DA wants to change spying laws to improve transparency and oversight
John Steenhuisen claims that ‘such abuse actively threatens and imposes on the privacy of all South Africans’
DA chief whip John Steenhuisen plans to table a private member’s bill to amend certain laws to limit surveillance abuses and improve transparency.
Amid repeated allegations of improper interception of electronic communications, Steenhuisen plans to have the General Intelligence Laws Amendment Bill tabled as the first order of business of the sixth parliament.
“Intelligence-related legislation contains several legislative lacunas that can readily be manipulated or abused,” read a notice recently published in the Government Gazette.
Along with shortcomings in the Regulation of Interception of Communications and Provision of Communication-related Information Act (Rica), Steenhuisen claimed, “such abuse actively threatens and imposes on the privacy of all South Africans”.
The proposal follows widespread allegations against SA’s intelligence services and comes as the Right2Know (R2K) campaign awaits a response from the president over its Promotion of Access to Information Act application to view a high panel report into the functioning of the State Security Agency (SSA).
Parliament’s joint standing committee on intelligence reported in 2010 that in three years since the establishment of the Office for Interception Centres, “three million interceptions were done”.
While Rica judge Hendrick Mmolli Thekiso Musi reported a meagre 180 new applications for the 2017/2018 financial year, R2K revealed in 2017 that the call records and meta-data of at least 70,000 South Africans have been accessed every year since 2015.
These interceptions, R2K claimed, were done through a loophole in Rica with warrants obtained in terms of Section 205 of the Criminal Procedures Act.
Rica is also currently the subject of a Constitutional Court case. R2K, along with Privacy International, have joined the case brought by investigative journalism organisation amaBhungane as friends of the court.
Steenhuisen’s proposed bill aims to amend sections of the National Strategic Intelligence Act, the Intelligence Services Act and Rica, mainly related to spying on electronic communications. The bill suggests, among other things, that signals collection should be a last resort; that three Rica judges should be appointed; and that a target has to be informed at some point if their communications were intercepted.
The bill further aims to limit security agencies’ co-operation and intelligence-sharing with foreign entities, while agencies will also need permission from a judge to share intelligence with other state departments. R2K has called for similar reforms, including notifying targets and appointing a “public advocate” to represent the interests of the public during applications.
Right2Know claims none of SA’s investigative reporters who have had their communications spied on were informed through official channels, but rather by accident, often through a source
Steenhuisen says the appointment of three judges should have the same result as it will afford each judge more time to consider an application as the workload will be evenly spread. “By allowing more time, we will be closing the window for requesters that might be seeking to sneak an untoward interception request in with a series of other bona fide requests.”
The default position, he argues, should also be that a request be denied unless the applicant brings compelling reasons for not denying. Should such a request be granted, Steenhuisen says the target has to be notified “so they can contest the directions if there is no basis for them being spied on”. He added, however, that notification would be delayed should it pose a risk to the administration of justice.
While it would be pointless to inform potential cash-in-transit robbers before they strike, R2K claims none of SA’s investigative reporters who have had their communications spied on were informed through official channels, but rather by accident, often through a source.
According to R2K, Rica has a secrecy provision that prohibits service providers “from telling their users when their communications have been intercepted, or even telling the public how many warrants it receives each year”.
In 2017, the Office of the UN High Commissioner for Human Rights also criticised Rica and expressed its concern “about the relatively low threshold for conducting surveillance and the relatively weak safeguards against unlawful interference in the right to privacy”, as well as “reports of unlawful surveillance practices”.
Hidden in the dark
Currently, any and all information relating to SA’s security apparatus is labelled “classified”. This includes annual reports and details on oversight, meetings, spending, and allegations of wrongdoing against officials.
In terms of Rica, Steenhuisen’s bill proposes that both government departments and the designated judges have to report to parliament annually on interception requests.
“We will be requiring that as much non-confidential information as is practically permissible be disclosed in the form of an annual report, including statistics,” says Steenhuisen. “We do not want, in any way, to compromise the integrity of the SSA or the office of the designated judge, and will not require that any specifics relating to any one particular case be disclosed.”
Jakkie Cilliers, from the Institute of Security Studies (ISS), described SA’s security measures as “excessive” and “outdated”. Whereas in the majority of established democracies there is a proactive approach to openness — including declassifying CIA documents on torture methods in the US — the opposite is true for SA, he notes.
Secrecy allows officials to hide any questionable actions. It keeps South Africans in the dark about allegations of wrongdoing and abuses of state resources. In 2010, the joint standing committee on intelligence confirmed fraud investigations in both the domestic and foreign branches of the SSA. Similar claims of information being “classified” have been made by the SSA’s former director-general Arthur Fraser over allegations relating to the Principal Agent Network’s (PAN) alleged activities. PAN was a covert project set up in 2007 that has been accused of being a parallel intelligence structure.
President Cyril Ramaphosa took unprecedented steps to limit ‘cadre deployment’ when he appointed a committee to nominate the new head of the NPA in the absence of any legislative requirements to do so
In 2016, the auditor-general listed five investigations by the internal investigation unit at SSA. These included “alleged collusion”, “alleged fraudulent transactions instituted at the covert support unit”, and “alleged fraudulent operational expenditure transactions”.
Three members were also criminally charged after cash was stolen from the department’s headquarters in December 2015, which resulted in R16.9m in material losses, the auditor-general reported.
The following year, the auditor-general noted that the SSA incurred irregular expenditure of R31.4m and said there were no “effective steps taken” to prevent this. The report also stated that “there is a lack of consequence management as the leadership does not always hold staff accountable for the poor quality of financial and performance reporting”.
The auditor-general further highlighted “inadequate review processes”, “a lack of monitoring and implementing of action plans by accounting officer(s)” and that “numerous senior acting positions have created instability,” among other things.
“There needs to be much greater transparency and oversight as there is very little at the moment,” says Cilliers.
Read the gazetted notice below:
Appointing the spy-in-chief
The internal affairs of the SSA have received damning media coverage and criticism in recent years, most notably under Fraser — who left the agency during a fallout with the inspector-general of intelligence.
Setlhomamaru Dintwe was investigating, among other things, allegations of forgery, fraud, and corruption against Fraser following a complaint by Steenhuisen himself, relating to the infamous PAN programme.
Dintwe approached the courts when Fraser, a person he is charged with holding accountable, revoked his security clearance for allegedly sharing classified information with MPs. The move disrupted Dintwe’s investigation as he was unable to get into his own office without clearance. The DA is also challenging Fraser’s appointment as director-general of correctional services, something the former spy boss has described as “an attempt to besmirch my character”.
Fraser was appointed as the top spy in 2016 by then president Jacob Zuma. The Mail & Guardian identified him as the person who leaked the “spy tapes”, which delivered a fatal blow to the corruption case against Zuma. Given the powers that Fraser wielded at the SSA, and the classified nature of his agency’s work, Steenhuisen believes the individual appointed to this position needs to be beyond reproach.
The General Intelligence Laws Amendment Bill suggests that candidates for this post be nominated, vetted and a shortlist be compiled by parliament, before the president takes the final decision.
Cilliers agrees that this would improve accountability, but believes it should extend beyond the SSA. The challenges have surfaced across the board from the appointment of a police commissioner, the National Prosecuting Authority (NPA) and the Hawks, to name only a few. It also impedes the independence of other bodies such as the Independent Police Investigative Directorate (Ipid).
President Cyril Ramaphosa took unprecedented steps to limit “cadre deployment” when he appointed a committee to nominate the new head of the NPA in the absence of any legislative requirements to do so. Candidates were quizzed on their plans and past decisions during live broadcasts, giving South Africans a good idea as to who their next director of prosecutions might be.
While the final decision will still lie with the president, Steenhuisen says South Africans should “know all that we need to know of the person that will be running the country’s clandestine and secretive intelligence service”.
According to Cilliers, “political accountability” will always trump “professional accountability” in the absence of any vetting or nomination processes.
The bill, even if implemented, will not address all the challenges facing the intelligence community. It does not specifically speak to the Section 205 loophole; it is limited in improving transparency — especially regarding classification; does not recommend an advocate to oppose applications; and fails to limit the powers of the SSA director-general — who is responsible for both the budget and security clearance of the agency’s watchdog.
During an interview this week, the now former Ipid head Robert McBride, who has approached the courts to challenge a decision not to renew his term, raised concern over classification. McBride referred to an investigation in late 2018 into allegations of abuse of state resources against a senior police officer.
However, when Ipid investigators asked to see a logbook of the car the officer was using, they were informed that its contents were classified. “When we sent a letter to [ask] who classified it and why, [we were told] ‘that’s also classified’,” McBride told Radio 702’s Karima Brown, “so it’s become quite absurd.”
Steenhuisen admits the bill is not a silver bullet.
“It seeks to amend some of the more pressing matters that we, as South Africans, face when it comes to our national intelligence service and the preservation of our privacy,” he said. “But should we wish to address every problem the intelligence community faces, and poses, especially under the cloak of ‘confidentiality’, a proper sweeping out will be required.”