Be afraid. Be very afraid.
On Friday President Jacob Zuma’s appointed Moe Shaik as the head of the South African Secret Service (SASS). It would, of course, be unfair to judge Shaik on the basis that one of his brothers is a convicted crook who escaped a long jail sentence by the unlawful granting of medical parole, and that another brother plagiarised his doctoral thesis and fled the country to escape prosecution for his part in arms deal corruption. One cannot be judged merely on the basis of what one’s family members have done. (Although Ronald Kevin Roberts and others like him often does exactly that by imputing guilt to some white politicians because of what their parents or grandparents did.)
There are other reasons to be worried about the appointment of Shaik. Most pertinently, it is unclear whether this appointment is in line with the requirements of the Constitution. Section 199(5) of the Constitution states that “[t]he security services must act, and must teach and require their members to act, in accordance with the Constitution and the law, including customary international law and international agreements binding on the Republic”. Moreover section 199(7) states:
Neither the security services, nor any of their members, may, in the performance of their functions-
(a) prejudice a political party interest that is legitimate in terms of the Constitution; or
(b) further, in a partisan manner, any interest of a political party.
Of course, Shaik served in the international underground structures of the ANC in Natal where he worked closely with President Zuma. I would contend that – given our history – the mere fact that an individual was active in the ANC underground should not disqualify that person from appointment to a sensitive post such as that of the head of SASS. To hold otherwise would be to automatically disqualify for appointment many competent and honourable men and women who took part in the struggle against apartheid. That would surely be untenable.
The problem with Shaik is that after the end of apartheid, he has acted in a manner that has demonstrated a lack of wisdom, independence and integrity – all traits required for a spy chief. Shaik was a main actor in attempts to discredit the then National Director of Public Prosecutions (NDDP), Bulelani Ngcuka, in order to try and derail the state’s case against then Mr Jacob Zuma. Shaik was instrumental in airing the allegations that Ngcuka was an apartheid spy. It is clear that he peddled these rumours because of his undying, uncritical – even blind – loyalty to one man: President Jacob Zuma.
The Hefer Commission of Inquiry established that the allegations leveled against Ngcuka by Shaik were “ill-conceived and entirely unsubstantiated”. Shaik based his allegations on an (alleged) 1989 ANC investigation which Judge Hefer found were “utterly unreliable” and was:
fatally flawed by unwarranted assumptions and unjustifiable inferences and by the blatant failure to examine available avenues of inquiry…. Mr Moe Shaik revealed in his evidence that, after many years, his interest in Mr Ngcuka was rekindled when he came to know of the investigation against Mr Zuma. His renewed interest, he says, stemmed from his complete faith in and undying loyalty to the latter. For this reason he reexamined the information about the 1989 investigation, proceeded to make further inquiries and eventually confided in Ms Munusamy in order to make the public aware of the 1989 investigation and findings.
So, the Hefer Commission found that Shaik had a blind loyalty to Zuma, that he was prepared to peddle untested and spurious allegations of a very grave nature that could easily have destroyed Ngcuka in order to protect his friend, Jacob Zuma. The same guys who kept on reminding us that anyone in South Africa had to be presumed innocent until proven guilty were now prepared to try and destroy someone in order to protect their “boss” by getting us all to presume Ngcuka guilty until proven innocent.
These actions came close to constituting a criminal offense, as the National Prosecuting Authority Act prohibits anyone from “improperly interfering with, hinder or obstruct the prosecuting authority or any member thereof in the exercise, carrying out or performance of its, his or her powers, duties and functions”.
But even if it was not a criminal offense, Shaik’s actions should have disqualified him from appointment because it demonstrates that he does not possess the attributes required of him by the Constitution. Shaik demonstrated that because of his blind loyalty to the President he would, indeed, be prepared to use (or perhaps – who knows – abuse) his power as spy chief to “prejudice a political party interest that is legitimate in terms of the Constitution; or further, in a partisan manner, any interest of a political party”.
Then President Thabo Mbeki was often accused – not without reason – of using state institutions to advance his political interests. The appointment of Shaik to such a sensitive post gives the clearest indication yet that President Zuma and his supporters complained about President Mbeki not because he used state institutions, but because he used it against them. Now that they are in charge, it is their turn to get their greasy hands on the levers of state powers.
Who knows where this will lead? How long before individuals are investigated by the intelligence services for hatching plots against Zuma? How long before Zuma’s trusted securocrats issue statements about dark forces out to undermine the government? Then we will be back where we started with Mbeki and the Polokwane revolution would have been an empty victory, replacing one group prepared to use the state machinery to advance its own agenda, with another.
Be afraid. Be very afraid.
And so the plot thickens . . .
Yes – I certainly am afraid. … On another thread though, Prof, what do you think about the report in Star (and Legalbrief Today) that JZ has chosen the following four candidates as his choice for CC judges: Froneman, Jaftha, Mogoeng and Khampepe?
What I feel is daily anxiety and deep worry. There seems to be so many elements which appear to be leaning towards destructiveness with an oppressive, dishonest, and failing Government. I suppose in biblilcal terms, “the handwriting is on the wall”.
At a national level the score looks to be Government… 10, the people zero, or zilch. I believe in sport this is called a ’shutout’. Is it the beginning of tyranny cloked in charm and deception?
Mo will be at SAS. So he should focus on external threats. His agency should have no role re domestic threats or internal politics which makes him less of a danger.
But how on earth can we have a National Intelligence Agency, which has a domestic/internal intelligence gathering mandate? Where on earth do you have a bill of rights, but also a domestically focused spy department? To spy on citizens? In terms of the Constitution, we principally should be an open society. Not a covertly spied upon society.
In principle, in an open society, citizens may do anything, except which is illegal. And if it is illegal, it is a crime – and then the police should deal with it in accordance with their criminal procedure powers. That is simple principle of legality.
And if and so long as citizens are not contravening the law, they should also not be spied upon. Or they could be spied upon, but then by overt means. Not covert means. Because, if by covert means, their privacy is intruded upon. By the Government/the Executive. Which right to privacy is guaranteed by Section 14, Act 108/96.
So if the NIA/Spy Department wants to intrude covertly into citizen’s privacy it should, in terms of the principle of legality, be statutorily empowered and regulated. Like a search warrant or a warrant of arrest. Some judicial body should look at the “evidence” and issue the warrant. Before each and every intrusive step.
But domestic covert spying entails amongst others communication tapping (telephones, cellphones, e-mails, etc. – which is regulated) but also following (tailing) a person on foot or in cars, photographing people with strong zoom lenses, and infiltrating human sources (spies) into N.G.O.’s, newspapers, pressure groups, local forums, concerned citizen groups, residence associations, etc. to report back to Government what these peoples’ concerns are, etc.
The last methods aren’t statutorily mandated and regulated in the RSA. So it is unconstitutional. If Government/the Executive wants to know what people are thinking and what their concerns are, they should rely upon their internal domestic political party with its ears on the ground. Voters should tell them and they should listen. Not send in spies to hear what the people of Wolmaranstad are mad about and are planning to do (legally) like marches, boycotts, etc.
Vide the U.S. The CIA has a strictly external/international mandate. It may not operate internally re internal “threats”. The only internal “threats” are potential criminal actions. And that is dealt with by the FBI – which is their police. And then in terms of their criminal procedure.
As soon as the RSA don’t have a domestically focused covert spy department, all sorts of Mo’s won’t pose a threat. Then no Government Department can spy on citizens going about their normal political activities. Then only criminal activities and/or potential criminal activities will be covertly spied upon. Then we will be an open society.
So the media is moaning about the Mo/Zuma connection. But I think what actually should bother them is the domestic spying on citizens/voters.
Imho the NIA is unconstitutional. Not Mo.
Has JZ furnished any reasons or made any public statements regarding Moe Shaiks appointment?
Mouse
The list is a little disappointing. This is in spite of the report that JZ is planning to appoint the female candidates who made it to the short-list as Judges President of the various High Court divisions. This will not make them shape our jurisprudence in the manner they would have in the Constitutional Court.
Interesting ‘pick’ indeed. But I say that its better to have a spy you know than one which u do not. There is really nothing wrong with JZ strengthening his nest, so long as it is done in a constitutionally correct manner.
Sne – I agree. What JZ is doing is trying to appease women’s minds that he is actually trying to get them into high places, but, as far as the highest place (at least in the judiciary) is concerned, they are not trustworthy enough to be there. He’d rather choose Mogoeng who has had not one, but two rather serious scuffles with the SCA, one on a constitutional issue, than one of two women who have indicated that they are more experienced and conscientious than he. Is this not a sign of sexism? But, with Schabir out of gaol, the JSC failing to act against someone who clearly tried to influence the highest court into judging pro-Zuma, with the CC wanting for better appointments, with Mo in the Secret Service, the ‘Mack and Mo Show” (colloquial refernce to the evidence before the Hefer Commission) all of a sudden appears to be no longer so funny and small thing. I remember that judgment by the CC, the one that held that it is not unconstitutional to require of someone to answer incriminating questions in terms of insolvency and company legislation, as long as the information is not used against that person at a subsequent criminal trial. That is the Achiles heel of our constitutional jurisprudence, and with quationable judges ascending the CC bench, we might shortly see torture legitimately returning to our beloved country, as long as it does not mean that a person be convicted in a criminal trial.
Hi Pierre,
I went one further than you: I was so upset that I couldn’t write about this so, under the headline Polokwane Pirates Shaik Their Booty I didn’t write about it here: http://nicborain.wordpress.com/2009/10/04/pirates-of-polokwane-shaik-their-booty/ . I (don’t) cover the same ground as you (not as well on the constitutional aspects of the requirements of the appointee ….) but I suppose I have been closer to similar shenanigans so you – or your readers might have found it useful …. if I was not so shocked an unable to write about it. Cheers
Nic
Mouse
It is sometimes painfully difficult to strike a balance between two competing important things, contextually, the encouragement of disclosure of all relevant and material facts for insolvency purposes and prosecution of criminals. I have not read the judgment you’re alluding to but I can imagine that it must have been rather difficult to strike that balance.
Well, on torture, death penalty, etc. That is not far-fetched to be honest. Despite the prohibition contained in our Constitutional law, JZ and Co. seem like they’d rather have a brutal police force than criminals roaming our streets as free men. They seem hell-bent on sacrifising what many fought and died for in order to achieve their short-term political goals.
I may not have the full facts but I know that Mandisa Maya and Belinda van Heerden would have been perfect individuals to serve in our highest court. It seems like the ANC fell into the same trap as Zille when she was constituting her executive.
PS: Sorry Mouse for mixing up the issues in this short post.
@Paul B – when it comes to inteliigence services, I must respectfully disagree with you there. I find it very frightening. When a man with all the ethical standards of a rock is appointed head of a very powerful and secretive organisation, one starts getting more flashes of 1984 (the book, not the year).
As PdV points out, Shaik has already, on his own admission, tried to throw an innocent man under the bus in order to protect JZ. Now that he has access to even greater power and resources, what is to stop him doing something like that again? What is to stop him trying to discredit Helen Zille at the next elections, using nefarious means (to borrow one of the ANCYL’s favourite adjectives)? What is to stop him digging up “intelligence” on Zuma’s political enemies, at the expense of what he’s actually meant to be doing?
The Shaik family have proven that they have nobody’s interest at heart but their own in their dealings around the Arms Debacle. Their protection of JZ was to make sure that the goose who laid the golden egg for them was protected. We now have a situation where Shabir “I’m on my last legs” Shaik is driving around Durban looking about as terminally ill as a Spartan Warrior, and Mo is suddenly, out of nowhere, appointed head of a super-spy agency. How long before Chippy gets his doctorate reinstated by presidential order?
This is so blatantly a reward of favour by Zuma it’s almost terrifying – purely because it seems that the ANC government is becoming less and less worried about glossing over things like this and trying to give them a veneer of legitimacy, as they used to in the past. Now it seems like they just don’t care – we’ll do what we like and damn the rest of you.
This is very worrying.
most of the people hate shaik because the sins of his bothers.i am sure the president appointed him knowing the public unrest it might cause.the thing is shaik use to collect evidence under very complex conditions under powerful apartheid government,and that makes him a very good candidate and of cause appointee.
As for the appointment of the cc judges, i wish judge davis was there i always respected him, very different from our honorable proffessor
“As PdV points out, Shaik has already, on his own admission, tried to throw an innocent man under the bus in order to protect JZ.”
The Big Slipper. Ngcuka is no innocent party. And Hefer did not pronounce him innocent either. He found that the claims were unfounded and there was no proof. It is clear that he abused his position as Head of public prosecutions – while the media and most of middle class SA swallowed this rouse hook line and sinker. Hefer’s decision looks pretty lame in the context of what transpired afterward don’t you think?
RW Johstone, ex head of the Helen Suzman foundation – in his recent book – makes the case that Ngcuka has a major case to answer for being connected to the apartheid authorities. This matter is not clear cut at all.
Kameraad, bullshit! More spin from someone who should know better. What is your intent? As sexy as you are. Is it South Africa, or is it personal?
Big Slipper: good on ya man.
I’m getting very frustrated. The hogwash and all, otherwise known as ignorance.
we talk, we talk.
What about the children?
Kameraad, by the logic applied by the ANC, whom I gather you support, Ngcuka is innocent, by virtue of the fact that he has never been found guilty of anything in a court of law. Additionally, I would say that finding claims “unfounded” with “no proof” is as good as stating innocence, no? You cannot claim that he has abused his office, because he never went on trial for it, and was never found guilty.
What are your thoughts on Mo “Zero to Hero in a Day” Shaik being appointed to head up a very powerful secret service agency?
And yet again the questionable moves come on a Friday!
What is it with the Friday announcements of all these things that deserve a good roasting?
Not merely to prevent giving current ammunition to madam Zille for her habitual Friday carp, surely? That would be tacit acknowledgement that madam Zille might be vaguely credible.
The weekend press is less influential than the weekday press? The Sunday press seems to have more column inches of comment and analysis than during the week to my mind. They must relish the opportunity for something fresh to thrash.
Is it that any further statements and explanations can be ducked for two days at least? That way by the time any questions have to be answered or ruffled feathers smoothed, there are two days of data and time to figure out what might be needed to smooth the whole thing over. (Or coach bra Julius to say something distractingly outrageous).
Whatever it is, it can’t be accidental anymore.
As sexy as I am??
Anyway – I am no great fan of the Shaiks as posts like these will attest
http://mhambi.com/2009/08/shabir-shaik-spotted-driving-in-durban-video/
and neither do I defend the ANC – for example
http://mhambi.com/2009/10/is-the-anc-responsible-for-the-attacks-on-abahlali-basemjondolo/
I have however on many occasions argued that Zuma is preferable to Mbeki (between the devil and the deep blue sea), and so far I think I was right.
However, Bulelani Ngcuka is no angel. He was an ally of Thabo Mbeki and clearly was instrumental at trying to prevent Zuma from being president, even if it meant abusing his powers – and at the same time he protected the Mbeki ANC from serious scrutiny on many fronts.
Johnstone is neither a friend of the ANC. I don’t find the case that Johnstone makes completely convincing but he asks some searching questions with respect to the likes of Joe Modise and Ngcuka. Hefer turned out to be wrong on many counts and so was the SA media – what I am saying is – don’t count your chickens.
This is a little review of Johnstone’s book from politics web – it covers Modise , but theres a whole section on Ngcuca and Hefer as well.
“For someone now more read abroad than in South Africa (principally in the London Sunday Times and the London Review of Books), this new book will prove ground-breaking for South African readers, who are more accustomed to references to Johnson as “conservative” or “controversial” (these are among the more kindly epithets) than to his writing itself.
In a long (there are almost 700 pages) and well referenced book, both up-to-date (the preface is dated last November) and full of riches, I will refer only to two principal themes.
The first is Joe Modise, commander of Umkhonto weSizwe in exile and Minister of Defence in South Africa’s first democratic government. Chapter 2 of Johnson’s book is headed “Godfathers and Assassins”, meaning “godfather” as in Corleone. A chilling chapter sub-heading reads: “Joe Modise – Father of the New South Africa”.
Johnson follows Modise’s career from township crime boss (head of the Spoilers) in Alexandra, east of Johannesburg, in the Fifties, through strongarm protector of Nelson Mandela and Oliver Tambo in ANC politics in Johannesburg in the Fifties, to Umkhonto commander in exile in Zambia in the Sixties…to founder of the ANC’s system of prison camps for dissidents and suspected apartheid state agents in a whole string of African states (principally its Gulag, Quatro, in northern Angola) … to ANC crime boss in exile, supervising the traffic south of drugs and gems, and the traffic north of stolen “German take-aways” (Mercs and BMWs) … to guerrilla leader who operated “hand in glove with the apartheid security police for years” (p.39) … to the great spider at the centre of the web of the state arms deal of the 1990s, of which he was a principal beneficiary.
Johnson regards the Mbeki presidency in large part as a function of the Modise power nexus.
His effort to establish a possible link of some kind between Modise’s intelligence “Family” and the assassination in 1993 of the former Umkhonto chief of staff, Chris Hani – a rival for Modise’s subsequent post as Defence Minister, and of Mbeki to become Mandela’s successor as President, a rival whom Modise had tried to have executed in Zambia in 1969 for writing a critical remonstrance stressing his high living and cruelty – does not provide enough evidence to convict, whether in a court of law or (yet) the court of history.
No other book yet written, however, brings together so much evidence of the political crime network that South Africa inherited with the return of the exiles. A turf war between competing exile syndicates, each located in different branches of Umkhonto weSizwe, is suggested as one of the underlying themes in the Zuma/Mbeki conflict at the ANC national conference at Polokwane in December 2007, and from both before then and continuing up to now.
The book provides clues as to the historical genesis of a matter as central as the subject of last Sunday’s editorial in City Press. This stated: “The security forces seem to be seriously compromised. They seem to be divided between those loyal to Zuma and those against him. There is a need for a clean-up operation that will ensure that these agencies just do their work without meddling in politics.” (5 April 2009.) No other book provides such clues about the history and nature of these competing “families” of spooks within the ANC, with “security” the crucial agency which controlled the criminal networks in exile and set the conditions for the arms deal.
In this light, Zuma’s accession to Presidency of the state as former head of one of these ongoing secret intelligence networks is no small potatoes.
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page72308?oid=124114&sn=Marketingweb%20detail
Thabo Mbeki is retired and he is busy setting up an African Leadership Institute.
I think the Professor makes a fair point: this Shaik character has, at the least, demonstrated that he will favour the interests of a political party in a partisan way. And that of course should disqualify him from appointment given that it appears to fall foul of section 199(7).
But all of this is unsurprising. And that is perhaps the saddest observation: ardent and even blind partisanship is the melody with which many prominent ANC loyalists are most comfortable.
On a somewhat different (if fairly related) note: I wonder what a young and idealistic Zuma would have to say about the man he is today? Would he commend his older counterpart’s loyalty to his friends? Or would he despair? I suppose the one could only ever speculate. But I would love to hear an answer.
In Lesala v S the Northern Cape High Court held at para 26, per Kgomo JP;
“As Slomiwitz AJ said in S v Kubeka 1982(1) SA 534 (W) at 538G that we “subscribe to the view that in the search for the truth it is better that the guilty [accused] should go free than that an innocent [one] should be punished.” On that basis the appellant is given the benefit of the doubt and must walk.”
…………………………………………………………………………………..
I advocating for more police powers in order to fight crime I wish we could have regard to these words quoted above.
The Big Slipper says:
October 5, 2009 at 22:02 pm
“What are your thoughts on Mo ‘Zero to Hero in a Day’ Shaik being appointed to head up a very powerful secret service agency?”
Eish!
Spying on foreigners out of South Africa is hardly a “powerful secret service agency”.
Maybe he is gonna tell on South Africans who have undeclared offshore bank accounts.
It’s much better than keeping him here spreading silly stories – rather keep him busy keeping an eye on Brother Leader’s strategy of liberating the women of Italy.