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Agencies flouting SA’s Constitution with impunity

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Picture: Bongiwe Mchunu/ANA Files – Secretary General of the ANCYL, Sindiso Magaqa at Luthuli House. As in policing generally, Crime Intelligence is divided between members striving to do their jobs professionally and those who are involved in criminal networks, as in the case of crime intelligence members implicated in planning and funding Sindiso Magaqa’s murder, the writer says.

By Mary De Haas

Three government departments – Defence, Police and State Security – operate intelligence structures, which are linked by provincial and national co-ordinating bodies. From 1994, they have been staffed by former apartheid government employees and members of liberation movements.

Given the apartheid experience of heavily politicised policing and intelligence services, new legislation aimed to provide sufficient civilian oversight of the bodies, especially those of the National Intelligence Agency and the SAPS, in line with the key democratic, constitutional principles of accountability and transparency.

However, 2009 ushered in radical changes to the structures. A proclamation that year, followed by legislation in 2013, amalgamated the internal National Intelligence Agency and external Secret Service Agency into the State Security Agency. The developments signalled a return to apartheid politicisation of our security agencies, amid growing secrecy, and the weakening of civilian oversight, which poses a serious threat to our democracy. Based on its own independent findings, the Zondo Commission endorsed the 2018 High Level Review Panel Report on the State Security Agency and its recommendations.

The panel had made damning findings, describing it as a “private resource to serve the political and personal interests of particular individuals”, and in violation of Constitutional principles. Urgent action, including restoring civilian oversight, was needed, starting with legislation – which has still not been passed. The Zondo Commission also heard evidence about rampant nepotism and criminality in the SAPS Crime Intelligence Unit, and its recommendations, too, are not being acted on. It is known that during the Jacob Zuma presidency, and with a specific political agenda, recruits were sent to BRICS countries for advanced espionage training.

Reportedly, they were integrated into the State Security Agency and police Crime Intelligence Unit. Since 2009, there has been an integration of political cadres into senior positions in the SAPS. As in policing generally, Crime Intelligence is divided between members striving to do their jobs professionally and those who are involved in criminal networks, as in the case of crime intelligence members implicated in planning and funding Sindiso Magaqa’s murder.

They are also named in an attempt on the life of his close corruption-fighting associate, Thabiso Zulu. Serious problems in crime intelligence stem from politicised management, where orders are given by the minister of police, who is in gross breach of the Constitution by engaging in operational activities.

Its dysfunctional state bears responsibility for our abnormally high serious violent crime rates. In addition to national and provincial intelligence structures, each station should have a dedicated intelligence officer gathering informer information to plan proactive policing and assist with criminal investigations. This is either absent or, in some instances, the names of informers are leaked by corrupt police who are operating with criminals, and they are killed.

Unlike their local police, community members generally know who the criminals are and where they operate from. Nor do the police apparently know the whereabouts of the hit men who are easily located by people needing their services. That senior officials in intelligence are allegedly more concerned with killing whistle-blowers who expose corruption, including through the illegal use of SAPS structures, is illustrated by the predicament of Free State SAPS corruption whistle-blower and former senior police administrator Patricia Mashale.

Picture: ANA File – Free State SAPS corruption whistle-blower and former senior police administrator Patricia Mashale.

In connivance with State Security employees named in the Zondo Commission reports, senior provincial management, in collusion with their former provincial colleagues in national management, brought a malicious charge against Mashale and orchestrated the issuing of an arrest warrant. They apparently believed she had damning evidence of corruption against politicians and police members. Having credible evidence of plans to arrest and kill her, she went into hiding in February last year. She narrowly missed being assassinated in November.

Allegedly under ministerial control, senior police members were deployed to the Free State, staying in luxury hotels, specifically to locate her. Dumisani Khumalo’s appointment to head crime intelligence, without any training in it, is grossly irregular and is under investigation. Khumalo was moved there by the minister to whom he was reporting irregularly, in breach of the SAPS Act, as head of the ministerial political killings task team. After the illegality of the operation to track down and kill Mashale was reported to the National SAPS commissioner (who knew nothing about it), and the Presidency, the team was withdrawn.

The case is typical of the political priorities that drive crime intelligence management, under the direct control of the minister. During the state capture years, it became routine for ministers and MECs to run departments, and policing is the most glaring example. It is illegal and unconstitutional, and that it is allowed to continue suggests that our government is acting exactly like its apartheid predecessor.

While the situation prevails, crime will continue to rage, uncontrolled. Why is the unconstitutionality of what is happening not being challenged in court? Does nobody with the power to do so care?

Mary De Haas is an honorary Research Fellow at the University of KZN’s School of Law and a member of the Navi Pillay Research Group on justice and human rights.