6.6.1 Background and Overview of the South African Intelligence Governance
The South African system of governance is founded on the principle of constitutionalism which constrains the coercive power of government by placing substantial checks on its exercise of power. The concept of constitutionalism was adopted during the peace negotiation between then apartheid regime and the ANC in order to restrict the democratic right of the black majority to govern the new South Africa and thus offering a peace of mind to the minority white population that feared revenge from the back population and also to meet the aspirations of the black majority.
The ruling National Party that was to become an opposition party after the negotiation insisted that security services be bound in the constitution because they knew that these organisations are the mechanisms of state coercion that the ANC-led government could use against the white community (Respondent No. 22).
The ANC, whose members have suffered a lot from the abuses of the apartheid security services, welcomed the idea of constraining the power of the state as they wanted to move away from the position in which security services in general and intelligence agencies in particular were used as a tool of control and oppression. This led to the adoption of a democratic constitution67in 1996 which is binding on all the organs of the state including the intelligence agencies, the executive, the legislature, and the judiciary.
Nathan (2009:2) notes that the Constitution contains a set of higher- order principles and rules that can regulate the security services and the manner in which they are governed. This supreme law clearly states in its section 199(5) that security services must act, and must teach and require their members to act, in accordance with the Constitution and the law. The principle of civil supremacy contained in the Constitution puts all security organisations under civil authority through both the executive and parliament and gives the power to multiparty parliamentary committees to have oversight of the security services.
Prior to the adoption of the new Constitution, a long popular debate about the reform of intelligence took place throughout the country and ended with the adoption in 1994 of White Paper on Intelligence. The white paper provided a framework for understanding the philosophy, mission and role of intelligence in the new democratic dispensation.68
67 It is clearly marked in the preamble of the current constitution of the Republic of South Africa that the constitution lays the foundation for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law.
68 The White Paper can be viewed at http://www.info.gov.za/whitepapers/
1995/intelligence.htm
This important document defines intelligence as ‘the product resulting from the collection, evaluation, analysis, integration and interpretation of all available information, supportive of the policy and decision making process pertaining to the national goals of stability, security and development’. It states that intelligence serves the Constitution and is a tool for furthering the aims and objectives of the democratic government. Based on the principle of constitutionalism and civil supremacy the following formal and informal mechanisms of intelligence control and oversight were established:
6.6.2 Mechanisms of Executive Control
As mentioned in Chapter 2, the terms oversight and control are often used interchangeably but a distinction can be made between the two:
oversight is exercised in parliament and is more about the review of the activities of intelligence organisations; and control is exercised at the executive and administrative levels and it concentrates more on the effectiveness of intelligence bodies, that is, the ability of intelligence services to fulfil their functions and tasks.
Ministerial and Intra-Agency Control
The Constitution of the Republic of South Africa states that President as the head of the national executive must appoint the head of each intelligence service, and must either assume political responsibility for the control and direction of intelligence services or designate a member of the Cabinet to assume that responsibility.69 The position of Minister for Intelligence Services was established within the Cabinet and 'The Minister’ was given the power to control the activities of intelligence services.70 This includes the power to create the posts of Deputy Director-General and Assistant Director-General; to establish
69 Section 209(2) of the Constitution of the Republic of South Africa
70 Section 1 of the Intelligence Services Act 40 of 1994
chief directorates and directorates and divisions; and to prescribe the functions and post structures thereof.71 The Minister has also been empowered by the National Strategic Intelligence Act 29 of 1994 (Section 5 A.1) to ensure the efficient functioning of the National Intelligence Structures72, and to control and supervise the co-ordination of intelligence supplied by them. The creation of these posts and structures aims to ensure proper internal control of each intelligence service, which is the second level of executive control after the Cabinet level.
The minister for intelligence determines the budget and provides guidelines for the functioning and priorities of the services (ISS 2007:19) and is empowered by national legislation to take responsibility for formulating policy, to receive reports from the agencies and have the right to approve matters of political sensitivity or undertakings that affect fundamental rights (Born and Leigh 2005:58). His powers and functions are clearly specified in the intelligence legislation; they are real and precise, and make it easier for the minister to control and direct intelligence agencies. Consequently, the South African Minister for Intelligence can be held liable for the actions of the intelligence agencies and can be called to account by parliament.
• Inspector-General
The Inspector-General of Intelligence is appointed by the President as per Section 210 of the South African Constitution and is approved by the National Assembly through a supporting vote of two-thirds of its members. He or she has the mandate and power to investigate
71 Section 4(1) of the Intelligence Service Act
72 South African Intelligence Structures are: the National Intelligence Agency (NIA), the South African Secret Service (SASS), the National Communications Centre (NCC), the Office for Interception Centres (OIC), the National Intelligence Co-ordinating Committee, the South African National Academy of Intelligence (SANAI), and the Electronic Communications Security (COMSEC)