While South Africa has implemented a model system on paper, in practice the implementation of our system has fallen short in many respects.

 

In Canada, the McDonald Commission argued that “security must not be regarded as more important than democracy, for the fundamental purpose of security is the preservation of our democratic system.”

 

It is thus important for us to continually reassess our role as parliamentarians in ensuring that there is as much transparency and accountability as possible over our intelligence services.

 

Intelligence agencies not only protect but can also threaten democracy. The threat may come from invasions of privacy by information gathering and surveillance; by direct attempts to manipulate the political process or by control of information, infiltration of political movements, pressure groups or trade unions. 

 

While it is widely accepted that official communications and operations can only be transparent to a limited extent, to ensure that the relevant operations, sources and assets are not compromised, within this modified system of accountability the need for rigorous control and oversight is greater, not less.

 

Internationally, best practice for parliamentary oversight is that of a closed committee.  Provided that such a committee establishes a reputation for independence and thoroughness, this need not affect its legitimacy. However, despite the best intentions of the architects of our system, and strong powers given to it in legislation, the Joint Standing Committee on Intelligence (JSCI) has not achieved such a level of legitimacy but has rather ensured that the interests of party politics are placed above the public interest.

  

 

International Best Practice in designing oversight mechanisms for intelligence services focuses on the need to establish mechanisms to prevent political abuse while providing effective governance of the agencies; upholding the rule of law; and ensuring the proportionate use of exceptional powers in order to protect human rights. Further, investigative techniques should be proportionate to the security threat under investigation and weighed against the possible damage to civil liberties and democratic structures; less intrusive alternatives should be used wherever possible; and control of discretion should be layered so that the greater the invasion of privacy, the higher the level of necessary authorisation. 

 

In democracy no area of state activity should be a ‘no-go’ zone for the legislature, including security sectors – subject to the Constitution. Parliamentary involvement gives legitimacy and direct democratic accountability. It can help to ensure that the security organisations are serving the state as a whole and protecting the constitution rather than narrower political or sectional interests. 

 

International commentators have argued that while the institutions of oversight and accountability for the intelligence function in South Africa would appear to be strong on the surface; upon further examination these can be found to be weak and problematic at best. 

 

The problem has to some degree been the politicisation of the intelligence process and the development of parallel (political) intelligence structures given the historical associations of the intelligence services. 

 

However, the other problem has been the lack of reporting of the JSCI and indeed the failure of the committee to make use of all the powers given to it by law. 

 

Since the formation of the JSCI and the enactment of the Intelligence Services Oversight Act 40 of 1994, the Annual Reports of the Committee have always been late, in clear breach of the law. 

 

It was only at the very end of the 4th Parliament, in March 2014, that the Committee finally tabled its Annual Reports for the periods 2010/11 and 2011/12, with the most recent Annual Report still being under consideration. This is unacceptable given the legislative provision on annual reporting of the committee.

 

However, not only are these reports tabled late, but they are never subject to debate in the House. While it is crucial to ensure that security is protected in the process of parliamentary oversight of the intelligence services, internationally it has widely become accepted that higher levels of public debate on certain aspects of the intelligence services are necessary for strong democratic oversight to prevail. 

 

Indeed in the UK it has now become accepted that Parliamentary questions in the House which mention intelligence services but which do not seek information about individuals or operations are acceptable. 

 

Why then is it not common practice in this House to debate the Annual Reports of the JSCI since they contained declassified information? 

 

Also given the powers of the committee to provide special reports to the House in addition to annual reports, why have we only had one such report in the 4th Parliament? And this special report – on the Public Works Task Team report which was supposedly classified and subsequently released to the public was a complete white wash.

 

This one special report served to prove that South Africa’s legislative framework for intelligence oversight is indeed strong in theory but weak in practice. The report by the JSCI served only to support the findings of the Department of Public Works. It failed to provide critical analysis, and when viewed against the Public Protectors report into the matter, has been shown as a political tool to protect the President and not the oversight mechanism intended by legislation to uphold the rule of law and democratic principles.

 

Given the importance of strengthening the oversight of the intelligence services and the need to ensure that the agency upholds our constitutional democracy, the Democratic Alliance intends to introduce a Private Member’s Bill in this 5th Parliament to attempt to provide more safeguards against delays and abuse within the Oversight Act, and to provide greater alignment between our system and international best practice.

 

This will include ensuring that the various legislative provisions, such as the PFMA and the Oversight Act, which impact on the annual reporting of the Committee are aligned to prevent unnecessary delays and to create stricter time limits on the declassification of information by the Executive. Changes will also consider the legal requirement for the Executive to state in general what is omitted from any published report and the reason for the omission. This will enable political scrutiny of such decisions to take place through the normal parliamentary process.

 

Is South Africa to be held to higher standards than other countries? Yes. If for no other reason than that the architects of South Africa’s post-1994 intelligence dispensation stated that they would hold themselves to far higher standards than not only the system that they looked to replace, but also international standards for the field.

 

If one was to grade South Africa in terms of the strength of its accountability and oversight mechanisms for intelligence, one would struggle to give us a passing grade.

 

The intelligence services are barely independent from the executive – indeed in some senses they could be seen as slaves to the Executive’s policies and interests and indeed the very mechanism created to provide accountability, the JSCI, has itself become subject to politicisation and Executive control.

 

For the future of democratic control over our intelligence services urgent change is required.