NICOC is evident in the growth in range and number of intelligence products from NICOC, which increased from only 38 in 2005 to 271 in 2006 (Kasrils 2007).

Interestingly, although scandals have shaken the South African intelligence community since 1994, none have negatively impinged upon NICOC. However, the requirement for intelligence products to go through NICOC to the President, Cabinet and other clients has clearly not been enforced. As with the Meiring incident during the Mandela administration and the recent Masetlha e-mail hoax, intelligence agencies with politically sensitive intelligence have on occasion approached the President directly instead of utilising the coordinating mechanism, undermining the ability of a key structure to ensure effective governance and prevent politicised intelligence products (Dlomo 2005).

Members of Cabinet and parliamentarians have raised concern that the intelligence agencies still seem uncoordinated; furthermore, there appears to be a fair amount of duplication in the work of the agencies (Dlomo 2005). Unfortunately, coordination will always be a challenge and duplication cannot be overcome as long as the civilian intelligence community is split into two bodies, the NIA and the SASS, and has two directors-general (Dlomo 2005). The Pikoli Commission raised this issue in 1996. The events of 11 September 2001 and the impact of intelligence failures in the United States of America have caused the international community to reconsider the efficacy of the dual civilian intelligence services model used by many states, including Britain and Australia. Furthermore, given the multifaceted, trans-national and trans-boundary nature of security threats in the modern era, one is increasingly unable to separate domestic and foreign intelligence arenas of activity. NICOC’s trend towards interdepartmental project teams reflects this reality, and the creation of a single national intelligence agency should be considered.

Without a doubt, the coordination of intelligence is one of the most challenging tasks of the intelligence community. The creation of the Finance Intelligence Centre (FIC) within the National Treasury and the Directorate of Special Operations (also known as the Scorpions) under the Ministry of Justice present further challenges for the intelligence sector as neither body is compelled by legislation to coordinate activities with the national intelligence apparatus. FIC’s task of combating money laundering, for example, should be conducted in conjunction or cooperation with the NIA and crime intelligence. Unfortunately, the tendency to create alternative mechanisms for specific priority areas is often the result of the intelligence community’s failure to significantly address issues and creates tension and, possibly, unnecessary competition and rivalry. As a means to overcome duplication and competition, any state agencies involved in the collection and evaluation of security-related information (security broadly defined as in national policy) should be incorporated into the NICOC structures by regulation and/or legislation.

Mechanisms of control

The most basic mechanism of control of the state security apparatus and utilisation of state power in a democracy is the rule of law. As illustrated in the discussion on the mandate of the NIA, legislation sets the boundaries for the scope of activities that may be pursued by the intelligence services. The rule of law is an indispensable and fundamental element of democracy, and intelligence agencies derive their powers and legitimacy through effective legislative provisions. Intelligence agencies are subjected to legislative frameworks that provide the mandate and coordination and control and oversight and accountability guidelines for the intelligence community. The legislation that governs the intelligence services needs to be sensitive to the competing dynamics of secrecy and accountability while engendering robust and effective intelligence processes that are able to contribute effectively and positively to policy formulation and decision making. The legal framework grounds the work of intelligence agencies within a system of legal controls and outlines the principles that govern this sensitive area of security activity. However, apart from the legal mandate, compliance by the intelligence services with the Constitution and the rule of law is only partly connected to the laws in existence. Any chain of the intelligence services could misuse its mandate, and the strength of the legislative sanctions lies in the oversight and holding to account of the intelligence bodies by the various levels of authority.

The three basic concerns in the design of oversight procedures are the need to establish mechanisms to prevent political abuse while providing for effective governance; upholding the rule of law; and ensuring the proportionate use of exceptional powers in order to protect civil rights (Leigh 2005:5). These concerns may be addressed through a combination of mechanisms and levels of control, be they executive, legislative, judicial or civilian. The primary objective of the intelligence oversight system is to ensure public accountability for the decisions and actions of the intelligence agencies (Leigh 2005:7). The key questions when considering oversight are the following: To whom should the agencies be accountable? What for? When? The key in considering oversight of intelligence is not that the public should be aware of all intelligence operatives and operations but that along the line, during the intelligence processes and other public service processes such as procurement and recruitment, the actors should be held to account for the public good.

Executive control of the intelligence services

The terms control and oversight are often used interchangeably. A distinction can, however, be made between the control exercised at executive and administrative level and the oversight exercised in Parliament. Parliamentary oversight is, in fact, an ex post facto process as it is concerned with reviewing the activities of the intelligence bodies. Therefore, control of the intelligence services, in terms of actual management and supervision, occurs largely at the executive and administrative levels.

Executive-level control tends to concentrate on efficacy issues such as the effectiveness of the service in fulfilling its tasks and functions, its accuracy in identifying threats, its ability to provide sound analyses and the adequacy of its capabilities (Caparini 2002b). The main challenge in confronting executive control of intelligence is the principle of ‘plausible denial’, which is useful for policy makers to deny knowledge and/or authorisation of sensitive or covert activities. Plausible denial is based on the ability of the executive to pronounce with some plausibility that activities were carried out by their subordinates without their knowledge or approval. This practice works against the principle of accountability and insulates decision makers from the consequences of controversial intelligence operations. Furthermore, it reinforces the view that the scope and realm of intelligence and counterintelligence activities have no limits, undermining any semblance of intelligence agencies’ serving national interest and being responsive to the needs of the people, and seemingly sanctions the heads of the organisations to conduct sensitive and controversial operations without due regard.

In terms of the executive control of intelligence services, the minister should be empowered by national legislation to take responsibility for formulating policy; to receive reports from the agencies; and to approve matters of political sensitivity or undertakings that affect fundamental rights (Born & Leigh 2005:58). The minister can reliably be called to account by Parliament for the actions of the intelligence agencies only when he or she has real powers of control and adequate information about actions taken in his or her name. As Born and Leigh (2005:57) explain,

Legislation should contain clear arrangements for political direction and, in the case of internal agencies, political independence, to ensure that matters of policy are determined by politicians accountable to the public. It is preferable that various mechanisms be explicit in legislation and be backed up by appropriate legal duties … [A] legal framework in which the respective powers and responsibilities are clear may of itself help to deter abuses and encourage a responsive and frank working relationship.

Intelligence services should be accountable to the responsible minister and, in turn, the minister should exercise control from the government, determining the budget and providing guidelines for the functioning and priorities of the services. In the South African context, according to Chapter 11 (209.2) of the Constitution, the President must appoint a member of the Cabinet to assume political responsibility for the control and direction of the intelligence services. Furthermore, the National Strategic Intelligence Act 29 of 1994 (Section 5 A.1) empowers the Minister of Intelligence Services to ‘do everything necessary for the efficient functioning, control and supervision of the coordination of intelligence supplied by the National Intelligence Structures’. Additionally, Section 6 of the aforementioned legislation empowers the minister to make regulations, in consultation with the JSCI, on matters such as intelligence coordination, production and dissemination of intelligence and coordination of counterintelligence.

The legislation does not, however, clearly define the role of the minister in terms of the conduct of politically sensitive intelligence operations or with regard to the authorisation of intrusive surveillance of South African citizens. According to Section 5(A) of the National Strategic Intelligence Act 29 of 1994, the minister may, after consultation with the JSCI, make regulations regarding

• Protection of information and intelligence
  
  

• Carrying out of security screening investigations
  
  

• Co-ordination of intelligence as an activity
  
  

• Production and dissemination of intelligence
  
  

• Co-ordination of counter-intelligence by NIA
  
  

• Co-ordination of crime intelligence
  
  

• Execution of any other matter necessary for the effective administration of this Act

Although the legislation provides the minister with sufficient powers, a critical lack of specificity relating to the exercise of executive powers in terms of domestic intelligence of a politically sensitive nature is evident.

The listed items relating to matters on which the minister may make regulations is a product of the context in which the legislation was developed and serves as an acknowledgement of the sensitivities involved in legislating control of intelligence in a transitional state. The National Strategic Intelligence Act 29 of 1994 is broad enough to empower executive control sufficiently but is not specific enough to avoid plausible denial.

In terms of the executive control of intelligence services, one area demands closer attention, and it has been highlighted by the recent dismissal of Billy Masetlha from the position as DG of the NIA. Section 209(2) of the Constitution establishes that the President as head of the national executive must appoint someone as head of each intelligence service. The Intelligence Services Act 65 of 2002 regulates the establishment, administration and control of the NIA and SASS and reaffirms the constitutional requirement that the President must appoint a DG who is head and accounting officer for each of the civilian intelligence services (Section 3.3.a and b).

The following table compares selected international practice in terms of the regulation of the appointment or dismissal of directors-general, the legal standard and best practice as outlined in the Born and Leigh (2005:34–36) document and the South African example.

 

 

Table 1: Regulation of the appointment or dismissal of directors-general

As part of the public service in South Africa, the employ of directors-general for the intelligence agencies is bound by the conditions set out in the Public Service Act 103 of 1994 (PSA). Accordingly, the PSA (3B.1.a) echoes the Constitution in that the President is the executive authority tasked with the appointment of the heads of the intelligence agencies. Appointments are to be made with due regard to equality and other democratic values and principles enshrined in the Constitution (PSA 11.1).

The power to terminate employment also rests with the President (PSA 11.3) but, unlike the rest of the public service, intelligence agencies are not governed by the conditions of termination as outlined in the PSA, such as ill-health, incapacity, misconduct, misrepresentation or security risk. The failure to clearly establish the conditions for termination of service of heads of intelligence agencies is a highly contentious issue and resulted in former DG of the NIA Billy Masetlha’s challenging the constitutionality of his dismissal by President Mbeki in 2006 through judicial processes in 2007.

A further mechanism to avoid any misrepresentations in the appointment or dismissal of directors-general for either of the intelligence services is to utilise parliamentary scrutiny, as in the Australian example above. Currently, no legal requirement in terms of either the Constitution or the PSA entails the involvement of Parliament in the appointment of the directors-general of the intelligence services. Consulting with Parliament or the opposition in such an exercise is relevant: Through consensus-building initiatives, national ownership of the appointment is encouraged; it takes on a national character and removes the perception of partisanship or party favour from the appointment.

Legislative oversight of the intelligence services: the joint standing committee on intelligence

The establishment of a multiparty parliamentary committee to execute legislative oversight of the intelligence domain is a definitive feature of the post-apartheid South African intelligence dispensation. The JSCI, established by the Intelligence Services Oversight Act 40 of 1994, is empowered by the act to fulfil, inter alia, the following functions (Intelligence Services Oversight Act 40 of 1994: Section 3):

• To obtain an audit report on the financial statements of the intelligence services from the Auditor‑General
  
  

• To obtain a report from the Evaluations Committee on the secret projects reviewed and evaluated by the Evaluations Committee
  
  

• To obtain a report regarding the functions performed by the judge designated to authorise intrusive methods of investigation
  
  

• To consider, initiate and make recommendations on all legislation pertaining to the intelligence services
  
  

• To review and make recommendations regarding interdepartmental cooperation and the rationalisation and demarcation of functions relating to intelligence and counterintelligence
  
  

• To order investigations into complaints from the public
  
  

• To hold hearings and subpoena witnesses on matters relating to intelligence and national security, including administration and financial expenditure

Making intelligence accountable to Parliament is a high point in the democratic evolution of South Africa. In practice, however, its effective implementation necessarily depends on the vigour and vigilance of the parliamentarians concerned (Southall 1992). Furthermore, the attitude of t