Parliament plays smoke-and-mirror games – and fails its intelligence oversight duty

22 Apr 2021

With the Inspector-General for Intelligence, Setlhomamaru Dintwe, telling the State Capture Commission how three security ministers pushed for his suspension, the silence of Parliament’s Joint Standing Committee on Intelligence is a resounding failure of oversight.

Put bluntly, in a case of executive interference in a constitutionally established oversight entity like the Inspector-General of Intelligence, Parliament’s Joint Standing Committee on Intelligence (JSCI) was missing in action. And that is an oversight fail not tempered by invoking oaths and obligations of secrecy.

It’s astonishing that the ministers of police, defence and state security had the audacity to call on President Cyril Ramaphosa to suspend the incumbent of constitutional oversight, the Inspector-General of Intelligence (IGI), Setlhomamaru Dintwe.

It’s extraordinary that the reason for the call to suspend Dintwe, couched in terms of incompetence, related to the bundles of his submissions sent to the security ministers as part of consultation. Instead of input, he got a presidential letter saying the ministers’ call for his suspension had been referred to the JSCI.

“I was called. They told me that, ‘We decided not to start an inquiry’,” Dintwe testified before State Capture Commission chairperson Deputy Chief Justice Raymond Zondo on Tuesday evening.

Given that this isn’t about operations that may have to be protected by confidentiality, Dintwe’s testimony stands in stark relief against the JSCI’s silence and its lost opportunity to speak clearly on good governance and accountability.

“You know we never take interviews,” the JSCI chairperson, ANC MP Jerome Maake, told Daily Maverick when telephoned for comment on the extraordinary testimony before Zondo. “We don’t do comments.”

When asked to confirm whether what Dintwe told the commission was indeed what the JSCI had dealt with, Maake’s reply was: “No, I can’t.”

But he and the JSCI actually could. Nothing prevents the JSCI from holding inquiries, or issuing reports, according to the 1994 Intelligence Services Oversight Act.

And the JSCI has done so previously – when it was politically convenient. On 8 November 2013 the JSCI signed off on its Nkandla report, published under the heading “Special Report” in Parliament’s Announcements, Tablings and Committee Reports (ATC) of 13 November 2013.

That JSCI Nkandla Special Report supported earlier findings justifying all security upgrades at the then president, Jacob Zuma’s Nkandla homestead. It came as the governing ANC determinedly circled the laager around Zuma, even as the report was widely slated as a whitewash.

It’s a signal of the continued politicisation of intelligence that the Nkandla saga became a JSCI Special Report – and not how the JSCI acted against apparent securocrat overreach and interference by Police Minister Bheki Cele, State Security Minister Ayanda Dlodlo and Defence Minister Nosiviwe Mapisa-Nqakula.

JSCI DA MP Dianne Kohler Barnard has expressed frustration at how secrecy oaths and practice are used to foil oversight.

“We are forced to keep secrets while the entire country watches on Zondo. The sky hasn’t fallen; the country hasn’t collapsed,” she told Daily Maverick.

“We sit in meetings with no journalists, no notes, no laptops. The JSCI has still not implemented the High Level Panel recommendations on excessive levels of secrecy that are irrelevant.”

Strictly speaking, nothing in the 1994 Intelligence Services Oversight Act – despite the 2002 hawkish amendments as a result of an intelligence law overhaul – stops the JSCI from pursuing investigations, and issuing reports like that 2013 Nkandla Special Report. The JSCI is the only parliamentary committee established by law, an indication just how seriously oversight over intelligence was regarded by the first democratic Parliament.

And while it’s become a habit for the JSCI to sit behind closed doors, nothing precludes open sittings, if the committee decides to do so. It has happened for IGI interviews.

It can “deliberate upon, hold hearings, subpoena witnesses and make recommendations on any aspect relating to intelligence and the national security, including administration and financial expenditure”.

What seems to be the only secrecy stipulation is that the committee conducts itself “in a manner consistent with the protection of national security” – and that no information restricted by law is released unless that’s necessary for proper administration.

Questions must be asked about that oath of secrecy. The only oath MPs take is the oath of office to 'obey, respect and uphold the Constitution'. Any other oath may well be contrarian; an oath of secrecy is not among the official oaths listed in Schedule 2 of the Constitution.

The act also makes no mention of an oath of secrecy. And yet such a practice has seeped in.

“The members must take an oath or affirmation of secrecy before commencing with their functions prescribed by the Act,” said the JSCI report that was meant to be completed within five months of its establishment, but was signed off in late October 2020, or a year after formation.

Questions must be asked about that oath of secrecy. The only oath MPs take is the oath of office to “obey, respect and uphold the Constitution”. Any other oath may well be contrarian; an oath of secrecy is not among the official oaths listed in Schedule 2 of the Constitution. However, such a secrecy oath may well be one administered to public servants in the intelligence sector. If so, it would be wholly inappropriate for elected public representatives.

But overreach has been a state security tactic. Dintwe, in his testimony before Zondo, reiterated how security clearance had become a political tool.

In early 2018 he clashed with the then State Security Agency (SSA) boss, Arthur Fraser, who withdrew the IGI’s security clearance – this stopped Dintwe from doing his oversight job – following renewed inquiries from November 2017 into the Principal Agent Network (PAN), effectively Fraser’s parallel intelligence structure after eight years of various probes that found some intelligence officials had criminal cases to answer.

Dintwe turned to the courts for protection as Fraser used administrative powers to nix his constitutional oversight. And while it didn’t get to an open court hearing amid Ramaphosa’s intervention, Fraser was moved to Correctional Services.

The then state security minister, Dipuo Letsatsi-Duba, pledged “steps to ensure that matters of concern are dealt with within the provisions of the legal framework governing our environment and to ensure we maintain good governance as is expected of us”.

In what’s a damning indictment, three years later the regulations on the IGI, including independent resourcing, and the legislative review remain incomplete.

It emerged at Wednesday’s State Capture hearing that draft recommendations may well include legislation changes. This on the back of a legislative analysis to the commission that seems to indicate how the state security minister is allowed direct oversight and powers even in matters of administration and operations.

Over the past decade, the JSCI found itself drawn into secrecy as the default position, jettisoning its oversight responsibilities while intelligence services became increasingly politicised and drawn into the factional battles of the governing ANC. Or, as the March 2019 High-Level Review Panel Report on the SSA states, having asked the committee to “engage substantively” with the panel:

“… [I]t did seem to the panel that the JSCI played little role in recent years in curbing the infractions of the SSA and that no effective oversight on its part was carried out. In fact, it would seem that the Committee, with an ANC majority, was itself affected by the politicisation and factionalisation seen in the ANC, in Parliament, in the intelligence community and in other arms of government.”

The report also noted “a disproportionate application of secrecy in the SSA stifling effective accountability and facilitating serious non-compliance with controls including blatant criminality”.

And that attitude is continuing.

What happened to Dintwe seems to be the same playbook Dlodlo threw at the then acting SSA director-general, Loyiso Jafta. The minister tried to stop Jafta’s testimony over his failure to “consult”, but Zondo ruled no such duty existed in law, before dismissing the minister’s application. However, following his testimony Jafta found himself replaced.

The Presidency, approached over the referral of the ministerial call for Dintwe’s suspension, said, “If there are matters arising from testimony at the judicial commission of inquiry into allegations of state capture, and on which the president is required to comment, he will do so through the processes of the commission.”

Further details on the ministers, the IGI and the JSCI may emerge when Ramaphosa takes the stand before Zondo later in April. Or the JSCI may decide to include this episode in the annual report it must by law table in Parliament by the end of May.

However, it’s far from certain this will actually happen. The JSCI has over the past decade regularly failed to meet that statutory deadline. The reports for the 2010/11 and 2011/12 financial years were eventually published on 6 March 2014 in the Announcements, Tablings and Committee Reports (ATC), or the record of Parliament’s work. And so it went, year after year, with the 2018 report finally published on 12 December 2018.

Never mind the deadline, the quality is also at issue. While the JSCI was briefed by various intelligence ministers and on matters like PAN as far back as 2011, little, if anything made it into those annual reports.

Just days before Dintwe’s testimony, National Assembly Speaker Thandi Modise told Zondo that parliamentarians as public elected representatives have always had the power to ask pointed questions and put ministers on the spot in committees and in the House. “No committee has an excuse for not asking pointed questions… for not summoning people.”

But the JSCI’s silence on the Dintwe suspension saga means lawmakers have bought into the smoke and mirror games of South Africa’s politicised intelligence community. By choosing secrecy, what’s supposed to be a tool of oversight, for at least a glimpse of accountability in the murkiness of intelligence, is failing.

And so the plundering is allowed to continue as is the creep of securocrats and the dominance of secrecy alongside state authority and state-centrist security over what the Constitution sets as foundational values – accountability, transparency, responsiveness and the security of people. DM

Categories:

South Africa

Tags:

DM is much better if you are signed in...

South Africa