General Intelligence Laws Amendment Bill [B25-2011]: Response to the Public Hearings by Department of State Security

Meeting report

The Chairperson noted the apologies of Mr J Thibedi (ANC) and Ms H Mgabadeli (ANC).

Responses to the issues that were raised during public hearings on the General Intelligence Laws Amendment Bill [B25-2011]
The Chairperson advised the Committee that he had been informed by the Minister that the issues that had been raised during the public hearings on the Bill would not be responded to.  There were no further proposals or recommendations to amend the Bill.  Members of the Committee would therefore only consider the submissions received and the matters arising from the public hearings.

Dr Maserumule had made a written submission but had not responded to the Committee’s invitation to present a verbal submission during the hearings.  He arrived at the venue where the hearings were held after the meeting was adjourned.  The Chairperson had discussed Dr Maserumule’s concerns with him but found that there were no issues that required further action.

The intelligence community comprised Crime Intelligence, Defence Intelligence and State Security.  There were a number of institutions operating in the intelligence sector, for example the National Intelligence Agency (NIA), the South African Security Service (SASS), the South African National Academy of Intelligence (SANAI), the National Communications Centre (NCC) and Electronic Communications Security (Pty) Ltd (COMSEC).  The National Intelligence Co-ordinating Committee (NICOC) was established in accordance with Section 210 of the Constitution and was intended to coordinate the operations of the various intelligence entities.  The head of NICOC was appointed by the President.

The Bill amended the structure of the intelligence sector.  The various intelligence entities would be incorporated under the State Security Agency (SSA), reporting to the Minister of State Security.  The Bill repealed the COMSEC Act.  Many of the concerns arising from the public hearings and the written submissions received by the Committee were related to the consolidation of the security structures under the SSA.

Mr D Maynier (DA) asked if the Committee would be dealing with matters of procedure as well as the substance of the submissions.  He felt that there was merit in inviting persons who had made substantial submissions to brief the Committee, for example Prof Laurie Nathan was unable to attend the public hearings.  He said that the Committee’s deliberations would be strengthened by a briefing from the Inspector-General of intelligence.  He asked if the Rules of Parliament compelled a Department to provide a response to public submissions on a Bill.  In his experience, this had been the case on other Bills.  The Joint Standing Committee on Intelligence (JSCI) had to consider and deliberate on the Bill as well.  He was concerned that a parallel process would take place and asked the chairperson to explain what process would be followed by the JSCI.  He was concerned that the JSCI would consider the Bill in closed sessions.

Mr N Fihla (ANC) pointed out that the JSCI was required to deal with all relevant legislation.  There was no parallel process involved.

The Chairperson said that the Intelligence Services Oversight Act included provisions concerning the functions and responsibilities of the JSCI.  Section 3 of the Act made provision for the JSCI to consider all legislation pertaining to intelligence services and activities.  The Act did not specify how the deliberations would be conducted and the interpretation of the provision was a matter for the JSCI.  He expected the JSCI to do carry out its function in a manner that would not compromise the work done by this Committee.  The JSCI would inform the Committee of any recommendations.

Mr Fihla agreed with Mr Maynier on the issue of the lack of response to the public submissions on the Bill.

The Chairperson said that the Minister had made it clear that there would be no response, which in itself was a response.  The Minister had said that there was no intention to make any changes to the Bill.  He had a verbal discussion with the Minister and did not have written confirmation.

Mr Maynier asked where any recommendations from the JSCI on the Bill would be sent.  The JSCI tended to conduct closed meetings and he found it unusual that deliberations on a Bill were not open to the public.  He asked for clarity on whether or not a departmental response to public submissions was a requirement according to the Rules as it was generally the practice.  Interesting points were made in the submissions and the response of the Department would be useful.

Mr L Ramatlakane (COPE) asked if the Department had indicated that no comment on the submissions would be forthcoming.  He asked if the Committee could request the Department to provide comment.

Mr A Maziya (ANC) remarked that it was the usual practice for a Department to provide comment on the issues that were raised during public hearings on a Bill.  The Department rather than the Minister would assess the submissions.  If the JSCI did not require a response, the matter could be taken further.

Mr F Bhengu (ANC) pointed out that the Members of the Committee were the legislators, rather than the Department.  Representatives from the Department had attended the public hearings.  The Committee had invited submissions and called for the public hearings and should respond to the submissions received.  The Committee would inform the Department what needed to be done.  He felt that it was not necessary to invite Prof Nathan and the other persons who had submitted written comment but were unable to attend the hearings to present verbal submissions.  He suggested that the Committee proceeded with deliberations on the Bill and discuss the issues that had been raised during the public hearings.

Mr J Maake (ANC) said that the Department had to be present when the Committee approved the clauses in the Bill.  He agreed with Mr Maziya and Mr Bhengu that the Committee should proceed with discussions on the submissions and general deliberations and not delay the processing of the Bill.

Mr Maynier said that the Committee’s deliberations would be strengthened if the Department’s comments on the issues that had been raised were known.  The submissions included suggestions concerning foreign signals interceptions, the violation of the right to privacy and that the NCC should be subject to the Regulation of Interception of Communications and Provision of Communication Related Information Act (RICA).  It would be useful to know if the suggestions and proposals were practical and feasible.

The Chairperson advised that there was no Rule requiring a Departmental response to public hearings.  It would appear that Members of the Committee were in agreement that deliberations on the Bill should be proceeded with and that the Department would be required to attend the proceedings at a later stage.  The Ad Hoc Committee would receive a response from the JSCI, regardless of whether the process followed by that Committee was open to the public or not.  The Ad Hoc Committee would not respond to the outcome of a closed session.

Mr Maake asked if the Committee would consider the submissions before deliberating on the clauses.  He wanted clarity on the process that would be followed by the Committee.

The Chairperson invited Members to comment on the submissions in the first instance.

Mr Fihla referred to the submission from the South African History Archive (SAHA).  SAHA promoted the right of South Africans to all government information.  However, this right was not absolute and certain types of information were classified.

Mr Ramatlakane suggested that the Hansard transcription of the public hearings were obtained.  The transcriptions would assist Members to check the responses to the submissions during the hearings.

Mr Maake awaited a response to his question concerning the process that would be followed.  Several key issues emerged from the hearings and he suggested that a list of the issues was compiled.  The issues could then be debated systematically.

Mr Maynier agreed that the Committee needed a system.  Either a list of the key issues was made or each submission received was considered.  What was omitted from the Bill was another issue.  The Department had indicated that the Bill was technical in nature.  However, a new institution was being created but the mandate of the intelligence structure was not being amended.  The SSA had become involved in the gathering of political intelligence.  The definition of counter-intelligence included reference to sedition and new active measures were included.  The Committee had to give careful consideration to the mandate of the SSA when considering the Bill.  He asked when the Committee would meet with the Inspector-General of Intelligence.

The Chairperson said that the Committee would decide whether or not a meeting with the Inspector-General would be held.  The matter would be postponed until the other issues had been dealt with.  It was not normal practice to request the Hansard record and he would not approve the expenditure.  Members had copies of the submissions and could refer to their notes.  There were other sources of information available to Members and the Committee Secretary could be approached for assistance.  The time available to each entity making verbal submissions had been restricted and they were asked to limit their input to the main issues.  The information in the written submissions was more detailed than what would be included in the Hansard transcripts.  He had listed the key issues that had been raised in his opening remarks.  The process followed by the Committee was not intended to exclude other matters but it was preferable that the Committee first debated the issues before proceeding with the clause-by-clause deliberations.  The type of intelligence is not the major issues but security agents should not be engaged in unlawful activities, such as intercepting communication signals without a warrant issued by a Judge.  Counter-intelligence was one aspect of intelligence operations.  It was difficult to prescribe the manner in which intelligence personnel should conduct themselves, particularly during under-cover operations.  The Committee did not have its own Researcher and the services of the JSCI Researcher were being used.  He had requested a summary of the public hearings and submissions from the Researcher, which was not yet available.  Copies of the report would be made available to the Members.

Mr D Stubbe (DA) suggested that the Committee discussed the merit of the inclusion of the various intelligence entities under the SSA in the Bill.  For example, SANAI would report to the SSA in future.  The suggestion in the submissions that Intelligence should have its own Budget Vote was worthy of consideration.

Mr Maake noted that the submissions made no reference to SANAI.  Members were raising issues that were not dealt with during the public hearings and he asked the Chairperson to provide direction on what matters should be discussed during this stage of the process.

Mr Bhengu said that the submissions were not explicit on the amalgamation of the security services under the SSA and few referred to the intention of the Bill.  No mention was made of the fact that the new White Paper on Intelligence had not been issued before the Bill was introduced.  He suggested that the Chairperson clarified on what would be discussed at the following meeting of the Committee.

Mr Fihla suggested that the Committee dealt with the less complex submissions first.

Mr Ramatlakane agreed that the Hansard transcripts would not be necessary and that the Committee’s record of the public hearing proceedings would be sufficient.  Members should be allowed to include matters for discussion that were pertinent even though the issue was not raised during the hearings.

Mr M Sonto (ANC) said that it was not advisable to list key issues for discussion without taking into consideration what the intention of the Bill was.  The clause-by-clause deliberations would follow at a later stage.  The Committee could only consider issues that were raised in the submissions which were relevant to the Bill.

Mr Maynier was of the opinion that a list of key issues would allow the Committee to have a constructive debate.  The Committee required guidelines on the process that would be followed for the Bill.

Mr Maake agreed with the suggestion that further discussion was postponed until the process was clarified.

The Chairperson remarked that it was important that the Committee derived the optimum value from the input provided by the public submissions and the Department.  The Committee had invited submissions and called the public hearings on the Bill.  The input received during the hearings could not be ignored.  He undertook to make the summary of the hearings available to the Members.  Certain issues were raised in more than one submission and it would not be necessary to debate each individual submission.  The Committee could not assume that the opinion of the Office of the State Law Adviser was necessarily correct.  He urged Members to familiarize themselves with Chapter 11 of the Constitution.  Members had to be aware of the provisions of Section 209 of the Constitution, which dealt with the power of the President to create intelligence structures and to appoint the head of these structures.  Section 210 made provision for the establishment of the Coordinating Committee (i.e. NICOC).  Other general clauses were relevant as well, for example Section 199 dealt with the training of security personnel (i.e. SANAI).  These issues did not arise during the public hearings but had to be considered by the Committee.  The Committee needed to report that it had duly considered the constitutionality of the proposed legislation.  If necessary, the Committee could obtain legal opinion.  The Committee had to ensure that the legal provisions were properly captured in the Bill.  Consideration had to be given to what the function and responsibility of the SSA would be.  The Committee had not yet received clarity on this matter.  The Committee had to keep in mind that the new White Paper on Intelligence and amendments to the SSA Act would follow the Bill.  He undertook to communicate the process that would be followed for the Bill to Members.  He would write to the Department and to the Minister and communicate the Committee’s view of the further input that would be required from them.

The next meeting of the Committee was scheduled for 4 May 2012.  The Chairperson warned Members that the Committee’s Programme would have to be amended.

The meeting was adjourned.