Watching the Watchdog: Security Oversight Law in the New South Africa
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Michigan Journal of Race and Law Volume 3 1997 Watching the Watchdog: Security Oversight Law in the New South Africa Christopher A. Ford Governmental Affairs Committee of the U.S. Senate Follow this and additional works at: https://repository.law.umich.edu/mjrl Part of the Comparative and Foreign Law Commons, National Security Law Commons, and the Rule of Law Commons Recommended Citation Christopher A. Ford, Watching the Watchdog: Security Oversight Law in the New South Africa, 3 MICH. J. RACE & L. 59 (1997). Available at: https://repository.law.umich.edu/mjrl/vol3/iss1/3 This Symposium Article is brought to you for free and open access by the Journals at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of Race and Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. WATCHING THE WATCHDOG: SECURITY OVERSIGHT LAW IN THE NEW SOUTH AFRICA ChristopherA. Ford* This Article attempts to assess the experiences of post-apartheidSouth Africa in the realm of national security law by examining key issues from constitutional, statutory, and policy perspectives. It observes that South Africans now have a great "window of opportunity" that allows them to establish the habits and mores necessary to a working security oversight regime, and argues that the way in which South Africa strikes a balance between the requirements of nationalsecurity and the preservation of personal liberties is of enormous importance to the Republic's future. It further contends that South Africa's choices in this arena could have significant implications and/or hold important lessons for other democracies aroundthe world. The Article concludes by making recommendations for the proper role of the legislative, executive, and judicial branches in South African security oversight law. IN TRO D U CTIO N ................................................................................. 59 I. CHALLENGES AND OPPORTUNITIES ................................................ 62 A . A New South Africa ................................................................... 62 1. Political System in Flux .................................................. 62 2. An Ignominious Past ....................................................... 63 3. The Challenges of History ............................................... 67 4. The "Core Tension" of National Security Law ............. 71 5. The Peculiarities of National Security Law .................. 74 a. Specificity vs. Generality: The Problem of Shifting Equilibria....................................................... 74 b. The Role of the Courts ................................................ 80 c. Law as "Social Process?"........................................... 82 d. Findingthe Balance..................................................... 83 B. South Africa's Challenges .......................................................... 85 1. Third World Problems ..................................................... 85 2. First World Problems ....................................................... 89 a. UncertainInternational Responsibilities ..................... 90 * The author served as Assistant Counsel to the Intelligence Oversight Board at the White House in 1996 and is presently Counsel for Special Investigations at the Governmental Affairs Committee of the U.S. Senate. He is grateful to his former colleagues at the law firm of Shea & Gardner for their support and encourage- ment. Above all, he is grateful to his wife Jennifer Davis-Ford for the boundless love, kindness, and patience she has shown him during the preparation of this Article. The views expressed herein are his own, and do not necessarily reflect those of the Board, the Committee, or any of their staff members. Michigan Journalof Race & Law [VOL. 3:59 b. Domestic Military Roles ..............................................93 c. The SANDF's New Roles and Civil-Military Relations .......................................................................95 3. Uniquely South African Challenges ................................100 a. Transforming the Military............................................. 100 b. Problems in the Police Force ..........................................106 c. The Entrenched Civil Service .........................................109 d. Domestic Politicaland Religious Groups....................... 110 e. Cross-borderProblems: Aliens, Weapons, Drugs, and Theft .........................................................................115 f. A Continuing Internal Security Role for the Military... 116 C. Lessons from the U.S. Experience? ..............................................118 D. The Challenges of Security Oversight......................................... 121 1. A Taxonomy of Oversight Law and Policy ....................121 2. Setting the Security-Oversight Mold: Now or Perhaps N ever .....................................................................122 II. NATIONAL SECURITY LAW AND POLICY IN SOUTH AFRICA .............126 A . Executive O versight..................................................................... 126 B. Intra-InstitutionalOversight ....................................................... 135 C. PopularAccountability ................................................................139 D . Legislative Oversight ...................................................................143 1. The Current Legislative Scheme ......................................144 2. The Structural Weakness of Legislative Oversight in South A frica ....................................................................146 3. The Power of the Purse ......................................................152 4. The Legislature as an Oversight Organ .........................155 E. Judicial Oversight ........................................................................157 1. A Tradition of Judicial Independence Squandered ........159 2. Reinventing the Judicial "Jealous Eye?" ...................162 3. A Case Study: Domestic Intelligence Surveillance .........163 4. An Inevitable Judicial Role in Oversight Issues ..............168 III. THE FUTURE OF SOUTH AFRICAN SECURITY OVERSIGHT? ................ 173 A . Recom m endations ........................................................................173 1. Legislative Oversight Issues .............................................173 2. The Surveillance Court ......................................................174 3. Other Oversight Organs ....................................................176 4. The Role of the Judiciary ...................................................177 a. A New Jurisprudenceof "Warning?".................. 177 b. A CIPA Analogue? ........................................................180 c. The Concept of "NationalSecurity" .............................181 CONCLUSION: A PARTING WORD .................................................182 FALL 19971 Watching the Watchdog Madness in great ones must not unwatch 'd go.' INTRODUCTION South Africa's tortuous journey to majority rule has long been a subject of enormous concern to scholars, public officials, and concerned citizens around the world. For years, perhaps no country symbolized .the divisions and the controversies of the post-war world as much as did the Republic of South Africa. Indeed, a person's position with respect to the efforts of the South African people to overcome apartheid became, for observer and participant alike, a litmus test of that person's role in any number of broader struggles of enormous magnitude, struggles involving: racial equality, international communism, democratic self-rule, imperialism, liberalization and economic development, or class oppression. Most of all, however, South Africa grabbed the attention of the world because of race. In most of the other struggles that its tumultuous post-war history seemed to illustrate and embody, South Africa remained to foreign observers one arena among many. With respect to race relations, however, South Africa inhabited a symbolic and political plane entirely its own. For the severity of its racial polarization, for the enduring character of its struggle for majority rule, and for the audacity of the White government's claims to have found in apartheid's racial oppression a liberating ideal -of race- autonomous "self-determination," 2 South Africa was as compelling as it was appalling-an almost irresistible subject for the world's fascination and deep passions. As the fruits of this dramatic journey, the Republic's present- day efforts to bring democracy, human rights, economic development, and civil order to its polarized society continue to fascinate much of the world. In the United States, however, the challenges and opportunities of the post-apartheid era are still seen almost exclusively through the lens of race, and are studied principally for the lessons about equality they may offer to other societies.3 It is the assumption of this Article that while the bare facts 1. WILLIAM SHAKESPEARE, HAMLET act 3, sc. 1. 2. See generally Christopher A. Ford, Challenges and Dilemmas of Racial and Ethnic Identity in American and Post-Apartheid South African Affirmative Action, 43 UCLA L. REV. 1953, 1991 (1996) [hereinafter Ford I] (discussing National Party's racial ideology of "separate development" or "separate freedoms" as being distinctive gloss upon traditional racial segregation, as well as leading to some of