General Intelligence Laws Amendment Bill (GILAB): oral submissions

Meeting report

Chairperson's opening remarks

The Chairperson said the General Intelligence Laws Amendment Bill (GILAB) sought to implement some of the recommendations arising from the High-Level Panel (HLP) report, key recommendations from the Zondo Commission, as well as the key recommendations that were made by the panel that had investigated the July 2021 unrest.

The crux of the Bill was to create two distinct intelligence services -- domestic and foreign intelligence structures. The Bill ensured clarity with respect to the responsibilities of the intelligence services and intelligence agency, and also the academy. The Bill strengthened accountability and regulations of intelligence services to ensure that intelligence structures did their work within the ambit of legislative and constitutional mandates.

The Bill also sought to ensure that there was no overreach.

The Chairperson emphasised the importance of public participation in the process. A number of changes have been effected as a result of the concerns that stakeholders raised. One of the concerns was the broad and ambitious definition of national security, which would make faith-based organisations liable for vetting. One of the other concerns was the possibility of allowing members of the intelligence services to make arrests.

The various points that had been made in the public submissions, included the following comments and suggestions:

• The establishment of the evaluation committee in terms of the Secret Services Act of 1978. The evaluation committee should be included in the Bill, which seeks to ensure oversight and checks and balances on intelligence operations.
• The issue of the deputy chairperson of the Joint Standing Committee on Intelligence (JSCI), which he wanted to hear stakeholders’ comments on. The law currently provides only for the position of the chairperson, and does not have a provision for a deputy position.
• The bi-annual meeting between the JSCI and the President.
• The alignment of the annual reporting of the JSCI and that of Parliament
• The appointment of the Deputy Inspector General of Intelligence (IGI) was necessary to ensure the Office functions efficiently and effectively.

Oral submission by COSATU

Mr Matthew Parks, Parliamentary Coordinator, Congress of South African Trade Unions (COSATU), presented the organisation's submission on the GILAB.

COSATU welcomed the revised GILAB tabled before the National Council of Provinces (NCOP), but it was deeply concerned by initial drafts of the Bill released by government in 2023. It felt several of the provisions were not only unworkable but also unconstitutional. As those concerns had been addressed in the current version of the Bill, COSATU was now able to support it as revised, and for it to be adopted by the National Assembly (NA), albeit with certain conditions, including strengthening the Bill to make the findings of the Office of the Inspector General (OIG) binding on state security organs.

The submissions focused on definitions of national security threats, vetting, and the Inspector-General of Intelligence.

(Details of COSATU’s submission in attached presentation slides).

Oral submission by Intelwatch

Ms Heidi Swart, Research and Journalism Coordinator, Intelwatch, said the entity was a non-profit organisation dedicated to research, policy work and advocacy to strengthen public oversight of state and private intelligence agencies in Southern Africa and around the world.

Intel Watch submitted that apart from splitting the State Security Agency (SSA) into various components, the Bill did not address the findings of the 2018 Presidential High-Level Review Panel, the State Capture recommendations, the 2008 Ministerial Review Commission on Intelligence, the 2006 report, and the report on the July 2021 unrest. It was thus of the view that this Bill would not prevent a second state capture.

She highlighted the outstanding definition of national security.

The organisation expressed concerns regarding the oversight structure and mechanism, the JSCI and evaluation committee, and the IGI. It supported the establishment of the evaluation committee with a strong parliamentary component.

It also expressed its view on bulk interceptions, and  made recommendations on security competency tests.

(Details of Intel Watch’s submission in attached presentation slides).

Oral submission by Freedom of Religion South Africa

Ms Liesl Pretorius, Legal Advisor, Freedom of Religion South Africa (FOR SA), said the entity was a non-partisan and faith-neutral legal advocacy organisation mandated to uphold the constitutional right to freedom of religion and related rights.

She said that the Bill generally contained vague, overboard and circular provisions.

The organisation’s approach to the submission was based on the recognition of the vital importance of national security, upholding the Constitution, protecting religious freedom, etc.

She expressed FOR SA's concerns on a wide range of definitions, as well as fact that the concept of threats remained undefined. The organisation also expressed its concern that the B-Bill’s definition of a threat to national security was much shorter than the NA bill.

(Details of FOR SA's submission in the attached presentation slides)

Oral submission by Stellenbosch law faculty student

Mr Bavesh Padayachy, a law faculty student at Stellenbosch University, presented an oral submission to the Committee, and pointed to the vague definitions of national security and threats.

He highlighted that the Bill gave too much discretionary power to the Minister, and said the Bill’s definition of intelligence gathering raised significant privacy concerns.

He questioned whether it was in the best interests of the role of the judiciary to have a former judge in the case of bulk interception authorisations.

He outlined the implications for democracy and constitutional rights.

(Details of Mr Padayachy's submission in the attached presentation slides)

Oral submission by Prof Jane Duncan

Prof Duncan, Professor of Digital Society, University of Glasgow, made an oral submission to the Committee on the GILAB.

Overall, she welcomed the Bill, but highlighted a few concerns:

• The national security strategy and architectural review was long overdue;
• The definitions and mandates of foreign and domestic services were too broad;
• Oversight of foreign and domestic intelligence, such as the binding effect of the Inspector-General’s recommendations, and the position of a deputy Inspector-General;
• Security competency tests;
• Management of bulk interception collected data;
• Definition and arrest of agency members;
• Secret service account and security services special account; and
• The Minister’s involvement in operational matters.

(Details of Prof Duncan's submission in the attached presentation slides)

Prof Duncan indicated that she had spoken to the evaluation committee, the Inspector-General and the deputy chair of the JSCI, and agreed that having a deputy position was a good idea to provide stability in the leadership of the JSCI. However, she highlighted the loss of institutional memory that Parliament went through every five-year term. There was a glitch in the transition between new Members and departing Members, and the JSCI almost had to start from afresh. Having a deputy chair position doubled the chances of one of those Members who had served on the Committee in the previous term, and would thus retain the institutional memory which could enrich discussions.

She supported the bi-annual meeting between the President and the JSCI, since it would address the many problems involving the President and the intelligence structures, including the JSCI. There was currently a huge backlog on policy and legislative issues that needed to be attended to due to the lack of a meeting schedule.

She agreed with the alignment of the reporting cycles of the JSCI and Parliament, because there were situations where there could be a discrepancy of between 18 months to two years, resulting in reporting inconsistency.

She sought clarity from Parliament as to whether the Bill would be held over for the next Parliamentary session, as there would be risks if that happened.

Discussion

The Chairperson responded to Prof Duncan that Parliament was determined that the Bill should be concluded within its current term as a legacy of this administration. Should there be conflicting issues, such as new amendments, etc., referral would have to be made to the Ad Hoc Committee of the National Assembly. If that Committee agrees with the recommendations of this Committee, then there would be no problem. Should there be disagreements, then those issues would have to be looked at again. There was also the platform of the mediation committee that could address disagreements, but obviously the Committee would want to avoid that.

Ms S Shaikh (ANC, Limpopo) noted COSATU’s support for the Bill, and asked Mr Parks for his comments on the submission that the findings of the IGI, and the intelligence organs that were constitutionally mandated to carry out monitoring, should be made binding.

She addressed Ms Swart on Intelwatch's concern over the problematic nature of the definition on national security. Given the international and national changes in intelligence safety and security, she asked whether circumscribing what national security meant would not limit the intelligence services to operate in instances of emerging threats that had not yet been contemplated.

She noted Intelwatch’s submission that the Bill did not sufficiently provide for the independence of the IGI, the JSCI and the Auditor-General (AG). Did the organisation not think that the proposals related to strengthening the JSCI, which the Chairperson had listed earlier, addressed its concerns to some extent?

The Chairperson noted Mr Padayachy’s input that significant discretionary power was conferred upon the Director-General (DG) and the Minister, and this raised concerns over checks and balances. He therefore asked Mr Padayachy which powers the Minister should not confer upon the DG if such power was to be limited by the Bill.

He asked Mr Padayachy for his interpretation of the definition of national security in relation to s181 of the Constitution. Given the changing nature of intelligence safety and the security environment both nationally and internationally, would circumscribe what national security meant not limit the ability of intelligence services to deal with emerging threats that were not yet contemplated?

He sought clarity from Mr Padayachy on the statistics that were provided in slides 7 and 8, and indicated that he got a sense that there was no distinction that those inputs that were related to the Bill as it was introduced to the NA, and were not public views as amended through the NA process. It could create confusion that the statistics related to the current Bill, which was untrue.

The Chairperson asked Prof Duncan for her view on the disestablishment of the State Security Agency and how the new architecture would be. The contentious bulk interceptions issue had been addressed in the NA process of the Bill. Prof Duncan was concerned that too much detail in the management of bulk interceptions was being kept in the revision, and should be in the primary law. He asked her what provisions should be provided for in the Bill at the minimal level.

He also noted Prof Duncan’s remark that the Bill was silent on reforms that were needed for governance of the Secret Service account. He therefore sought clarity as to why she did not think the establishment of the evaluation committee would address that concern.

He asked her what the critical aspects were that should be covered in the national security strategy and should be considered by the Department.

Stakeholders responses

COSATU

Mr Parks reiterated COSATU’s support for the Bill because the organisation had seen the significant improvements made to the Bill in the NA process.

On bulk communication interceptions, COSATU was fine with the foundation clause, the prescription, and the former judge in the Bill. Judges had deep knowledge of the law and practical, judicial and institutional memory. They were also a respected authority in society. He was of the view that the regulations of the Bill should be drafted quite soon -- six months after the Bill was passed into law. He emphasised that the public participation process should also be included in drafting regulations, as per the standard practice with respect to all laws and regulations. Given the history and sensitivity, he suggested that the regulations should be coming through the JSCI for further consultation.

He noted the complaints that had arisen from the Office of the Inspector-General (OIG) that the office had been undermined by state security, etc. The Bill should grant the office more autonomy on staffing issues, as it was ridiculous that the IG could not even appoint a personal assistant.

He expressed his concern that the IG had indicated to Parliament in the past that many of their findings were ignored by state security, and recommended that the IG’s findings should be binding. Similar to the position of the public protector, the OIG's findings should be binding as well.

He agreed that the JSCI should be able to request the IG to undertake investigations, since Members of Parliament (MPs) were representatives of citizens.

Mr Parks understood Parliament’s intention to pass the Bill soon, but he remained sceptical of that. However, should the Bill be passed in the current administration, he suggested that a supplementary bill process be started after 18 months to see if any additional measures may be needed.

Intelwatch

Ms Swart highlighted that contrary to what Members were suggesting, national security was a finite concept. There were agreed upon international intelligence practices, different types of intelligence collection, espionage, covert operations, etc. There were limits to the definition, even within that broad ambit. The GILAB 2013 defined national security, and there were several aspects to it such as hostile acts, foreign intervention, directly undermining the constitutional order, terrorism and terrorist activities, espionage, sabotage, and serious state violence. For instance, how to determine a terrorist act had to be referred to in the legal definition of terrorism, so that if one accused someone of committing terrorism, it would be grounded in law -- which was absent in the Bill.

Another example was political activity. It could quickly become unlawful if one did not have a permit to protest, so it was very easy to use the current version of national security to put a non-profit organisation under surveillance. Her view was that the definition of national security was already broad, even in the current Act with all of its criteria. This would open up gaps for abuse, so it was important to identify threats to national security as well as inclusions and exclusions. It was difficult to have a definition that excludes new risks that had been established in intelligence services for decades, such as foreign onslaughts and internal threats, etc. From a safety perspective, it had to be limited.

Ms Swart concurred with Mr Parks on the fact that the IGI could not make binding recommendations, which was why the country had been stuck with state capture, and before that. None of the proposed changes would give the JSCI and the IGI more power. Currently, the Bill would shield state security services from being scrutinised by the courts.

Mr Padayachy

Mr Padayachy indicated that the discretionary power related to the Minister’s power in the appointment of the heads of the respective agencies was given in s17(e) of the Bill. Moreover, s34(a) of the Bill defined that the Minister may do anything necessary for the functioning of the Agency, which he described as a wide scope that would thrust a wide range of power onto the Minister. He suggested a secondary check or better appointment process would mitigate those concerns. The section could be defined better.

He explained that concerning s198 of the Constitution and the changing nature of cyber security globally, there should be a growing definition of intelligence. He believed it would be better to apply s1 of the Constitution to set some limits to that definition. S1 was based on freedom, human dignity and equality, which was broad enough to accommodate the growing nature of intelligence on a daily basis, as well as protecting the public’s interest. Utilising s1 gave the Minister and the intelligence agencies the leverage to adapt to the changing environment without the abuse of power over the public.

He acknowledged that his presentation was based on the Bill in its original form. While there had been revisions, unfortunately, more recent surveys had not been conducted. He highlighted the issues of vetting surveillance and privacy that arose from the survey. He urged the House to bear those statistics in mind. While those figures had changed, a lot of the fundamental issues were still present.

Prof Duncan

Prof Duncan pointed out that revised national security strategies usually changed with the political leadership, and as the sixth administration was coming to the end of its term, now was not the time to discuss the revised strategies.

She referred to her own research on national security strategy, and said it was usually a high-level document that sets out a country’s strategic vision for its security and the emerging threats it faces, and how the government would go about addressing those threats. It also reflected on the strategies that were to be used, as well as the resources needed to realise those strategies. It would spell out the core national security values that the country agreed on and its core objectives, as well as assess the major national security interests and threats to the country. That was why public participation was instrumental in that process. It should spell out priorities for responding to those threats and security sector actors in implementing the strategies. Typically, the National Security Council was the custodian, and she found it problematic that it had been silent on the reform of the intelligence sector. The strategy should outline oversight over the key actors, resources and partnerships needed to achieve the objectives.

Concerning the Secret Services Act, a conversation should take place to discuss under what circumstances the Agency and services should resort to the use of covert operations. There had been an overuse of covert operations because there was a financial incentive to push intelligence collection and analysis towards operations and covert operations, as that was where the money lay. There should be a proper dialogue on what the service and the Agency did, how much of it should be based on open sources of information, how much of it should be covert, and in what circumstances one should resort to covert operations, other than the cash-advance system. Were there other ways of funding covert operations, because that system seemed to be feeding on the corruption at the former State Security Agency?

On bulk interceptions, Prof Duncan referred to the procedures which she had touched upon earlier, such as the grounds on which interceptions may be authorised. Bulk interceptions were conducted for strategic intelligence purposes, which involved a more broad ranging and longer-term vision. Much clearer and explicit circumstances must be given so that bulk interceptions could be authorised. There were comprehensive details that were set out in the Regulation of Interception of Communication Act (RICA) which could be used for the granting procedures to be followed for selecting, examining and intercepting material, and the precautions to be taken when communicating material to other parties, including foreign intelligence partners. Were there circumstances in which bulk interceptions were shared with intelligence partners that had fewer privacy protections than South Africa had? In some countries, intelligence services were forbidden from exchanging bulk interception intelligence with partners. The Bill was silent on that.  

Follow up questions

Ms C Labuschagne (DA, Western Cape) sought clarity on the amendment to make the IGI's recommendations legally binding. Should that be in the normal annual reports or the certificates that intelligence structures had to report on, or should it include all the investigations the IG should do? She was concerned with the centralised power of the IG, similar to the centralised power given to the Minister. She felt that by bringing the JSCI into the picture, it would be better balanced.

Prof Duncan indicated that the two main functions of the IG were the certification and ombud functions. There was a stronger argument for the IG to have recommendation powers in relation to the certification function. Given the practicalities of making the JSCI the final arbiter, it was dangerous not to have the IG making recommendations that were binding. The country had had an unfortunate history of the JSCI not being functional. Given the uncertainty of the future, it should be ensured that the OIGI’s recommendations are binding. Similar to the Public Protector, the OIGI ended up having a lot of power. Having a deputy IG would dilute the power, which would decrease the potential for that office to be captured when that power was abused. She preferred seeing a more streamlined and faster arrangement, where the IG could make findings and could act on them in both the certification and ombud functions.

Ms Swart reminded the Committee that the courts would also keep an eye on the IGI. She would not be concerned at the prospect of the IG’s office overreaching, because there was another layer of checking.

The Chairperson sought advice from the parliamentary legal advisor on the implications of what Prof Duncan had raised, and the impact on parliamentary procedures.

Mr Nathi Mjenxane, Parliamentary Legal Advisor, explained that the Bill was being processed in terms of s75 of the Constitution. This meant the issues to which the Chairperson had referred which were not in the original Bill as introduced by the NA, and would have to be referred back to the NA for further consideration. The NA would have two options. One was to accept the changes as submitted by the NCOP, or reject them. If this Committee did not make any changes to the Bill as introduced, it would then be referred to the President for assent.

The Chairperson invited Mr Kgosi Kananelo to make an oral submission.

Oral submission by Mr Kgosi Kananelo

Mr Kananelo highlighted the compromising position of the poverty issue in South Africa, as shown by the July 2021 unrest. He was confident that over 50% of the damage could have been avoided if government had provided enough jobs to people at that time. Poverty was the main issue in South Africa, which drove up the crime rate. Most youths were unemployed. He recommended to Parliament that more youths should be put into Parliament and in government structures so youths could work together to address the issue of poverty.

His input was entirely unrelated to the Bill.

The Chairperson noted that Mr Kananelo’s input was related to crime and the need to strengthen policy imperatives. The Committee would ensure that the issue be referred to the appropriate parliamentary committees to deal with the matter.

The Chairperson informed the public that the deadline for making submissions and comments on the Bill was 12 May.

The meeting was adjourned.