Well-kept SecretS The right of access to information and the South African intelligence services Sandy Africa Well-kept SecretS Well-kept SecretS The right of access to information and the South African intelligence services Sandy Africa Institute for Global Dialogue Jointly published by: Institute for Global Dialogue IGD House, Thornhill Office Park Bekker Street, Vorna Valley Midrand, South Africa P O Box 32571, Braamfontein 2017 Tel +27 11 315-1299 Fax +27 11 315-2149 [email protected] www.igd.org.za Friedrich-Ebert-Stiftung Mozambique Office Avenida Tomás Nduda 1313 Maputo, Mozambique Tel: +258 214 912 31 Fax: +258 214 902 86 [email protected] First impression in May 2009 © Copyright in the text vests in the author. © Copyright in this published work vests in the publisher. All rights reserved. The material in this publication may not be reproduced, stored, or transmitted without the prior permission of the publisher. Short extracts may be quoted, provided the source is fully acknowledged. ISBN: 978-1-920216-22-1 Designed and produced by Acumen Publishing Solutions, Johannesburg Printed by Paarl Print Contents Preface 9 Foreword 11 Introduction 15 Part One Context and background Chapter 1: Secrecy and transparency in the governance of intelligence 31 services Chapter 2: The policy framework for official secrecy prior to 1994 47 Chapter 3: The transition to democracy, and its implications for intelligence 64 accountability and transparency Part Two The new dispensation Chapter 4: Mechanisms facilitating access to information about the 87 intelligence services Chapter 5: PAIA and its implications for the intelligence services 97 Chapter 6: The intelligence services and the right of access to information: 115 three case studies Part Three Lessons, conclusions, and policy recommendations Chapter 7: Comparative international experiences 135 Chapter 8: Conclusion and policy recommendations 149 Interviews and references 166 ACRonYMs AnD ABBReVIAtIons AC Amalgamation Committee ADS African Defence Systems (Pty) Ltd ANC African National Congress AU African Union BOSS Bureau for State Security CCII CCII Systems (Pty) Ltd CDRC Classification/Declassification Review Committee CIA Central Intelligence Agency CODESA Convention for a Democratic South Africa COSATU Congress of South African Trade Unions COMSEC Electronic Security Communications (Pty) Ltd, 2002 CSIS Canadian Security Intelligence Service DOD Department of Defence DOJ Department of Justice and Constitutional Development DIO Deputy Information Officer DIS Department of Intelligence and Security DMI Directorate of Military Intelligence DMI Division of Military Intelligence EU European Union FOIA Freedom of Information Act GFC German Frigate Consortium HOCS Heads of Civilian Services HRC Human Rights Commission IAAC Information Act Advisory Committee ICCPR International Covenant on Civil and Political Rights ICD Intelligence Coordination Division Acronyms AnD AbbrevIAtIons / 7 IO Information Officer ISCOR Iron and Steel Corporation ISSUP Institute for Strategic Studies, University of Pretoria IRC Interdepartmental Review Committee JCIC Joint Coordinating Intelligence Committee JSCI Joint Standing Committee on Intelligence KGB Komityet Gosudarstvyennoi Biezopasnosti (Committee for State Security) MISS Minimum Information Security Standards NGO Non-governmental Organisation NIA National Intelligence Agency NCC National Communications Centre NICOC National Intelligence Coordinating Committee NIS National Intelligence Service NP National Party NSA National Security Agency NSMS National Security Management System OAU Organisation of African Unity OB Ossewa Brandwag PAC Pan Africanist Congress PAIA Promotion of Access to Information Act, 2000 PFMA Public Finance Management Act, 1999 PKO Peacekeeping Operation RCMP Royal Canadian Mounted Police RSA Republic of South Africa SACP South African Communist Party SADC Southern African Development Community SADF South African Defence Force SAHA South African History Archive SANAI South African National Academy of Intelligence 8 / Acronyms AnD AbbrevIAtIons SANDF South African National Defence Force SAP South African Police SAPS South African Police Service SARS South African Revenue Service SASS South African Secret Service SIRC Security Intelligence Review Committee SSAC State Security Advisory Council SSC State Security Council TBVC Transkei, Bophuthatswana, Venda, Ciskei TEC Transitional Executive Council TRC Truth and Reconciliation Commission UDF Union Defence Force UDF United Democratic Front UN United Nations UNITA National Union for the Total Independence of Angola USA United States of America USSR Union of Soviet Socialist Republics WHAM Winning Hearts and Minds PReFACe ivilian intelligence services are often perceived as occupying a recondite Cworld, characterised by secrecy, ambiguity, and concealment. But not always understood is that they are subject to stringent oversight and accountability imperatives, which are often legally enshrined. Access to information is thus an important normative aspiration for any society that seeks to promote the virtues of democracy. One of these is the right of the public to know about the nature of intelligence work with regard to its policy, operational and regulatory dimensions. This takes on added meaning and relevance in defining the parameters of how political power is exercised and managed. The case of South Africa is thus especially intriguing, interesting and important. The state’s previous civilian intelligence apparatus occupied the dark recesses of illegality, where it helped to uphold and protect the apartheid regime and its secu- rity dictates. In the current dispensation, it has emerged into the broad daylight of being subject to public scrutiny, transparency, and democratic accountability. How- ever, as the author trenchantly argues, this changed reality should not mask the persistence of awkward dilemmas, tensions and ambivalences in law, policy and practice. Indeed, these will continue to define the challenges highlighted in this enquiry, crucially given that the ruling party, the African National Congress, had its own intelligence systems and culture while conducting its struggle for liberation. Rich in texture and nuance, judiciously balanced by the perspectives of a former practitioner and scholar, and informed by comparative experiences, this book represents a pioneering attempt to impose analytical and normative order on how constitutional prerogatives have shaped the interface between the civilian intelligence architecture and access to information in the first decade of South Africa’s transition to democracy. The Friedrich Ebert Stiftung and the Institute for Global Dialogue have come together in a collaborative spirit to make this publication possible. This is not only indicative of their recognising the value of this book but also reflects an abiding commitment to bring it into the public domain where it deserves a wide readership. 10 / PrefAce We take this opportunity to thank the author, Prof Sandy Africa, for her coop- eration throughout as well as her dedication in updating the study with new and relevant material. The last word of gratitude is reserved for Riaan de Villiers who ably turned a doctoral dissertation into a highly engaging and readable narrative. Manfred Öhm Garth le Pere Resident Representative Executive Director FES: Mozambique IGD: South Africa FoRewoRD his volume is based on my doctoral dissertation, and represents an attempt to Tmake the study as accessible as possible to a wider audience. I hope it will be read by members of the South African intelligence services, past and present, and that they will find it a fair representation of the way in which the post-apartheid civilian intelligence dispensation came into being, and how the challenges that emerged in the course of that process have been addressed. I also hope it will be read by, and benefit, other policy actors – the executive, members of parliament, and members of human rights bodies – as well as students in policy and security studies. Most importantly, I hope that members of the public, who may have been mys- tified or intrigued by the limited information about the South African intelligence services in the public domain, will feel inclined to explore this study. Certainly, members of the international policy community have displayed considerable interest in the South African model of ‘security sector reform’, the catch phrase for inclusive efforts to subject security institutions to universally agreed instru- ments of control, accountability, and oversight. Other African countries emerging from conflict have also displayed an interest in the South African experience, as have analysts and others in more stable societies with a renewed interest in the accountability of their security and intelligence institutions. I hope this book will enrich their enquiries. Many people have contributed to its evolution. Professor Gavin Cawthra was an unassuming yet knowledgeable supervisor during the lengthy doctoral dis- sertation process. Several of my bosses in the intelligence services, including Tim Dennis, director-general of the South African Secret Service (SASS), and Lindiwe Sisulu and Ronnie Kasrils, ministers for the intelligence services, suc- cumbed to my rather impertinent requests for sabbatical leave. Interviews and discussions were an invaluable source of information. I interviewed or held dis- cussions with experts involved in drafting the Promotion of Access to Information Act