Sam Sole.
Being the target: Sam Sole
PI spoke to Sam Sole, managing partner at South African non-profit amaBhungane, on his experience of surveillance and the litigation it inspired.
Case Study
Post date
23rd October 2020
amaBhungane is an independent, non-profit newsroom based in South Africa. amaBhungane plays a key role in exposing corruption, promoting transparency and accountability at all levels of government. In recent years, amaBhungane has been at the forefront of privacy litigation in amaBhungane Centre and Sole Stephen v. Minister of Justice and Correctional Services and others, a challenge to South Africa’s expansive surveillance laws.
Qn: Please briefly describe your work and the issues/topics you work on.
I’m an investigative journalist in South Africa. I started doing investigative journalism before it was a category that everyone knew about. I joined what was then the Mail & Guardian investigative team in the early 2000s. In 2010, my colleague from Mail & Guardian Stefaans Brümmer launched amaBhungane, a non-profit organisation. We are independent and do investigative journalism, like ProPublica or the BIJ in the UK.
We do scandal and corruption, as I like to say to people. We mainly try to focus on the intersection between business, politics and crime, because that’s where the most damage to the institutional fabric is done in my view.
Qn: What is your understanding of surveillance?
Surveillance is monitoring what some person or group of people are doing. It’s obviously very broad, and it can cover what they’re looking at, who they’re talking at, their ocmmunications electornic or otherwise, where they’re going, etc. Most surveillance does not cover that whole spectrum.
Qn: What kinds of surveillance or harassment, whether tech-enabled or not, have you experienced?
I have a long history of doing this kind of work, and most of it implicates government, or at least key government players in the things we’re trying to look at and expose. Over the years we’ve had some hints, some circumstantial evidence, and some leaks - such as people telling us - that we’ve been monitored. This whole thing began at a time when we were investigating the then head of the police forces in South Africa, Jackie Selebi. Stefaans and I both had proof that we were monitored. At one stage we learned that there was going to be a raid at my home, where the police were going to find drugs in our premises. That never happened. But I heard later from someone that was well-placed to know that a team had come from Pretoria to where I lived to carry out this raid, and they relied on local back-up. The local back-up had led them on a dance and told them they couldn’t find my house. This was probably the local back-up taking a decision on their own in light of the fact that it was a fake operation. That’s the experience of potential physical surveillance that I’ve had.
At one point we made a complaint based on the series of incidents through our lawyers to the Inspector General of Intelligence, who is supposedly a watchdog of the state security services/intelligence services. We waited nearly a year for an outcome and then that outcome was dissatisfactory because they came back and said that nothing illegal was done, and it was all in order because it followed a process ordered by the designated judge. We didn’t receive confirmation whether we had been spied on - all that we were told is that if anything happened it was legal.
In the context of factional battles between former President Thabo Mbeki and deputy president Jacob Zuma, it became known to us and it later became public that both the national intelligence service and police crime intelligence had conducted surveillance on other parts of the state, on what was called “the Scorpions” - an elite crime-fighting body that was perceived as more closely aligned to president Mbeki. It emerged that the national intelligence and police intelligence services had spied on this other government agency, and included in that umbrella of people spied on were journalists including myself. We were never able to prove it, but there was a reference to it.
The product of that surveillance was kept behind lock and key, but it was used to take the decision to withdraw corruption charges against president Zuma. There was a long court process driven by the opposition democratic alliance to challenge the withdrawal of charges against Zuma, and bring into the light of day that surveillance, because it had been a key excuse for the decision to withdraw charges. Supposedly that surveillance showed that the Scorpions had conspired against Zuma, rather than conducting an independent investigation. Eventually that surveillance did become available, including transcripts of two conversations I had had with the lead prosecutor in the investigation of Zuma, that was going back to 2008/2009. Finally we had proof that my calls had been intercepted, and we used that to apply to the intelligence service under access to information legislation to ask whether the authorisation for surveillance had been granted by a judge, and on what basis it had been given. Eventually, we got a copy of the authorisation or the signed order, which showed that my communications had been intercepted for about six months - two sets of three months. But they refused to disclose the affidavits or evidence that had been placed before the judge which persuaded him that my phone should be intercepted. They also monitored my email.
On that basis, we looked at the governing legislation which allows surveillance and interception, and we thought there were major problems with it: to start with, the technology had overtaken the legislation. We decided to challenge this legislation, and went to the provincial High Court - where we were successful - and then made arguments in the Constitutional Court. We are now awaiting judgment from that court.
South African Constitutional Court by Xevi V, licensed under CC BY-NC-SA 2.0.
Qn: Were you able to identify the persons or entities behind these attacks? Were they affiliated to the private sector, public sector or both?
I only identify the government departments involved in the surveillance that I was subjected to after that information came out.
I have not really experienced public-private partnership in surveillance. Part of the issue of challenging legislation is that the harder it is to do legally, the more you push it underground. We’re fairly confident that already the security services do stuff off the books or outsource some of this to private sector players so that they don’t have to go through the legal process at least in cases that are more sensitive or questionable.
One of the things we’ve pointed out is that there’s almost nothing in the legislation that really governs what happens in the private sector. In terms of our legislation, all the private service providers are required by the State to gather and keep this information. So they act on behalf of the state; they are custodians of the data, but there’s very little oversight or control as to what they do with it, and we know from our own experience and a few court cases that private investigators seem to have fairly routine access to communication records, and metadata. They basically have a contact at one of the service providers who they pay, and are able to access other people’s communications and contact records. It’s illegal, but it’s rife. And because there is no structural accountability on the private service providers in any public way, no one is really checking up on that. We don’t know whether they keep a paper trail, or whether they destroy the information after x number of years. There’s a significant threat of leakage from the private sector which is one of the things we’re trying to address.
Qn: To what activities do you attribute these incidents?
To the fact that we were problematic to the powers that be. We were a headache for them. It was useful for them to know who we were talking to and about what, and for journalists that’s hugely problematic as it puts your sources at risk and puts confidential communication at risk. In the case, we asked for specific recognition of the duty of confidentiality, applying to journalists and lawyers, in the legislation. For example, if there’s an application to surveil a journalist or a lawyer, that must assessed by the judge. We tried to get extra protection in that way, and were endorsed by the High Court. We’ll see what the Constitutional Courts.
Qn: How has your experience of surveillance and harassment impacted your work?
It is stressful. One of the things that made me angry and one of the reasons that made me want to pursue this is that they disclosed five or six pages to me of material gathered over six months, and that includes me shouting at my children presumably, or my wife shouting at me, or whatever. I have no control over that, who that is shared with, etc. Imagine someone has accessed to your conversations for that period of time. It’s a nuisance, and it’s annoying that you have to take particular care when you have a sensitive source because you assume - and I continue to assume - that my contacts are routinely monitored despite everything.
None of this is life-threatening, of course. The idea that I would have drugs planted on me and I would be arrested, that’s as far as it got. There have been other things in the past, such as death threats and so on, but that was quite a long time ago. We are fortunate that we have a strong judiciary and a high functioning media, and some degree of checks and balances. Others have it much worse.
Qn: How has your experience of surveillance and harassment impacted your personal life?
No I don’t think so. I’ve been fortunate in that. The general stress involved in the kind of work I do probably has had an impact on that, and work-life balance has not been the best. But this is not specifically related to surveillance.
Qn: Have you ever sought help from the authorities? If not, why not? If yes, what was the result?
Yes, we laid down a complaint with the Inspectorate General. Subsequently, when the surveillance was confirmed, we also laid a complaint. There was one more issue where we laid a complaint. But again, I don’t have a lot of faith in those sort of institutions because the intelligence services have a very strong gravitational pull. A lot of those institutions get caught up in the secrecy, and the national interest explanations, and so on. They become institutionally captured and lose critical distance and independence. That has been my experience for a long time with the Inspector General as an institution here. The current Inspector General has made an effort to be more independent and has done some good work. But generally, we haven’t had any help from the state because it has been the state that has been spying on us.
Qn: In your country, what are the main obstacles to accountability and/or redress for HRDs?
The problem is to get behind the veil of secrecy. The courts are important in terms of gaining redress, but you can only go to court if you know what has happened, and that was the bedrock of our case in the High Court and in the Constitutional Court. In terms of the current regime, you never know that you’ve been spied on, you never know that surveillance has taken place because it’s kept secret. Our whole argument was that there needs to be a notification regime at some point, because otherwise you can never enforce your rights, you can never challenge the basis on which you were spied on, you can never obtain accountability or reparations if you don’t know what happened. The right to challenge government action means nothing if you have nothing to go on, and that was the key plank of our argument.
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