General Intelligence Laws Amendment Bill: public hearings

Meeting report

The Chairperson welcomed Advocate Faith Radebe (Inspector-General: Intelligence), Mr Herman Smuts (Principal State Law Adviser) and Mr B Mhlanga (Advisor to the Minister of State Security) to the proceedings.

Open Democracy Advice Centre (ODAC) submission
Ms Alison Tilley, ODAC Executive Director, presented the submission (see attached document).  ODAC was a Section 21 non-profit organisation that promoted open and transparent democracy and good governance.

The submission referred to sections 198 and 199 of the Constitution, which dealt with the principles governing national security and the establishment, structuring and conduct of the security services.

ODAC was concerned that the amendments to the Intelligence Services Act, 2002 did not include a requirement for an audited annual report on the Training Fund administered by the State Security Agency (SSA).

The definition of ‘national security’ in the National Strategic Intelligence Act, 1994 was not specific enough.  The definition was currently under scrutiny as part of the debate on the Protection of State Information Bill.  The amendments to the Act included provision for the National Intelligence Co-ordinating Committee (NICOC) to report intelligence products to the Minister of State Security instead of to the Cabinet.  ODAC suggested that the head of NICOC was appointed by the President in consultation with the Minister.

Subsection 5 (2) (c) of the Intelligence Services Oversight Act, 1994 allowed for the veto power of the head of a security service.  ODAC suggested that such veto power should be removed.  The provisions concerning parliamentary oversight in the Act were too vague.  The Matthews Commission had recommended that the Joint Standing Committee on Intelligence (JSCI) reviewed the budgets and annual reports of the intelligence services.  However, these documents were classified and were not presented to Parliament.  ODAC endorsed the National Treasury recommendation that the intelligence service was given its own budget vote and that the annual budgets and financial reports were submitted to Parliament.  It was not necessary to disclose sensitive or confidential information in the reports.

The concurrent technical amendments to the Protection of Information Act, 1982 broadened the application of the Act.  The Bill effectively centralised control of the intelligence services and ODAC’s concerns needed to be seen in the light of allegations of abuses by persons in positions of power.

Discussion
The Chairperson pointed out that the definition of ‘national security’ was dealt with extensively by the Ad Hoc Committee on the Protection of State Information Bill.  Consensus had been reached on the wording of the definition.  The definition was the basis for classification and there had been concerns that the application was too broad.  Similar concern was expressed with regard to the definition of ‘public interest’.  The Protection of State Information Bill applied only to the police, defence and intelligence structures but allegations of corruption referred to all sectors.

Ms Tilley was familiar with the issues and aware of the changes made to the definition of ‘national security’ in the Protection of State Information Bill.  The wording of the definition was still being contested by civil society on the basis that it was not adequate.  The Bill was currently before the National Council of Provinces (NCOP).  ODAC was concerned over recent allegations of corruption in the security agencies.  For example, allegations involving medical aid fraud over a lengthy period were reported to the Director-General of the SSA but little action was taken.  ODAC supported the statement made by Corruption Watch that the scourge of corruption must be fought on every front.  If the definition were amended to ensure that instances of corrupt activities were not excluded, the fight against corruption would benefit.

Ms H Mgabadeli (ANC) asked for clarity on the consultations held by ODAC with the Institute for Security Studies, the South African History Archive and the Right to Know Campaign.  She asked if ODAC had considered the need for amalgamating the intelligence services under the SSA as announced in the Presidential proclamation in 2009.

Ms Tilley replied that there had not been consensus amongst civil society organisations regarding the desirability of the centralisation of the intelligence services under the SSA.  The various intelligence structures were originally established with the intention of breaking up the previous centralised agency and reducing its power.  ODAC was aware of the concerns over the management of the various services.  ODAC was not opposed to amalgamating all the services under the SSA, provided that the Agency became more transparent.

Mr N Fihla (ANC) commented that the Director-General of the SSA would also be the accounting officer.  The previous management structure of the security services was clumsy and had been difficult to monitor and control.

Mr L Ramatlakane (COPE) asked for further clarity on the recommendation concerning disallowing the veto power of the head of a security service.

Ms Gabriella Razzano, ODAC Researcher, explained that Section 5 of the Intelligence Services Oversight Act dealt with the decision to release documents.  ODAC considered the Chairperson of NICOC to be in the best position to make the decision.

Mr M Sonto (ANC) observed that the focus of ODAC was on transparency rather than on intelligence issues.  He asked if ODAC considered the centralisation of intelligence services not to be in the best interests of the country.  He noted that the fear of corruption was a constant theme throughout the submission.  He asked if a centralised or de-centralised organisation would be more prone to corrupt practices.

Ms Tilley replied that the experience of ODAC had been that allegations of corruption had not been dealt with by the present structure.  The SSA had failed to respond to two allegations of fraud within the Agency.  The appointment of a single accounting officer might address the concerns.  The risk of corruption occurring was higher if all the services were amalgamated into a single organisation.  A centralised intelligence structure should be more transparent but it was acknowledged that there needed to be a balance between preserving national security and transparency.  The Constitution allowed for reasonable constraints on transparency and the Matthews Commission had also recommended a more transparent organisation.  The provisions for oversight by the Inspector-General: Intelligence had not been effective.

The Chairperson thanked ODAC for the submission and participation at the public hearings.

Submission by Mr SF Badenhorst
Mr Fanie Badenhorst presented a submission in his personal capacity (see attached documents). 

Mr Badenhorst was a qualified Electronics Engineer and Director of an IT company and training college.  His experience included the navigational systems of aircraft used by the South African Air Force, the division responsible for electronic security in the former Department of Foreign Affairs and responsibility for electronic security and communications in the security group accompanying President Mandela on foreign visits.

The submission focused on the need for a single coordinating entity responsible for the technology and systems used by the various entities gathering intelligence, including the Department of International Relations and Cooperation (DIRCO), the State Information Technology Agency (SITA), the South African National Defence Force (SANDF), the South African Police Service (SAPS), the Special Investigations Unit (SIU), the Department of Home Affairs and the SSA.  The data should allow for inter-operability by the various entities and the systems should be maintained by appropriately trained, specialised technicians.  He had endeavoured to facilitate the establishment of such a body for a number of years, with limited success.

Discussion
Mr Ramatlakane asked if Mr Badenhorst advocated the establishment of a coordinating body as a matter of policy or suggested that provision was made for such a body in the Bill.

Mr Badenhorst said that the various entities involved in gathering intelligence were not working together.  His main concern was that it was not possible to protect information unless all the entities cooperated and used the same system.  He cited the recent example of a person who had worked on the SAPS computer system downloading information and selling it to The Citizen newspaper.  He had not been able to find out who was the head of SITA.

Mr Fihla remarked that there had been similar incidents concerning the theft of information from the systems used by the intelligence services, which was one of the reasons for amalgamating all the services under a single Agency.

Mr Badenhorst said that intelligence gathering was not restricted to the South African Security Services (SASS) and the National Intelligence Agency (NIA).  DIRCO gathered information on a global scale and the SIU and SAPS had much sensitive data on record.  There was no single entity in place to decide what equipment should be used and how data should be transferred.  Smart phones, iPads and secure faxes should not be used to transfer sensitive information and data stored on personal computers and laptops had to be properly secured.  The testing of equipment was currently inadequate.

Mr F Bhengu (ANC) referred to the 2009 Presidential Proclamation concerning the amalgamation of the intelligence services.  He asked if the provisions for oversight by the JSCI and the Inspector-General were considered to be adequate.  He asked if it was preferable if the recommendations were included in regulations rather than in the legislation.

Mr Badenhorst replied that his main concern was the protection of information by Government.  He had attempted to get the stakeholders together for eight years but had no success.

The Chairperson said that the purpose of the Bill was to centralise the intelligence services under the SSA.  It was necessary to have the new structure in place before a central body responsible for data could be established.  He asked if Mr Badenhorst was confident that the suggested coordinating body would be established

Mr Badenhorst expressed doubt that would happen.

Mr D Maynier (DA) asked for Mr Badenhorst’s professional opinion of the vulnerability of the State’s IT systems to cyber-attacks.

Mr Badenhorst only responded that “that was a good question”.

Mr Sonto thought it was a good suggestion to include an entity responsible for IT in the intelligence structure.  He asked if it was necessary to legislate for keeping data secure.

Mr Badenhorst replied that damaging information could not be leaked if data was properly protected.

Mr J Maake (ANC) did not disagree with the points made by Mr Badenhorst but questioned if NICOC was functioning adequately.

The Chairperson pointed out that the submission made no mention of NICOC.  He thanked Mr Badenhorst for his submission.

South African History Archive (SAHA) submission
Ms Tammy O’Connor, Advocacy and Training Outreach Officer, SAHA presented the submission to the Committee (see attached document).

SAHA’s main concerns were that the Bill did not address the lack of transparency of the intelligence services and did not protect the individual’s universal right to privacy.

The submission referred to Section 32(1) of the Constitution, which provided for everyone to have the right of access to any information held by the State.  Section 36(1) imposed reasonable limitations to the right to information.  The Promotion of Access to Information Act, 2002 (PAIA) governed the access to information and specified under which circumstances access would be restricted in order to protect the defence, security and international relations of the State.  The Matthews Commission report had commented that the extent of the secrecy surrounding the intelligence services was inconsistent with the constitutional imperatives of transparency and access to information.  A number of recommendations were made to promote transparency without compromising intelligence operations or national security.  SAHA urged the Committee to consider implementing the recommendations of the Matthews Commission.

The National Intelligence Priorities were not subject to parliamentary and public consultation and debate.  The regulations made under the National Intelligence Act and the Intelligence Services Oversight Act need not be published and were not subject to public debate.  There was no requirement that the regulations concerning the interception of communication signals conformed to the Regulation of Interception of Communications and Provision of Communication Related Information Act (RICA).  No provision was made for the destruction or disposal of irrelevant records gathered in the course of random information gathering.  SAHA suggested that the provisions governing intelligence gathering were reviewed and that the Bill allowed for the intelligence services to be accountable to Parliament and the public sector.

Discussion
Mr Maake commented that it was difficult to balance transparency with confidentiality.  For example, the budget of the intelligence services could include information that should not be made public.  He found that the submission did not include specific suggestions.  Much communication signals were freely available and the intelligence services should be allowed to ‘harvest’ as much as necessary.

The Chairperson remarked that the submission referred to the interception of communication signals originating outside the borders of South Africa.

Mr Fihla queried the constitutional provision that everyone had the right of access to any information held by the State (Section 32).  Access to certain information might not be in the national interest.

The Chairperson pointed out that Section 36 of the Constitution recognised the need to limit the right of access to information.

Ms O’Connor said that Section 32 was clear on the right of access to information but this was subject to the reasonable limitations in terms of Section 36.  PAIA was enacted to give effect to the constitutional provisions.  It was a misnomer that information contained in the budget of the intelligence services would give another country an advantage.  It was not necessary to include highly sensitive information in the budget documents.  Section 199 of the Constitution required the intelligence services to be transparent and accountable.  She was confident that a request for the release of budget documents that was made in terms of PAIA would succeed.

Ms O’Connor acknowledged that it was difficult to obtain a warrant from a Judge to scan the airwaves.  However, provision should be made for the destruction or disposal of irrelevant information gathered during bulk communication interception exercises.  The Bill allowed for the interception of foreign signals and exchanges between foreign and/or domestic servers but there was no requirement for the approval of a Judge.  The regulations were not made public and the content was unknown.  The right to privacy was a basic human right and South Africa was obliged to conform to international agreements to protect universal human rights.

Ms Mgabadeli asked why SAHA had attached the Protection of State Information Bill to the submission.  She asked if SAHA supported the Presidential Proclamation concerning the amalgamation of the intelligence services under the SSA.

Ms O’Connor replied that the Bill was included with the submission as all Members of the Committee might not be au fait with the issues.  SAHA had no particular view concerning the amalgamation of intelligence services, provided that the requirements for transparency were satisfied and that the services were subjected to parliamentary oversight and public scrutiny.

Mr Maynier asked the Chairperson to clarify whether or not the reports of the Auditor-General on the intelligence services were publically available.

The Chairperson advised that the reports of the Auditor-General were included in the annual report of the JSCI and therefore in the public domain.

Mr Sonto was also concerned with the need to balance confidentiality with transparency.  Section 14 of the Constitution dealt with the rights of individuals

Ms S Williams-De Bruyn (ANC) pointed out that the report of the Matthews Commission had no status in Government.  She noted that most of the submissions included references to this report.

Mr Ramatlakane asked if SAHA had any specific suggestions about how the issue of extraneous information should be dealt with in the regulations or in the legislation.

Ms O’Connor responded that the Matthews Commission had assessed the extent of transparency in the intelligence services and found that the services operated in a manner that did not conform to the Constitution.  This finding was endorsed by legal opinion.  It was a simple matter to include a provision that required the disposal of irrelevant information within a specified timeframe.

The Chairperson remarked that all democracies were challenged by the conflicting needs of transparency and confidentiality.  The Committee noted the point made that legal opinion on the constitutionality of the operation of the intelligence services had been obtained.  He thanked SAHA for the submission.

Right to Know Campaign (R2K) submission
Mr Murray Hunter, R2K National Coordinator, explained the background to the establishment of the Right to Know Campaign and presented the submission to the Committee (see attached document).

R2K believed that the Bill effectively broadened the policy framework in which the SSA operated and was not limited to mere technical amendments.  R2K was concerned that the Bill maintained the broad domestic mandate of the SSA, expanded the Agency’s powers to monitor and intercept domestic communications without adequate regulation or judicial oversight and would diminish public oversight of the Agency.  The organisation supported the concerns raised by the Matthews Commission and endorsed the recommendations calling for a review of the White Paper.  The Bill was introduced before a review of the White Paper on Intelligence had taken place.  The organisation suggested that the Bill was not proceeded with until the public participatory review process had been completed.

The submission commented on the mandate of the SSA in more detail.  The main concerns included the definition of ‘national security’; the provision for extraordinary protection of the SSA; the provision for including economic matters in the mandate of the Agency; the expansion of the SSA’s mandate in the definition of ‘counter-intelligence’ and the broad definition of ‘domestic intelligence’.  The organisation suggested that the SSA’s domestic intelligence mandate was reviewed and restricted to clearly and narrowly defined threats to national security.

Mr Vinayan Bhardwaj, Member of Right to Know Campaign, presented the section of the submission dealing with the provisions concerning the interception of communications.  The main concerns were the lack of judicial oversight for the interception of foreign signals; the definition of ‘foreign signals’ might include domestic signals and the need to regulate bulk interception or environmental scanning activities.  The organisation suggested that communication interception activities were included in the legal framework governing the Agency.

In conclusion, Mr Hunter said the impact of the Bill was far-reaching.  The proposed amendments were not merely technical but represented a shift in policy.  The Bill failed to address the danger inherent in the broad domestic mandate of the SSA.  The lack of adequate regulatory and judicial oversight over the interception of communication signals was a major concern.  R2K suggested that the Committee considered the recommendations included in the report of the Matthews Commission and allowed a more thorough public participation process when processing the Bill.

Discussion
Mr Fihla advised that the process of reviewing the White Paper on Intelligence had commenced.  He said that the international nature of criminal activity required governments to be pro-active but a legal requirement for a warrant signed by a judge before communications could be intercepted would be reactive.  There could be circumstances under which intelligence services would have to intercept signals before a warrant could be obtained.

The Chairperson explained that the RICA warrant procedure took some time and it might be necessary to obtain judicial approval after the event in certain cases.  Most governments undertook bulk communications interceptions as a matter of course and information was passed on to other countries when necessary.  The Committee was aware of the need to protect the right to privacy and that communication interception would have to be regulated.

Mr Sonto observed that the Right to Know Campaign appeared to agree that the process of reorganising the intelligence services was necessary but that the process was being rushed.  He asked for clarity on how public oversight of the SSA would function.  He reiterated that the report of the Matthews Commission had no status and that any arguments based on the recommendations of that Commission could not be accepted.  He asked for more detail on what the domestic mandate of the SSA should be.  He disagreed that the definition of ‘national security’ was inadequate.  He was not convinced by the argument that the definition of ‘foreign signals’ might include domestic signals and found the submission to be lacking in definite statements on this point.

The Chairperson asked for clarity on the statement made concerning the burden of proof in the interception of communication signals.

Mr Bhardwaj replied that any surveillance is an invasion of privacy and must therefore be subject to stringent control.  RICA specified the standard of proof that was required for the issue of a warrant.

Mr Hunter said that RICA included provisions if reasonable grounds existed for the retrospective approval of a judge to undertake communication interceptions.  The government was compelled to comply with international treaties on the protection of the right to privacy.  RICA came into effect in 2002 and most of the problems were encountered subsequently and were not covered by the regulations.  Provision should be made in the legislation for public oversight of the Agency, including the annual report and budget.  It was unfortunate that the report of the Matthews Commission had no status but the content of the report was in the public domain.  The report included valid recommendations that should be addressed.  The definition of ‘national security’ continued to be under debate as part of the NCOP Ad Hoc Committee deliberations on the Protection of State Information Bill.

Mr Maake was critical of the submission, which he felt did not include specific suggestions on how the concerns that were raised should be addressed.

The Chairperson noted that the Right to Know Campaign had raised a number of concerns but did not offer any solutions.  The Committee would welcome suggestions and proposals.

Mr Hunter replied that the Right to Know Campaign was a non-prescriptive organisation.  He referred the Committee to the submission of Professor Laurie Nathan, which included specific recommendations.

Mr Bhardwaj said that the Matthews Commission had addressed the matter of judicial authorisation of interceptions.  In certain countries (e.g. the UK, USA, Canada, Australia and New Zealand) it was not required but in other countries a warrant had to be obtained.  The Commission was of the opinion that a warrant should be required in South Africa and had obtained legal opinion on the issue.  RICA required a warrant to be issued.

Mr Hunter added that it might not be practical to obtain a warrant from a judge before signals were intercepted but such proviso was necessary to protect the rights of citizens.

The Chairperson repeated the situation regarding the non-status of the Matthews Commission report.  The matter was unfortunate but the decision of Government had to be respected.

Ms Mgabadeli asked for further clarity on the organisation’s point of departure concerning the absence of a public participatory review process.  The requirement to invite public comment on the Bill had been satisfied.  She asked if Prof Nathan and SAHA were members of the Right to Know Campaign.

The Chairperson pointed out that the issues referred to under section 1.1 of the submission arose from the Matthews Commission report.  The matter of the Commission had already been dealt with and required no further response.

Mr Hunter said that the point regarding the status of the Commission’s report was noted.  The Right to Know Campaign endorsed the recommendations and had included them in its submission, which might be given consideration by the Committee.  Prof Nathan was a member of R2K but had made his submission to the Committee in his own right.  Prof Nathan was an acknowledged expert in intelligence matters.  The main concern regarding the interception of signals was not the gathering of intelligence by such means but rather the violation of the individual’s rights to privacy and to information.

Mr Bhengu felt that the Right to Know Campaign was out of order to claim the Matthews Commission recommendations as its own.  The main purpose of the Bill was to amalgamate the intelligence services under the SSA and he considered the other matters to be side issues.

Mr Ramatlakane asked if the Right to Know Campaign insisted that the concerns about the broad domestic mandate of the SSA were addressed in the Bill rather than in regulations.

Mr Hunter said that the Bill did not address the urgent concerns over the role of the SSA, which should be dealt with before any legislation was promulgated.

Mr Maynier said that the report of the Matthews Commission included valid findings, despite the lack of status.  He suggested that the Committee allowed Prof Nathan and the Institute of Security Studies (ISS) the opportunity to present a verbal submission to the Committee at a later date.

Mr Maake called a point of order as the issue of the Commission’s report had already been dealt with.

Mr Sonto felt that Prof Nathan and the ISS had submitted detailed written submissions.  It was unfortunate that they were not able to attend the public hearings.

The Chairperson advised that Prof Nathan and the representative from the ISS were both abroad and were unable to present verbal submissions.  Mr MC Negres was unable to attend and offered his apologies.  Dr Motodi Maserumule had not responded to the Committee’s invitation to attend the public hearings.  He explained the procedure that would be followed by the Committee in processing the Bill.  The Committee would give due consideration to the input provided during the hearings and in the written submissions.  The thanked the attendees for their participation.

The meeting was adjourned.