In asserting that public access to government-held information was essential to accountable processes of democratic rule, a United States Judge, Louis Brandeis, once said: "Sunlight is said to be the best of disinfectants; electric light the best policeman." Despite recognising that there are times when, in the interests of privacy or state security, such information might be withheld from the public, he clearly supported the notion that the long-term advantages of open government nearly always outweigh the apparent short-term benefits of secrecy.
These are competing public interests which have a particular relevance to the current debates in South Africa over whether or not we should know all about who was spying on whom during the apartheid era, as well as how we should handle public allegations made in this regard. This is particularly important because through a negotiated settlement in this country we not only inherited the institutions of the past regime, but may well have adopted some of the inappropriate covert culture and methods of these security and intelligence gathering apparatuses as well.
Amidst the hurly burly of allegations and counter-allegations that have punctuated the work of the Hefer Commission over the past weeks, there is a risk that the sensationalism of this political soap opera, does more to mask the real impact of apartheid's spies, informers and assassins than to elucidate it. As a result, the Commission has not really helped to resolve whether it is in fact in this country's best interests to reveal all about what was done in the name of 'state security' during the dark days gone by.
It is this author's view that in moral terms there can be little debate: we have the right to know where people stood and what they did, particularly if they still hold public office, or if we were the victims of their subterfuge or the subjects of their spying. In terms of the quest to deepen democracy and build sustainable reconciliation in South Africa, the arguments are equally persuasive. How can a society such as ours possibly come to terms with its brutal and dehumanised past without recovering the truth about who was responsible, whose rights were violated and how the intelligence system worked to undermine those committed to human rights, justice and equality?
A similar motive arguably underpinned the way in which the re-unified Germany dealt with the legacy of the former East German Stasi intelligence machinery and the files compiled by over 100 000 informers employed or used by the Stasi. In that case, this was combined with a systematic attempt to purge from public office not only those who spied for the Stasi, but members of the East German Communist Party as well. Nonetheless, the Stasi Records Act not only provided access for victims to the files compiled on them, but also established an entire administrative infrastructure to assist in accessing these files and "sanitizing" them of information which could do damage or which violated the rights to privacy of innocent third parties.
Yet there are those who argue that in the South African case, the damage that might be done to particular political parties or to delicate social and political relationships, will outweigh the benefits. Others suggest that the Truth and Reconciliation Commission (TRC) has done all that can be done... and that it is time to put the past behind us and move on. Still others, most notably those who either were - or still are - embedded in the murky underworld of South Africa's intelligence agencies, argue that it would not be in the interests of 'state security' to reveal the machinations of people who might still be integral to the work of these security apparatuses.
Indeed, this has been a regular refrain in answer to questions before the Hefer Commission – ironically, coming mostly from those who were making the spy accusations against Bulelani Nguka in the first place. Equally ironic, was that the same argument was being used by the human rights stalwart George Bizos in his capacity as legal representative of the National Intelligence Agency (NIA) – precisely in an attempt to keep the lid shut on the NIA files that might reveal who was and who wasn't a police spy.
If the Nguka saga has muddied the waters, then perhaps reference to another example may be useful. The story of Sicelo Dlhomo is instructive. He was a young student activist who was found shot dead on the 25th of January 1988 in an empty field near his home in Soweto. Sicelo's mother, a founding figure in the establishment of the Khulumani Survivors Support Group, testified before the TRC that she believed he had been killed by the police. In doing so, she referred to previous threats which he had received, as well as to his previous experiences of detention without trial, during which he was severely tortured. But more than ten years after his death, in a dramatic twist, several of Sicelo's closest comrades who worked with him in an underground ANC cell, confessed before a hearing of the TRC's Amnesty Committee that they had in fact assassinated him. Their evidence was that they had done so on the basis that they believed he was a police informer. These events literally killed his mother, who saw her late son shift almost instantly from hero to pariah in the struggle against apartheid. Amongst other things, she was put under huge pressure by the ANC (which was supporting the Amnesty applicants) to accept this version of events "in the name of reconciliation".
Yet no evidence was ever produced that bore out the allegation that Sicelo was a police spy. Indeed, a combination of contradictory evidence by the amnesty applicants, as well as other independent investigations, strongly suggested that one of the amnesty applicants – and the man who had in fact issued the order that Dhlomo be killed – was the police informer, rather than Dhlomo himself. Despite this, and despite the fact that the Amnesty Committee found that there was no evidence to support the allegation that Sicelo Dhlomo had been a police spy, the applicants were deemed to have made full disclosure and received amnesty for Sicelo's murder.
Other than a reminder of the dramatic consequences of the actions of informers – including the murder of this young activist – this case offers several additional important insights. Firstly, along with other notorious cases (such as that of Anton Lubowski, a senior SWAPO official who was assassinated and then smeared with deliberately spread rumours that he was an SADF spy), it should also be a reminder that the role of the intelligence agencies under apartheid was not merely one of gathering information on enemies of the state, but was often a much more active process of disseminating disinformation deliberately designed to divide, disrupt and undermine the opposition to apartheid. This renders the reliability of much of the information and reports contained in the intelligence records highly dubious. It also gives cause for concern that in throwing open these records, there is a legitimate need to protect unwitting victims (such as the Dhlomo-Jele family) from disinformation or allegations that might have devastating and unpredictable consequences for them.
We would also do well to remember that the information upon which the intelligence agencies operated was also highly dependent on the different kinds of informants at the disposal of the security regime. Sometimes, the most unreliable information was provided by paid informants who manufactured information on the basis that they were paid for what they could provide. Others were coerced into providing information on the basis of torture or blackmail. Still others were motivated by ideology and sophisticated counter- insurgency strategies. So, although the work of these various informers might have violated legal or ethical boundaries, their willingness and ability to deceive was clearly not always based on uniform moral criteria, whatever the consequences.
The Sicelo Dhlomo case also highlights some of the severe limitations of the TRC in grappling with these issues. Hugo van der Merwe of the Centre for the Study of Violence and Reconciliation has argued that in its obsession with the most severe cases of violence, the TRC failed to penetrate the veil of the informer networks that lay at the heart of much of the every day community-based internecine violence that punctuated the past decades. As a consequence, local communities have not really begun to genuinely reconcile about the roles and responsibilities of the impimpis that lay at the heart of much of the community conflict during this period.
These issues and much of the historical tension within these communities therefore remains subtly subterranean. The suggestion is that unless this information is disclosed in a contained and facilitated fashion, it may continue to unfold as a source of unresolved conflict over generations. Furthermore, in the absence of such information, reconciliation initiatives at local level remain essentially detached from any form of accountability, allowing the protagonists to creatively reinvent themselves as 'reborn democrats' to suit the image of new South Africa, but without any reflection or responsibility being taken for their actions.
The role of the media is also complicated in this context. Much of the Hefer Commission has engaged with the ethical and legal issues associated with the publication of information relating to who was and who wasn't a spy, as well as the revelation of the sources of this controversial information. Yet the media was also not simply a neutral vehicle in this historical process. There is plenty of evidence that deliberate plants were placed within the electronic and print media to service nefarious political interests. It is clear that greater scrutiny is therefore also appropriate of the ways in which the commercial media serviced – and arguably may continue to facilitate – the dissemination of disinformation, whether unwittingly or otherwise. If this concern is to be pursued in the interests of reconciliation, then it must reach beyond the niceties of freedom of expression or the traditions of protection of sources, especially where such information is clearly unreliable.
Those who argue that access to information about who spied on whom is essential to building sustainable reconciliation in South Africa certainly have a point. However, they also need to contemplate the risks of the damage that this might do – not to 'state security,' but to the relationships between individuals, in families, in communities or in political parties. Of course the counter argument is even more persuasive: if these boils remain un-lanced, they will simply return to haunt communities at some later point or in unpredictable or uncontained ways.
For those who argue that we need to make a break with the past and cannot afford to open this can of worms, it might be important to remember that this is not just about personal responsibility for past acts. Indeed, it is equally arguable that the secrecy that surrounds the roles and responsibilities of apartheid's informers may also serve to sustain both the methods and the rationalisations for covert operations in our security community that emulate rather than transform historical practices. Such secrecy may be premised upon the interests of state security, but might also provide the basis for precisely the sort of crime and corruption that sat comfortably alongside political oppression throughout the apartheid era.
Graeme Simpson is a founder and former Executive Director of the Centre for the Study of Violence and Reconciliation.
A shortened version of this article appeared in ThisDay, 10 December 2003.
© Centre for the Study of Violence and Reconciliation