AmaBhungane has joined the Right2Know Campaign (R2K) in sending a letter to the speaker of the National Assembly, calling for a new Inspector General for Intelligence (IGI) - the public protector of the spies - to be appointed urgently. The position has been vacant for seven months.
The letter, sent by the Legal Resources Centre on behalf of R2K, warns that: “The failure of the National Assembly (NA) seven months after the end of the term of the previous head, and four months after the Intelligence Committee finalised its nomination process to vote on this matter has rendered the NA in breach of its constitutional obligations. Accordingly, R2K demands the NA inform us of what steps it intends to take to fulfil its constitutional obligation in terms of section 210 (b) of the Constitution to approve the appointment of the IGI diligently and without delay.”
In accordance with the Intelligence Services Oversight Act, only once the NA passes a vote can the president move to appoint the new IGI.
Attempts earlier this year to vote in the previous chair of the Joint Standing Committee on Intelligence Cecil Burgess, were unsuccessful after the ANC was unable to get a two-thirds majority. R2K and others had raised doubts about the process that led to Burgess's nomination.
Burgess led the process of drafting the controversial Secrecy Bill to regulate and police classified information.
The IGI is a powerful constitutionally mandated watchdog over the intelligence agencies, ensuring that the rule of law is upheld and the rights of South Africans are protected. The IGI can investigate complaints lodged by any member of the public, the media and the intelligence services on alleged maladministration and abuse of powers by the spies.
The importance of an independent and effective watchdog amidst ongoing political abuses of intelligence agencies and the rise in undue surveillance of activists and journalists cannot be overstated.
Recently, State Security Agency (SSA) officials reportedly accused some parliamentary journalists and civil society organisations, including R2K, of being "foreign agents". One recourse would be for affected parties to submit complaints to the IGI, but the post stands empty.
It is not just new complainants who stand to be affected by the leadership vacuum. An unresolved backlog in complaints plague this headless oversight body.
AmaBhungane has lodged two complaints to the office of the Inspector General within the last two years, both of which are unresolved.
In both instances grave infringements on source protection, which is recognised in national and international law as vital for press freedom, hang in the balance.
AmaBhungane’s first complaint was lodged following confirmation that the SSA intended to investigate leaks of the Public Protector’s provisional report on the Nkandla security upgrades.
This was after amaBhungane and the Mail & Guardian have published information contained in the public protector’s provisional report. The second complaint arose from the revelation that communications of amaBhungane managing partner Sam Sole had been intercepted. In April, the president's attorney attached transcripts of these conversations to an affidavit before the North Gauteng High Court, the president’s attorney cited these intercepted telephonic communications and attached transcripts of them in an annexure to an affidavit in the so-called “spy tapes” matter.
An investigative community newspaper in Mpumalanga, Ziwaphi, similarly submitted a complaint to the IGI in February this year.
The complaint followed statements by Mpumalanga Premier David Mabuza, that he was receiving intelligence briefings on the movements and activities of journalists in Mpumalanga.
Confidentiality of journalists' sources is an indispensable part of the right to freedom of the press, and such communications would tend to be unlawful and unconstitutional. Confidential communication with sources as an integral part of an investigative journalist's daily work.
The continued delay in appointing a permanent IGI, with the authority to finalise investigations and reports on these, is an infringement on the media and public’s rights to dignity and privacy but also of the broader right to freedom of the press.
Unaccountable surveillance chills press freedom, discourages whistle-blowers and activists, and deprives citizens of constitutional rights and protections.
Parliament plays a crucial role in holding the executive accountable and providing oversight to the spies.
A review of the intelligence oversight legislation is sorely required to enable the office of the IGI to act independently and Parliament’s intelligence portfolio committee to operate with greater transparency, making the intelligence agencies more publicly accountable and mitigating the threat the spies may pose to South Africa’s constitutional democracy.
AmaBhungane engages in advocacy under its mandate to help secure the information rights investigative journalists need to do their work.
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The M&G Centre for Investigative Journalism (amaBhungane) produced this story. All views are ours. See www.amabhungane.co.za for our stories, activities and funding sources.
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