R2K condemns Spy Chief’s secret appointment process!

R2K was shocked to hear that Parliament’s intelligence oversight body, the Joint Standing Committee on Intelligence, intends to appoint the next Inspector General of Intelligence in secret. We have written the following letter to the presiding officers of Parliament:

9 March 2015

To: The Speaker, National Assembly

The Chairperson, National Council of Provinces

CC: Chairperson, Joint Standing Committee on Intelligence

Dear Honourable Speaker,

1. We wish to raise our concern at media reports that the Joint Standing Committee on Intelligence will interview candidates for Inspector General of Intelligence behind closed doors. In terms of the Joint Rules of Parliament (rule 14(2)), and the rules of the National Assembly (rule 40) and the NCOP (rule 26), the power to regulate access to proceedings of the relevant House, falls under the control of the Speaker and Chairperson, as appropriate.

2. The Inspector-General is a form of public ombud, and is expected to receive complaints from the public about alleged maladministration, abuse of power, transgressions of law and policies, corruption and improper enrichment within the intelligence services.

3. The Right2Know Campaign wrote to the Chairperson of the JSCI on 20 January 2015, calling for an open recruitment process in line with the process adopted in recruiting the current Inspector General in 2009. The Chairperson responded on 27 January 2015, to the effect that the decision on open or closed process was still under discussion. The letter was marked ‘Confidential’.

4. We responded on 30 January, requesting a timeline of the recruitment process, including when the Committee would decide on an open or closed process. We also requested that the Committee take additional representations on the matter if any doubt existed on the importance of an open process. We did not receive a response.

5. Subsequent to this correspondence, after a brief open meeting of a subcommittee of the JSCI to shortlist candidates, in which no documents were made publically available, all further meetings on the matter have been behind closed doors.

6. The Inspector-General remains a critical appointment, especially in light of recent developments within the intelligence agencies. To give effect to the Chairperson’s commitment that the appointment process will continue to have the ‘highest regard for promoting the best interests of the country and protecting the rights of its citizens’, a transparent and participatory process is required. The precedent set in the 2009 appointment process, set a bare minimum on what an open process can entail.

7. We note the provisions of section 59 of the constitution:

Public access to and involvement in National Assembly
59.
(1)The National Assembly must —
(a)facilitate public involvement in the legislative and other processes of the Assembly and its committees; and
(b)conduct its business in an open manner, and hold its sittings, and those of its committees, in public, but reasonable measures may be taken —
(i)to regulate public access, including access of the media, to the Assembly and its committees; and
(ii)to provide for the searching of any person and, where appropriate, the refusal of entry to, or the removal of, any person.
(2)The National Assembly may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an open and democratic society.

8. The right to an open Parliament underpins the right to public participation in the law-making and other processes of the NA and NCOP, guaranteed in ss 59(1)(a) and 72(1)(a) of the Constitution. In Doctors for Life International v Speaker of the National Assembly, the Constitutional Court affirmed this link:

“Public access to Parliament is a fundamental part of public involvement in the law-making process. It allows the public to be present when laws are debated and made. It enables members of the public to familiarise themselves with the law-making process and thus be able to participate in the future.”

9. The onus rests on the office of the Speaker to justify why the committee hearings should be closed. We request that the Speaker disclose the reasons for this process to be held in secret, especially given that the previous interviews were held in public.

10. We also request the Speaker publically to disclose, as per Rule 157 (1), the following:
i. Detailed timelines for the appointment process including; dates, times and agenda for each meeting.
ii. A full list of all 56 applicants to the positions [as discussed at the 24 February 2015 open sub-committee meeting]
iii. Copies of the Curriculum Vitae’s of all eight shortlisted candidates

11. While we recognise that some of the activities of intelligence agencies require confidentiality, specifically, ‘operational techniques of covert collection’, it is in the spirit of our constitutional democracy that ‘the rest of our intelligence activities should be open and above board… in accordance with fundamental human rights and freedoms.’ The 2009 appointment process set a bare minimum precedence for openness which should be upheld. This will serve not only as a clear commitment to upholding these democratic principles, but also build public confidence in a key oversight body, at the time when it is greatly needed.

Regards,
Murray Hunter
Right2Know Campaign