GILAB: Public Participation Report; Constitutional matters raised

Meeting report

Report of the Ad Hoc Committee on the General Intelligence Laws Amendment Bill on the Public Participation Process
The Committee Content Advisor commenced the proceedings by delivering a report on the Public Participation Report. She informed the Chairperson and the Committee that the report would only touch on specific topics outlined in the document provided to Members. She said the report is structured into four main sections: stakeholder engagements, public provincial hearings, national hearings, and written submissions.

It was indicated throughout the meeting that the responsibility of Parliament is not only to codify what public participation is but also to facilitate it. The meeting was not convened to deliberate on the report but to listen to it and for Members to seek clarity on the processes and the modalities of compiling it.

Dr Wilhelm Janse Van Rensburg, Committee Researcher, dealt with both the oral and written submissions starting from page 51 of the report. He indicated that several requests were made by those who made submissions.
In his interaction with the Committee, the Parliamentary Legal Advisor, Mr Nathi Mjenxane, provided counsel on the constitutionality of the Bill and its processes.
 

See report here https://pmg.org.za/tabled-committee-report/5711/
 

Discussion

The Chairperson thanked the staff, and invited Members of the Committee to engage on the report.  

Ms D Kohler-Barnard (DA) raised concerns about the public participation process regarding the Intelligence Bill. She acknowledged that there were participants in the public hearings who claimed they had not been adequately informed about the Bill. Some even requested a thorough explanation of the Bill during the hearings, suggesting that the initial steps or instructions by a separate division of Parliament may not have been effectively carried out in some areas.

Ms Kohler-Barnard questioned whether it fell within the Committee's jurisdiction to request a report from the division responsible for informing the public about the Bill. She specifically mentioned concerns about the venue change for hearings, such as in Pietermaritzburg, where the hearing was moved from an urban to a rural area, potentially impacting the accessibility of information about the Bill. She emphasised the need for a more inclusive process. She suggested that, while the public hearings may have met formal requirements, there were still areas of concern regarding effective communication and engagement with the public.

Overall, Ms Kohler-Barnard requested a report from the responsible division, which would provide insight into who was informed about the Bill, especially in cases where the venue or other logistical aspects may have hindered public access to information. She believed this information was important for the Committee to ensure a more inclusive and effective public participation process.

Mr B Hadebe (ANC) began by expressing gratitude for the presented reports, characterising them as comprehensive, useful, and progressive. He acknowledged the reports' guidance in identifying relevant issues and addressing concerns.

He specifically highlighted the thorough discussion of recommendations from the High-Level Review Panel, underscoring their significance. Mr Hadebe also noted the need for clarity on certain points, such as whether all recommendations from the High-Level Review Panel were adequately addressed and if certain legislative aspects, particularly those related to defence, were sufficiently covered.

Further, he raised questions about the rationale behind certain decisions, such as sequencing topics in the national security strategy. Mr Hadebe sought clarification on whether certain aspects, like the sequence mentioned, aligned with the overall strategy and objectives. In addition to these points, he expressed interest in legal considerations, particularly regarding what would be deemed reasonable, such as in cases of public access to information.

Responses
Mr Mjenxane began by emphasising the constitutional mandate for parliamentary committees to ensure public participation in the legislative process. He clarified that this obligation arises from the Constitution's provisions, which require Parliament to create opportunities for the public to engage directly in the lawmaking process and stressed that this duty entails more than just a formality. It necessitates meaningful engagement with the public.

Mr Mjenxane elaborated on the concept of ‘reasonable opportunity’, when it comes to mobilise public participation, explaining that it encompasses various measures in order to facilitate public participation. These measures include providing adequate information about the proposed legislation, translating documents into different languages, organising consultation meetings in accessible locations, and offering transportation for participants. By implementing these measures, Parliament aims to ensure that all members of the public, regardless of their background or location, have a fair chance to contribute to the legislative process.

Regarding the specific issues raised within the Intelligence Bill, Mr Mjenxane indicated they had thoroughly analysed the document from a constitutional perspective. He stated that, overall, they did not identify any significant constitutional concerns beyond those already addressed by his colleagues. However, he highlighted two key areas of concern within the Bill, namely, definitions and divisions.

Mr Mjenxane expressed apprehension about potential ambiguity and confusion stemming from the Bill's definitions and divisions. He suggested that unclear or ambiguous language could lead to misunderstandings or misinterpretations of the legislation, which may ultimately undermine its effectiveness. He further added that these issues could potentially infringe upon individuals' rights, particularly the right to privacy.

Mr Mjenxane emphasised the importance of aligning the Intelligence Bill with constitutional principles and ensuring it effectively fulfils its intended purpose. He reminded the Members of the Committee about Parliament's responsibility to uphold the rights of individuals while crafting legislation. He urged thorough consideration of these issues in the Bill's review process.

The Chairperson then interjected, warning Members that they are now starting to deliberate yet the set date for deliberations is the next Friday. He asked whether there was a response to the questions he raised regarding the defence.

The Content Advisor asserted that the input provided critical insights from their involvement in the High-Level Review Panel. She also expressed concern that, while the initiative to amend the Intelligence Bill was progressive, it fell short of fully implementing many of the panel's recommendations.

She highlighted specific areas where the Bill lacked alignment with the recommendations, such as the issues surrounding the Inspector-General (IG), agent independence, and the National Intelligence Coordinating Committee (NICOC). She emphasised the importance of addressing these discrepancies to ensure effective implementation of the panel's recommendations.

Further, she discussed the need to differentiate between legislative obligations and policy considerations. She suggested that there should be a clear framework for evaluating and measuring the effectiveness of intelligence agencies' operations, especially concerning ongoing investigations.

She also underscored the significance of the High-Level Review Panel's recommendations in guiding legislative changes and strategic overhauls within the intelligence community. She emphasised the need for a coherent strategy that aligns with legislative requirements and supports effective implementation.

In conclusion, the Content Advisor stressed the importance of informed decision-making and strategic planning to ensure that legislative changes effectively address the challenges faced by intelligence agencies and support their operational effectiveness.

Follow-Up Discussion
Ms Kohler-Barnard raised a follow-up question regarding the responsibility for driving the establishment of the national security strategy. She expressed concerns about the frequent turnover of Ministers in charge of this responsibility, highlighting the challenges this presents for the Committee. Ms Kohler-Barnard noted that, during her tenure, there had been several ministers in this role, which she found problematic.

She sought clarification on whether it is solely the Minister's responsibility to drive the establishment of the national security strategy or if other entities are involved. Ms Kohler-Barnard also questioned whether it would be feasible or advisable to legislate the annual review of the strategy to ensure continuity and accountability.

Overall, her inquiry aimed to understand the process and stakeholders involved in shaping the national security strategy and to explore potential measures to address issues related to ministerial turnover and strategy review.

The Chairperson responded to Ms Kohler-Barnard's question by indicating that they believe the responsibility for developing the national security strategy should lie with the relevant department. They suggested that the strategy should originate from within that department and then be referred to the Committee for consideration. The Chairperson expressed frustration that, despite this being the Department's responsibility, they had not yet received any communication or documentation regarding the strategy. They acknowledged that there seemed to be a lack of action or communication on this matter from the Department, which was concerning.

Dr Janse Van Rensburg provided his response to the issues raised by the Chairperson, referring to specific pages in the document for clarity. He referenced a recommendation received from the FW De Klerk foundation regarding domestic intelligence collection in preparation for potential deployments. Dr Janse Van Rensburg outlined the argument made by the foundation, emphasising the need for uninterrupted collection to prepare for such deployments.

He then delved into the argument regarding the inclusion of regulations for the Defence Force Threats Intelligence Division to fulfil its constitutional mandate. Dr Janse Van Rensburg pointed out a discrepancy in the provisions submitted by some groups, suggesting that it only addressed domestic deployments specified by the Constitution, rather than broader deployments covered by the Defence Act.

Dr Janse Van Rensburg concluded by emphasising the need to consider whether such provisions should be included in the legislation directly or handled through operational methods and regulations. He stressed the importance of ensuring alignment with both the Defence Act and the Constitution in addressing intelligence collection for deployments.

The Chairperson further probed the adequacy of the existing legislation in addressing the concerns raised. They sought clarification on whether the current legislation provided a sufficient foundation to address the issues at hand or if additional provisions were necessary. The Chairperson's question aimed to understand if the existing legal framework adequately covered the matters being discussed or if further amendments or additions were required to address any gaps or deficiencies.

Dr Janse Van Rensburg responded by emphasising that further examination of the issue was necessary. He reiterated the argument made regarding the need for the Defence Force to collect domestic intelligence, which he indicated was not currently addressed in the legislation. Dr Janse Van Rensburg suggested that the existing legislation did not encompass provisions that allowed for such domestic intelligence collection by the Defence Force.

Mr Mjenxane responded by affirming the power of Parliament to enact legislation. He clarified that the White Paper on the National Security Strategy outlines government's policies and objectives in this regard. However, he noted that there might be limitations in terms of actionable measures outlined in the White Paper, suggesting that it may not fully address the practical aspects required for effective implementation. Mr Mjenxane’s response highlighted the importance of ensuring that legislative measures are in place to support the objectives outlined in policy documents such as the National Security Strategy.

Mr Hadebe asked whether certain aspects should be reflected in the Act itself or if regulations would suffice. He expressed concerns about ensuring the protection of privacy and safety in relation to the implementation of the Act.

The Chairperson responded, indicating that Mr Hadebe seemed to suggest that certain issues could be addressed through regulations rather than explicitly stated in the Act. The Chairperson emphasised the importance of carefully considering which matters should be addressed through primary legislation and which could be left to secondary legislation or regulations.

Mr Mjenxane then responded, explaining the role of regulations and their limitations. He clarified that regulations cannot grant additional powers beyond what is provided for in the Act itself. Regulations are typically used for operational matters, while the Act establishes the legal framework and principles. Mr Mjenxane stressed the importance of ensuring that regulations adhere to the principles set out in the Act and do not overstep their authority.

Overall, the deliberations highlighted the importance of properly delineating the roles of primary legislation and regulations in ensuring effective implementation and protection of rights within the legal framework.

The Chairperson sought clarity on the current constitutionality of the Bill, asking whether it met the required standards, before any further discussion took place.

Mr Mjenxane responded by stating that, in their view, the Bill as it stands would not meet constitutional requirements based on the issues outlined, particularly in relation to execution and support. He emphasised the need for further examination and potential revisions to ensure the Bill aligns with constitutional principles.

The Chairperson expressed his gratitude to the support staff and the Members of the Committee.

The meeting was adjourned.