National Security Surveillance in Southern Africa

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National Security Surveillance in Southern Africa

Preface

When I was conducting the research for this book, one of my interviewees asked me, ‘But how does someone with an art history background get to be interested in state spying?’ After all, my degrees were in fine art and art history. My journey to this point has been long and circuitous, spanning over three decades.

My interest in national security surveillance extends beyond being purely academic, as I have been what researchers would probably call a ‘participantobserver’ In fact, it is my experiential learning about how intelligence agencies use and abuse national security surveillance powers that eventually led to this book. This learning has taught me that intelligence infiltration and harassment of social movements, and the maintenance of our highly unequal and unjust social ‘orders’ more generally, are not a departure from what these agencies do. It is what they do. Yet, there is an alarming paucity of literature documenting and analysing this real history of state spying.

My interest in this issue developed when I was Executive Director of a South African-based non-governmental organization called the Freedom of Expression Institute (FXI). This was from 2001 to 2009, which was a time when the anti-globalization, anti-capitalist movement matured into a global fighting force. Shortly after activists shut down the World Trade Centre negotiations in Seattle in 1999, South Africa hosted two global summits. At the time, governments vied with one another to host these mega-events, as they brought prestige and tourism to the host countries. By then, paranoia had gripped intelligence and security agencies, as they feared that the burgeoning anti-globalization and anti-capitalist movement would shut down the events they hosted, too. During the run-up to the World Conference against Racism in Durban in 2001 and the World Summit on Sustainable Development in Johannesburg in 2002, South Africa’s then-civilian intelligence agency, the National Intelligence Agency (NIA), infiltrated social movements and put activists under surveillance, leading to the police pre-emptively arresting some of them. We documented and analysed activists’ experiences in an edited volume (N‘dungu 2003). The September 11 attacks had just taken place, and the US was trying hard to conscript South Africa into its ‘war on terror. While claiming to remain non-aligned, the government nevertheless rushed pieces of legislation through to consolidate its surveillance capabilities and the fight against terrorism. I was involved in civil society and social movement efforts to push back against these wide-ranging powers.

In 2004, protests broke out in the Free State province, and we handled a case that was a post-apartheid first. The state charged protestors with sedition for participating in a protest that became violent. However, it was not the protestors who became violent, but the police. They shot and killed a seventeen-year-old

Preface ix youth, Tebogo Mkhonza - a killing the police have not been held accountable for. The accused police members would visit our FXI offices for legal assistance, followed by people in cars who self-identified as members of the NIA. These experiences told me that the spies were moving far beyond their stated aim of protecting national security and into the politically loaded area of maintaining domestic (in)stability.

From 2011 onwards, I was involved in an organization called the Right2Know Campaign, which became a target for infiltration and surveillance by the NIA’s successor, the State Security Agency (SSA). The fact that this was the case was hardly surprising as the organization had mounted a very successful campaign, for a time, against a draft law (known as the Protection of Information Bill) that threatened to draw a shroud of secrecy over the government's intelligence, policing and military activities. The extent of the challenge, which galvanized thousands of people across the country, shook the spies to the core.

In 2015, I was teaching at the University of Johannesburg when student protests organized under the hashtag #feesmustfall broke out across the country. At the time, I became aware of how the spy agencies were moving far beyond what they claimed to be doing - namely countering violent protests - and using the protests to fight factional battles in the ruling African National Congress (ANC). In 2018, I was one of ten people appointed by President Cyril Ramaphosa to a High Level Review Panel to investigate abuses in the SSA. Most of the findings of this panel are public knowledge (Mufamadi et al. 2018), and the panel’s report formed the basis of detailed testimony at the Commission of Enquiry into State Capture (otherwise known as the Zondo Commission, after its chair Raymond Zondo), which was still sitting at the time of writing. The panel found evidence of spies in the SSA having set up a parallel intelligence agency to maintain former president Jacob Zuma’s dwindling grip on power. This parallel agency put under surveillance trade unions that broke politically with the ANC, and penetrated civil society organizations, environmental movements and the media with the purpose of neutralizing and impeding them as sources of counter-power. My serving on the panel was a lifechanging experience, as it exposed me to the inner workings of an intelligence agency, and how the spies and their political masters could repurpose it with abuse in mind. It also sensitized me to the fact that such an agency can be uneven. As much as there are rogue spies intent on entrenching corrupt extractive capitalism, and as much as the agency may be system-maintaining in its overall objective, there are also spies of conscience willing to stand up and resist these abuses from within. Much of what we know about recent abuses of surveillance powers locally and globally come from such spies.

While teaching in academia, I encouraged research and journalism on surveillance and intelligence in South Africa. Many of my postgraduate students come from the southern African region, and so it seemed logical to extend this work to the region. As will be explained in the introduction, this book draws on some of that work as a source of inspiration. Post-apartheid South Africa has had ongoing problems with abusive state spying on national security grounds. However, we are still in a relatively privileged position compared to the rest of the region, where x Preface controls barely exist and where the political classes can abuse surveillance powers with abandon. As they acquire more digital surveillance capabilities, the problem is growing. In this book, I focus on the scale of the problem and on what to do about it, drawing on insights from journalists, academics and spies of conscience.

One last piece of the puzzle may help to explain my approach to this book, or at least its anti-capitalist orientation and its embedment in the theory of racial capitalism. I was a member of a now-defunct independent left organization called the Workers’ Organization for Socialist Action (WOSA). Formed as a political alternative to the South African Communist Party, with its highly problematic history of alignment with Stalinist Russia and the ANC, WOSA brought together socialist organizations from around the country. Some of its founding members made great sacrifices in the struggle against racial capitalism, including spending time imprisoned on Robben Island by the apartheid regime. Although he would be deeply unhappy about my singling him out, one of WOSA’s founder members, the lifelong socialist activist Neville Alexander, recognized the indivisibility of social struggles and consequently was instrumental in theorizing the concept of racial capitalism. Consequently, racial capitalism has always made sense as a lens through which to view contemporary society and its problems, and as a guide to action for how to change it, nationally and globally.

ACKNOWLEDGEMENTS

I would like to acknowledge and thank all the interviewees who agreed to participate in the research that informs this book. Some participated on conditions of anonymity, as having their views attributed to them could have exposed them to risks. I must emphasize that they cannot be held responsible for the ideological orientation of this book, which is mine and mine alone.

This book would not have been possible without the sabbatical I was granted by my university, the University of Johannesburg. If it is not a contradiction in terms to say so, the Department of Communication and Media and the School of Communication went out of their way to leave me alone during this period, to give me space to research, think and write, and I hope I put that space to good use. Many thanks, too, to my publishers, Zed Books, an imprint of Bloomsbury Books, for having steered me through my first international book publication, and for having organized peer reviews of the proposal and book. These reviews challenged me and enriched the final product. Many of my ideas for this book were incubated while writing commentary for the media on various intelligence and surveillance issues, including for the Daily Maverick online news site, The Conversation, a collaboration between the media and academic institutions to promote researchbased media commentary, and About.Intel, an intelligence blog based in Berlin and run by the Stiftung Neue Verantwortung. I thank the editors of all these sites for providing me with the space to develop my thinking on these issues.

Given the state of the region, it could reasonably be assumed that research on national security surveillance in southern Africa is an impossible undertaking, as democratic space is in short supply in the region, and is shrinking all the time. However, I was helped by the fact that I am principal investigator on a research and journalism project on surveillance and intelligence in southern Africa. The project has involved forming a network of journalists and communication researchers on surveillance issues in southern Africa, funded by the philanthropic organization Luminate. Members of this network work with one another to produce research and journalism on the spread of communication surveillance technologies and practices in the region. I drew on the researchers and journalists on this project as sources of information, although Luminate did not fund the research for this book. It was not possible to focus on all southern African countries, so I confined myself to countries where the project had a presence. These were Namibia, Botswana, South Africa, Zimbabwe, Angola, Malawi, Mozambique, the Democratic Republic of the Congo (DRC) and Zambia. I also included Mauritius, as I already had contacts in the country from some years back. I would like to acknowledge the unstinting work of the project leader on this project, Dr Allen Munoriyarwa, xii Acknowledgements who has far surpassed me as his supervisor and grown into being an important academic voice on digital rights in the region.

The research and journalism project was undertaken under the auspices of the Media Policy and Democracy Project (MPDP), which was launched in 2012. The MPDPisan inter-university collaborative research project between the Department of Communication Science at the University of South Africa (UNISA), and the Department of Communication and Media at the University of Johannesburg (UJ), where I am based. The MPDP aims to promote participatory media and communications policymaking in the public interest. Since its launch, the MPDP has collaborated with academics and researchers from various institutions across the world, but with a focus on Southern Africa. The project has three specific focus areas, namely, internet freedom, privacy online and communications surveillance; media diversity; and transformation and communications policy in the public interest. The findings inform advocacy and activism efforts, and campaigns on communications and media rights and democratic space more generally, and this book has been shaped by these collaborations, with their embodiment of ‘theory in actior or praxis.

ABIS AI ANC AU BDP BMA BRICS CAAT CALEA CCM CCTV CIA COMINT DIS DRC ETSI EU FBI FISC FXI GCHO GDP GNU HANIS ICT ID IMEI IMF IMSI INCM IP

IT JCPS JSCI LHR MDC MI5

ABBREVIATIONS

Automated Biometric Identification System Artificial Intelligence

African National Congress

African Union

Botswana Democratic Party

Border Management Authority Brazil-Russia-India-China-South Africa Campaign Against Arms Trade Communications Assistance for Law Enforcement Act Chama Cha Mapinduzi

Closed-Circuit Television

Central Intelligence Agency Communications Intelligence

Directorate of Intelligence and Security Democratic Republic of the Congo European Telecommunication Standards Institute European Union

Federal Bureau of Investigation

Foreign Intelligence Signals Court

Freedom of Expression Institute Government Communication Headquarters Gross Domestic Product

Government of National Unity

Home Affairs National Identification System Information and Communications Technologies Identity Document

International Mobile Equipment Identity International Monetary Fund

International Mobile Subscriber Identity Autoridade Reguladora das Comunicações Internet Protocol

Information Technology

Justice, Crime Prevention and Security

Joint Standing Committee on Intelligence Lawyers for Human Rights

Movement for Democratic Change

Military Intelligence Section Five xiv

MICC MK MPDP MPLA NCA NCACC NCC NCIS NGO NIA NICOC NIS NIS NPA NPR NSA NSO OAU OECD OIC OPEC PA POTRAZ

PSIRA RICA

SADC SAPS SARPCCO

SDU SIGINT SIM SISE SMS SOCMINT SSA SSR TUT

UJ

UK

UN UNDP UNISA

Abbreviations

Monitoring of Interception of Communications Centre Umkhonto we Sizwe

Media Policy and Democracy Project

Popular Movement for the Liberation of Angola National Constitutional Assembly

National Conventional Arms Control Committee National Communications Centre

National Central Intelligence Service Non-Governmental Organization

National Intelligence Agency

National Intelligence Coordinating Committee National Identity System

National Intelligence Service

National Prosecuting Authority

National Population Register

National Security Agency

National Security Organization

Organization of African Unity

Organization for Economic Cooperation and Development Office for Interception Centres

Organization for Petroleum Exporting Countries Palestinian Authority

Posts and Telecommunications Regulatory Authority of Zimbabwe

Private Security Industry Regulatory Authority Regulation of Interception of Communications and Provision of Communication-Related Information Act Southern African Development Community South African Police Service

Southern Africa Regional Police Chiefs Cooperation Organization

Self Defence Unit

Signals Intelligence

Subscriber Identification Module

State Information and Security Service

Short Messaging Service

Social Media Intelligence

State Security Agency

Security Sector Reform

Transport of Intercepted Internet Protocol Traffic University of Johannesburg

United Kingdom

United Nations

United Nations Development Programme University of South Africa

UNITA US USAID WOSA ZANU-PF ZAPU ZPSP

Abbreviations

Union for the Total Independence of Angola

United States

United States Agency for International Development Workers’ Organization for Socialist Action Zimbabwe African National Union-Patriotic Front Zimbabwe African Peoples’ Union

Zimbabwe Peace and Security Project

XV xvi

Domingos da Cruz is an Angolan academic, journalist and activist. In 2015, the state charged him and sixteen other young people with threatening the country’s national security by attempting to prepare a coup détat, and attempted assassination of then-president José Eduardo dos Santos. The police arrested them after an unlawful intelligence operation that put them under surveillance (Verde 2021: 7-9). Their crime? Organizing a reading group seminar on non-violent dissent, discussing a book by da Cruz. The book was entitled Tools to Destroy a Dictator and Avoid a New Dictatorship (in Portuguese, Ferramentas para Destruir o Ditador e Evitar Nova Ditadura), which drew on Gene Sharp’s work on non-violent resistance and assessed its relevance for Angola. Da Cruz’s book also suggested strategies to challenge a government that had drifted away from the people and become more authoritarian, corrupt and unequal, despite having emerged from a heroic liberation struggle against Portuguese colonialism. Even though the youths were studying non-violent dissent as a means of expressing legitimate grievances, in 2016 the court found them guilty and sentenced them to between two and eight and half years in jail. Da Cruz received the harshest sentence as a supposed instigator, but the state granted them amnesty and released them after an international outcry about the case (Verde 2021: 7-9). Angola was one of many countries whose spy agencies overreacted to the potential for an Arab Spring-type uprising in the wake of the 2007-8 global capitalist crisis. In an interview, da Cruz explained the political context that led to the arrests and convictions, and the ways in which young people were attempting to use the political moment positively to imagine an alternative society:

The Arab Spring influenced civil society in Angola, and it was a source of inspiration. In 2011, the people, particularly the youth from civil society and other groups worked without any form of organisation. The numbers of protests at that time, increased and also influenced me to see that a lot of people had concerns about the situation [and I thought] these guys need orientation, in terms of tools and foundations in order to fight . . . [My concern] was, okay, we need to organise this movement. We need to show, internally and externally, that we know how to fight, and we need to show that we have a vision for a future country, not [only] in terms of a political party [but] in terms of the new society that we want to build. That is why in my book, the last chapter is a draft of how we would like to build different sectors of society, like our vision of education, about science, about health, about every essential sector. Yeah, the Arab Spring had influence in Angola, and of course, it influenced me too, to make contact with the people and try to organise the movement.'

Around the same time, intelligence operatives in the Special Operations Unit of the South African SSA set up a parallel intelligence agency to neutralize and impede trade unions and civil society organizations campaigning for then-president Jacob Zuma to step down from office. They put several trade unions and civil society organizations under surveillance and tried to stop a campaign within the ruling party, the African National Congress (ANC), to replace him as president of the party and the country (Mufamadi et al. 2018: 96-8). At the same time that these Angolan and South African agencies were busy chasing activists and journalists, corrupt elements in both countries were busy looting organs of state and enriching themselves. Unsurprisingly, Angola and South Africa share the dubious reputation of being among the most unequal countries in the world, with predatory ruling classes willing to resort to industrial-scale corruption, while governing and spying on desperately poor populations.

In this current age of global insecurity, governments and their spy agencies keep telling us that we need to live with increasingly invasive state spying for our own sakes. Bulk, dragnet surveillance, we are told, is a necessary evil, and we must be prepared to give up some rights to become safer. Yet, there is a disturbing pattern the world over in how national security surveillance agencies conduct themselves. They claim more and more power and bigger budgets on national security grounds, yet we never seem to become any safer. Repeatedly, they are exposed as having abused their powers, where the supposed protectors of national security become the very people who threaten it. Scandals about intelligence agencies spying on journalists, academics, civil society and opposition political parties have become frequent occurrences. In fact, we have become used to the spies sticking their noses where they do not belong, while not sticking their noses where they do belong. When the spies are exposed for abusing their powers and the public trust, it has become all too easy for them to blame rogue elements and commit to cleaning up their acts. Until the next time.

Even countries that claim to be serious about democratic controls over their spy agencies have failed to rein them in sufficiently. When former National Security Agency (NSA) contractor Edward Snowden leaked classified information that revealed massive abuses of the bulk surveillance capabilities of the US and British governments, public outrage spurred a global reform movement. However, according to the United Nations Special Rapporteur on Privacy, Joseph Cannataci, hardly any United Nations member states have actually done anything to reform state spying.’ National oversight systems remain largely ineffective, while intelligence agencies get stronger and stronger. In fact, member of the European Parliament Sophie in ’t Veld has likened national security to a huge black hole where fundamental rights and democracy are being swallowed up.’

The biggest surveillance scandal of recent times, as exposed by Snowden, has not forced governments to curb their spy agencies, which then raises the question, what will? The phenomenon of growing surveillance coupled with growing crime is a confounding one and raises the question, Why do these spy agencies even exist? Would we be any less safe if they did not? This book is about this issue. Using the region where I am based, namely, southern Africa, as a backdrop, I examine what is really going on under the hood of the spy agencies that conduct national security surveillance. I look at what we can do about these areas of the state if they aren't serving us, and if we are genuinely committed to a more just and equal society. For reasons that I will discuss in more detail in the next chapter, I will look at these issues from an anti-capitalist perspective. In other words, I adopt the view that in capitalist societies, state spying serves the capitalist system before it serves the public interest. This perspective is important because it points the way to more lasting solutions to the intractable problem of surveillance abuses: solutions that move beyond reforms that may work for a time, but are more often than not thwarted.

Typically, the anti-capitalist left has very ambiguous feelings about security powers as we know them under capitalism. Much of this has to do with the fact that the left often sees these powers (correctly) as being part of the repressive apparatus of the state, used to wield hard power against society. Assigning the state a monopoly on the carrying of arms and the use of violence is a central tenet of modern capitalist society, and the state is an instrument of class rule. Yet, the left often has very little to say on questions of how security powers should be organized in a classless society, or how to get there. Consequently, they struggle to offer a meaningful vision for whether these powers should even exist, and to what end. Calls to defund the police are growing around the world, in response to police violence against Black people in the US. Activists and academics have put a great deal of work into envisioning alternatives for policing, but for some reason there is no serious discussion about what to do with the state’s intelligence and surveillance powers. Calling for these agencies to be de-funded and shut down is an option - but what then?

In this book, I grapple with these problems and how they manifest themselves in southern Africa, one of the most peripheral, exploited and oppressed regions of the world. I look at what an anti-capitalist perspective on intelligence and national security surveillance powers could look like. Are these powers even needed, and if so, what should they do and why? If societies should have surveillance powers, how far should they extend and what lines should they not cross? I have decided to confine my focus to intelligence-led surveillance rather than the broader gamut of security and policing powers, because I believe that there is a gap in the literature in this regard. Typically, intelligence is highly secretive, poorly understood and therefore particularly susceptible to abuse. Former spies—turned-academics tend to dominate intelligence studies, which means that they are more likely to take the normative foundations of these powers for granted. I focus on those aspects of state intelligence that claim to protect national security, as typically these powers are the most extreme. In fact, we can learn a great deal about the state of health of a society by how quickly its state rushes to invoke national security powers when responding to social crises.

‘The broader context: The global and regional expansion of security powers

Globally, national security powers have expanded since the terrorist* attacks on the United States on 11 September 2001, and surveillance? has become central to this expansion. Governments across the world justify increasingly invasive forms of surveillance as being necessary to fight serious crime and terrorism: social ills that, if left unchecked, could undermine attempts to make societies more just and equal. Intelligence agencies are also becoming increasingly reliant on intelligence obtained from electronic signals (an intelligence discipline known as signals intelligence, or SIGINT), underpinned by big data analytics. This is being done to increase efficiency and reduce the risks associated with human intelligence, or HUMINT, such as subjectivity in analysis and the risk of detection at the collection stage. Communications intelligence, or COMINT, is a sub-discipline of SIGINT and involves collecting intelligence from communication signals (Gill and Phythian 2012: 92-8). In this book, I will refer to the broader intelligence discipline of SIGINT as it covers a broader range of practices than COMINT.

As more intelligence agencies use data mining to generate intelligence, people risk becoming more resigned to an existence where no reasonable expectation of privacy exists. After all, the argument goes, if people are going to enjoy safety, security and prosperity, then they need to accept that an individual right (privacy) must give way to a collective right (security). This existence most likely involves the near-ubiquitous use of dragnet SIGINT surveillance, constant tracking in public spaces using ‘smart’ closed-circuit television (CCTV) camera systems and drones, mining social media for intelligence purposes, biometric forms of identification and increasingly securitized and militarized borders in the face of the migration crisis precipitated by the war on terror and the 2007-8 recession. Intelligence agencies are also exploring the possibility of exploiting ‘smart’ datagenerating devices networked through the Internet of Things (IoT) for collection and analysis purposes. However, excessive secrecy is making it difficult for people to evaluate claims about the necessity for these powers. The technological capabilities of intelligence agencies have run far ahead of the oversight capabilities of the judicial, administrative and legislative bodies and the public. The ‘law lag, where laws regulating spying powers fail to keep up with these capabilities, is a worldwide problem. To all intents and purposes, it is open season on peoples’ data for criminal justice and national security purposes, and large carve-outs in data protection laws for the police and intelligence agencies make the problem worse.

When Snowden revealed the extent to which the capabilities of the major surveillance powers had become a tool of abuse of peoples’ fundamental rights and freedoms, public and journalistic attention focused largely on the global North. However, national security surveillance is growing massively in the global South, where data protection rules and intelligence oversight are particularly weak, and southern Africa is no exception to this general rule. Some of the most egregious human rights violations are taking place in the region. In these countries, there is mounting evidence of governments and, in some cases, the private sector using surveillance to disassemble social movements, criminalize journalists, lawyers and other human rights defenders, and to reproduce inequality more generally. Furthermore, there are signs that global superpowers are making the problem worse by contributing to a global transmission belt of security tools and practices, and globalizing intelligence-led policing practices and technologies like Automatic Number Plate Recognition, IMSI (International Mobile Subscriber Identity) catchers, and monitoring centres produced by major arms manufacturers, many of which are based in the global North. Recent reforms to the control of exports have failed to address the spread of dual-use surveillance technologies (technologies that have both military and civilian uses) to authoritarian and semi-authoritarian countries. In fact, the expansion of surveillance powers and the dangers this expansion poses to the peoples of southern African remain largely an untold story.

Why the focus on southern Africa?

When the 2007-8 global financial crisis wreaked havoc on peoples’ lives, anti-austerity protests sprung up around the world in response. The most dramatic took place in the Middle East and North Africa. For a brief while, it seemed that what came to be known as the Arab Spring held out real possibilities of change to some of the world’s most corrupt and autocratic regimes, and the global capitalist system more generally. Yet, less well known is the impact on southern Africa, which also experienced its own ‘Arab Spring’ and in fact continues to do so. Thousands of people have taken to the streets in protest against authoritarian governments, exploitation of the region’s abundant natural resource and austerity. As protests spread across the region - fuelled by massive hikes in the prices of fuel, bread and other goods and services - and more young tech-savvy actors with no previous experience of struggle became involved, governments already panicked by the Arab Spring scrambled to acquire data-driven surveillance tools to monitor these protests. When affordability was an issue, many also continued to rely on old, tried and tested HUMINT. This expansion of surveillance capabilities is taking place in spite of the fact that the region faces no major terrorism threats and is largely at peace - with the exception of an unfolding crisis in the Cabo Delgado province of Mozambique, which could have a destabilizing impact beyond the province. Intelligence and security policies, practices and technologies are being imported wholesale from the major surveillance powers in the global North, such as the US, the UK and Europe, while China is also becoming an increasingly important supplier of surveillance tools to the region. The major surveillance superpowers claim that worldwide dragnet surveillance is necessary, given heightened security risks. China is using southern Africa as a surveillance commodity dumping ground, and exporting surveillance tools and practices with no due diligence or real concern about how the countries they sell them to are using them. In fact, there is a surveillance free-for-all in the region. Given the lack of controls on intelligence and surveillance powers, abuses are almost inevitable.

At the same time, southern African intelligence agencies are searching for anti-imperialist alternatives to the major intelligence powers of the global North, and Snowden’s disclosures on the abuses of the Five Eyes alliance of countries have intensified this search. Tasked with sharing signals intelligence of political, military or economic value, the Five Eyes alliance incorporates the US, the UK, New Zealand/Aotearoa, Canada and Australia. It has assumed the character of a standing cooperation agreement on SIGINT collection and sharing. Many intelligence officials want to ‘do’ security differently, to the point where they have even looked to the BRICS (Brazil-Russia-India-China-South Africa) alliance of countries to provide alternative models and justifications for state security powers. However, researchers have not done enough to track the diffusion of surveillance tools and practices in the region, the emerging inter-imperialist rivalries between the established global security powers and the emerging BRICS superpowers, and the possible sites of democratic oversight and resistance to unaccountable surveillance. They have also not done enough to develop new concepts that effectively challenge dominant and conservative security discourses.