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POLICY for MANAGING ACCESS to INTELLIGENCE INFORMATION in POST-APARTHEID SOUTH AFRICA University of the Witwatersrand

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POLICY for MANAGING ACCESS to INTELLIGENCE INFORMATION in POST-APARTHEID SOUTH AFRICA University of the Witwatersrand POLICY FOR MANAGING ACCESS TO INTELLIGENCE INFORMATION IN POST-APARTHEID SOUTH AFRICA Submitted by Sandra Elizabeth Africa In fulfilment of the requirements for the degree PhD in Management University of the Witwatersrand Supervisor: Professor Gavin Cawthra September 2006 TABLE OF CONTENTS Pages DECLARATION.................................................................................................... v ABSTRACT……………………………………………………………………… vi TABLE OF ACRONYMS………………………………………………………. vii CHAPTER 1: AIM OF THE STUDY ………………………………………….. 1 Problem statement………………………………………………………………… 1 Background………………………………………………………………………... 1 Aim of the study…………………………………………………………………. 3 The research questions…………………………………………………………….. 5 Significance of the study………………………………………………………….. 7 Scope of the study………………………………………………………………… 9 Title of the dissertation…………………………………………………………… 12 Structure of the dissertation………………………………………………………. 13 CHAPTER 2: METHODOLOGY……………………………………………. 15 Introduction………………………………………………………………………. 15 Main methodological features of the study………………………………………. 16 Underlying assumptions of the study…………………………………………….. 20 The research process……………………………………………………………… 22 The research tools………………………………………………………………… 24 Interpretation of the research results……………………………………………… 28 Concluding remarks………………………………………………………………. 30 CHAPTER 3: LITERATURE REVIEW …………………………………….. 31 Introduction………………………………………………………………………. 31 Conceptual approaches to secrecy……………………………………………….. 31 Balancing secrecy and access to information in international relations…………. 35 Secrecy and transparency in liberal democracies………………………………... 39 i Secrecy and transparency in societies in transition……………………………… 42 Secrecy and transparency in South Africa………………………………………. 49 The national security debate and its implications for security sector governance………………………………………………………………………. 52 National security in Africa and the Third World……………………………. .... 56 National security, security sector reform and access to information in South Africa…………………………………………………………………….. 60 Concluding remarks…………………………………………………………….. 63 CHAPTER 4: OFFICIAL SECRECY AND STATE SECURITY UNDER MINORITY RULE IN SOUTH AFRICA …………………………………………………. 66 Introduction…………………………………………………………………….. 66 The period prior to 1910……………………………………………………….. 67 1910 – 1948……………………………………………………………………. 70 1945 – 1960……………………………………………………………………. 74 1960 – 1976……………………………………………………………………. 77 1976 – 1990…………………………………………………………………….. 82 Concluding remarks……………………………………………………………. 87 CHAPTER 5: THE TRANSITION TO DEMOCRACY, AND ITS IMPLICATIONS FOR INTELLIGENCE ACCOUNTABILITY AND TRANSPARENCY…………………………………………………….. 90 Introduction…………………………………………………………………….. 90 The context of negotiations for changes in the intelligence services…………… 90 The management of intelligence information during the negotiations phase (1990-1993)……………………………………………………………… 93 The management of intelligence information under the Transitional Executive Council (June 1993- April 1994)……………………… 97 The management of intelligence information under the RSA Constitution of 1993 (the “Interim Constitution”) from May 1994 - December 1994………. 100 Impact of the Constitution of the Republic of South Africa, 1996 on the intelligence services……………………………………………………. 107 Parliamentary oversight and access to information……………………………. 109 ii The role of the Inspector-General of Intelligence…………………………….. 111 The role of the Auditor-General……………………………………………… 112 Concluding remarks…………………………………………………………… 116 CHAPTER 6: IMPLICATIONS OF THE PROMOTION OF ACCESS TO INFORMATION ACT, 2000 FOR THE SOUTH AFRICAN INTELLIGENCE SERVICES …………………………………………….. 118 Introduction…………………………………………………………………… 118 The policy and legislative context of the PAIA………………………………. 118 Assessment of the post-apartheid legislative context for secrecy…………….. 122 Origins for the Promotion of Access to Information Act, 2000……………… 124 Outline of the Act…………………………………………………………….. 127 Scope of application of the Act………………………………………………. 127 Routine disclosures required to be contained in the PAIA manuals……………… 129 Requests for access to information……………………………………………. 130 Grounds for refusal of access to records………………………………………. 130 Implications of the grounds for refusal for the intelligence services………….. 131 Appeals……………………………………………………………………….. 139 Functions of the Human Rights Commission………………………………… 139 Other aspects covered in the Act……………………………………………… 139 Implications of the overall legal framework for secrecy and transparency…… 140 Comparative international experience………………………………………… 140 United States of America (USA)……………………………………………… 142 Canada………………………………………………………………………… 146 India……………………………………………………………………………. 149 Lessons for South Africa from the international examples…………………….. 152 Concluding remarks…………………………………………………………….. 154 CHAPTER 7: APPLICATION OF THE PROMOTION OF ACCESS TO INFORMATION ACT, 2000, IN THE INTELLIGENCE SERVICES UP UNTIL AUGUST 2005………………………………………………………………… 156 Overview of implementation of the Act……………………………………….. 156 Capacity of the intelligence services for implementation of the PAIA……….. 158 iii Compliance by the intelligence services with the provisions of the PAIA…… 160 Case Studies…………………………………………………………………… 166 South African History Archives Trust (SAHA) applications to the NIA and the Department of Justice and Constitutional Development (DOJ) for access to TRC records……………………………………………………… 166 CCII Systems (Pty) Ltd vs the Minister of Defence on the release of records relating to the government’s Strategic Arms Procurement Package…. 178 Concluding remarks……………………………………………………………. 185 CHAPTER 8: ANALYSIS OF THE RESEARCH RESULTS……………. 188 Introduction ……………………………………………………………………. 188 Managing intelligence information in the transition…………………………… 189 Implications of the key issues in the literature…………………………………. 190 Interpreting the interview results……………………………………………….. 193 Other countries’ experiences…………………………………………………… 196 Policy recommendations……………………………………………………….. 197 Principles for the classification and declassification of information…………… 201 Various scenarios requiring policy on classification and declassification …….. 203 Concluding remarks……………………………………………………………. 209 INTERVIEWS ………………………………………………………………. .. 214 TABLES: Table 1. Summary of classification of TRC records, in Affidavit filed by D. Porogo in High Court (TPD) on 22 December 2003………………………. 172 REFERENCES……………………………………………………………….. 216 iv DECLARATION I declare that this report is my own, unaided work. It is submitted in partial fulfilment of the requirements for the degree of Doctor of Philosophy, at the University of the Witwatersrand, Johannesburg. It has not been submitted before for any degree or examination in any other University. ___________________ Sandra Elizabeth Africa v ABSTRACT Under apartheid, the South African intelligence services operated in secrecy and without the framework of a Constitution upholding basic human rights. The situation changed drastically with the introduction of a democratic political dispensation in 1994, and with the adoption of the Republic of South Africa Constitution Act, 1996. One of the fundamental rights contained in the Bill of Rights (Chapter 2 of the Constitution) was the right of access to information. The subsequent passage of legislation to give effect to this right, required all state structures - including the civilian intelligence services, the National Intelligence Agency and the South African Secret Service - to actively disclose information about themselves, and to receive and respond to requests for access to records that were made in terms of the enabling legislation. The main issue with which the study is concerned - the balance between secrecy and transparency in a democracy - is one of a wider set of concerns related to democratic control and accountability of the intelligence and security services. The study explores policy options for reconciling the public’s right to information with the intelligence services’ need for a degree of secrecy with which to conduct their work. Inter alia, it compares the policy choices of three countries about how their intelligence services should function in relation to access to information legislation. The research reveals that there was uneven and erratic compliance by the intelligence services with key provisions of the Promotion of Access to Information Act, 2000, up to and including August 2005. The weaknesses arose because of the absence of clear policy on how to implement the Act in relation to the intelligence services, and in relation to information held by the intelligence and security services. The study therefore argues the need for a comprehensive policy package, which sets criteria for the conditions under which information should be protected from disclosure, and the criteria for determining when information no longer requires such protection. Finally, it argues for strict oversight of the intelligence services’ choices around secrecy and transparency. vi TABLE OF ACRONYMS 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 CDAF Geneva Centre for the Democratic Control of Armed Forces CDRC Classification/Declassification Review Committee CIA Central Intelligence Agency CODESA Convention for a Democratic South Africa COMSEC Electronic Security Communications (Pty) Ltd, 2002 CSIS Canadian Security Intelligence Service DOD Department of Defence DOJ Department of Justice and Constitutional Development
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