Finally, a new Inspector-General of Intelligence is nominated

28 November 2016

Parliament’s Joint Standing Committee on Intelligence (JSCI) has finally nominated a candidate for the post of Inspector-General of Intelligence (IGI) after the post had been vacant since 31 March 2015. Dr S.I. Dintwe has been nominated as the preferred candidate by the JSCI, and the National Assembly (NA) will vote on the nomination this week. The election process has not been without setbacks but public participation and civil action ensured a more open and transparent process this time around, which appears to be the pattern for ensuring accountability in 2016. Despite serious attacks on our constitutional democracy this year, the founding values of “accountability, responsiveness and openness” are alive and well and being upheld by ordinary South Africans through action by civil society - a proud moment for the Constitution.

The need for independent role players who are tasked with ensuring that no person, company or state institution is above the law is provided for in the Constitution. This provides a lifeline in the current turbulent political environment. In this regard, awareness of these various institutions, besides the Public Protector’s Office, is of great importance to ensure the fight against corruption, as well as to ensure that these institutions carry out their mandates. One such crucial person is the IGI, who is the head of the Office of the Inspector-General of Intelligence in terms of section 210(b) of the Constitution. The IGI conducts independent civilian monitoring of the Intelligence Services, which include the National Intelligence Agency (NIA), the South African Secret Service (SASS), the intelligence division of the South African Police Service (SAPS) and the intelligence division of the South African National Defence Force (SANDF). Considering the IGI’s critical role, it is very worrisome that this position has been vacant since March 2015. According to media reports, during the interviews of potential candidates for the new IGI post it became quite clear that the Office is only being kept afloat by administrative staff whose “hands are tied” when it comes to signing off on investigative reports and decisions. The position needs to be filled quickly.

The key function of the IGI is the investigation of complaints from the public and members of the Intelligence Service on “alleged maladministration, abuse of power, transgression of the Constitution, laws or policies” within the Intelligence Service. The IGI has great oversight power and must determine the compliance of intelligence and counter-intelligence activities of the South African Intelligence Services with legislation. The IGI only reports to the JSCI in Parliament and he/she can only be removed or suspended by the President. This powerful position can easily be abused as no access to intelligence or information may be withheld from the IGI in terms of the Intelligence Services Oversight Act of 1994 (the Act). Considering the extent of these powers it is no wonder that the election process has been so controversial - civil society is right to be vigilant concerning the new IGI.

The last IGI was Advocate Faith Radebe, who vacated the office on 31 March 2015. The IGI is appointed in terms of section 7 of the Act by the President after a process of nomination by the JSCI; the nominated IGI must then be approved by at least two-thirds of the members of the NA in Parliament.

The new IGI position was already advertised in December 2014. In February 2015, the JSCI shortlisted eight candidates to be interviewed, one being the controversial Cecil Burgess, who chaired the ad hoc committee on the contentious Protection of State Information Bill. Mr Burgess also sat on the ad hoc committee which investigated the upgrades on President Zuma’s Nkandla homestead. Despite various requests from civil society organisations for information on the appointment process, the interview process of the shortlisted candidates commenced on 17 March 2015 with closed proceedings. The JSCI only invited public comments on the eight candidates but failed to make their curriculum vitaes (CVs) available for public consideration. This led to a public outcry and in June 2015, the JSCI finally agreed to have the interviews held in public. Nevertheless, despite serious concerns raised by civil society organisations about Cecil Burgess, he was nominated by the JSCI as the preferred candidate. However, the ANC was unable to secure the required two-thirds majority vote in the NA and the matter was postponed. In March 2016, the ANC withdrew Cecil Burgess’ nomination and it was back to the drawing board.

Not much happened after this and the process seemed to stall. After pressure from civil society organisations the JSCI stated in a letter to the Legal Resources Centre (LRC) on 28 October 2016 that the shortlisting and interviews would be held in public - but again the CVs of the candidates were not made available. The JSCI was of the opinion that the CVs were confidential in nature and therefore not for distribution to the public in terms of the Joint Rules of Standing Committees. After pressure was applied by civil society, the JSCI agreed to publish the CVs of the 10 candidates. Interviews were held in public on 8 and 9 November 2016, with the JSCI announcing on 24 November 2016 that by unanimous vote the preferred candidate was Dr Dintwe.

According to his CV, Dr Dintwe holds a Bachelor of Criminal Justice (from the North-West University) and of Technology and Policing (from the Technikon Southern Africa). He further holds a Master of Technology in Forensic Investigations (from the University of South Africa  - UNISA) and he was awarded a doctorate in Police Science, with specialisation in Forensic Investigation (UNISA). His CV states he is the current head of the Department of Police Practice at the School of Criminal Justice, College of Law at UNISA and has accordingly worked as a police constable and then as a detective in the SAPS. He later worked as the Principal Investigator - Anti Corruption Command - in Nelspruit where he investigated corrupt activities of SAPS. During his interview, he was asked about his background in SAPS, what expertise he would bring to the office and specifically his management experience, as his CV states that in his role as Head of Department he is responsible for a budget of R25 million.

The position and role of the IGI is a powerful one and it is crucial that the IGI is accountable to the public, and exercises his power without bias and fear. It is mostly thanks to pressure from civil society that the contentious IGI appointment process has become more transparent.  The future role of civil society in this regard will greatly shape the manner in which the IGI investigates corruption in the Intelligence Services.

By Christine Botha, Legal Officer, Centre for Constitutional Rights, 28 November 2016