No transparency, no accountability: R2K publishes “Secret State of the Nation” for SA government surveillance

To borrow from Donald Rumsford’s overquoted reply at a press briefing on weapons of mass destruction: when it comes to the relationship the South African government has with its citizens, it’s the unknown unknowns that are a bit of a problem.

That’s the key thing I took away from reading the latest Secret State of the Nation 2014 report, published by the Right to Know campaign (R2K), which was published today. We have no idea what the state is up to, because there’s just not enough transparency between governed and governors to ensure the democratic process.

“It has been a difficult report to compile even though it’s quite short,” explains R2K’s Murray Hunter, who edited the report, “Because getting the information is so difficult.”

R2K came into being in 2010, as a coordinating body for protesting the controversial Protection of State Information Bill which – as is pointed out in the report – has now been sitting on President Zuma’s desk for a year after being sent back by parliament.

Over the last four years, however, R2K has expanded its activism to other areas. It campaigns for free phone calls for the masses, for example, but most of its campaigns have been around – unsurprisingly – rights and access to knowledge, which also takes in campaigning for open data. Coincidentally, this may also reflect an evolving public mood towards institutional secrecy.

“There hasn’t been a great awareness of the need to subject national security bodies to public oversight,” says Hunter, “But the public is starting to connect the dots between the arms deal, what took place at Marikana, Nkandla and the increasing hostility to the public protector.”

In its second annual assessment of South Africa, R2K raises warning bells that government is becoming ever less transparent. For example, the number of sites which fall under the protection of the National Keypoints Act – an apartheid-era piece of legislation – has grown from 254 in 2006 to 344 last year. But there’s no public list of which buildings are actually designated as key points or strategic installations.

Police, meanwhile, have used the act to break up demonstrations in places like Luthuli House and the Arms Deal Commission venue. In the case of Luthuli House, it was later admitted that this was false.

“The National Keypoints Act is a good opportunity to highlight problems,” Hunter says, because it was a key piece of apartheid-era legislation which evokes bitter memories when it’s cited.

While the public’s right to know how it is governed in all areas is of paramount importance, for us it’s the references made to South African security services in the light of the Snowden revelations that have the most impact.

Use of RICA warrants to directly intercept phone calls has fallen dramatically.
Use of RICA warrants to directly intercept phone calls has fallen dramatically.

In April, government figures finally released figures – four years overdue – that detailed the number of requests to tap mobile phones using RICA legislation. On the face of it, the number of RICA warrants issued has fallen dramatically – from 564 in 2011 to just 144 in 2013. Each warrant can cover an undisclosed number of interceptions – numbering in the thousands – but still it seems as though law enforcement agencies are being less intrusive, doesn’t it?

“The drastic decline suggests a few things,” Hunter says, “One is that surveillance isn’t being used in law enforcement agencies legitimately.”

Given the stability of the crime rate, it seems unlikely that law enforcement agencies would want to drop the number of investigations into – say – rhino poaching or drug cartels. So either the capacity of the policto investigate serious crime has dropped, which is a bad thing, or something else is going on.

On the one hand, says Murray, it may be that steps put in place to improve training and oversight of the RICA process has reduced the number of requests. But there’s evidence which suggest that at the same time more use is being made of metadata – which doesn’t require a warrant from the RICA judge to obtain – of the kind routinely gathered by the NSA in the US.

“We know that it’s easier to use metadata and it may be more useful as a surveillance tool than the contents of some one’s phone call,” says Murray, “The drop in surveillance warrants doesn’t mean there’s evidence to suggest that the law enforcement community has a better judge of a person’s privacy.”

The problem, says Murray, is that if the police and security services are less reliant on court sanctioned RICA interceptions then whatever it is that they are doing is subject to even less oversight.

And again, it’s a transparency issue.

Perhaps the most damning line of the report – for me at least – is listed as a callout on the top of one of the opening pages. It shows that the number of successful requests for public information submitted under South Africa’s excellent-but-oft-ignored Public Access to Information Act (PAIA) by a group of NGOs which specialises in such requests has fallen from 35% in 2008/9 to just 16% in 2012/13. That’s a fall of more than half.

The number of sites designated as National Keypoints and subject to utter secrecy is growing rapidly.
The number of sites designated as National Keypoints and subject to utter secrecy is growing rapidly.

“The compliance rate sucked to start with,” says Hunter, “There was a lot of confusion in the early years and officials didn’t know their responsibilities or who the designated person in their institution was. You should see the compliance going up and up as these things become clear. Instead there’s a mentality in certain parts of the public sector that access to information requests are a nuisance at best and at worst hostile. ”

The Secret State of the Nation Report also touches on issues surrounding the security cluster’s “increasing encroachment into every day life” as it seemingly moves to protect the president from accountability over Nkandla and so on, as well as the issue of political funding. The report cites widely held beliefs that the Communist Party of China funds the ANC to the tune of around R800m, for example, which is particularly intriguing given this week’s controversy over the non-issuance of a visa for the Dalai Lama.

But even here, the problem is that we simply don’t know whether or not to be concerned – which probably means we should be.

“In most democracies, it is recognised that the public has a right to know who is funding political parties,” the report says, “Yet in South Africa political parties are not required by law to disclose who their private donors are.”

As security services and the back cover of this report – reproduced above – are fond of telling us, “Secrecy is for skelms”. Only the guilty have something to hide.

[All images taken from the Secret State of the Nation Report 2014 which is published under a Creative Commons Licence]


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