The Committee resumed deliberations on the General Intelligence Laws Amendment Bill.
The Member representing the Democratic Alliance was requested during the previous meeting of the Committee (on 26 February 2013) to submit a written document setting out the party’s concerns regarding the Bill. The Committee debated the three major issues that were raised, i.e. the centralisation of the security services under the State Security Agency; the broad mandate of the Agency (in particular the exclusion of ‘political intelligence’ from the mandate of the Agency) and the adequacy of the proposed provisions regarding foreign signals interceptions.
Members were not convinced that the fears related to the alleged involvement of the Agency in ‘political intelligence’ were justified and argued that adequate oversight mechanisms were in place to deal with rogue elements in the security services. The Bill should not single out members of political parties as being exempted from surveillance as other organisations could also be affected. All political parties agreed that anyone engaged in unlawful activity should be investigated. Transgressions by the security services should be reported to the South African Police Service or the Inspector-General of Intelligence.
The Member from the DA requested that the position of the African National Congress on the issues that had been raised over the Bill was submitted in writing but the ANC Members felt that the position of the party was adequately reflected in the records of the meetings of the Committee.
The Member representing COPE suggested that the legislation included a caveat setting out what lawful activity of organisations would not be subject to the attention of the security services.
The Member from the DA was requested to draft a clause that would address the concerns of the party and submit it to the Committee for consideration at the following meeting.
Deliberations on the General Intelligence Laws Amendment Bill
The Committee noted the apology of Mr A Maziya (ANC).
The Chairperson advised that the Committee had requested Mr D Maynier (DA) during the meeting held on 26 February 2013 to submit a written document listing the key issues he wished to have debated. He had received a copy of the document but had not had the opportunity to study it. The Committee was currently engaged in considering the issues that were raised during the public hearings on the Bill. The Committee’s support staff had prepared a summary of the issues for the Members. Members were also copied with the written submissions that were received during the public hearing process. Subsequently, the Minister of State Security had indicated that the provisions concerning the National Intelligence Coordinating Committee (NICOC) would be withdrawn from the Bill. Currently, NICOC did not fall under the auspices of the State Security Agency (SSA) and the Coordinator of NICOC was appointed by the President. The Minister had requested the Committee to decide on the provisions concerning foreign signals interceptions. The remaining provisions in the Bill were of a technical nature.
The Bill amended three principal Acts, i.e. the National Strategic Intelligence Act, 1994, the Intelligence Services Oversight Act, 1994 and the Intelligence Services Act, 2002. The clauses being amended had been highlighted in the copies of the three Acts provided in order to assist Members during the deliberation process.
Mr N Fihla (ANC) was of the opinion that the fears expressed by Mr Maynier about the centralisation of the security services under the SSA were exaggerated. The intelligence structures were already in existence and no changes were being made to the work being done. The changes merely allowed the issuing of a consolidated annual report. “Centralisation” meant that the current structure was dismantled and reconstituted under a single organisation. The various intelligence agencies would be headed by Deputy Directors-General, reporting to the Director-General of the SSA. Government needed to have speedy access to intelligence information and the proposed consolidated structure would allow for information to be accessed via a single source.
Mr Maynier explained that the document that was submitted to the Committee put the position of the Democratic Alliance on the formation of the SSA on record. The establishment of the SSA was not at issue as the entity was established by Presidential proclamation in 2009. The major issues were the broad mandate of the SSA and the Agency’s involvement in ‘political intelligence’.
The Chairperson pointed out that the mandate of the SSA was not being broadened as only the existing functions of the intelligence agencies were involved. He disagreed that there was such a concept as ‘political intelligence’. He disagreed that the legislation should make any reference to the exclusion of a member of a political party (or any other organisation for that matter) as it could not be assumed that such a member could not be involved in criminal activities. Any person involved in illegal activities should be subject to investigation by the law enforcement agencies. Permission to intercept communication signals had to be granted by a Judge, which was not easily given. Any system could be abused, which was the reason why oversight structures such as the Joint Standing Committee on Intelligence (JSCI) existed. If the fear was that high-profile politicians were subjected to unwarranted surveillance, the same fear should apply to other high-profile persons, such as business leaders.
Mr Maynier understood the Chairperson’s argument to be that the term ‘political intelligence’ was not relevant and that adequate oversight mechanisms were in place. His concern was that the SSA had been involved in the interception of the communications of politicians in the past. He had proposed three possible solutions, including a legal provision that engagement of a member of a political party in lawful activity, activism and dissent were excluded from the mandate of the SSA. He had gained the impression that the Minister and the Acting Director-General of the SSA were not averse to the idea. The provisions in the Bill concerning issues of national security should be the same as the provisions in the Protection of Information Bill.
Mr J Maake (ANC) asked what was meant by ‘lawful activity’ and if the proposal was intended to prevent an intelligence operative from attending political gatherings to ascertain whether the gathering was lawful.
Mr D Stubbe (DA) made his comments in Afrikaans. There was no dispute that unlawful activity by a politician should be dealt with but the day-to-day, normal operations of a political party should not be subject to surveillance by the intelligence agencies. The legislation should draw a clear distinction between lawful and unlawful activity.
The Chairperson provided a translation of Mr Stubbe’s comments. The point was that it was unlawful if political parties were subjected to surveillance for the purpose of gaining intelligence on their activities.
Mr Maynier said that the issue was not restricted to political parties but also affected trade unions and civil society organisations. The SSA had no role to play in the lawful activities of these organisations.
The Chairperson pointed out that no Government entity (including the SSA) was allowed to do what it likes. Guidelines and priorities were set by the Cabinet. The Government Departments and entities were required to develop strategic plans in accordance with the priorities and submit annual reports to Parliament. The entities were subject to audit by the Auditor-General. Oversight was conducted by the relevant Parliamentary committees and permission must be obtained for any deviation from the guidelines and priorities that had been set. He acknowledged that the possibility of a rogue operator existed but the remedy was to strengthen the oversight mechanism.
Mr Maake did not understand the logic behind including provisions referring to certain entities. Intelligence activities should be proactive and he did not have a problem with surveillance operations for the purpose of ascertaining that no illegal activity was being engaged in.
Mr Fihla referred to the intelligence policies and measures taken by the United States of America (USA), which were far more stringent and punitive than was the case in South Africa. The reason for the tight security was to ensure the safety of citizens. Nobody should be immune from investigation.
Mr Maynier asked if Mr Maake was comfortable with the idea that the domestic intelligence branch of the SSA kept the lawful activities of the African National Congress (ANC), the South African Communist Party (SACP) and the Congress of South African Trade Unions (COSATU) under surveillance.
The Chairperson ruled that Mr Maake would not be required to respond to the question. The Committee would not indulge in debate over innuendo or unproven suspicions. Any evidence of unlawful activity should be reported to the South African police Service (SAPS). SAPS and the SSA were represented at NICOC, which would address instances where more than one intelligence agency was involved in an investigation. He felt that adequate measures were in place to prevent abuse of the system and suggested that the debate on the issue was laid to rest.
Mr L Ramatlakane (COPE) suggested that the approach should be based on the premise that registered political parties were legal entities engaged in lawful activity. He suggested that the proposed legislation included a caveat that would provide the necessary protection for lawful activity. Should evidence of any illegal activity be found, this should be dealt with as such activity could endanger the State. In this case, the legislation should make provision for what action needed to be taken. Legislation should not include any provision that would be open to differing interpretation. He said that South Africa should not be compared to the USA.
The Chairperson said that the existing legislation included the premise suggested by Mr Ramatlakane. The DA had suggested that provision was made to exclude the lawful activity of political parties from surveillance by the SSA but there were numerous other entities that should enjoy the same privilege. He assumed that the concern arose out of the accusation that telephone conversations of politicians were being intercepted. The SSA should not be prevented from investigating unlawful activity by any political party. Legislation generally dealt with unlawful activity. The intention of the legislation could be described in the introduction to the Bill. He reiterated that the oversight mechanisms should be strengthened in order to deal with the fears that had been expressed and suggested that the representatives of political parties participated in the Parliamentary oversight committees.
Mr Maake explained that his questions were intended to gain clarity on whether the DA advocated a prohibition on any intelligence interest in political activity. Surveillance or intelligence from a whistle-blower could give warning if a political rally would turn violent.
The Chairperson repeated his assertion that there was no such thing as ‘political intelligence’.
Mr Stubbe repeated the position that there was no objection to the need to deal with unlawful activity.
Mr Maynier asked if there was a provision in current legislation that made it illegal for the domestic intelligence branch of the SSA to place the members of a political party under surveillance. He asked what recourse was there for the JSCI to remedy the problem if there was no such legal provision.
Mr Maake said that the SSA must obtain the permission of a Judge before a listening device could be installed. The Judge was required to report to the JSCI on all requests for surveillance that were submitted.
The Chairperson suggested to Mr Maynier that he reported any cases where he had factual evidence of unlawful activity by the SSA to the Inspector-General of Intelligence (IGI). The IGI also reported to the JSCI.
Mr Maynier concluded that there were no legal provisions preventing the SSA from placing any organisation under surveillance. The Bill proposed to make the interception of foreign signals subject to the Regulation of Interception of Communications and Provision of Communication-related Information Act (RICA). He asked if the law allowed the SSA to use other methods to gather intelligence, for example informers.
The Chairperson explained that NICOC prepared the National Intelligence Estimates, which were submitted to the Cabinet and which informed the priorities that needed to be addressed. He repeated the existing systems in place regarding the development of strategic plans and the oversight mechanisms. He pointed out that the intelligence services did not have the resources to waste on immaterial matters. Whistle-blowers were relied on to expose rogue operations.
Mr Ramatlakane observed that in practice, problems with the interpretation of legislation arose outside the Parliamentary oversight committee process. He felt strongly that the legislation should specify clearly what was considered to be lawful activity as there were many examples where things went wrong because the legal provisions were not clear. He was concerned that the concerns of Members were not being heard. The Committee could make suggestions on what provision should be included in the Bill. He recalled that Ministers had expressed concern that their telephone conversations were being monitored prior to the ANC’s Mangaung conference. That kind of thing should not be allowed to happen and the law should be clear on it.
Mr Fihla agreed that there were some misunderstanding between the Members of the Committee. He was of the opinion that the intelligence services would only undertake surveillance operations if there was a suspicion of unlawful activity.
Mr Stubbe quoted the provisions in Chapter 11 of the Constitution, which specified that a lawful political party was exempted from surveillance by the security services. He suggested that the proposed legislation was aligned with the provisions in the Constitution.
Mr Maake agreed that the Constitution was supreme and protected all citizens.
The Chairperson asked Mr Maynier to draft a clause in the Bill that could be considered by the Committee at its following meeting. The State Law Adviser could provide assistance if necessary.
Mr Fihla disagreed that the Committee should even consider such a clause but the Chairperson felt that there were clearly opposing views on the issue and that Members would be better able to decide on the matter if they could debate a suggested legal provision.
Mr Maynier agreed to the request. He also suggested that the ANC position on the issues that had been raised over the Bill was put in writing and that the committee commissioned a legal opinion from the Parliamentary Legal Adviser on the existing legal provisions that allowed the SSA to conduct surveillance on political parties and on the proposed provision to subject foreign signals interceptions to RICA.
Mr Maake pointed out that the position of Members was made clear during the meetings of the Committee, which were recorded.
The Chairperson agreed that the ANC’s position regarding NICOC and the consolidation of the security services under the SSA was clear. The Bill should not deal with the National Communications Centre (NCC) at all. The Committee would proceed with deliberations on a clause-by-clause basis and Members needed to consider if any additional matters should be dealt with in the Bill. The discussions and the input that had been received from Members to date had been useful.
Mr Ramatlakane asked for a more detailed record of the public hearings on the Bill. The Chairperson suggested that he made use of the report issued by the Parliamentary Monitoring Group. The meetings of the Committee were recorded and the recordings and minutes of the meetings were available to Members.
The meeting was adjourned.
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