Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
7 September 2022

It can be dangerous when national security is used as a cover to dodge accountability

While both suspended Public Protector Busisiwe Mkhwebane and EFF MP Floyd Shivambu are in trouble for the way they handled the top secret report of the then Inspector-General of Intelligence into the so-called SARS ‘rogue unit’, the drama also raises critical questions about the culture of secrecy that shields the intelligence service and the Inspector-General from accountability.

The 2014 report of the Office of the Inspector-General of Intelligence (OIGI), in which it was claimed that SARS had created a so-called “rogue” intelligence unit to target former president Jacob Zuma and his allies, is back in the news. This came after former SARS official Johann van Loggerenberg lodged a formal complaint with the Registrar of Parliament against EFF MP Floyd Shivambu for sharing the report with the office of the Public Protector in 2018.

The findings in the “top secret” report have been widely discredited, not least for their obviously wrong interpretation of the applicable law (see here, here and here), and were set aside by the Gauteng High Court in June 2020. But it has caused endless trouble and embarrassment, not only for those wrongly implicated in the report, but also for those who had sought to rely on it to discredit others.

Shivambu is a minor player in this ongoing drama and may escape prosecution for sharing the report in contravention of the Protection of Information Act of 1982. (I may be wrong, but I say this because I am doubtful the NPA has the stomach to prosecute a powerful politician like Shivambu for sharing a classified report that has been widely circulated.)

Suspended Public Protector Busisiwe Mkhwebane, on the other hand, is going to find it rather more difficult to explain away her conduct when she finally has the opportunity to testify in her impeachment hearing.

For reasons set out below, I believe Mkhwebane is likely to be removed from office at least in part because of the dishonest manner in which she used the Inspector-General’s report to try to discredit some of former president Jacob Zuma’s political opponents.

Recall that Mkhwebane had obtained a copy of the report while investigating the so-called SARS “rogue” unit matter. (She continues to claim, somewhat improbably, that she did not receive the report from Shivambu, but that the report was dropped off at the front desk of her office.) But because the report was classified top secret, and because the Protection of Information Act prohibits the sharing of information classified in this way, she could not lawfully rely on it in her own report on the so-called SARS “rogue unit” as this would have exposed her to criminal prosecution.

To get around this problem, Mkhwebane pretended in her own report on the “rogue unit” that she did not have a copy of the top-secret report, merely stating that she was “reliably informed” that the report was in the custody of the former Minister of State Security, Dipuo Letsatsi-Duba, and that she had it “on good authority” what its findings were. She also instructed Letsatsi-Duba to “implement, in totality” the report which she claimed to have not seen.

A full bench of the High Court, which reviewed and set aside the Public Protector’s “rogue unit” report, obviously took a dim view of this lackadaisical approach to the truth.

In its judgment in Gordhan v Public Protector and Others, the court noted that Mkhwebane had relied on the report despite explicitly stating that she had not seen it. To make things worse, remarked the court, the matter took a “bizarre turn” during the court hearing when “counsel on behalf of the Public Protector now conceded that, despite the explicit statement in the Report that she has not had sight of the OIGI report in preparing the Report, she had in fact had the OIGI report in her possession when she drafted the Report.

The Public Protector now claims that she subsequently received the OIGI report from an anonymous source who left it at her offices. This turn of events is disturbing to say the least and it is difficult to label the Public Protector’s conduct in this regard as anything else but dishonest.

The court described Mkhwebane’s conduct as “egregious”, and found that her “bias against Mr Gordhan and [former deputy SARS commissioner Ivan] Pillay is manifest”.

Having regard to the manner in which the Public Protector simply dismissed out of hand and completely ignored and irrationally discarded hard facts and clear evidence, it is clear that she approached her investigation with a preconceived notion, determined to make adverse findings against Minister Gordhan and Mr Pillay, thereby promoting the false rogue unit narrative.

The court ordered Mkhwebane to pay 15% of the costs in her personal capacity. Her attempts to have the judgment reversed by the SCA and Constitutional Court came to nought. The judgment is probably even more damaging to Mkhwebane’s reputation than the various judgments invalidating her Reserve Bank report, as the deceit here was so obviously premeditated and in service of an ulterior purpose.

Based on this judgment alone, it would be irrational (in fact, it would be beyond bizarre) for the National Assembly committee considering her impeachment to conclude that there were no valid grounds for her removal from office.

Given the political drama caused by the Inspector-General’s report, and the fact that the EFF published the report in September 2019 (two months after the Public Protector issued her flawed “rogue unit” report); and given the fact that the main claims contained in the report are widely known, it seems odd that the report remains classified and its distribution prohibited. But despite claims to the contrary, this indeed remains the case.

This is so because in October 2020, the Pretoria High Court (in the case of Minister of State Security v Public Protector and Others) granted an order in favour of the Minister of State Security to interdict “the release publication and/or public access” of the report. (The minister has, according to the judgment, released a redacted version of the report.)

But continued classification of the Inspector-General’s report raises larger questions of principle unrelated to the fact that those who shared the report have dirty hands. These questions centre on the abuse of the classification system within the intelligence community in the name of national security in order to avoid accountability and to protect those who abuse their extensive powers.

In its judgment in Minister of State Security v Public Protector and Others, the court seemed to have blithely accepted the minister’s claims that the disclosure of the report would prejudice “the national security interest of the country if the identities of the intelligence operatives, the sources of the SSA and their methods are disclosed”.

The court held that in this case “a restriction of the publication of the report [would not] disproportionately impinge on the public interest”, but failed to identify or discuss the factors that might favour disclosure in the public interest.

The court ignored the fact that excessive secrecy of intelligence-related activities will often lead to the abuse of power by members of the intelligence services, or (as was the case of the “rogue unit” report) by the  Inspector-General of Intelligence him or herself. There is no doubt that this is a serious problem, as pointed out in the Zondo Commission report into State Capture.

The report documents many instances where the classification of documents and general demands for secrecy were used by the SSA to protect the intelligence service and some of its agents from any form of accountability, ultimately leading to high levels of corruption. As Justice Zondo writes in the report:

The Commission appreciates and agrees that there is a need for secrecy regarding covert and counterintelligence operations in the national interest. However, there is also a need to balance this with the need for transparency and, in particular, accountability required in our Constitution. This includes both financial accountability and accountability for criminal activities.

The other principle is the balancing between secrecy and transparency: that translates into the issue of classification and declassification of information, where there are standard norms globally.

In terms of section 210(b) of the Constitution, the Inspector-General of Intelligence is supposed to provide civilian oversight over the intelligence services. But even where the Inspector-General is willing to fulfil this role diligently (as was the case with the most recent incumbent), this task is made impossible by intelligence service members who use secrecy to shield themselves from accountability.

Where the Inspector-General goes rogue (as was the case with the SARS report), excessive secrecy protects him or her from any accountability as well.

If a slightly redacted version of the Inspector-General’s “rogue unit” report had been made public when it was completed, it would have been subjected to public scrutiny and analysis, and would have allowed the then Inspector-General to be held accountable for her report which (I have on good authority) was a political hit job of note.

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