SCA ruling: State security agency’s dubious secrecy tactics exposed
THE SUPREME Court of Appeal’s ruling in favour of Independent Media, IOL and journalist Thabo Makwakwa is a scathing indictment of the State Security Agency (SSA).
Pull back the layers of spook stories of US capture of prominent ANC politicians, and it is a judgment that reveals the insouciant misuse of the mechanisms of the SSA to fight the internal battles of the ANC.
The leaked intelligence report – read together with the judgment of the SCA – brings into focus a snapshot of a time of fierce internal contestation within the ANC, and how the SSA is used to fight factional battles along the fault lines within South African intelligence structures.
The High Court gag order
In December 2021, Makwakwa was handed a purported intelligence report of the SSA. This report was alleged to contain intelligence that the US had infiltrated the ANC and its leadership to such an extent that it could influence or subvert national policy.
Makwakwa asked those implicated in the report for comment, including officials from the SSA, the US embassy, the ANC and the presidency. Within 48 hours, the High Court had ruled ex
parte that Makwakwa was in unlawful possession of the report and that its publication would harm state security. He was interdicted from publishing the report.
Nearly two and a half years later, the Supreme Court of Appeal’s ruling that the classification of the intelligence report was against the public interest and lacked sufficient grounds for such secrecy is a tremendous victory for the rights of the free press in South Africa.
It is almost a certainty that this intelligence report is what it purports to be; a bona fide intelligence report of the SSA. We know this because the SSA have made a claim to it as the owner thereof in a court of law.
But just because it’s an intelligence report, this doesn’t necessarily speak to the veracity of its contents. The extraordinary claims outlined within require extraordinary evidence, none of which is as yet in the public domain.
We know that the US spies on South Africa. We know that they have reach into every political party, some to a greater extent than others. The US is not here to sell Girl Scout cookies. It has interests. To this end, it collects human and signals intelligence on an industrial scale.
The intelligence report’s claims of the US gathering intelligence through a network of senior ANC party officials, “who wittingly or unwittingly, share privileged information”, conjures up the most amazing imagery of the caricature of the formerly glorious ANC cadre.
Soldiers of the former glorious liberation movement. Loose-lipped comrades well into their fifth or sixth double Macallan on the rocks, drinks they will most definitely not be paying for, volunteering the secrets of the revolution in acts of braggadocio, or transacting as information brokers for personal gain.
Even if this and other claims that the report makes of infiltration within other political parties is half true, the reality of intelligence collection by the US is far more banal. They read the internet.
They speak to conference delegates. They also scrape all your data every time you use Uber, or log into your Facebook, or pick up your phone, or use your laptop.
Well before the dystopian appbased panopticon that we live in, Julian Assange’s leaks of the diplomatic cables in 2010 revealed 44 years’ worth of US diplomats’ assessments of host countries and their officials and party politicians, some true, others as hilariously off-colour, as they were laughably inaccurate.
With the passage of time, we can test some of the claims of the report against the objective reality of what has happened in South Africa over the past two and a half years. If it is true that a large-scale US intelligence operation exists within the ANC to influence the policy direction of South Africa, then it is a complete failure.
The media’s win, the ANC’S loss
With those caveats in place, even with the more implausible elements of the intelligence report being shaved away by Occam’s razor, what remains in the story in the wake of the SCA’S judgment is a disturbing picture of the blatant use of the intelligence services as a weapon, and the blurred lines between party and state.
The SSA is constitutionally barred from involving itself in the ANC internal political contestation. As the SCA’S judgment makes clear, this didn’t stop certain people from abusing SSA processes in this exact manner.
The SCA ruled that the report’s classification as “secret” was unjustified and against the public interest, and that releasing the report to the public would not compromise national security. It overturned the order of the High Court and set aside the interdict brought by the SSA against Independent Media, IOL and Makwakwa.
The minister of state security’s arguments before the High Court were shocking indictments of the cavalier blurring of the lines between party and state.
The minister argued that the gag order should be imposed not to protect the national security and sovereignty of the Republic of South Africa, but rather to stave off a threat to the stability of the ANC.
This is not what a constitutional democracy does.
The real value of the IOL, Independent Media and Makwakwa’s legal victory at the SCA is to reveal the SSA is open to abuse to achieve political ends of individuals and groupings inside the ANC.
Even if the SSA, which was moved into the presidency in 2001, were to embark on a process of clearing those implicated by the report, it would then have to face serious questions as to how such a report could be accepted as a bona fide intelligence report.
Either, senior ANC are corrupt proxies for US interests, or our intelligence structures are all too easily abused for factional purposes. It’s one, or the other, or a little bit of both.
There exists a delicate tension between balancing national security concerns with the public’s right to information.
Security and intelligence structures are constitutionally mandated to protect the national security and sovereignty of the Republic of South Africa. Constitutional rights such as freedom of expression, access to information and the right to a fair trial serve as checks on the power of these agencies.
For some ANC leaders who seek to accrue or retain power, the organs of state serve as staging grounds for internecine battles for supremacy over a koppie that becomes smaller and smaller with every brutal factional engagement.
Not even the institutions that are charged with protecting the sovereignty of the Republic are off limits. The irony is that wearing down such critical institutions really does make us ripe for capture by foreign interests, intelligence and otherwise.