Lauren Hutton, Researcher, Security Sector Governance Programme, Pretoria.

“The security services in our country do not practice torture. They do not endorse torture, they do not encourage others to torture on our behalf; they do not collude in torture, full stop. It’s a free society, and that’s actually what the security services are out there to protect.”

UK Home Secretary Alan Johnson in response to allegations that MI5 colluded with third party states in the illegal detention and torture of terror suspects.

The importance of democratic control of intelligence services has become a topic of international interest as the global war on terror enters its ninth year. The attacks on 9/11 impacted on intelligence in several ways. Firstly, in the aftermath of the attacks serious questions were asked (and continue to be asked) about the efficacy of a closed, state centric, target oriented information system in the era of globalised, diffused governance and geographically unbounded security threats. The effect of the surprise attack was to call into question issues of methodology as well as management of traditionally silo-ed and secret structures. Whether or not state intelligence systems are tailored to fulfil the information requirements of the modern globalised security complex remains a challenge and intelligence agencies the world over are being confronted with the need to remain relevant in a world where information, people and ideas cross oceans and borders with the click of a mouse.

Secondly, and rather paradoxically, as the efficacy of intelligence to prevent surprise and act as a tool in conflict prevention was being questioned, the utility of intelligence as information on which to base operational security decisions was brought to the fore. As a force multiplier and strategic enabler, intelligence is central in the fight against enemies that utilise secrecy and covert methods. These targets range from terrorist networks to organised criminal groups, money launderers to weapons and drug smugglers. The commonality is that they operate under cover to avoid detection and covert collection such as the interception of communications is sometimes an essential part of operations to counter such activities. Furthermore, the global security environment has since the end of the Cold War been characterised by increasing complexity and uncertainty. Information becomes essential to define interests and actions, to engage in a complex and interdependent environment and to make sense of a world in a state of constant flux.

The third impact of the war on terror on intelligence has been a longer term questioning of the legitimacy of intelligence activities. This has come to light most pronouncedly in the association of intelligence agencies with illegal detention, extraordinary rendition, human rights abuses and the use (or sanctioning) of torture. According to reports by different national and international human rights organisations, torture is practiced in over half the countries of the world and is present on all continents. Africa is reported to register the highest incidence of torture and ill treatment, followed by Asia. Incidents of torture, ill treatment and illegal detention are indicative of systemic weaknesses – abuse of power by authorities, discrimination and impunity, lack of oversight and democratic controls and lack of respect for judicial procedures of arrest and detention.

The implications for African states of a renewed debate on intelligence in the post-9/11 security environment can be interpreted in several lights. On the one hand, there is the potential that by sacrificing the moral high ground in favour of expediency, states that suffer from democratic intelligence governance deficits cannot be pressured by the international community to pay greater attention to conditions of arrest and detention by intelligence agencies. In some instances questionable regimes and practices in Africa have been overtly or covertly supported by the international counter-terrorism coalition. This presents long-term challenges for securing respect for human rights, democratic governance and open political spaces. Other negative impacts could include more support for global jihad by the relatively power deprived global South; increased incidents of domestic terrorism against oppressive national political-security regimes and the creation of safe havens and underground support for subversive causes.

There could, however, be more positive spin-offs. The attention that the global war on terror has cast on intelligence methods and oversight has reinvigorated the discussion on legal standards and oversight practices for intelligence – most noticeably through the efforts of the UN Special Rapporteur on human rights while countering terrorism. In recasting the role of intelligence as a strategic enabler and reconsidering the role and function of secret information, intelligence could become a sharper tool in the state arsenal. Countering terrorism through criminal justice systems will entail tailored intelligence that can be shared across national borders and can be utilised in a court of law – as was witnessed recently in the Sydney trials. International intelligence cooperation and the sharing of information have become central in combating threats in the modern global security climate. This creates a fundamental shift in the orientation of intelligence from agencies intrinsically concerned with protecting and operating in secret to an orientation focused on collaborative efforts against transnational targets in an information rich environment (in terms of potential sources of information). For African states, moving towards a transnational focus might also overcome the perception - and sometimes practice – of intelligence as political police.

Because counter-terrorism is an issue of global interest, the additional focus on legal standards and oversight for intelligence could bring greater attention to an arena generally in the shadowy sidelines of public discourse and security studies. At a minimum, the role of intelligence agencies should be clearly defined in legislation. This starting point would enable limitations on and consequences for infringements on human rights. However, legislation serves limited purpose in states where the political dispensation does not favour respect for the rule of law or good democratic governance. 

ISS Today: 12 Feb 2010: Isaack Otieno- Programme Head – Corruption and Governance, ISS Cape Town, Politicians from across the political divide recently reached a compromise on contentious issues highlighted in the harmonized draft constitution, with the compromise secured after lengthy political negotiations by the Parliamentary Select Committee (PSC) on the Constitution. Even the most dyed-in-the-wool pessimist might now begin hoping that Kenya could have a new constitution before the end of the year. Op-ed pages in most Kenyan publications indicate a general enthusiasm for what has come our way from the latest Naivasha process, with some hailing it as modern and progressive. The close to over twenty years search for a new constitutional dispensation will be settled through a referendum later this year.

The PSC team agreed on a pure presidential system in which the President will have the option of picking Cabinet ministers from Parliament or outside. However, those picked from the House will have to relinquish their seats. Just like in the US from where the model is borrowed and adjusted to the demands of the two sides of the Coalition, the President has to be nominated by a political party but should not hold any party office. In addition, an expanded legislature, a devolved system of government, an accountable executive, and an independent judiciary are among the key highlights of this political compromise.

The question that remains unresolved is whether the proposed harmonised draft constitution will be the panacea to Kenya’s political and governance problems. The answer to this question in the interim is negative. A new constitution will not be the answer to the governance problems that continue to cripple the country.

To be sure, even against the tide of the resurgent sense of national optimism, the dangerous triad of corruption, impunity and tribalism continue to threaten the very stability of the country.

First in the triad is the issue of corruption. This problem is as old as Kenya’s post independence history. It is a problem that the country’s political elite has failed to deal with decisively and conclusively. Billions of Kenyan shillings have been lost due to official corruption, traceable to high ranks of government offices. The multi-billion Goldenberg and Anglo Leasing corruption scandals remain unresolved to date. More recently another fresh issue has surfaced over the disbursement of Free Primary Education funds sparking fears of loss of over KES 5.5 billion. The minister in charge and the accounting officer have both refused to resign. No one is ready to take political responsibility for the emerging scandal. This issue is now the subject of yet another routine investigation by the Kenya Anti Corruption Commission. Like in the earlier scandals, Goldenberg and Anglo Leasing, not much can be expected from the ongoing investigations.

The second problem is that of impunity. Like a sword of vengeance, the continued existence of this problem contributes to the public’s low trust in institutions of governance such as the judiciary and the country’s security sector. More critically, there is erosion in the culture of respect for the rule of law. This disrespect and lack of faith in the country’s institutions of governance has led to the mushrooming of gangs such as the outlawed Mungiki, Taliban etc among many others, who operate outside of the ambit of the law. The co-existence of impunity alongside the established constitution is telling of a politically weak government. Furthermore, members of the society are increasingly taking matters of law and justice into their own hands, threatening the very legitimacy and logic of an elected government. However, the present danger lies in the fact that the perpetrators of the 2007/8-post elections violence are yet to face justice. The Kenya government is yet to amass sufficient political will, courage and moral force to take decisive action and bring to book the masterminds of the country’s worst political violence that left over 1500 people dead. Unresolved, this is another example in the long list of impunities that is like a time bomb waiting to explode.

Thirdly, Kenya continues to be plagued by the perennial problem of inter ethnic animosity otherwise known as tribalism. Kenya’s political setup is closely informed by strict ethnic loyalties and divides. Ethnicity has been politicised to the extent that it is the platform from which political negotiations are settled and political goods divided. While the Kenyan Government has created a relevant Commission to address the historic problem of ethnicity, in reality very little is being done to deal with this emotive issue. Key positions in government continue to be dished out on ethnic plates. In today’s Kenya, against the obvious lessons of post election violence that was largely fought along ethnic lines, there are some ministries and departments that remain under the command of members from the same ethnic community. The problem of tribalism is not being attended to decisively. Consequently, it is hard to see how a new constitution will resolve this.

The promise of the new constitution has led the Kenyan leadership to take their foot off the peddle of decisively dealing with the dangerous triad above. Instead of providing leadership and direction and offering solutions with regard to the here and now problems, the leadership is focused on the twin promises of the new constitutional order and the 2012 elections. The sad reality is that they are simply buying time, hoping that the new constitution will fix the problem and that corruption, impunity and tribalism will ebb away. This is politically naïve. The reality is that the new constitution will not be the answer to the existing woes of impunity, corruption and tribalism. These three problems unattended, effectively pose a serious threat to the stability of the country with or without a new constitution. Clearly, the promise of a new constitution is not a panacea to the country’s existing woes.

ISS Today, 8 Feb 2010: Noel Stott, Senior Research Fellow, Arms Management Programme, ISS Pretoria, ‘Nuclear weapons are the most inhumane weapons ever conceived, inherently indiscriminate in those they kill and maim, and with an impact deadly for decades. They are the only weapons ever invented that have the capacity to wholly destroy life on this planet, and the arsenals we now possess are able to do so many times over. The problem of nuclear weapons is at least equal to that of climate change in terms of gravity – and much more immediate in its potential impact.’

In late December 2009, the International Commission on Nuclear Non-proliferation and Disarmament headed up by two former Foreign Ministers, Australia’s Gareth Evans and Japan’s Yoriko Kawaguchi released their long awaited report aimed at reinvigorating, at a high political level, the global debate on nuclear non-proliferation and disarmament.

Prime Minister Rudd and then Prime Minister Taro launched the independent Commission in September 2008 as a joint initiative of the Australian and Japanese Governments. Thirteen eminent individuals from around the world, including South Africa’s Speaker of the National Assembly (from 1994 to 2004), Frene Ginwala, acted as Commissioners.

The release of the report is important given that in May 2010, the five-yearly Treaty on the Non-Proliferation of Nuclear Weapons (NPT) Review Conference will take place. The NPT is regarded as the cornerstone of the global nuclear non-proliferation regime. Based on a bargain of three pillars, the NPT was designed to: prevent the spread of nuclear weapons and weapons technology; further the goal of nuclear disarmament; and, promote co-operation in the peaceful uses of nuclear energy.

However, the NPT is regarded as being in crisis. India and Pakistan, both of whom are known to possess nuclear weapons, have never signed or ratified the NPT. Israel has also not signed or ratified the NPT. While North Korea joined the treaty as a Non-Nuclear Weapon State (NNWS) in 1985, detonated a nuclear device in 2006 and regards itself as having withdrawn from the treaty. India, for example has made it clear that it will never sign the “flawed and discriminatory” NPT. In addition, the previous Review Conference in 2005, failed to reach any substantive agreement and the divide between the non-proliferation first and disarmament first camps - between those accused of non-compliance with their obligation to disarm (the permanent members of the Security Council who have nuclear weapons) and those accused of non-compliance with their commitment to not develop or acquire nuclear weapons (the NNWS in general but Iran and North Korea in particular).

The International Commission’s report will not please those who argue that the only credible guarantee against the use or threat of use of such weapons is their total elimination and for an immediate world free of nuclear weapons. The report, while conceding that ‘nuclear weapons are the most inhumane weapons ever conceived…’ instead calls for the global stockpile of nuclear weapons to be cut to 2,000 from 23,000 by 2025.

On the positive side, the report does emphasise the de-ligitimisation of nuclear weapons and calls on the eight nuclear armed states to adopt a non-first-use policy and to remove their nuclear arms from high-alert status so that they can not be launched speedily.

In what the report calls “a Comprehensive Action Agenda” a time-table for the total elimination of nuclear weapons is presented:

Short Term Action Agenda (to 2012) includes:

All nuclear-armed states declaring that the sole purpose of retaining the nuclear weapons they have is to deter others from using such weapons against them;

A commitment by all nuclear-armed states not to increase their nuclear arsenals.

Satisfactory negotiated resolution of the North Korea and Iran nuclear program problems.

Medium Term Action Agenda (to 2025) includes:

Building support for a comprehensive Nuclear Weapons Convention to legally underpin the ultimate transition to a nuclear weapon free world.

Implementation of a Comprehensive Nuclear-Test-Ban Treaty and a Fissile Material Cut-off Treaty and a further agreement negotiated to put all fissile material not in weapons under international safeguards.

Implementation of measures to reduce the proliferation risks associated with the expansion of civil nuclear energy.

Longer Term Action Agenda (beyond 2025) includes:

The creation of political conditions for the prospect of major war or aggression to be so remote that nuclear weapons are seen as having no remaining deterrent utility.

The creation of the military conditions in which conventional arms imbalances, missile defence systems or any other national or intergovernmental-organisation capability is not seen as so inherently destabilizing as to justify the retention of a nuclear deterrent capability.

The creation of international legal regime and enforcement conditions that will ensure that any state breaching its prohibition obligations not to retain, acquire or develop nuclear weapons will be effectively penalized.

It is unfortunate that the Commission was unable to set a firm date by which time we should get to zero (no nuclear weapons). Whether the NPT Review Conference in May can do this is another question!

[for a copy of the full report see www.icnnd.org)