The intelligence oversight committee of the South African parliament recently presented its 2019/2020 report annual report. The fascinating and depressing read documents the failures of the country’s spy agencies in unshakable detail. Left unaddressed, these shortcomings can leave the country exposed to even more serious crime and threats to national security than it has already faced.
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 2002 Law for the Regulation of Interception of Communications and Provision of Information Related to Communication (Ley Rica. The report of the oversight committee also included that of the Auditor General.
Nkabinde’s report condemns the Rica process and its weaknesses. The law requires spy agencies to request interception orders from a special judge (currently Nkabinde) to intercept communications to solve serious crimes or counter threats to national security.
Nkabinde’s report, which should not be read apart from the committee’s full report, shows how deep the flaws are in the intelligence services. The solution of these failures must go beyond the reforms to the law.
Nkabinde expressed concern about the incessant illegal interception of communications from public and private officials.
He noted that allegations by News24 journalists that the criminal intelligence division of the South African Police Service had spied they were not far-fetched in them.
One serious weakness that he highlighted was that he had to take the word of the intelligence agency that requested an interception warrant that the details of the request are true. The fact that the surveillance target is not informed of the request, as doing so would defeat the covert surveillance objectives, amplifies this danger. On the contrary, countries like the United States, Canada and Japan require that people who are being monitored be informed within 30 to 90 days of the surveillance.
This weakness can lead South Africa’s intelligence agencies to lie about why they need to intercept someone’s communications. Recently, the Constitutional Court identified this problem is one of several shortcomings that parliament must address when revising the Surveillance Act. The sentence has unleashed a government revision of the law.
Nkabinde highlighted other serious problems with the Rica process.
He cited a police report. It points out that the interception equipment housed in the Office of Interception Centers, the office that conducts interceptions for Rica, is out of date. Equipment breaks down regularly and is limited to old, unencrypted forms of communication such as voice and SMS (mobile phone text messages).
Consequently, according to the police report, “… approximately 99 percent of target communication is lost.” This makes the surveillance law highly unlikely to achieve its objectives.
Interception capabilities are depleted
What is puzzling is that the parliamentary oversight committee has known about the office’s inability for years. Almost every year since 2013, the committee has indicated with concern because Comunicación Nacional, to which the interception office belongs, did not have sufficient resources and was using outdated technology.
It is difficult not to conclude that the government of former President Jacob Zuma deliberately ran over the interception office.
Other weaknesses are not specific to the Rica process. These include the ease with which covert counterintelligence projects can be set up. This includes illegal ones established by the Special Operations Unit of the State Security Agency.
Rogue spies can access a secret service account to finance these projects with ease. Lax controls exist because an apartheid-era law, the Secret Services Account Amendment Act, governs the account. Those who want to access it only have to prove that the intelligence operations are covert and of national interest, which is not defined, so they are open to misinterpretation and abuse.
A related weakness is that spy agencies receive qualified audits Routinely. They have resisted subjecting covert operations to conventional audits, claiming it would jeopardize secrecy.
Therefore, they may speak out or even concoct criminal or national security threats to establish dubious or illegal covert operations. Then, they can justify the excessive use of surveillance and turn to the secret services account for funds. The account provides them with temporary cash advances to pay for operating expenses, such as sources of payment.
A perverse result of improper surveillance is that rogue spies may pay insufficient attention to legitimate threats and exaggerate their successes to keep money flowing into the account.
Inadequate controls and covert surveillance
The Auditor General condemned inadequate internal controls over undercover operations and insufficient evidence of reported accomplishments.
With these abuses in mind, the State Security Agency’s High Level Review Panel, appointed by President Ramaphosa in 2018 to investigate abuses at Zuma’s agency, argument for a review of the Secret Services Account Amendment Act. He also defended the need to introduce auditable methods to account for the expense of temporary monetary advances.
The panel said As a matter of urgency, the Ministry and the State Security Agency would have to work with the Auditor General to find an acceptable way to allow the “unrestricted audit” of the agency’s finances, including undercover operations, so that the Annual agency audits can be held until scrutiny.
Administrative oversight of intelligence is also in dire shape, providing opportunities for illegal surveillance. The intelligence committee report Points out that spy agencies largely ignore the findings of the Inspector General of Intelligence, who oversees the agencies. That’s because the findings are mere recommendations and cannot be enforced.
This problem has led to a situation where, according to the parliamentary oversight committee, the implementation rate for the Inspector General’s recommendations was only 2% or zero percent.
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 it since then.
Closing the loopholes of espionage
It is damning that journalists had to resort to litigation to force the government to close loopholes in the law that allowed illegal espionage.
President Cyril Ramaphosa and his government must show more urgency to close the other loopholes that rogue spies continue to exploit.
Failure to do so is likely to mean that illegal espionage will continue and even flourish.
Then the predatory elite, who prospered under Zuma – could reassert control over the levers of the state once again, with truly dire consequences for South Africa.
Jane Duncan, Professor, Department of Journalism, Film and Television, University of Johannesburg