Security threat or political shame?

Members of Parliament stage a walkout from the House last week, minutes after Julius Malema's EFF caused a fracas by chanting 'pay back the money' to President Jacob Zuma. File picture: Tracey Adams

Members of Parliament stage a walkout from the House last week, minutes after Julius Malema's EFF caused a fracas by chanting 'pay back the money' to President Jacob Zuma. File picture: Tracey Adams

Published Aug 31, 2014

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While the EFF made all the noise in Parliament last week, it is the ministerial backlash that is truly disconcerting, writes Marianne Merten.

Cape Town - SECURITY ministers have stepped precariously close to changing the direction of South Africa’s constitutional democracy by citing security threats and law enforcement for intervening in the “Pay back the money” EFF ruckus that scuppered President Jacob Zuma’s question time.

This ministerial intervention, including unspecified “extraordinary” and “contingency measures” hinted at this week, is the latest in a series of choices which have seen the securocratic elevated above the values and spirit of the Constitution.

South Africa’s supreme law in Section 198 takes a human and citizen-focused view of national security: “(It) must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life” in accordance with legislation.

Various security and intelligence laws speak of the protection of the “people” and “territory” of South Africa – not the need to act “in defence of the authority of the state”, as Defence Minister Nosiviwe Mapisa-Nqakula put it.

Describing law enforcement as “the first and last line of defence” undermines South Africa’s global legacy: negotiating a peaceful transition to democracy through talks.

This also comes at a time South Africa’s public discourse frequently describes political and other dissenting voices as rebels, anarchists, hooligans and factory faults amid promises they would be dealt with.

Security ministers, briefed by their directors-general, shopped for laws to explain why their executive intervention in the legislature was no contravention of the separation of powers, the doctrine which gives each branch of the state, including the judiciary, distinct responsibilities in the system of checks and balances against the abuse of power.

But saying the separation of powers was not violated, no matter how often, does not make it true.

Police Minister Nkosinathi Nhleko confirmed he called in the SAPS, leading to the arrival of riot police at Parliament for the first time in democratic South Africa.

He did so without consulting either the parliamentary security chief – an ex-Umkhonto we Sizwe operative – or the Speaker, who alongside the National Council of Provinces chairperson is in charge of the parliamentary precinct on all matters at all times according to law.

Independent Newspapers has it on good authority that national police commissioner General Riah Phiyega was left out of the loop as her police jumped to obey a politican. According to the Constitution, control of the police is by the national commissioner, appointed by the president, while a cabinet minister exercises political responsibility with a focus on policy.

Nhleko and State Security Minister David Mahlobo brokered an agreement with the EFF that there would be a meeting with the leader of government business, Deputy President Cyril Ramaphosa.

Speaker Baleka Mbete publicly said she did not know about the riot police or the agreement. Mbete, also the ANC national chairwoman, may also have been in the dark over the anonymous tip-off that Zuma’s question time would be disrupted as the ANC said it passed this on to security services it did not identify, but not the Speaker.

Clause 4 in the 2004 Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act unequivocally states members of the security service may enter the parliamentary precinct to perform any policing function “only with the permission and under the authority of the Speaker or the Chairperson”.

Only in cases of “immediate danger to the life or safety of any person or damage to any property” does the act allow security services to act without a presiding officer’s permission, but they must report to them as soon as possible afterwards.

Thus not even summonses are ever served in Parliament to the best of anyone’s recollection.

When the riot police arrived last Thursday, the house was suspended on Mbete’s instruction. The singing 25 EFF MPs were the only ones left behind, while other MPs jostled outside the closed doors of the National Assembly.

Somewhere in the fracas some cool heads prevailed to ensure there was no display of kragdadigheid: the house was not in session, there was no Speaker’s permission, thus there could be no police action.

“Political embarrassment can never be a threat to national security or any matter of security,” says one security insider.

“Not even the boers could charge anyone for singing.”

The EFF debacle comes as the security cluster remains in a scandal-induced spin – from the controversy over prosecution boss Mxolisi Nxasana’s denial of security clearance, politically motivated wrangling at the National Prosecuting Authority, which has seen a revolving door of acting and permanent bosses, the spy tape saga, the ongoing ructions in police crime intelligence around Richard Mdluli, who claims proximity to the president, and the war of words with the public protector, a Chapter 9 institution established in the constitution to support democracy, whose findings can only be reviewed by a court.

Zuma is a securocrat with a strong intelligence background, which served the ANC well in exile.

And few, if anyone, doubt he is not in full command of the security cluster.

“The security cluster is under the firm political control of the president, (who is) comparably less hands-on elsewhere” explains one legislator, pointing to a trend of bringing the political to appointments in key state institutions.

So, this presidential background in the smoke-and-mirror game, steeped in plausible deniability and supported by a network of trusted confidants, simply does not translate into a constitutional democracy founded on accountability, responsiveness and openness.

And perhaps it is a reason for an increasing myopic view of security as state-centred.

But it’s not a simplistic, blame-Zuma, scenario. Into the mix come factional battles within the governing party, into which intelligence and security services were drawn publicly in the run-up to the 2007 Polokwane ANC conference, an inability to root out slate politics despite senior ANC leaders’ condemnation and the repercussions of such political factionalism within senior civil service ranks, where political jostling takes on its own dynamic.

Thus a military tribunal heard how wedding guests of the politically connected Guptas were allowed to land at the military Waterkloof Airforce Base after the top international relations protocol chief cited approval by No 1.

The president dismissed any knowledge in Parliament, but this Guptagate sworn testimony is but one example of how the state meant to serve citizens is being compromised.

Perhaps South Africa’s system has a design flaw. Intelligence fell under justice deputy minister Joe Nhlanhla until 1999 when it became a full ministerial portfolio under the presidency of Thabo Mbeki – opening the door to increased exposure to the political.

In Australia and the United Kingdom senior civil servants deal with domestic intelligence and report to even more senior civil servant-headed structures supporting the head of state and cabinet.

In the US, ultimately control falls to senior civil servants who, via a committee, report directly to the president.

In Germany, the interior minister is responsible for domestic intelligence as in France, where the minister also is in charge of police.

This model is in place in many African countries too.

South Africa’s yet-to-be-acted-on 2008 Matthews ministerial review commission suggested many changes in the intelligence realm, but not to this structure.

Instead Mahlobo in his budget speech indicated a review of regulations under the 2013 General Intelligence Laws Amendment Act.

That legislation defines security threats as threats, or use, of force, hostile acts of foreign intervention, terrorism, espionage, exposure of vital economic, scientific or technological secrets or of state security matters to undermine the constitutional order and serious violence directed at overthrowing the constitutional order.

For now, the National Assembly is throwing the rule book at the EFF. Unless the party obtains an urgent court interdict tomorrow, MPs are set to vote on Tuesday for the party’s immediate suspension pending a probe into contempt by the powers and privileges committee, hastily reconstituted three months into Parliament’s term.

The pending vote effectively is a pre-emptive move using the rules, and ANC numbers, in another round of mechanically ticking the boxes. “The only (security) threat is we will use our majority to change policy and rules,” says a security expert.

“The paranoia in the security cluster, why? The only national security threat is ourselves f****** with our constitutional democracy.”

South Africa is on the cusp of crucial public governance decisions that will reverberate throughout our constitutional democracy.

Political Bureau

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