Questions are multiplying as the police delay action against sacked spy boss Billy Masetlha — despite unequivocal findings by the inspector general of intelligence that Masetlha and others were involved in criminal activity around the hoax e-mail scandal.
What did President Thabo Mbeki know about Project Avani, the top-secret National Intelligence Agency (NIA) operation to monitor threats posed by the succession battle within the African National Congress? When did he know it? And why did he not share it with the Intelligence Inspector General Zolile Ngcakani? What does Masetlha know that limits the authorities’ scope for action against him? These are some of the questions being posed as the stand-off drags on.
The lack of movement this week contrasts starkly with police National Commissioner Jackie Selebi’s claim at a press conference last Saturday that arrests were imminent, involving both the person allegedly involved in fabricating the e-mails and “those who assisted him or worked with him”.
Hanging tough
Muzi Kunene, the man identified — though not named — in Ngcakani’s report as being responsible for fabricating the e-mails, has not yet been charged in this connection. Ngcakani’s report claims that Kunene was sub-contracted by the NIA in an “outsourcing arrangement” known only to Masetlha and one other NIA member.
But people close to Masetlha say he has told associates that if he is charged, the president will have to resign. He apparently believes he still holds enough cards to strike a deal.
It is understood he gave instructions for the latest legal challenge to his dismissal not to be filed in open court, despite being served on Mbeki on Tuesday. He has thus kept the details of his response to his dismissal out of the public domain for now, holding the door open for negotiations.
Even the terms of Masetlha’s dismissal — he will be paid out for the balance of his contract, about two years’ salary or R1,5-million — seem to fly in the face of claims in Ngcakani’s report that he authorised illegal surveillance of at least 13 individuals and “underhandedly incorporated” the e-mails into Project Avani to manipulate its content and direction.
If he is about to be charged with fraud, even sedition, why pay him out at all?
The apparent caution about proceeding against Masetlha may flow from the natural reluctance to expose, via a high-profile court case, the many secrets Masetlha may have been privy to.
The balance of forces in the ANC may also play a role — the party’s national executive committee all but rejected Ngcakani’s report at the weekend, and arrests of those involved would be politically explosive.
Tainted genesis
New information about Masetlha’s version of events suggests any attempt to proceed against him would drag in ANC Secretary General Kgalema Motlanthe, already rendered vulnerable by his involvement in the saga.
But allegations that emerged last year — at the height of Project Avani — and a close reading of Ngcakani’s report, suggest Avani may originally have investigated the broad Zuma camp, before it was “hijacked” by Masetlha.
In August 2005 a source sympathetic to Masetlha told the Mail & Guardian the spy boss had been instructed by President Thabo Mbeki to use the NIA to help find evidence against Zuma and those backing him. At the time, Masetlha vehemently denied conducting any investigation of the succession battle.
He insisted that internal political contestation had not reached a level where it posed a threat to national security and that if it did, he was bound to inform the president.
Now Ngcakani’s report on the surveillance of businessman Saki Macozoma and the hoax e-mail saga makes it clear that at the time of his denial, Masetlha was right in the middle of Project Avani, a formal, legal NIA covert operation designed to do just that.
The report says Avani was a project to gather intelligence to identify “any threat or potential threat posed by the presidential succession debate, foreign services interests therein, the impending Jacob Zuma trial and poor service delivery impacts and dynamics to the security and stability of the Republic and its people”.
Avani did not initially identify specific targets and assumed what the report calls a “360-degree horizon with no bias”. Investigations of the “Zuma camp” could, of course, have formed part of that horizon.
The report says Masetlha did not inform Minister of Intelligence Ronnie Kasrils about Avani. It fails to mention that he was under no obligation to do so, suggesting instead that he should have, given the extreme sensitivity of the issues. The report is also silent on whether, or when, the president was briefed on Avani.
That question is lent urgency not only by the fact Masetlha was secretly up to his neck in Avani by August, but by what the report says about the project’s genesis.
Ngcakani notes that Masetlha conceived Avani some time in early July last year, specifically in the aftermath of the ANC’s national general council (NGC).
The context is significant. The NGC meeting was the zenith of Zuma’s fight-back campaign. Delegates overturned a number of the ANC leadership’s proposals, including the decision by the national working committee, dominated by Mbeki supporters, to suspend Zuma from all party activities after his sacking as deputy president and arraignment on corruption charges.
More questions about Avani’s significance in the apparent stand-off between Mbeki and Masetlha are raised by the strange handling of a report by Masetlha on the project.
In court papers Masetlha says he presented such a report to Mbeki on August 19, the day before he was suspended.
Other correspondence in his court file shows Ngcakani requested a copy of this report from the Presidency, but was told to ask Masetlha for a copy. They also show that at the time of his suspension, Kasrils instructed Masetlha to return all copies of the report.
In any event, it is clear that Ngcakani was never given access to the report, and people close to Motlanthe insist it contained substantive evidence concerning a “conspiracy” to influence the outcome of the ANC succession battle.
If Ngcakani is right, the “hoax e-mails” were used as a fraudulent catalyst to divert a formal NIA project into surveillance individuals supposedly plotting to undermine not only Zuma, but Motlanthe and Masetlha himself.
Significantly, the report, released only in summary form, emphasises that no finding has been reached on merits of conspiracy claims within the ANC. “Our scope was limited to an examination of the authenticity of the allegedly intercepted e-mails and matters connected therewith and did not extend to include an inquiry into the existence of the overall conspiracy projections they sought to convey,” it says.
A senior ANC source who is critical of the report and its handling told the M&G the full version does partially “implicate” some senior ANC figures named in the e-mails as members of an anti-Zuma, anti-Motlanthe conspiracy.
Rival versions
Associates of Masetlha still insist he was handed the e-mails by Motlanthe. On this version, Motlanthe was approached by Kunene with supposed “intercepts” he had stumbled on. Mothlanthe then met Masetlha and Selebi on or about August 27 last year and presented the hoax e-mails to them.
On this version, Kunene was only engaged by the NIA after Motlanthe’s introduction and his unsuccessful attempt to get the South African Police Service to investigate.
It is reliably understood, however, that investigators have found evidence linking Kunene to the creation of the e-mails as early as July, at the genesis of Project Avani. This suggests the project may have been tainted almost from the start.
Ngcakani’s report clearly finds that the e-mail interception was initiated by NIA. It states: “According to the official records of the NIA, the targets for the interception of data communications (e-mails) were identified and selected by the NIA for onward interception in an outsourcing arrangement known only to the director general of the NIA and another member of the NIA.”
The report says Motlanthe was named as a source by Masetlha merely to add legitimacy to the e-mails, which other senior NIA officials viewed with scepticism.
In the end, however, by excluding any real investigation of the conspiracy claims and counter-claims, Ngcakani’s report fails to defuse the tensions within the ruling party that have boiled over into government.
The finding that the e-mails are a “mock-up” that could never have been sent or received in that form side-steps the question of whether some portions were perhaps transcripts of other forms of communication legally or illegally intercepted. That leaves an opening for critics of the investigation to suggest the e-mails contain credible information, even if they were mocked up.
Nor does the report reveal what Avani found — if anything — before it was shut down.
The delay over arrests is not helping. More certainty is needed, and soon.