Protection of Information Bill & State security: Ministerial & National Intelligence Agency briefings

Meeting report

Protection of Information Bill: National Intelligence Agency continuation of briefing
Advocate Premjith Supersad, Legal Advisor, National Intelligence Agency, noted that the previous presentation to the Committee on the Protection of Information Bill (the Bill) had discussed the Bill up to Clause 31. This presentation would proceed from that point.

He noted that the Bill currently had included mention of offences around espionage, hostile activity and harbouring or concealing persons involved in espionage or hostile activities. Unauthorised access to, interception of or interference with classified information was also covered. The Bill dealt with registration of intelligence agents and related offences. Clause 32(1) criminalised espionage offences and prescribed a minimum sentence of imprisonment for a period not less than 15 years but not exceeding 25 years, subject to Clause 1(6). He noted that Clause 1(6) was an interpretation clause, which included various definitions. It formed the basis for the minimum sentences.

Clause 32(1), (2) and (3) dealt with the different categories of classifications. The minimum sentences varied according to whether the information that was leaked was classified as secret or top secret.

Clause 33 focused on hostile activity offences. The minimum sentence under this category, where top-secret information was involved, was imprisonment for a period not less than 18 years but not exceeding 25 years. If secret information was involved, the minimum sentence was imprisonment for not less than 10 years but not exceeding 15 years.

Clause 34 addressed the situation where any person harboured or concealed another person who was either known or suspected to have committed a hostile offence or espionage. The person harbouring or concealing would be guilty of an offence and the minimum sentence was a period of not less than 5 years and not more than 10 years.

Clause 35 dealt with computer related information. It focused narrowly on the interception of or interference with classified information. The minimum sentence ranged from 2 to 10 years. Clause 35(6)(e)(i) to (iii) addressed Information Technology (IT) offences, especially where information was stored in any mechanism or device.

Clause 36 was concerned with the registration of intelligence agents and related offences.

Clause 37 focused on the attempt, conspiracy or inducing of another person to commit an offence. Adv Supersad emphasised that the prescribed minimum sentence in this section applied to the person who had attempted, conspired or induced another party to commit an offence.

Clause 38 related to the disclosure of classified and related information. The minimum sentence was imprisonment for a period not less than 3 years but not exceeding 5 years. This clause had to be read in conjunction with Clause 18. Clause 18 provided for a fine, or imprisonment of not less than 3 years but not exceeding 5 years, or both a fine and imprisonment.

Clause 40 was directed towards information peddling and dealt with the provision of false information to National Intelligence structures. The minimum sentence was a period not exceeding 3 years but not more than 5 years.

Clause 41 dealt with the destruction or alteration of valuable information.

The provisions in Clause 42 were intended to relate to the improper classification of information. This clause was a control mechanism that forced the necessary State authority to classify documents accordingly.

Clause 43 related to the prohibition of disclosure of a State security matter. The prescribed minimum period of imprisonment would be not less than 10 years. Adv Supersad noted that if it was proved that the publication of the disclosed information took place with the purpose of disclosing this information to a foreign state, the sentence prescribed for espionage offences would be the one that would apply.

Clause 44 dealt with the extra-territorial application of the Act. Any of the crimes identified in the Bill would be punishable if committed outside the country.

Clause 45 required the National Director of Public Prosecutions to deploy senior counsel to prosecute these types of offences.

Discussion
Ms H Mgabadeli (ANC) expressed concern over the similarities between the crimes, sentences and the definitions.

Adv Supersad replied that there was a difference between espionage and hostility offences. Espionage related to the disclosure of information to a foreign state, which would directly or indirectly benefit that foreign state. Hostility offences were defined as those where the disclosure of information directly or indirectly prejudiced the home State. The Department had considered the sentences in detail, and these were now contained in the submission of this Bill.

Mr T Coetzee (DA) asked if it was standard procedure that a piece of legislation should effectively prescribe minimum sentences, reducing the discretion of the judges.

Ms Xoliswa Mdlulu, Principal State Law Advisor, Office of the Chief State Law Advisor, replied that it was standard practice to prescribe punitive measures for offences in a Bill. If the Department was silent on the desired sentences, the judiciary would make use of the Adjustment of Fines Act, which was prescribed and determined by the Minister of Justice.

Mr Siyabonga Cwele, Minister of State Security, added that the Bill did not prescribe maximum sentences. He agreed that it was common practice for some legislation to prescribe a minimum sentence. It was the view of Cabinet that the sentences had to be included in the Bill, as the offences were serious. He added that there was nothing unconstitutional about prescribing minimum sentences in legislation.

Mr D Maynier (DA) referred to Clause 33, which covered hostile activities. He questioned whether this Clause did not pose some danger for whistle blowers who disclosed information that revealed corruption within the organs of State.

Adv Supersad replied that in the scenario envisaged by Mr Maynier, the merits of each case would have to be assessed. One of the main questions would be how the particular whistle-blower came to be in possession of the document. If a whistle-blower was in possession of classified information and was aware that he/she was not supposed to hold this information, then he/she would have committed an offence in terms of the Bill.

Mr Maynier asked if this answer from Adv Supersad then was suggesting that whistle-blowers faced prosecution under the “hostile activities” clause of the Bill, and asked the Minister to comment whether this was not then likely to discourage whistle-blowers.

The Minister replied that the Bill did not discourage whistle blowers. He said that the main point was how the information would be handled once it was in the hands of a whistle-blower. Whistle-blowers would not be imprisoned for exposing wrongdoing. Acts that prejudiced the State were different from whistle-blowing. Whistle blowers were indeed encouraged to come forward.

Mr Maynier said he would like to pose a hypothetical scenario for comment. If a Member of Parliament (MP) was in possession of a classified document that exposed wrongdoing, he might decide to call a press conference, might release the document to the media, and thus would be acting in the public interest. However, according to the “hostile activities” clause in the Bill, that MP could be prosecuted. He said again that this would discourage whistle blowing.

The Minister replied that the hypothetical scenario was not entirely consistent. If a person was in possession of a document, this did not mean that the person should call a press conference. Instead, whistle-blowing entailed informing the relevant authorities. In the scenario outlined, the MP in possession of the document should take the document to the relevant authorities. Espionage was an offence against the State.

Ms Mgabadeli commented that there should be a bridge between the previous Act and the current Bill.

The Chairperson asked what political and policy considerations had been taken before the Bill was presented.

The Minister replied that espionage activities had increased over the last few years and undermined the development of the country – including espionage in relation to research, intellectual property and technology. In cases where South Africa was a leader in the development of certain technology, the information related to that technology had to be protected, to prevent it being stolen and developed by other governments to their own benefit. Harm could be caused to the State where information was disclosed to criminals. The Bill was trying to protect the State. Information peddling was the disclosure of false intelligence reports to State agencies that caused serious harm. They were very dangerous for the stability of the State. An example of this was the Browse Mole Report. These were the challenges that the Department faced.

Ms Mgabadeli questioned the sentences set out in the Bill, in light of what the Minister had said, and suggested that the Department must seriously consider those sentences.

Mr L Landers (ANC) asked what was the international best practice for Bills of this nature. He asked how countries such as the United Kingdom, America, and Australia compared. He also asked that the Department draw a comparison with international penalties and offences, since he believed that the Bill had to be similar to other countries’ legislation.

The Chairperson agreed, and said that he thought that the sentences were too lenient. He asked the Department to note the request from Mr Landers.

Mr Maynier said that espionage was a serious offence and the Minister had said that incidences of espionage were increasing. He asked how many people had been arrested, prosecuted and convicted over the past 15 years for the crime of espionage. He also asked how many cases of information peddling had arisen over the last 15 years.

The Minister said that the issue was not so much how many cases of espionage or information peddling occurred, but how extensive was the damage caused by the espionage or information peddling actions of individuals involved in these crimes. Globally, there were few cases of espionage and information peddling. He pointed out that if information peddling was not clearly defined as a crime, then individuals would hide behind reasons such as acting in the public interest or claiming that they were investigative journalists.

Ms Mdlulu added that it might be difficult to provide statistics for something that was not a statutory offence.

Mr Maynier posed another scenario. He asked whether an offence of information peddling would occur if an arms deal dossier, allegedly compiled by certain members of the ruling party, was then furnished to opposition Member Ms Patricia De Lille, who then subsequently released information contained in that document.

The Chairperson noted that the Minister was as confused as himself regarding the scenario posed.

The Minister said that his confusion related to the fact that he was not aware of Members from the ruling party who had drafted such a document. There was a process in government where investigations by State agencies resulted in the release of a report in Parliament. The scenario posed was not helpful. The Minister was not aware of any document, as referred to by Mr Maynier.

The Chairperson asked if the question was specific, or if it was an example only.

Mr Maynier replied that in 1999, MP Patricia De Lille had spoken from a dossier that was released to her. He repeated his question whether those compiling the dossier had committed the offence of information peddling.

The Chairperson said that the question was unfair, as it proceeded on the assumption that the Minister knew where the information came from, and what was in the dossier.

The Minister said that there was no intention in the Bill to hide wrongdoing. The Bill wanted to protect the disclosure of classified information, as well as the destruction of valuable information.

Mr T Coetzee (DA) asked if the Bill would not pose the danger of dragging the country back into covering things up, as had occurred in the apartheid era.

The Minister referred to Clause 42, which he said should allay the fears of Mr Coetzee. The public benefited from the Promotion of Access to Information Act (PAIA). Even PAIA had excluded access to certain information. Over-classification or wrong classification of information was addressed in the Bill, which in addition had guidelines as to how documents should be classified.

The Chairperson commented that it was clear that there was a need to protect State information. The Bill was trying to protect all information that was in the State's hands, including the personal information of its citizens. There had to be some sort of protection, as people who worked in the intelligence field handled sensitive information.

Mr Maynier said that the Bill seemed to have a lot of cost implications, yet the Bill, on page 28, stated that there would be no cost implications. He questioned how this was possible.

The Minister replied that at the time of the drafting of the Bill, it was difficult to assess the costs involved. The transition and phasing in of the Regulations to allow for the implementation of the Bill would also allow the departments to start budgeting for the implementation costs. The Bill was implementable, but would need additional work from State security agencies,  as more individuals had to be trained.

Mr Landers said that the Committee’s concerns arose from experience. Often, when legislation was reviewed after three years, there were implementation problems, as Departments were scrambling to find funds that were not allocated in the first place. This would often result in the legislation not being implemented since the costing exercise was not performed properly. State security entities may be ready to implement the Bill according to their own budget, but this may not be the case for other State departments.

The Chairperson summarised that the Minister would be monitoring the progress of the Bill in Parliament, and he would come back with a report on the financial implications of the Bill.

Mr Coetzee asked what the position was in relation to information that was classified prior to 1994, especially since some of it could still cause harm for the country and certain individuals. He also asked if the Minister agreed that the Bill would restrict the freedom of the media.

The Minister replied that the Bill had a maximum period of protection totalling 20 years, and that it made provision for review after ten years. If it was decided that certain information should continue to be classified after the prescriptive period, then there had to be justifiable reasons furnished for such decision. All parties, including State security agencies, had to be sensitive to the fact that South Africa was still a young democracy. The clauses were drafted in such a manner that care should be taken where documents were being declassified.

The Minister said that there was no clause in the Bill that limited the freedom of the media. The Bill was not saying that journalists should stop getting involved in investigative matters. It was, however, prescribing procedures that had to be followed when classified documents were being handled.

Mr Maynier said that the freedom of the press was Constitutionally guaranteed. With all due respect to the Minister, he said that although the intention may not be to limit the press, he thought that the effect of the Bill may well have that outcome. He cited Clause 18 of the Bill as an example of the effect of the Bill on press freedom. He suggested that the Minister must be blind to suggest that the Bill would not have this effect.

Mr Landers raised a point of order. He said that the Committee seemed to be departing from asking questions of clarity and moving to debating the Bill. The purpose of this meeting was to seek clarity on particular clauses.

The Chairperson said that Mr Maynier was perhaps transgressing in his last comment, and agreed that it was not the appropriate time to debate the Bill. Mr Landers’s comments were correct. The Committee was trying to familiarise itself with the Bill so that it could understand what it was attempting to legislate.

The Minister laughingly responded to Mr Maynier that he was not blind, and suggested that Mr Maynier should read Clause 18, loudly, to himself. This clause had been carefully crafted. He questioned whether Mr Maynier was suggesting that the unlawful possession of classified information should be allowed simply because it was held by a journalist. He restated that the clause was not a blanket restriction on press freedom, and there was no intention to impose such restrictions in the Bill.

State security briefings: Open and closed sessions
The Chairperson announced that the Minister had asked that the next presentation be available for Committee Members only, as it contained a lot of sensitive information.

Mr Maynier commented on this request. The Constitution required that Committees should conduct their business in an open and transparent manner. If the information was not to be disclosed in open session, then the Minister should provide reasons why the information could not be disclosed, such as that it might prejudice an existing State security operation, or prejudice or endanger the life of a serving member of the security services. Failing this, there was no reason why the meeting should be closed.

The Chairperson responded that there should be no argument and he did not agree with Mr Maynier’s criteria.

Mr Landers asked for the rules regarding closed sessions.

The Chairperson said that if the meeting was not going to be closed, then it would be the prerogative of the Minister to withdraw the presentation. The purpose of the meeting was to enlighten the Committee members on what mischief the Bill was intended to address. It would not be desirable for the Committee to have to vote or for the Chairperson to rule on this issue.

Mr Landers read Rule 152 which dealt with the exclusion of the public. This read: “Meetings of committees and sub-committees are open to the public, including the media, and the members may not exclude the public, including the media, except where:
(a) legislation, rules or resolutions of the Assembly provide for the committee or sub-committee to meet in a closed session;
(b) the committee or sub-committee is considering a matter that is
(i) of a nature that is prejudicial to particular persons
(ii) protected under Parliamentary privilege or for any other privilege in terms of the law
(iii) confidential information in terms of legislation; or
(iv) of such a nature that its confidential treatment is for any other reason reasonable or justifiable in an open and justifiable society.”

He noted that Mr Maynier was covered by the Rules. There were, however, exceptions. The decision lay with the Committee.

Ms Mgabadeli added that the vast majority of the public referred to in the meeting had been excluded and this was wrong.

The Minister said that the Department could make a presentation containing extracts only and then, in a closed session, the Department could provide detailed answers. It was up to the Committee to decide how it wished to handle the matter.

The Chairperson ruled that the presentation should go ahead, but that either questions would be answered in a closed session, or the Minister could choose which questions he believed he could answer in this session.

Mr Maynier agreed with the Chairperson. However, he added that where the Minister chose to not answer a question, then he should give reasons why he could not answer and the Committee would decide how to proceed further.

Ms Mgabadeli vehemently disagreed, and said that the Minister could not be asked to furnish reasons why he could not answer a particular question.

Mr N Fihla (ANC) said that it was common practice to hold closed meetings.

The Chairperson ruled that if the Minister did not want to answer any questions, then he was not obliged to do so. He said that Mr Maynier’s suggestion could not be enforced.

Nature of Espionage and Information Peddling: National Intelligence Agency (NIA) briefing
Mr Sinthumule Ramabulana, General Manager: Counter Intelligence, National Intelligence Agency, said that his presentation would focus on information peddling and its impact. It was the view of State security agencies that information peddlers remained the source of mistrust in post-Apartheid South Africa, by creating both inter-and intra-political dynamic instability. This phenomenon also existed elsewhere on the African continent. Information peddlers compiled conspiratorial documents based on snippets, inferences and innuendo, which would then be circulated and sold to unsuspecting clients. Information peddlers also served as parallel intelligence entities, whilst deceiving authentic intelligence agencies. The majority of these individuals came from former apartheid security and intelligence agencies. Many came from the Special Tasks Unit of the South African Defence Force (SADF), or the Covert Collection Directorate (CCD). Some came from the Vlakplas unit. The NIA had observed that the majority had experience in stratcom operations. They were involved in smear campaigns, entrapment campaigns, destabilisation, dirty tricks, propaganda, deception and conspiratorial tendencies. There was evidence proving the existence of these activities.

These individuals had a massive network on the African continent. These activities were in particular noted in the Southern African Development Community (SADC) region. The clients and targets of information peddlers were covert intelligence structures, law enforcement agencies and foreign intelligence services, media agencies, and journalists. Some journalists were aware of the information peddling, whilst others did not know about it. The clientele comprised politicians in South Africa and in war torn regions, as well as local political parties. Information peddlers provided “intelligence” that looked authentic to intelligence and law enforcement agencies, in order to provide disinformation. This resulted in intelligence agencies getting a distorted third picture. A number of states on the African continent had acted on information provided by information peddlers. The situation would become worse where their analysis capacity was not functional. These individuals also fronted for foreign mission intelligence services. They were involved in illegal business deals, which involved extortion and blackmail. On the continent, information peddlers provided disinformation, fanned conflict, provided private intelligence services and were involved in espionage and subversion. They drew false intelligence reports that nonetheless contained some elements of truth, and would use these documents to secure contracts.

Information peddlers were also involved in illegal interceptions, as some of them owned private security companies. In most instances the public would think that government agencies were doing illegal surveillance. Information peddlers were also involved in clandestine operations, which interfered with individual rights, as well as unregulated gathering of intelligence.

In 2003, a document was leaked to the City Press newspaper and the former Directorate of Special Operations, making wild implications about the Mozambique government as well as members of the ruling party. There were lists circulated, implicating members of the ruling party as having worked for former apartheid agencies. These documents were likely to be accepted as accurate once they were in the public domain, and often resulted in accusations being made. He cited the “Report to the Honourable Patricia De Lille of the Independent Democrats”, which falsely implicated various individuals from various sectors in the alleged ousting of the former president. The Special Browse Mole report was also false. There were many other documents that had been circulated, implicating South Africa and other African countries in various matters.

NIA had therefore had to review its intelligence estimates. These individuals posed a real danger to the stability of South Africa and Africa. If this was not corrected, then South Africa's young democracy would be destabilised. This conclusion was based on thorough investigations and scrutiny of documents.

Discussion
The Minister reiterated that the information presented was based on thorough investigations. Some of the perpetrators had been arrested and confessed to producing false intelligence reports, but were unable to be charged and were released. He stressed that information peddlers targeted not just the ruling party, but all parties. Their motives were money related.

Mr Maynier asked why such information peddlers had not been charged with other offences such as illegal surveillance. He also enquired as to the capacity of the State to deal with this phenomenon.

The Minister replied that charging the information peddlers with illegal surveillance would not be enough to stop them, as this was only one of their tools. The biggest threat lay in what they did with the documents that they produced. With current capacity, the State could prove that certain individuals were behind certain false intelligence reports.

Mr Coetzee expressed concern that once the documents were in the public domain they were left there without much being done to rectify the situation. He asked how this could be prevented.

The Minister replied that the aim of information peddlers was to cause divisions in society, but also to gain control in the government or access its resources. The new Protection of Information Bill would allow for persons producing false documents to be prosecuted, thus protecting the public.

Mr Maynier asked if plans had been put in place to enable State security agencies to have enough capacity to properly analyse information.

The Minister replied that government had anticipated this problem in the early 2000s, and there was adequate capacity of State analysts at all levels. South Africa had amongst the best analysts in the world, who had been through a rigorous process. The problems existed not so much within the intelligence structures, but other State agencies, but there was increasing cooperation.

Mr Coetzee asked if the Bill could not include a provision allowing for prosecution of journalists who were in possession of, but were not publishing information that contradicted the information put out by the information peddlers.

The Minister replied that the intention was not to regulate the media, but rather to protect the State and stop information peddlers.

Ms Mgabadeli said that the Committee should bear in mind that the media was also involved in what the State was trying to protect.

Mr Maynier asked if the Committee could obtain a copy of the presentation.

The Chairperson replied that Mr Maynier could see that the presentation was marked as classified. It would not be made available unless the Minister asked differently.

Mr Maynier said that the presentation had been made in public, with the media present, and surely there were no reasons for the document to be withheld.

Mr Landers said that the decision was up to the Minister, and it should be remembered that a compromise had been made. Mr Maynier's request was not acceptable.

Mr Fihla said that the Minister had agreed to a compromise in the first place and believed that it was not fair to make further demands.

The Chairperson noted that the Minister was not comfortable with the release of the document. It would not be released.

Mr Maynier said that he respected the decision but wished it placed on record that he disagreed with it.

The meeting was adjourned.