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INTELLIGENCE LEGISLATION AD HOC COMMITTEE
17 September 2003
GENERAL INTELLIGENCE LAWS AMENDMENT BILL: DELIBERATIONS
Chairperson: Dr S Cwele (ANC)
General Intelligence Laws Amendment Bill [B47-2003]
Written representations on the General Intelligence Laws Amendment Bills, 2003
The Committee a series of deliberations on the General Intelligence Laws Amendment Bill. It had invited Mr D Dlono, Head of the Ministerial Services, and his Legal Adviser, Ms T Netshitenzhe, to hear the Minister's position and provide clarification on concerns raised during previous meetings. The most problematic issue regarded regulatory powers over movable and immovable property and whether there was concurrence with the Minister of Finance.
The Chairperson expressed his desire to finalise the General Intelligence Laws Amendment Bill by Monday 22 September in order to allow enough time for proofreading. The Committee expressed that there would be a few problematic issues that required detailed discussion but there should be no problems with the finalisation of the Bill on time.
Brigadier General Schalkwyk (DA) began with the Strategic Intelligence Act 67 of 2002, Clause 3. He proposed to replace "or" with "and" at the end of the sentence to make the section more practical. He then referred to the amendment of section 2A that added "in the prescribed manner" and asked if the insertion of that phrase negated his earlier concerns.
Mr D Dlono (Head of the Ministerial Services) emphasised that Cabinet had decided that all public servants should go through a security competence test as captured in the last year's amendment. The issue of access to sensitive information was crucial regarding ways to conduct security testing. Certain elements and regulations needed clarity. The amendment that added "in a prescribed manner" sought to straighten those issues out.
Ms T Netshitenzhe (Legal Adviser) presented a document entitled 'Written representations on the General Intelligence Laws Amendment Bills, 2003' and explained that the paper covered concerns tabled in the past week.
The issue of concern was the insertion of "in the prescribed manner" between "the relevant members of the National Intelligence Structures may conduct a security screening investigation" and "to determine the security competence of a person if such a personâ€¦". The intention was to clarify that the Minister for Intelligence Services could, if s/he deems fit, issue regulations on how security clearance should be conducted. The Ministry received no comments from the public and was awaiting comments from the Ministries of Safety and Security and Defence. The Executive recognised that the National Intelligence Structures did not have the capacity to conduct security clearance of all applicants and employees of organs of state and therefore would, through regulations of the Minister, streamline the levels of personnel who had to be cleared.
Intelligence Services Oversight Act, 2002
The issue raised regarded the secondment of the member.
Mr Landers (ANC) asked for clarity on what was meant when saying "in terms of the laws governing the secondment in question".
Ms Netshitenzhe explained that these were laws that governed the secondment of people by the Commissioner and the Chief of the Defence Force. The general principle was that when people were seconded from one department to another, they were not being integrated into the new department but were there temporarily. They were governed by the laws of their department of origin.
Intelligence Services Act, 2002
Issues regarded the meaning of immovable property and whether there was any concurrence with the Minister of Finance.
The Department intended to restrict the acquisition and sale of immovable property only to the Minister and to allow the Director-General to exercise the rest of the powers (movable property) through delegated authority by the Minister, within the framework of the Public Finance Management Act. Currently both acquisition of movable and immovable property could not be done by the Director-General without the approval of the Minister.
In the new proposed amendments to clause 11, subsections (a) and (b) would not be delegated to the Director-General, and (c) and (d) would be. If this amendment was adopted by the Committee, there would be a consequential amendment in the delegation section.
Mr E Ferreira (IFP) said that last year the Committee had decided that the "immovable property" could be acquired with the concurrence of the Minister of Finance. He asked why that procedure was being changed.
Ms Netshitenzhe said that it was not inserted last year but it had been part of the Act since 1994.
Mr Dlono said that Intelligence was about secrecy and managing human resources to ensure confidentiality and efficiency. If senior government officials were to take responsibility, this could create serious diplomatic problems. The goal behind the amendment was to protect the integrity of the state, to not unnecessarily include certain people in operational processes, and to still comply with accountability mechanisms.
Ms M Olckers (NNP) said the problem was not people but rather immovable property. It was a bad time to insert that amendment into the Bill due to a recent experience of where the JSCI did not have the opportunity to play an oversight role. She preferred for the concurrence of the Minister to remain as is. She questioned why the Minister of Finance was not be involved in the process.
Mr Ferreira accepted that certain operations had to be secretive, but was concerned that the Department seemed to be trying to provide oversight over themselves and internalise all knowledge. He believed this would be a recipe for many problems in the long term.
Mr P Nefolovhodwe (AZAPO) said that that the Committee should decide if there was anything wrong in allowing the Director-General to deal with movable property. The amendment would empower the Director-General to make some of the decisions without consultation with the Minister when the need arose.
Ms Olckers requested that the Ministry of Finance be asked why there was no response from the Minister on that issue. Until an answer was received, the lack of response should be treated as if no consultation took place. In her opinion, the Minister of Finance should still be included.
Mr D Bloem (ANC) said there was Cabinet consultation and approval.
Mr M Booi commented that it was the question of confidence in the government.
The Chairperson decided to flag the issue of consultation.
Ms Netshitenzhe argued that having the concurrence of the Minister of Finance was a duplication of the Public Finance Management Act, because before approval of the annual Budget, the Minister of Finance had to approve acquisition of particular buildings etc.
Mr Ferreira asked why the Minister of Finance should be removed from the process if he would eventually know about it anyway.
Mr Dlono said that the problem did not lie with the knowledge but with the approval of the Minister. Keeping secrecy was not the issue, but rather restricting the operational environment.
The Chairperson suggested they study this matter in the operational context and discuss the topic further at the next meeting.
This issue pertained to the reason the report should be referred to the Minister of Public Service and Administration.
The Department proposed, for the purpose of clarity, to substitute the word "responsible" with "accountable" in paragraph (a) and to substitute paragraph (c) with "the report must not contain confidential information that would be detrimental to national security".
The Chairperson said that there was no controversy with this amendment and that the Committee would pass it in the proposed form.
This issue raised in this clause regarded an expansion in the composition of the Board of Comsec.
The Minister intended that the non-executive directors of Comsec should represent the following disciplines: Information Communication Technology, Audit, Business, Accounting, Engineering, Intelligence, Legal Practice, and Policymaking in order to ensure sufficient capacity. The Board should also be expanded from 9 to 12 members.
Mr L Geen (ACDP) asked about the cost implications involved in hiring an additional three people.
Ms Netshitenzhe said that the current laws on payments to the non-executive directors stated that they did not have to be compensated if they worked for the state. Only outsiders received compensation.
The Chairperson complemented the Committee members for a productive meeting that dealt with the most problematic issues. Further discussion would continue during the next meeting.
The meeting was adjourned.
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