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          • Year: 2018
          • Proper Constitution is Necessary for Accountable Political Power

          • BCSP researcher Jelena Pejić talked with prof. Laurie Nathan about the constitutional regulation of security services in South Africa. What compelled the writers of South African constitution to dedicate a special chapter to the security sector, how has it been implemented so far and what can we learn from South African experience, find out in the interview below.

        • South African Constitution of 1996 contains special chapter on Security services, identifying each of them (defence, police, intelligence), enlisting principles they are subjected to, as well as mechanisms of oversight and control over the services. This was rather groundbreaking at the time, and still is rarely encountered in constitutions of the countries all over the world. Why was it so important to regulate this matter in the highest legal document and in one special chapter?
           

          There were two problems we were trying to address through constitutional framework of security. The first problem was that the apartheid security forces have operated in an unaccountable, non-transparent, repressive fashion, constantly violating human rights, operating outside the realm of the rule of law. Therefore, that was a fundamental problem that needed to be addressed. And second, the ANC (African National Congress) was going to become, through free and fair election, the new government but it did not have itself any substantial army or significant intelligence service, and no police service, which meant that the apartheid security services were going to remain security apparatus in the new democratic dispensation.


          The Constitution sets the basis for democratic transformation of the security apparatus

          It was therefore necessary to reign them in, to subject them to a process of fairly radical transformation and the constitution as the supreme law was seen as the right place to begin. So, at the level of the supreme law we would set up fundamental principles that would then have to be translated into legislation and policy papers. The constitutional framework was an effort to address the problem that was not simply historic, but also a contemporary problem that we saw continuing in the future.


          New constitutions of some African states in the 21st century have also included separate chapters on the security sector. South Africa did this first. Did you have any role models in this regard?

          No. It started almost by accident. I was involved in a policy think-tank called the Military Research Group, which was made of ANC people and we were advising the ANC leadership on the security and defense policy in the early 1990s before the first democratic elections. Our aim was to develop a framework at the level of fundamental concepts and principles of transformation. Although we were called Military Research Group, in fact we looked into policing, arms industry and intelligence and the whole spectrum of hard security.

          We proposed to ANC leadership a set of principles for defense and security in democratic South Africa. The ANC then embraced this document at the National Conference that they organized where they developed their policy positions on all issues - health, education etc. That document basically became the constitutional chapter on security.

          We were not looking at other constitutions when we developed our idea, but we looked at the international experience, interested in best practice. So we looked into Canadian model of policing, we looked at civil-military relations in the US, UK and India. We were thinking and talking and debating from a very broad comparative perspective to see what we thought we could learn from other experiences, what would best suit our conditions, although we did not in fact look into other constitutions.


          Constitutional regulation of intelligence services may not be sufficient, but is certainly necessary
           

          Comparing to the defence forces and police, intelligence services are least regulated in SA Constitution. They are also rarely regulated in other constitutions. Due to special nature of intelligence work, to what extent may constitutions deal with it?

          It may not be sufficient, and I will explain why it hasn’t been sufficient in South Africa, but it is certainly necessary. I don’t see how you could, in any country, regulate the intelligence services and subject them to proper accountability other than by law, and the constitution is the supreme law. It provides basis for ministers to hold the intelligence services to account, it is way for ministers to be held accountable by parliament, and the president has to account to parliament; it is way courts can adjudicate and make assessments on legality and illegality, so you need constitutional legal framework. However, it is not sufficient because intelligence services operate in secrecy. Therefore, if they are determined to break the law, they can very often get away with it, because actions are not seen. If the police or the military break the law, you can generally see it, whereas intelligence services enjoy the luxury of secrecy and most often one can not see what they are up to.

          In those circumstances whether they are held accountable or not depends on the will of the executive. On the basis of my research of SSR (security sector reform) in many countries, the fundamental issue is whether the executive, which is principally the president or the prime minister, want the intelligence services to be subject to democratic control or not. In a way, that’s the bottom line. So, if the president wants the intelligence services to be subject to democratic norms, than that is likely to happen. If the president doesn’t want that, but is happy for the intelligence services to be partisan and unaccountable, then that’s what will happen. That’s the realpolitik of intelligence services.


          Constitutions need to be developed for the bad types, not for good types of presidents
           

          South African Constitution gives a lot power to the president regarding security services. Isn’t there a fear of concentration of power in the hands of one man? Given the latest scandals with former president Zuma, the question of presidential accountability is greater than ever. Are there effective ways to hold the president accountable for bad decisions in the security sector?

          I think the president in our constitution has too much power, but you have to remember that our first democratic president was Nelson Mandela. At the time when we were developing the constitution, that was our idea of the president. However, constitutions need to be developed for the bad types, not for good types. We never anticipated a bad president, we just looked at this glorious president and gave him a lot of power. We also needed a strong executive because so much transformation was required. We were inheriting the civil service and the security service from the apartheid regime. They were not going away, they were to remain. Therefore, strong presidential power was intended to give the president the capacity and power to effect the transformation and to establish clearly that the president was the boss.

          In hindsight, I think most of the South African political scientists would say that was a mistake, that the president has too much power and ought to be subject to greater constraints. But that said, I think there’s a greater weakness of having an electoral system based on proportional representation, not based on constituencies. What that means in effect is that the members or the individuals in the ruling party and the opposition parties are not accountable directly to constituency, to voters in the way they are in the UK or the US. Instead, they are accountable to the party.


          Citizens should hold the president to account, not his own party
           

          Consequently, who holds the president to account? The party does, but the president is the boss of the party. We have fired two presidents now, but in both instances (first Thabo Mbeki and then Jacob Zuma) it was the party that fired the president, not the parliament and not the people. The parliament which is meant to hold the executive to account is dominated by the ruling party and it is subservient to the president, so it is very unlikely that they going to reign him in. That is another weakness in terms of accountability and constraints.


          Has the practice so far pointed to some deficiencies of the Chapter XI (Security services)? What aspects should be changed or perhaps should have been formulated differently from the start?

          I’ve done a lot of work on intelligence reform and highlighted problems. I wouldn’t rewrite the constitution today. I don’t think that’s the level on which the problem arises. I think constitutional provisions on security are great and if one goes to the next level of law, our legislation on intelligence is great. We have in fact fantastic legislation on intelligence, inspector general, accountability of intelligence services and their powers and functions. It’s been an ongoing process of refining and reforming, but generally it’s good legislation. The problem is, especially under Zuma, that the president has used and abused intelligence services for party political purposes and no constitution is preventing that from happening.


          Constitution’s weight depends on the willingness of the powerholders to respect it


          There’s a distinction between law, as important as it is, and power. And power can trump law. Our constitutional court has strained the president, and found against the president repeatedly, and we have a viable functioning democracy. Mechanisms for accountability, like courts, they work, but they don’t always work. There’s a limit to it. You can see that in America now - you have strong institutions, but a crazy president and the potential for abuse of power is high then.

          So, I wouldn’t rewrite the constitution. If I could wave a magic wand, I would ensure that the president is commited to having an intelligence service that places its first loyalty to the constitution, not to the ruling party or to the president. And also, that the minister for intelligence has the same view. But that’s a political comment, not a legal one, and you won’t achieve this dream by rewriting the constitution.


          The question arises - who controls the controllers? Are they sufficiently transparent and accountable?

          There is a difference between security actors like police, military, correctional services and intelligence. In each case there’s a different potential problem. Classically, the problem of the military is that they have the power to seize the state - the problem of coup, or military dominating civilians. In the case of police, problems are typically corruption, brutality on the streets, harassment of the opposition parties.

          In the case of intelligence services, the classical problem is abuse of secrecy to spy on opposition parties or to use intrusive measures unethically or illegally, or in some cases to resort to torture, etc. The big problem about intelligence services is, as I’ve mentioned earlier, the problem of transparency, and that’s true throughout the world. In South Africa our police and the military are transparent, prisons are transparent, but intelligence isn’t.


          The parliament cannot control the security services if it is frightened by them
           

          The parliamentary oversight committee on intelligence ought to hold the intelligence services to account, but it doesn’t do that because it is frightened of them. In addition, it is made up in majority by the members of the ruling party that work under instructions and don’t make a fuss about intelligence publicly. The opposition parties are critical publicly and there are great journalistic exposés about what intelligence services are up to and when they engage in misconduct. Every now and then intelligence services try to impose censorship on journalists and they always fail. Our political system is very transparent, the courts uphold transparency, but the intelligence services are secret, so you have a tension.

          I have long argued that in South Africa the minister of intelligence should be proactive, not just passive; he or she must be making information available all the time. I’ve used positive examples of Netherlands and Canada. For a brief period some years ago we had a very progressive minister of intelligence, who did all of that. He said to the intelligence services - you are subject to the law. Do not step outside the law! But they said - but minister, our hands are then tied. He said - tough luck! The constitution tied your hands. If you want to propose an amendment to the constitution or legislation, do try, but until it is amended, these are your higher orders.

          He has been an exception. Other ministers have been primarily loyal to the president. So I come back to what I said at the start. Constitution is beautiful, it’s the supreme law, it’s necessary, but it may be overwritten by power. The constitution’s weight, it’s authority derives from the willingness of those in power to respect it. If they choose not to respect it... well then it’s nuts to break down.


          What role has Constitutional Court of South Africa had in ensuring respect for the Chapter XI on Security Services?

          Yes, there had been a number of Constitutional Court cases and the courts have consistently ruled in favor of the Constitution. They have not deviated from it. There was a nice case in 2008. To get a long story short, the head of the national intelligence service has been fired by the president; he contested his dismissal in court; it went to the Constitutional Court. As the process was beginning, the Minister of Intelligence said - this matter lies outside the jurisdiction of the Court, because it is intelligence and the president has prerogative in terms of Constitution. The Court in a hundred-page judgment devoted a single paragraph to that issue. They said - don’t be silly. Of course the Constitutional Court has jurisdiction of everything. So, the Court insists on the application of the rule of law and the minister and the president accepted the Court’s decision on this matter.


          Independent and courageous judiciary makes the constitution a powerful weapon for democracy

          The most important thing about the constitution, as in our case in South Africa and probably in most democratic countries, is that the court is willing to put the constitution above everything else, so it doesn’t matter what the president says, or what the executive says. At the end of the day, the court says what does the constitution tell us. The constitution binds us all, and binds you too, Mr President, whether you like it or not, and we are given, as a court, the authority to tell you what you may or may not do. We are not usurping your power, we are doing what the constitution allows us, compels us to do.

          We’ve been saying that the constitution’s worth depends on power; it also depends on independence and integrity of the court to enforce it. You can have a very beautiful constitutional paper and a very weak court. I’ve been working in Macedonia, so I have a little feel for what’s going on in that part of the world. There’s no problem with the Macedonian Constitution, but if the court is beholden to the ruling party as it was under VMRO, well then your constitution doesn’t count for anything. If you have an independent, courageous court, then the constitution is a powerful weapon for democracy.


          How does the vast private security sector in South Africa fit in this normative framework? Does it imply that the security system envisaged by the Constitution is unable to provide security to citizens? At which legal level should it be regulated?

          It is regulated by the legislation, and that is sufficient, in my opinion, because it doesn’t have that much power as the state. Going back to classic political theory, in the social contract that we have with the state, we give the state the power on condition that the state doesn’t abuse that power. We set checks and balances to constrain the state exercise of the power that we, the citizens, have given to it. The private security industry doesn’t have power, so we can regulate it through legislation, but I don’t think there’s a need for constitutional provisions.


          Abuse of state force presents a greater threat than the private security sector
           

          The private security sector has emerged and is still thriving in the middle-class and wealthy areas, because the police are ineffective and corrupt, and violent crime is a very serious problem. Therefore, people that have money can bye private security.


          Due to specificity of SA political system, to what extent can Chapter XI of the constitution serve as a role model for other countries?

          I think it can, provided that it is not seen as a formula. In other words, all countries that are democratizing and wish to become more democratic, to strengthen their democracies, should look to experiences of other countries. It’s helpful. You learn a lot - you learn from states, you learn of positive experiences, you also learn what’s possible, so you may have people in this or that country saying - no, no, no, you cannot have a provision on intelligence in the constitution. Then you can say - but South Africa does, so it is at least possible.


          Comparative learning is useful, but constitutions should be tailor-made
           

          Comparative learning on a constitutional, legislative and policy level etc. is very important way to develop a transformation agenda in every country. But at the end of the day, you can’t just take a constitution of another country and make it your own constitution that is just to copy provisions. At the end of the day, you must say - this is our country, our history, this is our political culture; here are the problems that we wish to adress in our constitution, and therefore this is what we think we should put in our constitution.

          Before you rush to propose structures like a national security council, you have to be clear with the motivation. What do you think you can achieve and is it the right body to achieve it? We used to say: structure follows strategy, strategy follows objectives and objectives follow goals. You got to do that in that order.


          Start with defining goals, then follow with objectives, strategy and structure

          You should not have the debate on structure if you’re not clear on the goals, which are aspirational, fairly abstract, then objectives which are concrete thing you want to achieve, then you look at the strategy, or how you want these objectives to be achieved and only then what are the right structures to set up. It happens often that we have huge debates on structure, when we in fact are not clear about the objectives, or we do not agree on objectives. Then your structures won’t work.

          We began our process by agreeing on the high level principles, which were eventually included in the constitution. At the highest level, before we got down to details, we said, as a matter of principle, the intelligence services should be accountable to the executive and the parliament. If you have national consensus, or consensus among political parties, on this principle, than that’s the high level goal. Then you go to determine the objectives, for example - strong parliamentary committees on defense, intelligence services, police. Then - what kind of structures do we need. One should not get obsessed with structures prematurely.

          Further reading:

          Nathan, Laurie (2010). „Intelligence Bound: the South African Constitution and Intelligence Services“. International Affairs Vol. 86, Issue 1, pp- 195-210.

          Laurie Nathan is Director of the Mediation Program at the Kroc Institute for International Peace Studies, University of Notre Dame. He is an international expert on security sector reform. He was the drafter of the South African White Paper on Defence (1996) and has been involved in drafting national policy and legislation on defence and intelligence matters in post-apartheid South Africa.  He served on the Ministerial Review Commission on Intelligence in 2006-8.

           

        • Tags: constitution, Constitutional reforms, Jelena Pejić
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