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The investigation into how the National Intelligence Agency's secret "spy tapes" got into the hands of President Jacob Zuma's lawyers - which led to the scrapping of criminal charges against Zuma and ultimately to a change in government - has been completed, but the report is under wraps.
The Inspector-General of Intelligence, Zolile Ngcakani, who has an ombud role and oversees all intelligence services in the country, confirmed that his office had finished its investigation, but said its findings could not be made public because "the report has not yet been released to the appropriate authorities".
The investigation deals with the taped recordings of intercepted conversations between former Scorpions boss Leonard McCarthy and former National Prosecuting Authority (NPA) head Bulelani Ngcuka, made towards the end of 2007.
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The conversation suggested that McCarthy was taking political instructions as to the best timing to bring fraud and corruption charges against Zuma. These recordings led to all criminal charges against Zuma being dropped.
Although the inspector-general's report on the spy tapes is under wraps, the inspector-general did reveal to the Pretoria News that his investigation had found that the intercepting of phone conversations involving McCarthy had been conducted by the NIA "lawfully in terms of a judicial direction".
The investigation also established that the police were spying on McCarthy at the same time. "We have found that the crime intelligence division of the police intercepted the phone conversations of McCarthy as part of an unrelated investigation, and such interceptions were conducted lawfully in terms of a judicial direction," Ngcakani said.
He said his office had extended its spy-tape investigation to include the police crime intelligence division after it had emerged in the court case of former national police commissioner Jackie Selebi that tapes had been released to him.
"Subsequent to the issue of the release of tapes to Mr Selebi emerging in the South Gauteng High Court in May 2009, we included the activities of the crime intelligence division of the police during the period in question."
The inspector-general's office would not say who the "appropriate authorities" were to whom the report would be given.
Legislation requires that it should go to the joint standing committee on intelligence (JSCI).
Ronnie Kasrils, who was the minister of intelligence at the time of the spy tapes saga, said he had no knowledge at the time that the NIA was tapping McCarthy and Ngcuka's phones.
Kasrils said that after the intelligence crisis of 2005/06, when former NIA head Billy Masetlha was found to have abused the intelligence powers by instigating unlawful surveillance and eavesdropping on politicians - and creating hoax e-mails - he had issued a directive to the NIA and to the minister of police that "any interception using the National Communications Centre facilities needs to be passed by me".
But the NIA and police apparently defied this ministerial directive.
"The NIA were obliged to report this to me as minister. They never did. I knew nothing about it," Kasrils said.
"Intelligence agencies intercepted conversations of a state official (McCarthy), whose calls to his own minister and to the president were being intercepted. In other democratic countries this would be regarded as an incredible scandal," Kasrils said.
"We're dealing with something here which led to a government change and a president being removed. And the public doesn't clamour for the release of this report? The country is asleep," he added.
The JSCI is a parliamentary committee tasked with overseeing the intelligence services as one of the governments checks and balances against abuse by the intelligence services. It meets in secret.
However, JSCI chairman Cecil Burgess was not aware that the inspector-general had completed the spy tape investigation.
Asked yesterday if he would call for the report, Burgess replied: "It depends on what the report contains. There are certain things we may not be entitled to see."
It is a criminal offence for the intelligence agencies to release intercepted information to the public, and for the public to be in possession of classified information without permission.
The legislation spells out when classified information may be released by intelligence agencies, and it is clear that it must be for the purposes of law enforcement.
Zuma's lawyer, Michael Hulley, has repeatedly refused to say who he got the tapes from, but has repeatedly denied reports that they were given to him by NIA deputy director Arthur Fraser. Hulley has been reported as saying the tapes were given to him by "at least two different sources".
Although Ngcakani's investigation revealed that the phone tapping was lawful, the inspector-general would not be drawn to say on what grounds a judge had given both intelligence agencies authorisation to tap the phone conversations of the former Scorpions boss, saying this information was classified.
The Regulation of Interception of Communications and Provision of Communication-related Information Act, known as Rica, is specific about the grounds for intercepting communications, and an application to do so has to be made to a designated judge, appointed by the minister of state security.
The applicant has to state the nature of the "serious offence" that the agency has reason to believe is being, or will be, committed. This can include treason, terrorism, sabotage, sedition, arms smuggling and drug trafficking.
If the grounds remain classified, the public will never know why the intelligence agencies spied on McCarthy and Ngcuka. To date, neither has been charged with any crime.
- This article was originally published on page 1 of Pretoria News on November 09, 2009
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