Boss, the old apartheid Bureau of State Security, is back, says Laurie Nathan, director of the Centre for Mediation in Africa. A process of ‘Stasi-fication’ is underway, claims DA MP David Maynier. What they are referring to is the proposed Intelligence General Laws Amendment Bill, the latest assault by the executive through the legislature on the democratic freedom of all South Africans, rich and poor.
Alarmist? Maybe. But one should make no apology for asking a few hard questions when dealing with proposals that affect our fundamental rights.
For now let’s dub it the “Stasi Bill”, because it brings into existence an organisation with the same name as the one that existed in East Germany, and it legalises broad powers of interception and surveillance of our telephone conversations, email, and internet communications without a warrant.
The Stasi Bill will bring the Secret Service, National Intelligence Agency, the Office of Interception Services among several others – under one Big Brother bureau. In 2009, this single department, the State Security Agency, was established by Presidential Proclamation (probably unlawfully).
As I wrote here a month ago, it is damaging that the debate around the Secrecy Bill has become couched in the public mind as a battle between the media and a majority government. It is much more than that.
The Secrecy Bill and the Stasi Bill form part of the same revision process ordered by the president and pushed by the intelligence community. The express purpose of the Secrecy Bill is to make for iron-clad classification of the activities of the State Security Agency. Together they will create a security state within the state.
These development need to be seen in context.
Jacob Zuma was for years head of intelligence in the ANC. We must assume he knows what he wants out of this process. His closest confidants have been spooks in one guise or another: Mac Maharaj, Moe Shaik et al.
Zuma has been the target of attempts to abuse the intelligence services for political gain (the infamous Browse Mole Report, the hoax emails, the Zuma spy tapes, Billy Masethle’s firing etcetera).
Subsequently, Zuma himself has been accused (by Athol Trollip of the DA) of using the intelligence services for political surveillance.
Our security establishment is certainly populated with colourful and shady figures. In 2003 there was the so-called sensational “Bheki Jacobs” dossier (it led to his arrest). That dossier would have had us believe ‘Operation Vula’ was still going and that Mbeki would be deposed and replaced with Jacob Zuma and his co-conspirator Mac Maharaj. Clearly, as time has shown, this was nonsense.
Conflicts within the intelligence services arising from different political agendas are therefore an irrefutable reality. Amalgamation will not solve that problem; all it means is there is to be just one agenda, and the man in charge will set that agenda.
After the horror show of apartheid our state intelligence community was “reformed”. But recidivism among spooks is high. Do our intelligence operatives finally embrace the spirit of the Constitution? Has our President for that matter – with his very different intelligence roots – embraced it?
Both the apartheid securocrats and the intelligence agents of the liberation movement operated in a highly secretive ethos very different from the democratic intelligence service we now wish to establish.
It is discouraging then when senior politicians have this nasty habit of make-believe, seeing “bloody agents” and “foreign spies” among civil society; while our officials are two-thirds of the time unable to tell state from party. The ruling party would do well to humbly remind itself of its many intelligence failures historically, and its overzealous internal security department that still has things to answer for.
What will stop operatives interpreting their mandate as they see fit? When accountability is so low in almost every government department, how can we be assured state security will be an exception?
Times have definitely changed. Our Ministry of State Security no longer exists to strike fear into the hearts of the public. It even has a Facebook page (‘Liked’ by only 50 people) and a Twitter account (you can follow their rather wry interactions with Maynier). This is to be encouraged. A new democratic culture of intelligence has still to take root. But the Stasi and Secrecy Bills could strangle that process.
That our intelligence service has in the past decade leaked like a sieve and is not widely considered to be very effective is a real concern if we accept that our national security is under threat. But what is the threat? Is it Tibetan separatists? Industrial spy rings? Crime syndicates? The Landless People’s Movement? Political dissent?
Or is it – to use that dreadfully vague, ideologically loaded word from our past and the USA’s present (which in my view we should not have imported into our legislation) – “terrorists”?
You would know if NIP, the list of National Intelligence Priorities approved annually by Cabinet, wasn’t classified.
A member of the parliamentary Joint Standing Committee on Intelligence (JSCI) murmured darkly to me that there are malevolent forces at work in the Republic. Listening to him you would have thought the JSCI were the ‘Men in Black’ allowing us lowly citizens to happily get on with our lives oblivious to the flying saucers invading from outer space.
If such threats exist, what evidence is there? Are these clear and present dangers or just the amorphous imaginings of securocrats? The government must take us into its confidence. It should keep us informed. Even the CIA manages that without jeopardising their operations.
Are these two bills intended to bring our intelligence agencies to proper order, or is it about bringing them to political heel? What does “protecting the state” mean when politicians and state bureaucrats do and can use state power to serve their interests against their opposition or rival factions?
Do these bills promote a new intelligence culture or are we backsliding? Constitutional Law Professor Pierre de Vos points to the fact that the bills ignore some of the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, and do not take sufficient cognisance of the recommendations of the “Matthews Commission” formed under former intelligence minister Ronnie Kasrils. The latter found that our intelligence services often do not obey the law, and that they repeatedly breach the constraints and guidance of the Constitution.
Then there is the security budget. It too is classified and that is no small matter. It was precisely this kind of classified funding that allowed the most egregious (and illegal even under apartheid law) violations to happen. Both the Treasury and the Auditor-General finds it hard to see how classification is justified.
The only ostensible oversight is from the JSCI’s perusal. And those minutes too are classified.
In a living democracy each and every secret should be robustly justified. Are we instead setting off down the same road of current international bad practice that we witness happening in Western democracies around the world? Why should we think South African securocrats would behave any less badly given such laws?
That our state security is on a roll was in evidence this week at the arrangements around the State of the Nation address in parliament. Even pedestrians were banned. We the people we not invited to the opening of our parliament. Prince Buthelezi, in one of his moments of clarity, complained that the “extreme”, “unnecessarily tight security measures” was proof enough that “the securocrats have taken over”. There were even snipers on the roofs.
Such is the nature of any security bureaucracy once set in motion; it develops a life of its own, ever more perfected, increasingly impregnable and secret. As its methods are refined and its abilities become more exhaustive, it transforms into something quite different from what was initially envisaged. As perceived or actual enemies are uncovered, it expands its definition of what constitutes a threat. Success breeds suspicion. In the end, comes a mindless tyranny over which even its creators lose control – Vlakplaas, Guatanamo Bay, the Stasi.
Far-fetched? We have already deported at least one individual to extraordinary rendition. Do our agencies see international co-operation as more important than protecting our constitutional rights?
Paranoid? Of course, but I’d be less paranoid if I knew this legislation was more tightly drafted in line with the Johannesburg Principles and the 2008 Ministerial Review Commission on Intelligence (for openers); if I knew it was free of executive agendas.
We must hope our Constitutional Court will help us find the balance between democracy and secrecy. But there is enough here to unsettle one, not least the slippage between law and practice. When it comes to the activities of a secret police, as with the classification of state information, society needs to be extremely vigilant and everything that can be done to counter potential abuse now or in a future dispensation should be done.
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