Chairperson, hon Minister of State Security, hon Burgess, Chairperson of the Joint Standing Committee on Intelligence, JSCI, hon members of the JSCI, hon Members of Parliament, distinguished guests, ladies and gentlemen, with your approval I would also like to acknowledge my wife Magda in the public gallery for her presence and support.
I also want to acknowledge at this stage that my facts and my recommendations are based on the final report to the former Minister of Intelligence Services dated 10 September 2008. It is titled, Intelligence in a Constitutional Democracy. The need for a balance between secrecy and security measures and transparency in a democratic and open society is of great importance for the security of our land.
Ms Hutton says in her overview of the intelligence services secrets, spies and security:
... the issue of the relationship between intelligence and democracy in South Africa is also brought to the fore ... It is therefore important to consider and evaluate how the South African intelligence community is grappling with meeting the democratic demands of openness and accountability while, at the same time, maintaining the secrecy deemed necessary if intelligence is to function effectively.
As pointed out in the White Paper, the uncontrolled and excessive use of secrecy increases the potential for abuse of the intelligence and security services. In essence, uncontrolled and excessive secrecy undermines the very fabric of democracy; it can be a source of instability and can even be detrimental to countering certain threats to security. Without an adequate legal framework to govern the use of secrecy, the possibility for abuse exists.
The report further says that a system that overclassifies information lacks credibility. It is difficult to maintain and enforce and it is administratively costly and inefficient. In addition, excessive secrecy gave rise to suspicion and fear of the intelligence organisations and this reduced public support for them. In a democracy, unlike a police state, intelligence agencies must rely on public co-operation to be successful.
It is necessary to constantly guard against both the overclassification and the underclassification of information. Misuse of classifications can result in the system being treated with contempt. We need to strive for reconciliation between the requirements of sound administration and those of effective security.
Security measures are not intended and should not be applied to cover up maladministration, corruption and criminal actions or to protect individuals or officials involved in such acts.
The classification of information and/or documentation should be limited to information that may be used by malicious, opposing or hostile elements to harm the objectives and functions of an individual and/or institution.
The report further says that the challenge of the intelligence services in a democracy is that the perspective is drawn primarily from the South African Constitution, which includes provisions on security and intelligence and contains a Bill of Rights that is binding on all organs of state. The excellence of the Constitution asserts that the values, on which our democratic state is founded, include human dignity, the achievement of equality, the advancement of human rights and freedoms, and the supremacy of the Constitution and the rule of law.
The rule of law is one of the cardinal features of governance that distinguishes a democratic state from an undemocratic state. It establishes the primacy of law and order to create a legitimate and stable dispensation based on rules approved by elected representatives.
Die Grondwet is ons wettige en etiese raamwerk, omrede dit die hoogste gesag is - ek verwys na artikel 2 van die Grondwet. Dit l die basis vir 'n demokratiese en 'n oop samelewing waarin die regering gevestig is op die wil van die bevolking en waarin elke burger gelyk beskerm word deur die reg. Die Grondwet bepaal uitdruklik dat die intelligensiedienste moet optree, hul lede leer, en eis dat hul lede sal optree in ooreenstemming met die Grondwet en die reg. Ek verwys na artikel 199(5) van die Grondwet. (Translation of Afrikaans paragraph follows.)
[The Constitution is our legal and ethical framework, as it is the highest authority - I am referring to section 2 of the Constitution. It forms the foundation of a democratic and open society in which government is founded on the will of the people and in which each citizen is equally protected by the law. The Constitution expressly states that the intelligence services should act, must teach their members, and require their members to act in accordance with the Constitution and the law. I am referring to section 199(5) of the Constitution.]
The implications of this constitutional perspective are that violations of constitutional rights by the intelligence services cannot be justified simply on the grounds of national security. An emphasis on human security does not mean that the security of the state is unimportant. In short, national security encompasses the security of the country, its people, the state and the constitutional order. These elements are interlinked and none of them is more important than the other.
A broad approach to national security implies that the security services should have expansive mandates. We must be very careful, because this could make the services too influential, powerful and intrusive. It would create the danger of the security services encroaching inappropriately into politics, governance and social life.
The mechanisms of transparency and public discussion on intelligence are intended to ensure that the intelligence services are subordinate and accountable to the executive and Parliament and that the services comply with the Constitution. Whereas the accountability of the intelligence services to the executive and Parliament is strong, the accountability of the services and the intelligence oversight and control bodies to the public is less strong, almost nonexistent. This is a consequence of insufficient transparency. Ministerial regulations governing the services are secret; the Auditor- General's reports on the services are secret; the budgets of the services and most of their annual reports are secret and there is very little public information regarding the activities and findings of the Inspector-General of Intelligence.
The report further says that the high level of secrecy is inconsistent with the Constitution, which insists that all spheres of government and all organs of state must be transparent and accountable, according to section 4l(1) of the Constitution. The National Assembly may not exclude the public, including the media, from a sitting of a committee, unless it is reasonable and justifiable to do so in an open and democratic society.
As we all know, the Joint Standing Committee on Intelligence, JSCI, holds all its meetings in secret, with the result that the public is unable to learn about the committee's oversight of the intelligence services, its assessment of their performance and its efforts to address problems that it identifies. The reports that are presented to the JSCI by the Minister, the Inspector-General and the heads of services are classified and are therefore not tabled in the National Assembly. The JSCI presents annual reports to Parliament and also tables in Parliament its reports on controversial intelligence incidents, but these reports are not accessible to the public.
Die Grondwet beklemtoon die beginsel van deursigtige regering. Verder bepaal die Handves van Regte dat almal die reg het op toegang tot enige inligting wat in die staat se besit mag wees en dat wetgewing voorsiening moet maak om uitvoering te gee aan hierdie reg. (Translation of Afrikaans paragraph follows.)
[The Constitution emphasises the principle of transparent governance. Furthermore, the Bill of Rights determines that everyone has the right of access to any information held by the state and that legislation should give effect to this right.]
South Africans talk constantly about policing, prisons and the judiciary, but there is little debate on intelligence issues apart from occasional bursts of attention at times of controversy. The lack of debate on intelligence issues may also be due to a perception that an intelligence service is too sensitive and that it lies outside the public domain. This is not a healthy state of affairs in a democracy. Steps should be taken to raise awareness and facilitate discussion on intelligence.
The objective of South Africa's White Paper on Intelligence of 1994 asserts that a new mission is being set for the South African intelligence community in line with the new, nonracial, democratic order, in which much weight is given to the rights of the individual. The White Paper asserts repeatedly the necessity for the new intelligence services to comply with the rule of law and other democratic norms, including subordination and accountability to Parliament.
Finansile beheer en toesig oor die intelligensiedienste is van groot belang. Die risiko dat fondse vir persoonlike verryking misbruik kan word, is altyd moontlik wanneer groot bedrae geld in besit van organisasies is. Dit is veral 'n moontlikheid waar geld gebruik kan word vir geheime projekte en inligting, en slegs op grond van "dit is voldoende om slegs kennis te dra" beskikbaar gestel kan word. Byvoorbeeld, in die geval waar informante betaal word en uitgawes aangegaan is by die oprigting van front- maatskappye, is daar uiteraard 'n groter risiko van misbruik as by normale finansile transaksies.
Die Wet op Openbare Finansile Bestuur, Wet No 1 van 1999, is daarop gemik om die verantwoordbaarheid, deursigtigheid en goeie bestuur van inkomste, uitgawes, bates en laste van staatsdepartemente en ander spesifieke entiteite te verseker. Die wet is voorskriftelik ten opsigte van die manier waarop openbare fondse deur departemente bestuur moet word en die verantwoordelikheid van departementshoofde met betrekking tot finansile bestuur, begrotings en verslae.
Dit is 'n groot bekommernis dat die intelligensiedienste nie hul eie Begrotingspos het ten opsigte van die fondse wat jaarliks deur die Parlement aan hulle toegeken word nie. Verder gee die intelligensiedienste ook nie gehoor aan die Wet op Openbare Finansile Bestuur of die Witskrif oor Intelligensie nie. Die intelligensiedienste se begroting word slegs as 'n enkellyn in die Begrotingspos van die Nasionale Tesourie aangedui as 'n oorplasing van fondse, terwyl die begroting van die Departement van Korrektiewe Dienste byvoorbeeld bladsye van syfers en verduidelikings beloop. (Translation of Afrikaans paragraphs follows.)
[Financial control and oversight over the intelligence services is of great importance. The risk of misusing funds for personal enrichment is always a possibility when organisations are in possession of huge amounts of money. It is a possibility, especially where the money could be used for secret projects and information and could be granted on the grounds that "it will suffice just to be aware of it". When, for example, informants are paid and expenses are incurred by establishing front companies, there is inevitably a greater risk of misuse than with normal financial transactions.
The Public Finance Management Act, Act No 1 of 1999, is aimed at ensuring the accountability, transparency and proper management of income, expenditure, assets and liabilities of government departments and other specific entities. The Act prescribes the way in which public funds should be managed by departments, as well as the responsibility of heads of department with regard to financial management, budgets and reports.
It is a great concern that the intelligence services do not have their own Budget Vote with regard to the funds that are allocated to them by Parliament annually. Furthermore, the intelligence services do not adhere to the Public Finance Management Act or the White Paper on Intelligence. In the Budget Vote for National Treasury, the budget for intelligence services is merely indicated with a single-line entry as a transfer of funds, whereas the budget for the Department of Correctional Services, for example, comprises pages and pages of numbers and explanations.]
The Budget and annual financial reports of the intelligence services are reviewed by the JSCI which reports to Parliament, but the documents themselves are confidential and are not presented to Parliament. The intelligence services are therefore not directly accountable to Parliament for their budgets and spending.
With respect to the hon Minister, as stated in my budget speech on 1 July 2009, to date, the annual reports of the JSCI for the period 2005 until 2009, four years, have not yet been tabled in Parliament. This arrangement deviates from the Constitution, which states that national, provincial and municipal budgets and budgetary processes must promote transparency and accountability. The arrangement is also inconsistent with the Public Finance Management Act. One of the fundamental rules of a democratic dispensation is that government can only spend money with the approval of Parliament. Yet our Parliament does not have any direct insight into the budgets and activities of the intelligence services and therefore cannot engage in an informed debate on these matters.
Intelligence organisations are resistant to revealing their budgets, on the grounds that foreign intelligence agencies would thereby gain an advantage over them. I believe that this argument is totally overstated. A foreign agency would not gain from knowledge of how much money other countries spend on its intelligence services. The disclosure of the spending breakdown on personnel, operating costs and capital expenditure will be of no advantage to anybody. It is only at a higher level of detail, regarding targets, methods, sources and operational outputs and constraints, that the secrecy could be undermined through disclosure.
I believe that the intelligence services should have their own Budget Vote in respect of monies approved annually by Parliament. In doing so, they would not be expected to disclose information that would compromise their operations, methods and sources. I would like to take this opportunity to propose that the National Treasury create and implement a Budget Vote for State Security as soon as possible.
The most notable feature of the constitutional provisions of transparency is the inseparability of the concept of democracy and openness. The right of access to information lies at the heart of transparent governance and provides a basis for democratic accountability and an open and free society. The abuse of secrecy is the antithesis of democratic governance. It prevents full accountability and it provides fertile ground for abuse of power and a culture of impunity.
Secrecy must consequently be regarded as the exception to the rule and its use must be justified in each and every case. The justification should not rest on the broad notion of national security, but should instead specify the significant harm that disclosure might cause to the lives of individuals, the state or the country as a whole. Section 32(2) of the Constitution provides that national legislation must be enacted to give effect to this right.
In conclusion, section 32(1) of the Constitution states, amongst other things, that everyone has the right of access to any information held by the state, and any limitation of the right of access to information must be consistent with section 36(l) of the Constitution, which deals with limitations of rights.
We need to now examine the high level of secrecy surrounding the intelligence organisations, if the role of State Security is to be consistent with the Constitution. We should not forget that the Constitution does not treat the security service as an exception in this regard.
Despite the above, that there is no detailed budget for intelligence services as required and prescribed by the Public Finance Management Act, PFMA, and supported by the Constitution, we will support the Budget Vote. [Applause.]