Analysis: South Africa's new security laws: who will they protect?

JOHANNESBURG (Reuters) - Concerns are growing in South Africa that new laws on intelligence, security and graft-busting may end up protecting the political elite more than the nation.

President Jacob Zuma's ANC government has proposed three measures - two revisions to apartheid-era intelligence bills and a third on oversight of the police's anti-graft unit, the Hawks - that have prompted concern data may be suppressed.

The bills threaten reporters with jail for using sensitive government information, increase the powers of a circle around the president to keep a lid on secrets and could clip the wings of the elite Hawks, trained by the likes of the U.S. FBI.

They are nowhere near as draconian as the laws drawn up under white minority rule, when the names of liberation struggle leaders such as Nelson Mandela and Walter Sisulu could not even appear in print.

But some insiders see them as corrosive.

"The priority of the pieces of legislation is not the stated protection of South Africa," said a senior law enforcement official who asked not to be named. "They are aimed at protecting certain individuals within the ANC."

The government says the new laws are overdue and fears of abuse are not justified.

"All work being done will continue to be done within the ambit of the Constitution and the rule of law and so we should not be alarmist in our approach to the reforms," said Brian Dube, spokesman for the State Security Ministry.

South Africa has a very healthy oversight system with regards to the intelligence services."

Investigative reporter Mzilikazi wa Afrika tested that oversight after he wrote articles about a suspect land deal that threatened the career of the chief of police.

He was arrested, bundled into a police vehicle and accused of fraud, a move widely regarded as police intimidation. Charges were soon dropped when it appeared he had been set up, and more than a year later, the police chief was forced out after a government investigation concluded the land deal was illegal.

Under the new laws, the alleged forged document wa Afrika was arrested for holding could have been declared a state secret, making it harder for him to argue, as he successfully did, that it had likely been planted.

CORRUPTION CONCERN

As the wa Afrika case shows, the concern is not so much about the legislation per se but what critics see as cracks in the bills that could open wide avenues for exploitation.

It may take more than a year to implement all three, but as each comes into law in a parliament where the African National Congress has a commanding majority, they could strengthen Zuma's hand for a presidency that could last until 2019.

If he wins a bruising battle for the ANC leadership at the end of this year, he will likely be the party's nominee for the 2014 presidential race, which the ANC will almost certainly win.

"Because Zuma comes from an intelligence background in the ANC he is aware of the political value of intelligence. He needs to try to make sure intelligence cannot be used against him in his quest to be re-elected," said Dirk Kotze, a political science professor at the University of South Africa.

More than a third of the members of its National Executive Committee have faced corruption investigations and some of those have been convicted of graft.

All three of the major global credit ratings agencies have downgraded South Africa's outlook, citing increasing corruption.

Reuel Khoza, chairman of South Africa's fourth largest bank, Nedbank, echoed that concern. "Our political leadership's moral quotient is degenerating and we are fast losing the checks and balances that are necessary to prevent a recurrence of the past," he wrote in the bank's annual report.

Zuma has faced several corruption charges but has never been convicted. The government has launched a new investigation into an arms deal about a decade ago that put several ANC officials in jail for taking bribes. It is run by a team largely appointed by the presidency.

Zuma says his conscience is clear and that the allegations are part of a conspiracy to discredit him.

In 2006, then President Thabo Mbeki sacked his intelligence chief, saying his allies had been spied on to help tip the balance in favor of rival Zuma.

Zuma then ousted Mbeki in the last ANC leadership race in 2007 and easily won election as the country's president in 2009. He says the allegations of spying are politically motivated.

In the most recent, Sports Minister Fikile Mbalula, a Zuma rival, said this month he suspected his phone was being tapped.

The Protection of State Information Bill, which will soon become law, has riled South African media and activists.

"The ... bill has been and continues to be seen as an obvious means of concealing the corruption that has become a way of South African life for many, from high-placed members of the government down to menial officials," Nobel Prize literature laureate Nadine Gordimer wrote in the New York Review of Books.

The bill was revised as it went through parliament to narrow the scope of what can be classified and add an independent Classification Review Panel to oversee the process.

But the oversight could take years to set up and critics say it gives State Security Minister Siyabonga Cwele too much power.

The opposition called for Cwele to be sacked after his wife was convicted in May last year of running an international drug ring. He said he was unaware of what she had been doing.

"One has reservations about the ability of Minister Cwele to exercise his authority," said Alf Lees, a member of parliament from the opposition Democratic Alliance.

"The incident with his wife raises great concern for us."

Deputy President Kgalema Motlanthe told parliament last year: "He (Cwele) wasn't implicated in any way. The matter went through the courts and at no stage was he called in as a witness or a partner in that crime."

Critics say the General Intelligence Laws Amendment Bill now before parliament would put intelligence in the hands of a few people close to the president, and let them monitor, without court approval, "foreign signals", which they say could include phone calls abroad and emails routed through foreign servers.

Even ANC MPs have said they were worried about how the new structures might be used. "There was a concern about the mandate to collect political intelligence," parliament's ANC-majority Ad Hoc Committee on General Intelligence, said in a statement.

The final piece of legislation, the Police Service Amendment Bill, is aimed at satisfying a Constitutional Court decision to give more independence to the corruption-busting Hawks.

The measure allows the police minister, appointed by the president, to sack the Hawks' leader and seek approval later at the ANC-dominated parliament. It also lets senior politicians in a ministerial committee coordinate Hawks investigations.

"The legislation is good if you have good people and bad if you have bad people," said Gareth Newham, who heads the crime and justice program of the Institute for Security Studies.

Asked to comment on the criticism, the presidency referred to the security ministry and an April address by Zuma in which he said the system had sufficient checks and balances.

"The democratic state led by the African National Congress, will never undertake any activity or pass any law that undermines the security of the South African people, or which violates their Constitutional rights," Zuma added.

The president has come under fire over several of those he has chosen to be in his inner circle.

He had to replace his police minister last year due to the land deal and the man he selected as National Director of Public Prosecutions was removed by a court which decided he was more beholden to the president than protecting the rule of law.

The police were berated for this year reinstating Richard Mdluli as the head of its Crime Intelligence Unit, responsible for wiretaps and investigations, after he was suspended pending official investigations implicating him in fraud and nepotism.

Police documents obtained by Reuters said Mdluli was suspected of illegally obtaining a fleet of luxury vehicles and placing relatives and mistresses on the police's payroll.

Mdluli protested his innocence, alleging a racist conspiracy by police and media to topple him, and the charges were dropped. The presidency has denied reports Mdluli was reinstated so he could use the office to protect Zuma.

In parliamentary questioning this week, Zuma said the decision to reinstate Mdluli was a police matter. The acting police chief last week said he is moving to suspend Mdluli.

A Western diplomat who asked not to be named said the biggest worry with the new bills was that freedoms in South Africa's liberal Constitution are slowly being eroded.

"This year will determine how South Africa will develop over the next 15 to 20 years," the diplomat said.

(Additional reporting by Peroshni Govender and Cosmas Butunyi; editing by Philippa Fletcher)

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