As the furore around the State Security Agency (SSA) rages on, one of only two bodies that can hold the agency to account is not functioning.
Nearly four months into parliament’s sixth term, the Joint Standing Committee on Intelligence (JSCI) has yet to start its work.
This is apparently because consultations over who the chairperson should be have not yet been concluded.
The other body responsible for holding the intelligence agencies to account is the Office of the Inspector General of Intelligence (OIGI) – but the OIGI also reports to the JSCI. While the OIGI has broad powers to inspect the work of the intelligence agencies, and while it can also follow up on complaints from members of the public, its reports are also classified by default.
The SSA has been mired in controversy in recent weeks, starting with revelations at the end of September, that top spy Thulani Dlomo had been AWOL for eight months.
Dlomo was fired shortly after that story broke, but the SSA has been unable to locate him to give him his letter of dismissal.
State Security Agency minister Ayanda Dlodlo was also accused of issuing an unlawful instruction to the SSA’s head of domestic intelligence, advocate Mahlodi Muofhe, to intercept the communications of someone without prior authorisation by a judge, as the law requires.
In May, a High-Level Review Panel, headed by Dr Sydney Mufamadi, made a series of scathing findings against the SSA.
It found, among other things, that the SSA had become politically aligned and had done the bidding of former president Jacob Zuma’s faction in the ANC. The Special Operations Unit, headed by Dlomo, was central to this.
While parliament is supposed to hold the government and Cabinet ministers to account, there is no committee responsible for intelligence. This is usually the job of the JSCI.
The JSCI usually meets behind closed doors and its deliberations are classified. The auditor general reports, annual reports, strategic plans and other crucial documents related to the functioning of the intelligence agencies, which include the SSA, are processed by the committee which must report back to parliament.
However, extremely limited information is ever revealed to the public and details of these reports remain top secret.
The JSCI is, however, the only body besides the Inspector General of Intelligence which could theoretically seek answers from the minister and senior SSA officials on problems at the SSA.
Dianne Kohler-Barnard, a DA MP who was appointed to the JSCI, said an ad hoc committee was established to process the budget of the SSA, but it was dissolved afterwards and has not been reconstituted since.
“It’s outrageous,” Kohler-Barnard said. “All of this chaos is going on [at the SSA] but the question is, who does one report this to? I am seeking legal advice as to whether to lay criminal charges [over developments at the SSA].
“But the minister should be accounting to the JSCI. We should be hauling her to explain her actions.”
ANC MP Dorries Dlakude, also on the new JSCI, said the committee’s chairperson had yet to be appointed and that’s why it had not yet been constituted.
Dlakude said that unlike other committee chairpersons, the JSCI’s head had to be appointed in consultation with a wide variety of actors, political parties, and officials, including the president.
She said this was a “long process” and that it was not unusual for it to take this long. Dlakude added that parliament had had a lot on its plate since the May elections. Dlakude added that, in theory, another ad hoc committee could be established if there were “pressing matters” which needed attention.
But a committee insider who is not authorised to talk to the media said that the delay was not normal, and that she did not know what was taking so long.
Both Kohler-Barnard and Dlakude said they did not know when the committee would start its work.
But even if the committee was operating, no one would know the outcome of its deliberations which are top secret. Kohler-Barnard explained that committee members cannot take laptops or cellphones into meetings, and are allowed to take notes but must leave them behind.
It is virtually impossible for committee members to be properly prepared for meetings or to be completely up to speed with the work of the intelligence agencies, she said.
And if committee members were not given satisfactory answers to their questions, “no one will ever know about it”
In September, the EFF threatened court action against the speaker of parliament over the failure to establish the JSCI.
“Section 55(2) of the Constitution clearly states that, ‘in exercising its legislative power, the National Assembly must provide for mechanisms a) to ensure that all the executive organs of state in the national sphere of government are accountable to it, and b) to maintain oversight of any organ of the state,” the party said at the time, in a letter its lawyers wrote.
Parliament had not responded to a request for comment at the time of publication and its response will be reflected once it is received.
But the secretary to the National Assembly, Masibulelo Xaso, previously told News24 on September 21: “‘As you may be aware, in terms of the applicable legislation the appointment process creates a role for the presiding officers of Parliament, the Presidency and leaders of political parties. The necessary consultations are under way and parliament is confident that the matter will be finalised soon.”