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Sam Sole, Nic Dawes26 Sep 2008 00:00
Outgoing intelligence minister Ronnie Kasrils engaged in a last-minute scramble this week to protect his legacy of reform at the intelligence services.
Since 2005 the National Intelligence Agency has been in the thick of claims that the Mbeki and Zuma camps abused state institutions in their battle for supremacy.
On Wednesday Kasrils persuaded outgoing president Thabo Mbeki’s last Cabinet meeting to release a hard-hitting review of intelligence policy.
Among the disclosures by the Ministerial Review Commission are:
The report recommends comprehensive reforms of the country’s civilian spy agencies, in particular the NIA, the South African Secret Service (SASS) and the National Communications Centre (NCC), responsible for the interception of electronic communication.
The commission, comprising former deputy-minister Joe Matthews, former speaker Frene Ginwala and academic Laurie Nathan, was set up by Kasrils after the “hoax email” saga which led to the sacking of former NIA boss Billy Masetlha.
The report, handed to Kasrils on August 7, was held back pending objections by his spy chiefs to some findings.
Released on Thursday, it scrupulously avoids trespassing on operational turf, but its recommendations on the policy terrain are uncompromising.
It discloses that in its first years the NIA interpreted its mandate narrowly. That changed dramatically in January 2003 with a new operational directive—driven by Cabinet—instructing it to “inform decision-makers about every aspect of human endeavour upon which good order and the prospects for a prosperous future depend”.
The secret directive listed focal areas for “political intelligence” as including:
The report notes: “We are concerned that NIA’s mandate may have politicised the agency, drawn it into the realm of party politics, required it to monitor and investigate legal political activity —”
The commission, with the NIA’s support, recommends that the mandate should narrow to focus on “terrorism, sabotage, subversion, espionage, proliferation of weapons of mass destruction, organised crime and corruption” and large-scale violence and drug trafficking. Another key finding is that some methods of surveillance currently used are illegal.
While legislation governs the invasion of privacy inherent in electronic interception and physical searches, other forms of intrusive surveillance take place without legal authority.
The report notes that “infiltration of an organisation, physical and electronic surveillance and recruitment of an informant who reports on the private affairs of an individual or organisation ... are not regulated by legislation and are therefore unconstitutional”.
The commission recommends legislation to govern all forms of intrusive surveillance and their approval by both the minister and a judge.
Perhaps most disturbing is the disclosure of a somewhat cavalier attitude to legal restrictions in spying agencies.
The commission rejected the recommendation of an earlier internal task team report that “in the hard reality of intelligence operations — it is sometimes impossible to do things by the book”.
“When operating against terrorist threats or organised crime or other clear threats and targets, it is sometimes necessary to ‘bend the rules’ in order to ensure that the threat is adequately dealt with. This is an operational reality in order to ensure that the real ‘nasties’ do not get away with their ‘nastiness’.”
The commission slams this, saying it is “unconstitutional, flouts the rule of law and undermines efforts to develop an institutional culture of respect for the law—
“The task team’s use of the term ‘bending the rules’ is misleading — The term is clearly intended to be a euphemism for breaking the rules —
“The intelligence crisis of 2005/06 demonstrated in a dramatic fashion that some officials do lack integrity and that the political dangers of bending the rules are severe.”
To counter abuse, the report recommends a significant opening up of access to information about intelligence policy, procedure and oversight.
“We believe that the intelligence organisations have not yet shed sufficiently the apartheid-era security obsession with secrecy. The emphasis of these organisations is on secrecy, with some exceptions, when it should be on openness, with some exceptions.”
The M&G understands that NIA Director General Manala Manzini intervened on Thursday to stop staff at the review commission from putting the report up on the intelligence.gov.za website. Manzini is understood to have claimed Kasrils did not have the authority to declassify the document.
‘I don’t have the stomach to serve at this level’
Ronnie Kasrils, who resigned as intelligence minister on Wednesday, has spoken out about his pain at the way ex-president Thabo Mbeki has been treated.
And he voiced concern that the reform he began of the intelligence services may not be completed.
“I am very unhappy at the way he [Mbeki] has been dealt with. I disagree with the way the [ANC] NEC has enforced this premature resignation. That has informed my whole response: I don’t have the stomach or the taste to serve any more at this level.”
Kasrils, who turns 70 later this year, said he had intended to retire anyway and felt it was pointless to stay on for a few more months. However, he emphasised his confidence in Kgalema Motlanthe and had written to the new president to offer his “full assistance” in the hand-over process.
Kasrils said he had worked hard to strengthen governance within the intelligence community, culminating in the release of the Ministerial Review Commission report this week (see accompanying story).
“The report is now public — It will be up to the new minister to decide how to deal with the recommendations and take it further.
“But the report really opens up for our people the right to grasp the big policy issues, to engage with the mechanisms and directives in relation to all operations of the intelligence services so they can feel confident about this very sensitive area.”
Kasrils said that while he had “some concerns” about policy continuity, “I would hope that the reforms will be followed through.”
He said he had been confronted with the crisis over Billy Masetlha only a year after he took over as minister: “The intelligence services can be used in an abusive manner — Post Masetlha we faced that problem in an acute way.”
Asked about the prospect of Masetlha succeeding him, Kasrils noted: “At the moment the man is facing a charge of fraud, which his counsel is trying to deal with by alleging a political conspiracy— he [Masetlha] is playing a bloody political game.”
Kasrils said he hoped the ANC would choose someone of the highest integrity to take up this “particularly sensitive” post: “The possibility of abuse of power— by a rogue minister or director general is immense.”—Sam Sole
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Nic Dawes is the Mail & Guardian's editor-in-chief.
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