Parliament has approved legislation that gives our intelligence services potent powers: to infringe privacy through clandestine methods, to conduct covert operations aimed at countering threats to national security and generally to operate with a high level of secrecy, which inhibits effective control and oversight.
These powers are intended to enable the intelligence services to contribute to the security of our country and its people.
History has shown that these powers are potentially very dangerous and can be abused. Politicians and intelligence officers can use intelligence methods and resources to infringe constitutional rights unlawfully, interfere in politics and favour or prejudice a political party or faction.
They can intimidate the opponents of government, create a climate of fear and fabricate or manipulate intelligence to influence government decision-making and public opinion. They can also abuse intelligence funds and methods for personal gain.
Democratic countries are consequently confronted by a paradox: the organs of state that are established to ensure security can themselves undermine the security of citizens and the democratic process.
How should this paradox be managed? What powers should intelligence organisations have and what limits should be placed on those powers?
How can abuse of power be prevented in conditions of secrecy? Is there too much secrecy? Should the intelligence services monitor politicians and parties that threaten violence?
In what circumstances and subject to what safeguards can the services infringe constitutional rights in the interests of national security? What is meant by “national security”? And how should national security and intelligence priorities be determined?
The answers to these questions have such serious implications for political freedom and stability that we ought to debate them extensively. Strangely, this is not the case.
South Africans talk constantly about the police, the judiciary and the prosecuting authority but there is little discussion about the intelligence services, apart from occasional bursts of attention in moments of controversy.
The lack of debate is partly due to reticence by civil society groups, human rights organisations, universities and political parties. Perhaps we have bought into the idea that intelligence is so sensitive that it lies outside the public domain.
Perhaps we keep quiet because we lack expertise on intelligence and feel out of our depth. Whatever the reason, we have neglected our responsibility to comment on a vital aspect of national security.
The absence of informed debate is also caused by the secrecy that enshrouds the world of intelligence.
The constitutional principles of transparency and access to information lie at the heart of democratic governance, an open and free society and respect for human rights.
Yet so much critical information about the intelligence services is confidential that they appear to be exempt from these principles.
For example, ministerial regulations on intelligence are secret and are disseminated only within the intelligence community. Although this is permitted by the intelligence laws, the Constitution states clearly that regulations and other forms of subordinate legislation must be accessible to the public.
Similarly, the Constitution requires the Auditor-General’s reports to be submitted to the relevant legislature and to be made public.
The audit reports on the intelligence services, however, are presented only to the parliamentary joint standing committee on intelligence (JSCI) and are classified.
Despite the constitutional requirement that national budgets and budgetary processes must promote transparency and accountability, the annual budgets of the intelligence services are secret. They are reviewed by the JSCI but are not presented to Parliament.
As a result, according to the national treasury, the intelligence services are not directly accountable to Parliament for their budgets and spending.
The publication of annual reports by government departments is an essential form of ensuring accountability to Parliament and citizens. But unlike those of other departments the annual reports of the intelligence services are not published routinely and are not tabled in Parliament.
Security considerations are not a convincing reason for this since the National Intelligence Agency has put a few of its annual reports on its website.
The same problem arises in relation to the two oversight mechanisms in the intelligence community, the JSCI and the inspector-general of intelligence.
These bodies have a critical role to play in holding the intelligence organisations to account but we are unable to consider their conclusions and assess their performance because they are insufficiently transparent.
It will be evident from these examples that the core constitutional principles of accountability, openness and responsiveness do not apply fully to the intelligence community.
Parliament and the executive have created a kind of “intelligence exceptionalism” in relation to the Constitution. This is untenable.
The Constitution is the supreme law, it is binding on all organs of state and it makes a point of insisting that the security services must act in accordance with the Constitution and the law.
Given the constitutional presumption in favour of transparency and access to information, the intelligence community’s emphasis on secrecy, with some exceptions, should be replaced by an emphasis on openness, with some exceptions.
The justification for secrecy should not be based on “the national interest”, which is the approach taken in the Protection of Information Bill currently before Parliament. As the Bill puts it, the national interest includes “all matters relating to the advancement of the public good”.
If secrecy is allowed on these expansive and inexact grounds there will be excessive and spurious classification of information. In any event, the national interest surely encompasses the rights and freedom of citizens, and therefore demands openness.
The justification for secrecy should be based instead on the significant harm that disclosure of information might cause to the intelligence organisations, the state, the country as a whole or the lives of individuals.
At the same time, the potential harm of disclosure must be weighed against the public interests served by disclosure as the dangers posed by secrecy — abuse of power, violation of rights and a culture of impunity — can imperil democracy.
The intelligence services would benefit from a greater provision of information. Secrecy gives rise to suspicion and fear and this reduces public support for the services.
In a democracy, unlike in a police state, the services must rely on public cooperation rather than coercion to be successful.
The publication of more information would heighten co-operation and effectiveness.
In its report to the minister of intelligence the ministerial review commission recommended publication of all ministerial regulations on intelligence, the audit reports on the intelligence services, the annual reports and budgets of the services and periodic security assessments undertaken by the services.
The disclosure of sensitive information which would cause significant harm should be withheld.
The commission also proposed that the executive’s policies on intelligence operations and the Cabinet’s national intelligence priorities should be subject to consideration by Parliament.
Greater adherence to the constitutional principle of openness would promote confidence in the intelligence community and empower citizens to have a meaningful discussion on aspects of security that affect the health of our democracy.
Laurie Nathan serves with Joe Matthews (chairperson) and Dr Frene Ginwala on the Ministerial Review Commission on Intelligence, established by former minister of intelligence Ronnie Kasrils in 2006. The commission’s report, published last month, can be found at