General Intelligence Laws Amendment Bill :State Security Agency briefing

Meeting report

General Intelligence Laws Amendment Bill [B 25-2011]: Department of State Security briefing
Mr Dennis Dlomo, Acting Director General, State Security Agency, tendered the apologies of the Minister, who was out of the country on official business. The Minister had previously indicated that a number of policy processes were under way. A National Security Strategy (NSS) was being processed, with a view to tabling it within three months. The strategy would inform all departments in the state security cluster on the approaches to be adopted

A Presidential proclamation R59 of 2009 had declared the General Intelligence Laws Amendment Bill (GILAB) as a technical Bill. The Bill centralised command and control in the office of the Director General, and would consolidate the previous intelligence structures, National Intelligence Agency (NIA), South African Secret Service (SASS) and the South African National Academy of Intelligence (SANAI). The functional mandates of the domestic and foreign branches would be maintained.

The objectives of the Bill were to centralise executive management services that would standardise norms throughout the new State Security Agency (the Agency or SSA). Prior to the decision to create a single intelligence service, a comprehensive review was undertaken by an inter-ministerial team comprising Ministers of State Security, Police and Defence. That had highlighted three main concerns.

Firstly, the proliferation of statutory structures within the civilian intelligence community led to a situation where there was a lack of coordination, fraught with overlapping mandates and unnecessary turf-battles and wasteful duplication. Secondly, each structure had its own respective corporate services component. Significant funding was directed to corporate support at the expense of operations and technical support. The implementation of these projects did not yield any special results and continued to be costly. Thirdly, there was an absence of information-sharing and co-operation amongst the civilian intelligence structures. This posed a major security risk, and was a vulnerability exploited by adversaries.

He said that the “9/11” security disaster in the USA had resulted from dose-piping, poor coordination and rigid adherence to the “need to know” principle instead of the “need to share” principle. It was necessary to avoid such a situation in South Africa.

The concentration of tactical and strategic intelligence under the National Intelligence Coordinating Committee (NICOC) created a security weakness. This was undesirable and had to be addressed. The Minister decided that the review of NICOC would await the outcome of the national debate following the NSS and the White Paper on intelligence. GILAB sought to create a streamlined, lean and focussed intelligence community that would better serve the needs of the country and its people.

Several ministerial review committees were appointed from 1996, and most recently a Commission was instituted on intelligence. The growth of the intelligence services in non-core areas, and poor service delivery in areas such as vetting was noticed. Threats pointed to a changed operational environment, which required intelligence structures to remain relevant, agile and responsive. Work would continue, as planned, on both the NSS and White Paper on Intelligence.

Threats confronting the nation that had to be attended to included espionage, corruption, and violent crime. Espionage threatened the stability of the constitutional order and institutions in the Republic. It involved broader issues as porous borders, especially around ports of entry. The management, issues of technology and other challenges in the border environment also had to be attended to.

The size and ownership of the private security industry was a threat to the country. The current state of security highlighted South Africa's vulnerability in respect of infrastructure, financial institutions and commerce. Instability in the political system, such as contestation and succession involving violence, was also another threat that remained a source of concern. All these arose as a result of the failure by the first line departments to respond to legitimate issues that people raised.

Corruption hindered the sustainable growth and development of the economy, and was particularly important because of the manner in which it distorted the functioning of the state. Corruption impacted on revenue. Another related aspect was illegal migration, which generated tensions in society and could easily be exploited by crime syndicates and terrorist groups. A further threat related to the exploitation of strategic resources, especially minerals and the energy sector, the defence aero-space armaments sector, research and development institutions; and land. Illicit economy was also a challenge.

The third threat, of organised and violent crime, was particularly pertinent to the well-being and upliftment of the people. This aspect undermined social cohesion of the nation, and threatened the functioning of state institutions. As a sub-category, terrorism was a threatening factor, particularly the use of South African territory as a launch pad for operational planning and fundraising for terrorist activities.

Disasters posed yet another challenge. There was a need for a proper audit of the country’s disaster management capacity.

For all of the threats outlined, there were also further sub-threats.

Mr Dlomo stressed that there was a need to ensure that the service delivery mandate of intelligence was not compromised by any loopholes in legislation. The current law did not adequately provide for the restructured service. Given the scope of intelligence work in South Africa, the country could not afford to operate under a weakened legislative framework.

A lot of work was being done on this area, and would include defining the question of national interest. A Green Paper would shortly be published. These developments were receiving attention at Cabinet level. A clear legislative programme that would take the process to the next level was envisaged.

The Bill was indeed technical and did not introduce policy changes. Mr Dlomo reiterated that the amendments to the intelligence laws were needed to put the operation of intelligence on to a sound legislative footing.

He noted that GILAB repeal and amend a number of other pieces of legislation (see attached presentation for details), such as Electronic Communications Security Pty Ltd, the Security Services Special Account Act; the Labour Relations Act; the Basic Conditions of Employment Act; the Private Security Industry Regulation Act; the Regulation and Interception of Communication and Related Information Act; the Financial Intelligence Act; the Witness Protection Act. In each of these acts, the references to amalgamated structures would be replaced with a reference to the Agency. Any exemptions that were granted to current structures would be transferred to the Agency. The changes would ensure the mandates to delineate roles and functions of the National Intelligence Structures.

GILAB only dealt with the amendment of certain names of structures, like the deletion of the references to the erstwhile South African Secret Service. There would be no implications for the Agency, as it had been agreed that this Bill would not be making any policy changes to the way NICOC operated.

There were, however, implications with regards to vetting. The current arrangement was that the Director General might, after evaluating information gathered during the vetting, degrade, withdraw or refuse to grant a security clearance. A provision on delegation of authority by the Director General had now been made. Departments might, at the request of the Agency, establish vetting field work units as well. Again, this was not a policy change.

GILAB stipulated that no department or statutory body may withhold information from the Agency when such information was reasonably required. All envisaged changes sought, once again, to substitute the amalgamated structures, with a reference to the Agency.

The Minister could currently create posts of Deputy Director-General (DDG) and of Assistant Director General (ADG). This would be amended, and would allow for creation of a post equivalent to the DDG, and the abolition of the ADG. The Bill allowed the Minister to establish branches, chief directorates, directorates with corresponding functions and post structures. The Director General should establish divisions, components with corresponding functions and post structures. The Training Fund currently administered by SANAI would become a Training Fund for the Agency, and this would be administered by the Office of the Director General.

In future, the Director General would be known by that title only, not as both the Director General and Chief Executive Officer. An additional reporting channel would be established. The Director General’s functions would include submitting a report at the end of each financial year on all activities, by the Agency to the Minister. Such a report would be made available to the public, except for classified information. In another shifting of functions, the current arrangement required the Minister to approve construction and maintenance of buildings, but GILAB now also delegated this function to the Director General.

The Bill provided that a member could retire at the age of 55, or any date thereafter, in line with the Public Services Act. If retirement was taken before that age, there would be penalties against the pension fund. A member would be deemed to be discharged if absent without permission of the Director General for a period exceeding ten consecutive days. This amendment would alleviate certain payroll challenges.

All assets, liabilities, rights and duties including funds, resources and administrative records of NIA, SASS, Academy and COMSEC should be transferred to SSA, within six months after commencement of the amendment.

The assets vested in the SSA from the date of transferral would be regarded as having been acquired by the SSA. The Agency had advanced in this regard, following the permission acquired from the Minister of Finance to sign a single financial statement on the activities of the Department. This already was the practice, but was just awaiting consolidation through the passing of the Bill.

The Electronic Communications Security (COMSEC) would cease to exist as a juristic person on the date determined by the Minister. The Companies and Intellectual Property Commission should, upon receipt of a notification by the Director General, deregister the COMSEC as a company in terms of the Companies Act, from the date indicated. No notice or filing fee or other charge would be payable in respect of deregistering COMSEC. Steps had already been undertaken to ensure these issues were attended to. Employees of COMSEC, appointed in terms of the COMSEC Act, would be transferred to the SSA.

In summary, Mr Dlomo concluded that amending the current pieces of intelligence legislation through the General Intelligence Laws Amendment Bill was the most effective approach to follow. The Bill would establish a sound legal footing for an intelligence dispensation that was geared for the 21st century. It would provide legislative certainty for the administration and oversight of the civilian intelligence structures. Finally, it would also provide for a single financial statement for the SSA and its amalgamated structures.

Discussion
Ms C Dikgale (ANC, Limpopo) commented on the section of the presentation dealing with the entrusting, to the Director General, of authority to “degrade, withdraw or refuse of a security clearance after evaluating information gathered”. She suggested that this should be amplified with “after consultation with the Minister or the Presidency”. She said that her suggestion was informed by the recent “Gupta saga”, (where a privately hired jet, carrying wedding guests for the Gupta family, was landed at the prestigious South African Air Force Base of Waterkloof, which was reserved for state dignitaries from abroad). She was concerned that if the responsibility lay solely with the Director General there was a risk of similar other incidents.

Mr Dlomo replied that one of the challenges the Department faced was the vetting backlogs. This was a very serious concern because Government had made it clear that the integrity of public servants was beyond reproach. As part of combating corruption, the Department had to improve on turnaround times for vetting. He noted that unless the function of vetting certificates was delegated, there were severe delays caused by bottlenecks. He noted that when the function was delegated, there would be all the requisite controls for vetting in place. He pointed out that vetting was a daily function, and there was no need to engage in  lengthy consultative processes.

He added that the Department would want to separate political work from operational work, so that there was effective accountability. The independence and protection of intelligence officers from undue political influence was critical. Operational people needed to be accountable for the operational decisions they made. These were the motivations behind the provisions for delegation.

Ms B Mncube (ANC, Gauteng) asked that, before proceeding, the Committee be advised as to whether there were controversial clauses in the Bill. She later withdrew her question.

Mr Dlomo replied although the question had been withdrawn, he would deal with it, and assured Members that the Bill had been agreed to by all parties in the National Assembly, who were on record in the report tabled there. This was a simple and straight/ forward Bill, and even in the media there had not been any controversy.

Ms Dikgale voiced displeasure at the insinuation that there was no controversy on the Bill if it had been accepted by all parties in the NA. She asked if that statement was trying to imply that this Committee should not ask questions because the Bill had been tabled at the NA. It was important that the NCOP Committees were accorded the same respect showed to the NA.

Mr F Adams (ANC, Western Cape) concurred and reminded the Department that Parliament consisted of two houses, the NA and the NCOP. He cautioned that no department need feel buoyed up if the NA had passed a bill without opposition, and reminded Members that there were always external forces that could renege and go to court and oppose the Bill. He asked if any provisions had been made for this eventuality.

Mr Adams asked that the statement, corroborating the Minister, that the intelligence service was present on the ground, should be contextualised in relation to the recent unrest and killing of 34 people at Marikana by police. A recent caller in to a radio show had asked “where was intelligence”, this time in relation to gangs in the Western Cape. He asked if this Bill would stand up to scrutiny by the Constitutional Court, if that route was taken.

Mr B Bekker (DA, Western Cape) wanted to know the kind of feedback received from the NA, especially given that the Bill was apparently passed without any problems.

Mr Dlomo apologised for anything he had said that might have suggested that the NCOP was not important, and assured Members that he was not intending any disrespect and had no expectation that the NCOP would merely “rubber-stamp” a decision by the NA. He assured Members that he wished to show the same respect and decorum to both houses, and he accepted that he had erred in replying to a question that had been withdrawn.

He clarified that unlike the Protection of State Information Bill, which had come to Parliament with “a truckload” of complaints, this Bill was different, and was largely technical. That was all that his response intended to convey. However, he would withdraw his response.

Mr Dlomo said the approach adopted with any legislation was to support members of the Republic who followed the constitutional route in challenging the Bill. For so long as the people used the proper channels provided for by the Constitution, such as peaceful protest, without carrying any dangerous weapons, government and the Department had no problem. However, what was of concern to the Department was when people marched with weapons, planning to kill, disrupt and infringe the rights of others. In such instances, there were intelligence people on the ground to ensure detection of early warnings. There were very few things that happened without the Department being aware of them.

He said the NA had robust engagements on the Bill, and a lot of issues in the original Bill were proposed to NICOC. However, the NA came to the conclusion that the issues were not technical in nature, but were fundamental policy shifts. On that basis, the Minister had suggested that the White Paper process and engagements should first be followed, before making changes to the National Strategic Intelligence Act. He reiterated that the content of this Bill was limited to ensuring that there was alignment of structures in the intelligence community.

Mr D Motsintsi (ANC, Gauteng) sought clarity on the amalgamation of entities. The Committee was informed that oversight work would not be compromised. If all the entities were merged, he wondered which entity would have the responsibility of oversight, and whether SSA would have the ability to report on all the work.

Mr Dlomo replied that oversight would not be compromised by amalgamation. The domestic environment required stringent adherence to particular laws. He cited the interception environment in the country and said it was well regulated and the relevant legislation (RICA) had very clear provisions, with a judge required to authorise interception of communication. Those working domestically needed to be trained and oriented to work with all the applicable domestic laws. The Inspector General (IG) checked for compliance with RICA when issuing certification on domestic oversight.

Although the same provision did not apply in the foreign environment; those working on foreign environments too had an internal directive to which they must adhere. Oversight on the conduct of intelligence would still require that the IG give a report on the conduct of intelligence domestically to the Joint Standing Committee on Intelligence. The same was applicable to the work done by the National Communication Centre.

Mr Motsintsi also sought clarity on retirement age and asked if 55 was now officially the age for retirement.

Mr Dlomo replied that in 1994, during amalgamation of the services, different establishments provided differently for members of the intelligence community. Most of those who came from the former TBVC states (Transkei, Bophuthatswana, Venda, and Ciskei) came in with conditions of service that included retirement at the age of 55, with a penalty, as it was considered early retirement. The Department was obliged not change the conditions of service of those who were amalgamated, when they joined the new structures.

Mr Motsintsi requested the clause on 10 or 14-day-absence from work without permission be clarified.

Mr Dlomo replied the issue was brought about the effective management of the payroll. This was a technical clean-up to better manage extended absenteeism through payment of employees. This would ensure predictability; and would also ensure that officers understood the interpretation of timeframes. Officers would not be paid for being absent. In the past, there had been instances where members stayed away for ten days, moonlighting elsewhere. The Department could not sit with a situation of intelligence officers not accounted for a period longer than ten days.

Mr Adams commented there would always be amendments to legislation, given the threats the country was confronted with. No Act was cast in stone. The threats as highlighted were serious, and the amendments brought in now should have been brought in 1994. He asked, therefore, why the amendments were only proposed now, and what was the urgency for passing the Bill.

Mr Adams commented that intelligence services were not stable, and consideration had to be paid to what was happening now on the continent. This was worrying because intelligence services should be the first people to pick up anything within a state. The country was growing and so intelligence laws needed to be regularly updated. This was an aspect of security that played a critical role in a country, for if pending threats were not detected, the country was at risk of being controlled by syndicates and terrorists.

Mr Dlomo replied that these questions required political explanations. However, he had worked with a series of Ministers - Mr Dullah Omar, Mr John Nhlanhla, Ms Lindiwe Sisulu, Mr Ronnie Kasrils, and the current Minister Mr Siyabonga Cwele - in his portfolio, and they had all attempted reviews on the legislation. There were constant attempts to review the system and see how and where improvements could be made.

He said the Department was obliged by law to conduct an annual national intelligence estimate, to look at the potential threats the country faced. The estimates set priorities, which were then to be approved by Cabinet, as to the focus of intelligence. Members had no reason to fear that the environment was not scanned. As the Minister had indicated on the previous day, the intelligence service was on the ground, acting as the eyes and ears of the nation.

The Chairperson sought clarity on assets and liabilities.

Mr Dlomo replied that when Minister Kasrils was serving in the portfolio, it was mooted that the training academy would be made a department of state. It was later felt that there was no need for that, and that the academy rather needed to become a training component for SSA, dedicated to that function. The infrastructure would become that of the SSA. The transfer of assets sought to consolidate the dispensation under a single accounting officer.

H added that under the previous administration, the Chief Executive Officer of NIA was an accounting officer, with a Chief Finance Officer, and also a Head of Corporate Services. It was felt that this was a duplication, and it created a huge infrastructure. All entities with the Department had the same human resource infrastructure, and that led to a bloated corporate service environment. Now, the numerous posts were to be replaced by a Chief Financial Officer and Head of Corporate Services. One Director General would be put in place. There was an element of saving, for the Department now had to consolidate the asset registers and licenses. The consolidation and transfer of assets was just to ensure that all these infrastructural items fell under one roof.

Mr Motsintsi sought clarity on the risk of compromising the standards on vetting, as a result of delegating. He asked how far delegation would go with respect to the concerned departments of police, defence and intelligence.

Ms Mncube also sought clarity on further delegating vetting. She asked if the backlogs could not be addressed by rearranging the work method, as opposed to delegating. She noted that in respect of the recent Gupta matter, no one accepted responsibility because of delegating. She felt that delegating responsibility would not address the challenges, but would invite more unintended risks.

Mr Dlomo replied that the Department would be guided by this House on the final wording.

Mr Adams requested a pointed answer to the question whether Mr Dlomo believed that the amendment could withstand a Constitutional Court challenge.

Mr Dlomo replied that the Department received legal advice to the effect that the Bill was constitutionally sound.

The Chairperson asked Members to reflect on the amendments, as the Committee would deliberate and finalise the Bill by next week.

Adoption of minutes
The Committee adopted the outstanding set of minutes.

The meeting was adjourned.