Intelligence Services Control Amendment Bill: discussion & voting

Intelligence Legislation

13 October 1999
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Meeting Summary

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Meeting report


13 October 1999

Documents handed out:
Proposed Amendments by NNP (attached to end of minutes)
Final Amendments provided by the State Legal Advisors

The morning session included discussion of section 7 (d) concerning "offences and penalties" of contravening the Bill; Section 5 addressing the disclosure of intelligence information by the Inspector-General; and section 2(a) concerning the formula for designing the political party composition of the Joint Standing Committee on Intelligence (JSCI).

The afternoon session consisted of a review and vote on the final amendments to the Bill followed by a successful vote by the Committee to accept the Bill with amendments.

The Chairperson, Ms N Nqakula (ANC) encouraged the Committee to adhere to the above agenda so that the proposed Bill may be passed as quickly as possible to provide oversight of State Intelligence Services.

Morning Session:
Section 7 (d)
The first item tabled was Section 7 (d) of the Bill concerning "offences and penalties." Mr Schutte (NNP) stated that the punishment in the Bill of up to five years imprisonment was excessive and was unlikely to pass constitutional scrutiny. Furthermore, Mr Schutte questioned the Committee's authority to impose such a strict regulation and inquired into the origin of imposing a five-year sentence and felt that six months would be more suitable. He asked specifically, "what other Bill imposes a five year penalty?" Gen. Viljoen (FF) similarly agreed with Mr Schutte.

The State's Legal Advisor stressed that if a Bill possesses clear regulatory parameters, as found in the Bill, it is constitutionally viable. Furthermore, he informed the Committee that by requirement a Bill must contain a penalty to be legislated. Mr L Ngculu (ANC) supported the Legal Advisor's statement. The Chairperson ended the session with the proposal that the State's Legal Advisor prepare an amendment section and further supported the request that Mr Schutte would prepare an amendment to discuss in the afternoon session.

Section 5
Another area of contention between the parties concerned Section 5 of the Bill addressing the "need to know" disclosure of intelligence information by the Inspector-General and the basic functioning of the Inspector-General. Specifically, some members of the Committee were concerned that the Bill does not clearly establish under what conditions the Inspector-General may divulge intelligence information. Mr Schutte's amendment proposal clarified the existing clause of the legislation. Much of the Committee agreed with the proposed changes and the Chair suggested that the State Legal Advisors review the proposal for amendment purposes.

Issues of the functioning of the Inspector-General and specifically how many Inspector-Generals there should be caused confusion in the group. As the Bill was tabled, it was accepted that there is too much room for interpretation of the number of Inspector-Generals - e.g. there can be one overall Inspector-General or there can be an Inspector-General for each Intelligence service. Mr Lever (DP) and several other members expressed this view. This conversation lead to intensive discussion that remained unresolved during the morning session. While the State Legal Advisor stressed that the Bill allows for the appointment of one inspector general or four if need be, the Committee felt that budget restraints would not allow more than one. This issue was not strongly argued by any other party and the clause as it currently stands was seen as acceptable. In summation the Chairperson confirmed that there was agreement on the principle of an Inspector-General for all of the Intelligence Services. She suggested that the Committee accept the clause as it stands and address the issue after looking at the section dealing with the selection of the Joint Standing Committee on Intelligence (JSCI).

Section 2(a)
Section 2(a) demanded the lion's share of the Committee's attention during the morning session. Two areas in particular were central to the discussion: the composition of the JSCI and the procedures for providing the security clearance of its members.

Discussion on the composition of the JSCI began with Mr Lander's (ANC) statement that after consultation the ANC would like to accommodate groupings of smaller minority parties in the JSCI and proposed to expand the Committee to possibly 17 members to achieve this goal. Mr T. Abrahams (UDM) gave his support to the ANC initiative. There was general consensus among the UDM, AZAPO, DP, FF, and NNP that while minority representation was a worthy goal, a smaller committee would be beneficial to expedite decisions and for security concerns. However, these points are not mutually compatible if the formula for representation is based on parliamentary representation. Mr Lever (DP) proposed a formula for better representation within the 15-member group but this was defeated by the amendments proposed by Mr Schutte (NNP) which will keep the group between 14-19 members based on representation. Consensus was reached within the group and the Chairperson instructed the Legal Advisor to adopt Mr Schutte's amendments.

The other issue in section 2(a) which raised debate was the issue of the National Intelligence Agency (NIA) an agency responsible to the JSCI conducting the security clearances necessary for the Members of the JSCI. While the integrity of the NIA was not challenged, the issue of possible security clearance refusal of a JSCI member was discussed. Mr Lever (DP) had serious reservations regarding the fact that an official procedure was lacking in the event that a possible member was refused clearance. Mr Lever expressed the DP view that either the Court or the Inspector-General by requirement should be mandated to provide the role of ombuds-person should there be discrepancy with a security clearance. Despite Mr Lever's reservations, the Committee accepted the clause as it stands, ending the morning session.

Afternoon session:
The afternoon session was completed very quickly with the tabling of amendments to the Bill from the morning session. The Chairperson briefed the Committee on all amended clauses of the Bill and they were all accepted with minor changes. However, Mr Lever (DP) asked the Chairperson to note that the DP was still not satisfied with the security clearance procedures as previously illustrated above.

Following the agreement of all amended clauses, the Committee adopted the Bill and the Chairperson signed on the Committee's behalf.

Appendix 1:

NNP Proposed Amendments
Sec 2: P.2- line 21
Appointed on the basis of proportional representation as determined by the formula in paragraph (C): Provided that -
(i) if the total number of seats on the Committee allocated to the political parties in terms of paragraph (c) is less than 15 seats, the unfilled seats shall not be allocated to any political party, but the committee shall nevertheless be deemed to the properly constituted; and

(ii) if one party has been allocated more than 8 members in terms of paragraph (c), and more than 5 parties are represented in Parliament, the five minority parties with the largest representation in Parliament will be entitled to at least one member on the committee; and the committee so constituted will be deemed to be properly constituted even if the total number of seats so allocated on the committee is more or less than 15; and

(iii) - the present (ii)

(c) Parties shall be entitled to designate a member or members to the committee in accordance with the principle of proportional representation and as determined in accordance with the following formula:

By dividing the number of seats held by the party in the National Assembly by the total number of seats held by all the Parties in the National Assembly; multiplying the result with 15; and discarding all decimals.

Sec 5: P.8 Line 21
(d) . . . Provided that the Inspector-General may if the intelligence or information is subject to any restriction applicable to it in terms of any law, disclose such intelligence or information received by him or her only -

(i) after consultation with the President and the Minister; and

(ii) subject to appropriate restrictions placed on such intelligence and information by him, if so indicated; and

(iii) to the extent that such disclosure shall not be to the detriment of national interest.

P.8 line 36
The Inspector-General may disclose intelligence or information received by him or her in terms of subsection (8)(b) only -
(i) after consultation with the President and the Minister; and

(ii) subject to appropriate restrictions placed on such intelligence and information by him, if so indicated; and
(iii) to the extent that such disclosure shall not be to the detriment of national interest.


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