We were among the first to raise alarm about the secrecy bill, and we are now raising the alarm about the architecture of oversight that is supposed to police the intelligence services.
The inspector general of intelligence (IGI) is supposed to protect the public – and the media – from abuses that intelligence services everywhere are inclined to. So important is this position that nomination for the IGI’s position requires two-thirds majority support in parliament.
Thus we were amazed and concerned when it emerged that the joint standing committee on intelligence (JSCI) had begun to interview eight named shortlisted candidates behind closed doors – and without releasing even their curriculum vitae.
On Wednesday, March 18, amaBhungane, through our lawyers, sent a letter to the chairperson of the JSCI to challenge the secret process of appointing the new IGI.
Our letter comes on the back of sustained calls from the public, media and opposition political parties for the appointment process to be handled in an open and publicly accountable manner.
The Right2Know campaign – of which we are a founder member – has sent no less than three letters to the committee chairperson and presiding officers.
The Institute for Security Studies (ISS) sent a letter last week challenging the farce of a public participation process, where the public was given four days in which to make substantive submissions on shortlisted candidates – without access to CVs or any other background information on the candidates.
The inspector-general of intelligence, a constitutional role constituted in accordance with the Intelligence Services Oversight Act of 1994, provides for a public ombudsman, where the public can submit complaints about alleged maladministration, abuse of power, transgressions of law and policies and corruption in the various intelligence agencies.
The appointment process is carried out by the JSCI, which like all parliamentary committees, is intended to exercise an oversight role.
However, the JSCI has developed a penchant for default secrecy in its proceedings, and in recent years has appeared to be more of a captive than an inspector of the intelligence services.
This at a time of growing crises in the activities and reported abuses of the intelligence agencies.
Journalists have reported on undue surveillance of their activities and, equally concerning, of being approach by officials allegedly from the State Security Agency to cooperate in surveillance of political opponents.
In the response to the March 18 letter, amaBhungane received a letter from the chairperson of the JSCI who, despite public appeals, continues to hold to section 2(7) of the act and other regulatory frameworks as the basis for the secretive proceedings.
However, what the chairperson fails to consider, is that it is within the committee’s power to open proceedings in the public interest, within the very same portion of the act. Our lawyers have since sent a second letter on March 20, asking the chairperson to provide adequate reasons for the decision, in terms of section 59 of the constitution as well as under the principle of legality.
Intelligence does not mean a default setting of secrecy.
Indeed, the 2009 process of recruiting the inspector-general occurred in open proceedings. In our March 18 letter, our lawyers wrote that:
“…the appointment of the new IGI is manifestly an appointment of paramount public importance, and is a special case unlike the ordinary proceedings of the committee (in which there might plausibly be certain information discussed which necessitated secrecy). Accordingly the committee was required to exercise its discretion to open the proceedings to the public and the media.”
The 2009 precedent could and should have been chosen by committee chairperson at a time when building public confidence in our intelligence oversight institutions is desperately needed.
Instead, avoidance, misinformation, non-engaging and dismissive responses were received from chairperson and presiding officers.
The current IGI’s term will end on March 31 2015, and it is difficult to conceive how the new incumbent, appointed in an unnecessarily secretive process, will enjoy the public and media confidence this office so urgently requires.
To that end, amaBhungane, together with like-minded organisations, are considering further legal steps.
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The M&G Centre for Investigative Journalism (amaBhungane) produced this story. All views are ours. See www.amabhungane.co.za for our stories, activities and funding sources.