General Intelligence Laws Amendment Bill [B25-2011]: Response by the Ministry of State Security to the issues raised during the public hearings

Meeting report

Response by the Ministry of State Security to the issues raised during the public hearings on the General Intelligence Laws Amendment Bill [B25-2011]
The Honourable Siyabonga Cwele, Minister of State Security presented the briefing to the Committee (see attached document).

The State Security Agency (SSA) was established by presidential proclamation in September 2009.  The intention of the proclamation was the consolidation of the various intelligence structures.  The Bill was intended to address the subsequent concerns of the oversight structures over the management and functioning of the security services.  Consolidation of the financial statements needed to be requested and qualified certificates were issued by the Inspector-General of intelligence because of the legal uncertainty that prevailed over the security services.  The Bill would allow the SSA to rationalise the various support services, thereby eliminating duplication and saving costs and resources.

The Bill was not intended to deal with matters pertaining to the dispensation, mandate, functions, powers and the regulation of methods.  These issues were to be addressed in the forthcoming White Paper on Intelligence and the planned State Security Agency Bill.

Most of the issues that were raised during the public hearings on the Bill were addressed in the briefings to the Committee in February/March 2012.  The Minister had not issued a formal response to the public hearings as this would have been a duplication of effort.  The matters that had not been responded to would be addressed during the policy review process, which would culminate in the White Paper. 

Members of the Committee had raised further concerns over the apparent change in policy regarding the appointment of the Coordinator of the National Intelligence Coordinating Committee (NICOC) and the placement of NICOC within the Ministry of State Security.  In the interest of the speedy processing of the Bill, the provisions concerning NICOC would be withdrawn.  Other provisions requiring reconsideration dealt with foreign signals intelligence, the transfer of functions and the retention of the Electronic Communications Security (Pty) Ltd. (COMSEC) licensing exemptions.

Domestic signals were subject to the Regulation of Interception of Communications and Provision of Communication Related Information Act (RICA).  The provisions were intended to address situations where signals involving the telephone numbers of South Africans required further investigation.  Currently, such signals were dealt with in terms of ministerial regulations.  The intention was to subject these signals to the RICA provisions.  No additional intrusive measures were proposed.

The Bill made provision for the dissolution of COMSEC.  COMSEC was subject to regulation and licensing by the Independent Communications Authority of South Africa (ICASA).  Provision needed to be made for the continued functions of providing protection against unauthorised access to communications systems.

The Committee was urged to finalise the processing of the Bill as a matter of urgency.

Discussion
The Chairperson explained that Chapter 11 of the Constitution made provision for the President to establish any intelligence entity or service.  The 2009 proclamation establishing the SSA was issued in terms of this provision.  The Bill gave legal effect to the establishment of the SSA.  The Bill amended the National Strategic Intelligence Act, the Intelligence Services Oversight Act and the Intelligence Services Act.  The provisions in the Bill allowed for the consolidation of the security services under the auspices of the SSA and under a single Director-General.  In addition, the COMSEC Act was repealed.  The intention of the Bill was to correct the technical legal provisions governing the security services and to allow for a more efficient and cost-effective intelligence structure.

Mr F Bhenghu (ANC) was satisfied with the explanation of the Minister.  Parliament should have dealt with the matter earlier, which would have avoided the issue of qualified IGI certificates.  The Committee should proceed with the Bill without further delay.

Mr D Maynier (DA) thanked the Minister for his response, which addressed some of the issues raised during the public hearings and in his letter to the Ministry.  He continued to have grave reservations about the establishment of a centralised, civilian SSA, which was a major departure from Government policy and reverted back to the pre-1994 situation.  The Minister’s overriding concern was improving the administration and efficiency of the intelligence services but the Members of the Committee needed to ensure that the proposed legislation would be in accordance with the Constitution.  The Constitution did not require the President to appoint a Minister of State Security but he had done so and established the Ministry.  He supported the proposal that the Minister of State Security was granted the power to appoint the Coordinator of NICOC.

Mr Maynier asked the Minister if he conceded that the powers of the SSA were too broad and if the issue of the mandate of the SSA should be addressed in the Bill.  The primary concern regarding foreign signals interception was that the provisions in RICA could be circumvented by application of the Ministerial directive, which might allow the interception of signals without the approval of a Judge.  He understood that if a South African telephone number was detected during analysis of foreign signals intelligence, the Minister of State Security had to approve continued surveillance.  The proposed solution was that foreign signals were subjected to the RICA provisions but this was not specified in the Bill.  He had requested a more detailed briefing to the Committee on foreign signals interception and asked if the applicable regulations were classified.

Mr Maynier understood that the Constitution made provision for the President to establish an intelligence service, which had to be regulated by legislation.  The Bill made reference to ‘departmental intelligence’, in addition to the intelligence services of the defence and police forces.  He asked if ‘departmental intelligence’ was another intelligence service and what this service entailed.

Minister Cwele explained that the Joint Standing Committee on Intelligence (JSCI) was responsible for conducting oversight over the intelligence services and submitted reports to Parliament.  The State Security Ministry was committed to the review of the White Paper on Intelligence.  The current White Paper dated from the mid-1990’s and had served a valuable purpose and provided guidance over more than two decades.  Experience had been gained during this period.  The protection and security of all South Africans were of paramount importance and he hoped that ordinary citizens would have the opportunity to give input once the draft White Paper had been submitted to Parliament.

The issue concerning the broad mandate of the intelligence services had been taken to the Constitutional Court.  The Court had ruled in favour of the intelligence service on two occasions.  The legislative amendments included in the Bill were intended to improve effectiveness and the utilisation of limited resources.  The intelligence community was small but professional.  The intention was to strengthen capacity by attracting skilled operatives that would gather, interpret and verify intelligence and to reduce the mushrooming administrative support function.  Financial resources could be used more effectively.  There was general agreement that the focus should include threats to the citizenry in addition to threats to the State.

Several attempts had been made since 2002 to create a joint services board but the only agreements that had been reached were on non-core peripheral services.  The SSA was established to consolidate the various security services.  The State Security Bill could only be introduced once the new White Paper had been issued.  The White Paper would be the framework for the operation of the security services.

Minister Cwele disagreed that the appointment of the head of NICOC by the Minister would diminish the powers of the President.  This was one example where non-constitutional powers were given to the Head of State by means of legislation, which was a matter of concern.  He was happy to retain the status quo and debate the issue during the review of the White Paper.

Minister Cwele referred the Committee to clause 2, sub-clause (k) (on page 5 of the Bill), which inserted provisions to subject intercepted foreign signals to RICA.  Departmental intelligence was not a new structure and was an existing concept.  Certain government departments collected information on illegal activities, for example the Department of Agriculture, Forestry and Fisheries (DAFF) gathered information on persons involved in the poaching of rhinoceros and abalone.  The intention was to make provision for such information to be referred to the SSA.

Mr Dennis Dlomo, Acting Director-General, State Security Agency explained that there were different types of intelligence product.  Government departments were required to share intelligence product with the entity responsible for State Security, i.e. the SSA.  The South African National Defence Force (SANDF) and the South African Police Service (SAPS) alone were legally entitled to have their own intelligence operations.

Minister Cwele explained that the provisions concerning foreign signals were limited to clarify what action would be taken if South African numbers were detected in bulk signals interceptions.

Mr Dlomo agreed that the issue of foreign signals was a policy matter.  The decision that had to be made by the Committee was whether the Minister or a Judge would approve the intercepts.

Minister Cwele confirmed that the regulations on foreign signals were classified.  The JSCI was usually briefed on classified matters.  He would consider briefing the Committee on the matter only in a closed, secure session.

Ms H Mgabadeli (ANC) appreciated the briefing by the Minister.  Members had noted the urgency of the Bill.  She suggested that the Committee proceeded with the processing of the Bill.

Mr Maynier thanked the Minister for responding to questions from the Committee.  He felt that the issue of the mandate of the SSA should be addressed in the Bill as it would clarify the role of the security services in gathering information on politicians.  It was unlikely that the State Security Bill would be passed before the 2014 elections.  It had been a startling revelation that South African citizens were subject to surveillance if their telephone numbers were picked up during bulk foreign signals interceptions.  He supported the Minister’s suggestion that approval for such surveillance was given by a Judge, in accordance with RICA.  He accepted that the regulations were classified but asked that consideration was given to de-classify the section dealing with South African numbers to allow the Members of the Committee to understand what the proposed legislation was dealing with.

Mr Bhenghu was concerned that the Committee was getting involved in classified issues.

The Chairperson understood that Mr Maynier was trying to get clarity on what the Committee and the JSCI should be dealing with.

Ms Mgabadeli felt that the Committee should not exceed its mandate by insisting on receiving classified information.

Mr A Maziya (ANC) said that the Committee was merely attempting to obtain clarity from the Minister.  Members could make submissions on any point in the Bill.  He suggested that the Committee scheduled meetings to deliberate on the Bill.

The Chairperson said that Mr Maynier had seeked clarity on two issues - the mandate of the SSA and if the foreign signals regulations could be made available to the Committee.

Minister Cwele replied that there was no national consensus on the issues concerning the mandate of the security services.  It was necessary to commence the debate on matters of policy.  He was concerned that the finalisation of the Bill would be delayed if policy discussions were held at this stage.  The Bill was not intended to deal with matters of policy.  He denied that the security services were involved in any political intelligence activity.  The rule was that the collection of intelligence could not interfere with political activity.  The Ministry would continue to support the Committee in the processing of the Bill.  He conceded that the Bill included provisions that reflected policy changes but these provisions could be omitted in the interests of the speedy finalisation of the legislation.

Mr Maynier advised that he would propose a short-term solution to address the issue of the mandate of the SSA.

Minister Cwele advised that the regulations not be de-classified.  The Committee would decide on how the issue of South African numbers found in bulk intelligence gathering activities should be dealt with.

The Chairperson said that the Committee would give the matter due consideration and if necessary, would request the declassification of the regulations.  The Minister and his staff were invited to attend future deliberations on the Bill.

The meeting was adjourned.