Imtiaz Fazel: The new watchdog at The Farm

IMTIAZ FAZEL loves sport. All sport, he says, but specifically football and tennis. As a passionate Liverpool supporter, he's been privileged to watch his team play live on occasion and our meeting takes place in the first week of Roland Garros — one of the biggest tennis tournaments on the calendar. 

But none of this enjoys much of our attention. Fazel has not watched a sporting event in ages — a sort of vow of TV abstinence. That's because six months ago he accepted one of the hardest jobs in the public service. As the new Inspector-General of Intelligence (IGI), Fazel has been charged with policing South Africa's spies for the next five years.

With billions at their disposal (much of it in cash and some of which has had a tendency to disappear), spies have been known to bend the rules, forge signatures, plant false information in the media, operate outside the law, use their resources for personal or political purposes, illegally intercept communications, and target colleagues or institutions in the public service. They do all this in complete secrecy, beyond the scrutiny of the public and almost all oversight bodies. Except for the IGI, the only ombud with unrestricted access to classified intelligence.

An accountant from the East Rand (“You can write anything about me as long as you say I'm from Benoni"), Imtiaz Ahmed Fazel moved to the public service in the early 2000s after consulting part-time for the then ministry of intelligence since 1997.

Fazel sits across from me in his office — bright orange walls, carpeted floors — and explans what is at stake. “When you speak about the hopelessness out there, service delivery failures, the crime, the levels of corruption, it all sounds so depressing," he says, his voice soft, monotonous. “This whole democratic project is at risk.”

The intelligence services, he believes, play a key role in addressing these crises and, his office plays its part by ensuring the agencies do their jobs.

After a recent visit to South Africa, the executive board of the International Monetary Fund (IMF) repeated concerns that have come from every corner of the country, including the state itself. Among them, that “resolving the ongoing energy crisis remains the top priority”.

Despite Eskom's continual failure to ensure energy security for the country, there appears to be no progress in ridding it of crime syndicates believed to contribute as much as one stage of loadshedding. This in turn has a direct impact on businesses, tax revenues, employment and economic growth.

Identifying and assisting the state in combating these criminals, given the threat they pose to the country, is the responsibility of the police's crime intelligence and the State Security Agency (SSA). That responsibility extends to every sector affected by organised crime, from taxis to mining to the construction industry.

Even for highly effective, well-resourced intelligence services, that's a tall order. And with SA's intelligence agencies themselves embroiled in the kind of criminality they're meant to root out, it becomes even harder.

For Fazel, energy and national security are “matters of national survival”. Part of his job is to “identify the areas of non-performance, incompetence, and intelligence failures and report them to the necessary authorities so corrective action can be taken". Given the damning findings against the intelligence services — from the High-Level Review Panel Report, which first exposed the extent of criminality within the SSA, to the expert panel report into the July 2021 unrest which identified “significant” intelligence failures — this is no simple task.

Yet, Fazel describes these failures as an opportunity to introduce reforms, and some of these have already been implemented. While the state tends to be less than forthcoming about the goings-on in its intelligence services, Fazel says he has seen hopeful signs.

The reform process also includes changes to the current laws, including the “criminalisation of the issuing of, or carrying out of, a manifestly illegal order", as recommended by the high-level panel; and explicitly legislating limitations and safeguards for intercepting electronic communications (or bulk surveillance), declared unlawful in its current form by the Constitutional Court.

But however often these changes have been mooted in the past four years — be it by ministers or the president himself — parliament still hasn't seen a bill. The frustration was visible when the ANC deputy chief whip announced in late May that the Joint Standing Committee on Intelligence (JSCI) had decided to draft the bill on its own. “We have [taken] a decision to make sure that we introduce Gilab (the General Intelligence Laws Amendment Bill) as a committee bill," Doris Dlakude said during the SSA's budget vote. “We've waited for quite some time, honourable minister, without it coming forth."

Describing Gilab as “the cornerstone of resolving most of the challenges faced by the intelligence services", Dlakude said the committee hoped to finalise the bill before the end of its term, signalling a sense of urgency.

It appears to have worked. Less than two weeks later, the president announced in his budget vote that the cabinet had approved the amendment bill.

During our discussion the next day, Fazel said that in its current form the bill fails to give the oversight regime more autonomy, something recommended by a  number of inquiries.

In early 2018, Fazel's predecessor approached the courts in an attempt to regain access to his own office. The then director-general of the SSA, Arthur Fraser, had revoked Setlhomamaru Dintwe's security clearance, rejected requests for funds and changed the IGI's personal protection officers — all while Dintwe was investigating allegations about Fraser's notorious Principal Agent Network (PAN).

The government reinstated Dintwe's clearance and removed Fraser from his post. But years later, that remains nothing more than an agreement between individuals; and the IGI's budget still comes from the SSA. Fazel says his office will work with the JSCI to include the necessary amendments before the bill is sent back to Pretoria for the president's signature. In the meantime, he has his hands full preparing his own office in the changing landscape.

Proactive oversight

When he is not reading — a task that consumes most of the inspector-general's time — he is planning. From the moment he arrives at his desk around 7am, Fazel plans his day, his week, his month, his year. Tasks are delegated to staff accordingly. He has visited the agencies, such as SSA headquarters, known as The Farm, and met the heads of the services, ministers, MPs, the auditor-general, even private auditors. And after six months in the position, he says he is ready to present his strategy to the JSCI.

“I believe one of the important outcomes we need to achieve is some sort of sustainable oversight programme,” he says, handing me a laminated A4 summary titled: Strategy for civilian oversight of the intelligence services. (It's about as close to James Bond as Eskom is to running at full capacity.) “We've had a lot of inconsistency since this function was established. There hasn't been a consistent scientific approach to the conduct of intelligence oversight."

He refers to “tried and tested” methods, of the type used by the auditor-general, based on international auditing standards, that would outlast any IGI. The idea of sustainable oversight is to rely on systems and processes rather than the expertise or convictions of a given inspector-general. Previously, the watchdog's work has mostly been focused on investigating complaints — known as the “ombud function”.

During the Zuma administration, intelligence resources were abused, often to serve the political priorities of the president. As one incident after another came to light, Fazel's predecessors had their hands full with complaints from the public. And while such investigations are crucial in determining if Fraser broke the law during the PAN operations, they don't necessarily identify structural or institutional challenges. 

The criminality was not without its structural consequences as competent officials left and were replaced with compromised individuals. As possibly Zuma's main weapon, the SSA suffered many long-term wounds, to the extent that a member of the high-level panel, Jane Duncan, recently wrote it should be “shut down and restarted from scratch" if the current attempts at restructuring fail.

This is why Fazel is focused on what he describes as the “assurance function" (the boring part of his job), in which the IGI finds solutions to institutional challenges, builds trust and relationships, and makes recommendations to relevant parties. It is here that the IGI can ensure  intelligence bodies are fit for purpose, operate within their mandate and provide the “product” needed by a client, whether it is law enforcement or the president. It is in this function that the IGI can help address the “significant intelligence failure to anticipate, prevent or disrupt the planned and orchestrated violence” in July 2021, as the expert panel found.

Recommendations, however, are not binding, which requires the cooperation of other stakeholders. This has rarely been the case in the past, but Fazel says it is in the state's interest to implement the IGI's recommendations. He uses an example from when he was still the chief operating officer in the inspector-general's office.

A decade or so before the Constitutional Court ruled on bulk interceptions, the then IGI found the signals-intelligence regime unlawful and recommended it be drafted into law before the agencies were allowed to spy on citizens, says Fazel. This advice was ignored. What followed was a period in which many South Africans' electronic communications were often illegally intercepted for years. Even journalists were targeted during the Zuma years. “But it took the court ruling to bring about Gilab to legislate bulk signals intelligence. So perhaps it's a lesson to take heed of the inspector-general's recommendations," says Fazel.

It is the sort of cooperation that depends on the relationships of the parties involved. “But that rapport and trust should not come at the expense or be seen as turning a blind eye to any wrongdoing, under any circumstances," says Fazel. Instead, he believes the assurance function should complement investigations. “If intelligence is an area where they want to use cash, they want to operate in secret, they want to operate in a clandestine manner, unseen, and they want to operate without rules, that is effective intelligence in the view of some," he says. “But in our democratic dispensation, intelligence is a regulated industry. It must operate within a system of rules. The constitution provides your rights and you can only depart from it under set conditions, and the system of rules must define those conditions."

As much as saving an institution does not end with removing a few bad apples, building long-term stability will take much more than a few good appointments. Similar to the changes at the revenue service early in the democratic era, Fazel says institutions need systems, processes and rules. Crime intelligence has to serve police investigations; there has to be a balance between security and privacy; investment in technology must be made where needed; checks and balances must ensure illegal orders are not executed. And all of this must happen within a set framework.

As much as Fazel believes a group of individuals alone won't save the intelligence services, let alone South Africa, he acknowledges there are matters that need urgent attention. Matters he can help address.

“And in doing our bit," he says, “I have also appreciated that I don't have two years to settle. We need to deliver immediately. And through our oversight this year we want to ensure that we speak truth to power and we weed out unlawful conduct in our intelligence service. And in particular, we also speak truth to power in exposing unacceptable and poor performance."

While a compromised official is yet to be convicted for any of the crimes committed in recent years, the Hawks have told parliament there are 11 state capture-related cases under investigation involving the SSA. The IGI's office is lending its support to the Investigative Directorate.

But these developments mean little for the task ahead. And while he may take on his new role without the distraction of Champions League finals or Grand Slams, Fazel has stepped into a game that still has few rules, and where he is supposed to be the referee.

♦ VWB ♦

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