The promise came hot on the heels of damning Court of Appeal judgment in which the Directorate of Intelligence and Security (DIS) was found to have acted unlawfully by usurping the powers of the Directorate on Corruption and Economic Crime (DCEC) in the investigation of acts of alleged corruption (Attorney General v Tymon Katlholo, delivered on June 28, 2024). The Court of Appeal held in the case that the functions and powers of the DIS are limited and do not permit general investigating powers of the police or even extend to that of other crime fighting organisations such as the DCEC. The court found the conduct of the DIS an egregious excess of authority, which called for rectification and rebuke. Nothing seems to have changed since the delivery of the judgment as it appears the agency is still carrying out investigating powers of the police and other specialised law enforcement agencies. Since its establishment in 2008, the DIS has been dogged by controversy.
The agency has been accused of violation of human rights, including, among others, unlawful interception of communications of journalists and opposition politicians. The unlawful interception of individuals’ communications infringes upon their rights to privacy, freedom of expression and freedom of association. The interception of journalists’ communications also inhibits media freedom because surveillance of journalists puts the confidentiality of journalistic sources at risk and exposes both journalists and their sources to physical harm. Security agencies such as the DIS are indispensable in modern states. These institutions play a key role in ensuring the security and stability of a State by detecting and preventing internal and external threats to the State. Many of the threats to the security of a State are often covertly organised and intelligence services need intelligence to counter such threats. In detecting and preventing threats to the security of the State, security agencies may have to resort to covert measures, some of which may be intrusive and infringe upon human rights. This results in a tension between the protection of human rights and national security. National security and the protection of human rights are, however, not mutually exclusive. The protection of national security should not be at the expense of the respect for human rights, and vice versa. While the protection of national security may displace human rights in certain instances, it is important to remember that the maintenance of national security underpins and is the foundation of all human rights. National security is worthy of protection in a derivative sense, because of its purported necessity for the wellbeing of its citizens. Consequently, covert methods of gathering intelligence by security agencies, especially those that intrude on human rights must only be used where there is a pressing social need for their use, justified by an overriding public interest. A delicate balance must be struck between the use of intrusive methods of gathering intelligence and the protection of human rights. Accountability of security agencies is one of the ways that can lead to maintaining an appropriate balance between the two competing interests. Accountability exists when there is a relationship where an institution is subject to another’s oversight. It demands that an institution must be both obligated to answer questions regarding its decisions or actions and there must be means for enforcing consequences for failing to be accountable. An appropriate legal framework is a precondition for effective and accountable security sector governance. In democratic societies, intelligence governance spreads responsibilities of control and oversight on the various organs of government and include executive control, legislative oversight, and judicial review. The Intelligence and Security Service Act, 2008 (ISS Act), the law which establishes the DIS, provides for some measures of control and oversight over the DIS.
