The announced investigation, to be conducted in terms of the Intelligence Services Oversight Act, follows in the wake of media reports on a variety of alleged activities – ranging from misconduct to possibly unlawful operations – by members of the SSA. These activities also appear to have allegedly included the subversion of other organs of state, including the National Prosecuting Authority (NPA) and the South African Revenue Service (SARS).
In terms of section 198 of the Constitution, national security and all activities of the intelligence services, must be pursued in compliance with the law, including International Law. In addition, security services must, in terms of section 199, “act, and must teach and require their members to act, in accordance with the Constitution and the law” and may not in the performance of their functions prejudice or further any political party interests.
Section 198 also determines that national security and the security services are subject to the authority of Parliament and the national executive. As such, the Minister has political and executive responsibility for control and direction of the SSA. It is hence of greatest importance for the Minister, through the IGI, to establish the facts behind the allegations, but also to determine whether and at which level there has been a breakdown in control and direction of the unit or units in question. It is equally important that Parliament’s multi-party Joint Standing Committee on Intelligence (the JCSI) institutes its own investigation and hearings in line with its constitutional duty to maintain oversight of the SSA.
The JSCI, unfortunately, conducts all of its business in secret. It does not release any reports to the public (not even on whether or not it held required meetings) and never holds public hearings in relation to the state of intelligence and intelligence oversight in South Africa. The public has thus little choice but to hope and trust that their elected representatives are indeed doing their work and doing it effectively in the interests of the people of South Africa. Given the fact that the JSCI has not even been tabling its required annual reports in the National Assembly, the public has a right to be concerned about the state of intelligence, but also oversight of intelligence structures and their activities.
It may be high time that the JSCI amends its work methods in relation to its engagement with the public. It may also be time to consider whether, in the interest of improved accountability, it will not be more appropriate for the JSCI – like Parliament’s Standing Committee on Public Accounts (SCOPA) – to be chaired by a member of one of the smaller opposition political parties.
Intelligence structures, their activities and their many professional and dedicated members fulfil a crucial function in the strategic policy making process, proactive national security and international relations initiatives and operational security matters. Secrecy is a necessity for these services and their members to operate successfully. However, due to such secrecy required by operational necessity, these structures and their members have the ability to violate constitutional values, rights and principles in an unjustifiable and illegal manner without anyone ever realising it – or having only realized it after democratic and constitutional values and principles have been violated. It is therefore of the utmost importance that intelligence structures and activities remain subject to the constitutional values of accountability, responsiveness and openness to the extent that effective control and oversight can ensure the integrity of these structures and the trust of the people of South Africa on whose behalf the intelligence services are supposed to conduct their business.
By Adv Johan Kruger, Director: Centre for Constitutional Rights