By Dale T. McKinley · 6 Mar 2012
If there is one thing that the ruling ANC and the government it runs hates more than anything else it is the charge that they are increasingly acting like the old National Party and its apartheid state; more specifically, that they are rapidly embracing the very securitisation of the state that the forces of liberation (including the ANC its SACP ally) fought so hard to resist and consign to the dustbin of apartheid history.
Unfortunately but somewhat predictably, the way in which the ANC and the SACP have chosen to respond, regardless of the political positionality and ideological orientation of those making the charge, is to adopt an all-encompassing dismissiveness that seeks to pejoratively portray such criticism as the rantings of a disgruntled, elitist minority. In the words of ANC and SACP leader General Secretary Jeremy Cronin, such people and organisations constitute an “anti-majoritarian constitutionalism … an anti-majoritarian liberalism”.
This kind of low-brow caricaturing no doubt plays well amongst the ANC and SACP intellectual and party apparatchiks who continue to believe, like their historical counterparts, that they are the sole ‘vanguard of the people’ (as they peer through the tinted windows of their luxury vehicles). However, the fact is that a majority of ordinary people across the country – no more so than within the very poverty-stricken communities that the ANC and SACP claim as their perpetual own - have always been concerned about the democratic content and character of the state.
One of the most recent confirmations of this could clearly be seen at the various public hearings on the Protection of State Information Bill (the Secrecy Bill) that took place around the country earlier this year. Despite the attempt to pack the hearings with ANC councillors and bussed-in supporters, large numbers of community residents and a variety of civil society organisations raised grave concerns about a Bill that would, amongst other things, give tremendous powers to the Ministry of State Security and its State Security Agency to manage and control information.
Yet, rather than step back, listen and meaningfully engage, what we are witnessing is the ANC and government not only hurtling towards the final passage of the Secrecy Bill but also rapidly moving forward with a new law - the General Intelligence Laws Amendment Bill (‘Intelligence Bill’ - gazetted in November 2011) that would give the now dominant securocrats in the state even more power. The rush to the finish line is palpable, with the deadline for public submissions on the ‘Intelligence Bill’ set for 16th March and the entire Parliamentary process scheduled to be wrapped up by 8th June.
Last year in his Budget Vote speech to Parliament, Minister Cwele confidently told South Africa and the world that, ‘…our nation is prospering, stable and secure … there are no discernible threats to our constitutional order’. Two weeks ago, in his briefing to the National Assembly’s ad-hoc Committee (especially set up to process the ‘Intelligence Bill’), he assured us that, ‘the intelligence service was a national asset and not a party-political tool’ and that there was no such thing as ‘political intelligence’ or ‘power struggles’ within the intelligence structures. The simple question to ask in response is if indeed this is all true then why the need to introduce laws, large parts of which will give virtually unchecked power to state intelligence structures and throw a thick veil of secrecy over their activities?
Ostensibly ‘technical’ in nature, the ‘Intelligence Bill’ seeks, in the words of the Minister of State Security Siyabonga Cwele, to ‘consolidate and transform the country’s intelligence structures’ by centralising all existing structures into the State Security Agency (SSA), itself only created by Presidential proclamation in 2009. As such it ‘disestablishes’ the National Intelligence Agency (NIA), the South African Security Service (SASS), the South African National Academy of Intelligence (SANAI) and the electronic Communications Security (Pty) Ltd (COMSEC) and proposes a long list of amendments to key existing intelligence-related legislation to bring them in line with the Bill.
It is not only the centralisation of all intelligence structures but also the timing of the entire legislative process that raises a plethora of serious concerns. By merging domestic and foreign intelligence under the ‘one-stop’ SSA, the Bill raises the unenviable spectre of the all-powerful apartheid-era Bureau of State Security (BOSS) and not without good reason. This merger goes directly against the ANC’s only existent intelligence policy – the 1995 White Paper on Intelligence - which expressly stated that the division of the domestic and foreign sections would “promote greater focusing, effectiveness, professionalism and expertise in the specialised fields of domestic and foreign intelligence”.
Incredibly, the White Paper – seventeen years after its initial release – is scheduled for public comment and governmental review only later this year, with Minister Cwele telling the National Assembly’s ad-hoc Committee (especially set up to process the Bill) in late February that a new Intelligence policy would be given effect by the proposed State Security Bill in 2014; so much for publicly engaged macro-policy informing the present ‘technical’ and ‘administrative’ law.
The Bill also incorporates into the all powerful SSA, the shadowy National Communications Centre (NCC) which carries out “bulk interception” of electronic communications. Crucially, the Bill allows the tapping of ‘foreign signals’ without a warrant from a judge (as prescribed by the Regulation of Interception of Communications and Provision of Communication-related Information Act for domestic eavesdropping). As a result, we have a scenario in which the NCC – whose remit includes communication that ‘emanates from outside the borders of the republic, or passes through or ends in the republic’ – has the legal leeway to tap into any such related emails as well as voice-over-internet and social media messages involving millions of South African residents and hundreds of civil society organisations.
Other clauses in the Bill will see the role of the previously somewhat ‘independent’ National Intelligence Coordinating Committee (NICOC) being effectively rendered meaningless. Besides the Bill stating that the SSA will be ‘under no legal obligation to submit raw information or source reports’ to NICOC, the ‘post of Coordinator for Intelligence will be abolished and the Minister shall appoint the head of NICOC, who shall, subject to the directions and supervision of the Minister, manage and administer the functions of NICOC’. Further, NICOC will ‘only be tasked to supply intelligence by the President, Cabinet, a Cabinet security cluster and the Minister and any such tasking not being from the Minister shall be directed to the Minister’.
When it comes to vetting/security clearance of individuals who might be interested in working for the public sector, the Bill allows the sole Director-General of the SSA, ‘after evaluating the information gathered during the vetting investigation’, to delegate to ‘other members’ of the SSA the authority ‘to issue, degrade, withdraw or refuse to grant a security clearance’. And if the SSA so desires, it can also request any other department of the state, to ‘establish vetting field work units (to) assist the Agency to gather information relating to, criminal records, financial records, personal information and any other information which is relevant to determine the security clearance of a person’.
If anyone needed added evidence that this Bill will effectively give carte blanche power to the securocrats to act as Big Brother, then there’s the clause which states that, ‘notwithstanding any law to the contrary, no department of State or statutory body shall withhold information in its possession or under its control from the Agency [SSA] when such information is reasonably required for any investigation in terms of its mandate regarding domestic, foreign and counter-intelligence’. Here’s the kicker though; the Bill includes in the definition of ‘counter-intelligence’ those ‘means measures and activities conducted, instituted or taken … to protect intelligence and any classified information, to conduct vetting investigations and to counter subversion, sedition, [and] treason …’
When combined with the clause in the Secrecy Bill which makes the disclosure of any matter relating to the work of the SSA a crime punishable by up to 15 years in jail, the clear picture that emerges is one of a ‘superpower’ state security establishment answering largely to itself and its political masters. Sound familiar???
**Editor's Note: This article has been amended. It originally stated March 16th as the deadline for public submissions on the Intelligence Bill. This deadline was extended to April 13th, and the article accordingly amended. On the 10th of March, we changed the submission date back to 16th March because the National Assembly's ad-hoc committee dealing with the Intelligence Bill met a day earlier and reversed their previous decision to extend the deadline for public submission to 13th April.
Hi-jacking the State
The temptation to hi-jack the State for the benefit of a smaller group within the State is always present amongst people involved in politics. That is unfortunately just a human reality. The people desirous of pulling off such a hi-jack will of course never make their intentions clear but will cover them instead with all sorts of rationalisations and apparently logical justifications. The South African public should not be hood-winked especially after our years under Apartheid.