Intelligence watchdog’s bid for independence

The Inspector General of Intelligence (IGI) has had his security clearance reinstated, provisionally, resulting in him abandoning his urgent court application. But according to the court documents filed in early April, that is only half of the relief he is seeking from the courts.

Dr Setlhomamaru Dintwe approached the court earlier this month after his security clearance was removed by the head of the agency he is tasked with holding accountable. In his court papers, Dintwe lists a range of challenges in his dealings with the State Security Agency (SSA). The IGI’s prolonged dispute, specifically with the security agency’s now former director-general Arthur Fraser, makes a compelling case for why the office of the IGI needs more independence.

Principal Agent Network

Fraser, who was moved to correctional services just over a week after the application was filed, is being investigated for allegedly forging a minister’s signature, setting up an illegal intelligence unit, and allegedly helping friends and family to state contracts. In his book, The President’s Keepers, Jacques Pauw writes in detail of the Principal Agent Network’s (PAN) alleged activities in an office complex just south of Pretoria. “The auditors at Route 21 had hit upon enough discrepancies and scams to report back to their superiors that the PAN programme was riddled with wastage, corruption and nepotism and warranted a full-scale investigation,” wrote Pauw.

In his responding affidavit, Fraser not only denies every allegation leveled against him, he insists the IGI “has no authority to re-investigate the same matter” as his office had already concluded a two-part investigation before his appointment. Dintwe however believes the former spy boss has a prima facie case to answer. As a result, he proceeded with his investigation, along with a number of other investigations – including the alleged deployment of SSA operatives at functions of political parties, alleged unlawful interception of communication, and questionable appointments.

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A series of letters between Dintwe and Fraser show a frustrated process to obtain information for these investigations. The IGI first wrote to the DG regarding the political party investigation at the end of June 2017. In his letter Dintwe asks for deployment information of operatives from January 2014-2017. A number of letters between the two would follow in the months thereafter until December, when Fraser wanted clarity over the function of the request. “I have however been experiencing restricted or managed access to information from the Director General as evidenced through protracted delays,” reads Dintwe’s affidavit. While this borders on a breach of the Intelligence Oversight Act, which states no intelligence agency is allowed to withhold intelligence from the IGI “on any ground”, Dintwe claims – in one instance – officials outright denied his request for information during a meeting held in Fraser’s absence.

But the written communications between the two hint at a much deeper abuse of administrative processes to avoid accountability – if Dintwe’s version of events is to be believed.

Administrative bullying

Shortly before his appointment, Dintwe’s office wrote to Fraser, requesting a budget for the 2017/18 financial year. Fraser was also informed that an adjusted budget request would be sent as soon as the new IGI was appointed.

Halfway through the financial year – in October 2017 – Dintwe asked the DG for additional funds saying his office had been “allocated a minimal operating budget”. For effective oversight, they needed another R2, 466, 875. Again, after a range of letters between the two institutions, the oversight body claimed in December it was close to a million rand in the red and asked that the request be prioritised. But by the end of January 2018, Dintwe’s office was informed that the request for additional funds “did not get approval”.

Meanwhile in November of 2017, Dintwe hoped to fill eight vacant posts – six of which he describes as “critical”. The posts included an Oversight Practitioner and Oversight Principal Officer. Exactly a month later, the response came: “Regrettably, the State Security Agency is unable to adhere to your request for funding of the posts as identified in your letter.”

It is due to these developments that Dintwe wants his budget to be separated from the clandestine institution he is tasked with holding accountable. He also wants independence from the SSA in terms of his security clearance – the matter which finally led to the court action.

The Whip and the watchdog

Two months after Dintwe’s appointment, the Democratic Alliance (DA) Chief Whip John Steenhuisen laid a complaint with the IGI. The subject matter: Arthur Fraser and the allegations of forgery, fraud, and corruption, among others, related to the PAN programme. (As far as the court documents go, it is unclear at which stage the investigation is, apart from Dintwe confirming it is on going.)

It was during these interactions that Fraser claims classified documents exchanged hands. Initially, Fraser claimed to be in possession of information that “political parties in Parliament” were in possession of classified information and presented it to Dintwe. He questioned the inspector-general about this in a letter in early November.

Later that same month Fraser claimed to have obtained information that Dintwe had disclosed classified information to MPs. This time, he does not afford the inspector-general the opportunity to respond to the allegations; instead he immediately institutes a process of re-vetting his security clearance. “The State Security Agency has received disturbing information impacting upon your security competence with due regard for the serious consequences it holds,” the letter reads.

The inspector general objected to this. In his affidavit, Dintwe said his security clearance is regulated by the minister in consensus with the Joint Standing Committee on Intelligence (JSCI) – as stated in the Intelligence Oversight Act and is valid until 2022. He further denies Fraser’s accusations, saying, if it was the case it would imply that he and/or his office was being monitored by the agency he is meant to keep in line.

“I deny in the strongest possible terms that I am conducting surveillance on the applicant,” was Fraser's response.

The former spy boss does not go into detail as to the full reasons behind his decision except to say that he has evidence that Dintwe “is a security risk and acted in a manner prejudicial to the interests of the Republic” and is willing to elaborate before a court in private. And so, on 28 March 2018, Fraser informed Dintwe that his security clearance had been withdrawn. But in the reasons listed, Fraser does not include the disclosure of classified information – the alleged action that initiated the re-vetting process. The chief reason is failure to report a breach of disclosure.

Even more interestingly, when excerpts of Pauw’s book was first published in Sunday newspapers, Fraser immediately announced legal action as the retired investigative journalist had published classified information. Yet nowhere in either Dintwe or Fraser’s affidavits is there any mention of steps instituted against the MPs involved. Steenhuisen has also told Jacarandafm News he is not aware of any investigation against him. Dintwe, the one person in the world that had access to Fraser’s secrets, was the sole transgressor.

Long-term autonomy

Without security clearance, Dintwe was on shaky grounds. Not only was he no longer able to access classified documents, he could not enter his own office. It also provided grounds for his removal. He believes this was Fraser’s intention. He has described the former spy boss’ actions as illegal, unconstitutional and “irrational at best”.

Fraser in turn strongly denies this. “It should be noted that the decision to withdraw the security clearance of the applicant was not taken lightly or for ulterior purposes,” reads his submission. “I have no reason to do so.” While the complaint laid by the DA was public knowledge since May 2017, and again when Pauw published his book, Fraser insists he was not aware that he was the subject of an investigation.

But beyond the intentions, the events that unfolded over the past year are evidence of possible obstruction, interference and intimidation of the watchdog agency. Not only does the inspector-general have to go to the SSA for money, the same institution determines his physical security.

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Setlhomamaru Dintwe plans to ask the courts to declare various aspects of the National Strategic Intelligence-and Intelligence Oversight Acts unconstitutional to prevent the “gross abuse of public office in order to achieve improper ends” in the future. He further wants the court to direct Treasury to recognise his office as a schedule one constitutional entity and allocate it a separate budget, which would ensure its financial autonomy.

The urgent court bid to interdict Fraser might have been withdrawn, but Dintwe says his investigation continues. The State Security Ministry's Brian Dube meanwhile says a re-vetting process of Dintwe's security competence will go ahead in the meantime. The second half of the application, to review the relevant legislation to ensure his office’s independence, will also go ahead. 

While a date is yet to be determined for this, the IGI says: “It is of critical importance that the Inspector General must be protected from any interference with the execution of his constitutional mandate”. The minister has also highlighted the importance of the IGI's oversight role. "The minister is not of the view that such matters should be the subject of court discussions," explained Dube. "The minister believes that these matters can be resolved internally."

In the meantime, both the minister and the new acting spy boss have undertaken to the court not to interfere in the IGI’s duties and furnish his office with all the classified information it requires.