A Friendlier Big Brother?
The Natal Witness
In February, Minister of Intelligence Lindiwe Sisulu disclosed to the media that she had appointed a commission of inquiry into intelligence-gathering by non-state structures and individuals. To those who have followed her performance as intelligence minister, this came as no surprise.
She has established a pattern of relatively high visibility and public declaration of work being undertaken by the National Intelligence Agency (NIA) - from investigating information leaks at Durban Metro to reviewing the classification of apartheid-era files, from securing the Truth and Reconciliation Commission (TRC) archive to countering corruption in the Department of Home Affairs. Last year, NIA even ran media commercials reminding the South African public of the agency's role in ensuring "normality" for society.
In contrast, public knowledge of the workings of the South African Secret Service, Military Intelligence and Police Crime Intelligence remains slight. More striking is the contrast with NIA's immediate apartheid forerunner, the National Intelligence Service (NIS), which was a shadowy outfit renowned for keeping its cards close to its chest and shunning the media.
What are we to make of this "coming out" by the NIA? And is the apparent expansion of its role something to be applauded? The answers to these questions, I would suggest, should emerge from analysis of the broader post-1994 endeavour to transform South Africa's state intelligence services.
Even the most cynical commentator would have to concede that there have been positive developments in this transformation. The appointment of a cabinet member responsible for intelligence has fostered greater political accountability. The establishment of the watchdog office of the Intelligence Inspector-General is welcome, as is a wider reporting of intelligence activities to Parliament.
Thorough reviews of policy and procedure driven by the NIA have taken place or are under way. For instance, we know that the deeply problematic Protection of Information Act (1982) and subordinate Minimum Information Security Standard are under review. Last year, Sisulu appointed both the Classification and Declassification Review Committee (CDRC), mandated to make recommendations on the declassification of apartheid-era files, and the commission of inquiry announced in February. Both of these structures have incorporated participation by experts from outside the state.
Also encouraging is the evidence of the NIA's responsiveness to public debate and pressure. We have seen agency officials participating in conferences, workshops and other professional gatherings. In 2002, we saw the NIA backing down on certain security requirements for the presidential press corps. In 2003, a combination of media attention and litigation by the South African History Archive (Saha) saw the ministry for intelligence giving up 34 boxes of so-called "sensitive" TRC records to the National Archives.
So, there is considerable evidence of a NIA far more transparent than its apartheid forerunners, more willing to engage in public discourse around its work, and involved in a far wider range of "routine" activities. Nevertheless, I would argue, there remains cause for concern and a need for constant vigilance by the public.
Firstly, levels of accountability are not what they should be. Reporting to Parliament, while more extensive than in the pre-1994 era, is not adequate to enable either public representatives or civil society to subject the NIA to the kind of accounting which democracy demands. So, when NIA media commercials, for instance, claim success for the agency in ending the "taxi wars" and the Cape Town bombing terror, there is no way of assessing whether such claims have any validity. It might as well be claiming to have ended the drought.
We also still need convincing that the office of the Inspector-General is anything more than window-dressing. Substantive evidence of a meaningful role for this office is conspicuous by its absence. And the many reviews outlined above have yet to deliver shifts in policy. The CDRC process, for instance, initially designed to report to the minister in June 2003, has still not resulted in a publicly announced set of outcomes.
Secondly, post-1994 NIA performance is characterised by a litany of interventions which raise questions about both the depth of transformation and the values informing it. Let me cite just a few examples. In 1996, the TRC caught NIA systematically destroying records of the former bantustan intelligence agencies in defiance of President Mandela's 1995 moratorium on the destruction of any state records for the duration of the TRC's work.
The role played by both the NIA and the Intelligence Ministry in relation to the 34 boxes of "sensitive" TRC records bears all the hallmarks of the apartheid era. Documents filed in the High Court recently by the Department of Justice reveal the extent to which the agency blocked that department's attempts to fulfil its legal obligations in relation to the records. One of the documents quotes the Minister of Intelligence as saying: "We can only approve that the courts can come and inspect the documents. Once they are delivered to the courts we have no jurisdiction over their safety." This is no less than an expression of disregard for the rule of law. And further questions are raised by the facts that one of the files (titled "List of informers") is missing and that Saha's court action has already forced the majority of the files into the public domain. So much for them all being highly "sensitive".
Numerous commentators have expressed concern at the increased surveillance powers accorded the intelligence services by the Interception of Communications Act. Already, there is evidence of human rights activists, pursuing constitutionally protected activities, being placed under state surveillance. And, in 2003, the Hefer Commission of inquiry was effectively crippled by the refusal of the intelligence services to co-operate with its investigations.
We must, then, be cautious in our assessment of the transformation of South Africa's intelligence services. Until a surface transparency is married to meaningful accountability mechanisms and a better track-record in support of democratic objectives, South Africans should be vigilant. Indeed, vigilance in relation to what are inherently shadowy public services will always be essential. A failure here will raise the spectre of a rosy-hued, but ever bigger, big brother.
# Verne Harris is Director of the South African History Archive.
With acknowledgements to Verne Harris and The Natal Witness.