Parliament’s oversight committee on intelligence recently tabled its 2019/2020 annual report. The engrossing and depressing read documents the failings of the country’s spy agencies in unflinching detail. If not addressed, these failings may leave the country exposed to even more serious crime and national security threats than it has faced already.
The report incorporates reports from Bess Nkabinde, the judge responsible for granting the country’s intelligence services permission to intercept communications. This is in terms of the Regulation of Interception of Communications and Provision of Communication-related Information Act (Rica). The oversight committee’s report also included that of the auditor-general.
Nkabinde’s report is damning of the Rica process and its weaknesses. The law requires the spy agencies to apply for interception warrants to a special judge (currently Nkabinde) to intercept communications to solve serious crimes or counter national security threats.
Nkabinde’s report – which should not be read apart from the committee’s entire report – shows just how deep the failings are in the intelligence services. Fixing these failings will need to go beyond reforms to the act.
Nkabinde expressed concern about “unceasing unlawful interception of communication of private and public officials”.
She noted that allegations by News24 journalists that the crime intelligence division of the South African Police Service had spied on them were not far-fetched.
A serious weakness she highlighted was that she had to rely on the word of the intelligence agency applying for an interception warrant that the details in the application are true. The fact that the surveillance target is not informed of the request – as doing so would defeat the objectives of secret surveillance – amplifies this danger. In contrast, countries such as the US, Canada and Japan require that people who are being monitored be informed within between 30 and 90 days after surveillance.
This weakness can lead to South Africa’s intelligence agencies lying about why they need to intercept someone’s communications. Recently, the constitutional court identified this problem as one of several deficiencies that parliament needs to address when reviewing the surveillance act. The judgment has triggered a government review of the act.
Nkabinde highlighted other serious problems with the Rica process.
She cited a report by the police. It states that the interception equipment housed in the Office for Interception Centres – the office that undertakes Rica intercepts – is outdated. The equipment breaks down regularly and is limited to old-style, unencrypted forms of communication such as voice and SMS.
Consequently, according to the police report, “approximately 99% of the target’s communication is lost”. This makes it highly unlikely that the surveillance law will achieve its goals.
What is confounding is that the parliamentary oversight committee has known about the incapacity of the office for years. Nearly every year since 2013, the committee has noted with concern that National Communication, into which the interception office falls, was under-resourced and using outdated technology.
It is difficult not to conclude that the government under former President Jacob Zuma ran down the interception office deliberately. This to prevent it from contributing effectively to curbing massive corruption and capture of the state by private business interests which characterised his tenure.
Other weaknesses are not specific to the Rica process. These include the ease with which covert counterintelligence projects can be set up. This includes the illegal ones set up by the special operations unit of the State Security Agency.
Rogue spies can then access a secret services account to fund these projects with ease. The lax controls exist because an apartheid era law, the Secret Services Account Amendment Act, governs the account. Those who want access to it merely have to show that intelligence operations are covert and in the national interest, which is not defined, thus open to misinterpretation and abuse.
A perverse result of improper surveillance is that rogue spies may pay insufficient attention to legitimate threats and overstate their successes
A related weakness is that the spy agencies receive qualified audits as a matter of course. They have resisted subjecting covert operations to conventional audits, claiming that would jeopardise secrecy.
So, they can talk up or even invent criminal or national security threats to establish dubious or illegal covert operations. Then, they can justify the overuse of surveillance, and draw on the secret services account for funds. The account provides them temporary cash advances to pay for operational expenses – like paying sources.
A perverse result of improper surveillance is that rogue spies may pay insufficient attention to legitimate threats and overstate their successes, to keep the money flowing into the account.
The auditor-general decried the inadequate internal controls on covert operations, and insufficient evidence for reported achievements.
With these abuses in mind, the High-Level Review Panel on the State Security Agency, appointed by President Ramaphosa in 2018 to investigate abuses in the agency under Zuma, argued for a review of the Secret Services Account Amendment Act. It also argued for the need to introduce auditable methods for accounting for the expenditure of temporary monetary advances.
The panel said as a matter of urgency, the ministry and State Security Agency would need to work with the auditor-general to find an acceptable way to enable the “unfettered auditing” of the agency’s finances, including for covert operations, so that the agency’s annual audits can live up to scrutiny.
Administrative oversight of intelligence is also in a terrible state, which enables opportunities for illegal surveillance. The intelligence committee’s report points out that the spy agencies largely ignore the findings of the inspector-general for intelligence – who oversees the agencies. That’s because the findings are mere recommendations and not enforceable.
This problem has led to a situation where, according to the parliamentary oversight committee, the implementation rate of the Inspector General’s recommendations was either only 2% or 0%.
The inspector-general went to court in 2018 to challenge the office’s lack of powers, independence and resources. There is little evidence that the government has done anything about these problems since then.
It is damning that journalists had to resort to litigation to force the government to close the loopholes in the law that enabled illegal spying.
Ramaphosa and his government need to show more urgency in closing the other loopholes that rogue spies continue to exploit.
Failure to do so is likely to mean that illegal spying will continue and even flourish. Then the predatory elite – which thrived under Zuma – could reassert control over the levers of state once again, with truly terrible consequences for South Africa.
- Jane Duncan is professor, department of journalism, film & television, University of Johannesburg
- This article is republished from The Conversation under a Creative Commons licence