About the State Security Agency
How the SSA’s mandate was changed to prevent it from spying on political activists
For years, people have raised the concern that the State Security Agency (SSA) and its predecessors have become too involved in everyday aspects of our democracy. In March 2015, the SSA announced that it would investigate an anonymous website that claimed that the Public Protector Thuli Madonsela, Joseph Mathunjwa of Amcu, the EFF’s Julius Malema and the DA’s Lindiwe Mazibuko were CIA agents. All four have dismissed the investigation as absurd, and raised concerns that the it will be an excuse to spy on them.
This came weeks after the media exposed a secret document among the “Spy Cables” which showed the SSA had agreed to monitor and exchange information on “Rogue NGOs” with Zimbabwe’s intelligence agency.
In 2013, a new law was passed that limited the mandate of the State Security Agency, to specifically exclude matters relating to “lawful political activity, advocacy, protest or dissent” from the Agency’s work.
The law, called General Intelligence Laws Amendment Act, was criticised for failing to address many of the other big problems in the intelligence structures, but this change was an important step forward. But as we shall see, there are signs that the SSA is still monitoring “lawful political activity”.
Remaking the intelligence structures in the 1990s
The 1990s saw a big effort to change the make-up and mandate of the intelligence structures, to move away from the legacy of human rights abuses inflicted by the apartheid intelligence agencies. After 1994, two new intelligence structures were created to replace the apartheid structures: the National Intelligence Agency (NIA), which was responsible for domestic intelligence, and the South African Secret Service (SASS), which was responsible for foreign intelligence. They were staffed by a mixture of members of the ANC’s former security structures and the apartheid intelligence service.
Why create two agencies? One reason was to prevent too much power being concentrated in one agency.
But in 2009, these two agencies were merged into a single new body called the State Security Agency. The reason given for creating a single new agency was to prevent duplication and lack of coordination between rival agencies.
The “political intelligence” mandate in the 2000s
In the early 2000s, President Mbeki issued a directive to expand NIA’s mandate to include “political and economic intelligence”. This required NIA to assess “the strengths and the weaknesses of political formations, their constitutions and plans, political figures and their roles in governance, etc”.
Soon after that, South Africa saw its first big ‘spy’ scandal in the post-apartheid era, which showed the problems with the “political intelligence” mandate. In 2005 it emerged that NIA operatives had spied on businessman Saki Macozoma (seen as an Mbeki ally) as part of ‘Project Avani’, an effort to gather political intelligence on the emerging faction battle between Mbeki and Zuma.
The then Inspector General of Intelligence, Zolile Ngcakani, launched an investigation, which found that elements within NIA had illegally spied on 13 people as part of Project Avani, including government officials, politicians, and a journalist. The investigation implicated NIA’s director general, Billy Masetlha, who was fired.
The project also resulted in the strange leaking of ‘hoax emails’ which ‘revealed’ a conspiracy against Zuma by Mbeki loyalists. These fake emails seem to have been created and released by a pro-Zuma faction in NIA to boost Zuma in the ANC succession battle.
This whole episode showed two risks of the controversial “political intelligence” mandate. Firstly, it invites the security structures to monitor lawful political activity, which they shouldn’t be doing in the first place. Secondly, once they start monitoring lawful political activity, there is a risk that members of the intelligence structures could use the information they gather to advance individual or factional interests, by giving information to their allies about perceived political opponents.
The Matthews Commission exposes more problems in 2008
The scandal surrounding Project Avani and the ‘hoax emails’ also led to a Ministerial Commission of Inquiry into whether South Africa’s intelligence services complied with the Constitution – it is often known as “The Matthews Commission”.
The Commission, finalising its report in 2008, found that the intelligence services suffered from weak oversight, and had an overly broad mandate to gather domestic intelligence, which can “lead to the NIA focusing in an inappropriate manner on lawful political and social activities.” In particular the Commission found evidence of surveillances abuses, and flaws in the Rica oversight system.
The Commission also identified a lack of regulation and oversight on other “intrusive” intelligence gathering methods, such as infiltrating organisations, physical and electronic surveillance, and recruiting informers. The Commission found that these practices were unconstitutional, as there was no regulation.
Though its findings were explosive, the Commission’s report has been officially sidelined on a technicality – it was ‘leaked’ to the media before being tabled before Cabinet. This has allowed state officials to refuse to recognise the report, saying it has “no status” because it was not properly processed. Because of the lack of transparency in South Africa’s state security sector, it is also difficult to know whether the Matthews Commission recommendations have been implemented.
Narrowing the intelligence mandate in 2013
However, a small gain was made in 2013 with an amendment to the intelligence laws, which narrowed South Africa’s domestic intelligence mandate to specifically exclude “lawful political activity, advocacy, protest and dissent.”
But as this handbook shows, there is evidence that the State Security Agency is still involving itself in matters related to “lawful political activity, advocacy, protest and dissent” – and may still be gathering so-called ‘political intelligence’.
Who defines “National Security”?
The appropriate definition of “national security” is a matter of intense debate across the world. It could be argued that the concept naturally lends itself to a broad or expansive definition, and this is part of the problem. The broader the definition, the greater the mandate for intelligence structures to involve themselves in aspects of our daily lives. According to the General Intelligence Laws Amendment Act (11 of 2013):
“National security includes the protection of the people of the Republic and the territorial integrity of the republic against:
(a) the threat of use of force or the use of force;
(b) the following acts:
i. Hostile acts of foreign intervention directed at undermining the constitutional order;
ii. Terrorism or terrorist activity;
iv. Exposure of a state security matter with the intention of undermining the constitutional order of the Republic;
v. Exposure of economic, scientific or technological secrets vital to the Republic
vi. Sabotage; and
vii. Serious violence directed at overthrowing the constitutional order;
(c) acts directed at undermining the capacity of the Republic to respond to the use of, or the threat of the use of force, and carrying out the Republic’s responsibilities to any foreign country and international organisation…
But does not include lawful political activity, advocacy, protest or dissent.”