The State Security Agency has violated the Constitution and threatened to become a state-within-a-state.
The high-level review panel report into the State Security Agency (SSA) makes for scary reading. The report not only details how the SSA violated the constitution and our laws, but also what the organisation had planned to become; this last part in particular should give all of us sleepless nights.
At about page 34 of the report, the panel discusses SSA’s structure; of particular importance is the Strategic Development Plan (Plan), which was meant to define the organisation’s structure and role up to the year 2035. The SDP was introduced in 2017 and the organisation immediately took steps to change its structure in line with the SDP.
The Plan continued a trend in which the intelligence services became increasingly centralised and top heavy, going from 1 Director-General (DG), 1 Deputy Director-General(DDG) and 7 Chief Directors(CD) in 1994 to 3 DG’s, 7 DDG’s and 30 CD’s in 2016. The Plan also envisioned a scope for the SSA that would have seen it expand into every government department at every level and into every State Owned Enterprise. The report notes that the proposed scope of the SSA would be much greater than that of the old NIS (National Intelligence Service), which was facing significant domestic and foreign threats.
The most significant change enabling this increased scope was the proposed addition of a new programme, namely, Strategic Analysis and Management. The report quotes the Plan:
“Strategic Risk Management is a key function that indicate [sic] the potential pitfalls in delivery. Analysing and tracking strategic risk management in OoS (Organs of State) is a key indicator to potential threats. As a risk management capacity of government, SSA will be tracking and analysing strategic risks in all OoS with the view of projecting their impact on national security. Monitoring and Tracking of Strategic Risks will be undertaken at a national, provincial and local government levels. In addition this process will also be undertaken for State Owned Companies thus the function will be organised into these categories allowing for specialisation.”
In addition the SSA was to house, as well as have access to, all government department databases. Given the role already played by government at all levels in the lives of South Africans, this would have meant a serious and potentially irreversible loss of the right to privacy.
It gets worse. The SDP also proposed an SSA “whose operations are completely covert” and to use these covert operations to conduct influencing operations as well as generating revenues. This would have created an SSA accountable to no one, least of all to parliament.
I do not believe it is an exaggeration to say South Africa was on its way to becoming a totalitarian state, with government security agencies having access to your data and conducting operations to influence your political leanings, opinions, thoughts etc. All without judicial or legislative oversight. Former security minister David Mahlobo approved this draconian plan.
It is worth reflecting further on the consequences of the Plan’s proposals. One of these would be the undermining of democracy itself by placing spies in provincial and municipal governments without the people running these governments being aware of this. Some provincial and municipal governments would be controlled by opposition parties. The same is possible for the judiciary and parliament; judges and parliamentarians would have spies in their offices without knowing – this all in the name of ‘Strategic Risk Management’. It is quite telling that such sweeping changes were never subjected to parliamentary approval, even given the ruling party’s majority. The Plan depended on being kept from public scrutiny otherwise it would likely have been rejected.
The Plan also recommended an interim structure that was to be implemented in the 2017/18 financial year. To her credit, Minister Dipuo Letsatsi-Duba has halted the progress of the Plan and the SSA has had reverted to the pre-Plan structure.
The report sets itself the task of answering a simple question: What went wrong at SSA?. It seems clear to me that part of the answer must include an over-concentration of power in the executive as well as insufficient parliamentary oversight over the executive. The lack of legislative oversight was one of the main problems highlighted by the Constitutional Court’s judgement on Nkandla as well.
The last section of the report is the oversight section; and as I expected that part of the recommendations include a greater role for the parliamentary Joint Standing Committee on Intelligence (JSCI), which currently has access to less information than the Inspector General of Intelligence, an executive appointee albeit with parliamentary approval. The JSCI does not have access to the “identity of any person or body engaged in intelligence or counter-intelligence work” nor to “any information that was provided to a service under express or implied assurances of confidentiality”.
This means that the executive can hide important information on intelligence operations from parliament, thus undermining the latter’s oversight role. In addition, the report notes how the JSCI was paralysed by the same party political and factional interests that were operating within the SSA. Strangely enough, this is not addressed in the recommendations made by the panel. It is possible that a member of the official opposition would be given the power to launch investigations and subpoena documents. This would ensure that intelligence oversight benefits from the principle of adversarial government.
If we allow the concentration of power in the executive to continue, we run the real risk of a government that slowly but surely takes away our rights due to insufficient oversight. This is a certain road to dictatorship. We should learn the right lessons from the behaviour of the intelligence services in the past, not just over the past ten years, but also during apartheid.
Mpiyakhe Dhlamini is a policy fellow at the IRR. He is also a policy researcher at the Free Market Foundation.
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