Tuesday, March 31, 2009



By Raenette Taljaard
Mar 31, 2009

"Issue goes to the heart of oversight and accountability."

IF IT were not for the rightful clamour and condemnation of the government’s snubbing of the Dalai Lama, more South Africans would have paid attention to the scandalous allegations that a state agency might have wire-tapped conversations between former president Thabo Mbeki and then Scorpions boss Leonard McCarthy, as well as various conversations involving former NPA boss Bulelani Ngcuka, Mzi Khumalo and Saki Macozoma.

This new saga has disturbing echoes in Project Avani, the intelligence scandal that rocked the country in 2005 which also dealt with internal ruling party dramas that spilt over and harmed our intelligence bodies and their functioning in a constitutional democracy.

This episode saw the then minister of intelligence appoint a Ministerial Review Commission on Intelligence to scrutinise what happened and make key recommendations for reform — recommendations that still languish despite yet another scandal erupting, allegedly having its origins in the pre-and post-Polokwane succession sagas of the ruling party.

In recent days startling revelations about the possible existence of “tapes” and intercepted conversations between key South Africans, including a former head of state, that now form part of the representations made by ANC President Jacob Zuma to the NPA constitute a bombshell in our body politic.

Representations that contain taped information — which implies tapping —- must not be treated confidentially and invoke the type of concerns that led the Project Avani scandal to a full review of the intelligence structures in South Africa.

Such startling representations must be subjected to transparent processes given the fact that any interception whatsoever would have required the authority of a judicial officer and the involvement of a law enforcement agency.

These two facts alone immediately place the representations that were made — in full accord with the relevant constitutional provisions in this regard — within a framework of clear oversight and accountability strictures in terms of South Africa’s intelligence gathering statutes.

As former NPA head Bulelani Ngcuka correctly pointed out: “It is a matter of grave concern that in a democratic state, which has an entrenched Bill of Rights — that among others, safeguards the rights of the citizens to privacy — you could have surveillance by a state agency and the product of that surveillance be made available to the lawyers of an accused person in a criminal trial.”

Given the suspicion that now exists that certain tapes do exist, it will be crucial for the NPA, once it has made its decision whether to drop the charges against Zuma or not, to provide not only clear reasons for the decision but to categorically clear the record as to whether or not any tapes exist; whether or not any intelligence laws have been breached and to, if possible, release as much of this information as possible, given the risk to public perceptions of whether or not all intelligence and state agencies acted appropriately .

Even though there is no legal obligation on either the NPA or Zuma’s legal team to make the representations that have been made public, it would be important to give consideration to doing so as the questions that have now been raised publicly about the existence of “tapes” and wire-tapped conversations between key players in office and various state agencies and private individuals goes to the heart of democratic oversight and accountability.