Two events this week showed South Africans have again become dumb frogs blithely sitting in the slowly heating water of the great paranoid pressure cooker of state security.
One was the appointment of Menzi Simelane as the national director of public prosecutions. As our report elsewhere shows, advocate Simelane almost comes with a health warning stamped on his forehead: “Programmed to serve the party: will do as he’s told, but overuse may damage your justice system.”
The other event would be pathetic if it weren’t so emblematic of the desire of our intelligence establishment to pursue agendas without having to account for its actions in any independent forum.
I refer, of course, to the decision of Minister for State Security Siyabonga Cwele and his director general, Jeff Maqetuka, to try to block one of their former officers, Barry Gilder, from giving evidence in Jackie Selebi’s corruption trial.
The chain of evidence required from Gilder is simple. The prosecution alleges that Selebi showed Glenn Agliotti a classified state intelligence document that cited allegations by businessman Jürgen Kögl that the Kebble family was paying Selebi bribes.
Agliotti confirmed that this happened, but the prosecution needs to show that such a report did exist, that it was brought to Selebi’s attention — and that it was a secret document that Selebi had no business showing to Agliotti. To do this legally, the prosecution needs Gilder, the national coordinator of intelligence in 2005 when the report of Kogl’s claims filtered into the intelligence system.
Indeed, Gilder was present at the national intelligence coordinating committee meeting at which the draft report containing this allegation was presented — and at which the police representative strenuously objected to its contents being included in the final approved report (called the National Intelligence Estimate). Later Gilder apologised to Selebi about the claims.
The prosecution has long been in possession of a copy of the report and has no need to refer to parts of it that are not already in the public domain. Yet the intelligence mandarins have intervened to try to prevent Gilder from testifying.
The objection has nothing to do with what is contained in the report: the relevant information is already a matter of public record and the court would not object to the rest remaining secret. As affidavits from Cwele and Maqetuka make clear, their objection is to allowing the courts to have access to intelligence at all.
Cwele states: “The National Intelligence Estimate is an intelligence product compiled to advise the state and the national executive — and is not intended for court processes.”
Maqetuka wants such evidence excluded on the grounds of public policy: “To allow intelligence processes to be disclosed in criminal trials in general and in this trial in particular will undermine national security and the national interests of the country.”
Of course, this would also mean we would never be allowed to know which spook leaked the tapes that got Jacob Zuma off the hook.
Judge Meyer Joffe, who apparently thinks we live in a constitutional, not security, state, ruled that allowing Gilder to give evidence in camera would safeguard national security.
But Cwele is considering an appeal.
Will the cool intelligence of our Constitution be enough to temper the hotheads of state security? Don’t count on it.