Services, on the occasion of the Budget Vote for the Intelligence Services,
National Assembly, Cape Town
1 June 2006
South African Intelligence Services meeting the challenges for the 21st
century:
The importance of oversight
Quis Custodiet Ipsos Custodes? - Who shall Guard the Guards?
Madam Speaker, Honourable Members:
During the past year our country was wracked by a severe intelligence
crisis. Grave misconduct by rogue elements within the National Intelligence
Agency (NIA) included unauthorised surveillance of citizens; unlawful
interception of the communication of members of the public and of
Parliamentarians; the fabrication of bogus e-mails as part of a political
conspiracy; and evasions and lying to the President, the Minister and the
Inspector-General for Intelligence.
These actions were a gross abuse of state power and resources. In the words
of the Inspector-General, Mr Zolile Ngcakani, they posed the risk of
undermining constitutionally protected party political freedoms. The misconduct
has unquestionably damaged the credibility of the domestic intelligence agency
in the eyes of public and Parliament.
My speech today is necessarily devoted to commenting on that crisis and to
presenting various initiatives aimed at preventing a recurrence.
Overview of events
Let me begin by summarising the main facts.
In September 2005 I received a complaint from a prominent businessman, Mr
Sakumzi Macozoma. He claimed that he was under surveillance by the NIA. I
immediately asked then Director General of NIA, Mr Billy Masetlha, for an
explanation. The report I was given was completely unsatisfactory and evasive.
I therefore requested the Inspector-General to investigate the matter, as
provided for in terms of section 7c of the Intelligence Services Oversight Act
(Act 40 of 1994).
The Inspector-General completed the first phase of his investigation by
mid-October. He found that there was no legitimate basis for the surveillance
of Mr Macozoma and concluded that the operation was unauthorised and unlawful.
He also noted with concern the NIA senior managementâs attempts to conceal
information and mislead both his investigation and the Minister.
On the basis of the Inspector-Generalâs report, NIA officials responsible
for the unlawful activities were suspended.
During this phase of the investigation, the Inspector-General was informed
about a NIA project known as Avani. On the information at hand, he believed
that it was necessary to ascertain whether this project was linked to the
unlawful surveillance operation. Accordingly, I extended his terms of reference
to include this.
The Inspector-General completed the final phase of his investigation in
March this year. He found that the then Director General of NIA had manipulated
an intelligence project utilising concocted e-mails that purported to portray
the existence of a political conspiracy.
These e-mails â which the Inspector-General proved were false - were used by
Masetlha to launch unauthorised and unlawful operations against the supposed
authors of the e-mails. The âauthorsâ included government ministers, state
officials, politicians, journalists and businessmen.
The Inspector-Generalâs final report was endorsed by Cabinet. President
Mbeki has dismissed the Director General of NIA citing a breach of
trust.[1]
The Inspector-General recommended that there be criminal prosecutions and
the Police Commissioner, Jackie Selebi, subsequently announced that a criminal
investigation was underway.
The Police Commissioner, the Chief of the Defence Force, the Head of the
National Intelligence Co-ordinating Committee (NICOC) and the Directors General
of Defence, Justice and the Secret Services have publicly endorsed the
Inspector-Generalâs report and condemned Masetlhaâs conduct.
The Inspector-General has presented his report to the Joint Standing
Committee on Intelligence (JSCI).
Constitutional context
Madam Speaker, Honourable Members:
Our perspective on this scandalous abuse of power should be grounded in the
founding document of our democracy, the Constitution, which establishes a vast
distance between our countryâs oppressive past and its democratic commitment
and aspirations.
Nowhere was this more necessary than in relation to the security services.
According to one of the members of the Constitutional Assembly: ââ¦our starting
point was the horrendous role that was played by the security forces of this
country in the pastâ¦Our mandate and objective was to ensure that our country
would never...again be subjected to security services that areâ¦above the
lawâ¦and the Constitution.[2]
How shameful that this brave ideal has been violated and within a mere ten
years of that proclamation!
What is expected is crystal clear.
In terms of the Constitution, the intelligence services may no longer
operate beyond the reach of the law. They are fully subject to the law and the
jurisdiction of the courts. No one may issue an illegal order to the
intelligence services, and members must disobey a manifestly illegal order.
The intelligence services are obliged to respect the Bill of Rights, which
affirms the democratic values of human dignity, equality and freedom.
In order to ensure legitimate conduct, the Constitution insists that all
members of the security services must be taught to act in accordance with the
Constitution and the law.
It states emphatically that the intelligence services may not further in a
partisan manner any interest of a political party; and may not prejudice a
political party interest that is legitimate in terms of the Constitution.
The intelligence services may have no loyalty to a political party or
faction. Their allegiance is to the Constitution and the law; to the state and
the executive authority; and to the citizens of our country. Their mandate is
to act in the national interest by contributing to the security and well-being
of all our people, irrespective of colour, creed or party affiliation.
Because of their power and the inherent risk of abuse of power, the security
services should be subject to extensive controls and rigorous oversight by the
elected and duly appointed civil authority. The underlying need is captured by
the rhetorical question posed by the ancient Roman satirist Juvenal: âSed quis
custodiet ipsos custodes? âBut who will guard the guards themselves?â Who will
police the police and supervise the spies?
Our Constitution answers this question by providing for executive oversight
through the President and the Minister for Intelligence Services. The Minister
has political responsibility for the control and direction of these services.
The other pillars of oversight are the multi-party Joint Standing Committee on
Intelligence and the Inspector-General for Intelligence, whose appointment by
the President must be approved by at least two-thirds of the members of this
Assembly.
Upholding the rule of law
Madam Speaker, Honourable Members:
I have highlighted these constitutional provisions in order to make three
points in relation to the recent events.
The first is to assert unambiguously the primacy of the Constitution.
Regardless of our individual place in society â whether President, minister,
parliamentarian, intelligence officer or member of the public â we are bound by
this law. Regardless of the importance of our post or mission, we are obliged
to act according to its rules and within its boundaries.
Second, it is patently clear that the former Director General of NIA and
some of his colleagues violated the Constitution. The seriousness of the matter
is heightened by their seniority as state officials.
Third, the Executive has acted decisively against the wrongdoers because we
are obliged to protect and defend the Constitution. We have demonstrated our
unequivocal determination to uphold the rule of law.
It is consequently misguided to compare what transpired in our country with
the Watergate scandal in the United States of America. As one analyst has put
it: âRichard Nixon sought to hide the illegal conduct of his officials, while
the South African Government has flushed it out and stamped on itâ.[3]
Similarly, it is nonsense to claim that our laws provide a blank cheque to
spy on anyone for any reason. In the current case the rules were flouted
precisely because the perpetrators could not have pursued their dirty tricks
within the parameters of the law. And I have shown how the various oversight
mechanisms provided for in law were used to identify and stop a conspiracy by
some intelligence officers.
Most strangely, some critics have suggested that those of us who took action
against the rogue elements in the NIA are the real conspirators and that we
were pursuing our own partisan agenda. This is a kind of Alice in Wonderland
subversion of the truth.
The facts of the matter are not in doubt. On the one hand, there was a small
group of intelligence officers who transgressed the Constitution. On the other
hand, there is a large group â which includes the President, the Cabinet, the
Inspector-General, the Heads of the Security Services and other Directors
General â that were implacably opposed to the transgressions and acted
accordingly.
This does not make them partisan or part of a conspiracy! Turning a blind
eye to malfeasance by intelligence officers would have taken us down the road
to tyranny or anarchy or both.
Let me make this absolutely clear. It is one thing for members of political
parties to manoeuvre against each other as they jockey for power within their
party (whether in a democratic fashion or otherwise). This may not be pretty
but it generally occurs in political parties throughout the world.
It is quite another thing altogether for state officials to participate in
such intrigues. This is an abuse of office, of power and public trust. It is
subversive and unconstitutional. It is akin to slyly mouthing with
Shakespeareâs Richard III: ââ¦plots have I laid and schemes to set my brother
and the king in deadly hateâ¦â. Our government has shown that we will not
tolerate such intrigue.
New initiatives
I now turn to the broader question of transformation. It is imperative that
we use this lamentable episode at NIA to undertake fundamental reforms that go
beyond simply dealing with a few rotten apples to improving the overall quality
of the barrel and making it as rot-proof as possible.
Our aim must be to ensure that intelligence abuses do not occur again. We
must strengthen legislation, regulations, operational procedures and control
measures as well as oversight mechanisms wherever necessary. We must re-examine
some of our mandates. We must attend to the perfidious mentality that enabled
these dirty tricks to take place. And we must place our reforms in the public
domain so as to rebuild public confidence and trust.
In the wake of the flagrant abuse of intelligence resources I immediately
imposed interim Ministerial control measures on the authorisation and conduct
of surveillance operations and interception of communications.
We are working towards finalising improved procedures and measures. I can
report on three key initiatives in this regard.
Firstly, members will recall my announcement last year of the formation of a
departmental Legislative Task Team to provide assessments on a range of policy
and legal issues. Following the discovery of the skulduggery within NIA, I
expanded the Teamâs brief to review the legislation, internal regulations and
operating procedures in order to identify changes that would help to prevent
abuses occurring in the future.
The Task Team has completed its work and presented me with an extensive
report, for which I am grateful. The report contains important recommendations
for strengthening oversight and controls and for reviewing the so-called
âpolitical intelligenceâ mandate.
I am currently considering the recommendations and will discuss them with
key stakeholders before releasing relevant aspects for public comment, in
consultation with the JSCI.
But I want to make the following pledges:
* We will place the National Communications Centre (NCC) under tighter reign
so that its capacity can only be used in the national interest and not, as was
done, to violate even the sanctity of this Parliament by unlawfully
intercepting telephone communications.
* And we will ensure that the newly established Office of Interception
Centres (OIC) created in terms of Act 70 of 2002, which comes into effect on
1st July, is effectively run and controlled.
* I also wish to add that further control measures will be guided by the
findings of an internal enquiry into the botched surveillance operation on Mr
Macozoma which apart from being unauthorised was seriously deficient in its
command and control aspects.
I turn now to a second major initiative that will soon be embarked on. We
intend launching a comprehensive, Public Intelligence Review.
The intelligence services have not had the benefit of a public review, such
as occurred with the Military and the Police post-1994. More than ten years
after the formation of our services, it is necessary to take stock of our
experiences.
A review of this kind will only be fruitful if there is strong involvement
by parliament and civil society. I believe this can be done without
compromising the need for secrecy where merited.
In due course I will announce the terms of reference for the Review as well
as the persons nominated to serve on a Review Panel. These issues will be
discussed with the JSCI, which must be a prominent stakeholder in the
process.
Madam Speaker, Honourable Members:
As the conduct of certain dishonourable members of the NIA demonstrated,
control systems alone, do not suffice, since there are those who will seek to
subvert them. Consequently, we must seek ways to strengthen the commitment of
our members to sound moral values and a professional work ethic.
This brings me to our third major initiative. Shortly after the
Inspector-General presented his findings in October last year, I announced my
intention of establishing a Civic Education Programme to make sure that all
intelligence personnel respect and adhere to the law and democratic norms.
I can report that preparations are underway and I have already participated
in a Workshop with my top managers to conceptualise the programme. It will be
conducted through a series of workshops for which the Service Heads will be
responsible. Aspects of the programme will also be incorporated into the
training conducted by the South African National Academy for Intelligence
(SANAI).
We have identified the main themes of the curriculum. They include an
understanding of intelligence legislation and the Constitution, particularly
the Bill of Rights; the implications of the new approach to security outlined
in the Constitution; defining intelligence professionalism in the context of a
democratic South Africa; and understanding the role of the oversight bodies.
Civil society experts will be invited to help us prepare and deliver this
curriculum, which will be unclassified and therefore open to public
scrutiny.
Such training will be undertaken by the newest recruits and the most senior
managers. In the final analysis everything depends on the sound character and
wisdom of our intelligence officers.
Strengthening ongoing initiatives
I turn now to comment on how our recent problems have confirmed the
appropriateness of the approach we adopted in 2004; I refer here to our Ten
Point Programme. This approach focuses on building the professional capacity of
the intelligence services to enable them to meet the complex challenges of the
21st Century in a post Cold-War world.
We maintained that our ability to deal with the new global situation depends
to a large extent on the capacity of our services to forewarn and render useful
advice to decision-makers. We therefore prioritised the need to enhance our
core business capacity and highlighted the need to realign our budget spending
ratios away from the rising remunerations account in favour of operational
expenditure and capital investment needs. The core business is summed-up in the
âHoly Trinityâ expression we coined to help focus our effort on the three main
pillars of the Intelligence Cycle: namely - Collection, Analysis and Decision
Making.
Technical skills, analytical rigour and proper values are integral to this
approach. The importance of building such professionalism was emphasised by
President Mbeki when he criticised the quality of the intelligence he receives.
He highlighted the dangers of compromising the truthfulness of intelligence and
argued that professional officers should uphold the values of integrity,
objectivity and credibility. The President stated that a professional
intelligence organisation promotes high standards and prizes the development of
balanced, quality products.
In working to meet the Presidentâs injunctions, our capacity-building
strategy over the past two years has emphasised the need to develop
professional officers able to set aside any bias and preconceptions. These
officers must protect our services against manipulation, mischief and
abuse.
We have held numerous meetings with the Senior Services staff and general
membership. This included a keynote address by President Mbeki to all members
which was tantamount to the reading of the riot act.[4] I held a four-day
lekgotla with the Heads of Services to review progress. While many challenges
remain, much has been accomplished. We also developed a set of Principles of
Professional Intelligence Officers which must become ingrained as second
nature. The role of our Academy is central to inculcating the necessary values
as well as the tradecraft. Much needs to be done to strengthen our Academy and
training programmes and I have instructed the service chiefs to provide more
dedicated support if we are to get things right.
In appreciation
Madam Speaker, Honourable Members:
It is said that every cloud has a silver lining.
Recent events have revealed the effectiveness of our oversight mechanisms.
In this regard I acknowledge with gratitude the Inspector-General whose
integrity is beyond question and whose contribution has been exemplary.
I must mention the new Director General of NIA, Mr. Manala Manzini, and his
team, who have ably steered the ship through troubled waters and are determined
to overcome the setbacks. My thanks to the Director General of the South
African Secret Service (SASS), Mr. Tim Dennis, and to the National Co-ordinator
of NICOC, Mr. Barry Gilder, who throughout the difficulties have displayed a
high calibre of service and commitment.
Appreciation must be paid to the Principal of SANAI, Mr. Mphakama Mbete; the
new Chairperson of the Intelligence Services Council, Ms Miriam Sekati; the
newly appointed NCC manager and the Directors of Comsec and the OIC. In
addition, I salute the Head of my Ministry, Ms. Sandy Africa, and Ministerial
staff for their invaluable support so graciously rendered.
Tribute also to Dr. Sizakele Sigxashe, Mr. Joe Kotane and Ms Joyce
Sikhakane-Rankin, amongst others, who retired this past year after a lifetime
of service.
And I must express deep appreciation to all the committed men and women of
our Services. The vast majority of whom go about their business with dignity
and integrity. It is in the nature of intelligence work the world over that
mistakes attract public attention while the good work goes unnoticed. I refer
to such achievements as the success of our local government elections;
countering terrorist and proliferation threats; outstanding work in Africa,
particularly with regard to conflict resolution; securing special events at
home and even abroad. The last augers well with respect of securing the 2010
Football World Cup. And we acknowledge the improved co-ordination between our
civilian services and defence, crime and finance intelligence structures.
Conclusion
Madam Speaker, Honourable Members:
We need to be frank and honest about the problems that have beset us. I can
confidently declare on behalf of my top team that we are determined to put
things right. These are professionals who can handle fair weather and foul!
They recognise that the sacred trust vested in them has been damaged. They will
rebuild this trust by abiding by an ethos which reflects the Constitution and
conforms to the professionalism that the President has called for and that our
people expect. They are determined to prove their mettle and demonstrate they
are worth investing in; can provide value for money; and at the end of the day
show they can make a difference.
As Juvenalâs âguardians of the guardsâ, those of us entrusted with oversight
must ensure that we diligently exercise our duty. Here I must thank the
Chairperson of the JSCI, Dr Siyabonga Cwele and Honourable Members, for their
co-operation.
To the greatest extent possible, we should engage in transformation in an
open fashion. While secrecy is necessary for aspects of intelligence, it is not
essential for all of them. As the drafters of our Constitution understood full
well: openness is the oxygen of democracy and excessive secrecy will suffocate
it.
I close with the following quotation:
ââ¦Intelligence isâ¦essentialâ¦but it is, being secret...most dangerous.
Safeguards to prevent its abuse must be devised, revised and rigidly applied.
But as in all enterprises, the character and wisdom of those to whom it is
entrusted will be decisive. In the integrity of that guardianship lies the hope
of free people to endure and prevail.[5]â
---------------
[1] The executive summary of the Inspector-Generalâs report can be viewed on
the website of the Ministry for Intelligence Services at
www.intelligence.gov.za.
[2] Linda Mti, Proceedings of the Constitutional Assembly, 7 May 1996,
http://www.pmg.org.za/docs/2005/9605const.htm
[3] Laurie Nathan, Power Wielded Secretly, Sunday Times, 2 April 2006
[4] The Presidentâs speech can be viewed on the website of the Ministry for
Intelligence Services at http://www.intelligence.gov.za/Speeches.htm.
[5] Sir William Stephenson, âA Man Called Intrepidâ
Issued by: Ministry of Intelligence Services
1 June 2006
