General Laws Amendment Bill [B25-2011]: briefing by State Security Agency

Meeting report

The Chairperson noted the apologies of Mr Siyabonga Cwele, Minister of State Security.  The Committee’s application to meet on Thursday, 22 March 2012 had been submitted.  Permission to hold public hearings on the Bill on 27, 28 and 29 March 2012 had been granted.  The advertisement inviting written submissions on the Bill had been delayed.  The closing date for submissions had been extended from 14 March to 16 March 2012.  The Committee would consider the submissions received on 22 March 2012.  Committee meetings had been scheduled for 2, 9 and 16 March 2012.  The Committee programme would be circulated to Members.

Briefing by the State Security Agency (SSA) on the General Intelligence Laws Amendment Bill
Mr Dennis Dlomo, Acting Director-General, SSA gave an overview of the background to the Bill before presenting the briefing document to the Committee (see attached document). 

The Bill essentially made substantive amendments to the Intelligence Services Act No. 65 of 2002 (ISA), the National Strategic Intelligence Act No. 39 of 1994 (NSIA) and the Intelligence Services Oversight Act No. 40 of 1994 (ISOA) to make provision for the SSA.

It was agreed in 1994 to incorporate all existing intelligence structures under the National Intelligence Agency (NIA).  The NIA and the South African Security Service (SASS) were established in terms of a trilogy of legislation enacted in 1994.  Provision was made for the administrative structures to be put in place and the powers and functions of officials were described. 

The intelligence services were subsequently reviewed by the Pikoli Commission in order to ascertain that the intelligence dispensation was adequately structured.  Concerns were expressed over the agreement that had been reached with regard to the technology used by the intelligence services.  In terms of the agreement, the technology and support services would be shared by the various intelligence structures.  The Ngcaba Commission was established to investigate the technology issue.  The Pikoli Commission also found that the conditions of service of members of the intelligence community had not been adequately addressed by the legislation.  A committee was established to review the conditions of service.

The 2002 review of the intelligence services resulted in the enactment of Act no. 65 of 2002.  The Act created a new dispensation for the various intelligence structures, whereby the NIA, SASS, the South African National Academy of Intelligence (SANAI) and Electronic Communications Security (Pty) Ltd (COMSEC) were incorporated under the SSA.  The SSA took over responsibility for the technological support previously provided by the Department of Communications.

The National Intelligence Co-Ordinating Committee (NICOC) was established in 1994.  The main responsibilities of NICOC were strategic intelligence assessment, which included producing the national intelligence estimate and recommending the intelligence priorities to the cabinet, and the coordination of intelligence as an activity.  The meaning of the “coordination of intelligence as an activity” was not clear.  In addition to the confusion that arose from the various interpretations, concerns were raised over the inherent risks associated with allowing a single entity access to all intelligence activity.  It was necessary to ensure that the required structures and systems were in place and that the performance of each entity could be independently assessed.  It was also necessary to ensure that the intelligence product could be consolidated and coordinated.

The Bill cleared up the confusion that had arisen and allowed for previous errors and omissions in the legislation to be corrected.  The reports of the various committees and commissions were taken into consideration during the drafting of the Bill, including the report of the Matthews Commission, which had no legal status.  Agreement on the amendments had been reached with all the stakeholders.

The Joint Standing Committee on Intelligence and the Inspector-General had oversight responsibilities in terms of the ISOA.  The amendments to this Act corrected references to the SSA and removed references to obsolete entities.

The mandate of COMSEC was included in the NSIA.  The Bill allowed for the repeal of the Electronic Communications Security (Pty) Ltd Act, 2002.  In addition, amendments to twelve other Acts needed to be made.  The relevant Acts and amendments were detailed in Schedule 1 of the Bill.

Discussion
Mr D Maynier (DA) asked for a list of the commissions of enquiry that pre-dated the Bill.  He asked if the reports of the commissions were classified as the information would be useful to Members during deliberations on the legislation.

Mr Dlomo listed the Pikoli, Ngaba, Netshitenzhe and Matthews Commissions.  He confirmed that the commissions’ reports were classified but certain portions of the reports had been de-classified and were referred to in his introduction to the Bill.

The Chairperson requested clarity on the statement in the briefing document that “new activities attracted new oversight responsibilities”.  It followed that obsolete activities removed oversight responsibilities.

Ms H Mgabadeli (ANC) asked why a copy of the Secret Services Act had been included in the information pack that was provided to Members.  The briefing on the Bill had made no mention of this Act.

Mr Dlomo explained that the Minister of Finance was responsible for all Money Bills tabled in Parliament.  The Secret Services Act was linked to the Security Services Special Account Act.  The Special Account Act made provision for the establishment of a committee by the President to access funding for secret operations and for the issuing of reports on the special account.

The Chairperson added that a copy of the Secret Services Act had been included in the information pack as the ISOA included a reference to that Act.

Mr Maynier asked if the reports of the four commissions should remain classified.

Mr Dlomo suggested that the question was referred to the Minister as it was a policy matter.

The Chairperson agreed that the Acting Director-General was not in a position to venture an opinion on whether or not reports should be de-classified.

Amendments to the National Strategic Intelligence Act
Mr Dlomo proceeded with the briefing on the Bill.  Sections 1 to 8 of the Bill dealt with the amendments to the National Strategic Intelligence Act No. 39 of 1994.

Section 1 made provision for the amendment, deletion and insertion of definitions. 

Section 2 allowed for foreign and domestic intelligence functions to be combined under the SSA.  Provision was made for intelligence reports to be submitted to NICOC and other departments. Functions included in the repealed Electronic Communications Security (Pty) Ltd Act to be transferred to the SSA.  Provision was made for additional functions concerning communications and cryptography.  The current communications and cryptography functions were summarised.  Provision was also made for functions related to liaison with foreign and other intelligence structures and services and for the interception of communications.

Section 3 dealt with amendments to provisions concerning the vetting of persons.  Section 4 dealt with amendments concerning the duty to make information available to the Agency.  Section 5 included amendments concerning the officials of the SSA and NICOC.  Section 6 made provision for NICOC to be situated in the Office of the Minister.

Section 7 made provision for the promulgation of regulations.  Section 8 amended the long title of the Act.

Discussion
The Chairperson observed that the Constitution did not require the President to appoint a Minister for Intelligence.  Responsibility for intelligence rested with the President and the Cabinet.  He asked what was meant by the reference to the “Office of the Minister” in Section 6 of the Bill.

Mr J Maake (ANC) asked for more information on the vetting functions referred to in Section 3 and the nature of the intelligence products that were transferred in terms of Section 4.  It was not clear if the head of NICOC would be recruited from within the intelligence community or without (Section 5).  It was not clear if NICOC reported to the Minister of State Security.  This could be problematic as the members of NICOC included representatives from other intelligence structures, for example Defence Intelligence reported to the Minister of Defence.

Mr Dlomo explained that NICOC, the NIA and SASS were established with effect from 1 January 1995.  At the time, responsibility for Intelligence rested with the President.  President Mandela appointed the first Deputy Minister and Coordinator for Intelligence.  It soon became clear that the political office of the Deputy Minister had to be separated from the functionary office of the Coordinator.  The term “Secretary for Intelligence” for the functionary position was not acceptable and the term “Coordinator for Intelligence” was agreed after extensive debate.  All Chapter 9 institutions were the responsibility of the Department of Justice and Constitutional Development.  However, no provision was made for the structure of the Coordinator.  The 1994 Act made provision for logistical support to be provided by an inter-departmental committee comprising representatives from the Police, Defence and other security services.  All intelligence structures were incorporated into NIA.  The members of NICOC had to be members of NIA in the first instance.  There had been instances in the past when issues over the command structure had arisen.  It was essential to have absolute clarity on the command structure of the security services to avoid any risk to the security of the State.

Mr Dlomo read the provisions in the Act dealing with the establishment of NICOC, the appointment of the administrative head of NICOC, the appointment of the Director-General of the SSA and the membership of NICOC.  Most of the existing functions remained unchanged.  The additional duty placed on members of the intelligence structures to transfer intelligence products to other members was applicable to only the Director General, the Deputy Director-Generals and members of NICOC.  The product had to be part of the relevant mandate and the provision must be read in conjunction with Chapter 11 of the Constitution.

Mr Maynier wanted more clarity on the mandate of the various intelligence structures.  He understood that many amendments concerning NICOC were made as a result of the findings of the Matthews Commission.  The Matthews Commission had also found that the mandate of NICOC was too broadly defined and had recommended a “designated threat” approach.  He asked if the Bill followed the “designated threat” approach.  He noted a discrepancy in the number of new functions of the SSA in the briefings of the Minister and the Acting Director-General.  He asked for clarity on the additional functions in Section 2, who was the responsible officer and why the functions were necessary.  He noted that the definition of ‘counter-intelligence’ had been amended to include the word “sedition”.  He asked what the meaning was of “sedition”.  He asked if the mandate of the SSA included responsibility for countering sedition.

The Chairperson assumed that the meaning of “sedition” was the same as the meaning of the word in criminal law, derived from the Latin seditio.

Ms Mgabadeli said that frequent mention was made of the Matthews Commission but the commission’s report was not available to Members.

The Chairperson explained that the report of the Matthews Commission had no legal standing.  The Joint Standing Committee on Intelligence (JSCI) could not give the report any status as the architects of the report were unable to do so.  The JSCI never referred to or mentioned the report.

Mr Maynier said that the Minister, the Acting Director-General and he were clear on the status of the report.  However, the commission’s report was the only report on the intelligence services and had raised serious concerns over a number of issues.  He wanted the assurance that the Bill addressed all the concerns identified by the Matthews Commission.

Mr D Stubbe (DA) noted that NICOC would no longer be responsible for the prioritisation of intelligence activities in terms of Section 5.  He asked who would be the responsible authority in future.  Section 5 made provision for the appointment of the head of NICOC by the Minister but the Constitution made no provision for the appointment of a Minister for Intelligence.  Previously the head of NICOC was the Coordinator for Intelligence, who was appointed by the President.

Mr L Ramatlakane (COPE) noted that the reports of the other three commissions were classified and that the report of the Matthews Commission had no status.  The Minister had informed the Committee that portions of the Matthews Commission report had been considered in the drafting of the Bill, despite the lack of status.  The briefing by the Acting Director-General had included references to the Matthews Commission report.  He wondered if the consideration of the report did not confer a certain kind of status on the report.  He understood that the report had been leaked at the end of the process, with the result that the status of the report was compromised.  This did not mean that the content of the report or the findings were off the mark.  He saw no reason to disregard the content of the report.  He asked what the level was of the members of the National Intelligence Structures referred to in Section 4.

Mr Maake felt that it was pointless to debate the report of the Matthews Commission.  The report had no status and all that was required was to introduce the relevant point.

The Chairperson said that the Minister had expressed his view on the report but had not provided any further detail.  The Acting Director-General was not required to offer further explanation or comment on whether or not any credibility should be given to the report.  There was no objection to adopting a recommendation of the Matthews Commission that would improve the security services.

Mr Dlomo advised that the Cabinet was responsible for setting intelligence priorities.  This had never been a responsibility of NICOC.  It was possible that the intelligence services might uncover intelligence product that was critical to State security during the course of normal operations.  The Constitution made no provision for the appointment of the Coordinator for Intelligence by the President.  The President was empowered to appoint the head of the intelligence services, who would be responsible for NICOC.  This explained the spirit behind the situation of the office of NICOC.  There were both defensive and offensive aspects to counter-intelligence.  The focus had been on the defensive element and the Agency was attempting to re-establish the balance between the two elements.  The Bill included the new definition of ‘national security’, which was included in the Protection of State Information Bill.  The definition was clear on what was excluded as well.  There need be no concern over the inclusion of “sedition” in the definition.

Mr Maynier remained unconvinced and suggested that the phrasing of the definition was considered with care.  It was understood that sedition was a crime but the definition was very broad and included elements of seditious speech, which was abolished in the United Kingdom in 1992.  He wondered what type of threat would be considered to be an act of sedition.

Mr Dlomo recalled recent cases where people were involved in organising insurrection and acts of terror in other countries.  Acts of sedition were not new and the issue was referred to the Law Commission for investigation in 1996.  The results of the investigation were not made public.  During 2010, an attempt was made in South Africa to assassinate a person who was allegedly involved in activities to unseat the head of state of another country.  The work of the security services included instances where South African territory was used for insurrection activities against other countries.

The Chairperson observed that there were pre-conceived negative assumptions by the public concerning intelligence and counter-intelligence activities.  He asked what was involved in counter-intelligence operations.

Mr Dlomo explained that counter-intelligence operations included counter-espionage activities and security measures to protect the country from hostile forces.  Other elements involved the enforcement of non-proliferation treaties on nuclear and other weapons and preventing the theft of technology.

Mr Maake understood that the Director-General of the SSA reported to the Minister of State Security.  He asked what the relationship was of the head of the Agency with the President.  He queried the provision in the Bill for the Director-General to be the accounting officer of the Agency.

The Chairperson advised that the briefing by the Acting Director-General would be resumed at the following meeting of the Committee.  Responses to Members’ questions were deferred as well.

The meeting was adjourned.