Much tighter control of the spies at the National Intelligence Agency (NIA) is needed to prevent them from abusing their broad domestic security mandate, civil society and media groups have told a ministerial review commission.
”There is a critical lack of specificity in relation to the exercise of executive powers, especially in terms of the conduct of domestic intelligence operations of a politically sensitive nature,” the Institute for Security Studies (ISS) warns in a submission to the commission.
Ministerial authorisation should be required before spying on South African citizens and accountability to Parliament should be strengthened, the ISS suggested.
The South African National Editors’ Forum (Sanef) and the South African History Archive (Saha) also warned against the erosion of civil liberties and the manipulation of the press by unfettered domestic intelligence gathering.
The commission was set up by Intelligence Minister Ronnie Kasrils in the wake of the ”hoax email” and illegal surveillance scandals surrounding sacked NIA boss Billy Masetlha.
Chairperson Joe Matthews, with a former speaker of the National Assembly, Frene Ginwala, and academic Laurie Nathan are charged with reviewing the operations of the agencies under Kasrils’s control, principally the NIA and the South African Secret Service (Sass), which is responsible for foreign intelligence-gathering.
In its submissions the ISS noted that the email saga showed there was a ”lack of sufficient control on the use of intrusive methods of investigation”. The incident also demonstrated ”the continued politicisation of domestic intelligence operations and the potential for misuse of authority in the conduct of political intelligence operations”.
The ISS recommended that Parliament’s joint standing committee on intelligence improve its mandate to provide democratic oversight and hold the intelligence community to account. This could be achieved by appointing an opposition MP as committee chairperson.
The ISS recommended that the intelligence minister ”should, periodically, review the powers and functions of the director general of [the] NIA in relation to the conduct of politically sensitive intelligence operations”.
Sanef has expressed concern about a clause in the Intelligence Services Act that makes it possible for intelligence agents to enter newspaper premises and seize materials. Raymond Louw, chairperson of Sanef’s media freedom committee, noted that although seizures of material could be carried out only with the permission of a high court judge, it was a matter for concern that editors were not ”notified in advance so that a defence can be mounted”.
Sanef argued that the granting of the search and seizure rights, without safeguards, ”could seriously harm journalism by providing a gateway to the authorities” who want to gain ”access to journalists’ confidential sources of information”.
Sanef expressed concern about the potential for manipulation of the media by the intelligence services.
Louw argued that ”the [hoax email] saga shows that improper agendas within the intelligence services can thus intrude directly on the media as the vehicle of public information and potential influencer of public opinion.
”It is not in anyone’s interest that the media should become a pawn, or a player, in secret factional activity,” he said.
The Saha proposed a set of principles to manage the tension between the democratic principle of transparency and the need for intelligence agencies to operate in secret. The principles stand on two legs — ”institutional structures to ensure legitimacy and accountability” and measures to protect and encourage free access to information.
”No restriction of — civil liberties may be imposed on the grounds of national security unless the state can demonstrate that the restriction is lawful and necessary,” the Saha said. The organisation said the state ”shall have the burden of demonstrating the validity of the restriction in a court of law”.